Opinions of the Attorney General 1954-1956 [1956]

OPINIONS
of
THE ATTORNEY GENERAL
1954, 1955 and 1956 EUGENE COOl(
Attorney Genera I
FRANK H. EDWARDS, JOHN TYE FERGUSON,
G. HUGHEL HARRISON AND JOHN C. SCARBOROUGH, JR. Compile?'B Printed by
FOOTE & DAVIES
ATLANTA

The Honorable Marvin Griffin Governor, State of Georgia Atlanta, Georgia
Dear Governor Griffin:
I have the honor to present herewith for your consideration the report and opinions of the Attorney General of Georgia for 1954, 1955-1956.
As head of the Department of Law, I wish to publicly state to you and to the readers of this publication 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
II

ATTORNEYS GENERAL HENRY P. FARROW__________________________________________________________________1868-1872 N. J. HAMM0 ND-------------------------------------------------------------------------1872-1877 ROBERT N. ELY----------------------------------------------------"--------------------1877-1880 CLIFFORD L. ANDERSON________________________________________________________1880-1890 GE 0 RGE N. LESTER _______________________c__________________--------~--------------1890-1891 W. A. LITTLE ----------------------------------------------------------------------------1891-1892 J. M. TERRELL --------------------------~-------------------------------------------------1892-1902 BOYKIN WRIGHT ______________________________________________________________________1902-1902 J 0 HN C. HART----------------------------------------------------------------------------1902-1910 HEWLETT A. HALL_________________________________________________________________1910-1911 THOS. S. FELDER _____________________________________________________________________ 1911-1914 WARREN GRICE ________________________________________________________________________1914-1915 CLIFFORD WALKER _________________________________________________________________1915-1920 R. A. DENNY --------------------------------------------------------------------------- ___1920-1921 GEORGE N. 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-
III

PREFACE
In the preparation of this volume for publication, there has been an attempt to provide interested persons in the State a compilation of the opinions which the Attorney General has rendered on questions of Georgia law. To this end, over seventeen hundred opinions have been reviewed and over nine hundred of these have been selected as being of sufficient general interest to warrant publication.
The opinions herein are grouped into broad headings following, in general, the same subject matter index as used in the Georgia Code of 1933. One major departure from this procedure, however, has been the introduction of the new topic of "Taxation," which, by its nature, is separate and distinct from the old subject "Public Revenue."
Also included, at the beginning of this volume, is a brief summary of the functioning and operation of the Department of Law for the calendar years 1954, 1955, and 1956. This is not a detailed report, but is merely an indication of the activities of the Department during these years, which it is believed will be of interest to lawyers and laymen alike.
THE ATTORNEY GENERAL
IV

EUGENE COOK Attorney General
President, National Association of Attorneys General-1954 (Georgia's first Attorney General to be President NAAG)
v

FUNCTIONS AND OPERATIONS OF THE DEPARTMENT OF LAW
1954, 1955, and 1956
The Department of Law, headed by the Attorney General, is entrusted with the legal affairs of the State of Georgia. This entails performance for the various State Departments of all the functions which a lawyer normally performs for his client, such as the giving of legal advice and opinions and the handling of litigation. In addition, there are certain other duties imposed upon the Department of Law, due to its public nature, such as participation in all cases involving charitable trusts and bill drafting.
The laws of Georgia specifically define the duties and obligations of the Department of Law, but for purpose of simplification its functions may be divided into three broad categories, which are participation in litigation, rendition of opinions, and preparation of legislation.
For any attorney, litigation is the sun around which all other functions revolve. The Department of Law has on numerous occasions during the years 1954, 1955, and 1956, represented the interests of Georgia in the courts, not only of the State, but also the rest of the nation. To single out any case or group of cases for extended discussion would be a presumption which posterity may prove unwarranted. To the Department of Law, any litigation in which the State of Georgia is directly or indirectly involved is of prime importance, and the fullest possible effort is devoted to insure that justice and the interests of the State shall prevail.
The opinions rendered by the Department of Law fall into the classifications of official and unofficial. By law, official opinions may be rendered only to the Governor and the heads of the various State departments. However, the Department receives numerous inquiries from various counties, municipalities, and other public and private groups and individuals. It has been the policy of the Department of Law, as a public service, to answer these inquiries as fully and adequately as the demand of official duties will permit. It is felt that these unofficial opinions perform a vital function by promoting uniformity among the various political subdivisions of the State, and by disseminating information concerning the State and its laws to the citizens of Georgia and those .of other states and countries.
The third major function performed by the Department of Law is that of bill-drafting. This duty consists primarily of assisting members of the General Assembly in the preparation of prospective legislation. In addition, the personnel involved in this function engage in research and other activities concerning legislative activity.
VI

ACTIVITIES OF THE DEPARTMENT OF LAW 1954, 1955, and 1956
Cases participated in by the Department of Law______________________________________________________________________ 821
Opinions Rendered. Official. Published ______ 337 Unpublished __ 85 Total ______________ 422 Unofficial. Published ______ 573 Unpublished __ 715 Total _____________1288 Total Opinions Rendered ---------------------------------------------------- 1710
Bills Drafted for the General Assembly1955 Session, 1955 Extra-Session, 1956 Session (not including bills drafted during 1956 for introduction at 1957 Session) _________ ___________ _____________ ___________________________ ____ _____ 2129
VII

1.

ADOPTION-Procedure (Unofficial)

(a) Georgia law forbids the placing out of children for adoption by unauthorized intermediaries, and such persons are subject to prosecution as for a misdemeanor.
(b) When a child is placed in a foster home, the foster parents do not have to register their placement. An investigation of a foster honie is made only after a petition to adopt is filed.
(c) The Superior Court handles adoption proceedings.
(d) No court approval is required for a mother to release her child to an adoption agency or to foster parents.

Mr. Jay McMullen

August 11, 1954

I am pleased to give you the following information relative to the questions propounded:

"1. Does your law forbid the placing out of children for adoption by unauthorized intermediaries who make a profit on the transaction?"

The Georgia law (Code Section 74-421) forbids the placing out of children for adoption by unauthorized intermediaries whether or not a profit is made on .the transaction. The prohibition of placement for "profit" is found in the excerpt from the statute which states that it is unlawful to "... hold out inducements to parents to part with their offspring ..."

"2. Does your law provide for the prosecution of these intermediaries? If so, what penalty is stipulated and does this penalty also apply to the mother and adoptive parents involved in the case?"

The Georgia law provides for the prosecution of these intermediaries, and seems to provide for the prosecution of adoptive parents also who violate its provisions. It does not seem to apply to the mother involved in the case.
The penalty: "Any person violating any of the provisions of this Act shall be guilty of a misdemeanor and shall be fined not more than five hundred dollars or imprisonment not to exceed six months in the county jail, either or both, in the discretion of the trial court." (Code Section 74-422.)

"3. When a child is permanently placed in a foster home, does your law 1equire the foster parents to register their placement with local or state authorities?"

Georgia does not require foster parents to register the permanent placement of a child in their home.

"4. Does your law require an investigation of these foster homes? If so, when and by whom is it conducted?"

Georgia law requires an investigation of these foster (adoption) homes only after a petition to adopt has been filed by the adoptive couple in the proper court. "Prior to the date set by the Court for a hearing on the petition for adoption it shall be the duty of the State Department of Public Welfare through its own agencies, one of its licensed child-placing agencies or through any other agency appointed by said Department of Public Welfare to verify the allegations in said petition for adoption and to make a complete and thorough investigation of the entire matter, and to report its findings and recommendations in writing to the

2
Court where the petition for adoption was filed." The law provides that the Welfare Department have sixty days for this investigation. (Code Sections 74-409, 47-410 and '4-408.)
"5. What court handles adoption proceedings? Paternity proceedings?"
The County Superior Court handles adoption proceedings. Paternity proceedings are usually handled in the county juvenile court, but in the absence of a juvenile court, the superior court judge may serve in the capacity of juvenile judge in these proceedings.
"6. Can a mother legally release her child either to an adoption agency or directly to foster parents without court approval?"
Georgia law permits a mother to release her child either to an adoption agency or directly to foster parents without court approval. (Code Sections 74-403, 74-404, and 74-405.)

ADVERTISING-Creations of Contract
(a) If the parties do not have a mutual understanding of the thing offered for sale by advertising, there is no contract created by the advc;Jrtising.
(b) False and misleading advertising sent through the mails may be enjoined by the Federal Trade Commission.

Mr. W. P. Reed, Director Weights and Measures Division Department of Agriculture

December 28, 1955

You ask my opinion as to whether there is a breach of contract of sale where a grocer publishes the advertisement "Small Lean Pork Shoulders-25c pound" and declines "to sell less than the whole shoulder at the price of 25c per pound."
In my opinion, there is no breach of a contract of sale under the facts stated for the reason that both parties did not have a mutual understanding as to the identity of what was being offered for sale as required by Section 96-102 of the Georgia Code, Annotated. In the case of United Roofing & Mfg. Co. v. Albany Mill Supply Co., 18 Ga. App. 184, the Court of Appeals held that "an identification of the thing sold is an element so essential to a contract of sale that there can be no actionable breach of an alleged contract of purchase when it does not appear that the parties ever agreed as to the identity of the thing which was offered to be sold."
If such advertisements are false and misleading to a substantial number of persons and the advertisements are sent through the United States mails or in commerce by any other means, their dissemination may be enjoined by the Federal Trade Commission under Section 12 of the Federal Trade Commission Act, which is codified as Section 62 of Title 15 of the United States Code Annotated.

ADVERTISING-Rates (Unofficial)
The rate for advertising any part of one hundred words is the same as for advertising the entire one hundred words.

3
October 1, 1956
Mr. W. H. Champion
You request my opinion as to the charge which should be made for a fractional part of one hundred words of legal advertising under the provisions of Code Section 39-1105. That code section reads as follows:
"The rates to be allowed to publishers for publishing legal advertisements shall be as follows: For each 100 words, the sum of $1.50 for each insertion for the first four insertions; for each subsequent insertion, the sum of 75 cents per 100 words. In all cases fractional parts shall be charged for at the same rates; and no ordinary, sheriff, coroner, clerk, marshal or other officer shall receive or collect from parties, plaintiff or defendant, other or greater rates than herein set forth."
I am of the opinion that this question has been decided by the Supreme Court in the case of Groover v. Cook, 113 Ga. 612. At thetime that particular case was decided in 1901, the charge for legal advertising was 75c ver 100 words for the first four insertions, and 35c for each subsequent insertion. The only change which has been made since that time relates to an increase in the amount charged. So, consequently, the reasoning remains the same. It appears that this case is still the law inasmuch as it has not been overruled. The opinion of the Supreme Court, which, by the way, is a unanimous opinion, reads as follows:
"It will be seen from the statement of the case that the only question presented for our determination is the proper construction of section 5461 of the Civil Code, which prescribes "the rates" to be allowed publishers of newspapers for publishing legal advertisements. The question is not free from difficulty, but we have reached the conclusion that the construction given to the provisions of this section by Attorney-General Anderson, in an opinion furnished by him to Comptroller-General Wright, on July 10, 1885, is the couect one, and we have adopted that opinion as our own. When his opinion was rendered the provisions now contained in section 5461 of the Civil Code were embodied in section 3704 (a) of the Code of 1882. He said: "My interpretation of section 3704 (a) of the Code is that an advertisement of less than one hundred words is to be paid for at the same rate, viz.: seventy-five cents for each of the first four insertions, and thirty-five cents for each subsequent insertion. Had the statute read that fractional parts should be charged for in the same proportion, the interpretation would be different, but it prescribes a rate for the insertion of every one hundred words, and then provides that the same rate shall be allowed for the insertion of fractional parts of a hundred words. As the section is worded, its proper interpretation, I think, is that 'for each one hundred words or fractional parts thereof the sum of seventy-five cents for each of the first four insertions," etc., may be charged." The court below erred in sustaining the demurrer to the plaintiff's petition."
As you can see from reading this opinion, the charge for a fractional part is the same as for a full 100 words.

4
AGRICULTURE-Agricultural Extention Service (Unofficial)
Authority for Agricultural Extention Service in Georgia quoted.
March 18, 1955
Honorable W. A. Sutton, Director Agricultural Extension Service University of Georgia
In reply to the telephone request you made relative to the legal authorization for the Agricultural Extension Service.
The basic authority for Agricultural Extension Service is found in Sections 341-348 of Title 7, U. S. Code Annotated. This basic law provides for Federal appropriations to the states for the purpose of carrying out an Agricultural Extension Service Program, provided, of course, the state accepts the appropriations and abides by the conditions attached thereto.
The State of Georgia assented to the provisions of Sections 341-348, U.S. Code Annotated, by an Act of the General Assembly reported in Acts of 1922, p. 82, and also by an Act of the 1923 General Assembly reported in Acts of 1923, p. 88. Thus, the legal authority for the State of Georgia to engage in Agricultural Extension work is codified as Section 32-944, Georgia Code Annotated, which reads as follows:
"Power is hereby conferred upon the county tax levying authorities of the several counties, as well as the county boards of education, to carry on educational work for the promotion of the extension work in agriculture and home economics under the provisions of Act of Congress, approved May 8, 1914 (Barnes' Federal Code, 8413, 8414, 8518, U.S.C.A., Title 7, Agriculture, sections 341 to 348), and resolution of the General Assembly, under date of August 14, 1914, giving assent of the State to said Act of Congress, by employing county agricultural agents and home demonstration agents and supervising their work, and paying therefore. The board of education of the several counties may employ and pay county agents and home demonstration agents to carry on said extension work." Under the law the Board of Regents is the governing body for the University System of Georgia. The powers of the Board of Regents over the affairs of the University System are set forth in Code Section 32-112 of the Georgia Code. The Agricultural Extension Service is merely an administrative organization set up by virtue of the authority vested in the Board of Regents over the University System of Georgia. In other words, the Extension Service is analogous to any other activity of the University System, such as, History Department or any other Department of instruction. That is to say, there is no statute which spells out in detail the work of the Agricultural Extension Service.
AGRICULTURE-ENTOMOLOGY DEPARTMENT-Delegation of Duties by Director Director of Department of Entomology has authority to delegate duty of signing checks to Assistant. February 7, 1955
Dr. C. H. Alden Director of Entomology
This will confirm our recent conversation relative to the authority of the

5
State Director of Entomology to delegate to an assistant his authority to sign checks in the name of the Director of Entomology.
The authority to delegate these duties is contained in Section 5-719, Georgia Code Annotated, 1951 Cumulative Pocket Part, which reads as follows:
"The Director of Entomology is vested with power and authority to appoint such assistants, inspectors, other employees and agents as may be required, and to prescribe their duties and fix their compensations, to delegate to such as.sistants, inspectors and other employees and agents such powers and authority as.may be deemed proper within the limits of the powers and authority conferred upon him by this Chapter."
This Code Section unquestionably gives the Director of Entomology the power to delegate to an assistant the authority to sign checks.
The general rule is that. the deputy or assi~tant must sign the name of his principal when he is exercising delegated authority because the authority so exercised is derivative and a subsidiary one. That is to say, the assistant is acting in accordance with the authority reposed in the principal. See 43 Am. Jur., Section 464, page 221.
According to McCaskill v. Chattahoochee Fertilizer, et al., 167 Ga. 803, the proper. way for an assistant to sign the name of his principal is for the assistant to sign the principal's name and then sign his own name adjacent to the prefix "By".
In delegating the authority to sign your name on any check or official document, this delegation of duty should be placed on record either by making a notation on the minutes of your office or by addressing a letter or memorandum to the assistant setting forth the authority to act in your stead.
AGRICULTURE--LIVESTOCK-Livestocl Running at Large Act (Unofficial)
Law ruling effective date of Act after having been approved by voters of county quoted.
April 18, 1955
Honorable H. Ben Rodgers Representative, Charlton County
This letter is with reference to your oral request for an opinion as to the date
Charlton County will come under the "Livestock Running at Large Act." You stated that Charlton County voted in favor of coming under the Act at the general election held November 2, 1954 and that no grand jury action whatsoever has been taken relative to this Act.
The original Act was passed in 1953 (Georgia Laws 1953, Jan.-Feb. Session, p. 380), and was amended in November of that year (Georgia Laws 1953, Nov.-Dec. Session, p. 395). A further amendment was enacted at the 1955 Session of the General Assembly and is Act No. 394. Charlton County was one of the counties to which no "livestock" Act applied at the time of the passage of the original Act. The Act provided that in those counties an election should be held to determine whether the Act would apply. The provisions relative to such an election are found in Section 18. This section as contained in the November 1953 amendment reads as follows:

6
"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, or any property not belonging to the owner of the livestock unless by permission of the owner of such property' and 'Against adoption in ----------------------- County of the Act prohibiting livestock from running at large or straying upon public roads, or any property not belonging to the owner of the livestock unless by permission of the owner of such property.'
"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 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. In all elections subsequent to the general election of 1954, if a county votes to come under the provisions of this Act it 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.'' (Emphasis supplied.)
I might add that the 1955 amendment has repealed Section 18 in its entirety, but this does not affect our particular question. Inasmuch as the voters of Charlton County approved the Act at the general election on November 2, 1954, we must look to the underscored portion of the above quoted section to determine the date of applicability. We see that it will become effective twelve months from November 2, 1954, which of course will be November 2, 1955.

AGRICULTURE-MILK CONTROL BOARD-"Filled Milk" (Unofficial) Georgia law prohibits sale of "filled milk" for human consumption.

Mr. George Clinton

March 8, 1955

This will acknowledge receipt of your letter of February 25, 1955, requesting the Georgia law relative to filled milk."

7
This question is controlled by Code Section 42-511, Georgia Code Annotated, which reads as follows:
"Additions to condensed or evaporated milk, etc.-It shall be unlawful to sell, keep for sale, or offer for sale any condensed or evaporated milk, concentrated milk, sweetened condensed milk, sweetened evaporated milk, sweetened concentrated milk, sweetened evaporated skimmed milk, or any of the fluid derivatives of any of them, to which shall have been added any fat or oil other than milk fat, either under the name of said products or articles or the derivatives thereof, or under any fictitious or trade name whatsoever."
The law further provides that anyone violating this Code Section will be guilty of a misdemeanor.
The law setting up the Milk Control Board of the State of Georgia, which is a Board whose function is to regulate the production and distribution of milk and dairy products, defines milk to include raw milk, pasteurized milk, cream, buttermilk, flavored milk, ice cream mix, and recombined milk.
There is no authority under the law in Georgia for the manufacture or sale of a "filled milk" product for human consumption. In other words, the Georgia law prohibits the sale of "filled milk" for human consumption in the State of Georgia.
AGRICULTURE-Soil Conservation Districts State Soil Conser~ation Districts may legally qualify as "Local Organiza-
tions" under the Watershed Protection and Flood Protection Act, Public Law No. 566, and are authorized to participate in the provisions of said law.
August 20, 1954
Honorable Jim L. Gillis, Jr., Chairman Georgia State Soil Conservation Committee
I acknowledge receipt of your letter of August 12, 1954, requesting my opinion as to whether or not Georgia Soil Conservation Districts may qualify as "Local Organizations" under the Watershed Protection and Flood Act, Public Law No. 566 (68 Stat. 666), enacted by the 83rd Congress, and thereby participate in "Works of Improvement," with the right to receive funds from the Federal Government.
I will consider the Federal Act section by section with regard to each section's elation to state law. In so doing, for purposes of convenience, I will refer to the Soil Conservation Districts Law (Ga. Laws 1937, p. 377), as amended, according to the designations as found in the Code Annotated Supplement (Chapters 5-18 through 5-22).
Section 2 of the Federal Act defines "Works of Improvement" as having reference to undertakings either for flood prevention or agricultural phases of conservation. Section 5-1805 specifically declares that the purpose of the Georgia law is to provide for the conservation of the soil and soil resources and to control floods. Throughout all of the Georgia Act's provision's it is clear that its purpose is in harmony with Public Law 566.
Section 2 also defines a "local organization" as any "state, political subdivision thereof, soil or water conservation district," etc. Chapter 5-19 of the Georgia Code Annotated Supplement provides for the creation of soil conservation districts.

8
Sections 5-1806 (1), 5-1919; and 5-2012 declare that any district organized as provided under these chapters (5-18 through 5-22) shall constitute agencies of the state. Here again the federal and state acts are in harmony.
Section 3 of the Federal Act provides for the conducting or investigations, preparation of plans, the making of agreements and furnishing of financial and other assistance. Section 5-2013 of the Georgia Act provides for the conducting of research and the making of surveys with federal agencies; Section 5-2014 provides for demonstrational projects; Sections 5-2016 and 5-2022 authorize the districts to enter into agreements and contracts; Section 5-2021 authorizes the districts to cooperate with the federal government and accept gifts and donations therefrom. These sections also seem in accord with the federal law.
Section 4 (1) of Public Law 566 requires, as a condition to the furnishing of federal assistance, that the local organization acquire, without cost to the federal government, all land easements, rights of way, etc., needed in connection with the project. Section 5-2017 authorizes the Conservation Districts to acquire by purchase, lease, gift, grant, etc., any property, real or personal, or rights therein. This seems in accord with Section 4 (1).
Section 4 (2) requires that the district assume such proportionate share of the project cost as may be determined to be equitable by the Secretary of Agriculture. Section 5-2016 provides that the District may enter into agreements, within the limit of appropriation made to it by law. Of course, any program or project entered into by a District is subject to approval by the state committee, as provided in Section 5-2012. Here again the state law is in agreement with the federal act. However, each contract must be considered as to its specific details, so as to ascertain that it does not obligate the district, a state agency, beyond the appropriation made by law and thereby create a debt against the state.
The remaining sections of the Federal Act appear to constitute no more than detailed provisions for carrying out the scope of the Act, and present no material variation in content from the sections which I have considered above. However, I wish to re-emphasize that each individual agreement or project must be considered as to its specific provisions.
I therefore conclude that the State Soil Conservation Districts may legally qualify as "Local Organizations" under the Watershed Protection and Flood Prevention Act, Public Law No. 566, and are thereby authorized to participate in the provisions of said law.
AGRICULTURE-Sale of Products A municipality does not have the authority to require a farmer selling
produce raised by him to obtain a license for the sale of such produce within the municipality.
July 12, 1956
Honorable Phil Campbell Commisisoner of Agriculture
This will acknowledge receipt of the letter from Honorable Boyce Dyer, Director of Markets and Marketing, requesting my opinion as to the authority of a municipality to require a farmer to obtain a municipal license to sell produce that he has raised (within the State of Georgia) within the municipality.
Code Section 5-603 provides:

9
"No municipal corporation shall levy or assess a tax on cotton or the sales thereof, nor levy or assess a tax on any agricultural products raised in this State, or the sales thereof (other than cotton), until after the expiration of three months from the time of their introduction into said corporations." [Editor's note: See Act No. 462, 1957 Session of General Assembly, approved March 13, 1957.] From the above, I am of the opinion that a municipal corporation does not have the authority to require a farmer selling produce raised by him to obtain a license for the sale of such produce within the municipality. In an opinion dated February 11, 1953, to Honorable Tom Linder, Commissioner of Agriculture (Opinions of the Attorney General, 1952-53, p. 449) I dealt with the problem of peddling agricultural products.
AGRICULTURE-Weights and Measures A certified public weigher must post a bond of $1,000.00, whether he works
for himself or is employed as one of a group of weighers.
March 23, 1956
Mr. W. P. Reed, Director Weights and Measures Division Department of Agriculture
I have your letter, in which you request my opinion as to whether Section 6 of Act No. 404 [Ga. Laws, 1956, p. 635] (formerly House Bill No. 208) approved March 9, 1956 concerning the bonds of "certified public weighers" permits the furnishing of one bond of $1,000 for such number of certified public weighers as may be employed in that capacity by an individual person, firm, or corporation or a $1,000 bond of indemnity is required for each certified public weigher. This Section provides as follows:
"Sec. 6. (A). Any such persons, firms, or corporations who shall have their employees or agents designated as Certified Public Weighers shall post a Surety Bond in the sum of $1,000 (One Thousand Dollars) payable to the Commissioner of Agriculture for the benefit of persons, firms, or corporations issuing a Certified Public Weighers certification of any weight or measure of leaf tobacco, or weight of livestock, conditioned as follows:
"(B). If the Principal shall faithfully comply with the rules and regulations governing a Certified Public Weigher, as prescribed by the Commissioner of Agriculture in writing, and shall indemnify the Commissioner of Agriculture, for the use and benefit of persons who suffer injury or damage as a result of the negligence, incompetence, or misconduct or principal in performing the aforesaid duties of a Certified Public Weigher, then this obligation to be void; otherwise of full force and virtue." The same provisions except for stating a period to be covered by the individual bond is now contained in Ga. Code Ann., 112-205 which is codified from Acts of 1949, pp. 1179-1181. I understand that since the passage of the 1949 Act an indemnity bond of $1,000.00 has been required of each certified public weigher without regard to his employment by a person, firm, or corporation employing other certified weighers.

10
If a bond is not required of each certified public weigher whether employed singly or as one of a group of certified public weighers, it would be possible for any person, firm or corporation to employ any number of certified weighers, but to furnish the same bond that would be required if it had only one certified public weigher. It would also be possible for any number of weighers to channel their income through one of their number who might be styled an employer while giving only one bond of $1,000.00. I do not believe that the General Assembly intended to make these results possible. I am therefore of the opinion that the Act requires a bond of $1,000.00 for each certified public weigher whether he works :for himself or is employed as one of a group of such weighers.
AGRICULTURE-Weight of Livestock All livestock which is sold must be weighed by a bonded Certified Public
Weigher who has been licensed by the Commissioner of Agriculture.
July 9, 1956 Honorable Phil Campbell Commissioner of Agriculture
This will acknowledge receipt of the letter from Honorable W. P. Reed, Chief of the Weights and Measures Section of the Department of Agriculture, requesting my opinion as to whether or not Section 3 of an Act approved March 9, 1956 (Ga. Laws 1956, p. 631) applies to persons who weigh livestock sold at meat packing plants, abattoirs and plants manufacturing sausage and similar meat products.
Section 3 of the Act reads as follows: "Section 3. Livestock of any kind sold or offered for sale at any
sales, or auction barn shall be weighed by a bonded Certified Public Weigher, who has been licensed by the Commissioner of Agriculture after being bonded as required under Section 5 of the Act of 1949 (Ga. L. 1949, pp. 1179, 1183)." Another Act of the 1956 General Assembly of Georgia provides for the weighing of livestock at sales establishments by Certified Public Weighers. That Act was approved March 7, 1956, and is found on page 501 of the 1956 Georgia Laws. That Act is limited to livestock auction sales. "Sales establishment" is defined therein to include any yard, barn or other premises where livestock is sold at auction. In view of the above, and in the absence of any definition of the words "auction, or sales barn," I am of the opinion that the provisions of the quoted Section 3 of the Act approved March 9, 1956 (Ga. Laws 1956, p. 631) are applicable to any place where livestock is sold or offered for sale.
AGRICULTURE-LIVESTOCK-Treatment of Garbage The Commissioner of Agriculture is authorized to provide for the treat-
ment of garbage prior to feeding it to livestock.
December 29, 1955 Honorable Phil Campbell Commissioner of Agriculture
I have your letter asking my opinion as to whether under House Bill No. 598, approved March 4, 1953, and identified as an Act entitled "Livestock-Garbage

11
Feeding, etc.", Ga. Laws 1953, p. 480, the Commissioner of Agriculture has authority to provide by rules for the different processing of various types of refuse.
Section 1 of the Act declares, among other things, that the policy and purpose of the Act are to control and prevent the spread of certain highly contagious and infectious diseases in livestock through the regulation of the feeding of garbage to livestock. Section 2 of the Act prohibits the feeding of garbage to animals unless it "has been heated, cooked, treated or processed under such temperature, pressure, process or method, and for such a period of time as is necessary to render the same free of any infectious or contagious disease which might either affect the domestic animals of this State or the citizens of this State" This section provides further that "the Commissioner of Agriculture is authorized to promulgate by rules and regulations the method of heating, cooking, treating, or processing and to prescrib~ the temperature and time for such heating, cooking, treating and processing as may be determined by scientific research."
Section 4 of the Act provides that "the Commissioner of Agriculture is authorized to promulgate such other rules and regulations as may be necessary to effectuate the purpose of this Act."
I am of the opinion that the Commissioner of Agriculture may provide by rules or regulations for variations in the method of heating, cooking, treating, or processing and in the time and temperature prescribed if he finds that such variations are designed to accomplish more effectively rendering the garbage free of any infectious or contagious disease as provided in Section 2 and the policy and purpose of the Act as described in Section 1.
AGRICULTURE-Minimum Weight of Bales of Cotton Purchasers of cotton can impose penalties on sellers of cotton in instances
where the bales fall below the minimum weight set by the purchasers.
July 21, 1955 Mr. W. P. Reed, Director Weights and Measures Division Department of Agriculture
This will acknowledge receipt of your question as to whether or not purchasers of cotton can impose penalties on sellers of cotton in instances where the bales sold fell below a minimum weight set by such purchasers.
Section 5-504, Ga. Code Ann. (Ga. Laws 1911, p. 182), reads as follows: "It shall be unlawful for any person, firm or corporation engaged in
the business of buying cotton, as principal or agent, to deduct any sum for bagging and ties from the weight or price of any bale of cotton when the weight of the bagging and ties does not exceed six per cent of the gross weight of such bale of cotton. In the event that the weight of the bagging and ties exceed six per cent of the gross weight of such bale of cotton, only the excess over the said six per cent may be deducted." This section, of course, applies to deduction for bagging and ties and does not apply to a deduction because a bale is below a minimum weight arbitrarily set by the purchaser. There is no authority under Georgia law for a purchaser to impose a penalty on the seller of a bale of cotton because the bale weighs less than the minimum weight arbitrarily set by the purchaser. Of course, the parties can enter into a contract permitting such deduction provided it does not contravene Section 5-504,

12
Ga. Code Ann., or other law. Any deduction or reduction in the price authorized by contract would not be a penalty imposed by the purchaser against the will of the seller, but rather would be a contractual matter fully agreed to by the parties.

AGRICULTURE-Livestock Development Authority
Discusses duties of the Governor with respect to the Georgia Livestock Development Authority.

Honorable Marvin Griffin Governor of Georgia

April '7, 1955

This is in response to your letter, a request for an opmwn as to the extent of your duties relative thereto and control over the Georgia Livestock Development Authority.

In 1934 the Georgia Rural Rehabilitation Corporation was granted a charter by Fulton Superior Court pursuant to Chapter 22-3, Georgia Code Annotated. The Georgia Rural Rehabilitation Corporation was organized as a private corporation for the purpose of receiving funds from the Emergency Relief Administration, which was a depression agency set up by the Federal Government. In other words, the Georgia Rural Rehabilitation was a private corporation authorized to accept Federal funds and conduct a farm mortgage business in order to effectuate the Emergency Relief Administration program in Georgia.

During the ensuing years, through a sort of metamorphosis, the Emergency Relief Administration finally became the Resettlement Administration.

In 1950, the 81st Congress passed Public Law 499 entitled "Rural Rehabilitation Corporation Trust Liquidation Act" which authorized and directed the Secretary of Agriculture of the United States to liquidate the trust funds that were being held by the Rural Rehabilitation Corporation in the various states. The Georgia Rural Rehabilitation Corporation at the time held such funds.

In 1953 the General Assembly passed, and the Governor signed into law, the Livestock Development Authority Act, 62-1501-62-1518, Georgia Laws 1953, pages 337-347. The objective of this Act was to encourage stock farming, pasturage improvement and egg production in Georgia, by providing additional security for private loans granted for such livestock and egg production. The Livestock Development Authority was in reality a State Agency engaged in a type of farm mortgage business, similar, and at once different, from the activity carried on by the Georgia Rural Rehabilitation Corporation. Since the Georgia Rural Rehabilitation Corporation has over the years granted long term farm mortgage loans-in some instances as long as 40 years-and in view of the fact that the funds held in trust for the Federal Government were being liquidated, thus in effect abolishing the. parent agency, thereby leaving the Georgia Rural Rehabilitation Corporation in a doubtful and precarious legal status, it was only logical that this anomalous creature should be rescued by the State. Accordingly in 1953 at the NovemberDecember Session of the General Assembly the Livestock Development Authority and the Georgia Rural Rehabilitation Corporation were merged into a new public corporation to be known as the Georgia Livestock Development Authority, 62-1519, Georgia Code Annotated (1954 Supplement); Georgia Laws 1953, November-December Session, pages 471, 472.

Thus the Georgia Livestock Development Authority succeeded to all the

18

power and authority possessed by the Livestock Development Authority and the Georgia Rural Rehabilitation Corporation.
In determining your duties and control over this public corporation it is necessary to inquire into the powers held by the two constituent corporations.

The Georgia Rural Rehabilitation Corporation was a private business corporation organized pursuant to Chapter 22-3, Georgia Code Annotated, and was under the control of its Board of Directors.

The powers and duties of public officers are prescribed by the Constitution, or

by statute or both. 43 Am. Jur. Public Officers, 249. The duties of a public office

include all thosewhich fairly lie within its scope, those which are essential to the

accomplishment of the main purposes for which the office was created, and those

which, although incidental and collateral, are germane to, or serve to promote or

benefit, the accomplishment of the principal purposes. 43 Am. Jur. Public Officers,

250. At present there is no constitutional nor statutory provisions that give the

Governor of Georgia any authority or control over the affairs of a private business

corporation. Therefore, whatever powers possessed by the Georgia Rural Rehabili-

tation Corporation under its charter and laws were transferred to the officers or

governing body of the new Georgia Livestock Development Authority and not to

the Governor.



The governing body of the Georgia Livestock Development Authority is the

seven members of the Livestock Development Authority, 62-1519, Georgia Code

Annotated, 1954 Supplement.

The Authority consists of seven members, one of whom shall be the Commissioner of Agriculture, one of whom shall be the President of the Georgia Bankers Association, one of whom shall be the Director of the Agricultural Extension Service of the University of Georgia. The four remaining members shall be appointed by the Governor. 62-1502, Georgia Code Annotated, 1954 Supplement.

The members of the Authority are accountable as trustees and the State Auditor has authority to inspect and audit their accounts and books of said Authority. 62-1502, Georgia Code Annotated, 1954 Supplement.
The statutes creating the Georgia Livestock Development Authority vest no power or control in the Governor over the said Authority, except the duty to appoint four members.

Whatever control possessed by the Governor over the Georgia Livestock Development Authority must, therefore, be found in the general laws.

Of course, the Governor is under a duty to see that the laws are executed. 40-201, Georgia Code Annotated.

Possibly the greatest control possessed by the Governor over the affairs of the Georgia Livestock Development Authority is in his capacity as Director of the Budget. Broad powers of supervision over State agencies are given to the Director of the Budget by 40-409, Georgia Code Annotated, which provides as follows:

"The Director of the Budget shall have such supervision of every public department, agency and institution as shall be necessary to secure uniformity and accuracy of accounts and efficient conduct of its fiscal affairs. He may inquire into the methods of conducting the affairs of any public body; he may prescribe and direct the use of such forms of accounts, records, and reports as may be necessary to further efficiency, and an adequate system of records for budget-making purposes; and he may prescribe and direct the use of standards of efficiency for public employees."

However, this power granted by 40-409 is limited by 40-415, Georgia Code Annotated, which reads as follows:

14
"Neither the Governor in his official capacity nor the Finance Commission shall have the power to arbitrarily strike the name of any individual employed by the State from a requisition for allotment of funds or from the budget of any department or agency of the State Government: Provided, however, that upon information being received that any individual employed by the State or any department or agency thereof is guilty or is alleged to be guilty of irregularities, misconduct, malpractice, malfeasance, misfeasance, incompetence, incapability or inefficiency in the conduct of his or her official duties, the department head employing said person shall be notified of such charges and if the department or agency head takes the position that the charges are unfounded and fails or refuses to discharge the individual against whom the complaint is lodged, it shall be the duty of the Governor to hear the complaint and if, in his opinion, the facts sustain the truth of the accusation, the said individual shall stand discharged from State service. Should the department head employing the said person and the individual so discharged be aggrieved by the action of the Governor, he shall have a right of appeal by filing with the Governor a written notice of dissatisfaction and requesting that an appeal be entered in the matter. The Governor shall at the next meeting of the Finance Commission as herein provided, submit the matter to the Finance Commission which shall hear the appeal under such rules, regulations and procedure as it may be prescribed. The findings of a majority of the membership of the Finance Commission upon the question of whether or not the aggrieved person shall be employed shall be final and said findings shall be filed in writing with the department head, the person discharged and with the State Auditor. Nothing in this section shall affect the tenure of office of the elected officials of this State nor shall it affect the tenure of office of appointed officials of this State who have been confirmed by the Senate as required by law."
In conclusion, I am of the opinion that the extent of your legal duties and control over the Georgia Livestock Development Authority is found in your duty to appoint certain members and in your capacity as Director of the Budget.
AGRICULTURE-Penalties on Feed
Penalties collected on feeds must be deposited in the State Treasury where the feed dealers are unable to furnish the names of purchasers of the feed.
April 27, 1955 Honorable Phil Campbell Commissioner of Agriculture
Reference is made to your letter in which an opinion is requested as to the disposition of moneys collected as penalties on feeds under Section 42-205 a, Ga. Code Ann., Ga. Laws 1945, pp. 213, 214, in cases where the feed dealers are unable to furnish the names of the purchasers of the feed.
The rule of law to be applied in order to decide this question is found by comparing two relevant statutes-Ga. Laws 1937, pp. 454, 456, and Ga. Laws 1945, pp. 213, 216. All statutes in pari materia are to be taken together as if they were one law. Sampson v. Brandon Grocery Company, 127 Ga. 454; A. A. Smets v. Thomas and Riley Weathersbee, R. M. Chari. 537.
Different statutes enacted at different times must be construed together. Gabreil Harrison and Richard W. Wright v. Joel Walker, 1 Ga. 32.

15
In 1937 a statute was enacted, Ga. Laws 1937, pp. 454, 456, codified as 42-207 et seq., Ga. Code Ann., 1951 Cumulative Pocket Part, which provided, inter alia, the following:
"The Commissioner of Agriculture, and the State Chemist shall have the power to assess and collect refunds to cover deficiencies in grade or any feeding stuff, as determined by an official analysis, and refunds so collected shall be distributed pro rata among actual consumers of such feed. In case such consumers cannot be located; such moneys or parts thereof as remain undistributed shall be deposited in the State Treasury to the credit of the Department of Agriculture, and may be used only for the expenses incurred in the enforcement of this Chapter .. " (Emphasis supplied.)
In 1945 a statute was enacted to safeguard and protect commercial feed and feeding-stuffs sold in this State. 42-210 a, et seq., Ga. Code Ann., 1951 Cumulative Pocket Part, Ga. Laws 1945, pp. 213, 216.
This law provides definite penalties for deficiencies found on chemical analysis of the feeds. See 42-205 a, Ga. Code Ann., 1951 Cumulative Pocket Part.
Section 42-207 a, Ga. Code Ann., 1951 Cumulative Pocket Part, provides among other things:
" .. Any penalties arising under the provisions of this Chapter, except penalty for failure to attach tags and inspection stamps, shall be collected by the Commissioner of Agriculture for the use and benefit of the feeder or feeders using such feed or feeding stuff: ... "
The 1945 Act also provided that it shall be supplementary to existing laws. 42-213 a, Ga. Code Ann., 1951 Cumulative Pocket Part.
Not only logic but also 42-213 a, Ga. Code Ann., 1951 Cumulative Pocket Part, demand that the 1937 Act and the 1945 Act be considered in pari materia. Thus the provision of the earlier law as to the distribution of moneys collected when the consumer cannot be located applies to moneys collected pursuant to the 1945 law.
I, therefore, am of the opinion that moneys collected as penalties on feeds under 42-205 a, Ga. Code Ann., 1951 Cumulative Pocket Part, in cases where the consumer cannot be located must be deposited in the State Treasury to be disposed of in conformity with the provisions of the Constitution of 1945.
The Constitution of Georgia, 1945 superseded those portions of the Act of 1937 requiring the moneys deposited in the State Treasury to be used by the Department of Agriculture in enforcing the feed laws. The Constitution of Georgia, 1945 made certain fundamental changes in the law relating to State finances.
Generally, all moneys collected by the State go into the General Fund of the State Treasury and can be drawn therefrom only by appropriations by the General Assembly. Therefore, under the present law, funds collected from particular sources such as penalties, cannot be deposited in the State Treasury and earmarked to be used for certain definite purposes.
Art. VII, Sec. II, Par. III of the Constitution of 1945, 2-5503, Ga. Code Ann., reads as follows:
"All money collected from taxes, fees and assessments for State purposes, as authorized by revenue measures enacted by the General Assembly, shall be paid into the General Fund of the State Treasury and shall be appropriated therefrom, as required by this Constitution; for the purposes set out in this section and for these purposes only."
Art. VII, Sec. IX, Par. IV of the Constitution of Georgia, 1945, 2-6204, Ga. Code Ann., provides:

16
"The appropriation for each department, officer, bureau, board, commission, agency or institution for which an appropriation is made, shall be for a specific sum of money, and no appropriation shall allocate to any object the proceeds of any particular tax, or fund or a part or percentage thereof." Art. III, Sec. VII, Par. XI of the Constitution of Georgia, 1945, 2-1911, Ga. Code Ann., provides as follows:
"No money shall be drawn from the Treasury except by appropriation made at law." It therefore follows that the penalties collected under the feed laws where the consumers cannot be located must be deposited in the General Fund of the State Treasury to be appropriated by the Legislature as it sees fit. Of course, these funds may be held in trust by you in your capacity as Commissioner of Agriculture to be paid to the proper person. Since these penalties become "locked up" when deposited in the State Treasury only to be released on appropriation, it is unnecessary to emphasize the demand for great diligence in attempting to locate the consumers prior to depositing these penalties in the State Treasury, since the Commissioner of Agriculture collects these penalties for the use and benefit of the consumers, and these penalties are trust funds.
AGRICULTURE-Noxious Seed Requirements The Commissioner of Agriculture has authority to promulgate regulations
relative to noxious weed seed, as the Georgia Seed Law (Georgia Laws, 1941, page 797) setting standards was repealed by Georgia Laws, 1949, page 1138.
August 18, 1955
Honorable Phil Campbell Commissioner of Agriculture
This will acknowledge receipt of your letter relative to the Georgia Seed Laws. From a perusal of the enclosures accompanying your letter it is noted that the United States Department of Agriculture did not include the Georgia requirements in its publication "State Noxious Seed Requirements Recognized in the Administration of the Federal Seed Act" because of an alleged conflict between the Georgia Seed Laws and Regulations issued by the Commissioner of Agriculture.
In 1941 the General Assembly passed and the Governor signed into law an Act known as the Georgia Seed Law, 5-2401, et seq., Georgia Code Annotated (Ga. L. 1941, pp. 497, 508). This statute contained a definition of noxious weed seeds which distinguished between primary and secondary noxious weed seeds. It also contained provision relating to the labeling of Agriculture seeds offered for sale. Under this Act the Commissioner of Agriculture was given authority to issue regulations for the enforcement of this law.
In 1945 an Act was passed and signed into law regulating seed dealers, 5-2501, et seq., Georgia Code Annotated, 1951 Cumulative Pocket Part (Ga. L. 1945, pp. 201, 202). The purpose of this statute was to protect the purchasers of seed by requiring seed dealers to be registered and licensed by the Commissioner of Agriculture. Under the 1945 Act the Commissioner of Agriculture was authorized and directed to establish and adopt standards and grades for seed. No spe-

17
cific mention or reference is made to noxious weed seed in the 1945 law. Section 12 of the 1945 law specifically provided that it was supplementary to existing laws.
The 1945 law was purportedly amended by an Act passed in 1949, 5-2511 to 5-2521, Georgia Code Annotated, 1951 Cumulative Pocket Part (Ga. L. 1945, pp. 1138, 1140) which added several new sections. Section VI of this Act reads in part as follows:
" . . . The Commissioner of Agriculture is hereby authorized and empowered to promulgate rules and regulations prescribing, governing, regulating and defining noxious weed seed.... "
Although this Act was declared to be supplemental of existing law, it also provided that prior conflicting laws were repealed.
It is, therefore, clear that the Act of 1949 prevails over conflicting prior laws. By virtue of the 1949 Act the Commissioner has exceedingly broad authority to promulgate regulations relative to noxious weed seed. Such regulations issued pursuant to the 1949 Act must be in conformity with the provisions of that Act without regard to other law. Of course, only those portions of the Act of 1941 (Georgia Seed Law) and the Act of 1945 (Seed Dealer Law) that are in conflict with the Act of 1949 are repealed. The non-conflicting sections remain valid_ law and, therefore, regulations, where authorized, may be issued under them also.
The Rules and Regulations adopted by you on March 1, 1955 were expressly stated to be adopted and promulgated under the authority vested in the Commissioner of Agriculture under the Acts of 1941, 1945 and 1949.
I am, therefore, of the opinion that regulations 4 (12), 6, 8, and 9, about which some doubt has been voiced by the United States Department of Agriculture, are valid.
[Editor's Note: See Ga. Laws, 1956, p. 217, which supersedes acts cited in this opinion.]

AGRICULTURE-Egg Inspection An inspection fee of two cents is imposed upon each thirty dozen cases
of eggs, or fraction thereof.

Honorable Phil Campbell Commissioner of Agriculture

August 25, 1955

You request an opinion relative to the egg inspection fee law. Section 42-907, Georgia: Code Annotated (Ga. Laws 1935, p. 336) reads as follows:

Inspection fee.-Authority is hereby vested in the Commissioner of Agriculture to impose an inspection fee of two cents on each 30-dozen case of eggs or its equivalent, such fee to be placed in the general inspection fund of the Department of Agriculture to provide enforcement of this Chapter."

The unambiguous language of this law reveals that an inspection fee of two cents is placed on each 30-dozen case of eggs. Of course, a case or container containing less than 30-dozen would require the two-cent inspection fee. Otherwise, the purpose and intent of the law could be circumvented by never filling the cases with the full SO dozen. In other words, by leaving a few eggs out of each case, the inspection fee could be defeated.
I am, therefore, of the opinion that an inspection fee of two cents is imposed upon each 30-dozen case of eggs or fraction thereof.

18
BANKS AND BANKING-Branch Banks
Under the provisions of Georgia Laws, 1956, page 309, a bank having a branch in a city may establish additional branches in that city, provided that the population of the city is over 80,000. The population shall be determined by the Superintendent of Banks, from any information available to him which he deems reliable.
April 17, 1956
Honorable A. P. Parsons Superintendent of Banks
I have your letter of March 19, 1956, in which you quote the following portion of Senate Bill No. 30, pased by the 1956 session of the General Assembly [Ga. Laws, 1956, p. 309]:
"Also in municipalities now having branches of a bank with a holding company relation, such banks may make branches of existing holding company banks; and in the future in cities of over 80,000 population, according to the 1950 or any subsequent census, now having branches of a bank, present branches will have the same privilege of additional branches as permitted to other banks."
You enclose in your letter copy of memorandum from Mills B. Lane, Jr., President of The Citizens and Southern National Bank, dealing with the quoted provisions of Senate Bill No. 30, in which is posed the following questions:
(1) May a bank now having a branch in Augusta establish additional branches in that city, thus exercising the privilege already granted to a bank having its principal office in Augusta, upon a determination by the Superintendent of Banks as to the population of Augusta, based upon an enumeration other than a decennial census of the United States which the Superintendent deems reliable?
(2) May a bank with principal office in another city now having a branch in Macon, and another bank having its principal office in Macon, establish branches or additional branches in Macon upon the Superintendent of Banks determining from an enumeration of population which he deems reliable that the population of Macon is 80,000 or more?
(3) May the Superintendent of Banks act upon estimates or reports of the Bureau of Census other than upon a regular decennial census if he deems the same reliable?
Briefly, the history of branch banking is as follows: Prior to the general Banking Act of 1919, there were no statutory restrictions on branch banking in Georgia, and under the Act approved August 16, 1919 (Ga. Laws 1919, p. 135), a bank whose capital was fully paid in and was unimpaired, could, with the written approval of the Superintendent of Banks, establish branches in the city where they were located, or elsewhere, provided the Superintendent of Banks was satisfied that public convenience and advantage would be promoted by the opening of such branches. Under the provisions of the Act approved August 25, 1927 (Ga. Laws 1927, pp. 195-197), branches then in existence were permitted to continue and the establishing of further branch banks was expressly forbidden. In 1929, the Legislature enacted two statutes (Ga. Laws 1929, pp. 214-215), authorizing banks having their principal office in a city "now or hereafter having a population of not less than 80,000 or more than 125,000" to establish branch banks in the city in which its principal office is located; and banks having their principal office in a municipality now or hereafter "having a population of not less than 200,000 according to the last census of the United States or any future census

19
of the United States" to establish branch banks in the municipality in which its principal office is located.
Thus remained the law with reference to branch banks until the passage of Senate Bill No. 30 (Ga. Laws 1956, p. 309), under which the Legislature extended the exception to the Act of 1927 which permitted existing branch banks to continue and forbade the establishing of further branch banks, so as to permit a branch bank in a city having a population of not less than 80,000 to establish additional branches in such city. The population requirement couched in Senate Bill No. 30 is as follows:
"And in the future in cities of over 80,000 population, according to the 1950 or any subsequent census,". The language of the portion of Senate Bill No. 30 quoted above is ambiguous. It first provides that "in municipalities now having branches of a bank with a holding company relation, such banks may make branches of existing holding company banks;" and then goes on to provide "and in the future in cities of over 80,000, according to the 1950 or any subsequent census, now having branches of a bank, present branches will have the same privilege of additional branches as permitted to other banks". The first clause authorizes present branches of a bank with a holding company relation to establish branches of existing holding company banks without reference to any population requirement. Thus under the language of the first clause, any branch bank with a holding company relation which is now in existence is permitted to establish additional branches. The second clause, "and in the future in cities of over 80,000 population, according to the 1950 or any subsequent census, now having branches of a bank, present branches will have the same privilege of additional branches, as permitted to other banks."
Under existing statutes at the time Senate Bill No. 30 was enacted "banks having their principal office in cities now or hereafter having a population of not less than 80,000 or more than 125,000," could establish branch banks in the city in which its principal office is located (Act approved July 20, 1929, Ga. Laws 1929, p. 214), and the same was true in municipalities now or hereafter having a population of not less than 200,000, according to the last census of the United States or any future census of the United States (Act approved August 17, 1929, Ga. Laws 1929, pp. 214-215).
Thus the "other banks" referred to in the last portion of the second clause under discussion, in cities of between 80,000 and 125,000 population were not restricted to any census enumeration but merely to such a tabulation or computation of population as would convince the Superintendent of Banks that the city had the required population of not less than 80,000. It therefore would seem to follow that if present branches are to have "the same privilege of additional branches as are permitted to other banks," branches now in existence may establish additional branches in cities having a population of not less than 80,000 or more than 125,000 population when and if the Superintendent is convinced that the population of the city in question has reached the required minimum.
In reaching this conclusion, I am constrained to give effect to what appears to be the clear intent of the legislature-that is, that present branch banks will have the same privilege of additional branches as permitted to other banks. If this language is to be given any effect at all, it must be construed to mean that branches in cities that have been or hereafter may be determined by the Superintendent of Banks to have the required minimum population, may establish additional branches.

20
In this connection, I call your attention to the rule laid down by the Supreme Court of Georgia in Carroll v. Ragsdale, 192 Ga. 116, in which the Court said:
"But where an ambiguity exists either because of uncertainty in the meaning of words, conflicts with previous laws, or conflicts between different clauses in the same statute, the court should look beyond the verbiage and discover the intent. While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated. The legislative intent will prevail over the literal import of the words. Washington v. Atlantic Coast Line Railroad Co., 136 Ga. 638, Youmans v. State, 7 Ga. App. 101, United States v. Farenholt, 206 U. S. 226, Pickett v. U.S., 216 U. S. 456, American Surety and Trust Co. v. District of Columbia, 224 U. S. 491, State v. Pay, 45 Utah 411, 25 R. C. L. 967, No. 222. The statute must be examined as a whole and its different provisions reconciled if possible. Cairo Banking Co. v. Ponder, 131 Ga. 708, Roberts v; State, 4 Ga. App. 207, State v. Burnett, 173 N. C. 750, Board of Supervisors v. Cox, 155 Va. 68, J. B. Moss Iron Works v. Jackson County Court, 89 W. Va. 367. The general scheme and purpose of the legislation is a proper criterion for the construction thereof. Singleton v. Close, 130 Ga. 716, Pennington v. Douglas, Augusta & Gulf Railway Co., 3 Ga. App. 665." Again in Evans v. Evans, 190 Ga. 370, the Supreme Court said:
"This interpretation finds support in the principle that the intention of the legislature, as it manifestly appears in a statute, must be carried into effect, even though the precise and literal sense of the terms may be different."
Senate Bill No. 30 may be open to the attack that it is a special Act. Special Acts are prohibited by the Constitution only where there are no general laws on the same subject matter. It is entirely possible that the Act approved July 20, 1929 and the Act approved August 17, 1929 (Ga. Laws 1929, pp. 214-215), are subject to the same attack, as may be the Act of 1927.
The propriety of the Attorney General passing upon the constitutionality of any Act of the Legislature is questionable and except in the most exceptional and clear cases, I have felt it my duty not to express an opinion on such a question and I am not expressing any opinion here. All Acts of the Legislature are presumed to be legal and you as an administrative official are charged with the duty and responsibility of giving full force and effect to Senate Bill No. 30 until the same is repealed by the Legislature or is set aside by a court of competent jurisdiction.
Now answering the specific questions raised in the memorandum: (1) A bank now having a legally established branch in Augusta may establish additional branches in that city upon a determination by the Superintendent of Banks that Augusta has a population of not less than 80,000. The Superintendent of Banks is not restricted to the official decennial census enumeration of the United States in making such determination.
(2) A bank with its principal office in another city, now having a branch in Macon, such present branch may establish additional branches in Macon upon a determination by the Superintendent based upon information which he deems reliable, that Macon has a population of not less than 80,000.
(3) The Superintendent of Banks, in his discretion, may make a determination of the population of a city based on the reports of the United States Bureau of Census, or upon any other information available to him, which he deems reliable.

21
This opinion will also serve as an answer to your letter of March 19, 1956, in which you enclosed copy of letter from Henry P. Eve, Attorney for the Georgia Railroad Bank and Trust Company questioning the constitutionality of Senate Bill No. 30.
I am pleased to advise you with reference to the construction of Senate Bill No. 30. If I can be of further service, kindly call on me.
BANKS AND BANKING-Branch Banks A bank which has its principal office in a city of over 80,000 population,
and which is in a holding company relationship to another bank, may ~stablish branch banks in the city where its principal office is located.
April 18, 1956
Honorable A. P. Persons Superintendent of Banks
I have your letter in which you enclose letter from John A. Sibley, Chairman of the Board of the Trust Company of Georgia and legal memorandum. You ask for an opinion on whether the Bank Holding Company Bill (S. B. No. 30), passed at the 1956 Session of the General Assembly of Georgia, [Ga. Laws, 1956, p. 309] made any changes in the method of determining population to qualify the First National Bank and Trust Company in Macon to open a branch bank in that city.
In my opinion to you under date of April 17, 1956, dealing with Senate Bill No. 30, I pointed out the ambiguity in that portion of Section 3 of the Act which reads as follows:
"Also in municipalities now having branches of a bank with a holding company relation, such banks may make branches of existing holding company banks; and in the future in cities of over 80,000 population, according to the 1950 or any subsequent census, now having branches of a bank, present branches will have the same privilege of additional branches as are permitted to other banks."
Since the First National Bank and Trust Company in Macon has its principal office in Macon, even though it may have a holding company relation, it may establish branches in Macon in accordance with the provisions of the Act approved July 20, 1929 (Ga. L. 1929, p. 214), which provides:
"That banks chartered. under the laws of this State having their principal office in a city now or hereafter having a population of not less than 80,000 or more than 125,000, may establish branch banks in the city in which its principal office is located."
I am of the opinion that Senate Bill No. 30 does not repeal or alter the above provision and that the First National Bank and Trust Company in Macon may establish branches in Macon, when and if the Superintendent of Banks makes a determination, based on estimates, enumerations, computations, or other information which he deems reliable, that the City of Macon has the required minimum population of 80,000.

22
BANKS AND BANKING-Charter A bank charter which is purported to be renewed at a time some five
years prior to its expiration, expires upon its expiration date as the purported renewal is invalid.
November 16, 1956
The Honorable Ben W. Fortson, Jr. Secretary of State State of Georgia
You inquire regarding the legal status of the charter of the Washington Loan Banking Company and the corporation created thereby.
The facts of the case as I gather them from your letter and from the attached copy of a letter from the Honorable W. M. Jackson, Assistant SJiperintendent of Banks, to Mr. Frank W. ThOmas, President of the Washington Loan and Banking Company under date of October 17, 1956, and a copy of a letter from Mr. Carroll D. Colley to you under date of October 29, 1956, are as follows:
"The original charter of the Washington Loan and Banking Company was granted on September 7, 1891, by Act of the General Assembly for a period of 30 years. The charter expired on September 7, 1921, but was not revived and renewed until May 21, 1926. The renewal of the charter runs for 30 years from the date of the revival and renewal certificate which was May 21, 1926, and not from the expiration date of the original charter. The charter was again renewed on September 7, 1951, which apparently was in error, since the correct expiration date appears to be May 21, 1956, at which time it should have been renewed."
Georgia Code Annotated, Section 13-1101 provides in part as follows: "Any bank, whether incorporated by special Act of the General As-
sembly or by the Secretary of State under the general law for the incQrporation of banks, may have its charter renewed and its corporate existence extended for a period of 30 years by filing with the Secretary of State at any time within six months prior to the expiration of its charter an application . "
Since the charter, originally granted on September 7, 1891, was revived and renewed on May 21, 1926, for a period of thirty years ending May 21, 1956, it could not be renewed under the provisions of the Section quoted until November 21, 1955. I am of the opinion, therefore, that the purported renewal thereof on September 7, 1951, was invalid.
I am further of the opinion that the charter has expired and that it may and should be revived, renewed and extended under and in accordance with the provisions of Section 22-516 of the Georgia Code Annotated.
BANKS AND BANKING-Charter
A Trust Company, whose application was not forwarded to the Banking Department for approval or disapproval when it was originally chartered, is a de facto corporation only, The company may correct the omissions in its original charter by amendment if, and when, the Superintendent of Banks

23
issues a certificate of approval and the Secretary of State allows the amendment, it may become a de jure trust company.
January 30, 1956
Honorable A. P. Persons Superintendent of Banks
I have your letter of January 24, 1956, in which was enclosed copy of petition to amend the charter of the above named trust company. You point out that when the company was originally chartered, the application :was not forwarded to the Banking Department for investigation and certificate of approval or disapproval. You ask if you now have jurisdiction to conduct an investigation and issue a certificate either approving or disapproving the proposed amendments.
An examination of the petition and of the records of the Secretary of State reveals that the original application for charter was filed with the Secretary of State on or about July 21, 1948, and on July 22, 1948 the Secretary of State granted a charter. The application was filed under the provisions of the Act of December 23, 1898 (Acts 1898, pp. 78, 79) which is now codified as Chapter 109-1 of the Georgia Code. This Act in substance provides that any number of persons, not less than five, desiring to be incorporated as a trust company, shall file in the office of the Secretary of State a declaration in writing of their intention to incorporate, signed by the corporators, which declaration shall contain the names and addresses of the corporators, the name and style of the proposed corporation, the location of the principal place of business, the amount of capital stock and such other matters as they may deem desirable to state. The declaration shall be accompanied by affidavits of at least three subscribers that at least $25,000 of the capital stock had been actually paid out and that same was to be held and used solely for the business of the corporation.
The Act of 1898 further provides, in substance, that before filing the declaration a notice of intention to organize such trust company shall be published once a week for four weeks in a newspaper of general circulation published in the city in which the principal office of the proposed corporation is to be located.
The applicants complied with the technical requirements of the Act of 1898 in filing their declaration of intention to incorporate and a charter was granted, although the declaration of intention failed to clearly set forth the amount of capital for the proposed trust company, showing only an authorized capital of $1,000,000, without showing any basic minimum amount to be subscribed and paid in before the trust company would be authorized to commence business. Through inadvertence or oversight, a copy of the declaration of intentions (or application for charter) was not referred to the Superintendent of Banks for investigation and a certificate of approval or disapproval, although there was in force at the time of application for charter the Act of 1927, codified as Section 109-503 of the Georgia Code which provides, in substance, that the Superintendent of Banks shall have, possess and exercise all that jurisdiction, control and supervision, and authority over trust companies which he has over state banks.
Upon receipt of charter the Commercial Trust Company entered into the operation of a trust business. On February, 1954, the charter was amended by filing with the Secretary of State a certified copy of a Resolution adopted by unanimous vote of the stockholders. Again, through oversight, inadvertence or misconception, the matter was not referred to the Superintendent of Banks, although the provisions of the Act of 1927 were still in force and, in fact, had been amended by the 1952 General Assembly so as to add the proviso: "Provided, nevertheless, that a certificate of approval by the Superintendent of Banks, as in

24
the case of incorporation of banks, shall be secured and filed with the Secretary of State before he shall be authorized to incorporate a trust company or grant a charter amendment giving trust powers to an existing corporation. (Acts, 1952, pp. 193, 194.)"
Thus it would appear that since its inception the Commercial Trust Company may have been a de facto rather than a de jure corporation. (See Rogers t't al., v. Toccoa Power Co., 161 Ga. 524).
The Superintendent of Banks has not to this time considered that the Commercial Trust Company was under his supervision due to the fact that he did not issue a certificate of approval before its charter was granted. This position may not be sound in view of the decisions in Gormley v. State, 54 App. 843; State v. Gormley, 57 App. 714; and Bankers Savings and Loan Co. v. Better Business Division, Atlanta Chamber of Commerce, et al.; Gormley, Superintendent of Banks, 177 Ga. 334.
Admitting that there are omissions in the organizing and chartering of the trust company under discussion, and without attempting to place the blame therefor upon any official of the State (it may well be that the attorneys for the original corporators should have caught the defects pointed out), we are now confronted with a situation wherein the de facto corporation has gone forward in good faith in the conduct of a trust company business and has called these omissions to the attention of the Secretary of State and the Superintendent of Banks, and now seeks to amend its charter in such a way as to correct the original defects. The question is, does the Superintendent of Banks now have authority to make an investigation and to issue a certificate of approval or disapproval. I think so. While the Act of 1898, Section 109-101; 109-102, does not clearly direct the Secreary of State to refer copy of declaration of intention to incorporate as a trust company to the Superintendent of Banks for investigation and certificate of approval, when same is considered together with Section 109-503 giving the Superintendent of Banks the same jurisdiction, control, supervision and authority over trust companies that he has over state banks, it is clear that it is the duty of the Superintendent to investigate and issue a certificate either of approval or disapproval. To permit the company to continue operations under the present condition of its charter and without being under the supervision of the Banking Department might possibly invite litigation and liability at some future date in the event the company should fail.
The next question to be considered is will the Amendment and Certificate of Approval, if same be granted, correct the defects in the original charter? I am inclined to think so, that is as to future operations of the company. Any liabilities that may now exist against the stockholders or others would not necessarily be affected, but future operations would be. The Amendment corrects the defect in the capital structure by fixing the basic minimum capital at $182,550, represented by 18,255 shares of $10.00 par value each, and authorizes an increase up to $15,000,000. The Amendment seeks to bring the company clearly under the supervision of the Superintendent of Banks, and in fact agrees to pay the actual cost of examination by the Banking Department or of any one designated by the Superintendent to make the examination.
A question has arisen as to the necessity of publication of the proposed Amendment. The only advertising provision in the trust company statutes relates to the publication of notice of intention to incorporate as a trust company. The statutes are silent with reference to publication of applications for amendments to charters. The general laws of corporations have been examined and little help is found .there. While Chapter 22-5 of the Code seems to indicate that it is necessary

25
to advertise applications for amendments to charters of certain named types of corporations whicl). are chartered by the Secretary of State, a close examination of the Act of 1895 and the amendments thereto, codi(ied as. Section 22-510 through 515 leads me to the conclusion that it is not applicable here. This Act applies to any banking, railroad, insurance, express, telegraph, canal or navigation company. The Code of Georgia defines a bank in Section 13-2(n as a moneyed corporation authorized by law to receive deposits of money or commercial paper and having certain other enumerated powers. The Court of Appeals of Georgia, in Dunn v. State, 13 App. 314 at page 319, has clearly distinguished between a bank and a trust company organized under the Act of 1898 with trust powers only (not authorized to receive deposits) and has held that a trust company is not a chartered bank. Thus it appears that Section 25-514 is not applicable here.
Other statutes relating to advertisement of application to amend charters of banks and trust companies deal with amendments which seek to increase the corporate powers of the company, such as granting trust powers to a chartered bank or granting banking powers to a trust company. This is not true in the instant case. The Commercial Trust Company was chartered solely as a trust company and will continue to be such under the Amendment.
The purpose of advertising the formation of a corporation would seem to be to put the public on notice that a new business venture was about to be undertaken. The public was so informed prior to the chartering of the Commercial Trust Company in 1948. Furthermore, the public has been fully informed as to the nature of the business of this company by its actual and continued business operation since the original granting of the charter in 1948. Your attention is called to the provisions of Section 109-102 of the Code of Georgia relating to the publication of notice of intention to organize a trust company, which requires that such advertisement shall specify the names of the proposed corporators, name of the proposed trust company, and the location of the same. None of these three items is being changed by the proposed amendment. Therefore, if it should be concluded that advertisement was required, the only specifications of such advertisement would be the three things set out in Section 109-102 above referred to, wliich has already been publi;;hed and would be a mere repetition of the advertisement previously published. I am unable to find any requirement for advertisement of the proposed amendment tothe charter since it has been approved by unanimous vote of the stockholders voting, who represented more than two-thirds of all of the outstanding stock.
In conclusion, I am of the opinion that the de facto trust company under discussion can correct the omissions in its original charter by the proposed amendment if and when the Superintendent of Banks issues a certificate of approval and the Secretary of State allows the Amendment, and that the said Amendment will make the de facto Commercial Trust Company a de jure trust company.
BANKS AND BANKING-Credit Unions (a) A qredit Union may legally amend its by-laws so as to increase its
capital by issuing savings shares. (b) A Credit Union may legally borrow up to 50 per cent of its capital,
and "savings shares" constitute part of capital for this purpose.
September 27, 1955 Honorable A. P. Persons Superintendent of Banks
I have your letter in which was enclosed copy of the proposed amendments to
the by-laws of the Georgia Telco Credit Union, Atlanta, Georgia. You request an

26
opinion as to the legality of the proposed changes in the by-laws, and you also ask if Telco could borrow up to 50 per cent of its capital, including both shares of capital stock and savings shares, as well as surplus and reserves, after the contemplated changes have been made in the by-laws.
Under the proposed changes in its by-laws Telco plans to increase its capital by issuing savings shares to those members who now have savings deposits. Such savings shares will be in units of $5.00 each, with members who now have savings accounts being afforded the opportunity or option of converting such savings accounts into savings shares. Under its present set-up the capital stock of Telco is limited to one share to each member. The proposed changes create a new type of shares designated as savings shares. The capital stock under the present by-laws, is in reality a combination entrance fee and initial investment which must be paid up in full before becoming a member of the credit union. The new savings shares will be somewhat like non-voting shares of stock in a corporation. The fact that the savings shares do not carry voting privileges is immaterial, since Section 25-121 of the Code provides, among other things, that a member shall have but one vote, irrespective of the number of shares held.
The first question thus presented is: Can Telco legally amend its by-laws so as to increase its capital by issuing a new class of shares designated as savings shares to those members now having savings deposits who elect to convert their savings deposits into savings shares?
Section 25-110 of the Code of Georgia provides: Capital. Entrance Fee. Cancellation and Transfer of Shares:
"The capital of the Credit Union shall consist of the payments that have been made to it by the several members therein on shares.... A credit union may charge an entrance fee, as may be provided in the by-laws. Fully paid up shares of a credit union may be transferred to any person upon election to membership, upon such terms as the by-laws may provide and upon the payment of a transfer fee which shall not exceed 25 cents."
It is noted that this section does not attempt to define or to limit the word "shares." In fact, nowhere in the Act do I find a definition or limitation of "shares." Section 25-102 (e) provides that the by-laws shall provide "the conditions under which shares may be issued, paid for, transferred and withdrawn, ... " and section 25-105 (1) provides that credit unions may receive the funds and savings of its members in payment for shares or on deposit. This latter section certainly appears to contemplate shares of a different nature to those now issued by Telco, whose present shares of capital stock are a condition of membership and are paid for in full at the time of joining the union.
From my examination of the credit union laws of this State, as codified in Chapter 25 of the Code, I am of the firm opinion that our laws not only contemplate but actually vests in credit unions the right to determine their own set-up and financial structure. The Act approved August 27, 1925 (Ga. Laws 1925, pp. 165-177) clearly indicates that credit unions are to be governed by the provisions of their individual by-laws so long as such by-laws do not conflict with the Act and the general laws of the State. This conclusion is reached by reason of the fact that I find no less than fourteen references to such by-laws in Chapter 25 of the Code.
Section 25-104 provides that no amendment to the by-laws of a credit union shall become operative until copy thereof, with approval of the Superintendent of Banks endorsed thereon, has been filed with the Secretary of State. Thus it would appear that the matter of amending the by-laws of a credit union would be governed by the by-laws of that union. Article 17, Section 1 of the present by-laws

27
of Telco provides for amendment of the by-laws by three-fourths vote at any regular meeting, and that such amended by-laws shall become operative when copy thereof is approved by the Superintendent of Banks and filed with the Secretary of State. If the provisions of Article 17, Section 1 are complied with, I am of the opinion that Telco can legally amend its by-laws so as to increase its capital by issuing savings shares.
Turning now to the second question, namely under the proposed change, could the Union borrow up to 50 per cent of its shares of capital stock, savings shares and surplus and reserves or, in other words, up to 50 per cent of its increased capital, surplus and reserves?
Section 25-105 (5) provides that a credit union shall have, in addition to the powers common to all corporations under the laws of this State, the following powers: "It may borrow from any source, but the total of such borrowing shall at no time exceed 50 per cent of the capital, surplus and reserve funds of the borrowing credit union."
Section 25-110 provides that "the capital of a credit union shall consist of the payments that have been made to it by the several members therein on shares." Again it is pointed out that nowhere in the Act is the word "shares" defined or limited. Since the proposed by-laws amendments would create a new class of "shares," these savings shares would constitute a part of the capital under the language of Section 25-110.
In reaching this conclusion I wish to make it clear that Telco cannot automatically under the proposed amendment classify savings deposits as capital. It can only afford the owners of savings deposits the opportunity of converting such savings accounts into savings shares, and only that portion of the total savings accounts of the union as are actually converted into savings shares by the depositors will become a part of the capital of the union. The answer to the second question is, therefore, in the affirmative.
BANKS AND BANKING-Credit Unions (Unofficial) (1) State-chartered credit unions may own the property from which
they operate. (2) Board of Directors of a credit union have authority to purchase
property to house the officers of the credit union and for investment purposes without special permission of shareholders.
(3) A credit union may change its place of business on written notice and approval of the Superintendent of Banks.
(4) A member of the Board of Directors of a credit union is liable for the payment of its debts, only to the extent of the par value of the shares he holds just as any other shareholder.
February 21, 1955
Honorable A. P. Persons Superintendent of Banks
This is in reply to the letter from the Federal Employees Credit Union to you dated February 16, 1955, posing certain questions relative to the management of the affairs of said credit union.
The first question raised is as follows: "Is it legal for state-chartered credit unions to own the property from
which they operate?"

28
Section 25~105; Georgia Code Annotated, provides that eredit unions shall have the powers common to all corporations organized under the laws of this State and in addition certain powers peculiar to credit unions.
Section 22-1827, Georgia Code Annotated, provides in part as follows: "General corporate powers.-Every corporation, by virtue of its
existence as such, shall have power:
* * *
"(d) l!old real and personal property. To hold, purchase and convey real and personal property of every kind consistent with the purposes of its existence, ... "
Section 22-1828, paragraph (h), provides that every corporation organized in Georgia, in addition to certain enumerated powers, also has incidental powers as follows:
"To do all and everything necessary and proper for the accomplishment of the objects enumerated in the charter or any amendments thereof of necessary or incidental to the protection and benefit of the corporation and in general to carry on any lawful business necessary or incidental to the attainment of the objects of the corporation."
In view of these provisions of law, I am of the unequivocal opinion that a state-chartered credit union can own the property from which it operates.
Question No.2 posed is as follows:
"Under the state laws, does the Board of Directors have the authority to purchase property in order to house the offices of the Credit Union and for investment purposes without special permission of the shareholders?" Section 25-113, Georgia Code Annotated, provides in part as follows:
"... The board of directors shall have the general management of affairs, funds and records of the corporation and shall meet as often as may be necessary. Unless the by-laws shall specially reserve any and all of the duties to the members, it shall be the special duty of the directors:
* * *
"(6) To have charge of the investment of funds of the corporation .other than loans to members ... " Article VI, Section III, of the by-laws of the Federal Employees Credit Union provides that the Board of Directors shall have the general management of the affairs, funds and records of the Credit Union and it shall be their special duty to have charge of the investment of the funds of the corporation other than loans to the members. By applying the aforementioned rules <>f law to the second question, I am of the opinion that under the State laws, the Board of Directors does have the authority to purchase property in order to house the offices of the Credit Union and for investment purposes without special permission of the shareholders. The third question posed is as follows:
"In the event the above mentioned Credit Union should purchase property with the intentions of occupying space in the property as the office from which to operate, would permission of the Superintendent of Banks be given to move the office of the Credit Union from its present location to the new quarters? (A distance of some 100 'yards in physical location.)" This question'is controlled by Section 25-120, Georgia Code Annotated, which reads as follows:
'" ; _.
._~

29
"A credit union may change its place of business on written notice and approval of the Superintendent of Banks." The fourth question posed is as follows:
"Under the laws of the State of Georgia, would any personal liability resolve on the individual members of the Board of Directors if such action was taken provided that the conditions of the purchase of such property were cognizant and in accord with general business practices?" Article XVIII, Section I, of the by-laws of the Federal Employees Credit Union provides as follows:
"Members shall be equally and ratably liable for the payment of the debts of the Credit Union but no member shall be liable for any amount in excess of the par value of the shares he owns or for which he has subscribed." The by-laws define the liability of the members of the Credit Union and such definition' would, of course, include the Board of Directors. However, the Board of Directors would not incur any special liability over and above the liability they would incur as an ordinary member. In other words, the fact that the Board of Directors took this action would not subject them to any special liability.
BANKS AND BANKING-Conversion of National Bank into State Bank (Unofficial) (a) A National Bank is converted into a State Bank when the Secretary of State issues a certificate to the new bank. (b) The Secretary of State cannot issue such a certificate until the mandatory publication is completed. (c) The State Bank, resulting from such a conversion, would have a life of thirty years.
September 30, 1954
Mr. Henry J. Miller Reference is made to your letter in which you propound and discuss three
questions arising under the Act authorizing the conversion of a national bank into a state bank, Acts of 1953, January-February Session, page 73 et sequa.
1. What is the date of the consummation of the pl~n of conversion? I agree with your conclusion that the conversion becomes complete when the Secretary of State is&ues a certificate to the new bank as provided in the last paragraph of Section 6 of the Act.
2. Can the Se<;retary of State issue his certificate certifying the conversion immediately upon receipt of the certificate of approval from the Superintendent of Banks, or must he await completion of the publication of the application to convert?
If the publication (once a week for four weeks) of the application for conversion has not been completed when the Superintendent of Banks files his approval with the Secretary of State, then it is my view that the Secretary of State must await the completion of the publication before issuing a certif1cate or charter to the resulting bank. The publication provision is mandatory and to construe the Act otherwise would be to nullify this provision of the Act. I concur with your suggestion of filing affidavit of publisher showing dates of publication.
3. Would the corporate existence of the resulting state bank be thirty years from the issuance of the certificate by the Secretary of State?

30
As you point out, Section 13-1801 provides that upon incorporation a bank shall have a life of thirty years. Also, Section 13-1101 provides for a renewal of a charter extending the existence of a bank for thirty years. The merger or conversion in effect is the creating of a new bank and I am of the view that the resulting bank would have a corporate life of thirty years.
BANKS AND BANKING-Issuance of Charters A corporation that does a banking business in Georgia is subject to
the control and supervision of the Superintendent of Banks, although a charter was not properly issued and the corporation is only a de facto corporation.
February 8, 1955
Honorable A. P. Persons Superintendent of Banks
This will confirm my recent conversations with you relative to the status of the Commercial Trust Company vis-a-vis State Department of Banking.
A number of years ago there was a difference of opinion between attorneys for the Commercial Trust Company and certain Assistant Attorneys General on the question of whether or not the Commercial Trust Company was subject to the supervision and regulations of the State Superintendent of Banks. This difference of opinion arose by virtue of the fact that the Commercial Trust Company was originally incorporated pursuant to Section 109-101, Georgia Code Annotated, which provided that trust company charters be issued by the Secretary of State. However, whatever differences may have existed in the past, I am firmly convinced that the Commercial Trust Company is now subject to the control and supervision of the State Department of Banking. The law setting up the Banking Department, commonly known as the Banking Law, included in its definition of a bank, trust companies and other corporations doing a banking business. Also, Ga. Laws 1952, p. 193, codified as Code Section 109-102, Ga. Code Ann., now provides for the Superintendent of Banks to approve all applications for charters for trust companies. Also, Section 109-503 expressly provides that the Superintendent of Banks shall have jurisdiction, control and supervision and authority over trust companies organized and doing business in this State.
The Commercial Trust Company when originally organized made application to the Secretary of State to issue a charter without ever having submitted the application to the Superintendent of Banks. Whether or not this was an act of omission on the part of the Secretary of State or whether it was unnecessary may be a question about which there is a difference of opinion. In any event, insofar as the Commercial Trust Company is concerned, I am of the opinion that even though the law required the application to be submitted to the Superintendent of Banks, the Commercial Trust Company would be a de facto corporation if not a de jure corporation. However, when the Commercial Trust Company in 1954 amended its charter and failed to obtain the approval of the Superintendent of Banks as required by Section 109-102, the charter was improperly issued. Even though the charter was improperly issued, the Commercial Trust Company is nevertheless a de facto corporation and subject to the control and supervision of the State Superintendent of Banks.
There are repeated decisions in Georgia which hold that a corporation that does a banking business is subject to the control of the Superintendent of Banks

31
even though a charter was not properly issued. (See, Bankers Savings & Loan Co. v. Better Business Division, Atlanta Chamber of Commerce et al. Gormley, Superintendent of Banks v. The Same, 177 Ga. 334.)
I am of the opinion that there is a definite defeat in the present charter of the Commercial Trust Company and this defect can be cured either by the Superintendent of Banks issuing an approval of the charter nunc pro tunc or by the company bringing a new charter for incorporation or amendment and have it approved by the Superintendent of Banks.
Even though the Commercial Trust Company does not see fit to correct this defect, I am of the opinion that it will continue to operate as a de facto corporation and subject to the same control and supervision that the State Superintendent of Banks has over banks in this State.

BANKS AND BANKING-Loans (Unofficial) A bank may loan up to 10 per cent of its capital and surplus to an indi-
vidual on an unsecured note and, in addition thereto, may make loans on agricultural products provided the loan on such products does not exceed 80 per cent of the market value of such products.

September 13, 1955

Mr. J. H. Childs, Chairman

Cordele Banking Company

I have your letter of September 12, 1955 in which you request an unofficial

ruling on a part of Article 19, Section 13, of the Banking Laws of Georgia (Ga.

Code, Sec. 13-2013). You state that it has always been your understanding that

the provision relative to advancing 80 per cent of the market value of agricultural

products for the purpose of moving crops to market is a special provision of the

law made for that specific purpose, and is not to be considered as conflicting with

the regular 10 per cent limit on original (unsecured) loans to the same party.

Since official opinions have previously been rendered on this section, I will

quote from such opinions. Opinion of March 23, 1949, to Honorable Augustus P.

Persons, Superintendent of Banks (Opinions of the Attorney General 1948-1949,

page 440):

"The material portions of Section 13-2013 of . the Code of 1933,

as amended may be stated as follows:

"'No bank shall be allowed to lend to any one person, firm, or

corporation more than 20 per cent of its capital and unimpaired surplus;

and no loan shall be made in excess of 10 per cent of the capital aJ"!d sur-

plus, except upon good collateral or other ample security and with the

approval of a majority of the directors, or a committee of the board of

directors authorized to act, which approval shall be evidenced by the

written signature of said directors or the members of said committee

... Provided, that the limit of loans herein fixed shall not apply to bona

fide loans made upon the security of agricultural, manufactured, or indus-

trial products or live stock having a market value and for which there

is ready sale in the open market, title to which by appropriate transfer

shall be taken in the name of the bank, and which shall be secured by

insurance against loss by fire, with policies made payable to the bank,

where no more than 80 per cent of the market value of such products

shall be loaned or advanced thereon. . . '



"Originally under the old law there was no limitation on the amount

32
of loans to be made by a bank to any one person. The Act of 1919 (Ga. L. 1919, p. 196) limited the amount to 30 per cent of the capital and unimpaired surplus. The Act of 1922 (Ga. L. 1922, p. 68) amended the 1919 Act and placed the limit of a loan to any one person at 20 per cent of the capital and unimpaired surplus and provided that no loan should be made in excess of 10 per cent of the capital and surplus, except upon good collateral or other ample security, such loans to be approved by a majority of the Directors, or a committee of the Board of Directors authorized to act.
"In the passage of the Act which contained Section 13-2013 of the Code the General Assembly added a proviso excepting from the limits of the loans bona fide loans made upon the security of agricultural, manufactured, or industrial products or live stock. The general purpose of a proviso is to except the clause covered by it from provisions of a statute, or to qualify the operation of a statute....
"Loans made by a bank on manufactured or industrial products where no more than 80 per cent of the market value of such products are loaned do not count in considering the loans under the limit of 20 per cent of the capital and unimpaired surplus of the bank as provided in the main portion of Section 13-2013 of the Code."
Again, an opinion to Honorable J. C. Beasley, Superintendent of Banks, on May 13, 1946 (Opinions of Attorney General 1945-1947, pages 33-34) dated March 14, 1946:
"In the passage of the Act which contained Section 13-2013 of the Code the General Assembly added a proviso excepting from the limits of the loans bona fide loans made upon the security of agricultural products, and others. The general purpose of a proviso is to except the clause covered by it from provisions of a statute, or to qualify the operation of a statute....
"Loans made by a bank on agricultural products where no more than 80 per cent of the market value of such products are loaned do not count in considering the loan under the limit of 20 per cent of the capital and unimpaired surplus of the bank as provided in the main portion of .Section 13-2013 of the Code. In your hypothetical question you stated that the loan on agricultural products exceeded the 80 per cent of the market value of the products and wanted to know whether or not such a loan should be considered as being a part of the loan coming under the 20 per cent limit . . " It follows that a bank may loan up to 10 per cent of its capital and surplus to an indiv:idual on an unsecured note, and in addition thereto, may make loans on agricultural products provided the loan on such agricultural products does not exceed 80 per cent of the market value of such products.
BANKS AND BANKING-Powers of State Bank
A state bank is not authorized to carry on a general real estate and insurance business.
October 4, 1955 Mr. W. M. Jackson Assistant Superintendent of Banks
Re: Chatham Savings Bank, Savannah, Georgia; and Atlantic Savings & Trust Company, Savannah, Georgia.

33
I have your letter requesting advice on the legal\ty of a State chartered bank which does a savings business and which has trust powers, carrying on in addition thereto a general real estate and insurance business. I have examined with interest the memorandum opinion of G. J. Oppegard, Assistant General Counsel of the Federal Deposit Insurance Corporation on the same subject.
The powers of a State chartered bank are set forth in Section 13-1801 of the Code of Georgia (Article 17, Section 1, pp. 70, 71 of the Manual on Banking Laws) as follows:
"General Powers of Bank Enumerated:-A bank organized under this Act shall have power:
"(1) To have continual succession for the term of thirty (30) years, with the rights of renewal herein provided for, with all corporate powers and ,privileges herein granted.
"(2) To sue and be sued. "(3) To have and use a common seal, and at pleasure to alter the same. "(4) To appoint such officers, agents, and employees as the business of the bank may require, prescribe their duties, and fix their compensation as may be provided by the by-laws. "(5) To make such by-laws as may be necessary or proper for the management of its property and the regulation of its affairs. "(6) To hold, purchase, encumber, dispose of, and convey such real and personal property as may be necessary for its uses and business, subject to the restrictions and limitations herein prescribed. " (7) To discount bills, notes, or other evidences of debt; to receive and pay out deposits, with or without interest; to receive on special deposit, money, bullion, foreign coins, stocks, bonds, or other securities, or other property; to buy and sell foreign or domestic exchange, or other negotiable paper; to issue and sell acceptances; to lend money upon personal security, or upon pledges of bonds, stocks, or securities; to take and receive security, by mortgage or otherwise, on, property real or personal. "(8) To increase or decrease its capital stock in the manner herein provided. "(9) To increase or decrease the number of its directors in the manner herein provided. (Acts 1919, p. 188.)" Apparently the appellate courts of this State have never passed on the exact question which you raise. Generally speaking the courts of Georgia hold that corporations, including bank corporations, have only the powers conferred by their charters, together with such incidental powers as by implication are necessarily inferred from the powers expressly granted. The incidental or implied powers are only such as are strictly necessary to the proper and successful exercise of the express powers, and are not those that might be desirous, beneficial or convenient. Since Section 13-1801 does not expressly empower a bank to conduct an insurance business or a real estate business, are such powers implied in the language used therein? I think not. Not being able to locate any clear-cut decision on "implied powers" in the Georgia cases, I refer you to Zollman on Banks and Banking, Volume 1, page 146, wherein the author states: "Banking powers expressly granted include by implication incidental powers of employing agents and servants to transact the business, collect the debts, discharge the liabilities, and convert the property into money to

34
fulfill the bank's obligations. Authority to transfer stocks, bonds and mortgages to the Controller as security implies that the bank has the power to acquire such paper. The authority of a bank to deal in notes is implied because the legitimate business of banks cannot be carried on without doing so." The same author continues at page 147 through 149:
"The range of such implied powers is limited by fairly well-defined principles, and expands and contracts with the necessities of the situation. While a bank has no authority to appoint a general agent or to become the custodian of a will or to become a stakeholder in connection with a bet or to agree with another bank to pool losses, it has implied power to take risks, to purchase checks, to transmit money, to act as agent or even as executor, to deal in trade acceptances and to transfer them, to become
a holder in due course, to agree to purchase notes, to invest its money
in securities authorized by the law, such as state bonds, to deliver tax receipts to taxpayers on payment of their tax, to replace special deposits lost or improperly disposed of, and to agree in return for the release of an attachment to hold the proceeds of the attached property as a deposit in lieu of the attachment.
"The power to sell the bonds, securities and judgment~;~ owned by it is one of the incidental powers of a bank, and its exercise therefore is not ultra vires. Such a power indeed is necessary to enable banks effectively to serve their respective communities. The absolute power to sell includes of course the lesser power of transfer to secure a debt.' '
With reference to the power to engage in outside business generally the same author says, at pages 171, 172 and 173:
"Banks are not authorized to speculate. Speculation is contrary to their spirit and design. It usually results in injury, and sometimes in ruin.
"A bank therefore has no power to speculate in real estate or to enter into the real estate business and buy and sell land. Whether the property in question adjoins that on which the bank is doing business or whether it is situated in another state, whether it covers the entire interest or only a part, is of no particular consequence.
"A bank clearly has no power to enter into a general partnership for the purpose of buying and selling cattle, dealing in cotton futures, manufacturing glass, building levees or roads, pawning personal property, conducting an electric light company, a creamery, or a theatre, or trading in coal. An arrangement by which the bank undertakes to sell asphalt blocks, to buy and sell shares of stock, to buy fertilizer in large quantities, to ship cotton, binding itself in advance to deliver certain specified quantities is equally ultra vires."
Without going into further detail let me say that I am in accord with the conclusion reached by Mr. Oppegard that the banking laws of Georgia do not authorize a State chartered bank to conduct in addition to its regular banking business, a real estate brokerage or an insurance agency. The question that bothers me most, as it did Mr. Oppegard, is: What is to be done about the situation existing in the two banks in question? Apparently the activities in the fields of insurance and real estate have been conducted with the full knowledge of both your department and the F.D.I.C. for many years.
Regardless of the powers originally granted to Chatham as a Savings and Loan Association, when it converted into a State chartered bank, it became subject to the State banking laws and forfeited any charter powers originally

35
granted which were in conflict with the banking statutes. Since banking powers, especially the implied powers, are not clearly defined in our laws and the decisions of our courts, and especially since these banks have conducted activities which I regard as ultra vires with the tacit approval, to say the least, of your department for the past several years, it might be advisable to refrain from taking any positive action at this time and to amend the banking laws at the next Session of the General Assembly so as to clearly exclude such outside activities from the powers granted a State chartered bank.
BANKS AND BANKING-Loan Committees (Unofficial) Banks of Georgia are not required to have a loan committee.
December 17, 1954
Mr. G. H. Yeomans You inquire if the laws of the State of Georgia require banks to have a loan
committee. The only reference to loan committees which I am able to find in the banking
laws of this State is Section 13-203, the pertinent parts of which read as follows: "13-203. Branch Banks; officers, capital, taxation, etc.-Branch
banks already established under the law, shall be operated as branches, and under the name of the parent bank, and under the control and direction of the board of directors and executive officers of said parent bank. The board of directors of the parent bank shall elect a cashier, and such other officers that may be required to properly conduct the business of said branch, and a board of directors, or loan committee, shall be responsible for the conduct and management of said branch, but not of the parent bank or of any other branch save that of which they are officers, directors, or committee.... " It would, therefore, appear that in cases where a parent bank establishes a branch bank, the directors of the parent bank are required to elect either a board of directors or a loan committee for the branch bank. I do not find any general statute requiring banks to have a loan committee.
BANKS AND BANKING-Savings and Loan Association-Registration of Charter Savings and Loan Association is required to register its federal charter with the Secretary of State under the provisions of Code Sections 22-1506 and 22-1507, and is subject to those and other applicable provisions of the Georgia Code Annotated.
May 2, 1956
Honorable Ben W. Fortson, Jr. Secretary of State, Ex-Officio Corporation Commissioner
Reference is made to your recent letter in which you inquired whether, in my opinion, the Federal charter of a savings and loan association is required to be filed in your office and the corporation registered with you under the provisions of Section 22-1506, 22-1507 and other applicable provisions of the Georgia Code Annotated.

36
The charter of the Clayton County Federal Savings and Loan Association and similar institutions granted by the Federal Home Loan Board; Sec. 3, Objects and Powers, provides that it shall have, among other things, the power:
".. (2) To sue and be sued, complain and defend in any court of law or equity ... (7) To borrow money; (8) To lend and otherwise invest its funds. . . . (10) To purchase, hold and convey real and personal estate consistent with its objects, purpose and powers... " (Emphasis added).
Such association is operated for private gain, is subject to taxation by the State so long as the tax imposed by the State is not "greater than that imposed by such authority or other similar local mutual or cooperative thrift and home financing institutions (Sec. 1464 (h), Title 12, U.S.C.A.). And while it may act as an instrumentality of the Federal Government, it does so when and only "when designated for such purpose by the Secretary of the Treasury," (Charters, 3 (1)).
Any corporation, whether foreign (Ga. Code Ann., Sec 22-1506) or domestic (Ga. Code Ann., Sec. 22-1809), is required by law to file in the office of the Secretary of State a copy of its charter and to register with the Secretary of State and make returns at that time and annually thereafter, giving its name, when incorporated, by what authority incorporated, where incorporated, the nature of its business, its principal office and the amount of capital stock issued. (Ga. Code Ann., Sec. 22-1703); also to pay certain fees as provided by such statutes. These requirements, obviously, are designed to give those who deal with corporations both foreign and domestic, an opportunity to know with whom they deal, what their responsibility is and how they may be served with process in civil actions growing out of their exercise of the right to do business as a body corporate in this State.
The Federal government has gone far to preempt the regulation of Federal Savings and Loan Associations to itself, both through Acts of Congress and Regulations of the Federal Home Loan Bank Board. It may well be that it could have gone further and made these institutions exempt from suit and from taxation on the theory that they were instrumentalities of the Federal government, but it did not. To the contrary, it made them subject to suit and to taxation, and when it did that it made them subject to all reasonable laws and rules of the sev~ral states relative to the institution and maintenance of suit by and against them.
It appears to me, therefore, that it is not necessary to determine and declare whether the association in question is a "foreign corporation" as was held in Federal Land Bank of St. Louis v. Priddy, 7,1 S. W. 2d 222, 223; 189 Ark. 438, or a corporate instrumentality of the United States as was held in Federal Land Bank of Saint Paul v. Bismark Lumber Company, 314 U. S. 95, 86 L. ed. 65, and in People, et al. v. Coast Federal Savings and Loan Association, 98 Fed. Supp. 311. The association partakes of the nature of a foreign corporation in that it is a corporation not created by the laws of the State of Georgia and the Federal Government has made it, by the very terms of its charter, subject to suit in any court of law or equity and subject to taxation.
In this connection, Anderson, District Judge, quoted with approval and adopted the rule laid down in Federal Housing Administration Region No. 4 v. Burr, supra (309 U. S~ 242, 60 S. Ct. 490):
"It must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority. to 'sue or be sued,' that agency is not less amenable to judicial process than a private . enterprise under like circumstances would be. Clearly the words ~sue and

87
be sued' in their normal connotation embrace all civil process incident to
the commencement or continuance of legal proceedings." I am of the opinion, therefore, that the Clayton County Federal Savings and Loan Association is subject to the requirements of Section 221506 and Section 22-1703 of the Georgia Code Ann., and that under the provisions thereof it must file with you as Secretary of State and Ex-Officio Corporation Commissioner a copy of its charter, make the annual returns and pay the fees required by law of foreign corporations.

BANKS AND BANKING-Shareholders Rights (Unofficial)
Minority shareholder has right to inspect the books of a bank to show the
financial condition of the bank so as to ascertain his liability as a shareholder.

Honorable A. P. Persons Superintendent of Banks

February 3, 1955

Receipt is acknowledged of your oral request for an opinion on the rights of a

minority stockholder of a state chartered bank. You specifically ask if a minority

stockholder is entitled to examine the records of the bank, including daily state-

ments and balance sheets.



The rights of a stockholder of !J. state chartered bank are not defined in the banking laws. Usually, such rights are set out in the corporation charter. The Georgia statutes dealing with corporation generally are also silent on the question under consideration.

Generally speaking, stockholders have certain inherent rights, by virtue of their investment in the corporation, which include the right to attend and vote at corporate meetings, to take part in the election of directors, to participate in dividends and profits, and to receive a proportionate share of the corporate property or its proceeds upon dissolution of the corporation after payment of debts.
The right of management of a corporation, including a state chartered bank, is vested in the majority of the stockholders and is usually delegated to the board of directors. This includes the dictation of the policy of the corporation in managing its affairs. While the minority stockholder does not have many rights, such rights should be carefully safeguarded. Our courts have followed this principle.

In the case of Winfters, et al. v. Southern Securitie!'l. Co., et al., 155 Ga. 590, the Supreme Court of Georgia outlined in detail the rights of a minority stockholder:
"A bona fide stockholder has the legal right to inspect the books and
records of the Company, where the examination is asked for in good faith for a specific and honest purpose, and not to gratify curiosity, or for speculating or for vexatious purposes; and provided further that the purpose of the stockholder desiring to make the examination is gern1ane to l:is interest as a sto.ckholder, proper and lawful in character, and not inimical to the. interest of the corporation itself, and the inspection is made during reasonable business hours."
From the above language, it is my opinion: that a minority stockholder who

88
is acting in good faith has the right to examine the records of a bank even to the extent of occasionally seeing the daily balance sheet. He is entitled to know the financial condition of the institution in which he has invested his money and to ascertain his liability as a stockholder, if any. I do not wish to imply, however, that he has the right to make a nuisance of himself by constant daily examinations of the bank's records so as to interfere with the transaction of bank business. Such examination should be at a reasonable time so as not to interfere with the orderly conduct of business.
BANKS AND BANKING-Small Loans Fallacies in laws regulating small loans discussed.
June 22, 1954
Honorable Zack D. Cravey Comptroller General Chairman, Small Loan Investigation Committee
Receipt is acknowledged of your letter of June 15, 1954, in which was enclosed copy of letter dated June 7, 1954, from B. C. Gardner, Jr., a member of the Committee, which propounded four questions relative to the present statutes of Georgia dealing with Small Loan Businesses. You request that my office be in position to discuss the questions submitted by Mr. Gardner at the next meeting of the Committee which is to be held in the near future.
I concur in the conclusion reached by Mr. Gardner that our present statutes dealing with the lending of money are somewhat confusing and misleading. My views on the questions submitted are as follows:
"(a) Why is the Superintendent of Banks not responsible for the enforcement of the Small Loan Act as set forth in Title 25-301 of the Code of Georgia? (By enforcement, I mean the furnishing of sufficient evidence on which an accusation or indictment might be obtained by the Solicitor Generals of the State.)"
In answer to this question allow me to refer you to the following opinions previously issued by this office: Opinion issued September 24, 1946 to Honorable J. G. Beasley, Superintendent of Banks, (Opinions of the Attorney General, 19451947, p. 47); Opinion dated May 7, 1948, addressed to Honorable N. J. Clower, Solicitor, (Opinions of the Attorney General, 1948-1949, p. 12); Opinion dated July 8, 1948, addressed to Honorable M. E. Thompson, Governor, (Opinions of the Attorney General, 1948-1949, p. 15), copies of which are hereto attached.
You will note from these opinions that the Superintendent of Banks has permissive authority to investigate small loan companies under the provisions of Section 25-310, 1933 Code of Georgia Annotated, as amended, but such investigation is not required of him. The office of the Superintendent of Banks is not a criminal investigative office, and while willing and anxious to be of whatever assistance he can he does not have the personnel or the appropriation necessary to police the small loan business throughout the State.
"(b) Who regulates the associations lending money under the 'like associations' under the Building and Loan Associations Title 16 in the Code of Georgia?"
I am unable to find any provision in our statutes for regulating "other like associations" under the Building and Loan Association Act (Section 16-101, et sequa, Georgia Code Annotated, as amended. Such associations come under the general laws of the State and it is the duty of the Solicitors General of the

89
various counties to enforce the usury statutes in so far as such "other like associations" are concerned.
"(c) If corporations obtaining a charter through the Secretary of State's office is a 'like association' are required to submit reports and be regulated by the Secretary of State, under what authority is this being accomplished?"
"Other like associations" do not obtain charters through the Secretary of State; they are chartered by the Superior Courts of the State. While Section 16-412 of the Georgia Code Annotated provides that the court shall not grant a new charter to such associations or a renewal or amendment to an existing charter, without the prior written approval of the Secretary of State, the approval of the Secretary of State goes to questions of the need in the community for such association; the ability of the community to support such association; the similarity in the name of the association to any other association now doing business or which has previously done business in the State; and other like questions. This section applies only to state chartered or true building and loan associations and does not apply to the "other like associations" referred to in Section 16-101 (See Section 16-436, Georgia Code Annotated).
"(d) If corporations doing business as 'like associations' are regulated by the Secretary of State, who regulates partnerships doing business as 'like associations' and with whom do partnerships register and under what authority is it required that they register and be regulated?"
As pointed out corporations doing business as "other like associations" are not chartered and regulated by the Secertary of State. As to partnerships doing business as "other like associations" I am unable to find any provision in the statutes for their registration, regulation and supervision. If such partnership was operated under a trade name, different from the true names of the partners, such trade name would have to be registered with the Clerk of the Superior Court in the county where the business was carried on. The partnership would be licensed by the city authorities if the business were located in an incorporated city or town, otherwise, it would be licensed by the ordinary of the county. In either of these two events neither the Secretary of State nor the Superintendeht of Banks would have any knowledge of such business because they are not required to register with either of these two public offices.
CONSTITUTIONAL LAW-Education-Taxation for
1. Neither the State nor any local unit of Government may tax for the support of mixed schools.
2. Public funds of the State or any local unit of Government may not be expended for the support of mixed schools.
September 27, 1954
Honorable Herman E. Talmadge Governor of Georgia
I am pleased to acknowledge your recent request as to whether the Constitution of Georgia permits taxes to be levied by either the State or any local unit of government for the support of mixed schools of white and colored students, and whether public funds of the State or any local unit of government could be expended for such purpose in the light of the recent decision of the Supreme Court of the United States on segregation in the public schools. The following opinion is limited to the common schools as distinguished from the University System.

40
I
TAXATION FOR FREE MIXED COMMON SCHOOLS The key provision of the Georgia Constitution on common schools is found in Article VIII, Section I, Paragraph I (2-6401), which provides as follows:
"System of common schools; free tuition; separation of races.-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 t:he white and colored races." All of the constitutional provisions on taxation by the State and local units of government are manifestly related to the above Section which authorizes the establishment of free segregated common schools, and provides that they will be supported by taxation. The other constitutional provisions relating to the purposes of taxation do not of themselves afford authority for the establishment of such schools. In 84 C. J. S. 42, 4, it is held that:
"Constitutional provisions with respect to taxation constitute a limitation on the legislative power and not a grantof power." As to counties, Article VII, Section IV, Paragraph I (2~5701) provides as follows:
"Taxing power of counties.-The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except:
"3. For educational purposes upon property located outside of independent school systems, as provided in Article VIII of this Constitution." (Emphasis supplied.) In my opinion, the words "as provided in Article VIII" refer to two points, one being the first section which authorizes the establishment of free segregated common schools, and the other to the seventh section which provides that counties shall levy a tax for support and maintenance of education not less than five mills nor greater than fifteen mills upon the dollar of taxable property in the county located outside the independent school system. In my opinion, the right of the county to tax is conditioned upon the provision of Article VIII, Section I, i.e., a free segregated common school system. The General Assembly's taxing power is found in Article VII, Section II, Paragraph I (2-5501), which provides in part as followes:
"Taxation, how and for what purposes exercised.-The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only:
"2. For educational purposes." In reference to the power of the Legislature to tax for "educational purposes," the Supreme Court of Georgia, in Smith v. Tolbert, 160 Ga. 268, 271, said:
"Now the legislature can provide for the teaching of any branches of education in the public schools of this State; and these schools can be maintained by taxation within the limits. and upon the conditions prescribed in the Constitution as now amended." See also Worth v. Board of Education, 177 Ga. 16.6, 175. It is abundantly clear that the power of the State to tax for educational pur-

41
poses is conditioned upon the constitutional provision authorizing the establishment of free segregated common schools, Article VIII, Section I.
The same result applies to the right to expend funds for common schools. The right exists in the provision of Article VIII, Section I, authorizing the establishment of an adequate education in free segregated common schools.
The answer to all of your questions depends upon a construction of Article VIII, Section I, in the light of the recent School Segregation Decision by the Su preme Court of the United States. If the second sentence of Article VIII, Section I, should be declared to be unconstitutional, what effect would this have on the first sentence which authorizes the establishment of an adequate education in free common schools? Is the first sentence so interrelated to the second that both must stand or fall together, or are they separable? If the latter (separable) is correct, the answer to all of your questions would be yes-State and local units of government could tax and expend funds for mixed schools. If the fonner (interrelated) is correct, there would be no .constitutional authority for any free public school system; therefore, neither the State nor local units of government could tax or expend funds for mixed schools.
II
CONSTRUCTION OF ARTICLE VIII, SECTION I~SEPARABILITY
If we assume that the Supreme Court decision in the public school segregation cases, Brown et al v. Board of Education of Topeka, ______ U. S. ______, 98 L. E. (Advance p. 583) has resulted in the invalidation of the last sentence of Article VIII, Section I, the question here is whether or not the entire section must therefore fall, or whether the first sentence, which 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." may stand alone. If the entire section falls, clearly, there is nothing left in the Constitution that permits the State to maintain a public system of common schools. In Elliot v.. State, 91 Ga. 694, the Court had under consideration an act, which, by its title, sought to prohibit the selling of "spirituous liquors." The body of the Act, however, undertook to prohibit the sale of "intoxicating liquors," a phrase of somewhat broader connotation than that contained in the title. In holding the statute invalid as containing matter in the body not expressed in the title, the Court said:
"2. Where the whole legislative intent as embraced in one and the same verbal expression contained in a penal statute cannot be enforced, because unconstitutional in part, the other part will not be enforced unless it is reasonably certain that to enforce the latter as a separate and independent scheme or measure, would correspond with the legislative will and purpose. In the present instance, it does not appear that the Legislature designed or was willing to prohibit the sale of 'spirituous liquors' except as part and parcel of the broader scheme of prohibiting the sale of all 'intoxicating liquors.' This broader scheme being unconstitutional because differing from the title of the act, must necessarily fail; and as it is one and indivisible, all its parts fail with it."
In Papworth v. State, 103 Ga. 36 (2), and Act passed in 1877 had legalized the sale of wines all over the Stat.e. Subsequently, in 1879, a special act was passed prohibiting the. sale of all spirituous or intoxicating liquors within Irwin County.

42

The Court found no trouble in holding that the local act, insofar as it related to

wines, was clearly in conflict with the general law, and thenceforth proceeded to

hold that the entire Act must fail, as by its terms the legislative intent was to

prohibit the sale of all such beverages, and there was nothing to indicate that the

Legislature would have intended or contemplated that the Act have a less compre-

hensive scope.



In Reynolds v. State, 181 Ga. 547 (2), the Court had under review the Alcoholic

Beverage Control Act of 1935, which contained a referendum provision for sub-

mitting the Act to a vote by the people to determine whether it should go into

effect. The Court held that the referendum provision was invalid, for reasons

immaterial here. The question then arose as to whether the entire Act must fall,

for otherwise the Act would automatically become of force and effect without a

referendum. The Court determined that the very fact that a referendum provision

had been included in the Act manifested a clear legislative intent that the people

decide whether the Act should go into effect, for otherwise the General Assembly

could have merely passed the Act without the referendum clause, and accomplished

the very thing which would result in the Court's sustaining part of the Act. See

also Dorsey v. Clark, 183 Ga. 304; Cone v. State, 184 Ga. 316 (b).

This principle of statutory construction has been repeated many times by the

Georgia Courts in varying phraseology. Mattox v. State, 115 Ga. 212, 215 (where

invalid part of minor importance, rest of Act not affected); Bass v. Lawrence, 124

Ga. 75, 77; Lippitt v. Albany, 131 Ga. 629 (4) (so long as legislative scheme not

defeated); Glover v. State, 126 Ga. 594, 608 (so long as effect given to legislative

scheme, except as to matters of minor importance); Irvin v. Gregory, 86 Ga. 605,

614 (so long as main purpose of statute not defeated). See also Wright v. South-

ern Bell Telephone & Telegraph Co., 127 Ga. 227 (2); Moseley v. State, 176 Ga. 889;

Davis v. State, 204 Ga. 467, 471; Cain v. Smith, 117 Ga. 902. The general rule is

well in accord with the foregoing. See 82 C. J. S. 153, 92; Crawford, Statutory

Construction, 144, p. 216.

The Supreme Court of the United States has, in many instances, also followed this rule. In Myers v. Anderson, 238 U. S. 368, 59 L. E. 1349, a Maryland statute had conferred the right to vote on all male citizens of Annapolis who fell into one of three classes:

(1) All taxpayers assessed at $500.00 or more.

(2) All duly naturalized citizens.

(3) All natural born citizens who (in effect) were entitled to vote prior to adoption of the Fifteenth Amendment to the Federal Constitution, and all male descendants thereof.

The Court held that provision (3) was clearly invalid, and that provisions (1) and (2), standing alone, were just as clearly valid. However, it was determined that these provisions must fall if either of two situations were found to exist, to wit:
(1) Where the provisions as a whole plainly and expressly establish the dependency of the one upon the other, thereby rendering it necessary to conclude that both must disappear as a result of the destruction of either.

(2) Where, although the above did not exist, retention of one would result in a condition so extreme and so incongruous as to leave no doubt that such was the legislative intention, although not expressly stated.

Applying this last principle, the Court noted that should the first and second provisions remain alone, the anomalous situation would result wherein a natural

43
born citizen could not vote unless he owned property to the value of $500.00, while naturalized citizens would be entitled to vote without this qualification. The Court therefore concluded that the entire statute must fall.
In the classic case of Carter v. Carter Coal Co., 298 U. S. 238, 58 S. Ct. 855, 80 L. Ed. 1160, the Court had under consideration the Bituminous Coal Act, which broadly embraced two subjects, viz., the regulation of wages, and the setting of minimum prices. The wage provisions fell under the due process clause, and the remaining question was whether the price fixing provisions could stand in view of a so-called "separability" clause. In spite of this expressly enacted rule of construction, the Court concluded that the two features were so interrelated that the purpose of the Act could not be achieved by elimination of one and retention of the other. In so doing, one test was prescribed which seems very appropriate to the instant situation, in view of the historical background of education presented elsewhere herein. At page 313, the Court declared:
"Perhaps a fair approach to a solution of the problem is to suppose that while the bill was pending in Congress a motion to strike out the labor provisions had prevailed, and to inquire whether, in that event, the statutes should be so construed as to justify the conclusion that Congress, notwithstanding, probably would not have passed the price-fixing provisions of the code."
The Supreme Court has in the past uniformly adhered to this rule of construction. Allen v. Louisiana, 103 U. S. 80, 26 L. E. 318; Southwestern Oil Company v. Texas, 217 U.S. 114, 30 S. Ct. 496, 54 L. E. 688; Williams v. Standard Oil Co., 278 U. S. 235, 49 S. Ct. 115, 60 ALR 596, 73 L. E. 287; Champlin Ref. Co. v. Corporation Commission, 286 U. S. 210, 52 S. Ct. 559, 86 ALR 403, 76 L. E. 1062.
It is believed that the most representative test formulated by the cases is found in Dorchy v. Kansas, 274 U. S. 286, 44 S. Ct. 323, 68 L. E. 686, where it was held that the valid part of an otherwise invalid act would be upheld when,
1. Effect could be given to the valid part standing alone, i.e., enforcement, and,
2. The Legislature would have intended it to stand alone. While in the instant case, a constitutional provision is under interpretation, generally, the same rules of construction apply thereto as are applicable to statutes. City of Valdosta v. Singleton, 197 Ga. 194, 210; 11 Am. Jur. 658, 49; 16
c. J. s. 51, 15.
It now remains to apply these principles to the Georgia constitutional provision under consideration. To do so, a review must be made of the history of education in Georgia, and its dependency, or lack of relation to, segregation of the races.
III
INTENT OF ARTICLE VIII, SECTION I The constitutional history of Georgia is clear proof of the contention that the
provision for an adequate education in the common schools (2-6401) is tied to the further provision of the paragraph that requires separate schools for the races. The history of public education in Georgia indicates that the only way free education would ever have been established would be on a segregated basis. See 16 Georgia Bar Journal, 417-246. The two provisions, free education and separate schools, were inextricably interrelated. To hold otherwise would substitute the intent of the Court for the intent of the people. Constitutions are written and amended by the people, not by the Courts. The latter's duty is to seek the intent of the framers and ratifiers.
While there was a continuous fight for free common schools from the very

44
beginning, the thought of separate schools did not arise until the Civil War. The re2lson for this is quite clear in that the negro was a slave. There was no consideration of his participation in free public education prior to his emancipation. It is most significant that once the negro became a citizen the advocates of free education qualified their stand to the extent that they were for free education so long as separate schools would be provided for the races. Every court decision in existence at the time of the Constitution of 1877 and at the time of the Constitution of 1945 held that state provisions for separate schools were constitutional. The people adopted both of these Constitutions on such belief. Had the Supreme Court of the United States held in 1869 as it did in 1954 that segregated schools were unconstitutional, no free public school system would have been established during that period by the people of Georgia and there would be considerable doubt if such a free system would even exist at this day.
The fight for free common schools had really begun to achieve its goal with the adoption of a detailed plan by the Georgia Teachers' Association in 1869. Proceedings Georgia Teachers' Association, 1871-1894, page 8. This booklet called for free common schools on a segregated basis. It was distributed throughout the state as information for a campaign to induce the Legislature to enact a free segregated system. On October 13,.1870, the Legislature passed an act establishing the first free public school system in Georgia and provided for separate schools for white and colored children. Georgia Laws 1870, pages 49, 57.
In 1877 the people 11f Georgia discarded the reconstruction Constitution of 1868 and adopted the Constitution of 1877. It contained a provision for free. public schools on a segregated basis. Article VIII, Section I, Paragraph I. A study of Small's Debates, Constitutional Convention of 1877 indicates that certain delegates were opposed to taxing citizens in order to educate the children of their neighbors and that even the thought of not being able to have separate schools for the races would have spelled the doom of any provision for free education in the 1877 Constitution.
The Records of Constitutional Commission, 1943-44, Volume 2, pages 60-61 indicate this same conclusion as to the Constitution of 1945. Not one person questioned the separate school provision. The provisions for adequate education in common schools and separate schools for the white and colored races were adopted together without objection and without debate. It must be remembered that in 1945 every decision of the Supreme Court of the United States and the Supreme Courts of the various states had held segregated schools to be constitutional.
All acts of the General Assembly relating to education have been based upon the premise that free education and separate schools for the white and colored races are inseparable and that without the latter the former cannot exist. See Ga. Laws 1872, page 72, Sec. XXVI; Constitution of 1877, Art. VIII, Sec. I, Par. I; Ga. Laws 1919, p. 323 (Code Ann. 32-909); Ga. Laws 1919, p. 331 (Old Code Ann. 32-937); Ga. Laws 1945, p. 398 (new Code Ann. 32-937); Ga. Laws 1951, pp. 417-421 (General Appropriation Act); Ga. Laws 1953 (Jan.-Feb.) pp. 151, 1954 (General Appropriation Act). In Opinions of the Attorney General1952-53, p. 148, some 18 statutes requiring segregation in other activities are collected. It is therefore apparent that segregation in Georgia has not been a mere isolated practice, but has itself been a modus vivendi-an integral part of our social customs and traditions.
It is my opinion that the intent of Article VIII, Section I was to authorize the establishment of an adequate education in free segregated common schools. The provision for free common schools is so inextricably interrelated to the provision for separate schools for the white and colored races that the former provi-

45
sion must stand or fall with the latter provision. In my ppinion, it would be inconceivable that any person, having studied the history of free education in Georgia, could deny that this was not the intent (}f the framers and ratifiers of the Georgia Constitutions of 1877 and 1945.
IV THE QUESTION OF PARTIAL INVALIDITY IS TO BE DETERMINED BY
THE SUPREME COURT OF GEORGIA The authorities set forth herein compel the conclusion that the Supreme Court of Georgia would .hold that the invalidity of that part of Article VIII, Section I, Paragraph I of the Constitution relating to segregation in the public schools, would ipso facto carry with it the first sentence authorizing the establishment of a public school system, without which the other taxing provisions of the Constitution stand meaningless. While the Supreme Court of the United States, having already departed from established norms of statutory interpretation, might therefore proceed to find the provisions separable (should the question be presented to them without a state decision as a guide) the construction of a state statute by the highest Court of a state is binding on the Federal Supreme Court. Ga. Ry. and Electric Co. v. City of Decatur, 295 U. S. 165, 170, 55 S. Ct. 701, 79 L. ed. 1365; Burns Mortgage Co. v. Fried, 292 U. S. 487, 493-494, 54 S. Ct. 813, 78 L. ed. 1380; Hartford Indemnity Co. v. Nelson Mfg. Co., 291 U. S: 352, 54 S. Ct. 392, 78 L.. ed. 840; 11 Am. Jur. 742, 107. This, of course, does not mean that a state court may bind the Supreme Court of the United States as to the constitutionality under the Federal Constitution of a state statute, but only that the state court's interpretation of the meaning of a state law is binding on the Supreme Court, and will be tested as against the Federal Constitution by the latter under that interpretation. See Gatewood v. North Carolina, 203 U. S. 531, 27 S. Ct. 167, 51 L. ed. 305; Board of Education v. Illinois, 203 U. S. 553, 560, 27 S. Ct. 171, 51 L. ed. 314, 318.
v
CONCLUSION In my opinion there is no authority under the Georgia Constitution of 1945
to establish mixed schools, tax for mixed schools, or expend funds for mixed schools. If the Supreme Court of the United States should strike down the requirement in Article VIII, Section I, that separate schools be maintained for the white and colored races in Georgia, the provision for an adequate education in free common schools falls with .it. By so doing, the Supreme Court of the United States would have abolished free public education in Georgia under the present Constitution of 1945.
CONSTITUTIONAL LAW-Education-Private School Plan Affect of Constitutional Amendment No.4 discussed.
October 6, 1954 HQnorable M. D. Collins Superintendent of Schools
I am pleased to acknowledge your request for an official opinion as to "what wo.uld happen under the proposed Private School Plan to the Teachers' Retirement System, Certification ,of Teachers, and the School Lunch Program."
[am assun,:J.ing that you had in mind the propo::;ed Constitutional Amendment No. 4 when you referred to the proposed "Private School Plan."

46
Inasmuch as your request involves numerous constitutional and statutory questions, and in order that you may clearly and easily distinguish one from the other, I shall restrict this opinion to the question relating to the Teachers' Retirement System. Subsequently I will give you my views relating to the "Certification of Teachers and the School Lunch Program."
Article VII, Section II, Paragraph II of the 1945 Constitution of Georgia, relating to the Teachers' Retirement System and authority to levy taxes therefor, provides:
"The powers of taxation may be exercised by the State through the General Assembly and by counties and municipalities, for the purpose of paying pensions and other benefits and costs under a Teacher's Retirement System or Systems; provided no indebtedness against the State shall ever be created for the purpose herein stated in excess of the taxes lawfully levied each fiscal year under the Acts of the General Assembly authorized hereunder."
The above constitutional authority clearly empowers and authorizes the General Assembly to enact statutes empowering the State, counties and municipalities to levy taxes for the purpose of paying pensions and other benefits and costs under the Teachers' Retirement System.
This provision of the Constitution is separate and distinct from that of Article VIII, Section I, Paragraph I providing for a segregated system of common schools. The adverse decision of the Supreme Court of the United States relating to Article VIII, Section I, Par. I would have no effect whatsoever on the constitutional provision above cited authorizing taxation by the State, counties and municipalities for maintaining the Teachers' Retirement System.
Your attention is called also to Article VII, Section II, Par. I of the 1945 Constitution of Georgia, which was ratified by the people on November 4, 1952, which provides:
"The Teachers' Retirement System of Georgia ... shall have the powers and duties as provided by law existing at the time of the adoption of this provision of the State Constitution together with such further powers and duties as may be hereafter provided by law."
It is crystal clear that this provision places the Teachers' Retirement System of Georgia under the protection of the Constitution with all the statuory authority and powers granted to it by the General Assembly at the time of its adoption, and authorizes the General Assembly to implement it by enabling legislation without reference to segregation. In other words, it freezes the Teachers' Retirement System of Georgia into the Constitution of 1945 and removes it from the clutches of the court's decision.
Even the Legislature is without authority to abolish or take from it any of the powers and authority given to the System at the time of its adoption.
The only possible way the present Teachers' Retirement System of Georgia can be changed, except to improve it, is by the adoption of a Constitutional Amendment contravening the foregoing provisions. And, this could not be done without the passage of a resolution by the General Assembly to be voted on by the people in the November 1956 General Election. (No one could honestly contemplate such action.)
Upon the adoption of the proposed Constitutional Amendment No. 4 there would be only one slight change to be enacted by the General Assembly to put the Teachers' Retirement System in line with it and afford complete protection against the court's decision. This change would be a simple amendment redefining

47
the word "teacher" as now used in the Teachers' Retirement Act so as to strike the word "public." I am sure you must be familiar with the fact that this has been done heretofore by amendments to the Teachers' Retirement Act so as to include the employees of the Georgia Educational Association, Georgia High School Association, Georgia Teacher Education Association, and the Georgia School Boards Association. Each of the foregoing are private organizations and have no connection whatsoever with the State, counties or independent school systems. (See Code Section 32-2901.)
It is therefore my firm official opinion that the Teachers' Retirement System would remain intact should the proposed Constitutional Amendment No. 4 be adopted and eventually used as a last resort measure in any one or more school units or systems in order to preserve segregation in our public school system.
In view of the apparent misunderstanding among the school teachers of Georgia about the effect the proposed Constitutional Amendment No. 4 might have on their Teachers' Retirement System, I suggest that this opinion be called to their attention by your department. They are entitled to have their fears and apprehension removed by responsible public officials closely allied with their profession.
CONSTITUTIONAL LAW-Education-Private School Plan 1. Article VIII, Section I, Paragraph I, refers to State and local taxation
for the purpose of establishing a Common School System. 2. Article VII, Section II, Paragraph II, authorizes the State and local
units of government to tax for a Teachers' Retirement System.
October 13, 1954
Honorable M. D. Collins Superintendent of Schools
I am pleased to acknowledge your request as to your interpretation of my opinion (September 27, 1954) on segregation in the Common Schools of Georgia, and my opinion (October 6, 1954) on the Teachers' Retirement System.
The statement in the September 27th opinion, "All the constitutional provisions on taxation by the State and local units of government are manifestly related to the above Section (Article VIII, Section I, Paragraph I) which authorizes the establishment of free segregated common schools, and provides that they will be supported by taxation," has reference to State and local taxation for the purpose of establishing a Common School System. It does not relate to the separate constitutional provision on teacher retirement. Article VII, Section II, Paragraph II authorizes the State and local units of government to tax for a teacher retirement system.
The 1952 amendment, Georgia Laws 1952, pages 601, 603, places the Teachers' Retirement System of Georgia under the protection of the Constitution with all the statutory authority and powers granted to it by the General Assembly at the time of its adoption, and authorizes the General Assembly to implement it by enabling legislation without reference to segregation. Both provisions on teacher retirement are separate and distinct from the provisions on the common segregated school system and the authority to tax for such a system.
In reply to your question, you are to follow the opinion of September 27, 1954 as to taxation for the purpose of our Common School System and the opinion of October 6, 1954 as to taxation for a teacher retirement system.

48
CONSTITUTIONAL LAW-Education-Private School Amendment Employer contributions to match teacher contributions to Teachers'
Retirement System, as to private school teachers brought under the system, discussed.
October 14, 1954
Honorable M. D. Collins Superintendent of Schools
I acknowledge receipt of your letter in which you request my opinion as to who would supply the employer contributions to match the teachers' contributions for the Teachers' Retirement System, as respects private school teachers brought under said system.
I have stated to you in a previous opinion that Amendment No. 4, the so-called "Private School Amendment,"if passed, by and of itself would have no effect whatsoever. It is of that species of law which we denominate "not self-executing," that is, in the event the races were ordered mixed in any school district by the federal courts, the State Department of Education could not, without more, immediately commence making grants to individual students in that area.
Legislative implementation must first be provided, in order to authorize such grants. Accordingly, as a part of the legislation authorizing private grants under Amendment No.4, provision will be made requiring all private schools to set aside the employer contribution to match the teacher contribution, which sums will then be paid into the retirement system.
If it be said that thi;; procedure is questionable as depending upon the whim of the Legislature in enacting this requirement of employer contributions, the short answer is that even under the present system of state-supported schools, you are subject to the whim of the Legislature in making appropriations, since no constitutional provision is self-executing in the sense that it is always subject to the Legislature's making, or failing to make, appropriations to carry it out.
Further, the employer contributions to be paid by the persons operating a private school could be taken into account in computing the amount of state grant for each pupil, in addition to all other factors which would go to make up the grant, such as school books, supplies, etc.
I am sure that you are familiar with the manner of computation used in certain of the veterans' training programs, whereby all the various charges are taken into consideration in arriving at a figure which will be paid to a veteran in training. The computation of the private school grants will be arrived at in somewhat the same manner.
CONSTITUTIONAL LAW-Education-Private School Plan Private school amendment discussed.
October 19, 1954
Honorable M. D. Collins Superintendent of Schools
I acknowledge receipt of your letter requesting iny opinion on a question relating to the so-called "Private School Amendment."
You seem troubled by the fact that the amendment provides that grants may be made of State, county and municipal funds in discharge of all obligations of the State to provide adequate education for its citizens. Your difficulty seems to

49
arise from the fact that while State, county and municipal funds are to be the subject of private grant, the obligation to be discharged is only that of the State.
The reason for the phraseology above referred to is readily obvious. The Constitution, Article VIII, Section I, Paragraph I (Ga. Code Ann., Sec. 2-6401) provides, insofar as relevant,
"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 ... " (Emphasis ours.)
It is thus seen that the Constitution only imposes an obligation against the State, for while other provisions of the Constitution authorize counties to establish public schools (Art. VIII, Sec. V, Par. I; Code Ann., Sec. 2-681) and tax therefor (Art. VII, Sec. IV, Par. I) and authorize municipalities to maintain existing independent systems by taxation (Art. VIII, Sec. VII, Par. I; Code Ann., Sec. 2-7001), these provisions are merely permissive and do not impose an obligation or duty upon the counties or cities.
It is for this reason that the amendment only refers to discharging the obligation of the State, without mentioning any obligation of the cities or counties. There was no need to make reference to something that was non-existent."
Secondly, the word "obligation" as used in the amendment only has reference to the obligation of the State to provide an adequate education for its citizens as provided in the Constitution, and does not in the least refer to any obligation the State or counties may have incurred under contracts.
Assuming that a private school should be established in any county wherein existing losses were in force with the State School Building Authority covering buildings and facilities in use, the county could by contract assign its lease to the private school and the person or persons operating the private school would thereafter make the rental payments which would pay off the bonded indebtedness to the bondholders. Under this procedure the county would have to pay only in the event the private school failed to make payments.
To insure that the county not be called upon to make payments upon default by the private school would only require that the amount of the State grant be computed so as to adequately reflect these and other operating costs. In addition, the county could require its assignee, i.e., the private school, to post good and sufficient bond guaranteeing payment of the rentals.
However, in the event the bondholders consent, the county could be relieved entirely of all obligation under the leases, by effectuating what is legally referred to as a novation.
However, assuming a novation is not perfected, the mere fact that a county might be called upon to make payments upon default by the private school is nothing to become alarmed about, since this possibility is one that already exists, independently of the private school plan. This is because the lease contracts all provide that the counties and other school districts will be liable in the event State appropriations are ever reduced below a prescribed amount. See Opinions of the Attorney General, 1952-53, p. 333.
With regard to the future acquisition of facilities, the private school could lease directly from the Authority.
The legislation authorizing the School Building Authority to contract with private schools, if any be needed; would be part of the legislation implementing Amendment No.4.

50
CONSTITUTIONAL LAW-Education-Private School Plan Clarification of effect of private school amendment.
October 21, 1954
Honorable Herman E. Talmadge Governor
Misunderstanding arising from the press release of a letter from this office of October 19, 1954, addressed to Miss Nancy Fletcher, requires that clarification be made with regard to certain questions answered therein. In response to an inquiry as to whether private schools will retain segregation, it was concluded by this office as follows:
"Under the decision of the Supreme Court of the United States, the State is without authority to require segregation in any school system. If a white citizen desires to attend a mixed school, there i!l no legal way to stop him, either with or without the Private School Amendment."
This answer was correct when made, and is correct now; however, perhaps it would have been appropriate to accol'd elaboration to a statement which, notwithstanding its sufficiency as an answer to the question posed, nevertheless was capable of engendering confusion in the minds of those unfamiliar with the overall facets of the problem.
A common reaction among some has been that assuming this statement to be true, what is to be gained from the private school amendment? The answer is simply this: In any school district in this State, whether it be a county system or an independent system maintained by a municipality, wherein a court action is successfully prosecuted resulting in rendition of a decree ordering the races mixed, no State funds could be expended for the support of education, either directly, as is now done, or in the form of grants to individual pupils, as would be done under Amendment No. 4.
In other words, under the Constitution as it presently exists, State money could not be used to support either public or private schools which did not require segregation of the races. The end result is that in such school district, no public education in any form would be available, teachers would lose their jobs and the pupils have to spend their own money to procure schooling in private schools.
Amendment No. 4 would permit the State to make grants of public funds to these pupils and thereby enable them to attend private schools of their choice at State expense, subject of course, to such conditions as the Legislature might legally impose.
Secondly, although the State could not condition its grants upon a pupil's attending only segregated schools, since this would in effect be no different from maintaining a public segregated system, it is anticipated that (1) as a practical matter, no parent would permit his child to attend a mixed school (2) no private school would permit the mixing of races, not only because such a practice would discourage pupils from attending such school, but it must be assumed that the persons most likely to establish private schools will be responsible citizens of the community to whom the governing authorities have leased or otherwise conveyed existing facilities.
Ultimately, the problem reduces to this: Segregated schools will exist so long as the majority of the people desire that they exist.
That the people desire segregation is fully evidenced by recent actions of the General Assembly in requiring that all appropriations be withheld from schools permitting desegregation, and the act establishing the Georgia Commission on

51
Education for the purpose of seeking ways and means to circumvent the decision of the Supreme Court.
The philosophy behind Amendment No. 4 is that it is manifestly better to trust the people and responsible leaders to maintain segregation under a system wherein all students, regardless of their financial ability, could obtain an education at State expense, than it is to abolish all vestige of public supported education whereby only the rich could enjoy the privilege of attending school.
With regard to Question No. 8, assuming that the Legislature does prohibit pupils receiving state grants from attending religious schools, the question then arises as to why this restriction can be imposed in view of the fact that no such similar prohibition could be made with regard to non-segregated schools, as just discussed in Question No. 7. To understand this distinction, we must first recall that the Fourteenth Amendment does not prohibit a state from making any and all reasonable classifications of persons or things. The Supreme Court's decision has determined that as applied to education, no classification can be made in public schools on the basis of race. That decision has not in the least touched on the question of religious schools, and it would appear beyond all doubt that a classification could validly be made between religious and non-religious schools, particularly in view of the doctrine of separation of church and state. The Federal Constitution would only prohibit the state from making grants to pupils of one religion while denying it to those of another religion, and would not deprive the state of its power to deny grants to all pupils attending religious schools.
In fact, under the decision of the Supreme Court of the United States in the case of McCollum v. Board of Education of Champaign County, Ill., 333 U. S. 203, 92 L. ed. 649, there is considerable doubt that state funds could legally be paid to students attending religious schools, as the First Amendment to the Federal Constitution requiring separation of church and state, is applicable to the states as well as to the Federal Government.
CONSTITUTIONAL LAW-Effect on Term of Office (Unofficial) Ratification of constitutional amendment providing that County School
Superintendent would no longer be elected by people of Tift County, but by Board of Education, did not terminate present term of office of the elected official.
April 12, 1955
Honorable Bob Reinhardt I am pleased to acknowledge your request of March 29, 1955 as to whether
the local constitutional amendment (Tift County Board of Education), Ga. Laws 1953 (Jan.-Feb. Session), p. 553, abolished the present office of Tift County School Superintendent so that the Board of Education might select and appoint a new County School Superintendent to take office on July 1, 1955.
The above constitutional amendment provides in part as follows: "From and after the ratification of this amendment the voters of Tifit
County shall no longer elect a county school superintendent. There shall be a county school superintendent who shall be selected or appointed by the Board of Education of Tift County." In the case of Saxon v. Bell, 201 Ga. 798, it was contended that the Georgia Constitution of 1945 abolished the office of County School Superintendent since the

52
Constitution expressly provided that other State officers were continued in offi.ce until there was an election under the terms of the new Constitution and was silent as to County School Superintendents. The Court held:
"We can not agree with this contention. The office of county school superintendent was not abolished. It was simply changed from a statutory office to a constitutional one. The sentence above quoted was intended to apply when the office was abolished outright. In order to sustain the contention of the plaintiffs in error; we would have to reach the conclusion that the Legislature when proposing the new Constitution to the people, and the people when adopting it, intended that, immediately upon its adoption, there would not be a county school superintendent or a member of a county board of education in Georgia. We do not believe this to have been the intention of either the Legislature or the people."
The Tift County School Superintendent is a constitutional officer elected under Article VIII, Section VI, Paragraph I (Code 2-6901) which provides as follows:
"There shall be a County School Superintendent, who shall be the executive officer of the County Board of Education. He shall be elected by the people and his term of office shall be for four years and run concurrently with other county officers. The qualifications and the salary of the County School Superintendent shall be fixed by law."
It is my opinion that the above local constitutional amendment did not abolish the .offic.e of Tift County School Superintendent. It is still a constitutional office under the local amendment. The amendment merely changes the method of election; therefore, the same result would follow as in the Saxon case above, i.e., that the present Tift County School Superintendent may serve through the expiration of the term for which he was elected.

CONTRACTS-Recording (Unofficial)
Law relative to recording a conditional sales contract quoted.

Honorable Edward M. Woodward

August 19, 1955

This will acknowledge receipt of your letter of August .15, 1955, in which you request that I advise you whether or not a conditional sales contract with one witness and proof by that witness would be entitled to record in the offices of the various Clerks of Court in this State.

Code Section 67-1403 provides:

"67-1403 (3319) Recording; Laws governing.-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 they must be filed for record within thirty days from their date."

Code Section 67-105 provides: "67-105 (3257) Attestation or acknowledgment of mortgage.-In
order to admit a mortgage to record, it must be attested by or acknowledged before an officer as prescribed for the attestation or acknowledgment of deeds of bargains and sale; and in the case of real property, by one other witness."

Code Section 67~108 provides: "67-108 (3259) Registry.-Mortgages on realty shall be recorded in

53
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 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 morgagor's residence. Where a mortgage either upon realty or personalty is executed to secure the payment of money <i'r 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."
Code Section 29-405 provides: "29-405. (4202) Registrable instruments must be attested or acknowl-
edged.-To authorize the record of any deed, whether a deed to realty or personalty, or of a mortgage, bond for title or other registrable instrument, if executed in this State, it must be attested or acknowledged as hereinafter provided. But nothing herein shall dispense with another witness where an additional witness is required." Code Section 29-406 provides:
"29-406. (4202) Officers authorized to attest registrable instruments.-Arty such instrument may be attested by a judge, of a court of record (including a judge of a municipal court), or by a justice of the peace, or notary public, or clerk or deputy cle.rk of the superior court or of a city court created by special Act of the General Assembly. Such officers, except notaries public and judges of courts of record, may attest such instruments only in the county in which they respectively hold their offices." From the above quoted Code Sections, I am of the opinion that a conditional sales contract must be attested by an officer as provided in Code Section 29-406 to be entitled to be recorded.
CORONERS-Fees (Unofficial) A coroner is not entitled to a fee for going to a collision and obtaining
information.
October 26, 1954
Senator Hugh G. Cheek You asked for information concerning the authority for a coroner to collect
fees for, duties which he has performed. In the 1954 Supplement of the Code of Georgia Ann., Code Section 21-105,
coroner's fees are listed as follows, to wit:

54
"Coroners' fees shall be as follows, to wit: From an inquest on a dead body and returning an inquest $25.00; furnishing coffin and burying expenses $15.00. When performing the duties of a sheriff, his fees shall be the same as the sheriff. No coroner shall receive out of the county treasury more than $1,500.00 per annum either for fees for handling inquests or for burying dead bodies." So that, it is my unofficial opinion that a coroner is not entitled to collect a fee for going to a collision and obtaining information concerning the same, but his fees are limited to those given above unless there should be some special act dealing with the particular county involved, setting up other supplemental fees and duties.

CORONERS-Holding Other Offices (Unofficial) County coroner may not legally hold office as deputy sheriff.

Honorable C. C. Swann

August 16, 1955

This will acknowledge receipt of your letter in which you request my opinion as to whether or not a duly elected coroner of a county may act in the capacity of a deputy sheriff.
The question presented is one which does not come within the duties of the office of the Attorney General. I can not give you an official opinion and would suggest that you present the matter to your county attorney who is in a position to officially advise you on this question.

As a matter of information, I refer you to Code Section 89-103 which provides:

"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the Legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment."

In Carter v. Neal, 42 Ga. App. 88 (2), the court said in construing Section 259 of the Civil Code of 1910, which is now Code Section 89-103:

"(2). Since, under Section 259 of the Civil Code of 1910, 'ho person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the Legislature heretofore or hereafter made,' and no commissioned officer shall be a 'deputy for any other commisioned officer, except by such special enactment,' a person commissioned as coroner of a county can not afterwards during his term be legally commissioned as a deputy sheriff of the county, in the absence of the authority of a special legislative enactment; ..."

CORONERS-Holding of Other Office (Unofficial)
Justice of the Peace is a state office, and hence a coroner may hold such office in addition to being a county officer.
October 19, 1954 Mrs. Mildred L. Brantley
I am pleased to acknowledge receipt of your letter, requesting that I advise you as to whether or not a Coroner may also serve as Notary Public ex-Officio Justice of the Peace.
I assume that you have in mind the provisions of Section 89-103 of the 1933

55
Code, which prohibits any person from holding more than one county office at one time, except by special enactment of the Legislature.
In the cases of Overton v. Gandy, 170 Ga. 562, and Long v. State, 127 Ga. 285, the Supreme Court of Georgia held that a Justice of the Peace is a State officer and not a county officer. Therefore, the provisions of the above stated Code section would not apply insofar as a Justice of the Peace or Ex-Officio Justice of the Peace is concerned.
In the case of McBrien v. Starkweather, 43 Ga. App. 818, the Court of Appeals of Georgia held that a Constable was not a county officer and that, therefore, a Coroner, as a county officer, was not prohibitied from holding the office of Constable and Coroner at one and the same time.
It is my personal and unofficial view that a Coroner may serve as a Notary Public Ex-Officio Justice of the Peace.
CORONERS-Holding of Other Offices (Unofficial) A coroner is a county officer and may hold a state office; i.e., that of
Constable.
December 4, 1956
Honorable Gordon Bishop Replying to your recent letter relative to a Coroner being a Constable, I am
pleased to advise that a Coroner is a county officer and, the Supreme Court of Georgia has held, that a Constable is a State officer.
Your attention is called to the case of McBrien v. Starkweather, 43 Ga. App. 818, in which the Court of Appeals of Georgia held:
"A Constable is not a county officer; and therefore a Coroner, as a county officer, is not, by virtue of Section 259 of the Political Code of 1910, which prohibits any person from holding two county offices at the same time, prohibited from holding the office of Constable." The registered voters list for the last General Election is the list which should be used for the Justice of the Peace election; and of course in a Constable election, only those voters in the District are allowed to vote for a Constable of the District in which the voter resides. The statute provides that there shall be two constables in each Militia District. The law further provides that Constables and Justices of the Peace shall qualify with the Ordinary 15 days before the election and if a ballot lists both of the Constables in the same column, then the two men receiving the highest number of votes would be elected.
CORONERS-Juries (a) The Coroner should impanel a jury of five men after summoning ten. (b) If the Sheriff is not available, the Coroner may use a Constable to
summon a jury.
January 6, 1955
Honorable Ben W. Fortson, Jr. Secretary of State
Your letter requesting an official opinion from my office on three questions submitted to you by the Coroner of Franklin County was duly received.

56
The first question as to how many jury members should be secured is answered by Sections 13 and 14 of the Act of 1953 (Ga. Laws 1953, p. 602-612; Ga. Code Ann., 1954 Supp., Chapter 21-2, 21-213 and 21-214). Section 13 of that Act provides that the Coroner shall summon and impanel five jurors and Section 14 provides that the Coroner shall make out a precept directed to the Sheriff or to any Constable of the county and sets out the form of the precept wherein it directs the Sheriff or Constable to summon ten men as jurors. It is plain that a Coroner's jury under this Act shall consist of five men, and I think it is equally plain that the intent of the Legislature in providing for the summoning of ten men was to take care of the contingency that some of those summoned might not answer the summons, or for some reason or other might not be available, so the provision for summoning ten men was included to insure that the coroner's work of conducting an inquest not be delayed by the necessity of summoning additional jurors in case one or two of those summoned failed to answer.
The second question, "In case the Sheriff is unavailable what would be the procedure?", refers, I presume, to the provision of the 1953 Act which directs the Coroner to issue a precept directed to the Sheriff or to any Constable requiring him to summon ten men, etc. This section permits the Coroner to direct the precept to any Constable, in the absence of the Sheriff, and I interpret this to mean any Constable of any Militia District in the county. Under circumstances where the Sheriff is not available it would seem that the procedure would be merely to deliver the precept to any constable available by any means that might be convenient.
In answer to your third question, "In what cases of death should there be an inquest held?", the 1953 Act (Ga. Laws 1953, p. 607), Section 8, provides that,
"When any person shall die in any county in this State, as a result of violence, or by suicide, or by casualty, or suddenly when in apparent health, or when unattended by a physician, or in any suspicious or unusual manner, it shall be the duty of any law enforcement officer, or other person having knowledge of such death, to notify the Coroner of the county wherein the body is found or death occurs." Section 9 of the same Act sets forth the duties of the Coroner with respect to taking charge of the dead body, and securing and preserving evidence, when he is notified as provided in the preceding section, and Section 10 provides,
"Upon the completion of the post mortem examination by the medical examiner and verification by the State Crime Laboratory when such verification is required, the Coroner shall then take an inquest upon the death of such deceased person." The duties of the Coroner in respect to the investigation of deaths and the summoning and impaneling of jurors are fully set forth in the Act of 1953 referred to above, and I suggest that Mr. Prickett be advised to read that Act, as well as the provisions of Chapter 21-1 of the 1933 Code for a fuller understanding of his duties as Coroner.

CORONERS-Method of Filling Vacancy (Unofficial) Law relating to method of filling vacancy in the office of Coroner quoted.

Mr. W. L. Williams

December 27, 1955

I have received your recent letter in which you ask for information concerning the method of fillin"g- a vacancy of Coroner in your county and other related

information.

57
Code Section 21-101, Code of Georgia, provides as follows: "Coroners are elected, commissioned, qualified and removed as Clerks
of Superior Courts are, and hold their offices for four years." In view of the above, it has been necessary to examine the statutes relating to vacancies in offices of the Clerk of the Court and we find that Code Section 24-2704 provides as follows:
"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 date of election which shall be appointed by him." The Code further provides that the person elected on said date shall hold his office for the unexpired term of his predecessor. It is further provided that as soon as a vacancy occurs, the Ordinary must appoint some qualified person to discharge the duties of the Coroner until the vacancy is filled and when a vacancy occurs and it is not more than six months from the time the election can be appointed and held until the e:Xisting term shall expire, the person appointed shall discharge the duties of the office for the balance of the term and there shall be no special election.
CORONERS-Necessity for Inquest (Unofficial) Autopsy and inquest are not required if there is sufficient evidence to
disclose the cause of death, even though death is the result of violence.
December 15, 1954
Honorable Kay Tipton Morgan County Attorney Madison, Georgia
You ask concerning the necessity for post mortem examinations and inquests
when the deceased met death "* * * as a result of violence or suicide or suddenly,
when in apparent health***." I am strongly inclined to the view that in cases wh"ere a person apparently
met death "* * * as a result of violence or suicide or casualty * * *" an autopsy
and inquest are not required if there is sufficient evidence to disclose the cause of death.
While it is true that earlier statutes (Ga. Code Ann., Sec. 21-201, et seq.)
provide for an inquest "* * * when there are no eyewitnesses * * * and such death
occurs under suspicious circumstances * * *", and while this language was omitted
from the Post Mortem Act, the latter specifically provided that a post mortem
shall not be required "* * * where there is sufficient evidence * * * to disclose the cause of death* * *."
Upon careful consideration I think it reasonable and proper to conclude that by omitting any reference to the absence of "eye witnesses" and including a ref-
erence to "sufficient evidence * * * to disclose the cause of death" from the Post
Mortem Act the General Assembly meant to and did relieve the several counties of the necessity to incur the expense of a post mortem and an inquest where there was sufficient evidence to establish the cause of death, whether or not there were eye witnesses. (Ga. Code Ann., 1954 Supp., Sec. 21-201, et seq.)

58
CORONERS-Post Mortem Examinations (Unofficial)
(a) A Coroner is not entitled to fees for holding a post mortem examination where no inquest is held.
(b) Discusses when a Coroner is required to hold a post mortem examination.
(c) A medical examiner is entitled to fee for post mortem, even though no inquest is held.
November 18, 1954
Honorable R. A. McLendon You request my opinion as to several questions concerning construction of the
PostMortem Examination Act (Ga. Laws 1953 Jan.-Feb. Sess., p. 602; Code Ann., 1954 Rev., Chapter 21-2).
First: I have concluded that the law does not authorize payments of fees to a Coroner for holding and conducting a post mortem examination where no inquest was held. This holding is based on the fact that the above Act does not make provision for any fees being paid the Coroner, and the law existing prior thereto only provided Coroner's fees for summoning an inquest and returning an inquisition, without mentioning fees for holding a post mortem examination. That the old law (Code Sec. 21-105) failed to provide such fees is readily explainable from the fact that prior to the Post Mortem Examination Act, the law relating to Coroners did not provide for post mortem procedure as set out in the new Act.
Second: As to when a Coroner is required to hold a post mortem examination, the Act, Georgia Code Annotated, 1954 Rev., Sec. 21-205 provides as follows:
"Coroners shall require post mortem examinations to be performed and inquests held in their respective counties as follows:
" (1) When any person shall die as the result of violence, or suicide, or casualty, or suddenly when in apparent health, or when unattended by a physician or within 24 hours after admission to a hospital without having regained consciousness, or in any suspicious or unusual manner: Provided, a post mortem examination shall not be required in any such instance where there is sufficient evidence or medical history sufficient to disclose the cause of death.
"(2) When any prison inmate shall die suddenly without an attending physician.
"(3) Whenever ordered by a court having criminal jurisdiction. It shall be the duty of said court whenever an affidavit is made and filed with the court that it is suspected that a person came to his death by violence or foul play, to interrogate and examine other witnesses, if any, as to the necessity for a post mortem examination; and should the court then decide that a post mortem examination and inquest are essential to the ends of justice, the same shall be ordered." This section seems self-explanatory.
Section 21-208 provides that it is the duty of law enforcement officers and other persons having knowledge of any death occuring under circumstances set out above, to give notice thereof to the Coroner. Section 21-209 provides that upon receipt of such notice, the Coroner shall take charge of the body, summon a medical examiner, and the two together shall make inquiries regarding the manner and cause of death, and that the medical examiner shall then perform a post mortem examination.

59
Third: Section 21-203 provides that the medical examiner shall receive a fee for performing a post mortem examination in the following manner:
"... For each post mortem examination so performed, in cases where dissection of the body is not required the medical examiner shall receive a fee of $15, and in cases in which the dissection of the body is required he shall receive a fee of $50 for a trunk examination and a fee of $75 for a complete post mortem examination the fee in either case to be paid from funds of the county in which death occurred." Reading this section as well as the rest of the Post Mortem Examination Act, it is apparent that the medical examiner is entitled to his fee, as above provided, in every case where the examination is performed, and without regard to whether or not an inquest is subsequently held thereon. This result seems logical, since the principal task to be performed by the examiner is completed before the inquest begins, whereas with respect to the Coroner, his principal duties arise relative to holding the inquest.
CORONERS-Post-mortem Examination (Unofficial) Medical examiner has authority to perform post-mortem examination over
protest of the Coroner.
August 15, 1955
Honorable L. M. Harrison
Reference is made to your recent letter regarding post-mortem examinations, more particularly the performance of autopsy by a medical examiner over the protest of the Coroner.
On this subject the Georgia Code (Section 21-209) has this to say: "Upon receipt of such notice, the coroner shall immediately take
charge of the dead body and * * * summon a medical examiner. They shall
together make inquiry regarding the cause and manner of death, notify the proper police authorities and the medical examiner shall perform a
post mortem examination, * * * The medical examiner may, at any time when he deems it necessary, have the body embalmed * * *."
It would appear to me, therefore, that the inquiry regarding the cause and manner of death is the joint responsibility of the Coroner and the medical examiner. The portion of the Code is not quite clear whether the decision with regard to the making of a post-mortem is .the joint responsibility of the two, or the medical examiner only. However, since the medical examiner must sign the death certificate, it would appear to me that as a practical matter he would have to be assumed to have the authority to perform post-mortem if he deemed it necessary in order that he might properly set out the cause of death therein.
Section 21-2025 of the Code provides in part that a post-mortem examination shall not be required where there is sufficient evidence or medical history to disclose the cause of death, and that to me appears to be a medical question.

60
CORPORATIONS-Charter Amendments-Forfeiture (Unofficial)
General Assembly is barred by provisions of Constitution of 1868 and subsequent Constitutions to grant corporate powers to private companies, but it is not barred from amending charters of private companies incorporated by it prior to ratification of Constitution of 1868,
Laws relating to forfeiture of corporate charter quoted.
February 17, 1955
Mr. Thomas F. Underwood You inquire regarding the effect of subsequent legislative enactments upon
the charter granted by the General Assembly to the Trustees of Mount Yonah Baptist Church in1843 (Ga. Laws 1843, p. 103).
The Supreme Court of the United States held in Jones v. Habersham, 107 U.S. 174, 27 L. Ed. 401, that:
"The provisions of the Constitution of Georgia of 1868 which declare that 'The General Assembly shall have no power to grant corporate
powers and privileges to private companies * * * but it shall prescribe
by law the manner in which such powers shall be exercised by the courts' does not take away from the General Assembly the power to amend the charters of existing corporations by modifying or enlarging their powers."
There is some question in my mind, however, as to whether the Trustees of Mount Yonah Baptist Church is, in fact, an existing corporation or whether its charter, although perpetual, has been surrendered.
If, as appears from your statement to me over the telephone a few days ago, the Trustees ceased to exist and function as an entity some 40 years ago, dissolution could have resulted under the provisions of Section 22-1205 of the Georgia
Code Annotated, but such dissolution and forfeiture would date "* * * from the
judgment of a court of competent jurisdiction declaring the forfeiture." And, so far as is made to appear, no such judgment has been rendered.
Again, dh;solution may result, according to Section 22-1207, from "The death of all the members of a corporation or of so many of them as to render it impos-
sible under the charter to provide a succession * * *." This may or may not be
the case.
My thinking at the moment is that you might well consider how many, if any, of the Trustees are alive and whether, under the charter, they may at this time fill the vacancies occasioned by death or otherwise, bring the board up to its normal strength of five members as provided in its charter, ratify all acts done by others acting for it withot;~ authority and then seek legislative action amending its charter as may appear wise and proper. If succession has not been rendered impossible, I have little doubt that the original charter can be so amended.
If this course is not open to you, you may have to apply to the court for a receivership as provided for a receivership under the provisions of Section 22-1208 of the Georgia Code Annotated. The receivership would, of course, be difficult and the results uncertain.

61

CORPORATIONS-Co-operative Marketing Associations
. Secretary of State may properly certify the name of a corporation to be organized as a co-operative marketing association, under Chapter 65-2 of the Georgia Code Annotated, when such name contains therein the word "Co-Operative," but does not contain any of the words or abbreviations, "Corporation," "Company,"' "Incorporated," or "Inc.", or any other word indicating a corporation.

July 19, 1954

Honorable Ben W. Fortson, Jr. Secretary of State

You request my opinion on the following question:

May the Secretary of State, in view of the requirements of Section 22-1802 (a),

properly certify the name of a corporation to be organized as a co-operative mar-

keting association when such name contains therein the word "Co-Operative," but

does not contain any of the words or abbreviations, "Corporation," "Company,"

"Incorporated," or "Inc.", or any other word indicating a corporation as distin-

guished from a natural person, firm or. corporation?

,

The requirements and procedure for the incorporation of a nonprofit market-

ing association are set forth in Georgia Code Annotated, Section 65-201, et seq.

(1951 Cumulative Pocket Part).

.

Two sections of this law are concerned with the name of the marketing

association.

Section 65-203, Georgia Code Annotated (1951 Cumulative Pocket Part) pro-

vides in part as follows:

"Such person desiring to be incorporated under this Chapter must

prepare and file in the office of the Clerk of the Superior Court of the

county in which they desire to transact business, a petition for articles of

incorporation, setting forth:

.

(a) The name of the association." The last paragraph of this Section reads as follows:

"The petition must be subscribed by the incorporators and verified by one of them before an officer authorized by the law of this State to attest deeds and conveyances; and shall be filed and further proceedings had in accordance with the provisions of the general law for the incorporation of private companies by the Superior Court as set forth in Chapter 22-3." Section 65-224, Georgia Code Annotated, provides that:
"No person, firm, corporation or association, hereafter organized or doing business in this State as a cooperative association to market agricultural products shall be entitled to use the word 'cooperative' as part of its corporate or other business name or title unless it shall have complied with the provisions of this Chapter or of the law on cooperative marketing associations provided for in Chapter 65-1."

The language of Section 65-203 clearly indicates complete freedom in the

selection of words. constituting the title or name of the p;roposed marketing associa-

tion. There are no restrictions on the use of any particular. words; there are no

mandatory requirements that certain words shall be included. The only require-

ment is that the name, of whatever words it may be composed, shall be set forth

in the petition for incorporation.

.

The freedom in the choice of the words constituting the name of .the proposed

incorporated association is not encumbered or restricted by Section 65-224. This

62
Section is a restriction upon unincorpQrated associations. It prohibits them from using the word "cooperative" in its name or title. A properly incorporated association has the freedom to use or not use the word "cooperative" in its title or name.
Having concluded that the Sections 65-203 and 65-224 regulating the incorporation of marketing associations permit absolute freedom in the choice of words constituting the name or title thereof, the next inquiry leads naturally to the question of whether or not that freedom is impinged or destroyed by the last paragraph of Section 65-203, Georgia Code Annotated (1951 Cumulative Pocket Part) which provides that after the petition of incorporation is filed further proceeding shall be in accordance with the general law for the incorporation of private companies by the superior courts, as set forth in Chapter 22-3.
This inquiry is demanded by reason of the fact that the general law relating to incorporation of private companies does set forth certain specific requirements as to the name of the proposed corporation.
Section 22-1802 (a), Georgia Code Annotated (1951 Cumulative Pocket Part) reads as follows:
"(a) Name. The name of the proposed corporation which name shall include the word 'Company' or 'Corporation', or have such word or words, abbreviation, suffix or prefix therein or thereto as will clearly indicate that it is a corporation as distinguished from a natural person, firm or partnership."
In other words, does Section 65-203 control, thereby granting freedom, or does Section 22-1802 (a) control, thereby requiring the inclusion of the words "Companies," etc.
The name or title. of a corporation is a matter of substance. It is controlled by the substantive law. Section 22-1802 (a) is the substantive law relating to the name of a proposed private corporation. It is not the substantive law relating to the name of a proposed incorporated marketing association. The last paragraph of Section 65-203 clearly indicates that the general law as to incorporation of private companies is to be followed only as to "further proceeding" subsequent to the filing of the petition. In other words, the procedural law applicable to the incorporation of private companies is to be followed after the filing of the petition. The petition for incorporation of the marketing association must be in accordance with Section 65-203 which allows freedom in the choice of the words constituting the name.
The proceeding, insofar as the name is concerned, contemplated by the language quoted above is set forth in Section 22-1803, Georgia Code Annotated (1951 Cumulative Pocket Part), which provides, inter alia that:
"... the judge shall not grant any application until there is presented to him a certificate from the Secretary of State declaring that the name of the proposed corporation is not the name of any other than existing corporation registered in the records of the Secretary of State."
Thus, apparently, the only responsibility, insofar as the name of the proposed marketing association is concerned, resting upon the Secretary of State is to certify that the name of the proposed corporation is not the same as any previously incorporated company.
In view of the foregoing, I am of the opinion that the Secretary of State may properly certify the name of a corporation to be organized as a co-operative marketing association when such name contains therein the word, "Co-Operative," but

63
does not contain any of the words or abbreviations, "Corporation," "Company," Incorporated," or "Inc.", or any other word indicating a corporation.
This opinion is intended to be limited solely to the incorporation of marketing associations under Chapter 65-2 of the Georgia Code Annotated.
CORPORATIONS-Non-resident (Unofficial) No legal barrier to ownership of property in this State by agent of the
State of Wisconsin. Purchase of property by agent of State of Wisconsin, the lease of same to another corporation and the collection of lease income does not constitute doing business in State of Georgia.
May 24, 1955
Honorable Vernon W. Thompson Attorney General State Capitol, Madison, Wis.
I have your letter of May 10, 1955, in which you state that the Wisconsin Investment Board, an agency of the State of Wisconsin, whose principal duty is to invest funds of the State Teacher Retirement Fund and of the Wisconsin Retirement Fund, is contemplating purchasing certain real estate in the State of Georgia which would be leased on a long term lease to a nationally known corporation. You ask if there is any legal barrier under statutes, court decisions or administrative regulations to the Wisconsin Investment Board acquiring title to real estate in Georgia; and you also ask if your Investment Board would be required to qualify as a foreign corporation before taking title to such real estate. You indicate that such investments would be isolated purchases.
I know of no prohibition by statute, court decision or administrative regulation, which would be a barrier to your board acquiring title to real estate in Georgia, so long as it is a legal entity. The Board would be liable to ad valorem taxes on the real estate acquired just as any other nonresident owner, and would stand in the same position as a nonresident individual or other nonresident corporation.
With reference to whether the collection of the lease income from such real estate would constitute "doing business" in the State of Georgia, I am inclined to the view that it would not. In this connection your attention is called to Harrison, Comptroller General v. Forsyth Hunter Company, 170 Ga. 640, 153 S. E. 755; Norman, Tax Commissioner v. Southwestern R. R. Co., 42 Ga. App. 812, 15.
You might want to consider taking title to the real estate in question in the name of the State of Wisconsin. In this connection your attention is called to State of Georgia v. City of Chattanooga, 264 U.S. 472.
CORPORATIONS-Public-Civil Defense Council 1. Corporation to perform function of the Civil Defense Agency would
have to be created by an Act of the General Assembly, and would be a public corporation.
2. Equipment of such a corporation could be made available to local fire and police departments for training purposes.
April 30, 1954 Honorable Frank A. Kopf, Deputy Director Department of Defense, Civil Defense Division
Reference is made to your letter of recent date, together with an inquiry from

64
Mr. B. H. Levy of the firm of Bouhan, Lawrence, Williams and Levy, Attorneys of Savannah, Georgia, concerning the prospects and consequences of the proposed incorporation of the Savannah~Chatham County Civil Defense Council, and finally the effect such action would have upon the immunity granted under Section 17 of the Civil Defense Act of 1951 (Ga. Laws 1951, p. 224 at p. 238).
As I understand the question from your letter, the enclosure and telephone conversations with Mr. Levy, the Savannah-Chatham County Civil Defense Council, authorized by and established under the authoirty of the Civil Defense Act (Section 9), proposes to embark upon a program which ~alis for acquisition of the rescue trucks, the organization and training of the rescue truck teams and the use of equipment and personnel to supplement that of the city fire and police departments on cali. In this connection, the agency proposes to incorporate.
Section 11 of the Act provides for the creation and organization of "mobile support units" to reinforce civil defense organizations. These units are to be organized by the Governor or the Director at the request of the Governor for use in "stricken areas" and "shall be called to duty upon orders of the Governor or the J)irector." Personnel of mobile support units are, moreover, entitled to certain compensation from the State. I do not think that the Act contemplates the use of equipment and personnel of mobile support units as adjunctions to city and county fire and police departments for training purposes, or otherwise except in "stricken areas" and upon call of the Governor or Director.
But let us consider the question of incorporation. The Civil Defense Agency was created by Act of the General Assembly as a division of the Department of Public Defense, an administrative agency of the State Government (Sec. 4). The Savannah-Chatham County Civil Defense Council was organized as "authorized and directed by the Act (Sec. 9), "in accordance with the state program/' A corporation to perform these functions would, in my judgment, have to be created by an act of the General Assembly for two reasons: (1) Such corporation would be public and not private in character and neither the Secretary of State nor the Superior Court of Chatham County has any authortiy to create any such corporation (Sec. 22~201, et seq.), and (2) The creation and operation of any such entity for the purposes set out in the Civil Defense Act would be in derogation of an existing state law.
If it is felt that equipment and personnel of local Civil Defense Councils should be made available to local fire and police departments for training purposes, or otherwise, that the immunity provided for in Section 17 should be extended, or that the form and organization of the agency should be changed for any reason, I think that proper bills should be prepared and submitted to the Legislature when it convenes in 1955, and the members of the Bill Drafting Unit will be happy to assist in their preparation. I do not think that any of these things can be accomplished by petitioning the Superior Court of Chatham County or the Secretary of State for a corporate charter for any local unit of the agency.
CORPORATIONS-Charter Amendments-Fees
Corporations domesticated under the laws of Georgia are required to pay a fee to the Secretary of State of ten cents per $1,000.00 of authorized capital stock on each amendment to the charter increasing the authorized capital stock, whether it be by increase of shares or increase of value of shares.

65
April 27, 1956
Hon. Ben W. Fortson, Jr. Secretary of State
Reference is made to your letter of April 11, 1956, regarding the fee, if any, to be paid by the Union Bag and Paper Corporation in connection with a recent amendment to its charter, the result of which was to increase the amount of the par value of the capital stock authorized over and beyond the amount authorized by the charter as previously amended.
The facts, as set out in your letter, a1e as follows:
"The Union Bag and Paper Corporation was domesticated under the laws of the State of Georgia, with a total authorized capital of 2,500,000 shares without par value. On April 8, 1952, the Union Bag and Paper Corporation amended its charter changing its capitalization to 2,500,000 shares at a par value of $20.00 per share. The Union Bag and Paper Corporation has now amended its charter changing the capitalization of its shares in such a way that the total authorize.d capital stock is now $66,666,666.66. This, in effect, increases the capital from $50,000,000.00 to the above figure, making an increase of $16,666,666.66."
You inquire whether in my opinion the Union Bag and Paper Corporation is liable for the fee of 10 cents per $1,000.00 par value on the stock authorized by the amendment for the excess of $16,666,666.67 over and beyond the amount authorized by the charter as amended April 8, 1952. My opinion is that the Union Bag and Paper Corporation is liable for the fee in question in the amount of $1,671.67.
The law applicable to the question, as I see it, is as follows:
"22-1601. Powers to become domesticated. Powers after domestication; removal of actions. Laws governing.-All foreign corporations doing business in this State, or which may hereafter do business in this State, and whose business is not against the public policy of this State, shall have the power to become domesticated in the manner hereinabove pointed out; and upon being domesticated such corporations and the stockholders thereof shall have the same powers, privileges, and immunities as similar corporations created under the faws of this State, and the stockholders thereof have, subject to the same obligations, duties, liabilities and disabilities as if originally created under the laws of this State, and any amendment of the charter of any such domesticated foreign corporation in accordance with the laws of the home State shall be effective for all purposes under the laws of this State, upon the filing in the office of the Secretary of State of this State of a certified copy of such amendment, and the payment to the Secretary of State of the fee required by Section 22-1606 as amended, on any increase in authorized capital stock provided for by such amendment. (Acts 1920, p. 151; 1926, Extra Sess., p. 46; 1952, pp. 282, 285)."
"22-1606. Certified copy of proceedings filed. Action on petition in vacation. Costs and fees.... The petitioner shall pay the costs prescribed by the laws of this State as though the said corporation had been originally incorporated under the laws of this State, and the Secretary of State shall be entitled, for the filing of certified copies of the proceedings in the superior court hereinbefore mentioned, to a fee of 10 cents per $1,000.00 of the authorized capital stock, the same as if for a Georgia corporation. (Acts 1920, p. 152; 1949, pp. 950, 953)."

66
It does not alter the situation that the corporation as originally chartered and domesticated had an authorized capital of 2,500,000 shares of no par value and that the charter was later amended to provide for 2,500,000 shares at a par value of $20.00 per share.
COUNTIES-Ability to Contract (Unofficial) A county may contract to discharge its liability occasioned by a taking of
property.
August 6, 1954
Honorable Graydon Reddick You request my opinion as to the legality of a contract entered into between
Crisp County, through its commissioners, and its Power Commission, on the one hand and the receivers of the Seaboard Air Line Railway Company, on the other hand.
Briefly, this contract undertakes to obligate Crisp County to make repairs to a railroad embankment, damages to which were occasioned by the backing up of water by a dam constructed by the Power Commission on the Flint River.
Generally, a county is without authority to make any contract not authorized by some legislative act applicable thereto. J. G. McCrory Company of Georgia v. Board of Commissioners of Road sand Revenues of Fulton County, 177 Ga. 242. Where, however, a statute confers upon county authorities jurisdiction over a subject matter, wherein the power to do certain things is expressed, the further power to contract in regard to that subject matter is to be implied. Wright v. Floyd County, 1 Ga. App. 582.
In the instant case, while the Crisp County Power Commission is a "county undertaking" and thereby entitled to governmental immunity against suit in tort (Arnold v. Walton, et al, 205 Ga. 606), the Commission was authorized to construct and develop a hydro-electric plans, and to exercise power of eminent domain. See Ga. Laws 1925, p. 72. Therefore, in order to determine whether or not the consideration afforded the county by the contract is a valid one as against the provisions of our Constitution prohibiting the granting of gratuities (Art. VII, Sec. I, Par. II, Sub Par. I; Code Ann., Section 2-5402 (1) ), and appropriations to individuals, corporations, etc. (Art. VII, Sec. V, Par. I; Code Ann., Section 2-5801) we must first determine whether the backing of the water onto the railroad's embankment, causing the damage complained of, is such a tort as would render the county liable, or whether on the other hand, such action is subject to the general principle of governmental immunity against suit and is thereby damnum absque injuria. Incidentally, the distinction between governmental or proprietary functions as relates to municipalities (Code Section 69-301) has no application to counties, the latter incurring liability only where made so by statute. Ware County v. Cason, 189 Ga. 78, 79 (2).
Prior to the adoption of what is now Art. I, Sec. III, Par. I (Code Ann., Section 2-301) of the Constitution, a city (or other governmental unit) was not liable for mere consequential damages, caused by the exercise of its legally conferred powers, but this rule has been changed by the foregoing provision. City of Atlanta v. Green, 67 Ga. 386; City of Atlanta v. Kenny, 83 Ga. App. 823; Mayor of Athens v. Gamma Delta Chapter House Corp., 86 Ga. App. 53. Accordingly, it has been held in the case of Bates v. Madison County, 32 Ga. App., 370, 371 (2), that,

67
"'Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.' Park's Code, 6388. Accordingly, where the tortious acts of the officers, agents, and servants of a county amount to the taking or injury of private property directly for the public use, the county can be held liable to the extent of the injury sustained, not on the theory that the county is liable, as are other tort-feasors, for the negligent acts and conduct of its agents while acting within the scope of their authority but for the reason that it cannot, either with or without the guise of contractual authority, appropriate or damage the property of another for its own benefit without just and adequate compensation being paid. Terrell County v. York, 127 Ga. 166 (56 S. E. 309); Elbert County v. Brown, 16 Ga. App. 834 (86 S. E. 651); Rheberg v. Grady County, 27 Ga. App. 578 (109 S. E. 524); 15 C. J. 571, Note 82."
In Warren et al v. Georgia Power Company, 58 Ga. App. 9, it was recognized that a taking and damaging such as are involved in the instant case, i.e., by the backing up of water by a dam, would constitute such a taking and damaging as would require the paying of just compensation. See also Smith v. Floyd County, 36 Ga. App. 554; Loughridge v. Harris, 42 Ga. 500; Felton Farm Company et al v. Macon County, 49 Ga. App. 239; Gwinnett County v. Allen et al, 56 Ga. App. 753, for somewhat analagous situations. See also 29 C. J. S., 117, p. 930. The measure of damage is the same whether the taking was by condemnation proceedings or merely by an illegal appropriation followed by suit for damages. Georgia Power Company v. Kelly, 182 Ga. 33, 39.
I therefore conclude, on the basis of the foregoing authorities, that Crisp County was liable for the injury caused to the railroad embankment, and so being, under the principle of the Wright case, supra, was authorized to contract so as to settle that liability.
However, I do conclude that paragraph 4 of the contract is, to a certain extent, invalid and unenforceable, in so far as it undertakes to make the county subject generally to tort liability arising from the repair and maintenance operations. For instance, should a workman or other person receive injuries due to the negligence of the servants of the railroad engaged in the scope of their employment while assisting in the repair work, the contract would undertake to make the county liable for this tort. As I have stated before, a county may not make any contract or incur any liability not authorized by some legislative act. Adamson v. Leathers, 60 Ga. App. 382; Crummey v. State, 83 Ga. App. 459. I have found no authority authorizing a county to assume the unliquidated and contingent debts of a private corporation. Indeed such an undertaking is expressly prohibitied. See Constitution, Art. VII, Sec. V, Par. I (Code Ann., Section 2-5801). Neither is there any authority for spending tax money for such purposes. Constitution, Art. VII, Sec. IV, Par. I (Code Ann., Section 2-5701).
In conclusion, I wish to point out that since the specific question, so far as I can find, has never been passed on in this State, the only final answer to your question could come from the courts, by declaratory judgment, but, applying the principles as developed herein, it is my opinion that the instant contract is binding and effective, except as hereinbefore stated; in this respect, however, only the railroad can complain.

68
COUNTIES-Advertisements by County Officials (Unofficial) Law relating to advertisements by county officials in one newspaper
quoted.
February 8, 1955
Honorable H. F. Parrish I am pleased to acknowledge your letter requesting that I advise you relative
to advertisements by county officials in newspapers other than those which have been designated as the official organ of the county.
"Section 39-1103. Selection of official organ.-No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication of sheriff's sales, ordinary's citations or any other advertising commonly known and termed 'official or legal advertising' and required by law to be published in such county official newspaper, unless such newspaper shall have been continuously published and mailed to a list or' bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper, and unless 85 per cent of the circulation of such newspaper or journal is paid circulation. No change shall be made in the official organ of any county except upon the concurrent action of the ordinary, sheriff and clerk of the superior court of said county or a majority of said officers; provided, that in counties where no journal or newspaper has been established for two years the .official organ may be ,designated by the ordinary, sheriff and clerk of the superior court, a majority of these offkers governing."
Section 39-1105 of the 1933 Annotated Code, as amended at the Nov.-Dec. 1953 Session, p. 271, provides:
"39-1105. Fees for advertising.-The rates to be allowed to publishers for publishing legal advertisements shall be as follows: For each 100 words, the sum of $1.50 for each insertion for the first four insertions; for each subsequent insertion, the sum of 75 cents per 100 words. In all cases fractional parts shall be charged for at the same rates; and no ordinary, sheriff, coroner, clerk, marshal or other officer shall receive or collect from parties, plaintiff or defendant, other or greater rates than herein set forth."
You will note the words used in the first section above cited "official or legal advertising.." Apparently, it was the intention of these words to cover the official action of all county officials. In the case of Rich v. Clements, 21 Ga. Appeals, beginning at page 290, the Court of Appeals of Georgia, in citing the case of Coffee v. Ragsdale, 112 Ga., p. 709, said:
"This decision further indicates that all of the official advertisements . of the county must be made in the same paper."
and the Court cites the language of Chief Justice Simmons in the Coffee case, in which he said:
These sections of the Code seem to indicate an intention on the part of the Legislature to have all the official advertisements of the county made in the same paper, so that the people may know where to look for information in regard to the official business of the county. If .the law were otherwise, then in counties such as Fulton, which have a large num~

69
her of newspapers, and, indeed, in any county having more than one, people interested in county matters would be put to considerable trouble and expense. They could not know in what paper to look for county advertisements and would be compelled, in order to avoid missing some of these advertisements, to subscribe to all of the paper in which legal advertisements might be published, and to examine all of these papers for such advertisements. It is far better to have all of the advertisements in one paper, and the Legislature seems to have contemplated that this should be done."
The question is one purely local in nature and comes within the jurisdiction of the county attorney upon whose advice the county officials must rely and be bound; therefore, I would suggest that you have the county official who has been using your paper for advertising purposes to :request the county attorney to give you an official opinion as to whether or not you would be authorized to place the ad you n1entioned, calling to his attention the case of Coffee v. Ragsdale, 112 Ga., p. 705, and Rich v. Clements, 21 Ga. Appeals, p. 289.
COUNTIES-Authority to Negotiate Temporary Loans Counties have authority to negotiate temporary loans in order to defray
current county expenses subject to some conditions and limitations.
July 6, 1954
Mr. A. P. Persons, Superintendent of Banks
The question of the authority of County Commisisoners to negotiate temporary loans appears to be settled by Paragraph IV, Article VII, of the Constitution of Georgia of 1945 (Georgia Code Annotated 2-6004) which reads in part as follows:
"... each county, municipality, political subdivision of the State authorized to levy taxes, and county board of education, is given the authority to make temporary loans between January 1st and December 31st in each year to pay expenses for such year, upon the following conditions: The aggregate amount of all such loans of such county, municipality, political subdivision or county board of education outstanding at any one time shall not exceed 75 per cent of the total gross income of such county, municipality, political subdivision or county board of education, from taxes collected by such county, n1unicipality, political subdivision or county Board of Education in the last preceding year. Such loans shall be payable on or before December 31st of the calendar year in which such loan is made. No loan may be made in any year under the provisions of this paragraph when there is a loan unpaid which was made in a prior year under "the provisions of this paragraph. Each such loan shall be first authorized by resolution fixing the terms of such loan adopted by a majority vote of the governing body of such county, city, political subdivision or county board of education, at a meeting legally held, and such resolution shall appear upon the minutes of such meeting. No such county, municipality, subdivision or county board of education shall incur in any one calendar year, an aggregate of such temporary loans and other contracts or obligations for current expenses, in excess of the total antici\)ated revenue of such county, municipality, subdivision, or county board of

70
education for such calendar year, or issue in one calendar year notes, warrants or other evidences of such indebtedness in a total amount in excess of such anticipated revenue for such year."
An examination of the language of the foregoing constitutional provision reveals that counties do have authority to negotiate temporary loans in order to defray current county expenses. There are, of course, conditions and limitations placed on such loans. This power to borrow money for county purposes may be exercised by County Commissioners.
Jurisdiction over county affairs, including the power to bind the county by contract, is vested in the Ordinary. See Georgia Code Annotated 23-731, et seq, 23-1701. In counties where a Board of Commissioners of Roads and Revenues is provided, they are invested with some powers and duties imposed by law upon ordinaries when sitting for county purposes. Williams v. Sumter County, 151 Ga. 402.
As can be seen there are rather detailed limitations placed upon these temporary loans. Such loans can be made between January 1 and December 31 in each year to pay for expenses incurred during that year. There is a limit on the amount of these temporary loans. The total amount outstanding at any one time shall not exceed 75 per cent of the total gross income from taxes collected during the preceding year. The loans must be repaid on or before December 31 of the year in which such loans are made. If there is an unpaid temporary loan which was made during a prior year no loan can be made in any subsequent year. In no event can the aggregate of temporary loans, contracts or other obligations exceed the total anticipated revenue for that calendar year. In order to authorize a loan under these constitutional provisions quoted, a resolution fixing the terms of such loan must be adopted by a majority vote of the Board of County Commissioners at a legally constituted meeting and such resolution must be placed on the minutes of such meeting.
Naturally, the amount of a specific loan negotiated under authority of the aforementioned constitutional provision would depend upon the local situation.
It is obviously unnecessary to point out the difference between the authority of County Commissioners to negotiate loans of the character under discussion and the limitations placed upon banks in making loans generally.
COUNTIES-County Attorney (Unofficial)
A County Attorney may not render services in an official capacity to a political party.
April 2, 1956
Honorable Henry A. Stewart, Sr. I am pleased to acknowledge your letter relative to you as County Attorney
of Polk County, Georgia, rendering services in your official capacity to a political party.
Article VII, Section VII, Paragraph 1, of the 1945 Constitution of Georgia sets forth the purposes for which a county may levy taxes and expend the same.
A county has no authority to levy or expend taxes for any other purposes than set forth in the above cited provisions of the Constitution. You, in your official capacity as County Attorney, would be only required to perform duties relative to the affairs of the county government which is restricted to the provisions of the above cited Constitution provisions.

71
The Supreme Court of Georgia in the case of Humber v. Dixon, 147 Ga., p. 480, held:
"While a large discretion in expenditure of public money is necessarily vested in the officers of the county who have charge of its affairs, such discretion does not extend to the appropriation of public moneys beyond the specified purposes enumerated in the Constitution. It follows that the commissioners of roads and revenues of a county have no authority to employ an attorney to represent them in a proceeding before the prison commission for the discharge of the warden in charge of the convicts .in that county, and to pay such attorney his fee and expenses incurred in that service."
COUNTIES-Commissioners (Unofficial) A County Commissioner, legally elected as residing outside the limits of
a city, continues to hold office, even though the city limits have been extended to include his residence.
January 12, 1956
Hon. Ronald E. Cartledge I am sending you the results of my research on the legal question you
propounded. The Act providing for a Board of County Commissioners of Richmond County,
provides, in Section 1 thereof (Ga. Laws 1907, pp. 324, 325), as amended (Ga. Laws 1920, p. 606), and more specifically (Ga. Laws 1927, pp. 649, 650) and (Ga. Laws 1935, p. 796) that "Of the five members of said board two must be non-residents of the city of Augusta."
At the November General Election held in 1954, one member of the Board was elected from the County, and at this time, there were already three members on the Board from the City of Augusta; however, by an Act of 1955 (Ga. Laws 1955, p. 2867) provision was made for extending the corporate limits of Augusta, the Act providing for a special referendum election which was held sometime later on in 1955, resulting in a favorable vote for annexation.
By ratification of the 1955 Act, it is stated that the Commisisoner elected from outside the corporate limits of Augusta in 1954 was thereby placed in the corporate limits, resulting in a situation wherein there are now four representatives on the Richmond County Commission whD are residents of Augusta, in violation of the 1907 Act, as amended. The question thereby presented is whether or not that Commissioner's term elected in November 1954 has been cut off, and if so, how should his successor be elected or appointed.
Firstly, the Constitution, Act III, Section VII, Paragraph XV (Code Annotated, 2-1915, Supp. 1955) provides that no office to which a person has been elected shall be abolished, etc., by local or special bill, without submission of a referendum. Since a referendum was provided for and had in this case, the above section has no application. Query as to whether this section would apply to county commissioner anyway; See Wilson et al v. Harris, 170 Georgia 800, 801 (2), declaring: "... the Legislature may abolish the office (of county commisisoner) before the term of the incumbent expires ... and may shorten or lengthen the term ..." although this possibility is weakened by the fact that the provision of 2-1915 requiring a referendum to shorten or lengthen a term of office was not found in the Constitution of 1877 under which the Wilson case, supra, was decided.

72
Moreover, it is even questionable as to whether 2-1915 would apply where the Act does not undertake directly to shorten an officer's term, but only does it incidentally as a result of geographical rearrangement. See Hines v. Etheridge, 173 Ga. 870, upholding the merger of Campbell into Fulton County, although the effect thereof was to abolish various constitutional courts and offices in Campbell County.
Secondly, it is clear that the Commissioner elected to office in 1954 acquired legal title to the office, because at the time of his election and qualification, he was a resident of the County and not the City of Augusta.
The Code, 89-501 (5) provides:
"All offices in the State shall be vacated-
* * *
By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. In the first case the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained."
In construing this section, the courts have held that a county officer legally elected to office who thereafter removes himself from the geographical area represented does not ipso facto cease to hold such office, but is at least a "de facto" officer, and so remains until there is a judicial ascertainment of that fact (although the rule is otherwise where the officer removes himself outside the State). Bush v. State, 10 Ga. App. 544 (2) [solicitor moving outside county]; Jackson v. State, 27 Ga. App. 679 (3c) [constable moved outside militia district]; Long v. Carter, 39 Ga. App. 508 (1) [J.P. moving outside militia district]; Channell v. State, 109 Ga. 150 (1) [jury commr's. moved outside county]; Stanford v. Lynch, 147 Ga. 518 (2) [Board of Education member moved outside militia district]. "Judicial ascertainment" of the fact means adjudication by way of quo warranto proceedings. Stanford v. Lynch, 147 Ga. 518 (2).
Therefore, even construed most unfavorably against the incumbent, he wou'ld continue to hold office until removed by quo warranto proceedings.
However, it is .believed that an even stronger reason exists why quo warranto, even if brought, could not result in vacation of the office. Although elected :from what was then the "County," as distinguished from the incorporated area of Augusta, the Commissioner was nevertheless elected to represent the. entire County, and nothing has transpired to change matters in that respect.
In Stanford v. Lynch, 147 Ga. 518 (2), Stanford had been elected by the grand jury to serve on the Board of Education from W. District, which was not then represented; but later, Stanford voluntarily moved into another district which was already represented on the Board. What is now Code Ann., 32-903 (1952 Rev.) prohibits the appointment of more than one member on the Board of Education from any one militia district, but in holding that Stanford's moving to a district already represented did not render him subject to removal, the Supreme Court stated:
"The vice of this contention is that a member of the county board of education is not elected for a district. He is elected from a district for the entire county by the grand jury representing the county as a whole. The jurisdiction of each member of the board of education is coextensive with the county, and is not limited to any one militia district. The statutory provision that the grand jury shall not "select any two of those selected from the same militia district or locality" applies to the members

73
of the board at the time of their selection. As was said in the case of Smith v. State, 24 Ind. 101, the facts of which are quite similar to those in the present case, "It will be observed that the section of the statute under consideration does not require a continued residence in the district, but is fully satisfied with the qualification attaching to the person selected at the time his election becomes effective, and he assumes the duties of the office. At that time he takes an oath of office, and assumes the duties and a jurisdiction coextensive with the limits of the county. The previous residence within a particular district has secured in the candidate a local knowledge of the peculiar wants and requirements of that district, and the Legislature have deemed this sufficient, without requiring a continued residence within the same limits." Of course, where appointment is sought to be made by the grand jury of a person already living in a district then represented, the rule is otherwise, and the appointment creates no title in the office. Clarke v. Long, 152 Ga. 619 (3). I therefore conclude that the Commissioner elected in 1954 is still validly holding office, but of course for purposes of selecting candidates in the forthcoming election, he must count as a member from the City, and the new members should be selected so as to prevent the holding office of more than three members from Augusta.
COUNTIES-Compensation of Employees (Unofficial) County authorities cannot raise pay of county employees to provide
them with group immrance in the absence of legislative authority.
April 1, 1955
Honorable W. A. Blasingame, President Association County Commissioners of Georgia
This will acknowledge receipt of your letter of March 24, 1955, in which you request an opinion as to whether or not county authorities may raise the pay of their employees so as to provide them with group insurance.
Section 92-3701, Georgia Code Annotated, provides inter alia as follows: "County taxes may be levied and collected for the following purposes: "1. To pay the expenses of administration of the county govern-
ment."
Of course, under this Code Section county authorities may enter into contracts with county employees agreeing among other things on the salaries to be paid such employees. The law is silent as to salaries paid county employees. Therefore, county officials, of course, may in their discretion set the salaries as is mutually agreed between the county and the said employee. Of course, the county authorities have no control over what the said employee does with his salary and it would be perfectly legal for the said employee to enter into a contract with a private insurance company whereby part of the salary was used to purchase group insurance.
The precise question of whether or not county authorities may raise salaries of county employees so as to provide group insurance has never beeri litigated in this State. 1 am of the opinion that the county officials do not have the authority to raise salaries conditioned that the increase in salary would be used to provide them with group insurance in the absence of legislative authority.

74
COUNTIES-Consolidation of (Unofficial) Laws governing the consolidation, dissolution, and merger of counties.
December 10, 1954
Mr. W. L. Stephens You request information concerning the solution of problems of county consoli-
dation in Georgia. The present law of this State relating to this subject is embodied in Article
XI, Section I, Paragraphs IV and VII of the Constitution of 1945. These provisions read:
Section 2-7804 reads: "The General Assembly shall have power, with the concurrence of
two-thirds of the qualified voters of each of the counties to be affected who participate in elections held for that purpose, to provide for the consolidation of two or more counties into one, or the merger of one or more counties into another, or the division of a county, and the merger of portions thereof into other counties." Section 2-7807 reads:
"The General Assembly may provide by general law optional systems of consolidated county and municipal government, providing for the organization and the powers and duties of its officers. Such optional systems shall become effective when submitted to the qualified voters of such county and approved by a majority of those voting."
The writer was unable to find any significant comments relating to your problem in the records of the Constitutional Commission that framed the 1945 Constitution, or in the House and Senate Journals though it is interesting to note that it was felt that under the provisions of the Constitution of 1877, it was possible for, say a poor county, to attach itself to a larger and richer county without the latter's assent. The old Constitutional provisions read:
Section 2-8206 of the Constitution of 1877, p. 204, Book 1 of the Annotated Code reads:
"Any county may be dissolved and merged with contiguous counties, by a two-thirds vote of the qualified electors of such county, voting at an election held for that purpose."
However, it is interesting to note that in the Act of 1929 (Ga. Laws 1929, p. 551) which provided for the merger of Campbell County with Fulton County, provision was made for approval by a majority of the voters of Fulton County after the ratification of the Act by two-thirds of the Campbell County voters, and in the Act of 1931 (Ga. Laws 1931, p. 527) a similar provision was included.
COUNTIES-Contracts with Individuals (Unofficial) A county cannot contract with an individual for disposal of garbage unless
specifically authorized to do so.
December 8, 1954
Honorable Richard Oldham You request information as to whether Georgia law permits counties, or other
governmental units to contract with or grant franchises to an individual to construct and operate an incinerator for the disposal of garbage.

75
The general rule in this State, applicable alike to counties and to municipal corporations is that such political subdivisions cannot make a contract not specifically authorized by law. See in this connection, as to counties: Crummey v. The State, 83 Ga. App. 459, and as to municipalities Barrett v. City of Atlanta, 145 Ga. 678. While there were some Acts of the Legislature purporting to authorize counties with populations of 200,000 or over to establish systems of garbage disposal on the books (See Ga. Laws 1937, p. 679; Ga. Laws 1937-38, Ex. Sess., p. 354; Ga. Laws 1947, p. 453; and Ga. Laws 1947, p. 545) these were all repealed by the Act of 1951 (Ga. Laws 1951, p. 547). Those Acts were what is known as general laws of local application. One county that the writer personally knows of provides such service in unincorporated areas under provisions of local legislation and contracts with private individuals or firms to provide the disposal service. So far as is known, however, no use of incinerators is involved, though presumably in those cases where the counties are permitted to contract for such service there would be no inhibition in contracting for the use of incinerators.
COUNTIES-County Depository (Unofficial) An official designated county depository is the depository for funds for
all county purposes, including school funds.
September 2, 1954
Honorable B. I. Cheney, Clerk This will acknowledge receipt of your letter which reads as follows: "The authorized county officials have designated an official county depository for county funds. Does this mean that the designated depository is to be the depository for funds for all county purposes including school funds. The depository has been designated for the next four years."
I am of the opinion that this question is controlled by the provisions of Code Section 89-811, which reads as follows:
"The county authorities shall designate one or more solvent banks as depositories of all county moneys and moneys belonging to the school funds of the county, and of school districts therein, and of other districts therein organized for any purpose; and if the county authorities shall not have provided for such a depository, the county board of education or the trustees of any school district or the proper authorities having supervision over any other public fund may designate such a depository as to their funds; and if there be no applicable depository selected, the officer collecting or holding any public funds may select a depository." It is my view that the local Acts relative to depositories have no effect on this particular question, and that the designated depository is to be the depository for funds for all county purposes, including school funds.
COUNTIES-County Funds-Audit of (1) County Commissioners have authority to audit any county funds
coming into the hands of a county official to include the sheriff. (2) County Commissioners do not have authority in any event to levy on
a percentage of the mill rate levied in the county against any particular property located therein, whether to induce new industry to move in or otherwise.

76

February 25, 1955

Mr. William T. Roberts
I wish to acknowledge receipt of your letter of February 19, 1955, in which you request my opinion of two questions.
1. Does the Board of County Commissioners of Macon County have authority to have. an audit made of the books of the Sheriff of the County?
There is no specific authority granted to the boards of county commissioners to make audits, however, I am of. the opinion that any county board of commissioners does have the authority to make an audit of any county funds coming into the hands of the county official which would include the sheriff or any other official handling county funds.

Code Section 23-904 contains the following provision:

"Jurisdiction and powers.-The board of county comm1sswners of roads and revenues hereby created shall have exclusive jurisdiction over and control of all county matters, such as public roads, bridges, the working of convicts, private roads, county finances, the levying and collecting .of taxes for county purposes, the management, control over and disbursing of county funds, ... "

It will be observed that the above code section gives the board of commissioners control over all county matters such as county finances. In order to discharge their duties in the control of county finances, it is my opinion that the county board of commissioners are entirely within their powers in the discharge of their duties by auditing the books of the sheriff or any other official who handles county funds.
2. "As an inducement to a paper mill interested in constructing a mill in this county, the Board stated to the company it would attempt to grant some tax benefits for a period of ten years.

"These benefits would be in the nature of charging only a perce11tage of the mill rate based on the assessment value of the property.

"I advised the Board this could conceivably be classed as discriminatory in the event any .objections were filed. Does the board have such authority?"

The Board of County Commissioners would not have authority to apply a percentage mill rate on a new industry in order to induce that industry to move into the county, nor would they have the right in any event to levy on a percentage of the mill rate levied in the county against any particular property located therein.

The 1945 Constitution of the State of Georgia, Article VII, Paragraph III is as

follows:

.

.

"Uniformity; classification of property.-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 subject for taxation of property shall consist of tangible property and one or more classes of intangible 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."

It would be noted that the above provision of the Constitution provides that all taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.

77
COUNTIES-Election Qualifications (Unofficial) A teacher of vocational agriculture is not prohibited under state law
from holding a county office.
May 13, 1955
Mr. Eugene Bowers I am pleased to acknowledge your request of May 10, 1955, as to whether a
teacher of vocational agriculture in the public schools of Georgia is eligible to hold any county office.
You did not state the particular office to which you refer; therefore, my answer will be as to county offices generally.
The Georgia Constitution (Ga. Code Ann., 2-7901) provides that no person shall be eligible to hold a county office unless he shall have been a resident of the county for two years and is a qualified voter. .Ga. Code Ann., 79-205 .provides that every citizen has the right to hold office unless disqualified by the Constitution and laws of Georgia. Patten v. Miller, 190 Ga. 123, 139, held that a citizen may not be deprived of the right to hold office without proof of some disqualification specially declared by law.
While Ga. Code Ann., 89-103 prohibits a person from holding more than one county office, a teacher of vocational agriculture is a county employee and not a county officer; therefore, the code section would not apply to such teacher.
On the basis of the above authority, there is no State law prohibiting a teacher of vocational education from holding a county office because of his position of employment by the County Board of Education.
In regard to the fact that part of the teacher's salary is being paid by Federal funds, this question is in reference to the applicability of the Federal Hatch Act dealing with the political activity of a person receiving compensation for services from money derived from the Treasury of the United States. Naturally no ruling by this office would be binding upon the United States. I suggest that you direct this part of your inquiry to the Civil Service Commission, Washington 25, D. C.; Attention: General Counsel.
COUNTIES-Election Qualifications (Unofficial) Law requiring county registrar to resign position sixty days prior to elec-
tion if he intendes to run for public office does not apply to Deputy County Registrar.
July 18, 1955
Mrs. Eunice B. Stubbs Ordinary, Putnam County
This will acknowledge receipt of your letter of July 15, 1955 in which you request information regarding the new law concerning County Registrars. You ask, "Since I am the Deputy Registrar for the county, I would like to know if the law applies to me, if I should want to run in the next election."
I assume you have reference to the 1955 Act which amended the Voters Registration Act. It may be found in Georgia Laws 1955, page 344, and Section 6A, which was added to the Voters Registration Act by this Act, reads as follows:
"Section 6A. A county registrar shall not be eligible to offer as a candidate for any State, county or national office in any primary, special

78
or general election while holding said position. Any person serving as county registrar must resign that position sixty (60) days or more prior to the time for holding any election in which such person desires to offer as a candidate for public office, and the failure to resign as required by this section shall make a county registrar ineligible to serve as an elected public official. The provisions of this section shall not apply to special elections called within the sixty (60) day period."
You will note that the term "county registrar" is used exclusively, and I am of the opinion that this Act would have no application to any person other than a county registrar. I do not believe it would apply to a deputy registrar. The Supreme Court of Georgia in the case of Patton v. Miller, 190 Ga. 123, held that the right of a citizen to hold office is the general rule and ineligibility the exception, and that consequently a citizen may not be deprived of this right without proof of some disqualification specifically declared by law. Although this particular theory is not directly in point with the instant situation, it is certainly analogous, and it would appear that a Statute such as the 1955 Act which requires that a person resign from a particular office before he may be eligible for another office must be strictly construed. Following this line of reasoning, it is my view that this statute applies only to county registrars.

COUNTIES-Election Qualifications (Unofficial) Member of County Board of Education is ineligible to hold another
county office.

Mr. W. W. Brooks, President

November 17, 1955

I am pleased to acknowledge your request of November 14, 1955 as to whether a member of a county board of education is disqualified to run for the office of county commissioner of roads and revenues.

Ga. Code Ann., 89-103 provides as follows:

"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the Legislature; nor shall any commissioned officer be deputy for any other commissioner officer, except by such special enactment."

Memberships on the county board of education and the office of county commissioner of roads and revenues are both county offices. See, Stanford v. Lynch, 147 Ga. 518; Compton v. Hix, 184 Ga. 749. Since you are at present a member of the county board of education, it is my opinion that you are ineligible to offer for office of county commissioner of roads and revenues unless you resign from membership on the county board of education. Should you desire to resign from the county board of education in order to run for the office of county commissioner of roads and revenues, I suggest you submit your resignation prior to any qualification date for the primary or election.

COUNTIES-Licensing of Pin-Ball Machines (Unofficial) A county has no authority to license and regulate pin-ball machines unless
that which is specifically provided by statute.
Honorable L. C. Groves You request an opinion on the authority of the Commissioners of Roads and
Revenues of Lincoln County as to licensing and regulating pin-ball machines out-

79

side of the incorporated limits of that county and also their authority to license and regulate pin-ball machines within the corporate limits of Lincoln County.
As you are aware, counties have no inherent right to license and regulate except that which is specifically provided by statute. After examination I have not been able to find any statute which gives the Commissioners of Roads and Revenues of Lincoln County the authority to license and regulate pin-ball machines.
It is therefor my opinion that the Commissioners have no authority to regulate these machines within the limitations of Lincoln County and accordingly it must follow that they have no power to regulate these machines within municipalities of that county.

COUNTIES-Private Interests (Unofficial)
It is not illegal for a County Commissioner of Roads and Revenues, who is engaged in the contracting business, to bid on or receive contracts to construct a county-wide school building with the State School Building Authority.
August 9, 1955
Honorable Jno. P. Blanchard I am pleased to acknowledge your request of August 4, 1955, as to whether
it is illegal for a County Commissioner of Roads and Revenue, who is engaged in the contracting business, to bid on or receive contracts to construct a county-wide school building with the State School Building Authoriity.
Ga. Code Ann., 32-949, prohibits any Illember of a county board of education from selling supplies to the local board of which he is a member, and Ga. Code Ann., 32-9908 makes any violation of that Code Section a misdemeanor. In addition, Ga. Code Ann., 23-1713 generally restricts purchases by a county from a county commissioner except under certain conditions. Violation of this Code Section subjects said official to being removed from office. Ga. Code Ann., 23-1714.
In general Georgia has always followed the common-law rule that no public agent may take a profit out of public business entrusted to his care. Hulgan v. Gledhill, 207 Ga. 349; Trainer v. City of Covington, 183 Ga. 759.
While the "county board of education is merely an agency through which the county acts in school matters" (Burke v. Wheeler County, 54 Ga. App. 81, 86), a Commissioner of Roads and Revenues does not have any duty or authority in regard to the administration of a local school system. The contract in question here is between the State School Building Authority and the builder. For this reason I am of the opinion that it is not illegal for a County Commissioner of Roads and Revenue, who is engaged in the contracting business, to bid on or receive contracts to construct a county-wide school building with the State School Building Authority.

COUNTIES-Qualifications of Officers (Unofficial) An Ordinary is under a duty to execute a dedimus and deliver an oath of
office and commission as directed in the dedimus from the Governor, without regard to whether a person is qualified to hold a county office, as such qualifications are determined by the Superior Court.

Honorable T. J. Swint

December 18, 1956

I am pleased to acknowledge your letter relative to your executing the dedimus,

80
administering the oath, and delivering a commtstson received by you from the Govmnor concerning the office of Coroner of your county.
It is the duty of the Ordinary to execute a dedimus and deliver the oath of office and commission as directed in the dedimus from the Governor.
The question of the qualification or eligibility of a person elected to a county office is one which is exclusively within the jurisdiction of the Superior Court and usually by the right of quo warranto brought by a person entitled to under the law to bring such. It is not within the province of an Ordinary of a,county to determine the eligibility of a person elected to a county office.
Your attention is called to the case of Bush v. The State, 10 Ga. App., Page 544 (2), in which the Court of Appeals of Georgia held:
"2. 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."
In the case of Channell v. The State, 109 Ga. 150 (1), the Supreme Court of Georgia held:
"Jury commissioner removing to another county not vacate office until fact judicially ascertained."

COUNTIES-Surveyors (Unofficial) A County. Surveyor is authorized to pay each of his assistants the sum
of ten dollars ($10.00) per day.

August 10, 1956

Honorable Bernard N. Nightingale
You request an interpretation of Code Section 23-407, relative to the compensation of the surveyor and laborers in surveying disputed county lines.
This particular section was changed at the1956 Session of the General Assembly of Georgia, by an Act approved February 23, 1956 (Ga. Laws 1956, p. 192). The section now reads as follows:

"23-407. Compensation of surveyor and laborers. The surveyor shall

receive as compensation the sum of $25 per day while actually engaged in

making a survey; he shall not be allowed more than $10 per day for the

paying of chaincarriers, flagbearers, and other laborers necessary to

clearly mark out and define such line."

The particular question involved is whether the $10 authorized for the paying

of chaincarriers, flagbearers and other laborers applies to each person involv(ld,

or is the maximum amount allowed for all such persons.



At the outset, I might say tnat this section should be clarified at the next session of the General Assembly, because the question you ask seems to be capable of being answered both ways. [Ed. note: See H. B. 430, 1957 Session of the General Assembly; on House Calendar for January, 1958]. I am of the view, however, that the $10 provided for in the section should be for each chaincarrier, flagbearer and other laborer, because as we know, it would be a practical impossibility for a surveyor to obtain the necessary personnel for a total amount of $10 per day. I have checked with a few surveyors, and find that it has been the custom to pay

81
each such person the amount involved, rather than count that as the maximum amount for all. It should. be pointed out, however, that only the personnel necessary for the work should be paid, and I am of the view that the surveyor should present an affidavit and such other evidence as the proper county authority desires, to prove that he only employed the necessary personnel.
COUNTIES-Treasurers-Salary (Unofficial) Applicability of law setting forth total compensation allowed County
Treasurers paid straight salary in lieu of fees by special act.
June 22, 1955
Honorable Earl F. Pickle Treasurer of Early County
This will acknowledge receipt of your letter of June 20, 1955 in which you request information concerning salary of the County Treasurer of Early County.
The law that you refer to is found in Georgia Laws 1953, Nov.-Dec. Sess., p. 176. It amends Code Section 23-1013 by adding to the proviso authority to increase the compensation of county treasurers to $3,600.
Section 1 of an Act approved March 19, 1935 (Ga. Laws 1935, p. 645, Act No. 176) provides:
"Section 1. That from and after January 1, 1935 the Treasurer of Early County shall receive, as full compensation for his services, a salary of $1,200 per annum, payable monthly, which shall be in lieu of all fees and commissions allowed by law. Said salary shall be paid from the County Treasury of Early County.'' I have been unable to find an amendment to this Act.
From the above, I am of the opinion that the 1953 Act would not authorize the Commissioners of Early County to increase the salary of the County Treasurer, as that Act amends Code Section 23-1013 which relates to the fees and commissions that a county treasurer is entitled to receive. The 1935 Act expressly provides that the salary shall be in lieu of all fees and commissions allowed by law.
COURTS-Clerk of Superior Court (Unofficial) A Clerk of the Superior Court is eligible to run for the General Assembly.
May 7, 1956
Honorable A. C. Carson I am pleased to acknowledge your letter requesting that I advise you if a
Clerk of a Superior Court, whose term expires December 31st, would be qualified to run for County Representative in the next general election.
In the case of McWilliams v. Neal, et al, 130 Ga. 733, the Supreme Court held: "Persons who hold a State office, except justices of the peace and
officers of the militia, are ineligible to membership in the General Assembly of this State.'' The office of Clerk of a Superior Court is a county office and receives no emolument from the State and I know of no statute or constitutional provision prohibiting a county officer from serving as a member of the General Assembly.

82
It was held in the case of Culbreath v. Cannady, 168 Ga. 444, that the County School Superintendent was a county officer and that he received an emolument from the State of Georgia, and therefore the Superintendent was ineligible to serve as a member of the General Assembly. It was pointed out in this case that the disqualification was only due to the fact of his receiving an emolument from the State and not for the reason that he held a county office.
COURTS-Deposit of Costs (Unofficial)
(a) No advance cost deposit IS required in an action for alimony. (b) Where there is an action for alimony, the defendant cannot bring a cross-bill for divorce, but, if he could, he would have to deposit advance costs.
April 7, 1954
Mr. W. H. Howell Clerk, Superior Court Lanier County, Lakeland, Georgia
Your first inquiry is whether a plaintiff is required to pay costs in advance to the Clerk of the Superior Court in an action for alimony. And your second question is whether a defendant who files a cross-action in an alimony case and prays in said cross-action for a divorce is required to pay costs in advance prior to the filing of such cross-action.
Code 24-3406 Ga. Code Ann. Supp. requires $10 [Editor's Note: Increased to $15 by Act 343, 1957] to be deposited with the clerks of the superior courts on account of costs before any divorce case or proceeding shall be filed.
However, said Code Section deals with divorce matters alone and does not include proceedings for alimony. Furthermore, I do not find any other authority or statute which requires a plaintiff to pay or deposit advance court costs in alimony cases. In consequence thereof, in response to your first question, it is my unofficial opinion that a petitioner is not required to pay or deposit court costs with the clerk of a superior court prior to or simultaneously with the filing of a petition seeking temporary and permanent alimony.
I have searched diligently for some appellate court decision or some textbook citation which would authorize a defendant in an alimony case to file a crossaction and pray for a divorce, and have not found any such authority. Obviously, in a divorce action, a defendant can cross-bill for a divorce and likewise seek alimony, because alimony is includable in a divorce proceeding, but it is my unofficial opinion at this time that a defendant in an alimony proceeding does not have the legal right to cross-bill and seek a divorce on such an alimony cross-action. If my conclusion is correct, then obviously, your second question is answered by elimination.
On the other hand, assuming that I am in error in regard to the right of a defendant in an alimony case to file a cross-action and seek a divorce thereby, then it is my opinion that such a defendant would have to pay the usual advance court costs to the clerk of the superior court at the time of filing of the cross-action.
I think this conclusion is readily clear when it is noted that in Code Section 24-3406 the words used are in "Any divorce case or proceeding." The word proceeding" being used to supplement the word "case." The cross-action in such a case is not strictly a pleading in a divorce case, for it is an alimony case, but it is a pleading in a divorce proceeding.

83
COURTS-Effect of 1951 Juvenile Act (Unoffcial) A newly appointed judge of a Juvenile Court in a county under 50,000
population must have the qualifications specified in the 1951 Juvenile Court Act (Georgia Laws, 1951, page 291), even though the court was originally established under old Code Section 24-2441 (Georgia Laws, 1916, page 60).
December 1, 1954
Honorable Erwin Mitchell You ask my views on the following question: "For many years Whitfield County has had a separately organized juvenile court under the Acts of 1916. As you know, our county has a population of less than 50,000, and the question has arisen whether or not one newly appointed as judge must be an attorney at law together with the other qualification as provided by the Acts of 1951, and as codified in Section 24-2402." Your attention is called to the provisions of Section 24-2403, which provides,
in part:
"In all counties having a population of less than 50,000, ..., where there were juvenile courts established under Section 24-2441 of the Code of 1933 (Acts 1916, p. 60), or any amendments thereto, there shall be juvenile courts established in accordance with the provisions of this chapter: Provided, that those judges who were serving in established juvenile courts as of December 31, 1950, shall continue to serve as judges of said courts until the expiration of the terms of office to which they were appointed under Acts of 1916, p. 60, or any amendments thereto. After the expiration of said term, appointments shall be made by the judge of the superior courts.... "
The above statutory provision is clear in providing that in counties with a population of less than 50,000 where juvenile courts were established under the Acts of 1916, there shall be juvenile courts established in accordance with the provisions of the 1951 Juvenile Court Act. Section 24-2402 was codified from the 1951 Juvenile Court Act and provides how juvenile court judges are appointed, their term, salary, and eligibility.
It is my personal and unofficial view that the language used in Section 24-2403, "in accordance with the provisions of this chapter," means that the judges, with the exception enumerated therein, shall have the eligibility requirements specified in Section 24-2402 of the 1933 Annotated Code (Cumulative Pocket Part).
COURTS-Grand Juries (Unofficial) Grand Jury system in Georgia related.
March 3, 1955
Mr. M. M. Shane I have received your letter concerning the Grand Jury system in the State
of Georgia. Where a person is charged with a criminal offense, the Grand Jury, which
convenes at each term of Court, hears the evidence from the side of the prosecution in order to determine whether or not to return an indictment. In such an offense,

84
the person charged with an offense is not heard, but only the prosecuting witnesses and law enforcement officers.
Occasionally, a person charged with an offenseis investigated by the solicitorgeneral, sheriff or some other such law enforcement officer. This is generally to determine whether or not a crime has been committed, and if so, who is the guilty party. However, this is not done by subpoena, but generally upon the arrest of the person and before he secures bond.
We do not generally have a preliminary hearing such as the type you have outlined in your letter in criminal cases. The Grand Jury procedure used in the State of Georgia is practically the same as used in all other states.

COURTS-Holding on Holidays. (Unofficial) Relates law as to holding court on July 4th and other holidays;
June 22, 1955
Honorable Frank S. Burney Ordinary of Burke County
Replying to your letter of June 17, 1955 relative to holding court on July 4, your attention is called to the case of Hamer v. Sears, et al, 81 Ga. 288, in which the Supreme Court of Georgia held:
"There is no statute of thls State that inhibits the courts from sitting on the Fourth of July, if it fallMt on Sunday, or which prevents the court from rendering judgment on that day. It is true that the Fourth of July is a holiday by our code, and for some purposes certain things cannot be done,-such as the noting and protesting. of notes and commercial paper; and these things are specially mentioned in the statute; but nowhere are the courts prohibited from meeting and transacting business on that day."
You may also be interested in reading the case of Freeman v. Beneficial Loan Society of Macon, 42 Ga. App. 294, which relates to the holding of court on November 11, commonly called Armistice Day, and also the case of Wood v. State, 12 Ga. App. 651.

COURTS-Juries-Eligibility (Unofficial)
(a) When the names "John Doe and Wife" appear on the books of the Tax Receiver, the wife is eligible for jury duty.
(b) Property ownership is not a prerequisite for jury duty.

September 1~, 1954

Honorable James A. Brabson

This will acknowledge receipt of your letter which reads as follows:

"When the names on the books of the Tax Receiver appear as 'John

Doe and (&) wife' is Mrs. John Doe eligible to have her name placed

on the [jury] list; that is, is such designation of both citizens on the books

of the Tax Receiver sufficient?

"Is it proper for the Jury Commissioners, and do they have authority,

to question the true ownership of property in relation to said jury elig-

ibility?"

.

85
It is my personal view that such a designation on a tax list would make Mrs. John Doe eligible to have her name placed on the jury list. It appears that such a listing of the names would be the same as if they had put "John Doe and Mrs. John Doe." Certainly, in that situation, Mrs. Doe would have just as much right to be on the jury list as Mr. Doe.
Jury commissioners have a very wide discretion in considering any matter they see fit and proper in determiRing the eligibility of a person to be placed in the jury box. However, I do not think that in a case where the tax return is filed by the husband and wife that it would be proper for the commissioners to go into the question as to the true ownership of the property returned for taxation. It is not necessary to own property in Georgia in order to be eligible to serve on the jury. The jury list is made up from persons who return property for taxation. The property so returned may or may not belong -to the persons returning it. Under common law, it is necessary for a juror to be a freeholder or own a certain amount of property; however, this is not true in Georgia.
COURTS-Juries-Exemptions from Duty (Unofficial) Federal employees are not exempt from jury duty in courts of this State.
March 30, 1955
Mr. Andy G. Clements I have received your letter in which you asked me if Federal employees are
exempt from jury duty in the State courts of the respective counties of their residence.
Code Sec. 59-112 of the Code of Georgia lists the various persons who are exempt from all jury duty, civil or criminal. Among the classes listed are none which would relieve Federal employees from their privilege. and responsibility of serving as jurors, except for railway postal clerks.
COURTS-Juries-Method of Selection of Grand Juries Law relative to selection of Grand Juries and compensation of Judges
quoted.
November 12, 1954
Mr. William E. Jones, Chairman This is to acknowledge receipt of your letter of N ovcmbcr 8, 1954, which reads
as follows: "Please send us information as to the method used in your State in
the selection of a Grand Jury, and salaries of Judges." The answer to your question as to the method of selection of a Grand Jury in this State may be found in Sections 59-101 and 59-106 of the Code of Georgia Annotated, which read as follows:
"59-101. There shall be a board of jury commissioners, composed of six discreet persons, who are not practicing attorneys at law. nor county officers, who shall hold their appointment for six years, and who shall be appointed by the Judge of the Superior Court. On the first appointment two shall be appointed for two years, two for four years, and two for six

86
years, and their successors shall be appointed for six years. The judge shall have the right to remove said commissioners at any time, in his discretion, for cause, and appoint a successor: Provided, that no person shall be eligible or appointed to succeed himself as a member of said board of jury commissioners."
"59-106. Biennially, or, if the judge of the superior court shall direct, triennially on the first Monday in August, or within 30 days thereafter, the board of jury commissioners shall revise the jury lists.
"The jury commissioners shall select from the books of the tax receiver upright and intelligent citizens to serve as jurors, and shall write the names of the persons so selected on tickets. "They shall select from these a sufficient number, not exceeding two-fifths of the whole number, of the most experienced, intelligent, and upright citizens to serve as grand jurors, whose names they shall write upon other tickets. The entire number first selected, including those afterwards selected as grand jurors, shall constitute the body of traverse jurors for the county, to be drawn for service as provided by law, except that when in drawing juries a name which has already been drawn for the same term as a grand juror shall be drawn as a traverse juror, such name shall be returned to the box and another drawn in its stead."
Your second question as to salaries of Judges may be found in Section 2-4701, which reads as follows:
"2-4701. The Justices of the Supreme Court each shall have out of the treasury of the State salaries of $8,000 per annum; the Judges of the Court of Appeals each shall have out of the treasury of the State salaries of $8,000 per annum, the Judges of the Superior Courts each shall have out of the treasury of the State salaries of $6,000 per annum and the Solicitors General shall each have out of the treasury of the State a salary of $250.00 per annum with the right of the General Assembly to authorize any county to supplement the salary of a judge of the Superior Court and Solicitor General of the Judicial Circuit in which such county lies, out of county funds, provided, however, where such salary is, at the time of the adoption of this Constitution, being supplemented out of county funds under existing laws, such laws shall remain in force until altered by the General Assembly. Provided further, that the Board of County Commissioners of Richmond County, or the Ordinary, or such other board or person as may from time to time have charge of the fiscal affairs of said county, shall without further legislative action continue to supplement from said County's treasury, the salary of the judge of Superior Court of the circuit of which the said County of Richmond is a part, by the sum of Two Thousand ($2,000) Dollars per annum, which shall be in addition to the amount received by said judge out of the State treasury; and such payments are declared to be a part of the court expenses of said county, and such payment shall be made to the judge now in office during his present or subsequent terms, as well as to his successors, with the authority in the General Assembly to increase such salary from the County treasury as above provided."
Georgia Laws 1951, page 78, provides a contingent expense allowance to Judges and Solicitors General, and reads as follows:
"The Treasurer of the State of Georgia is authorized and directed to pay from the State treasury the sum of $200 per month as contingent

87
expense allowance to each judge and solicitor general of the superior courts in all judicial circuits of the State of Georgia, said sum being in addition to the salaries of said judges and solicitors general now provided by law; Provided, that no judge nor solicitor general of a superior court shall receive more than $12,000 per annum as salary and allowance out of State treasury funds." In some of our larger counties, the County Commissioners or the governing body of the county are authorized to supplement the Judge's salary.
COURTS-Juries-Persons Eligible (Unofficial) Discusses qualifications and methods of choosing jurors.
October 16, 1956
Honorable Florrie H. McKinnon You ask that I advise you as to who is eligible for jury service. Section 59-106 of the 1955 Cumulative Pocket Part of the 1933 Annotated
Code of Georgia, provides: "Revision of jury lists. Selection of grand and traverse jurors.-
Biennially, or, if the judge of the superior court shall direct, triennially on the first Monday in August, or within 60 days thereafter, the board of jury commissioners shall revise the jury lists.
"The jury commissioners shall select from the books of the tax receiver upright and intelligertt citizens to serve as jurors, and shall write the names of the persons so selected on tickets. They shall select from these a sufficient number, not exceeding two-fifths of the whole number, of the most experienced, intelligent, and upright citizens to serve as grand jurors, whose names they shall write upon other tickets. The entire number first selected, including those afterwards selected as grand jurors, shall constitute the body of traverse jurors for the county, to be drawn for service as provided by law, except that when in drawing juries a name which has already been drawn for the same term as a grand juror shall be drawn as a traverse juror, such name shall be returned to the box and another drawn in its stead." You will note the specific language that is used in this Code Section, to-wit: "The jury commissioners shall select from the books of the tax receiver upright and intelligent citizens to serve as jurors, ... ". The Legislature, by this provision, limits the selection of jurors to those on the books of the tax receiver. In the case of Avery v. State, 209 Ga., at page 120, the Supreme Court of Georgia held:
"(a) The Constitution of this State by Article VI, Section 16, Paragraph 2, declares that "The General Assembly shall provide by law for the selection of the most experienced, intelligent and upright men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors. Nevertheless, the grand jurors shall be competent to serve as traverse jurors. The General Assembly shall have the power to require jury service of women also, under such regulations as the General Assembly may prescribe.' Except as to the above last-quoted sentence, the Constitution of 1877 required and provided for the same. As its compliance with this constitutional mandate, the General Assembly has provided

88
for the selection of grand and traverse jurors by a board of six jury commissioners in each county. Code, Section 59-101. These jury commissioners are required to revise the jury lists biennially, or, if the judge of the superior court shall direct, triennially on the first Monday in August, or within 30 days thereafter. They must select from the books of the tax receiver upright and intelligent men to serve as jurors, and from
these they are required to select a sufficient number, not exceeding two-
fifths of the whole number, 'of the most experienced, intelligent and upright men to serve as grand jurors.' The entire number as first selected, including those afterwards selected as grand jurors, shall constitute the body of traverse jurors for the county. Code, Section 59-106. The Constitution does not require that all upright and intelligent men shall be selected as jurors. It merely fixes the qualifications of a juror, and leaves the General Assembly the question as to whether all such persons or a lesser number shall be selected. The law passed by the General Assembly for the purpose of carrying into effect the constitutional provision respecting the selection of jurors does not require that all persons possessing the constitutional qualification shall be selected. It reposes in the jury commissioners not only the authority to determine what men have these qualifications, but how many of such men shall be selected for jury duty in the county. Our constitutional demand is for a jury list composed of upright and intelligent men-not that every upright and intelligent man be included in the list-and from this list grand jurors must be selected. Accordingly, it cannot be held that Code Section 5!J-106, which provides for the selection of grand and traverse jurors exclusively from the books of the tax receiver-his tax digest-is violative of our Constitution because it does not also permit the board of jury commissioners to select grand and traverse jurors from among those men who make no tax returns. See, in this connection, Wilson v. State, 6!J Ga. 224; Rawlins v. State, 124 Ga. 31 (52 S. E. 1); Davis v. Arthur, 139 Ga. 74 (76 S. E. 676), affirmed in 201 U. S. 638 (26 Sup. Ct. 560, 50 L. ed. 899, 5 Ann. Cas. 783); Cady v. State, 1!J8 Ga. 99 (31 S. E. 2d 38). Our statute, embodied in Section 59-106 of the Code, does not, for the reason assigned, violate Section 1 of the Fourteenth Amendment to the Constitution of the United States. Strauder v. West Virginia, 100 U. S. 303 (25 L. ed. 664). In Strauder's case the court said: 'We do not say that within the limits from which it is not excluded by the amendment, a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.... '."
COURTS-Jurisdiction of Federal Courts (Unofficial)
Discussion of the legislative powers of the Federal Congress as regards the jtirisdiction of Federal Courts.
December 2, 1954
Honorable E. L. Forrester, M. C., Congress of the United States
I acknowledge receipt of your thoughtful letter of recent date relative to the usurpation of powers by the Supreme Court of the United States.

I nmst. confE)ss,J;,hat thi1tprob1em has bee.n under consideration by .this offke for some time, and we hav,~ even prepared a proposed amendment to .the Judicial

(jode qevriving the Federal Courts of jurisdiction over \!ases invelving the admin-
will i_stratiop by :the sever1t~ states of theirre.spectiveschoo!'systen}s.. Isha,ll. pres~ntJy
discuss this amendment, but first I undertake to comment on yourinquiries. . . 1. I some~hat doubt that Congress could en:act rules ,of constr~ction fo~ 'the
Court to foUow in interpreting the Co~stitution: 'w"i1ile ther~ 'is no qu~sti~n but
that such rules could be ~riact'ed ~fa part of legislative acts, as a guide for construction thereof (16 C. J. S. 301, Sec. 112a), ~ndalthough it was early settled that

an exposition of the Constitution by the Cml.gtess deliberately establishiilg by leg-

islative acts, ought not to be lightly'regarded (McCttllough v. Maryland,4 Wheat.

316, 4 h Ed. 579), 'it'is equally 'clear that the fitiafauthority ;in interpreting the

Constitution is vested in the -judiciary. Loekerty v. Phillips,. :h9U. :s. 182, 87

L. Ed. 1839; 16 C. J. S. 201, Sec. 92:

.

.

If Congress could enact binding rules of construction for the Constitution,

them would be. little need for the Supteme.Coutt, since:the judicial furiction consists mainly.of interpretation. In 16. C~ J. S. 303,' Sec. 115 (b), it is stated that the

Legislature is without power to place a binding construction ort the Constitution,

and'although no federal cases are cited, I believe we could expect nothing different

from the Supreme Court as that body, as presently constituted, appears to .be

intoxicated by its.own power, and would undoubtedly find little difficulty in making

short work of any attempt of limiting. that power. I believe the Court woul<l find

such 3;n attempt to violate the separation of powers doctrine. '

.

2. I do not think that legislation could be passed providing that .decisions

of the S't.Jpreme Court construing the Constitution in a manner contr:ary to the

intent of the ratifi.ers w.ould be .effective only if approved by vote of the Senate and

ratified by three-fourths of the: states. The validity .of such a statute would

itself have .to be determined by the .Supreme Court, and I cannot conceive of that

overreaching b9dy approving of its own debilition. The judicial power is vested

in the courts, not in the Senate or people. In People v. Max:fr70 Colo. 100, 198 Pac. 150, and PeQple v. Western Union Telegraph Co., 70. Colo~ 90, 198 P~c. 146, 15
A. L. E.. 326, a statut~ providing.;for popular vote upon co.urt decisions construing

the constitutionality of statutes wa:jl held unconstitutional.

3. Whether Congress can requixe the Court. to adhere to the rule of stare

decisis-If any remedial legislation is needed-and recent events. leave little .doubt ~s to this-it is for .some .provision whereby stability can be injected .int~ the
decisions of our Supreme Court. In Smit.h v. Allw~ight, 321 U. S. 649,. which over-
ruled the full bench decision of Grovey v. To~nsend, 295 U.,S, 45,decid,ed only ni~e years previously, Mr. Justice Reed cite<l fourteen cases decided betwee~ March 27, 1937 and June 14, 1943, in which one or. more earlier .decisions of ~onstitutional

questions had been overttn;ned. This sad state of affairs 'led Mr. Justice Roberts,

dissenting in the Allwright case to j:Jedare 'that such practice tended to '!>ring adjudi~ations of the Supreme Court' '1into th~. same class as a restricted rail~oad
ticket good for thi~-ilay and trilin only!' 'in Burnet v.cotom1do Oil iin.d Gas Co.,

285 U. S; 393, Justice Brandeis pointed out the rule of stare decisis which is now followed by the ourt, which is that the court will vi:lry quickly' overrul~ previous

constitutional decisions believed to be wrong more 'readily than the other types o:f

cas.es,:'becaus.e.of the difficulty attendant upon; amendment. However, lseedittle

chance of curing the problem of stare decisis by legislation. As pointed outby

Mr. J~ttce Branqeis ~n the Burnet ease, rsupra, "Whether *t .shal.l. be. followed or deparled~rom . is a question ~ntirely withi:p the disQre.tiop.. ,of the Court, which is again called upon to consider a. guestion once decided,'~ a:Q.d il} my opinion, the

90
Court would probably hold that any attempt by Congress to require adherence to stare decisis would violate the separation of powers doctrine.
4. I do not believe that Congress could appoint a committee to review decisions of the Court based upon psychology and overrule those thought to be contrary to the Constitution, as such would clearly be inconflict with the separation of powers doctrine, as 'hereinbefore discussed.
5. The Appellate jurisdiction of the Supreme Court-The Constitution, Art. III, Sec 2, provides in part as follows:
"In all Cases affecting Ambassadors, other public Ministers and Counsuls, and those in which a State .shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both. as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
In Wiscart v. Dauchy, 3 Dall 321 (1796), this provision was construed as meaning that where Congress had not by statute prescribed the appellate jurisdiction of the Court in any case, such jurisdiction was lacking.
In Durousseau v. United States, 6 Cranch 307, 313 (1810), Chief Justice Marshall declared,
"The appellate powers of this court are not given by the judicial act. They are given by the Constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject.
"When the first legislature of the Union proceeded to carry the third article of the Constitution into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the supreme court. They have not, indeed, made these exceptions in express terms. They have not declared that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it."
See also United States v. Moore, 3 Cranch 159, 173 (1805), to the same effect. This holdingapparently anticipates that the affirmative granting of appellate jurisdiction by Congress in. any class of cases effectively negatives appellee jurisdiction in all other classes of cases not embraced. However, in Barry v. Mercein, 5 How. 103, 119 (1847), in an opinion of Chief Justice Taney, a more restrictive view was taken, viz,
"By the Constitution of the United States, the Supreme Court po,ssesses no appellate power in any case, unless conferred upon it by act of Congress; nor can it, when conferred be exercised in any other form, or by any other mode of proceeding than that which the law prescribes."
This decision stands for the proposition that in no case does the (Jourt have appellate jurisdiction unless by affirmative statute, jurisdiction has been specifically granted in that particular class of cases.
In United States v. Young, .U. S. 258, 259 (1876), Chief Justice Waite defined the appellate jurisdiction of the Court as follows:
"We have only such appellate jurisdiction as has been conferred by acts of Congress, and in the exercise of such as has been conferred, we can proceed only in' the manner which the law prescribes."

91
The most famous case concerning the appellate jurisdiction of the Supreme Court is Ex Parte McCardle, 7 Wall. 506, 19 L. Ed. 264 (1869). The interesting historical background of this case is fully set forth in Warren, The Supreme Court in United States History, Vol. II, pp. 464-484.
A Mississippi editor, William McCardle, had been arrested under the Reconstruction Acts and imprisoned by a military tribunal. Habeas Corpus was brought, and upon denial thereof, an appeal was taken to the Supreme Court under the Act of 1867, providing for appeals to the Supreme Court in Habeas Corpus cases. After overruling a motion to dismiss (6 Wall. 318) the Court set the case down for arguments on the merits. After argument, but pending decision, an act was surreptitiously passed through Congress repealing the appellate jurisdiction of the Supreme Court in habeas corpus cases under the Act of 1867.
The Supreme Court was therefore compelled to dismiss the case for want of jurisdiction, and so doing, again reiterated the rule that an affirmative grant of jurisdiction in one class of cases is a negative of all others not expressly granted, and noted that as result of this rule, acts of Congress providing for the exercise of jurisdiction had "come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to it." The principle of the McCardle case has been subsequently reaffirmed many times. Ex Parte Yerger, 8 Wall 85 (1869); Railroad Company v. Grant, 98 U. S. 398, 491 (1878); Kurtz v. Moffett, 115 U. S. 487, 497 1885); Missouri v. Missouri Pacific R. Co., 292 U. S. 13, 15 (1934); Cross v. Burke, 146 U. S. 82, 86 (1892); Stephen v. United States, 319 U. S. 423, 426 (1943).
In The Francis Wright, 105 U. S. 381 (1882), the Court upheld the right of Congress to limit its jurisdiction in admiralty cases to questions of law appearing upon the record. It was said,
"'Authority to limit the juridiction necessarily carried with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not. To our minds it is no more unconstitutional to provide that issues of fact shall not be retried in any case, than that neither issues of law nor fact shall be retried in cases where the value of the matter in dispute is less than $5,000. The general power to regulate implies the power to regulate in all things. The whole of a civil appeal may be given, or a part. The constitutional requirements are all satisfied if one opportunity is had for the trial of all parts of a case. Everything beyond that is a matter of legislative discretion.' "
See also the excellent treatment of this subject in "Congress and the Appellate Jurisdiction of the Supreme Court," 34 Mich. L. Rev. 650, and Constitution of the United States of America, Analysis and Interpretation, p. 614.
Therefore, whether one ascribes to the view deducible from Chief Justice Marshall's opinion in the Durousseau case, supra, that Congress can not deprive the Supreme Court of all appellate jurisdiction, or the view taken by Chief Justice Taney in Barry v. Mercein, 5 How. 103, 119 (1847), that "the Supreme Court possesses no appellate power in any case, unless conferred upon it by an Act of Congress.... ", there appears to be no question but that the Court can be deprived of jurisdiction in a class of cases, such as, for example, all cases drawing in question the administration by the states of their respective school systems.
I have prepared such a bill, and am enclosing a copy herewith for your inspection.
However, I wish to emphasize that it is not only the Supreme Court's usurpa-

92
tion in the field of public education which perturbs me, but just as much so that court's tending to entertain habeas corpus proceedings brought by prisoners held in custody under conviction in state courts. Historically and traditionally, habeas corpus has lain only where the court imposing sentence was without jurisdiction, but within the last few decades, the Supreme Court has for all practical purposes, undertaken to consider the same questions on appeal in these cases as would normally be considfi)red by the state court on writ of error. There has been an insistent and calculated practice of making every irregularity or error occurring at the trial a federal question. Should this tendency continue, I foresee that before too much longer, the Supreme Court will maneuver itself into the position of a final appellate court for the correction of all errors. In so doing, the delicate balance of Federal-State relations will have been destroyed, and that great concept of freedom, states rights, will, like Prosperos' island,
"Dissolve, and like this insubstantial pageant faded, leave not a rack behind.... "
My misgivings in this matter are not original. The late Mr. Justice Jackson voiced the same concern in the recent case of Brown v. Allen, 344 U. S. 443, 528, 97 L. Ed. 469 (1953).
Although your letter did not make reference to circumscribing the jurisdiction of the inferior federal courts, the bill which I have prepared withdraws jurisdiction from all federal courts over cases drawing in question the administration by the states of their school systems. It is well settled that Congress can regulate the jurisdiction of the lower federal courts as it sees fit. Turner v. Bank of North American, 4 Dall. 8 (1799); United States v. Hudson and Goodwin, 7 Cr. 32 (1812); Cary v. Curtis, 3 How. 236 (1845).

COURTS-Justice of Peace-As Grand Juror (Unofficial) A Justice of the Peace is eligible to serve on the County Grand Jury.

April 6, 1956

Honorable B. H. Bailey

I am pleased to acknowledge your letter and advise that the Supreme Court of Georgia in the case of l . ong v. The State (127 Ga., p. 285), held that the Justice of the Peace is a State Officer and not a County Officer.

Section 59-201 of the 1933 Ann. Code of Georgia, as amended by Acts of 1953, Nov. Sess., p. 284, sets forth the qualifications of a Grand Juror as follows:

"Qualifications of grand jurors; incompetency of certain public of-

ficers to serve.-All citizens of this State, above the age of 21 years,

being neither idi.ots, lunatics, nor insane, who have resided in the county

for six month~ preceding the time of serving, and who are the most exper-

ienced, intelligent, and upright persons, are qualified and liable to serve as

grand jurors, unless exempted by law: Provide(!, however, that county

commissioners, tax receivers, tax collectors, members of the county board

of education, county school commissioners, ordinaries, and county treas-

urers shall be incompetent to serve as grand jurors during their respective

terms of office."



93

You.will note that a Justke of the Peace is not within the officer~? excluded in this Code Section.

There is no distinction between an Ex-Officio Notary Public and. a Justice of the Peace insofar as both being State Officers. The Supreme Court, in the Long case, above cited, said in discussing the office of the Justice of the Peace:

"While his functions can be exercised only in a. given county, and

generally in the distri~t of his residcmce only, he is nevertheless an officer

of tpe State.."

.

.

.:COURTSh-Justices .of Peac~Constables (Unofficial)
(a). A Justice of the Peace must use the constables who have been duly elected.
(b) AJustice of the Peace.tnay not serve as constable.
December 4, 1956
Honorable Wallace Rhodes
I am pleased to acknowledge. your letter relative to whether or not a Justice of the Peace is under the legal obligation to use the services of an elected Constable, or whether he may disregar<;l such elected Constable and appoint someone else( alsowhether or not a Justice of the Peace caT\ exercise both the duties of a Justice and that of Constable.
Section 24-801 of the Code of Georgia provides that there shall be two Constables in each Militia District of the several counties elected by the people of each District who shall hold their offices for four years unless sooner removed.
The Constitution 'and statutes of the State with which you are familiar prdvide that there "sha1l be" a Justice of the Peace and "may be" an ex-officio Justice of the Peace in each Militia District of the State. .Therefore; you ca:a see that it is intent .of these laws to have a Justice of the Peace and two Constables elected by the p~ople in each Militia District, and that upon the conditions provided in the Constitution and Code, there may be an additional ex-offjcio Justice of the Peace.
The duties. and functions of these officers are set forth by statutes in this State. The only time that a Justice of the Peace may appoint a Constable is provided under Section 24-806 and so long as none of the contingencies set. forth in said Oode Section occur, the Justice of the Peace .must use the Constables elected by the people of his District.
Relative to your second question as to whether or not a Justice of the Peac,e can occupy and exercise the duties of Justice of the Peace and Constable at the 13ame time, it is my view. that this cannot be done in this State.. A J 11stice of the Peace presides over several .courts in addition to his fixed term of civil court which is held each month and. while presiding in these courts he acts in a jq.dicial capacity. There are other duties attached to his office under the law which are ministerial in character. The .Constable is an officer similar to a sheriff and his duty is set forth by statute which in the main is to serve the processes issued by the judge or judicial officer.
In other words, he is the arm of the judicial officer in carrying out &nd enforcing the orders of the court according to law.
It would be incompatible for a Justice of the Peace to attempt to hold the office and exercise the function of Constable both at the same time.

94
COURTS-Justices of the Peace-Jurisdiction (Unofficial) Justices of the Peace are without authority to accept cash bonds in or to
try misdemeanor cases growing out of violations of the traffic laws of this State.
April 19, 1955
Miss Beatrice F. Lang Reference is made to your letter of April 11, 1955 in which you inquire
regarding the authority of a Justice of the Peace to take a cash bond in a traffic case.
You will note that Section 92A-501, et seq, of the Georgia Code Annotated, broaden the jurisdiction of the Courts of Ordinary, municipal courts and police courts to handle misdemeanor cases arising under the traffic laws under certain circumstances and conditions. You will observe that the sections mentioned do not mention Justice Courts.
You will also observe that Section 27-508 of the Code provides that any sheriff, deputy sheriff or other county officer charged with the duty of enforcing traffic laws "who has been authorized, as provided herein, by the judge having jurisdiction of such offense" may accept a cash bond under certain specified circumstances. (Emphasis added.)
I find therein no authority for a Justice of the Peace to accept or authorize the acceptance of cash bonds in or to try misdemeanor cases growing out of violations of the traffic laws of the State. If you have in mind provisions of the law which I have overlooked a~d failed to consider, I will be delighted to have you call them to my attention.
COURTS---:Justices of the Peace-Jurisdiction (Unofficial) Since Justices of the Peace in Fulton County have been abolished, Civil
Court of Fulton County has that jurisdiction in the City of Atlanta.
May 10, 1955
Honorable S. F. Puckett, Sr. Justice of the Peace, 1425th District
You desire to know how a Justice of the Peace can collect a fi. fa. or serve a garnishment in the City of Atlanta.
A Justice of the Peace of Bartow County does not have authority to serve a fi. fa. or execution in the City of Atlanta for the reason that justice courts have been abolished in the City of Atlanta and a court known as the Civil Court of Fulton County has been established in lieu thereof.
Should you have jurisdiction of a person in a civil action and this person should thereafter move from your county to the County of Fulton, you may proceed under the provisions of Section 24-1409, which provides that an execution may be backed by any Justice of the Peace in the county where such person resides or where his property may be found and levied on by a constable of said county. As applicable to Fulton County, this would be done by the Civil Court of Fulton County.
Insofar as your question relates to your receiving a civil suit from a plaintiff living in Atlanta against a. defendant residing in your district, you may require the non-resident plaintiff to deposit costs before you handle this type of action. See Section 24-1103 of the 1933 Code.

95

COURTS-Justices of the Peace-Notaries Public and Ex-officio Justices of the Peace-Dual Offices The Constitution of this State provides that there shall be a Justice of the Peace and an Ex-officio for each militia district; therefore, a person holding office as Justice of the Peace may not be commissioned as Notary Public and Ex-officio Justice of the Peace until resigning the .former office.
January 4, 1955

Honorable Ben W. Fortson, Jr.,

Secretary of State

I am pleased to acknowledge your letter relative to preparing a commission for Mr. Z. G. Reaves as Notary Public, Ex-officio Justice of the Peace in the 1751st District, G. M., Dodge County, Georgia.

You state that on October 3, 1955, the 1882nd Militia District was abolished

and merged with the 1751st Militia District, and that Mr. Joe C. Jones was the

commissioned Notary Public, Ex-officio Justice of the Peace in the 1751st District, but that he resigned on Nov. 28, 1955, thereby creating a vacancy in the 1751st District.

You further state that in the 1882nd District, now consolidated with District 1751, Mr. Z. D. Studstill, Jr., was commissioned to serve as Notary Public, Ex-officio Justice of the Peace, for a four-year term ending July 9, 1957. You

further state that Mr. Z. G. Reaves is at present the Justice of the Peace in the

1882nd District, having been elected on Dec. 6, 1952, for a four-year term ending

January 1, 1957, and that he qualified on January 7, 1953, and to date your office

is not in receipt of his resignation as Justice of the Peace in the 1882nd District.

Code Section 23-209, relative to the changing of militia districts, provides

that the Justices of the Peace residing in a district which is abolished or merged

into another district shall have authority to discharge the duties of the district for which they were elected or appointed until their term of office expires and their successors in said district are qualified, unless elected or appointed to the same office in the new district for which they are eligible.

The 1945 Constitution of Georgia, Art. VI, Section 7, provides that there shall be in each militia district a Justice of the Peace, and Art. VI, Section 8, Paragraph 1, provides that commissioned notaries public, not to exceed one for each militia district, may be appointed by the judges of the Superior Courts in their respective

circuits upon recommendation of the grand juries of the several counties, and

that they shall be commissioned by the Governor for a term of four years and

shall be ex-officio Justices of the Peace.

.

It is my view that the Constitution of this State provides that there shall be a Justice of the Peace in each militia district, and that here may be an ex-officio for each militia district. It is my further view that these offices were intended to be separate and held by different individuals in order to allow litigates and con-

stables to carry persons arrested to the nearest magistrate, as provided by law.

to Under the facts stated in your letter, Mr. Reaves is still the elected. Justice
of the Peace of the 1882nd Militia District and is authorized to continue exercise the powers and duties of his office until the expiration of the term of his present commission, and that he would not be entitled to be commissioned as Notary Public

and Ex-officio Justice of the Peace in the 1751st District unless he should vacate

by resigning his present commission as Justice of the Peace of the 1882nd Militia

District which has been merged with the 1751st Militia District.

96

COU~TS-:Justice of Peace-Powers and Duties (Unofficial)
Discusses powers and duties of a Justice of the Pea~e;~~d his Constltbles in Georgia.

AI>ril 2, 1956

Honorable Wjlliam J .. Holloway, Jr.

I am pleased to acknowledge your letter relative to the powers and duties of a

Justice of the Peace and their Constables in Georgia.

Section 24-601 of the 1933 Ann. Code of Georgia sets forth the general powers

and duties of the Justice of the Peace. Section 24-1501 of the 1933 Ann. Code of Georgia sets forth. ~he criminal jur:is~

diction of Justices of the Peace. Section 24-1502 of the 1933 Ann. Code of Georgia provides that the criminal jtrdsdiction of a Ju~tice of the Peace ~xtends throughout

his county as to crimes committed therein.

,

, , .

Section 24-817 of the 1933 Ann. Code of Georgia sets forth the duties of a

Constable.

. .

Section 27-401-424 of the 1933 Aim. Code of Georgia sets :forth the powers of

the Justice of the Peace to hold a court of inquiry and proceedings therein.

,

Section 27-207, 1933 Ann. Code of Georgia, provides:
"An arrest for a crime may be. made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause .where there is likely to be a failure of justice for want of an officer to issue, a warrant."

Section 27-209 of the 1933 Ann. Code of Georgia, prbvides:

"An arresting officer may arrest any person charged with crime, under a warrant issued by a judicial officer, in any county, without regard to the residence of said arresting officer; and it is his duty to carry the accused, with the warrant under which h~ is arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of that county ... "

.I cite to you the above provisions of statutory law in order that your may familiarize yourself with the powers and duties of a Justice of the Peace and Constable. In the case of Ormond v. Ball, 120 Ga. p. 916, the Supreme Court' of Georgia has held .that a .Justice of the Peace or committing Magistrate 'camiot' make a warrant returnable to himself, that the arresting officer is required l,'inder the general law of the State to carry the arrested person to the nearest judicial officer for a committal hearing. This obviously means that the arresting officer has discretion as to whom he shall carry the arrested person before, provided he follows the law as to the nearest judicial officer.
The Supreme Court also in the above cited case ma.kes a distinction bet~een the present-day powers and duties of a Constable as compared under the old ~om mon law, and. therefore; I suggest that yi:nf read this case in order to acquaint yourself with the views of the Supreme Court in this matter.

You will see from a close study of the. above cited statutory authorities that it is the duty' and power of a Justice of the P~ace in criminal cases to' co)'tserve the peace in his county by i~:miilg the necessary' warrants and processes to effectu-

ate the same. The warrants when issued should be served by. a Constable, Sheriff,

or other arr~sting officer as provided by Jaw. The Judge should always remain.

in the impartial position of issuing the. process and judicially hearin~(,any questjori

'L

"

.

.

. .

.. .

.

brought before him at a c-ommittal hearing. While there cai:l be no doubt that a
Justice of the Peace, like any other citizen, could arrest a person for committing a crime in his presence, where a crime has not been committed in the Justice's presence, a Justice of the Peace should issue his warrant as provided by law for the arrest and apprehension of such person, and such warrant should be executed by an officer other than the isuing justice, for the obvious reason that a person should not be the Judge and arresting officer in the same matter.

COURTS-Justice of the Peace-Practice of Law (Unofficial)

A Justice of the Peace cannot by virtue of his office draw legal documents which he would be authorized to wit~ess, since this wouid be unauthorized

practice of law.

-



February 26, 1954

Honorable' Murphy M. Burrell You request th~ Attorney General to advise you-whether or notit is against
the law for a Justice of the Peace or a Notary Public to draw deedS: and bilis of sale. Y~u state that you are of the opinion 'that such officials would be author-
ized to draw any. instrument that they would be authorized. to witness.

I do not find any authority for a Justice of the Peace or a Notary Public to

practice law. The preparation of legal documents and giv,ing of advice on legal

matters has been held in. several instances to be practicing law. A person cannot

practice law in ~his State without first passing the Bar Examination a;nd being

admitted by the Superior Courts to the practice of law.

A great many things are done and help is given by the officer:;; you mention,

without any thought or. intent to perform legal services. This is done in most instances to be of help to the pe~ple of their communities. However, in order to

be absolutely-in the clear, a public officer, by performing o11ly those duties vested

in him by law, would be on the safe side in the event an irate citizen desired

to bring criminal action' against him for invading the practice of some profession,

such as the law.



COURTS-Justice_s of the Supreme Court Emeritus-Compensation.

Justices of.the Supreme Court Emeritus are entitled t0 two-thirds of the

compensation, and allowances authorized Associate Justices of the Supreme

Qo~rt to include any contingent expense _allowances authorized by law.



.

Yf

r

February 17, 1954

Honorable George B. Hami~ton Treasurer, State Treasury Department
I am pleased to acknowledge your letter of February 10, 1954, in which you request my opinion as follows:
"The law creating the position of Associate Justices Emeritus of the Supreme Court, as amended, provides that:
"'Each year, Associate Justices Emeritus shall receive compensation and allowances equal to two-thirds of the compensations and allowances

.98
provided by law for Associate Justices of the Supreme Court for that current year.'
"(Georgia Laws 1953, January-February Sessions, page 137.)
"The same provision applies in the law relating to compensation of the Judges Emeritus of the Court of Appeals. (Georgia Laws 1952, page 316.)
"The compensation fixed for both the Justices of the Supreme Court and the Judges of the Court of Appeals is now as follows:
''Constitutional SalarY------------------------------------------------------------------$8,000.00 ''Contingent Expense Allowance-------------------------------------------------$3,600.00 "(Appropriation Act 1953) ''Contingent Expense Allowance ------------------------------------------------$2,400.00 "(Georgia Laws 1953, January-February Session, page 613-14.)
"The question involved relates to the $2,400.00 contingent expense allow:ance as.provided in Section I (b) of the so-called Salary Adjustment Act passed in the January-February Session of 1953 (Page 513-14). The only provision in this Act relating to emeritus positions is in Section I (a), which Teads as follows:
" 'Provided that only the amount fixed as the first base salary of each official, without the annual increase authorized each four years shall be the base for the payment of compensation for any emeritus positions created by law.'
"The main question then arises, 'Are the Justices Emeritus of the Supreme Court and the Judges Emeritus of the Court of Appeals entitled to compensation equal to two-third of each of the amounts as above set forth?'"
You will note that the provisions of the law creating the positions of Associate Justices Emeritus of the Supreme Court and the Court of Appeals above Cited provide that each year Associate Justices Emeritus shall receive compensation and allowances equal to two-thirds of the compensations and allowances provided by law for that current year. The compensations and allowances in effect as of this date are the three above enumerated items to-wit: Constitutional Salary, $8,000.00; Contingent Expense Allowance (Appropriation Act 1953), $3,600.00; Contingent Expense Allowance (Georgia Laws 1953, January-February Session, Page 613-14) $2,400.00, making a total of $14,000.00.
It is my opinion that an Associate Justice Emeritus of the Supreme Court and of the Court of Appeals would each be entitled to compensation equal to two-thirds of the total amount of $14,000.00 for the current year.
The statutory provision cited by you and found in Section 1a of the Acts of the January-February Session of 1953, p. 613-14, relates only to the annual increase allowed for years of service for the Justices of the Supreme Court and Court of Appeals, and is a prohibition against the occupant of an emeritus position from receiving the annual increase for services, but has no effect upon the above cited three items to which Justices Emeritus of the Supreme Court and Court of Appeals are entitled to receive two-thirds as annual compensation.

99
COURTS~Compensation of Juvenile Court Judge (Unofficial) A Superior Court Judge in a county under 50,000 may be given additional
compensation .by the county for his service as Juvenile Court Judge.
July 10, 1954
Mrs. Eva L. Sloan You :propound the following question; "The Commissioners of Baldwin County are very anxious to make some kind of remuneration to the Judge of the Ocmulgee Circuit Superior Courts, for his service in acting as Juvenile Judge for our County. The Superior Court Judge devotes a lot of time to this work, and we all feel that he should be compensated for it. "We would like to know if, under Paragraph 3 of Section 4 of the Juvenile Court Act, the County Commissioners of Baldwin County (a county of less than 50,000) would be authorized to fix and pay a salary to the Judge of the Superior Court as Judge of the Juvenile Court." I am pleased to advise that I reach the C()nclusion that under the Juvenile
Court Act (Ga. Laws 1951, p. 291, Sec. 4, Par. 3), the County Commissioners of Baldwin County, in their discretion, would be authorized to fix and pay such compensation as they may deem reasonable and advisable, to the Judge of the Superior Court of Baldwin County for his services as Judge of the Juvenile Court of Baldwin County.
You will note that in said Section 4, the General Assembly specifically provided:
"The Judge of the Superior Court shall sit as the Juvenile Court Judge and hear all cases coming within the provisions of this Chapter, and said hearings shall be conducted in accordance with the provisions set forth in this Chapter. They shall involve no additional expense (except as may be authorized by the board of county commissioners or other authority controlling the fiscal affairs of such county.... The above provisions shall be construed to mean that the judge is presiding over a Juvenile Court of such county, which he shall thereupon establish and conduct as separate and distinct to any other court to which he may have been elected or appointed."
CO URTS-Juvenil~Jurisdiction (Unofficial) Juvenile guilty of violating traffic laws of State by speeding may be tried
in a constitutional city court and, in the absence of such a court, the court of ordinary, police court or municipal court.
July 29, 1955
The Honorable William T. Roberts, Solicitor City Court of Oglethorpe
You inquire whether, in the opinion of the Attorney General, the City Court of Oglethorpe has jurisdiction concerning the trial of a minor of the age of sixteen years, who has been arrested and charged with operating a motor vehicle at a speed of 80 miles an hour in a 50-mile per hour zone in violation of the traffic laws of the State of Georgia, or whether the same must be referred to the Juvenile Division of the Superior Court.

100

I have no hesitancy in stating that in my judgment all constitutional city courts and, in the absence of such court, the coatt of ordinary, police courts ap.d Jr1Unicipal courts, do .have, such jurisdiction,

The City Court of Oglethorpe was created by the General Assembly by an Act passed in 1907 and was given jurisdiction "to try and dispose of all cases and matters of whatever nature, except cases over which exclusive jurisdiction is vested in other courts by the Constitution of Georgia." It is a "Constitutional City Court" within the rule laid down in .Cone v. American S\lrety Co., 154 Ga. 841 at 846, and such courts, if not creatures o:( the Constituti~n, are recognized thereby. See: Art. VI, Section I of the Code of 1945, "Courts Enumerated" (Ga. Code Ann., Sec. 2-3601 and Art. VI, Sec. II, Par. IV (Ga. Code Ann., Sec, 2-3705) "Jurisdiction Of Supreme Court."

The jurisdiction of courts of ordinary, police courts and municipal courts in cases of this character result from affirmative provisions containecj. in and made by the Constitution itself. Section IV, Paragraph II. o:( the Constit.ution of 1945 (Ga. Code Ann., Section 2-4102) provides in part:

". ; . The court ,of ordinary shall have jurisdiction to issue warrants,

try cases, and impose sentences thereon in all misdemeanor cases arising

under the Act known as the Georgia State Highway Patrol Act of 1937,

and other traffic laws, and in all cases arising under the 'compulsory

School Attendance law in all counties of this State in which there is

no city or county court, provided th!l defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of th~ police co.urts of incorporated cities and municipal court- judges for offe~se arising

under the Act known as the Georgia State Itighway Patrol Act of 1937,

and

other

traffic

laws

of

the

Sta.te

within_

their

respective

''

'

j

u.r.is.d.

i

c

t
'

i

o

n

.

"

-

This constitutional provision and the corresponding Code Section (92A-502)

were designe~ to obvillte qelay in disposing of this class of misdemeanor cases in

counties having no county or city court. See, in this connection, the opinion of

Judge Wyatt in the caseof Clarke v. Johnson, 199_-Ga. 163-164.

The only realjon which might be advanced at this time as, to why a city or county court: or, in the absence of any such court, the court of ordinary, police court or municipal court should not take jurisdiction is that under the Juvenile Court Act of 1951 as amended (Ga. L. 1951, p. 291, 1953, p. 87 and 11155, p. 581), the juvenile court has "original" jurisdiction (the_ words "and. exclusive" were stricken by amendment in the Act of 1953) over minors under 17 years of age.
In Jackson v. Balcomb, 210 Ga. 412, Willie Jackson, Jr., a minor, brought his petition for habeas corpus in which he alleged that the trial conviction and judgment of the Baldwin Superior Court were illegal arid void because that court had no jurisdiction over the petitioner and proceeded in violation .of the Juvenile Court Act of 1951 which gives the juvenile court origina-l (and exclusive) jurisdiction over the petitioner.

The material portion of the opinion reads as follows: "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 juirsdiction to the Juvenile courts i-n all cases pertaining to criminal charges against pexsons less. than seventeen years of age, ther~ is nothing .in the act which would have the effect of repealing Coqe 26-30.1, which states thE) age of criminal ;responsibility to be '14 years, or. befor~ that .age i~ such person know the distinction between good a:n,d evil.' .J\lrisdiction tp, try .versuns charged with fel9nies,

101
who are accountable under the law, is fixed by the Constitution to be in the superior courts. Constitution, Art. VI, Sec. IV, Par. I (Code,. Ann., 2-3901).
This court is entirely in sympathy with the beneficent purposes of the Juvenile Court Act of 1951. However, we can only uphold the purposes of the act consistent with our Constitution. Should any of the provisions of the Juvenile Court Act of 1951 have been intended to withdraw the jurisdiction of the superior courts to try an offender, within the age of accountability under the law, for an offense punishable by death oi' life imprisonment, as contended by the petitioner, such provisions would be unconstitutional and could be given no effect. Law v. McCord, 143 Ga. 822 (85 S. E. 1025); Hicks v. State, 146 Ga. 706 (92 S. E. 216); Williams v. Davidson, 147 Ga. 491 (94 S. E. 564); Thomas v. State, 174 Ga. 654 (163 S. E. 734); Mills v. State, 56 Ga. App. 390 (192 S. E. 730).
The petition for habeas corpus showed no valid reason why the detention of the petitioner was illegal, and the trial court properly sustained the demurrer and remanded the petitioner to the respondent." It pccurs to me that the provisions of the Constitution of the State of Georgia which specifically provides for "... courts of ordinary ... and such other courts as have been or may be established by law ... " (Ga. Code Ann., Section 2-3601) and which gives the court of ordinary, police courts of incorporated cities and municipal court judges "... jurisdiction to issue warrants, try cases and impose sentences in misdemeanor cases ... " growing out of the violation of traffic laws of the State (Ga. Code Ann., Section 2-4102) must likewise be upheld. If, therefore, the Juvenile Court Act of 1951, as amended, was intended to withdraw jurisdiction from the city, county ordinaries, police and municipal courts to handle misdemeanor cases agains minors between the ages of fourteen and seventeen years, then and to that extent such provisions would be unconstitutional. See Jackson v. Halcomb, supra, and cases cited therein.
COURTS-Juvenile Sentences (Unofficial) Juvenile courts are without authority to commit minors to prison; may
commit them only to the State Training School or other similar institutions.
April 20, 1955
Honorable W. W. Woolfolk, Judge Fulton County Juvenile Court
I acknowledged receipt of your letter of March 29, 1955, requesting my opinion on the question as to whether or not a juvenile court judge would be legally authorized to commit a juvenile to the prison maintained at Alto, Georgia, by the State Board of Corrections for the detention of younger offenders committed to its care. Under present practice, juvenile court judges only commit juveniles to the State Training Schools maintained by the Department of Welfare.
Various sections of the laws relating to the State Board of Corrections make provision for the classification and segregation of youthful offenders, and also provide for the establishment of special camps or prisons for their care. See Code Ann., Supp., Sections 77-346, 77-347, 77-366, and 77-394. See also Sections 77-369, 77-390, 77-391 (1954 Rev.) and 77-392, relating to classification and to assignment of prisoners generally. We need not plunge into the "Serbonian Bog"

102
of statutory interpretation in an endeavor to determine which, if any, of these sections have been superseded by the others enacted subsequent thereto in point of time. Suffice it to say that in my opinion, any one of these sections would constitute sufficient authorization for the Board of Corrections to establish and maintain separate camps for the detention of youthful offenders. However, in every such case, either because the section expressly so provides, or because of the context in which it appears, it is patently obviol.).s that these sections relate only to juvenile offenders who have been convicted of crime in ordinary criminal proceedings, and not to juveniles handled through juvenile court proceedings which have been held to be "civil" in nature. See Hampton v. Stevenson, 210 Ga. 87 (1); Code Ann., Supp., 24-2418. Therefore, it is clear that the institution established at Alto, Georgia, by the State Board of Corrections for the detention of juveniles is a "prison" in the ordinary sense of the term.
I find no authority in the law for the juvenile courts to commit juveniles to a prison maintained by the State Board of Corrections. Since as stated above, the proceedings in a juvenile court are civil and not criminal, it logically follows that the provisions of the Code Ann., Supp., Section 24-2421 (2), authorizing juvenile courts to commit children to a "public or private institution or agency authorized to care for children ... " do not refer to prisons. See also 24-2416 (Supp.) as amended (Ga. Laws 1955, p. 581), prohibiting the incarceration of juveniles in prisons or jails prior to trial in juvenile court, except in certain specified emergency circumstances. Incarceration in a "prison" is one, if not the most obvious consequence of conviction of crime, although of course another usual consequence, i.e., loss of civil rights in certain felony convictions would not normally flow from action by a juvenile court. However, should it be determined that the commitment of a child to prison by a juvenile court would constitute a "conviction of crime," serious questions of constitutionality would arise, such as the lack of jury trial procedures as required by the Constitution (Art. I, Sec. I, Par. V; Code Ann., 2-105), and the fact that the Superior Courts have exclusive jurisdiction over felonies. (Constitution, Art. VI, Sec. IV, Par. I; Code Ann., 2-3901). In the Hampton case, supra, these questions presented no difficulty, since it was determined that the juvenile court proceedings were not criminal, and consequently, commitment by the court for an act otherwise a felony was not "conviction of a felony" in the constitutional sense.
Moreover, the Act of 1953 (Ga. Laws, 1953, Nov.-Dec. Sess., p. 87; Code Ann., 1954 Rev., 24-2436) provides:
"Whenever any child 15 years of age or older shall be committed by any juvenile court to the Georgia State Training School for Boys, the commitment order in every such case shall have inserted therein the following provision, to-wit:
" 'If, in the discretion of the governing authorities of the Georgia State Training School for Boys, said child should prove to be uncontrollable through ordinary means of discipline or, by reason of his conduct or attitude, said child should be unsuited to benefit from the opportunities at the Georgia State Training School for Boys, said child may be returned to the juvenile court having original jurisdiction to be dealt with in accordance with Section 11 ( 24-2410) of the Juvenile Court Act.'"
B: Section 11 of the Juvenile Court Act, referred to above, and codified unoffi-
cially as 24-2410, was amended in 1955, H. 397, Act No. 358 (Ga. Laws 1955, p. 581) to read as follows:
"'Section 11. Transfer to other courts.-If a child of fifteen years

103
of age or older is charged with a criminal offense, and if the court after full investigation deems it contrary to the best interest of such child or of the public to retain jurisdiction, the court may in its discretion certify such child for proper criminal proceedings to any court which would have trial jurisdiction of such offense if committed by an audit. Nothing contained in this Act shall prevent the indictment or trial or conviction of any person fifteen years of age or older in any superior court having trial jurisdiction of the offense, in accordance with Section 2-3901 of the Constitution of the State Of Georgia of 1945.' " Section 11 obviously anticipates that only the duly constituted criminal courts of this State, as distinguished from juvenile courts, shall have authority to deal with juveniles in a criminal capacity. The Act of 1953 previously referred to ( 24-2436, 1954 Rev.) reenforces this policy by in effect requiring that even where a juvenile 15 years or older has been committed to the State Training School and it becomes apparent that he is not suited to the more limited security facilities there available, the only possible disposition of the matter is for the Training School auhorities to return the juvenile to the juvenile court for transfer by it to a criminal court for criminal prosecution. Following such criminal prosecution, and assuming conviction, the juvenile would be committed to the Board of Corrections for assignment by it in a penal institution, which possibly might be Alto. On the other hand, in those instances where minors between the ages of 16 and 18 are convicted of crime in a regularly constituted criminal court and who in the discretion of the judge are committed to the State Training School rather than to prison, and who thereafter conduct themselves in a manner unsuited to the "opporunities" there available, the Act of 1953, Section 4 (b) (Ga. Laws 1953, Nov.-Dec. Sess., pp. 87, 89; Code Ann., 1954 Rev., 24-2435), authorizes the Director himself to transfer the minor to the Board of Corrections for assignment, without intervention by any court. In my opinion, these sections indicate a strong public policy that only criminal courts commit minors to prison, and that juvenile courts commit only to the State Training School or other similar institutions not having the usual character as a prison. It follows that your question must be answered in the negative.
COURTS-Juveniles-Sentences (Unofficial) Law relating to sentences of juveniles to Georgia State Training School
for Boys quoted.
January 12, 1955
Captain William H. McKinney, USAF Receipt is acknowledged of your letter of January 6, 1955 requesting informa-
tion as to the term of imprisonment of juvenile offenders committed to the State Training School for Boys.
As provided under Chapter 77-6 of the Code, the law provides that the sentence shall be indeterminate. Sections 77-603 and 77~604 read as follows:
"77-603. 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 shall be for more than five years, but shall merely commit said person to the Georgia State Training School for Boys; but

104
no commitment shall exterid beyond the time when the person committed shall have arrived at the age of 21 years."
"77-604. 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 insaid School after he shall have arrived at the age of 21 years/' Section 77-601 authorizes the Board to make provisions for the paroling ,of inmates and my understanding is that in some instances the training school will discharge inmates after only a few months' incarceration. Section 77-610 authorizes the training school to grant conditional discharges after the expiration of a year's detention. In conclusion, it is impossible to say in any given instance just what the period of detention might be since it depends upon many factors, e.g., the nature of the offense, and the disposition and conduct of the prisoner. However, the law does, not make any distinction relative to the term of imprisonment, based upon the particular type of offense for which the prisoner was sentenced.
COURTS-Mayors and Recorders-Jurisdiction (Unofficial), Law ,relative to jurisdiction of police courts in misdemeanor cases quoted.
February 8, 1955
Honorable William T. Darby, Solicitor City Court of Lyons, Toombs County
You inquire whether Recorder's and/or Mayor's Courts have the authority to try persons accused of operating a motor vehicle under the influence of intoxicating liquors or drugs.
While Article VI, Section VI, Paragraph II of the Constitution of the State of Georgia of 1945 (Section 2-4102 of the Georgia Code Annotated) and Section 95A-502, et seq of the Georgia Code Annotated broadens the jurisdiction of the
Courts of Ordinary, Police Courts, and Municipal Courts, it is limited to "* * * counties of this State in which there is no City or County Court * * *."
Wyatt, Justice, delivering the opinion of the Court in Clark v. Johnson, 199 Ga. 163, said in part:
"The question is: Did the constitutional amendment of 1937 confer upon the judges of police courts of incorporated cities and mu:qicipal court judges jurisdiction over the class of misdemeanor 'cases mentioned
* * * in all counties in the State without regard to whether there is a
county or city court in the county?" Judge Wyatt concluded:
"* * *,Evidently the framers of the amendment, recognized the need
of speedily disposing of misdemeanor cases under the Georgia' State Highway Patrol Act and other traffic laws, and recognized the fact that in many counties of the State 'there are no City or County Courts and
* * misdemeanor cases must be disposed of in the Superior Courts. * By

105
conferring upon Courts of Ordinary and judges of police courts of incorporated cities and municipal court judges jurisdiction over this class of misdemeanor cases in counties having no city or county court, the delay in such counties necessitated in disposing of this class of misdemeanor cases could be obviated. We do not believe that the framers of the amendment intended to confer upon either of the courts unlimited jurisdiction." The decision in the case (Clark v. Josnson, supra) then held:
"The recorder's court of the City of Atlanta was without jurisdiction; and therefore the judgment of conviction was void. The trial court committed no error in releasing the prisoner. Judgment affirmed. All the Justices concur."
COURTS-Notary Public-Appointment of (Unofficial) It has been the general practice for a grand jury to recommend by name
a person to be appointed Notary Public and ex-officio Justice of the Peace.
Noveinber 30, 1954
Honorable G. C. Anderson You request that I give you my views relative to the question as to whether
or not a Notary Public and ex-officio Justice of the Peace may be appointed to fill a vacancy by a judge of the superior court Upon the recommendation of the grand jury, when such recommendation does not recommend the name of a person to be appointed, but merely states that a vacancy exists in a named militia district in the county and requesting the judge to appoint a person of his own selection.
Section 24-501 of the 1933 Annotated Code of Georgia provides: "Commissioned notaries public, not to exceed one for each militia
district, may be appointed by the judges of the superior courts in .their respective circuits, upon recommendation of the grand juries of the several counties. They shall be commissioned by the Governor for the term of four years, and shall be ex-officio justices of the peace, and shall be removable on conviction of malpractice in office." This statutory provision is identical with the constitutional provision contained in Paragraph 1, Section 8, Article VI of the 1945 Constitution. The same identical provision was contained in the 1877 Constitution of Georgia. I do not find any decision of our Appellate Court construing that part of this constitution and statutory provision relative to the recommendation of the grand jury. I have reviewed the stenographic report of the proceedings of tl1e Constitutional Convention held in Atlanta in 1877 which gives debates in full on all questions before the Convention, and I did not find any discusison therein on this provision of the Constitution. The records of the Secretary of State disclose that it has been the practice and custom for a great many years, in fact dating back to the beginning of the records, for grand juries to recommend the name of a person for the judge of the superior court to appoint. These records inasfar as I have been able to review did not disclose any appointment being made where the grand jury did not recommend a specified person to fill a vacancy or the installing of a notary public ex-officio justice of the peace in the militia district.

106
In view of the fact of the long existence of the provision in question and there having been no appellate court decision construing same, and no legislative action being taken to change the language thereof by amendment to the Constitution, it would be my personal inclination to believe that the appellate courts would construe the provision in question in keeping with the procedure and custom long established and unchanged.
However, in view of the fact that the provision is subject to two interpreta* tions, there is no way to determine just what the appellate courts would do if the question was properly raised.
COURTS-Notary Public-Change of Name During Term of Office Notary Public appointment continues to be valid throughout term, not-
withstanding change of name by marriage.
August 5, 1954
Honorable Ben W. Fortson, Jr. Secretary of State
You request an opinion as to what procedure should be followed when a notary public changes her name by marriage during her term of office.
Though authorities are lacking in Georgia and not entirely conclusive elsewhere, the great weight of authority is to the effect that, upon her marriage, the wife takes her husband's surname, which then becomes her legal name. "Her maiden surname,' says Corpus Juris Secundum (Vol. 65, page 4, Sec. 3 C), "is absolutely lost and she ceases to be known thereby." See, also, the annotation appearing in 35 A. L. R. 417 and cases cited.
This being the case, I am of the opinion that, although her appointment would continue to be valid throughout the remainder of her term, the record of her appointment should be corrected by amendment duly entered by the Clerk of Court and duly noted by you upon your records. I do not feel, however, that she would have to be sworn in again or that a new certificate should be issued to her.
Though unsupported by judicial opinion, my conclusion in this regard is, I believe, well founded on the principles of statutory construction and logic. The
statute provides that notaries "* * * shall hold their offices for four years, revocable at any time by the judge of the superior court * * * ", and I conclude that
such revocation or the death of the notary only can terminate his authority prior to the end of his (or her) term. He (or she) then needs no further authority and the apparent discrepancy between the names in the original certificate and the married name is explainable as would be the name in a contract entered into prior to her marriage and the name as it later appeared.
You may properly, I think, establish any reasonable procedures in your own office and make any necessary and proper arrangements with the Clerks of the several superior courts to insure the correctness and maintenance of proper and accurate records and avoidance of confusion resulting from the change. I do not think, however, that you would be entitled to or should receive an additional fee of $2~00 to cover your services as would be the case if it were a re-appointment.

107
COURTS-Ordinary-Jurisdietion (Unofficial
Court of Ordinary may constitutionally try and impose fine on citizen in excess of twenty dollars without benefit of jury.
September 22, 1955
Mrs. J. W. Palmer
This will acknowledge receipt of your letter of September 19, 1955, relative to the meaning of Amendments VII and VIII of the Constitution of the United States.
Amendment VII provides:
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law." Amendment VIII provides:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Article VI, Section VI, Paragraph II of the Constitution of the State of Georgia of 1945 provides:
The courts of ordinary shall have such powers in relation to roads, bridges, ferries, public buildings, paupers, county officers, county funds, county taxes and other county matters as may he conferred on them by law.
"The court of ordinary shall have jurisdiction to issue warrants, try eases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, and in all cases arising under the Compulsory School Attendance law 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 of incorporated cities and municipal court judges for offense arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State within their respective jurisdiction."
Article VI, Section XVI, Paragraph I of the Constitution of the State of Georgia of 1945 provides:
"The right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate, but the General Assembly may prescribe any number, not less than five, to constitute a trial, or traverse jury, except in the superior court." Code Section 92A-502 (1933 Annotated Code of Georgia) provides:
"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."
The provisions of Amendment VII relate to trial by jury in civil cases in any court of the United States. Amendment VIII relates to excess bail and fines. The quoted provisions of the State Constitution relate to the powers of the court of ordinary and the right to trial by jury.

108
From the above, it is possible for the court of ordinary to fine a citizen more than twenty dollars without a trial by jury.
COURTS-Ordinary-Powers of Ordinary in Traffic Cases (Unofficial) Discusses trial of traffic cases in the Court of Ordinary and appeals
therefrom.
November 17, 1954
Honorable Earle McDaniels I am pleased to acknowledge your request for my views on the following
questions: "1st: An officer brings the defendant charged with a traffic viola-
tion to the Ordinary. He, the defendant, waives a jury trial and demands a hearing by the Ordinary. The Ordinary finds the defendant guilty. Is there an appeal from the verdict of the Ordinary?
"2nd: If the defendant as charged in question No. 1 makes bond to the Court of Ordinary and appears on date set for trial, waives jury trial, is there an appeal of the Ordinary's verdict?
"3rd: If the defendant in either the 1st or 2nd questions demands a preliminary hearing, does the Ordinary have the right to grant such a hearing?
"4th: Does the Ordinary have the right at the request of the defendant to bind him to the Grand Jury without a preliminary hearing?
Relative to Question No. 1, your attention is called to Section 92A-510 of the 1933 Annotated Code of Georgia (Cumulative Pocket Part), which provides for an appeal from the Court of Ordinary where a defendant is found guilty under the Acts of 1937-38, Ex. Sess., p. 588, conferring jurisdiction upon the courts of ordinary in the trial of offenses relating to traffic on public roads.
Relative to Question No. 2, this is controlled by the provisions of Section 92A-510 of the 1933 Annotated Code (Cumulative Pocket Part), and the defendant would be entitled to appeal to the Superior Court from the conviction.
Relative to Question No. 3, your attention is called to Section 92A-504, which provides that if a defendant shall wish a trial by jury, he shall notify the court, and if reasonable cause exists he shall be immediately bound over to the court in such county having jurisdiction to try the offense, wherein a jury may be empaneled.
Relative to Question No. 4, the Ordinary has only the authority vested in the Court of Ordinary under the Acts of 1937-38, Ex. Ses., p. 588, in the trial of offenses relating to traffic on public roads, and there is no provision in this Act authorizing any binding over, except the above cited statutory provision which authorizes a binding over to the court enumerated therein only in the event that the defendant shall demand a trial by jury.

109
COURTS-Ordinary-Traffic Cases (Unofficial) Ordinary can issue warrants in traffic cases in all counties where there
is no city or county court.
October 19, 1954
Mr. Roy Chapman I have received your letter in which you asked if it is lawful for an Ordinary
to issue warrants in cases arising under Georgia Laws 1937-38 Extra Session, p. 559, Section 2.
The above Section, which is the same as found in Georgia Code Annotated Supplement 92A-502, is as follows:
"The Court of Ordinary shall have jurisdiction to issue warrants, try cases, and hold sentence thereon in all misdemeanor cases arising under this title and other traffic laws of this 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." It would seem apparent that if there is no city or county court in your county then the Ordinary would have authority to issue warrants for the violation of traffic laws of the State of Georgia. Furthermore, except in those instances wherein the arrested person is authorized to post a cash bond, the occasion does not arise for issuing a warrant where the defendant has already plead guilty and paid a fine in the Superior Court. In such instances, the defendant must have been indicted by the grand jury or else a warrant was issued by some other authorized officer.

COURTS-Power to Examine County Boolis (Unofficial)
Judge of the Superior Court does not have authority to order the audit of a county official's books.
March 29, 1954
Judge M. Price You asked my unofficial opmwn as to whether a Superior Court Judge has
the authority to order the audit of a county official's books and to appoint such an auditor.
I have searched the Code of Georgia and I find no specific provision authorizing a Superior Court Judge to order an audit of a county official's books and to appoint such an auditor. The nearest approach that I have found is in Code Sec. 59-312, which holds that a Grand Jury may appoint any one or more citizens of a county to inspect and examine the books of the various county officials and if any such official refuses to produce his records and books "it shall be the duty of the Judge of the Superior Court of the county, upon evidence being adduced, to enforce the provisions ... by mandamus or attachment as the case may be."
Likewise, Code Sec. 23-1301 states that the Ordinary or Commissioner of Roads and Revenue are authorized to employ an expert auditor to examine and report on the books of any county officer.

........_

110
So that, from the above, it will appear that the duty of auditing the books of the county officials except for the action of the Grand Ju1y in appointing someone to so act is the job of the Ordinary or the Commissioner of Roads and Revenue.
COURTS-Removal of Constables from Office (Unofficial) Justice of the Peace is not authorized to request the resignation of a
constable.
November 26, 1954
Honorable Asa Stallworth Justice of the Peace
You request that we advise you as to whether or not you would be authorized to request the resignation of a duly elected constable of your district.
Section 24-801 of the Code provides that there shall be two constables in each militia district of the several counties elected by the people of each district who shall hold office for four years, unless sooner removed.
Section 24-802 of the Code provides that constables are subject to be removed from office upon the same grounds and on the same proceedings as clerks of the superior court, and on conviction of malpractice in office as justices of the peace.
Constables being elected by the people of their district for a term of four years can only be removed as provided in the above cited statutory provision.
Section 24-2724 of the Code provides that clerks of the superior court are subject to be removed from office by the judge of said court, for any sufficient reason or cause, including incapacity or misbehavior in office, charges for which must be exhibited to the court in writing, and the facts tried by a jury, such clerk being entitled to a copy of the charges three days before trial.
Justices of the Peace are removed under the same conditions as set forth in the section of the Code above cited relating to clerks. In this connection your attention is called to the case of Lancaster v. Hill, 136 Ga. 405, in which the Supreme Court of Georgia held in construing the above statutory provision relating to removal:
"It is official misbehavior which the statute specifies as a ground for removal from office, and not individual misconduct wholly apart from the discharge of official duty. Hawkins v. State, 54 Ga. 653. It is not alleged that the constable was acting in an official capacity when he was drunk, or that as a result of such drunkenness he was guilty of any wrongful official act or omission to act. The allegation of the conviction of the defendant in the recorder's court on the charge of drunkenness and disorderly conduct, without connecting such offenses with the defendant's office, is not good as an allegation of public misbehavior."
There is no statutory authority vested in you as justice of the peace to request the resignation of the duly elected constable.

111
COURTS-Sentences (Unofficial)
Sentence imposed including both fine and imprisonment, but with proviso that imprisonment was suspended upon payment of fine works as an unconditional discharge of defendant upon his payment of fine.
September 19, 1955
Judge W. W. Armistead
I have received your recent letter in which you stated that in sentencing a defendant that you sentenced him to pay a fine of $250.00 and then added to the sentence the following words: "and the defendant is sentenced to 12 months at the Public Works Camp; provided, however, upon payment of the fine and not otherwise, it is ordered that the sentence to the Public Works Camp be suspended." You further state that it was your intention by the sentence to have placed the defendant on probation, upon payment of the fine, with the right to revoke the sentence, upon subsequent misconduct by the defendant, and that you have subsequently revoked his probation, and that you now desire my opinion concerning the legality of your action.
Code Section 27-2706 states that in all criminal cases in which a defendant shall be found guilty or in which a plea of guilty shall be entered, and the trial court judge shall suspend such sentence, the effect of that action would be the same as placing such defendant on probation.
Prior to the above Code Section, it was frequently the practice in this State for trial judges to suspend sentences, but the construction of said Code Section is that all suspended sentences shall now have the effect of placing the defendant on probation, except that a suspended sentence may still be given in cases arising under a conviction for abandonment or bastardy.
Assuming, therefore, that the sentence you imposed upon the defendant in the situation under discussion has the effect of placing the defendant on probation, the question arises, do you have the authority to revoke such a purported probationary sentence.
I believe that your case is fully covered by two cases decided by the Supreme Court, one of which is Cross v. Huff, 208 Ga. 392, in which the Court held that where no rules or regulations are prescribed in the alleged suspended or probated sentence, that the Court is without authority to order the defendant incarcerated upon the theory that he has violated the terms and conditions of a probation sentence. The Court reasons further that the defendant could not in such a sentence violate the conditions of his probation since no conditions were imposed. The Court states that to deprive the defendant of liberty upon the theory that he has violated rules and regulations prescribed in the sentence, when no rules, regulations, conditions, limitations, or instructions were imposed by such sentence, would deprive the defendant of "due process of law." The defendant was not put on notice of what was expected or demanded of him and the judge would not have the authority to revoke the suspension or probation.
In the case of Morgan v. Foster, 208 Ga. 630, the defendant in that case was sentenced to serve 12 months on the Public Works Camp and pay a fine of $200.00, "sentence suspended on payment of fine until further order of the Court." This case likewise held that where no rules or regulations were prescribed in the alleged suspended or probation sentence for the conduct of the defendant, upon the payment of the fine, he must be given an unconditional discharge as the sentence is not a suspended or probation sentence.
In view of the above cases, it is my opinion, that the sentence which you gave

112
was not a probation or suspended sentence, and that upon the payment of the fine imposed that the defendant must be given an unconditional discharge, and that you have no right in your alleged probation or suspended sentence to order him to be incarcerated, for no probation or suspension was legally imposed in the sentence, in that you did not prescribe in the alleged sentence any rules or regulations for his conduct.

COURTS-Service of Process on a Non-Resident Corporation (Unofficial) A non-resident corporation who maintains an agent for the service of
process in the state may not be served under the provisions of the NonResident Motorist Act (Georgia Code Ann. 68-808).

November 30, 1954

Mr. Theo D. Fenster

Reference is made to your letter relative to the service of process in an action by a foreign corporation against a resident of Georgia.

You inquire whether, under certain circumstances, the Secretary of State can accept service under Section 68-803 of the Georgia Code Annotated (Acts of 1947, page 305).

The statute referred to above is amendatory to a statute passed by the Gen-
eral Assembly in 1937 (Acts of 1937, pages 732, 734) "to provide that the accept-
ance by non-residents of the rights and privileges conferred by the laws of this
state * * * permitting the operation of motor vehicles upon the highways of this state * * * shall be deemed equivalent to the appointment * * * of the Secretary of State * * * attorney in fact upon whom may be served all summons and other lawful processes in any action or proceeding * * * growing out of any accident or collision * * *."

I would assume, but it is not so stated in your letter, that the "transitory tort" referred to grows out of an automobile accident.

The plaintiff, according to your letter, is a resident of this State. The defend-
ant is a Delaware Corporation "qualified to do business in this State but not
domesticated and maintaining an agent for service * * *" in a certain county.

Section 22-1507 of the Georgia Code Annotated deals with foreign corpora-
tions "not domesticated under the laws of this State" which shall "do any act in
the State while doing business herein which may subject it to liability to any
person * * *." This section provides that where such corporation "does not main"
tain a place of business and an agent in this State upon whom service may be
perfected, (it) shall be deemed to have consented that any summons * * *". (Em-
phasis added.)

It may well be that the defendant is not a "non-resident motorist" within the

meaning of Section 68-803 but rather "a foreign corporation" not domesticated

"but doing business within the State" as that language is used in Section 22-1507.

It appears, from your letter that it does "maintain an agent for service" in the

State. If, as I have suggested, service upon the defendant under these circum-

stances must be perfected under Section 22-1507 rather than Section 68-803,

service upon the Secretary of State would obviously not be sufficient~ That is a

question that you will have to determine to your own satisfaction. <



The Secretary of State will receive and transmit to the defendant named a

113
copy of any petition that you desire to have served upon him but he can not and will not agree that this constitutes good service upon or binds the defendant in any way. That is a matter for the courts to determine.
COURTS-Sheriffs-Compensation (Unofficial) A sheriff is entitled to a fee where a cash bond is forfeited, only where
the court enters a judgment ordering the case disposed of and settled.
May 12, 1954
Mr. Steve M. Hall I have received your recent letter in which you asked my opinion whether a
sheriff is entitled to a $3.00 fee for services in a criminal case where a cash bond is forfeited in open court.
It is my opinion that until the Act of the General Assembly in Ga. Laws 1953, pp. 331-333, that the taking and forfeiture of cash bonds was not authorized by law in this State.. However, pursuant to that Act it is now legal for the sheriff to accept cash appearance bonds under conditions set out therein. It appears to me that the answer to your problem is contained in Section 4 of the Act.
If a cash bond has been accepted by the sheriff as authorized by an order of the judge of the court, and if such bond is then forfeited as set out in Sec. 4 of said Act and the Court enters a judgment ordering the case disposed of and settled and the proceeds applied and distributed as any fine would be, then in that event, it is my opinion that the sheriff would be entitled to a $3.00 fee for services in a criminal case.
However, if the judge shall not enter a judgment ordering the case disposed of and settled, then I do not believe that the sheriff would be entitled to the $3.00 fee as the matter would be only a forfeiture of the bond.
Under Code Sec. 24-2823, it is stated that sheriff is entitled to a $3.00 fee for services in every criminal case before a judge or a judge and jury. Therefore, if the bond is forfeited and the judgment entered as stated, ordering the case disposed of and settled, then it would be a criminal case, and the fee as authorized under said Code Sec. 24-2823 would be applicable and authorized. However, if the case is not ordered disposed of and settled, then the bond is only being forfeited and thus the fee would not be authorized as for services in a criminal case before a judge.
COURTS-Sheriffs--Compensation (Unofficial) (a) A sheriff is entitled to a tmnkey fee and a discharge fee only when
a person is actually placed in a cell, and later released therefrom. (b) A sheriff is not entitled to an arresting fee where apprehension is
made by a Game Warden.
June 15, 1956
Honorable R. C. Whitman Receipt is acknowledged of your letter requesting my opinion on three ques-
tions relating to sheriffs' fees. The first two questions may be considered together, and restated, they are:

114
Whether or not a sheriff is entitled to a turnkey fee, and a fee for discharging a prisoner, where the accused appears at the county jail, makes bond, and is never placed in a cell.
The Code, 24-2823 (Supp.), provides, inter alia, that the sheriff shall receive the following fees:
"For turning key on receiving prisoners in county jaiL______________$1.00 For discharging prisoners__________________________________________________________________$1.00"
This plain language would seem to require the holding that the sheriff is only entitled to these fees where the accused is actually placed in a cell and later released therefrom. Particularly is this so since this same section also provides a separate fee for executing and returning a bench warrant, and another fee for apprehenping a suspected person. Separate fees are also provided under Code, 92A-512, for arrests made under the motor vehicle public safety laws.
It is uniformly held that a sheriff's compensation is dependent entirely upon statute, which will be strictly construed. Anderson on Sheriffs, Vol. 2, 706, p. 673, et sq.; see also McAlpin v. Chatham County, 26 Ga. App. 695.
Our law does not contemplate that every person arrested shall necessarily be placed in jail, for the purpose of an arrest is to carry the party arrested before a magistrate (Ocean Steamship Co. v. Williams, 69 Ga, 251 [9a] ), although of course, the prisoner may be imprisoned before committment where the exigencies of the particular case require it. King v. State, 6 Ga. App. 332 (2); Moses v. State, 6 Ga. App. 251, 253. The Code, 27-418, provides that where the accused tenders bail which is accepted, no committment hearing is necessary, which also indicates that imprisonment is not anticipated except where necessary. See also Hopkins v. State, 6 Ga. App. 700, and Code, 27-801.
On the basis of the foregoing, I therefore conclude that the answer to your first and second questions must be in the negative.
Your third question asked whether or not the sheriff is entitled to an arresting fee where a person is apprehended by the Game Warden for violating the Game and Fish Laws, and where such Game Warden issues a warrant and turns the same over to the sheriff who confines or places the offender under bond upon his appearance at the jail.
I have previously ruled that a sheriff is not entitled to an arresting fee where an arrest is made by the State Patrol for violation of the motor vehicle public safety laws. See Opinions of the Attorney General, 1948-49, p. 393. A like holding was made with respect to arrests made by the county police. Opinions of the Attorney General, 1945-47, p. 96.
Query as to whether the first opinion referred to above is correct, in view of the Act of the General Assembly of 1943, p. 571 (Code Ann., Supp. 92-512) which specifically provides that the sheriff will be entitled to arresting fee in all cases in which he takes custody of a person apprehended by the State Patrol.
The comprehensive act revising the Game and Fish laws (Ga. Laws 1955, p. 483) makes no similar provision for arrests made by wildlife rangers (or Game Wardens as you refer to them) but merely authorizes wildlife rangers to execute warrants and make arrests. See Code Ann., 45-118 (Supp.).
The comprehensive act revising the laws relating to forestry (Ga. Laws 1955, p. 309) provides that persons arrested by forestry investigators shaii be delivered to the custody of the sheriff. See Code Ann., 43-219 Supp.
In the case of Bradford v. Stoutamire (Fla.) 38 S. 2d., 684, it was held that a Florida sheriff was not entitled to arresting fee where the accused had been arrested by a highway patrolman and turned over to the custody of the sheriff.

115
In this case, the Florida statute provided that all persons arrested by highway patrolmen would be turned over to the sheriff.
These holdings seem sound, since unquestionably the arrest was made in each case by someone other than the sheriff. See, definition of arrest, Code 27-201. Where the prisoner is turned over to the sheriff, the latter's assumption of custody, whatever else it may be, is not an arrest. Perhaps it might be considered proper that the Legislature provide for fees to the sheriff in such cases, but under existing law, I am constrained to hold that he is not so entitled where the arrest is made by another person.
COURTS-Sheriffs-Compensation (Unofficial)
Sheriff is entitled to ,arresting fee when accused is arrested by state patrolman and delivered to sheriff who accepts bond without confining the accused.
July 26, 1955
Mr. W. W. Walker !have received your letter in which you ask if the sheriff is entitled to a fee
where the arrest has been made by a county policeman or state patrolman and when the accused is delivered to the sheriff and the sheriff accepts bond without confining the accused.
In view of this fact, it is necessary that I advise you that any opinion expressed herein is entirely unofficial, and, as such, is not binding upon any person.
In Ga. Laws 1955, page 386, the last regular session of the General Assembly enumerated various fees of sheriffs, one of which is as follows: "Apprehending a person suspected, if committed or held to baiL_______"--$6.00."
From the above quoted statute, it seems apparent to me that it is not necessary for the sheriff to actually confine an accused before he is entitled to the arrest fee. If he places the person under bond or bail he is just as legally entitled to the arrest fee as if he had actually confined him to the common jail of the county. However, this does not entirely answer your question in that you are presenting the situation where the arrest has not been made by the sheriff.
In Ga. Laws 1943, pages 571-572 it is held as follows: "The sheriffs of the several counties of this State be, and the same are hereby declared to be entitled to an arresting fee, as now provided by law, in all cases in which the sheriff or his lawful deputy arrests, assists in arresting or takes custody of any person charged with a crime who has been apprehended by the State Patrol and delivered to the sheriff or his lawful deputy."
Prior to the enactment of this statute in 1943, the sheriffs of the State were not entitled to a fee for an arrest when the arrest was made by a State Patrolman. Since that time a sheriff is entitled to an arresting fee when an arrest has been made by a State Patrolman and the sheriff takes custody of the arrested person.
With regard to an arrest made by county policemen, I regret that I do not find specific cases on the point. However, I wish to call to your attention 1945-47 Opinions of The Attorney General, pages 96-97. In that opinion the question was asked whether a sheriff is entitled to a fee for an arrest where the arrest has been made by a county fJOliceman and the sheriff does not participate in any way. The opinion quoted Code Section 89-702 which provides: "Any public officer who shall take fees not held by law, or for services not performed, shall on conviction or

116
proof thereof, be dismissed from' office." Then the opinion stated as follows: "This section (referring to Code Section 89-702) seems to answer the question in th~ negative."
Therefore, in view of the above authorities and statutes, it is my opinion that a sheriff is entitled to an arresting fee of $6;00 when he takes, custody of a person arrested by the State Patrotand holds him to bail, -even though he, does not confine him, b;Ut that thp sheriff is probably not entitled to such fee when the 'arrest has been made by a county policeman.

COURTS-Sheriffs-Compensation (Unofficial) Sheriff is entitled to same fees in traffic cases as, in criminal cases.

March ,24, 1955

The Hon. {~ A. Hill, Sheriff

You inquire what fees you, as sheriff, are entitled to charge in traffic cases.

I presume that you refer to cases heard before the Ordinary underthe authority of Section 92A-501, et seq., Georgia Code A~notated (See 1951' Cumulative Supple-

ment to Vol. 27). Section 92A-512 provides in part that "The Sheriffs of the
several counties of the state are * * * entitled to an arresting fee, as now provided by law, in all cases in which the sheriff * ':' * arrests, assists in arresting or

*." ta:kes custody of any person charged with crime who has been attested -by the

State Patrol and delivered to the sheriff * *

Furthermore, Section 92A~507

* provides that"* * theusual fees shall be assessed * * *Y .

The "usual fees" referied to in Section 92A-507 are set out in detail in Sec-

tion 24-2823 (Vol. 9, page 225) of the Georgia Code Annotated. I believe that your

County Attorney will advise you that under the proVisions of the Code referred to

above you are entitled to charge these fees as provided by law in all criminal

cases, including traffic cases btought before the Ordinary of Pulaski County under

and in accordance with the provisions of Section 92A-501, et seq.: of the :Georgia

'Code Annotated. Of course, you will be guided by the facts and circumstances in

each individual cas~ i'n determining what fees you are entitled to therein.

COURTS-Sheriffs-Removal from Office (Un?fficial) (a) A sheriff may be removed from office for misconduct. (b) A sheriff may also be removed upon conviction of a felony inv~lving
moral turpitude, and quo. w~rranto is a prope~ method of raising this disqualification.
October 13, 1954
Honorable C. Winton Adams With regard to the problem of removing a sheriff who has been convicted of
violating the Federal Revenue Act; . . . the Constitution, Section 2-7901, pror vides that all county officers (of which the sheriff is one) may be removed upon conviction for malpractice in office. .State ex rei Lennard v. Frazier, 48 Ga. 137, holds t:Pat the C.onstitutional method of removal of pu];llic officers is not exch)sive.
.Secti9n 24-.28-14 pro:vides that a sheriff may be removed for.failure,to perform his duties in the manner as provided for clerks in Section 24-2724.

! ,
117

Sec::tio.n 24~2724 provides as follows:

r1i

"They are subject to be removed from office by the judge of the said

court, for any sufficient cause, including incapacity or misbehavior in

office, charges for which must be exhibited to the court in writing, and

th.e. fa,cts triep by a jury, suc::h clerk being entitled to. a copY:. of the chalg~s,,

three days before tri.al."

The Constitution, Article I!, Section II, Paragraph I (CodeAnn,, Sec. 2-801)

and the Code (Sec. 89~101 Par. 3) declare that a person convicted. of felony

involving moral turpitude is ineligible to hold public office. It has been held that

quo warranto is a proper method of raising this disqualification. See Code, Sec-

tion 64-201; Hulgan v. Thornton, 205 Ga. 753. Of course, you would first have to determine whether or not the offen~e
referred to is a felony involving moral turpitud~, under the Federal law. Under the ruling in the Hulgan case, supra, construing Sec. 89~101, a conviction: in any

court other than a GeorgiaState Court; must be a felony involving moral turpitude

under the laws of the jurisdiction where convicted, and also under the laws Of

this State, in order to disqualify to hold office. Since I am not positive 'what Fed-
.eral statute you have reference to, I will let you determine this question as to the

Federal law.

Under Georgia law, Code' Sec. 26-4102, bribery is a felony. While I find no

case on the question as to whether "bribery" involves 'nloralturpitude, under the

definition of the latter as found in Hughes v. State Board, 162 Ga. 246, 255, I am

inclined to think that :it does.

'

Therefore, I conclude that you should first determine whether :or not the

conviction has resulted in loss of the sheriff's civil rights; if so, you n1ay ptocecll

by quo warranto; if not, you could then ascertain whether the sheriff's acts con-

stitutemish.el?.iivio:r; under Se~tion 24-27~4, and proceed as provided in that section,

assuming it is determined that said acts do constitute misbehavior, etc.

In any event, misconduc,t sufficient. as .grounds for removal under this section

would nqt constitute grounds for quo warranto, unless such .mis,conduct had

resulted in conviction and consequ~nt loss ;of civil ;rights. See McDonough v.

Bacon, 143 Ga..283.

COURTS-r-Sheritfs and Cle~ks--'-comJ?ensation (Unofficial)
Sheriff and clerk entitled to costs and fees in civil cases brought in the superior and city courts, even though justice of the peace cqurt has concurrent jurisdiction.
June 23, 1955
Honorable Lebbeus Dekle This will acknowledge rec::eipt of. your.letter,of June 21, 1955. in.which you
request additional information as to the, sheriffs' and clerks' (!osts in 'civil cases. In .my letter of June 21, 1955 to you, the Code Section~ r~lative to costs and
fees were enumerated. There ~as one error in citing the arp.endme:nt to Code Sections 24-2823, which relates tosheriffs' fee~. as the. latest amendment. to that Section is found in 1955 Georgia Laws, p;tge 383, instead of page 42L
I am of the opinion that the sheriffs' and clerks' costs and fees in ciyil cases brought in the superior and city courts would not, be changed by the fact that the justice of the peace court would have concurrent jurisdiction. The basis for this opinion is that the plaintiff may elect to bring his action in any court that has

118
jurisdiction, and having brought his action in the superior or city court, the sheriff and clerk would be entitled to receive the fees and eosts provided by law.

COURTS-Solicitors General-Compensation-Insolvent Costs (Unofficial)
Legal right to be paid from fines and forfeiture fund becomes vested in solicitor upon the performance of his duties in insolvent criminal cases, although it may not bepaid until much later.

June 13; 1955

Honorable Hope D. Stark

Solicitor-General Piedmont Circuit This will acknowledge receipt of your letter of May 14, 1955, in which an
opinion was requested relative to certain questions dealing with your right to receive insolvent costs.
The first question posed is as follows: 1. Are insolvent costs earned before May 1, 1955, but actually paid after that

date, paid to you or to the County? This .question is l'aised by virtue of the fact that the Solicitor General of the
Piedmont Circuit was placed on a salary basis in lieu of the fee basis effective May 1, 1955. Georgia Laws 1955, page 2821.

Prior to May 1, 1955 the Solicitor General of the Piedmont Circuit was. compensated for his services on a regular scheduled fee basis. Section 24-2904, Georgia Code Annotated.

Section 27-2905, Georgia Code Annotated, provides as follows:

"Any officer having a claim against said fund for insolvent costs, or in cases where defendants have been acquitted, if the same accrued in the superior court (or a magistrate's court prior to indictment), shall present to the judge of the superior court an itemized bill of costs 'claimed; and if the same shall be approved by him, he shall order the same entered on the minutes of the court, and the same shall be a warrant on the county treasurer, to be paid by him out of any fines and forfeitures in the treasury received from the superior court."

The Solicitor General being an officer of the Court has a lien on funds arising from fines and forfeitures for payment of insolvent costs. Section 27-2910, Geor-

gia Code Annotated.

Costs for services by officers of the Court in insolvent criminal cases have been held to be debts against the public, for which payment is provided out of fines and forfeitures collected in their respective counties. Duer v. Thweatt, 39 Ga. 578.
The term "costs" as applied to proceedings in a court of justice, has, in the acceptation of the profession and by the practice of all courts in Georgia, a wellunderstood meaning. It includes all charges fixed by statute as compensation for services rendered by officers of the Court in the progress of the cause. Davis v. State, 33 Ga. 531; Markham v. Ross, 73 Ga. 105, 3 Ga. App. 791.

The above rules establish the legal right of the Solicitor General to be

compensated for certain services and the manner in which the said compensation

~~~

.

The next question in the solution of this problem is to determine when the right to be compensated from the insolvent fund vests in the solicitor general.

119
The statute, Section 24-2904, Georgia Code Annotated, establishes the _primary legal right to be compensated for services rendered by the solicitor general. By complying with the provisions of the statute, i.e., performing the duties, the primary legal right becomes vested in the solicitor general. See Section 27-2911, Georgia Code Annotated. Thus, the legal right to be paid from the fines and forfeitures fund for services rendered becomes vested when the service is performed although it may not be paid until a much later date. I, therefore, am of the opinion that you are entitled to be paid from the fines and forfeitures fund of the counties in which you serve for lawful services rendered in insolvent criminal cases prior to May 1, 1955. As previously stated, you have a lien upon the funds arising from fines and forfeitures for your insolvent costs. I find no prohibition against your prorating the insolvent costs after each term of the courts until all insolvent costs earned prior to May 1, 1955 are paid.
The second question raised in your letter is as follows: 2. "Am I entitled to the costs in the old indictments drawn before May 1, 1955, for preparing the indictments and presenting same to the grand jury and for drawing the bench warrant. The costs in all criminal cases for drawing the indictment is $5.00 and fifty cents for drawing the bench warrant. Do I get the $5.50 in the old indictments drawn before May 1, 1955, when they are disposed of?" This question is controlled by the rules previously discussed. The legal right to be compensated becomes vested when the terms of the statute establishing the fees are met. When the indictments are drawn and presented and the bench warrants drawn, the right to be paid according to the statute becomes established and you are entitled to be paid even though the cases are disposed of after May 1, 1955.
COURTS-Unpaid Insolvent Costs Court officials have seven years, from February 27, 1949, in which they
may institute proceeding for claims for unpaid insolvent cost accrued prior to February 27, 1949 (approval date of act providing for Statute of Limitations as to unpaid insolvent costs) before they are barred from making such claims.
February 15, 1954
Honorable Herman E. Talmadge Governor of Georgia
I have received your recent letter in which you desire my opinion concerning a question propounded to you from the Honorable John J. Flynt, Jr., Solicitor General, Griffin Judicial Circuit.
The question which is asked is as follows: "Under the provisions of Code Section 27-2916 establishing a seven-
year bar of limitations, does this section give all court officials until February 25, 1956, to file their claims for unpaid insolvent costs, regardless of the year in which they accrued?" It seems to me that this question is answered in Georgia Laws 1949, pp. 1168, 1170, which is hereinafter quoted, to-wit:
"There is hereby created and declared a period of limitation of seven years after the approval of this law (27-2915 to 27-2927) after which all claims against the fine and forfeiture fund of the several counties of the State of Georgia, or against any officer holding or possessing or con-

trolling said fine and forfeiture fund, or .any part thereof, on account of fees and costs earned prior to the approval of this law (27-2915 to 27-2927) by any present or prior officer of court, shall be barred unless proper legal proceedings have been instituted within said period to enforce payment to such claimant (or assign!>) of such claim out of the fine or forfeiture fund. Said period of limitation may be extended as hereinafter set out."
It is my interpretation of the above quoted law, which is the same as Code Section 27-2915, that court offiCials have until February 25, 1956, to file their claims for unpaid insolvent costs, regardless of the year in which they accrued, but that they will be barred thereafter, except that the court costs which have accrued since February 25, 1949, have a seven-year period of limitations, and likewise with reference to all court costs hereafter.
So that the answer to the question presented by Mr. Flynt is that court officials have until seven years from the date of the approval of the Act in Georgia Laws 1949, pp. 1168-1174, to file claims for fees arid costs accrued prior to February 25, 1949, but that after such seven-year period all costs so accrued prior to February 25, l949, for which no proper legal proceedings have been instituted, will be forever barred.
CRIMINAL LAW-Arrests (Unofficial) Authority of arresting officer to make arrests in any county quoted.
May 19, 1955
Honorable Steve M. Hall I am pleased to acknowledge your letter relative to the authority of constables
in making arrests.
Your attention is called to the provisions of Section 27-209 of the 1933 Annotated Code of Georgia, which provides as follows:
"27-209. Officer may make arrest in any county. Duty to carry prisoner to county in which offense committed.-An arresting officer may arrest any person charged with crime, under a warrant issued by a judicial officer, in any county, without regard to the residence of said arresting officer; and it is his duty to carry the accused, with the warrant under which he was arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of that county.
"The county where the alleged offense is committed shall pay the expenses of the arresting 'officer in carrying the prisoner to that county; and the officer may hold or imprison the defendant long enough to enable him to get ready to carry the prisoner off."
In connection with this statute, you may desire to consider the cases of Harris Co. v. Brady, 115 Ga. 767 (3) and Burroughs v. SouthernRailway Co., et al, 139 Ga. 733.

121
CRIMINAL LAW:-Assault upon Police Officer (Unofficial) ., Assault and battery on a police officer carries the same punishment as though it was committed upon a private citizen.
November 1, 19S4
Mr. Leory E. Wike This is to acknowledge your inquiry as to what the grade of the offense is in
Georgia for assault and battery upon a police officer. Assault and battery on a police officer gives the same punishment as though
it was committed on a private citizen. Assault and battery in Georgia is a misdemeanor and punishable at not more than twelve months in.the public work camps and six months in the common county jail and a fine of $1000. Punishment may be fixed at any term less than above quoted in the sound discretion of the trial judge. [Editor's Note: Punishment for a misdemeanor changed by Ga. Laws, 1956, p. 161, 168; Code 27-2506.]
CRIMINAL LAWS-Bail (Unofficial) No person may give bail more than twice before trial for the same offense.
July 30, 1954
Honorable Douglas F. Thomas You ask whether an accused is entitled to bail after having once fled and
breached a prior bond. Our research indicates that the answer depends upon whether bail is a matter
of right or within the discretion of the Court. Georgia Code Annotated, Section 29-901 leaves the question of bail in capital
offenses within the discretion of the judge of the superior court. In all criminal cases less than capital felonies the accused, after indictment and trial, is entitled tobail as a matter of right and not as a matter of discretion. Newsome v. Scott, 151 Ga. 639.
In a syllabus opinion in Collins v. State, 32 Ga. App. 450, it is stated that where one indicted for a bailable offense has been arrested and has given bond for his appearance at the next term of the court, and fails to appear at that term, his bond can be forfeited and he can be rearrested on a new warrant, but he is not allowed to give bond more than twice for the same offense. Reid v. Perkerson, 207 Ga. 27, 29 also holds that the accused, in criminal cases less than capital felonies, before trial, is entitled to bail at least twice. See Georgia Code Annotated, Section 27-903.
8 C. J. S., 36 (d), page 77, provides as follows: "Where bail is a matter of right and prior absconding and forfeiture
is not excepted from such right bail must be allowed irrespective of such circumstance.
"In cases where bail in discretionary one who once flees while under . bail should not be forever barred from being admitted to bail on another and different accusation. Nevertheless, it has been held that public policy forbids that one who has so absconded be. again admitted to bail in the same caus.e or one that is an outgrowth thereof ..." See 29 A. L. R. 2d 945-948.
On the basis of the above authority, it is my opinion that no person may give bail more, than twice before trial for the same offense. The breach of a prior bond

122
by a person accused of a crime less than a capital felony would hot deprive such accused of his right to bail. Where the person is accused of a capital crime, bail is within the discretion of the Court and breach of a prior bond would be a reasonable ground for refusing bail.

CRIMINAL LAW-Blue Laws (Unofficial)
(a) A drug store may be kept open on Sunday for the sale of drugs, medicine, or foods.
(b) A city ordinance regulating businesses open on Sunday is invalid.

September 28, 1954

Dr. W. E. Smith

You asked me to send you a copy of the Sunday Blue Law and also whether

the Mayor and Council of Pembroke can close your drug store on Sunday.

Code Sec. 26-6905 provides as follows:

"Any person who shall pursue his business or the work of his ordinary calling on the Lord's day, works of necessity or cha~ity only

excepted, shall be guilty of a misdemeanor."

The Supreme Court has handed down a number of decisions interpreting the

above Code Section, and has, for example, held that in the light of modern methods

of travel by automobile, the sale of gasoline on the Sabbath is a work of necessity.

On the other hand, it is held that the selling of meat by a butcher on Sunday is not

a work of necessity or charity.

.

It would seem to me t}lat the proper ruling regarding a drug store would be that in so long as the drug store was kept open solely for the sale of drugs and medicine, or for such restaurant or lunch room that might be connected there-

with, that there would be no reason for closing the drug store. However, this interpretation would prohibit the sale of other articles in the drug store which were not items of necessity.
It is furthe~ my opinion that it is possible that any ordinance passed by the Council of Pembroke would be invalid since the subject would already have been covered and made a State Law.

CRIMINAL LAW-Blue Laws (Unofficial)
It is a violation of law for any person to operate his business on Sunday, except those places which are regarded as places of necessity or charity.

October 28, 1954

Mr. B. H. Phillips

You asked if it is legal for a merchant to keep his store open on Sunday.

Code Section 26-905 provides as follows:

"Any person who shall pursue his business or the work of his ordi-

nary calling on the Lord's day, works of necessity or charity only ex-

cepted, shall be guilty ofa misdemeanor."

.

From the above Code Section, I think that you can readily see that <it is a

violation of law for any person to operate his store or Business on Sunday except

123
for those places which are regarded as works of necessity or charity. The courts have held that automobile service stations, for example, are places of necessity. Further, there is a special statute allowing Sunday movies in certain cities and counties.
CRIMINAL LAW.....,-Blue Laws (Unofficial) It is unlawful to pursue one's business or work of his ordinary calling
on Sunday, works of necessity or charity excepted.
October 6, 1955
Mr. Ralph I. King This is in reply to your letter of October 4th, the first paragraph reading as
follows: "Is it against the Georgia laws to operate a grocery store on Sun-
day? A yes or no answer would be appreciated by me." In reply to your letter I call your attention to Code Section 26-6905, Annotated Code of Georgia of 1933, 1953 revision which reads as follows:
"Any person who shall pursue his business or the work of his ordinary calling on the Lord's day, works of necessity or charity only excepted, shall be guilty of a misdemeanor." Barber shaving club members in club room on Sunday for hire violates this section. 2 Ga. App. 389 (1). Evidence that defendant sold certain articles on Sunday in his storehouse, and that he conducted in same storehouse, during week, business wherein he sold like articles, sustained conviction. 15 Ga. App. 210 (1). Butcher selling meat on Sunday merely because customers choose, as matter of convenience or preference, not to purchase it on previous day, not a work of necessity or charity. 115 Ga. 572 (1). Persons working on benches in church on Sunday, if such work was that of their ordinary calling, and not a work of charity or necessity were indictable under this section. 98 Ga. 423.
CRIMINAL LAW-Criminal Identification (Unolficial) Discusses functions of Georgia Bureau of Investigation.
November 24, 1954
Mr. Fred Douglas You request information concerning the laws relative to the Georgia Agency
dealing with Criminal Identification. I regret that we do not have copies of laws for distribution relating to our
Department of Public Safety, These laws are all found in the Georgia Annotated Code, Title 92A, found in the Pocket Parts Supplement to Title 93 of the Georgia Annotated Code.
The Georgia Department of Public Safety comprises, broadly speaking, two major divisions: The Uniform Division, referred to as the Georgia State (Highway) Patrol, and the Divisi()n of Criminal Identification, Detection, Prevention and Investigation, referred to as the Georgia Bureau of Investigation. The State

Patrol has subordinate divisions which issue and revoke driver's licenses, and the

G. B. I.has.two subdiviSions, namely, the Fingerprint Department, and the Crime

Laboratory.

The laws relating to the Department of Public Safety as a whole are rather

long, but we have only several sections relating to the Bureau of Investigation,

which are probably the only ones of interest to you.

These Sections which constitute Georgia Code Annotated, Chapter 92A-3, are

as follows:

"92A-301. The Director of the Depirtment of Public Safety, with

the approval of the Department of Public Safety, is authorized to estab-

lish a Bureau of Investigation, within the appropriation made herein,

which Bureau may be maintained in cooperation with that of any like

department now maintained by any municipality in this State.

"92A-302. It shall be the duty of such Bureau to take, receive and

forward fingerprints, photographs, descriptions and measurements of per-

sons, in cooperation with the bureaus and departments of other states

and of the United States; to exchange information relating to crime

and criminals; to keep permanent files and records of such information

procured or received; to provide for the scientific investigation of articles

used in committing crimes, or articles, fingerprints or bloodstains found

at the scenes of crimes; to provide for the testing and identification of

weapons and projectiles fired therefron1. In the event such Bureau is

maintained iii cooperation with a municipality or any other division of

this State, the services and records of the same shall at /all times be

accessible arid available to the' Department of Public Safety and any divi-

sion thereof. The members of the Bureau shall have and are hereby

vested with, in addition to the duties herein provided, the same authority,

powers and duties as are possessed by the members of the Uniform Divi-

sion under the provisions of this Title.

"92A-303. It shall be the further duty of the Director of Public

Safety, with the approval of the Department of Public Safety, within the

appropriation allowed by law, to provide for the receipt and transmission

of crime news; of information as to lost or stolen .property, or lost or

kidnapped persons, by radio, teletype or other modern system, and such

information shall be relayed to the Uniform Division of ihe Department

of Public Safety.

"92A-304. The Director of the Department of Public Safety may

provide one or more lecturers, who may be a member of the Uniform

Division of the Department of Public Safety, and may furnish such person

or persons with the proper literature and equipment, and may cause lec-

tures and demonstrations relating to public safety to be given in the

public schools of this State in cooperation with the school authorities.

"92A-305. No person shall be eligible for appointment by the Director

of the Department of Public Safety as an agent for the Bureau of Investi-

gation of the Department of Public Safety until he shall have served for

a minimum period of 12 months in the Uniform Division of the Depart-

ment of Public Safety or a minimmh of three years as a law enforcement

officer.



"92A-306. The Director of the Department of. Public Safety, and

the Department of Public Safety are hereby prohibited from appointing

or approving any applicant as. an agent for the Bureau of Investigation. unless he shall have met the requirements set out in section 92A-305.1'

125
CRIMINAL LAW-Degrees of Crimes (Unofficial) Crimes in Georgia not divided into degrees.
February 23, 1!155
Honorable John Brettmann This is to acknowledge receipt of your letter of February 17, 1955. The first
paragraph of your letter is as follows: "Under our present California law regarding those crimes divided into
degrees (principally murder, robbery and burglary) it is impossible for a defendant to plead guilty, to a specific degree of such offense. Instead he pleads guilty, say, to burglary and thereafter the court takes evidence to fix the degree, or the evidence regarding degree is agreed upon by stipulation."
The third paragraph of your letter reads as follows: "Would you be so kind as to advise whether your statutes or practice permit a defendant to enter a plea to a specific degree of any. crime divided into degrees? Any reference to an authorizing code,section or appellate court decision would be much appreciated." In answer to the first question that is set out in the first paragraph of your letter, crimes in Georgia are not divided into degrees; however, Code Section 26-501, Annotated Code of Georgia of 1933, does provide for principals in firs-t and second degrees, and Code Section 26-502 provides .the same punishment for principals in first and second degrees, and read as follows:
"26-501. Principals in first and second degrees.-A person may be principal in offense in two degrees. A principal in the first degree is the actor or absolute perpetrator of the crime. .A principal in the second degree is he who is present, aiding and abetting the act to be done; which presence need not always b,e an actual, immediate standing by, within sight or hearing of the act; but there may be also a constructive presence, as when one commits a robbery, or murder, or other crime, .and another keeps watch or guard at some convenient distance."
"26-502. Punishment of principal in the second degree.-A principal in the second degree, except where it is otherwise provided, shall receive the same punishment that is provided for the principal in the first degree." In compliance with your request, I am referring you to Book 10, Annotated Code of Georgia of 1933, Title 26. If I may be of further service to you in this matter, please do not hesitate to call upon me.
CRIMINAL LAW-Escape (Unofficial) Four year sentence authorized for conviction of offense of "escape" in
1944.
May 11, 1955
Mr. C. H. Robinson I acknowledge receipt of your letter of May 10, 1955, requesting information
Mncerning your conviction in Chatham Superior Court in 1945 for the offense of "escape." You state that you have noticed newspaper report of the recent act of the General Assembly and desire to know whether or not the crime of escape was a felony in 1944 at the time of your conviction.

126
According to the records of the. State Board of Corrections, you were convicted of having escaped from the Chatham Public Works Camp. A public works camp is a penitentiary under the jurisdiction and supervision of the State Board of Corrections. The Code, Section 26-4509, at the time of your escape, provided as follows:
"Any person confined in the penitentiary who shall escape therefrom, and shall be thereafter retaken, shall be indicted for an escape, and, on conviction, shall be punished by imprisonment and labor in the penitentiary for not less than three months nor more than four years; and any person who shall aid or assist a prisoner confined in the penitentiary to escape, or in an attempt to escape therefrom, shall receive the like punishment." Therefore, it should be obvious that the court was fully authorized to convict you and impose the four year sentence. I might add that the principal purpose of the recent act of the General Assembly was to re:define escapes from jails and other places of detention where the offender was being held for violation of municipal ordinances.
CRIMINAL LAW-Extradition (Unofficial) Georgia will not release a prisoner, already under conviction in this
state, to another state to stand trial on a murder charge.
October 7, 1954
Honorable Chester C. Chattin I am pleased to acknowledge your recent request as to whether Georgia may
legally release "A" from the Georgia penitentiary to be turned over to Tennessee authorities to stand trial there upon a charge of murder.
Georgia Code Annotated, Section 44-303, provides: "If any person demanded as a' fugitive from justice shall be, at the
time of such demand, under prosecution for an offense against the laws of this State, the Governor shall suspend his delivery until the issue shall be determined as to his guilt, and, if conde1p.ned, until he shall have suffered the penalty of the law imposed." If this section is still in effect, no amount of construction may be indulged in to vary its unambiguous terms, which beyond question would prohibit surrender of a prisoner already under conviction. It might be said that the act of the General Assembly of 1951 (Ga. Laws 1951 (Ga. Laws 1951, p. 726), referred to as the "Uniform Criminal Extradition Act", and codified as Chapter 44-4, Ga. Code Aim. Supp., has, by virtue of its comprehensive treatment of the subject, superseded all previous Georgia extradition laws under the principle enunciated by Leonard v. State ex rei Lanier, 204 Ga. 465 (2). In this respect, the act manifestly covers the subject matter, although a California Court, construing its version of the Uniform Act, held that it did not cover the subject of extradition as set forth in the Federal Constitution and 18 U. S. C. A. 3182, in that .the Uniform Act only applied in situations which the federal law did not cover, i.e., where the accused, present. in one state, commits acts which result in the commission of crime in another state. See Ex Parte Morgan (1948), 194 P. 2d 800 Cal. App. 2d 217. A summary inspection of the Georgia version indicates that its terms are not

127
so limited, but irrespective of whe-ther the Georgia Uniform Act has superseded Section 44-303, Section 19 (Code Ann. Supp., Section 44-419) of the new act provides as follows:
"If a criminal prosecution has been instituted against such person under the laws of this State and is still pending, the Governor in his discretion, either may surrender him on demand of the executive authority of another State or hold him until he has been tried and discharged or convicted and punished in this State." The words "still pending," as used in the above section have been construed to mean before the accused has been tried, convicted and punished. Ex Parte Bell, 75 N. E. 2d 186. Therefore, even assuming Section 44-303 has been repealed, Section 44-419 appears to require the same result. Section 44-406 apparently anticipates that an asylum state may relinquish custody of a prisoner serving time, but the section is so phrased that these provisions could not be applied to Georgia. Therefore, I must regretfully conclude that the prisoner may not be released and turned over to Tennessee authorities prior to completion of his sentence, or release on parole.
CRIMINAL LAW-Expenses of Agents under the Uniform Extradition Act (Unofficial) Expense accounts of agents appointed under the Uniform Extradition Act must be certified by the agent, rather than the county which "advanced" money to him. (Editor's Note: See Ops. Atty. Gen. 1952-53, page 971;)
December__7, _1954
Honorable Marvin L. Newberry Reference is made to your letter regarding payment .of expenses of agents
appointed by the Governor to return fugitives under the provisipns of the Uniform Extradition Act (Ga. Laws 1951, pp. 734, 735).
As I told you by telephone today, the Governor may appoint one or more "agents" as he deems necessary and proper, but only agents so appointed may be compensated for travel expenses, including mileage, hotel room and meals.
Mileage may be allowed at not exceeding eight cents per mile for the actual travel performed by automobile in course of duty on the assignment referred to. Actually mileage is allowed on the basis of six cents per mile. Travel may be performed by bus, train or plane if desirable.
While receipts are not required, expense accounts should be itemized and sworn to or verified by the agent. When public carriers are employed, tax exemption forms must be used. Such travel is tax exempt and if tax is paid it will not be refunded.
I am of the opinion that these expense accounts must be rendered and swore to or certified as true and correct by the "agent'; who was appointed by the Governor and who performed the travel pursuant to such appointment, rather than by the County which "advanced" money to him. I am further of the opinion that they should be directed to the Governor.

12a
CRIMINAL LAW-False Representation-Driver's License (Unofficial) Law against false representation broad enough to cover instance in which
unlicensed driver of a motor vehicle displays driver's license of another and represents to himself as that person to that person's injury.
June 17, 1955
Honorable Frank U. Garrard, Jr. You inquire whether the wording of the statute against falsely representing
or personating another is broad enough to cover an instance in which the unlicensed driver of a motor vehicle displays the license of and represents himself tQ be another.
Section 38-9901 of the Georgia Code Annotated, stripped of inapplicable provisions, reads as follows:
"Any person who shall falsely represent or personate another and
in such assumed character * * * do any other act * * * in any other way,
manner, or thing, whereby the person so personated or represented * * *
might suffer damage, loss or injury, shall be punished by confinement and labor in the penitentiary for not less than one year nor more than five years." It would appear to me that the section was extremely broad and all inclusive
and that, provided only that "* * * the person so personated or represented * * * might suffer damage, loss or injury * * *" it would apply whether the true identity
of the impersonator was discovered before, during or after arraignment, trial and conviction on the other charges.
CRIMINAL LAW-Fire Conflict between Code Section 26-2215 and Code Section 26-3603 discussed.
March 18, 1954
Honorable Guyton DeLoach, Director State Forestry Comni:ission
You request my opinion as to any possible conflict in the various criminal laws relating to fire provisions.
Code Annotated Supplement, Section 26-2215 (Ga. Laws 1949, pp. 1118, 1122), reads as follows:
"Whoever, with intent to injure another, causes a fire to be kindled on his own or another's land, whereby the property of any other person is injured or destroyed, shall be guilty of a misdemeanor and punished as prescribed by law." Code Annotated Supplement, Section 26-3603 (Ga. Laws 1943, p. 302), reads as follows:
"Any person who wilfully and maliciously sets fire to woods, lands, or marshes, shall be guilty of a felony and so punished. Upon conviction, such person shall be punishable by confinement in the penitentiary for not less than one nor more than two years." The first section quoted says
".. with intent to injure another ... ", while the last quoted section declares
". . . wilfully and maliciously . . . "

129

There are so m:any legal definitions of these words that any attempt to

review them here would plunge us into a Serbonian bog, but common sense would

dictate that the words "wilfully and maliciously" as used in Section 26-3603, carry-

ing as it does felony punishment, would imply more than a mere "intentional"

burning. A person who sets a back fire to prevent the further spread of a larger

fire could certainly be said to have the "intention" to set that fire. While "wilfully"

is usually held synonymous with intention (Words and Phrases, Vol. 45, p. 209),

the statute adds "and maliciously/' which could only mean that the act must not

only be done intentionally, but that it must be done without justification-simply

because the actor desired to injure someone or because he was merely seeking

excitement.

Section 26-2215, in using the phrase "with intent to injure another" would

seem to bear no different connotation from the words "wilfully and maliciously,"

for if a person has the specific intent to injure another, this would indicate that

the act was not done either negligently or for any justifiable purpose.

I thus conclude that this difference in language between the two sections

is immaterial.

Another difference in the two sections is that while Section 26-2215 declares

"... on his own or another's land ... ,"

Section 26-3603 merely states,

"... sets fire to woods, lands, or 'marshes

"

This much is obvious: It is not the intent of Section 26-3603 to punish one

for setting fire to his own land, although done wilfully and even without any

reason, which, if done as to third persons, would constitute the "maliciousness"

required by that section. Section 26-3603, at most, could be construed as covering

instances where (1) a person intentionally sets fire to his own property intending

that it spread to the property of another, or (2) a person sets fire to another's

property without justification.

Thus construed, the only possible difference in this respect between the two

sections is that while Section 26-2215 by express language covers situations where

one sets fire either to his own or another's land, with the intent to injure another,

Section 26-3603 does not so expressly declare, but may by reasonable construction

be so interpreted.

Another difference in the two sections is that Section 26-2215 refers to "land,"

while 26-3603 refers to "woods, lands or marshes." It would appear that the word

"land" would embrace the words "woods or marshes."

It might be said, in keeping with the ejusdem generis rule of statutory con-

struction, that since in Section 26-3603, the word "land," of general connotation,

being found in a series of more particular or limited teams, i.e., "woods, marshes,"

might be construed as referring only to other types of uncultivated and uninhab-

ited lands.

On inspection of the criminal code, however, it is seen that other specific

provisions are made by law for the burning of dwellings and other structures

(Chap. 26-22). This would therefore only leave plowed or cultivated lands, and

I cannot bring myself to the conclusion that the General Assembly has undertaken

such nice refinements.

The only remaining distinction between the two sections is that 26-2215

declares

"... whereby the property of any other person is injured or

destroyed ... ,"

while 26-3603, by its language, punishes the mere setting of the fire, without

regard to the showing of any injury.

.130
To say that the setting of a fire which results in damage is only a misdemeanor, while the setting of a fire which does not result in damage is a felony, is to impute asinity to the General Assembly. If this be so, to paraphrase Judge Lumpkin in the Biggs case (29 Ga. 723), the title of the Act (26-3603) should be amended. It should be "An Act to encourage good incendiarism."
I, therefore, conclude that these two sections are in conflict, and that Section 26-2215 has, by necessary implication, repealed Section 26-3603, the former being the latest expression of the General Assembly.
CRIMINAL LAW-Firearms (Unofficial) It is not a violation of the law to carry a pistol in an automobile.
October 15, 1954
Mr. Leonard R. Meadows I have received your letter in which you asked if it is a violation of law for
one to have a pistol in the pocket of his automobile. It is my opinion that it is not a violation of the laws of the State of Georgia
for one to have a pistol in the pocket of his automobile. The law states that one cannot carry a concealed weapon on his person or in his manual possession, nor can he carry one without a license.
Obviously, a pistol in the pocket of an automobile is not in one's manual possession. However, it may be a violation of city ordinances to carry a pistol in one's automobile, but I do not have before me any ordinance to that effect which may be active. [Editor's Note: See also 28 Ga. App. 67.]
CRIMINAL..LAW-Fraudulent Misrepresentation (Unofficial) To stop payment on a check given in payment of bond or fine in speeding
violation constitutes a misdemeanor on which a warrant could issue.
January 21, 1955
Miss A. T. Bentley Receipt is acknowledged of your unsigned letter of January 17, 1955, in
which you ask: "(1) Is it unlawful to stop payment on a check issued by a non-resi-
dent of your state to an official of your state or a county or township therein for an alleged speeding violation when said check has been issued not in the name of said county or. township, but in the name of the official and no receipt for same was issued by said official?
"(2) Can a warrant for arrest be issued for said non-resident of your state for stopping payment on check when another check has been issued in the name of the county where alleged violation is said to have taken place?" From the contents of your letter it is assumed that while traveling through Georgia you were arrested for speeding and either put up a bond or paid a fine by check to the arresting officer, who did not give you a receipt. The purpose of a receipt is to furnish the person paying out money with legal evidence of payment; In your case the cancelled check would be such evidence.

131
While I strongly advocate that officials receiving public funds should give a receipt therefor, I would hot go so' far as to say that a receipt should be given for a check on an out of state bank. It is possible that the officer declined to issue a receipt in anticipation that you would do exactly what you are inquiring about, that is, stop payment on the check, and then a receipt would be outstanding for funds not received. I am inclined to the view that the officer showed you a courtesy beyond the requirement of duty when he accepted the check.
As to stopping payment on the check, the same law would apply as to stopping payment on arty other check given for 'a valuable consideiation. The laws of Georgia provide that any person who fraudulently obtains a thing of value by false statements about his wealth, honesty and responsibility is guilty of a misdemeanor. To obtain release from an arresting officer by payment of a fine or giving bond by check represented to be good, would be obtaining a thing of ,value fraudulently if payment was subsequently stopped on the check.
In regard to your second question, you are advised that a warrant could issue if you stopped payment on the check given for a traffic violation; however, if a second check had been issued and paid by the bank to the proper county official for the same violation, I do not believe that such warrant would be taken out.
CRIMINAL LAW-Gaming, Gambling and Lotteries (Unofficial) Georgia has no legalized horse ,races, dog races, bingo games or other
such events where wagers are made or money otherwise hazarded on the outcome of the events.
February 17, 1955
Mr. C. J. Thornton, Secretary Reference is made to your recent letter regarding the legality of horse racing,
dog racing, bingo and other "games of chance" in this State. Please be advised that under the Georgia law "Any person who shall play and
bet for money or other thing of value, at any game played with cards, dice, or balls; or shall play and bet for money or other thing of value, at any table of whatever name, kind, or description, for gaming ... shall be guilty of a misdemeanor." (Georgia Code Annotated, Section 26-6404).
Further, "Any person who shall * * * maintain a gaming house or room, or shall * * * permit persons, with his knowledge, to come together arid play for
money or any other valuable thing at any game or device for the hazarding of money or other thing of value, shall be guilty of a misdemeanor." (Georgia Code Annotated.)
In a case dealing specifically with horse racing, the Supreme Court held: "It (betting on a horse race) may not be gambling, butit is gaming;
and if so, a person who maintains a place where such betting is carried on as a business is keeping a.gaming house. The gaming or betting goes on therein although the race itself may be conducted elsewhere." (Thrower v. State, 117 Ga. 753.) The same has been held by the Supreme Court with regard to dog races. (Gullatt v. Georgia ex rei Collins, 169 Ga. 538.) It follows, therefore, that we do not have legalized horse races, dog races, bingo games or other such events where wagers are made or money otherwise hazarded on the outcome of the events.

132
CRIMINAL LAW-Gaming, Gambling and Lotteries (Unofficial) Law:s relating to offenses of gaming, gambling and lotteries quoted.
January 12, 1955
Tlre Reverend Law M. Mobley, Pastor Reference is made to your letter of January 4, 1955 regarding "bingo" as
"gaming" or "gambling."
The Georgia Code Annotated, Section 26-64 covering gaming houses provides in part that:
'.'Any person who shall * * * in any house, place, room, occupied by him, permit persons with his knowledge, to come together and play for money or any other valuable thing at any game or device for the hazarding of money or other thing of value, shall be guilty of a misdemeanor. (Cobb 815, Acts 1865-6, p. 233; 1884, p. 59.)"
Section 26-6404 covering gambling provides in part that: "Any person who shall play and bet for money or other thing of value
at any game played with cards, dice, or balls or shall play and bet for money or other thing of value at any table of whatever name, kind or description for gaming* * *shall be guilty of a misdemeanor. (Cobb 819, 820, Acts 1859, p. 59; 1865~6, p. 233.)"
Section 26-6501 condemns and penalizes the sale, etc., of:
"* * * Any ticket, number, combination, or chance or anything repre-
senting a chance, in any lottery, gift enterprise, or other similar scheme or device, * * *". In Barker v. State, 56 Ga. App. 705, 707, Macintyre, J., said in part:
"Generally speaking, and under the oldest enacted statute with reference to lotteries, which appears in Code Sec. 26-6502 there must be in a lottery a union of these elements-consideration, chance, and prize***."
In Brua's Appeal, 55 Pa. 298, cited and quoted with approval in Anderson v: State, 2 Ga. App. 1, at p. 24; Allen v. Sams, 31 Ga. App. 405, at 414, and other decisions of the Appellate Courts of this State it has been said that:
"Anything which induces men to risk their money or property, without any other hope for return than to get for nothing any given amount from another, is gambling, and demoralizing to the community no matter by what name it may be called."
"Bank night" conducted by a theatre (56 Ga. App. 705 and 54 Ga. App. 738); "gift enterprises" whereby a merchant gives chances with purchases at regular prices to stimulate business (129 Ga. 154, 161 and 112 Ga. 23); "punch boards" (28 Ga. App. 497 and 35 Ga. App. 226, at 230); "slot machines" (97 Ga. 343, 33 Ga. App. 57, 173 Ga. 86, and many other cases); "suit clubs" (121 Ga. 593); "numbers games" (51 Ga. App. 40, 52 Ga. App. 382 and many other cases); "boledo" (57 Ga. App. 838); "bolita" (84 Ga. App. 199) and "pool" where played under
agreement by players that the loser would pay for the use of the table (122 Ga.
583) have been held to be prohibited by one or another of the statutes aimed at gambling. '

133

CRIMINAL LAW-Habeas Corpus (Unofficial)
(a) It is not mandatory that counsel be .appointed for a habeas corpus proceeding.
(b) Res judicata applies as to habeas corpus cases.

September 20, 1956

Mr. William Rossmore

Receipt is acknowledged of your letter requesting information concerning

the right of a prisoner in Georgia to appointment of counsel in obtaining a hearing

on a writ of habeas corpus.



1. Ga. Constitution, Art. I, Sec. I, Par. V (Code 2-105) provides:

"Every person charged with an offense against the laws of this State shall have the privilege and benefit of coimsel; ... "

Under this section where the defendant is indigent, the court will appoint

counsel to represent him without charge. Martin v, State, 51 Ga. 567 (1874);

Delk v.. State, 99 Ga. 667, 26 S. E. 762 (1896). This right has never been limited

to capital cases. Martin v. State, supra (larceny); 57 Ga. App. 344, 195 S. E. 316

(1918) (unlawful sale of whiskey). However, the Georgia courts have always

considered each case on its individual merits (as has the United States Supreme

Court in non-capital cases), and the mere fact that counsel was not appointed

in a case does not invalidate his conviction where the circumstances show that

no miscarriage of justice resulted. Clarke v. Cobb, 195 Ga. 633, (2), 24 S. E. 2d

782 (1943).

<

No cases are available as to constitutional right of counsel on appeal from conviction, but by im Act of the General Assembly (Ga. Laws 1953, Nov.cDec. Sess., p. 748) provision was made whereby appointed attorneys could receive compensation for prosecuting an appeal to the State Supreme Court.

With respect to appointment of counsel in habeas corpus cases, in the case of Hurt v. Balkcom, 210 Ga. 577, 82 S. E. 2d 3 (1954), the prisoner had brought a petition for habeas corpus against the warden of the State Prison in Reidsville. The trial judge refused to appoint counsel for him during the trial on the ground that he had no authority to appoint counsel in a habeas corpus case, which under our law is considered a civil matter. That this point was raised in the trial court does not appear in the Georgia Supreme Court's decision just cited. After exhausing the State remedies including an application to the United States Supreme Cot!rt for certiorari, which was denied, the petitioner then brought habeas corpus in the Federal District Court in the Southern District of Georgia, alleging that the refusal of the trial judge in the state habeas corpus proceeding to appoint counsel therein was a denial of due process. The trial judge rejected this contention and the Fifth Circuit affirmed. Hurt v. Balkcom, 224 F2d 21. The Supreme Court denied certiorari. 350 U. S. 368, 76 S. Ct. 113.

With regard to any general practice, I know of no such practice existing whereby trial courts appoint counsel in habeas corpus cases. However, in marked contrast to the technical rules of pleading prevailing in other civil litigation, the Georgia law on pleading in habeas corpus cases is probably the most liberal of any state in the Union. Many cases hold that if the prisoner is produced in court pursuant to the writ, all defects in the pleading are thereby waived and that the court should proceed to determine the legality of the detention.

Under this liberal procedure many prisoners file their own petitions and I know of no cases in which the Law Department has ever filed objection to the pleadings, but we have always proceeded to defend the petition on the merits.

134
2. Georgia laws have long required that an accused have benefit of counsel in fact as well as in name. In Jones v. State, 57 Ga. App. 344,195 S. E. 316 (1938), a misdemeanor conviction for unlawful sale of whiskey was reversed because the counsel appointed to represent the accused was a law student who had not been admitted to the bar. The rule in Georgia is stated in Jones v. Balkcom, 210 Ga. 262, 265, 79 S. E. 2d 1 (1953):
"However, if counsel for the defendant in a criminal case of the character of which the present defendant stands convicted, whether appointed by the court or of the defendant's selection, was so negligent or unfaithful in the trial of the case that the defendant was virtually unrepresented, or if the defendant did not in any real or substantial sense have the aid of counsel, this amounts' to deprivation of a fundamental constitutional right, and the defendant under such circumstances may complain that he has been denied due process of law. Williams v. State, 192 Ga. 247 (15 S. E. 2d 319); Aldredge v. Williams, 188 Ga. 607 (4 S. E. 2d 469). Such denial constitutes valid ground for issuance of the writ of habeas corpus."
Since passage of the recent Act providing for payment of compensation to appointed counsel out of public funds, our information is that better representation has resulted.
3. In Georgia, habeas corpus is not a criminal case (see Simmons v. Ga. Iron & Coal Co., 117 Ga. 305, 43 S. E. 780, which is one of the leading cases in this country on habeas corpus), and it is only in felony criminal cases (the conviction itself) that the law requires the proceedings to be reported at public expense, in which case the transcript is available to all parties concerned. In misdemeanor cases, the trial judge can order the proceedings reported at public expense. In civil cases, the parties themselves have to pay for reporting, but Georgia law does not require that the transcript of a trial be made by the court reporter, and it is very common for prisoners at the state prison to bring their own petitions pro se, and merely set out a narrative of the evidence in the bill of exceptions.
4. Res judicata applies in Georgia as to habeas corpus cases. Andrews v. Aderhold, 201 Ga. 132, 39 S .E. 2d 61 (1946), and we have not had too much trouble with repeated applications, since the trial judge is not even required to set a second hearing on the matter. Ga. Code Ann., 50-105, prescribing a $2,500.00 penalty against any judge who wrongfully refuses to grant a hearing, has generally resulted in a hearing being held on every petition filed-at least on the first petition.
CRIMINAL LAW-Habeas Corpus (Unofficial) Habeas Corpus lies in behalf of an accused who has been denied the
benefit of counsel.
July 26, 1954
Mr. Arliss Arvinger Your letter requesting information concerning habeas corpus in behalf of a
prisoner denied benefit of counsel is acknowledged. In Georgia, habeas corpus lies in behalf of an accused who has been denied
the benefit of counsel. Jones v. Balkcom, 210 Ga. 262, 79 S. E. 2d 1. Not only the Georgia Constitution guarantees the right, but the due process clause of the 14th

135

Amendment to the Federol Constitution also is applicable. This was established in the very famous case of Powell v. Alabama, 287 U. S. 45.
In Georgia, habeas corpus may be brought in the name of the prisoner, or in the .name of anyone else in his behalf, having any interest in the accused (Ga. Code, 50-10), which interest need only be such as arises from humanity alone. Broomhead v. Chisolm, 47 Ga. 390 (6). The Georgia Code, .Section 50-102, sets out in detail the things which the petition must allege, and Section 50-103 declares that the suit must be brought in the county where the detention exists (independently of where the defendant, i.e., the person restraining the defendant, resides. McBurnett v. Warren, 208 Ga. 225, 66 S. E. 2d 49.)
In Bradford v. Mills, 208 Ga. 198, 66 S. E. 2d 58, the third headnote reads as follows:

"The allegations of the present habeas corpus petition, to the effect that the defendant entered a plea of guilty to the indictment 'without the advice of counsel,' are insufficient to charge that he was denied the privilege and benefit of counsel as provided by paragraph 5, article 1, section 1 of the Constitution of this State (Code, Ann., 2-105), since the petition fails to allege that he was unable to employ counsel, or that he desired or made any request for counsel, or that the court declined to appoint counsel to represent him. Catlin v. State, 17 Ga. App. 406 (87 S. E. 151); Sarah v. State, 28 Ga. 576 (2); Elam v. Rowland, 194 Ga. 58 (20 S. E. 2d, 572)."

For other matters relating to the writ of habeas corpus, see Ga. Code Ann.,

Chapter 50-1.

I assume you are familiar with the fact that the Georgia Constitution and

Laws have no application to a prisoner convicted in Federal Court of a federal

offense. In this case, the Sixth Amendment to the Constitution of the United

States is applicable as against the Federal Government and requires that this

right be afforded. See Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461. (Habeas

corpus proper.)



CRIMINAL LAW'-Habeas Corpus
Where a writ of habeas corpus is filed, the State Board of Corrections is not authorized to return a prisoner to the county of conviction.
April 17, 1956
Honorable Jack M. Forrester Director, State Board of Corrections
Receipt is acknowledged of your letter requesting my opinion as to whether or not you would be legally authorized to return to the county of conviction, certain prisoners now held by you under death sentence, where execution of such sentence has been stayed by habeas corpus proceedings.
In the Comprehensive Act revising the laws, relating to the Board of Corrections (Ga. Laws 1956, pp. 161, 172) it is provided in Section 13 (e) as follows:
"(e) It shall be the responsibility of the government unit, subdivision or agency having the physical custody of a prisoner to maintain such prisoner, furnishing food, clothing, and. any needed medical and hospital attention therefor, defending any habeas corpus or other proceedings instituted by or on behalf of such prisoner, and bearing all expenses relative to any escape and recapture, including the expenses of extradition."

136

Also, the Georgia Code, 50-113, provides that if a prisoner istransferre.d

pending a writ of habeas corpus so as' to avoid the latter, the party making the

return may be imprisoned, in the discretion of the judge hearing the case. The

venue in habeas corpus proceedings is in the county where the alleged illegal de-

tention exists. McBurnett v. Warren, 208 Ga. 225.

Under the above authorities you would not be authorized to return a prisoner

to the county of conviction where execution of the sentence was stayed by a habeas

corpus proceeding.

If, on the other hand, the sentence was stayed by the order of the judge, on

the rule nisi to an extraordinary motion for new trial, you still are presented with

the situation where you have custody of the prisoner under a sentence directing

that the prisoner be taken into custody by the State Prison, and until and unless

the court issues a subsequent order, the custody of the prisoner is still your re-

sponsibility. Of course, under Section 13'(c) of the 1956 Act, you are not author-

ized to assume custOdy of a prisoner until all motions have been disposed of so that

conviction has become final, and if the time for filing an ordinary motion for a new

trial has not expired, a reasonable interpretation of 13 (c) would require the

holding that the prisoner's custody should not be assumed by you until such time

as the conviction had, in the words of the statute, become final.

In habeas corpus cases, I see no alternative to providing that the prison retain

custody, but in cases involving extraordinary motions for new trial, it would be

both appropriate, I believe, and feasible to amend the Act of 1956 so as to provide

that upon the filing of such a motion, an issuance of rule nisi thereon, it would

thereby become the responsibility of the county of conviction to provide for the

picking up and return of the prisoner to the county jail pending final determina~

tion of the extraordinary motion, since such a motion can only be brought in the

county and court of conviction.



I :would also like to make another suggestion at this juncture. In the past

several years, petitions for habeas corpus have been filed in increasing numbers

which complained of either denial of counsel, or mob domination of trial judge

and jury. The very nature of such contentions draws in question the original

record in the trial court and matters which transpired during the trial, and makes

it very difficult to litigate these matters in any county but the ;county of ctmvic

ion. It would, therefore, seem desirable to also amend the law so as to provide

that the contentions based upon the denial of counsel or mob domination, etc.,

could only be raised by extraordinary motion, rather than by habeas corpus.

CRIMINAL LAW-History (Unofficial) History of Criminal Law in Georgia quoted and publications cited.
March 14, 1955
The Honorable Saul Moskowitz Member, HICOG Clemency Board, American Consulate Bldg. APO 108 US Army, c/o Postmaster, New York, N.Y.
Reference is made to your letter of March 8, 1955 and prior correspondence between us relative to the dates of publications of the criminal laws of this State and the various codifications of such laws.
The law of Crimes and Punishment is to be found in Volume 10 of the Georgia Code Annotated, published by the Harrison Company of Atlanta, Georgia. It includes the Code of 1933 and all laws of general application subsequently enacted

137
to 1953. There is a 1954 supplement available which brings the work up to date. Your letter necessarily implies, however, that you are interested, not alone in
the present Code, but earlier publications and codifications of the criminal law of this State. In an effort to provide you with material on the broader aspect of the question I have had done some research, the results of which I now submit for your consideration.
In 1811 (Ga. Laws 1811, pp. 26-46, Grantland) the General Assembly passed "An Act to ameliorate the Criminal Code and conform the same to the Penitentiary System." In 1817 a Penal Code was published by Carey and Sons, Philadelphia. This is not available in the Supreme Court Library, but is listed on MacDonald's Check-list of Statutes, 1937.
In 1821 Lucius Q. C. Lamar published a compilation of the laws of the State of Georgia passed by the Legislature from 1810 to 1819, inclusive. T. S. Hannon was the publisher. Penal laws were set forth on pages 540 to 610, inclusive. Thereafter, and in 1822 Oliver H. Prince published a digest of the laws of the State of Georgia, popularly known as Prince's Digest. Grantland and Orme were the publishers. Penal laws appeared on pages 341-348.
These were followed by Prince's Digest of 1837, Howell Cobb's Compilation of the Penal Code of the State of Georgia with forms of bills of indictment necessary in prosecutions under it and the rules of practice (Joseph M. Boardman, Macon, Georgia in 1850) the Code of Georgia, 1863 by R. H. Clark, T. R. R. Cobb and D. Irwin of Atlanta (John H. Seale, Atlanta) and Annotated Penal Laws by John L. Hopkins of Macon, Georgia (J. W. Burke and Company, 1875).
The most interesting and authoritative treatment of the subject from an historical point of view of which I have any knowledge is a paper prepared by Richard H. Clark to be read before the Georgia Bar Association at its annual meeting in Augusta, Georgia on May 15, 1890. It is available in the Supreme Court Library, State Capitol, Atlanta, Georgia.
Mr. Clark points out that in the early days of the State nearly all crimes were those of the common law and virtually all felonies were punished by death. As soon as the State had a penitentiary, a penal Code was enacted. (See Act of 1811 "To ameliorate the Criminal Code and conform the same to the penitentiary System, supra.) Each succeeding Code, i.e., that of 1817, 1833 and 1863 (really adopted in 1860) was but a revision of the form and substance of the earlier work. Thus, the penal Code of Georgia began with an effort to "Ameliorate" harsh penal laws, procedures and punishments inherited from the Mother Country and the effort has continued through a process of evolution to the present time.
CRIMINAL LAW-Indictments (Unofficial) In capital felony cases, the clerk of the Superior Court is required to
transmit a copy of the record to the Attorney-General.
November 9, 1954
Honorable U. J. Bacon Clerk, Superior Court
You inquire if there is a law which requires you to send a copy of indictments tried in the superior court, where there is a conviction to this office.
I know of no law requiring the clerks of the superior courts to send copies of indictment on conviction to the Attorney General's office, except as provided in Georgia Laws 1952, page 191 and page 192 thereof. You will find that the law

138
provides in all capital felony cases the clerk shall furnish the Attorney General with exact copies, either carbon or photostatic of the bill of exceptions. and the transcript of the record and the same shall be transmitted to the Attorney General at the time they are transmitted to the Supreme Court. The clerk shall certify that such papers are exact copies of the original.
CRIMINAL LAW-Larceny (Unofficial) Georgia has no law setting a fixed monetary value to determine whether
the stealing of articles of more or less value shall be a felony or a misdemeanor.
February 17, 1955
Honorable F. H. Guild, Director, Research Department The Legislative Council, State Capitol Topeka, Kansas
This is to acknowledge receipt of your letter of February 15, 1955, in which you state that Kansas still makes a theft of anything valued at $20 or more a felony and a theft of less than $20 a misdemeanor.
In the last paragraph of your letter you state "we should like to know. what the dollar figure is, if there is a monetary dividing point between a misdemeanor and a felony, in your State."
We have no such statute in Georgia which fixes or sets that the theft of any article of a particular value or less than a fixed monetary value is a misdemeanor, and that more than a fixed value would be a felony. I call your attention to Chapter 26-26 of the Annotated Code of Georgia of 1933, which deals with the larceny or theft. This is rather a long Chapter, and I am therefore not attempting to set the Chapter out in full, but in studying this Chapter you will find that a person might be guilty of a felony who stole personal property, the value of which might be considerably less than $20. For instance, Code Section 26-2603 reads as follows:
"Larceny of motor vehicles. Punishment.-The larceny of an automobile, locomobile, motorcycle, or other like vehicle propelled by electricity or gasoline, shall be a felony, and any person convicted thereof shall be punished by imprisonment in the penitentiary for a time not more than five years nor less than one year."
So you may see that the larceny of an automobile would be a felony, notwithstanding the fact that the value of the automobile might not be as much as $20. The same is true as to cattle stealing, horse stealing, and hog stealing. Code Section 26-2612 deals with larceny of other animals which may be the subject of simple larceny, and a person convicted of stealing such animals as mentioned in this Section would be guilty of a misdemeanor. Under Section 26-2616 deals with taking and carrying away bonds, deals with the punishment, and fixes the punishment at not less than one year nor more than four years, and says that when the property stolen under this Section is under the value of $50, he shall be guilty of a misdemeanor. Section 26-2624 deals with plundering and stealing from wrecked vessels and makes the offense a misdemeanor when the article so taken is valued under $50, and a felony when more than $50, and makes the penalty imprisonment and labor in the penitentiary for not less than one year nor more than five years. Section 26-2627 fixes punishment for larceny from the person and makes such act a misdemeanor unless the thing taken exceeds in value

139
$50, and if the value exceeds $50 such larceny would be a felony and would be punishable by imprisonment for not less than two years nor more than five years. Code Section 26-2630 makes punishment of larceny from the house a misdemeanor if the thing stolen be valued at less than $50, and if more than $50, a felony punishable by labor in the penitentiary for not less than one year nor more than ten years. Punishment for misdemeanors is fixed by Code Section 27-2506.
Now, Code Section 27-2501 provides that certain felonies may be punished as for misdemeanors, so upon reading this Section you will see that a man might be guilty of larceny of an automobile, which is a felony, or he might be guilty of other felonies, and still be punished as for a misdemeanor.
CRIMINAL LAW-Lotteries-Exemption from Operation of Laws Concerning (Unofficial) There is no exemption in the gambling laws of the state for religious groups that sponsor games of chance.
December 14, 1954
Miss Eleanor R. Garner You requested information concerning the gambling laws of the State of
Georgia and inquired whether religious groups that sponsor games of chance are exempt from legal penalties.
The writer has been unable to find any specific exemption of the nature you inquire about, and it is his belief that no such laws are extant on the books in this State.
CRIMINAL LAW-Lotteries-Drawing of Numbers for Prizes (Unofficial) Discussion of lottery laws in connection with prizes awarded by a store
to persons who hold certain numbers, which are obtained by registration.
December 22, 1954
Mr. G. W. Schertzinger You enclose a newspaper advertisement wherein by registering in a store a
person may later have the lucky number to obtain certain free products such as a Shetland pony, television set and similar items.
You request my opinion as to whether such a drawing would be legal in the State of Georgia.
Code Section 26-6501 is as follows: "Any person who, either by himself or his agent, shall sell or offer for
sale, or procure for or furnish to any person any ticket, number, combination, or chance, or anything representing a chance, in any lottery, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor."
In the case of Barker v. The State, 56 Ga. Appeals705-713, a "gift enterprise"
is stated to be "a sporting artifice by which, for example, a merchant or trades-

140

man sells his wares for their market value, but by way of inducement gives to

each purchaser a ticket which entitles him 'to a chance to w;in certain prizes, to be

detertnined after the manner of a lottery."



Also, I would sugge~t that you ask your attorney to read the case of Meyer v.

The State, 112 Ga. 23, 37 S. E. 96, which discusses. the matter of gift enterprise.

CRIMINAL LAW-Lotteries (Unofficial) Law relating to lotteries quoted.

May 20, 1955

Mr. M. E. Crookston
This will acknowledge receipt of your letter of May 17, 1955 in which you state:
"We should appreciate having, if possible; a copy of the Georgia law affecting lotteries and the mention of lotteries in advertisements."

In compliance with your request, I am quoting the following code sections from the Annotated Code of Georgia, 1933. Code Section 26-6501 reads as follows:

"Section 26-6501. (397 P. C.) Sale, etc., of lottery tickets.-Any

perflon who, either by himself or his agent, shall sell or offer for. sale, or

procure for or furnish to any person any ticket, number, combination, or chance, ~r anything representing a chance, in any lottery, gift enterprise,

or other similar scheme or device, whether such lottery, gift enterprise,
or scheme shall be operated in this State or not, shall.be guilty of a mis-

demeanor. (Acts 1880-1, p. 62.)"



"Section 26-6502. (398, 400 P. C.) Carrying on a lottery.-Any person who, by himself or another, shall keep, maintain, employ, or carry

on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor. (Acts 1877, p. 112.)"

"Section 26-6503. (399, 400 P.C.) Lottery wheels, turning.-Any person who, by himself, or another, shall turn any lottery wheel, or draw

therefrom any ball, number, letter, or other thing indicating the decision of any chance or hazard of the lottery, or in anywise be present, aiding and assisting in the working, turning, or drawing thereof, shall be guilty of a misdemeanor. (Acts, 1877, p. 112.)"

"Section 26-6504. (401 P. C.) Unlawful to advertise lottery, etc.-

Any person who shall print, advertise, or publish any lottery, gift enterprise, or other scheme for the hazarding of money or other thing of value, forbidden by law, or the result of the drawing of prizes or distribution of gifts therein, either by newspaper advertisements or written or printed posters, dodgers, or circulars, or cause the same to be done, shall be guilty of a misdemeanor. (Acts 1889, p. 187.)"

"Section 26-6505. (402 P. C.) What constitutes prima facie case against publishers.-Whenever any advertisement or. publication in a journal or newspaper, contrary to the provisions of the foregoing section, shall be proved in any criminal trial or proceeding against the publisher, owner, or manager of said journal or newspaper, it shall create a prima

facie case against him, and shall authorize a conviction unless the defendant shall show by testimony, satisfactory to the jury, that he did not cause,

141
authorize, or lmowingly permit the publication or advertisement. (Acts 1889, p. l87.)"
"Section 26-6506. (404, P. C.) Trading stamps, issuance, etc.-It shall be a misdemeanor for any person, firm, or corporation to issue or give away, in connection with the sale of any article of goods, wares, or merchandise, any stamp, commonly called a trading stamp, or other like device, which said stamp or other like device would entitle the holder thereof to receive, from some other person or party than the vendor, any indefinite or undescribed thing, the nature or value of which was unknown to the purchaser at the time of the purchase of said article of goods, ware~, or merchandise. (Acts 1909, p. 153.)" There are many court decisions cited under the above quoted code sections, which would require a great deal of secretarial work to copy the same, so I have merely called yo~r attention and quoted the above sections dealing with the subject about which you make inquiry.
CRIMINAL LAW-Lotteries and Gift Enterprises (Unofficial) Law defining lotteries and gift enterprises quoted.
July 15, 1955
Murray and Malone Company This will acknowledge receipt of your letter of July 12, 1955 in which you
request information concerning the game called "Play Transo." Section 26-6501 of the 1933 Annotated Code of Georgia provides: "26-6501. Any person who, either by himself or his agent, shall sell or offer for sale, or procure for or furnish to any llerson any ticket, number, combination, or chance, or anything representing a chance, in any lottery, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor."
Section 26-6502 provides: "26-6502. Any person who, by himself or another, shall keep, main-
tain, employ or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." The Court of Appeals of the State of Georgia, in the case of Barker v. The State, 56 Ga. App., 705, defines or gives an example of a gift enterprise, which is as follows:
"A gift enterprise, is a sporting artifice by which, for example, a merchant or tradesman sells his wares for their market value, but by way of inducement gives to such purchaser a ticket which entitles him to a chance to win certain prizes, to be determined after the manner of a lottery." If the game that you refer to does not violate either of the above quoted provisions, I see no reason why it would be illegal in Georgia.

142
CRIMINAL LAW-Obtaining Merchandise by False Writing (Unofficial) The crime of obtaining money or merchandise by false writing is pun-
ished as a felony, no matter what value of property involved.
October 12, 1954
Mr. H. L. Estes I have received your letter in which you asked if a charge of obtaining
merchandise by false writing constitutes a felony or misdemeanor if the amount is less than $50.00.
Code Sec. 26-3918 is as follows: "Any person who shall designedly, by color of any counterfeit letter
or writing, made in any other person's name, or fictitious name, obtain from any person money or other valuable thing, with intent to defraud any person, mercantile house, body corporate, or company of the same, shall be punished by imprisonment and labor in the penitentiary for not less than two nor more than seven years." It appears that the crime is a felony regardless of the amount of money involved.
CRIMINAL LAW-Operation of Slot Machines (Unofficial) Procedure for an individual to curb the operation of slot machines.
November 29, 1954
Mr. H. Pat Brannan I have received your letter in which you asked what course of action you can
take to curb the operation of slot machines in your county. If you have actual knowledge of a person operating slot machines or posses-
sing a slot machine in your county, you are authorized to go before a Justice of the Peace and swear out a warrant, setting out the violation of pertinent criminal statutes of the State. Furthermore, you have a right to appear before your Grand Jury, upon proper request, and inform them of information which you have and request that they take such action that is necessary to procure an indictment.
It would be wise for y.ou to discuss the matter with the Solicitor-General of your judicial circuit and see what course of action he would outline to be taken.
CRIMINAL LAW-Perjury False swearing before a hearing of the Dental Board of Examiners is not
perjury.
December 17, 1956
Honorable R. L. (;nann, President Board of Dental Examiners of Georgia
You ask: "Would a person be guilty of perjury if he appeared before the Dental Board while said Board was in regular session and hearing evidence against a person charged with misconduct, and swore falsely?"

143
Perjury is defined by Code Section 26-4001, Annotated Code of Georgia, 1933, and reads as follows:
"Perjury defined.-Perjury shall consist in wilfully, knowingly, absolutely, and falsely swearing, either with or without laying hand on the Holy Evangelist of Almighty God, or affirming in a matter material to the issue or point in question, in some judicial proceeding, by a person to whom a lawful oath or affirmation has been administered." It is my opinion that the Dental Board of Examiners holding a hearing would not be a judicial body and therefore false swearing at such a hearing would not be perjury as above defined. However, such person might be guilty of false swearing as defined in Code Section 26-4003, Annotated Code of Georgia, which reads as follows:
"False swearing defined.-False swearing shall consist in wilfully, knowingly, absolutely, and falsely swearing, either with or without laying the hand on the Holy Evangelist of. Almighty God, or affirming in any matter or thing, other than a judicial proceeding, by a person to whom a lawful oath or affirmation has been administered."
CRIMINAL LAW-Procedure-Indictment by Grand Jury (Unofficial) Law relative to indictment by Grand Jury and challenging the Grand
Jury quoted.
August 17, 1955
Miss Louise Korns I acknowledge receipt of your letter of August 15th requesting information
concerning the laws of Georgia relative to indictment by the grand jury and challenges to the grand jury returning an indictment.
Firstly, the Constitution does not guarantee the right of indictment by a grand jury. However, the Georgia Code Annotated (1953 Rec.), Section 27-704, in substance confers the right of indictment by grand jury in all felonies and misdemeanors except where the accused duly waives the right of indictment in which case the trial may proceed upon written accusation. This section expressly provides that indictment by a grand jury may not be waived in capital felony cases. In this respect see Webb v. Henlery, alias Tuck, 209 Ga. 447, 74 S. E. 2d, 7, holding that a court in this state is without authority to accept a plea of guilty and sentence a person charged with a capital felony without indictment by the grand jury, notwithstanding the fact that that person may have attempted to waive such indictment. This case also holds that while the right of indictment by grand jury is not guaranteed by the Constitution of Georgia, it is nevertheless a part of the law of this State.
Secondly, with regard to challenging the grand jury on the ground that it was unconstitutionally selected, the Georgia Code, Section 59-803, provides as follows:
"The accused may, in writing, challenge the array for any cause going
to show that it was not fairly or properly impaneled, or ought not to be
put upon him; the sufficiency of which challenge the court shall determine at once. If sustained, a new panel shall be ordered; if not sustained, a new panel shall be ordered; if not sustained, the selection of jurors shall proceed."
This section relates to an objection to the entire jury panel rather than to any particular juror.

144
It would be difficult if not impossible to make a categorical statement as to the defects which could be raised by challenge to the array. and their availability as grounds of relief after trial. In the case of Mitchell v. The State, 69 Ga. App. 771, 26 S. E. (2) 663, the Georgia Court of Appeals rendered a very scholarly opinion in which challenges to grand jurors were divided into three classifications, to-wit: Propter defectum, propter affectum,and propter delictum. I suggest that you study this case for .a more thorough dis.cussion of this particular question.
In Lumpkin v. State, 152 Ga. 229, 231 (7), 109 S. E. 664, the Supreme Court of Georgia held that an objection to a panel of jurors based upon the exclusion by tl).e jury commissioners of certain classes of persons constituted an objection propter defectum, and could not be raised after trial.
Incidentally, this office has recently represented the State in an application for certiorari before the United States Supreme Court in which a negro sought to challenge the validity of a jury system in Fulton County, Georgia. Our defense was that this was a matter which under Georgia law was required to be raised by challenge to the array. The Supreme Court granted certiorari and in a ridiculous opinion remanded the case to the Supreme Court .of Georgia for further consideration. See Williams v. Georgia (June 6, 1955). On remand the Supreme Court of Georgia refused to alter its original decision and rendered a blistering attack on the United States Supreme Court.
CRIMINAL LAW-Prosecution under 68-214-Motor Vehicles Procedure to be followed in prosecuting persons violating Code Section
68-214, regarding registration of motor vehicles.
August 16, 1954
Mr. W. L. Burch, Director Motor Vehicle License Unit
I wish to acknowledge receipt of your request for an opinion dated August 11, 1954 in which you request the propel; procedure to be followed in the prosecution of persons charged with a violation of the provisions of the Act amending Code Section 68-214 relative to the registration of motor vehicles in this State, which Act was approved December 22, 1953.
The proper procedure to be followed against persons charged with the violations of this Act is to swear out a warrant against the operator of the vehicle, the warrant would then be turned over to the sheriff to be executed the same as any other criminal warrant. The next procedure is to obtain an indictment by the grand jury or an accusation issued by the Solicitor General, depending upon the Court in which the defendant would be tried. The defendant would have a right to a trial by jury the same as in any other criminal case.
It would be rather difficult to proceed against a non-resident owner of the vehicle and I would suggest that in ordinary cases that the criminal action be brought against the person operating the vehicle in this State.
You also inquire in your letter as to what would be done with the vehicle being operated by the person charged with the violation upon the arrest' of the operator. The vehicle in such case would be stored by the arresting officer. This vehicle would be subject to levy and sale under any execution you might issue for failure to pay the tax required under this Act.
The arresting officer would, of course, be authorized to surrender the vehicle
to its owner provided all liens against the property had been satisfied.

145
CRIMINAL LAW-Rewards (Unofficial)
There is no statute in this State making the payment of a reward a matter of law. The Governor is authorized to offer and pay rewards not to exceed $250.00 in non-capital felony cases and not to exceed $500.00 in capital felony cases for detection or apprehension of the perpetrator.
February 1, 1955
Honorable Howard P. J olles Assistant Solicitor General Augusta Judicial Court
Your letter of January 25, 1955, addressed to the Honorable Phil Campbell, Commissioner of Agriculture, relative to alleged reward for narcotics convictions has been forwarded to this office for reply.
The Governor of Georgia in certain cases may offer rewards for the arrest of felons. This authority is set forth in Code Section 27-101, Ga. Code Ann., 1953 Rev., in the following language:
"The Governor shall, in his discretion, offer, and cause to be paid, rewards for the detection or apprehension of the perpetrator of any felony committed within this State, such reward not to exceed the sum of $250 in case of felonies not capital, and not to exceed the sum of $500 in capital felonies; but no such reward shall be paid to any officer who shall arrest such person in. the regular discharge of his duty, by virtue of process in his hands to be executed, nor to any person who has arrested the offender previously to the publication of the reward. Whenever the Governor receives reliable information that any gin house has been unlawfully burned or set on fire, he shall offer a reward of not less than $250, nor more than $500, for the apprehension of the incendiary with proof sufficient to convict, and in no event shall the reward be paid until after the conviction of the offender."
The Uniform Narcotic Drug Act also provides that contraband articles may be seized, condemned and sold and distributed according to Section 42-813.1. This Code section provides that all vehicles and conveyances as well as other means of transportation used in the narcotic drugs traffic in violation of the law are declared to be contraband and may be seized and condemned by any sheriff or arresting officer. The contraband thus seized may be sold by a court order and the proceeds arising from the sale shall be applied as follows:
"(a) To the payment of the expenses in said case, including the expenses incurred in the seizure.
"(b) One-third of the remainder to the officer making the seizure and furnishing the proof: Provided, that should such officer fail or refuse to report such seizure to the proper prosecuting officer within 10 days from the date thereof he shall not be entitled to any of the proceeds of such sale, and any citizen of this State having knowledge of the facts may report said seizure at the end of said period of 10 days, upon the failure of the officer makingthe seizure to do so, to the proper prosecuting officer, whose duty it shall be to proceed as hereinbefore directed, and all of the proceeds of said sale, in case of the failure of the officer making the seizure to report the same, to which said officer would otherwise have been entitled shall inure to. the public school fund of the county in which such seizure was made.

146
"(c) To the payment or the costs of the court which shall be the same as now allowed by law in cases of forfeiture of recognizance.
"(d) The remainder, if any, shall be paid into the county treasury to be held as a separate fund to be paid out under order of the court as insolvent costs in other cases arising . from the violation of any of the provisions of this law: Provided, that in any county in which any of the officers of either the county, city or superior courts are now on a salary, or hereafter placed on a salary, such remainder of the funds applicable to the payment of insolvent costs of such officer or officers shall be retained in the general fund of, and become the property of such county."
Also, please be advised that 21 U. S. C. A. 199 provides that the Commissioner of Narcotics is authorized and empowered to pay to any person from funds appropriated for the enforcement of the narcotic laws of the United States, for information concerning a violation of any narcotic law resulting in a seizure of contraband narcotics, such sum or sums of money that he may deem appropriate.
Insofar as I have been able to ascertain, the present Governor of Georgia has not seen fit to offer any reward for the arrest or apprehension of persons violating the narcotic laws of this State. You will notice that under Code Section 27-101, any reward offered by the Governor shall not be paid to any officer who shall arrest such person in the regular discharge of his duty.
I am of the opinion that there is no statute in this State that makes the payment of a reward a matter of law. Therefore, each case would depend upon whether or not it came within the rules I have outlined above.
CRIMINAL LAW-Sentences-Concurrent and Consecutive Pemil Sentences (Unofficial) Law relating to concurrent and consecutive penal sentences quoted. Point that conviction was based on perjured testimony cannot be raised after conviction except possibly in motion for new trial.
May 19, 1955
Mr. Ronald H. Boone Receipt is hereby acknowledged of your letter of May 13, 1955, requesting
information as to whether or not the courts of this State have ever defined the word "concurrent" as used in penal sentences, and also information as to available legal procedures for setting aside convictions based on indictments which were returned on the basis of perjured testimony.
Firstly, as to definition of the word "concurrent"The courts of this State have never defined this term as such. The Ga. Code Ann., 27-2510 provides:
"Where a person shall be prosecuted and convicted on more than one indictment, and the sentences are imprisonment in the penitentiary, such sentences shall be severally executed, the one after the expiration of the other; and the judge shall specify in each. the time when the imprisonment shall commence and the length of its duration."
It is to be noted that this Section is applicable only to felonies. However, in Fortson v. Elbert County, 117 Ga. 149, 43 S. E. 492, it was held that,
"As to felonies, by the Penal Code, 1041 (now 27-.2510), and as to misdemeanors, under general principles of criminal law, if a defendant is

147
found guilty of more than one offense, and the imprisonment under one sentence is to commence on the expiration of the other, the sentence must so state; else the two punishments will be executed concurrently, and the defendant be entitled to his discharge on the expiration of the longest term."
In Hightower v. Hollis, 121 Ga. 159 (1), 48 S. E. 969, and in Sullivan v. Clark, 156 Ga. 706, 119 S. E. 913, it was held that the rule as stated in the Fortson case, supra, would not apply where the two sentences were imposed in different courts, in which case the sentences .would run consecutively.
The Hightower case further stated that the rule as enunciated in the Fortson case was only applicable where the accused was sentenced at the same term for more than one offense by the same judge. In Craddock v. Law, 203 Ga. 264, 46 S. E. 136, two felony sentences were imposed in Stewart Superior Court, but were rendered nine years apart. The point was made that since the sentences were rendered at different terms of court, it was the same as though they had been rendered in "different courts," but the Supreme Court of Georgia nevertheless held that the sentences would run concurrently. However, reliance was apparently placed on the fact that the last sentence stated that it would be "computed from date of entry," which resulted in this sentence expiring before the first sentence, which was for a much longer term, had expired.
I have stated the foregoing principles in the anticipation that they may likely be related to the ultimate question you pose. To specifically answer your question, I can only refer to the language above quoted from the Fortson case which in effect declares that where two sentences are concurrent, "the defendant will be discharged on expiration of the longer term," which, in a sense, is a definition of "concurrent."
"Consecutively" was defined in Long v. Stanley, 200 Ga. 239, 242, 36 S. E. 2d 875, to mean "succeeding one another in a regular order, or with uninterrupted course or succession, having no interval or break." The court then proceeded to equate this definition to the language used in Ga. Code, 27-2510, i.e., "the one after the expiration of the other."
With regard to the available methods of attacking convictions obtained on indictments which were returned on the basis of perjured testimony, I am unable to find any Georgia authority. Presumably the objection could have been raised before trial by plea in abatement under Ga. Code Ann., 27-1501. In Meriwether v. State, 63 Ga. App. 667, 668 (1), 11 S. E. 2d 816, it was held that an indictment could not be stricken on plea unless it was shown that all of the evidence adduced before the Grand Jury was incompetent. Similarly, in Powers v. State, 172 Ga. 1 (3), 157 S. E. 195, it was held that the sufficiency of the evidence before the Grand Jury could not be put in issue on plea in abatement-that 'only where there was no evidence at all could objection be made. However, as applied to perjured testimony, the Ga. Code 110-706 pro'vides that before any judgment, verdict, rule, or order of court shall be set aside on the ground of perjUred testimony, it must be shown that the perjurer has been duly convicted therefor. While no cases are available on the specific point, I am inclined to believe this section would apply as to a plea in abatement.
After trial and conviction, however, a different situation would. exist. Unless it could be shown that the conviction itself was based on perjured testimony, it seems highly unlikely that defects in ,the return of the indictment could affect the former. I realize, Of course, that a like contention has been rejected by the United States Supreme Court in Cassell v. Texas (1950) 339 U. S. 282, 94 L. Ed. 839, 70 S. Ct. 629, with regard to racial discrimination in selection of a grand jury.

148
(See particularly the dissenting opinion of Mr. Justice JackRon). However, in that case, a timely motion t() quash the. indictment had been made prior to trial, but was overruled with the case proceeding to trial res1.1lting in conviction.
However, I do not believe that the Supreme Court would apply the same principle to perjured testimony. The right to be indicted by an impartial grand jury exists independently of the guilt or innocence of the accused, but the evidence on which he is convicted at the trial and which is not contested would seem to foreclose any inquiry as to the competency of the evidence before the grand jury. In Hoffman v. United States (1951) 341 U. S. 479, 485, 95 L. Ed. 1118, 1123, 71 S. Ct. 814, it was held that ''the most valuable function of the grand jury has been not only to examine into the commission of crimes, but to stand between the prosecutor and the accused." In other words, the very fact that competent evidence was adduced at the trial would render unlikely the possibility that the grand jury would not have indicted had the perjured testimony been excluded, but as to racial discrimination in selection of the grand jury, a different result might have followed had the jury been impartially selected. In the latter respect; it is commonly recognized that grand juries many times refuse to indict for reasons other than, and in many cases in spite of, the sufficiency of the evidence.
A somewhat similar rule as to the inability of a person to attack convictions after trial is illustrated by the case of Mitchell v. State, 69 Ga. App. 771 (4), 26 S. E. 2d 663, where it was held that defects in selecting the jury could not be raised after conviction even though unknown until after trial.
.In conclusion, I do not believe that the point could be raised after conviction, certainly after the time had expired for filing.of a motion f(}r new trial. Possibly it might could be asserted on motion for new trial, since the trial judges of this State have a wide discretion in granting or denying these motions. If granted, the State could not appeal and this would irso facto require a new indictment, but if the trial judge denied the motion, I do not believe that the appellate courts would upset his ruling.
CRIMINAL LAW-Statute of Limitations-Extradition (Unofficial) (a) The S~a:tute of Limitations for misdemeanors is two years from
the commission of the offence. (b) Georgia will extradite for a misdemeanor charge.
September 30, 1954
Mr. Wm. J. Gillmore I am pleased to acknowledge your request as to what is the. statute of limita-
tions on a misdemeanor in Georgia and whether thl) State of Georgia permits extradition on a misdemeanor. charge.
Georgia Code Annotated, Section 27-601 provides in part as follows: "Indictments may be found and filed in the proper courts, as follows:
* * * *
"4. In all misdemeanors, within two years after' the commission of the offense, and at no time thereafter.
"If the offender shall abscond from this State, or so conceal himself that he cannot be arrested, such time during which he has been absent from the State, or concealed, shall not be computed or constitute any part of said several limibtions.

149

"Nor shall any limitation run so long as the offender or offense is

unknown." (Emphasis supplied.)

.

As to extradition, Georgia Code.Annotated, Section 44-403 provides as follows:

"Subject to the provisions of this Chapter, the provisions of the Con-

stitution of the United States controlling, and any and all Acts of Con-

gress enacted in pursuance thereof, it is the duty of the Governor of this

State to have arrested and delivered up to the executive authority of any

other State of the United States any person charged in that State with

treason, felony or other crime, who has fled from justice and is found

in this State."

You will note that this covers a misdemeanor as well as a felony.

DOMESTIC RELATIONS-Divorce-Grounds (Unofficial) Law setting out grounds for divorce quoted.

March 21, 1955

Mr. Gordon E. Conrad
This will acknowledge receipt of your letter of March 19, 1955, making. inquiry as to the grounds of divorce in Georgia.
Section 30-102, Annotated Code of Geo1gia of 1952, sets forth the grounds for divorce in Georgia and are as follows:
"30-102. The following grounds shall be sufficient to authorize the granting of a total divorce:
1. Intermarriage by persons within the prohibited degrees of consanguinity and affinity.
2. Mental incapacity at the time of the marriage. 3. Impotency at the time of the marriage. 4. Force, menace, duress, or fraud in obtaining the marriage. 5. Pregnancy of the wife, at the time of the marriage, unknown to the husband. 6. Adultery in either of the parties after marriage. 7. Wilful and continued desertion by either of the parties for the term of one year. 8. The conviction of either party for a.n offense involving moral turpitude, and under which he or she is sentenced to imprisonment in the penitentiary for the term of two years or longer. 9. Habitual intoxication. . 10. Cruel treatment, which shall consist of the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb or health. 11. Incurable insanity, but no divorce shall be granted upon this ground unless the insane party shall have been adjudged insane according to the provisions of section 49-604, confined in an institution for the insane for a period of at least three years immediately preceding the commencement of the action, and until the superintendent of the asylum and one competent physician appointed by the court shall, after a thorough examination, make a certified stat~ment under oath that it is their opinion that such person is hopelessly and incurably insane. Notice of this action shall be served upon one of the nearest blood relatives or guardian of such

150
insane person and the superintendent of the institution in which he is confined, and such relative or guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the insane person shall not be altered in any way by the granting of the divorce." Section 49-604 in (11) provides the manner in which a person may be placed in the hospital at Milledgeville for the insane. Intermarriage by persons within the prohibited degrees of consanguinity and affinity mentioned in (1) are set out in Chapter 18 of the Book of Leviticus (Old Testament).
DOMESTIC RELATIONS-Divorce-Marirage Before Final Divorce Decree (Unofficial) Marriage performed before final divorce decree issues as to one of the parties is void.
September 7, 1955
J. R. Kirk, 1st Lt., JAGC Reference is made to your letter of August 25, 1955, regarding the marital
status of a young woman, divorcee, who was married to a soldier on the eve of his departure on an overseas assignment without awaiting the expiration of a 30-day waiting period provided by the law of this State.
Georgia Code Annotated, Section 30-101 (Acts of 1946, pp. 90, 91) provides
that "* * * the verdict or judgment shall not become final for a period of thirty days * * *." Section 53-101 of the Code provides that in order to constitute a valid marriage in this State the parties must be "* * * able to contract," and Section 53-102 says that to be "* * * able to contract marriage * * *" one must not
be laboring under the disability of a "previous marriage undissolved." Section
53-104 then provides that "marriages of persons unable to contract * * * shall
be void." It would appear, therefore, that had the ceremonial marriage been performed
in this State it would have been void, although the issue of such marriage would be legitimate. If, however, the parties cohabited as man and wife and continued to do so after the divorce became final they might be considered to be lawfully married under the doctrine laid down by the Supreme Court in Hawkins v. Hawkius, 166 Ga. 153. Common law maniages, however, are not looked upon with favor and complications may and frequently do arise where they are relied upon.
Actually, it appears that although the divorce was granted in Georgia the subsequent marriage was contracted in New Jersey and not in Georgia. You may wish to look into the matter of its legality or illegality under the law of the State in which it was contracted. It may be that it can be ignored as void and a new and valid marriage contracted by and between the parties. It may be necessary that the parties have the marriage annulled. I would not assume to answer this question.
As to your further question as to whether or not the Court would entertain a request to make the. divorce decree final as of the date of issue, "in consideration of special circumstances" I must reply that I do not think the parties have any legal basis or precedent for any such request, or that the Court would have any
authority to grant it. The marriage was contracted in utter disregard of the Act

151
of the General Assembly and the decree of Court. The only "special circumstances" disclosed by your letter are that the parties wanted to be married prior to the prospective groom's departure on overseas orders.
DOMESTIC RELATIONS-Divorce-Requirement of Residence (Unofficial) A divorce cannot be obtained in the state where neither party to the
marriage has ever lived in the state.
August 5, 1954
Mr. James W. Doherty You ask the specific question as to whether or not it is possible for a wife to
obtain a divorce where neither such wife nor her husband ever lived in this state. The Georgia Constitution, Article VI, Section XIV, Paragraph I (Code Ann.
2-4901) reads as follows: "Divorce cases shall be brought in the county where the defendant
resides, if a resident of this state; if the defendant be not a resident of this state, then the county in which the plaintiff resides, provided, that any person who has been a resident of any United States Army Post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States Army Post or military reservation." Besides the above constitutional provision, the Legislature has seen fit to require a residence requirement of six months, viz: Georgia Code Annotated, 30-107.
"No court shall grant a divorce of any character to any person who has not been a bona fide resident of the State six months before the filing of the application for divorce: Provided, that any person who has been a resident of any United States Army Post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States Army post or military reservation." The word "resident" has been construed to mean domicile. Williams v. Williams, 191 Ga. 437, 12 S. E. 2d 352. The Georgia courts have very strictly construed these sections, and it has been held that the provisions as to venue are mandatory and jurisdictional, and may not be conferred by consent. Wade v. Wade, 195 Ga. 748, 25 S. E. 2d 683; Moody v. Moody, 195 Ga. 13, 14 (2a), 22 S. E. 2d 836. In the early Georgia case of House v. House, 25 Ga. 473, the entire opinion reads as follows:
"In this case, neither party was in the State, or was a citizen in, or a resident of the State, or, as far as appears, had property in the State.
"It was, therefore, a case over which no Court of the State had, or could have, any jurisdiction-a case to which no law of the State could possibly extend.
"We think, therefore, that the Court was right in refusing to 'allow service to be perfected by publication.' ". The reference above to neither party owning property only had reference to questions of alimony alone, since there are no residence requirements as to the latter. Lee v. Lee, 154 Ga. 820 (2), 115 S. E. 493.

152

l'rior to amendment of the Constitution ( 2-4901, supra) it was held that a

divorce procured by a soldier stationed at Fort Benning was void since he could

not, under existing law, procure a residence in this state. Dicks v. Dicks, 177 Ga.

379, 170 S. E. 246.

In Lipham v. State, 68 Ga. App. 174, 22 S. E. 2d 532, the Court held that

since actual domicile of one party was essential to jurisdiction in divorce cases,

this question could always be collaterally inquired into, This holding was in

keeping with the decision of the United States Supreme Court in the famous case

of Williams v. North Carolina, 317 U. S. 287.

As to the second point you mention, i.e., the necessity of the plaintiff's

presence in this state to testify, the Code, 30-113 declares that no verdict or

judgment shall issue by default, but that the allegations of the petition shall be

established by evidence.

.

I, therefore, conclude that, under the facts stated in your letter, no .valid

divorce has even been obtained, for irrespective of whether or not the husband

ever lived in Georgia, the plaintiff-wife could only procure a divorce in this state

by residing herein, animo manendi, for six months prior to institution of suit, as

provided in 30-107 and 2-4901.

DOMESTIC RELATIONS-Guardian and Ward-Powers of Guardian over Property of Ward (Unofficial) A guardian cannot borrow money on his ward's "G. I. Insurance," nor may he purchase a home for the ward, using "G. I. Loan" benefits.

November 8, 1954

Mr. Walter N. Crawford

You wish to know whether under the Georgia law your wife, who is. your

guardian under an appointment by a Texas Court, could borrow money on your

so-called "G. I. Insurance" and whether she could in your behalf purchase a home

using your so-called "G. I. Loan" benefits.

;

The pertinent provisions of the Georgia law relative to your questions is

found under Title 49 of the Georgia Code of 1933, which title deals with the

subject Guardian and Ward. Section 49-226 of that title provides:

"The guardian may not borrow money and bind his ward therefor, nor may he by any contract other than those specially allowed by law, bind his ward's property or create any lien thereon."

With respect to the first question, I think it is clear that under this provision of the Georgia law your wife may not, as your guardian, borrow money on your insurance or in any other manner bind your estate for the repayment of a loan.
As to the second question, I think it is also clear that your wife may not, in your behalf, or acting as guardian, purchase real estate and bind your estate for the future payment of the purchase price. However, under the provisions of Section 49-216 of the Georgia Code a guardian may invest any funds held by him in "lands." This may be done provided that an order to that effect has been obtained from the superior court before each investment is made. I do not find any judicial interpretation of this latter Code Section that wou,ld indicate whether such permission would be limited merely to the purchaes of vacant land or would be extended to permit the purchase of improved real estate such as a house and lot. It is my off-hand opinion that it would not be so limited.

153
DOMESTIC RELATIONS-Marriage-Common-Law (Unofficial) Discusses requirements of common-law marriage.
July 12, 1954
Mrs. Lillian B. Broughton This will acknowledge receipt of your inquiry as to common law marriages
in Georgia. Contract of marriage may be inferred from proof of cohabitation and the
parties holding themselyes out as man and wife. 130 Ga. 161. Mutual agreement to be husband and wife by parties able to contract followed
by cohabitation is recognized as a valid. marriage. 176 Ga. App. 263. 41 Ga. App. 394.
I understand the law in Georgia to be that where the parties are able to contract and are laboring under no disability may contract a valid marriage without any ceremony or a license being issued. However, the matter of contract is a matter of proof.
DOMESTIC RELATIONS-Marriage-Marriage, How Dissolved (Unofficial) Marriage not dissolved by conviction of husband of crime and fact he is
serving prison term.
March 31, 1955
Mrs. Katherine Arnold This is to acknowledge receipt of your letter in which you state you were
married four years ago. You state that your husband is now serving a term in prison for assault and battery. You also state that you have been informed that the fact that he is in prison automatically dissolves your marriage with him.
It is my opinion that the fact that he has been convicted and is serving a prison term does not, of itself, grant you the right to contract marriage, and it is my further opinion that before you would be authorized to remarry, it would be necessary to have your marriage with "A" dissolved by the courts. If you are planning remarriage, I would suggest that you discuss your problems with some reputable member of the Bar.
DOMESTIC RELATIONS-Marriage-Miscegenation (Unofficial) Georgia does not recognize marriages between members of the White or
Caucasian race and members of the "West Indian" race.
March 30, 1955
Mr. John L. Brown The law of this State does not recognize marriages between members of the
White or Caucasian race and members of certain other named races, including "West Indian" (Ga. Code Ann., Sec. 53-106 and 53-312), whether the same are entered into in this State or in another State by persons then intending to return to this State to live (Ga. Code Ann. Sec. 53-214).

154
DOMESTIC RELATIONS-Marriage-Miscegenation (Unofficial) Resume of history and present status of miscegenation laws.
July 16, 1954
Honorable Floyd E. Miller
Reference is made to your letter inquiring regarding the law against miscegenation.
The history and present state of the law on the subject is as follows: The General Assembly of Georgia at its 1865-66 session passed acts which defined "persons of color" as "all negroes, mulattoes, mastizos, and their descendants having one-eighth negro or African blood in their veins" and provided for their rights in certain regards, including court actions, marriage relationships and the relation and responsibilities of parent and child. It also passed legislation designed to protect racial integrity and prevent the creation of a mongrel race. Public Law No. 254, Acts of 1865-66, page 241, provides in part that:
"* * * if any officer shall knowingly issue any marriage license to
parties either of whom is of African descent and the other a white person,
such officer shall be guilty of a misdemeanor * * *"
The same act made it a misdemeanor for any Minister of the Gospel to "marry such persons together."
Thus the law dealing with "persons of color" remained until 1927 when the General Assembly amended the Act of 1865-66 by striking the words "one-eighth" from the definition of "persons of color" and inserting the words "any ascertainable trace" and by inserting and including certain races other than "African." (Acts 1927, page 272.) The law as now constituted defines "persons of color" as:
"All Negroes, Mulattoes, Mestizos and their descendants having any ascertainable trace of 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" (Ga. Code Ann., Sec. 79-103).
Moreover, the original statute passed by the General Assembly at its 1865-66 term remains today as it was passed and neither the "Reconstruction Legislature" of the 1870's composed of "scallawags," "Carpet baggers" and negroes nor any succeeding Legislature has ever seen fit to change or alter the original law making it a crime to issue a marriage license to or to unite in marriage white persons and "persons of color." (Ga. Code Ann. 53-9902.) The constitutionality of the laws prohibiting intermarriage of the races was upheld by the Supreme Court in 1869 in the case of Charlotte Scott v. The State of Georgia, 39 Ga. 321.
Our present miscegenation statute which makes it unlawful for a white person to marry "any one except a white person" (Ga. Code Ann. Sec. 53-105), defines a "white person" as including only "persons of the white or Caucasian race" (Ga. Code Ann. Sec. 53-312), and makes a violation of these provisions a felony (Ga. Code Ann. Sec. 53-9903), was passed by the General Assembly in 1927 (Acts of 1927, page 277).
The definition of "white persons" defines such person as being 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."
It would appear from the statutes quoted that an Ordinary may not issue a marriage license to a white person and a person of any of the races enumerated, that no civil official or Minister of the Gospel may unite them in marriage or they be united in marriage and that any such marriage is void.

155
In conclusion, I can not refrain from quoting from the opinion of the illustrious Joseph E. Brown, then Chief Justice of the Supreme Court of Georgia, in the Charlotte Scott case referred to above. In speaking of the law prohibiting intermarriage of "the two races" the Chief Justice said in part:
"It is our duty to declare what the law is, not to make law. For myself, however, I do not hesitate to say, that it was dictated by wise statesmanship, and has a broad and solid foundation in enlightened policy, sustained by sound reason and common sense. The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the fullblood of either race. It is sometimes urged that such marriages should be encouraged, for the purpose of elevating the inferior race. The reply is, that such connections never elevate the inferior race to the position of the superior, but they bring down the superior to that of the inferior. They are productive of evil, and evil only, without any corresponding good."
DOMESTIC RELATIONS-Marriage-Issuance of Licenses (Unofficial) Discusses laws pertaining to issuance of marriage licenses, and the
performance of marriage ceremonies.
August 3, 1954
The Reverend Jarrett D. Ragan You request information regarding the laws governing the issuance of mar-
riage licenses and performance of marriages.
Licenses are issued "* * * by the Ordinary or his clerk in the county in which
the female to be married resides, if she resides in this state. If she be a nonresident of the state, then by the Ordinary of the county in which the ceremony is to be performed." (Ga. Code Ann., Sec. 53-201.)
I find no limit on the time within which a license, once issued, may be used, and in the absence of statutory provision to the contrary, I assume that it would be valid indefinitely.
The Code provides that the license shall be "directed to any judge, justice of the peace or minister of the Gospel authorizing the marriage of the persons
named therein." (Sec. 53-20) and "* * * it shall be returned to the Ordinary by
the officer or minister solemnizing the marriage and forwarded by the Ordinary to the Board of Health."
There are other provisions that might be of some general interest to you. It is provided by Section 53-106 that it shall be unlawful for a white person to marry any but a white person, and a "white person" is defined as a person of the white or Caucasian race having no ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese or Chinese blood in their veins. This act was passed in 1927 but was merely a further extension of a prohibition against the intermarriage of white people and people of African ll.escent that dates back to 1866.
Another early and interesting statute touching marriage provides that "Ordained colored ministers of the Gospel may celebrate marriages between persons
of African descent only * * *". This is set out in Section 53-212. All the statutes
referred to are codified as Title 53 of the Georgia Code Annotated, Chapter 53-1 through 53-4 covering the subject of "Husband and Wife."

156
DOMESTIC RELATIONS-Marriage-Validity of License (Unofficial) A marriage performed in a county other than the one where the license
is issued, is valid.
September 15, 1954
Mr. Herbert T. Yuenger Reference is made to your question of the validity of a marriage performed
in a county other than that in which the license was issued. The Georgia Court of Appeals held in the case of Minshew v. The State, 25 Ga.
App. 240, that such marriage was legal. Headnote 1 (a) by this Court reads as follows:
"The fact that the license was issued by. the ordinary of a county in which the female did not reside, while improper and contrary to law, would not in itself render the marriage illegal; and therefore the knowledge of this fact by the marrying official would not constitute a violation of section 677 of the Penal Code. A marriage may be legal without any license at all. Clark v. Cassidy, 64 Ga. 663 (4); Dale v. State, 88 Ga. 556 (15 S. E. 287). This being true, it clearly follows that a marriage may be legal although the license was procured in the wrong county."
DOMESTIC RELATIONS-Marriage-Who May Perform (Unofficial) A Judge of a Juvenile Court may perform a marriage ceremony.
May 4, 1954
Judge L. Olin Price Clarke County Juvenile Court
You asked my unofficial opinion as to whether a county juvenile court judge can perform marriage ceremonies.
I believe that the answer to your question is found in Code Sec. 53-201 which states that a marriage license shall be directed to any judge, justice of the peace, or minister of the gospel, authorizing the marriage of the persons therein named and requiring such judge, justice of the peace, or minister of gospel to return the license to the ordinary with his certificate as to the fact and date of marriage within 30 days after the date of said marriage.
Certainly a juvenile court judge is a judge which is recognized as such law and maintains a court of record. He would go under the same similar category as the judge of the city court. Therefore, it is my unofficial opinion that you, as judge of the Clarke County Juvenile Court have the authority to perform the marriage ceremony in the State of Georgia.
DOMESTIC RELATIONS-Marriage-Prerequisites (Unofficial) Discusses requirements necessary to contract a valid marriage.
August 2, 1954
Mr. Ed. G. Clayton, Post Adjutant Reference is made to your question regarding the prerequisites for marriage
in this state.

157
According to Section 53-102 of the Georgia Code Annotated, a person must be of sound mind; if a male, at least 17 years of age and if female at least 14 years, and laboring under none of the following disabilities, viz: (1) previous marriage undissolved, (2) nearness of relationship by blood or marriage as hereinafter explained, (3) impotency.
On nearness of relationship, Section 53-105 provides that a man may not marry his stepmother or mother-in-law or daughter-in-law, or stepdaughter or granddaughter of his wife and a woman may not marry her corresponding relatives. Marriages within the Levitical degrees are void and marriages prohibited by this section are incestuous.
Moreover, according to Section 53-106 it is unlawful for a white person to marry anyone but a white person.
Marriage licenses are granted according to the provisions of Section 53-201, et seq, by the Ordinary of the County where the female resides, if a resident of this State. If she is a non-resident then by the Ordinary of the County where the marriage is to be performed. Notice must be posted where the parties have not reached the age of 21 unless the parents of the female appear and consent in writing. When notice is required to be posted, as set out above, the license may not be issued earlier than five days from the date of the application. Age may be shown by birth certificate or affidavits of two parties. No license may be issued to a female under 18 years of age until the written consent of parents or guardian shall be produced and filed in the Ordinary's office.
It is required by Sections 53-215 and 53-216 that every person, male and female, on whose behalf an application for a marriage license is made must present to the Ordinary a certificate signed by a qualified physician, licensed to practice medicine and surgery in this or some other State or territory of the United States stating that the applicant for a marriage license has been given an examination, including a standard serologic test for syphilis, and that in the opinion of the physician he or she is not infected with syphilis or, if infected, the infection is not in a stage which is or may become communicable. The certificate shall be accompanied by a statement from the person in charge of the laboratory making this test, or some other person authorized to make such reports, showing the name of the test, the date made, the name and address of the physician, and the name and address of the person whose blood was tested.
There is no specific statutory provision governing evidence of dissolution of prior marriage, but clerks or Ordinary require applicant to state in writing when and where a divorce was obtained.
DOMESTIC RELATIONS-Marriage-Prohibited Degrees of Relationship (Unofficial) Third cousins may legally marry in Georgia.
February 16, 1955
Ensign R. H. Grose, USN This is to acknowledge receipt of your letter in which you asked the following
questions:
1. John Smith and Mary Smith are first cousins. John Smith marries Fanny Jones. To this marriage a boy is born named John Smith, Jr. Now, Mary Smith marries John Brown and to this marriage a girl is

158
born named Anna Brown. What relation is John Smith, Jr. to Anna Brown? Answer: John Smith, Jr. and Anna Brown would be third cousins. John Smith, Jr. would be a second cousin to Mary Smith and Anna Brown would be a second cousin to John Smith, Sr.
2. Can first cousins twice removed or third cousins be legally married in Georgia? Answer: It is my unofficial opinion that such marriage could legally take place. However, I am referring you to Code Section 53-105 of the Annotated Code of Georgia of 1933, which reads 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, 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." Marriage within the Levitical degrees mentioned in the above Code Section may be found in the Bible in Chapter 18 of the Book of Leviticus. Georgia citizens are bound by the provisions set out in this Code Section and the above~ quoted Scripture.
DOMESTIC RELATIONS-Minors-Effect of Voting at Eighteen (Unofficial) The fact that a minor may vote at the age of eighteen does not in any
way affect the contractual powers of a minor.
October 7, 1954
Mr. E. R. Hurt I am pleased to acknowledge your letter which has been referred to this
department. You desire to know, in view of the fact that a citizen of Georgia eighteen
years of age is allowed to vote, if such aged person could execute an order blank for the purchase of personal property and be bound by said purchase.
The fact that a person of the age of eighteen years may vote in Georgia does not have any effect upon the contractual powers of a minor. The adoption of the constitutional provision of Georgia, relative to persons eighteen years of age or above voting, did not change or have any effect upon the laws of contract of this State.
DOMESTIC RELATIONS-Minors-Age of Majority (Unofficial) Legal age of majority in this State is twenty-one years.
April 20, 1955
Honorable H. C. Roth This will acknowledge receipt of your letter of April 18, 1955 in which you
ask the question, "Will you please tell me if the 'Age of majority' in your state is eighteen or twenty-one years for a male child?".

139
Code Section 74-104 of the Annotated Code of Georgia of 1933 provides: "The age of legal majority in this State is 21 years; until that age all persons are minors."
EXECUTIVE DEPARTMENT-Authority of Governor Governor authorized to pay for legal services rendered by the attorney
employed by the Georgia Commission on Education.
December 1, 1954
Honorable Herman E. Talmadge Governor of Georgia
I am pleased to acknowledge your request that I advise you if the Georgia Commission on Education, established by a Joint Resolution at the NovemberDecember 1953 Session of the General Assembly (Ga. Laws 1953, Nov.-Dec. Sess., p. 64), has the authority to pay for legal services rendered by the Commission's attorney.
Sections 8 and 10 of the Act in question provide: "Section 8. The Chairman of said Commission is authorized to assign
quarters and to employ such help, technical assistance and legal counsel to aid the Commission in the performance of its duties as he may deem proper, and to fix their compensation.
"Section 10. Such funds as are necessary to effectuate the purposes of this resolution shall be made available by the Bureau of the Budget from moneys appropriated from the operation of the General Assembly and from such other funds as the Bureau of the Budget may from time to time transfer to said Commission." Under the above statutory authority, you, as Chairman of the Georgia Commission on Education, would be clearly authorized to pay for legal services rendered by the Commission's attorney employed by you.
EXECUTIVE DEPARTMENT-Proclamation of Governor 1. The Governor may rescind his official proclamation declaring an
Amendment to the Constitution as a Law, where it appears that it did not receive the requisite affirmative vote.
2. A Proclamation of the Governor may be amended by a subsequent proclamation.
December 23, 1954
Honorable Herman E. Talmadge Governor of Georgia
This will acknowledge receipt of your letter, the pertinent part of which reads as follows:
"My office has received certified copies of communications addressed to you and to Honorable Ben W. Fortson, Jr., Secretary of State, revising or 'breaking down' the number of votes cast in Fulton County and various political subdivisions on proposed Constitutional Amendment No. 32 in the General Election held on November 4, 1954.

160
"You will recall that the original certification filed with Mr. Fortson did not give such a complete breakdown and according to that original certification Amendment No. 32 received the requisite majority vote in Fulton County. A proclamation was therefore duly issued from my offic~ proclaiming Amendment No. 32 a law of this State.
"The subsequent memorandum from Ordinary Eugene Gunby of the Fulton County Court to Honorable Ben W. Fortson,. dated December 1, 1954 and the copy of the letter from Judge Gunby of the same date addressed to you indicate that Amendment No. 32 failed to receive a majority of the affirmative votes in the political subdivision where the Amendment will be effective.
"I would, therefore, appreciate your official opinion as to whether I can legally rescind my official proclamation declaring Amendment No. 32 a law of this State." It appears that the voters in Fulton County School District did not ratify Constitutional Amendment No. 32 and, consequently, such amendment did not become a part of the Constitution. I am of the view that you may legally rescind your previous proclamation, declaring Constitutional Amendment No. 32 as having been ratified and as having become a part of the Constitution of this State. I might suggest that perhaps the easiest method to accomplish this would be by a further brief proclamation, amending your previous proclamation, so as to show that Constitutional Amendment No. 32 should be listed in that group which you proclaimed as not having been ratified rather than in the group which you proclaimed as having been ratified. Of course, this is merely a suggestion and the method by which you accomplish the desired result is entirely up to you. Ample authority for the position taken in this opinion will be found in the case of Towns, et al V Suttles, Tax Collector, 208 Ga. 838.
EDUCATION-County Boards of Education-Compensation (Unofficial) Public school funds cannot be used to reimburse members of a County
Board of Education for expenses incurred in attending professional and educational conferences and meetings.
January 28, 1954
Honorable W. J. Andrews I am pleased to acknowledge your request as to the following question: Whether members of county boards of education may be reimbursed from public funds for expenses incurred in attending professional and educational conferences and meetings. The general provision covering compensation for members of a county board
of education is found in Georgia Code Annotated Section 32-904 (various population Acts are noted in the Annotated, Code under this Section). It provides as follows:
"The members of the board of education in each county shall be paid a per diem not to exceed $2 for each day's actual service out of the school fund appropriated to .the county; and their accounts for service shall be submitted for approval to the ordinary or county superintendent of s<;hools; and they shall not receive any other compensation such as exemption from road duty and jury duty." (Emphasis supplied.)

161
The purposes for which the public school fund. may be used are set out in Georgia Code Annotated, Section 32-942, which 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 fund and keep the same separate and distinct from other funds, and said funds shall be used for educational purposes and none other, ... " (Emphasis supplied.) Under the above provision the Court in Burke v. Wheeler County, 54 Ga. App. 81, held that it was illegal for the county board of education to obligate itself to pay one-half of the compensation needed to employ an accountant to audit the books of county officers. We find the following comment in 47 American Jurisprudence, Section 92, Page 363 ~nd 364:
"School funds are held to be trust funds for educational purposes which the courts will not permit to be diverted to other even though closely kindred uses, no matter how meritorious the project may appear -to be in its practical, ethical, or sentimental aspects. . . . , school funds can be expended by local bodies only for purposes authorized by statute either expressly or by necessary implication....
"And it has been held that the expenses of school officers in attending educational conventions, even though such attendance is highly desirable and instructive, cannot be paid from the school funds.... " (Emphasis supplied.) In this connection see Smith v. Holovtchiner, 101 Neb. 248, 162 N. W. 630, LRA 1917 E. 331. On the basis of the above authority, it is my opinion the public school funds cannot be used to reimburse members of a county board of education for expenses incurred in attending professional and educational conferences and meetings.
EDUCATION-County Board of Education-Compensation 1. Georgia Laws, 1953, November-December Session, page 60 providing
for compensation of members of County Board of Education of Towns County, is unconstitutional.
2. .County officers may be paid on a fee basis, salary basis, or a fee basis supplemented by salary in such manner as may be directed by law, and this may be done by a local or special Act.
April 28, 1954
Honorable M. D. Collins State Superintendent of Schools
You request my opinion as to the constitutionality of an Act passed at the November-December 1953 Session of the General Assembly relating to compensation of members of the county boards of education in certain counties.
The Act in question may be found in Georgia Laws 1953, November-December Session, page 60. Section 1 reads as follows:
"Section 32-904 of the Code of Georgia, relating to the compensation of the members of the county boards of education, is hereby amended so that in all counties having a population by the last census of not more than 4,820 and not less than 4,520, the compensation of the members of

162
the boards of education in all such counties shall be $10.00 per diem for each day's actual service to be paid out of the school fund appropriated to the county, rather than $4.00 as heretofore provided."
Article I, Section IV, Paragraph I, of the Constitution of Georgia (Code Sec. 2-401) provides, in part, as follows:
"Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." Section 32-904 of the Code of Georgia reads as follows:
"The members of the board of education in each county shall be paid a per diem not to exceed $2 for each day's actual service out of the school fund appropriated to the county; and their accounts for service shall be submitted for approval to the ordinary or county superintendent of schools; and they shall not receive any other compensation, such as exemption from road duty and jury duty."
From this Code section we see that there is a general law relating to the compensation of members of the various county boards of education. It, therefore, becomes necessary to ascertain whether the 1953 Act is a special or general law. It will be noted that the population figures used in the Act restrict its application to one county, that being Towns, which, according to the official Federal census of 1950, had a population of 4,803. It is interesting to note that a very similar Act, which was dealt with in the case of Gibson v. Hood, 185 Ga. 426, also applied to Towns County. The Act in question there was one approved March 1, 1933 (Ga. Laws 1933, p. 52) and provided that in all counties having a population of not more than 4,350 nor less than 4,340, according to the official census of the United States of 1930 or any future census, the county board of education was to be appointed by the superior court judge of the county. There, too, the only county affected was Towns. That Act was held to be unconstitutional and the first headnote reads as follows:
"1. The possibility of other counties having such population by any subsequent census is too remote to form a basis for a reasonable classification on the subject of territorial generality of the act; and in passing on its constitutionality the act will be construed as applying only to Towns County, and consequently it is a special law within the meaning of the constitution inhibiting the passage of special laws for which provision has been made by an existing general law. The act is more restricted, relatively to the generality of its application, than the acts involved in Thomas v. Austin, 103 Ga. 701 (30 S. E. 627), which were held not to be general laws."
It will be seen that the 1953 Act does not have the usual phrase found in the majority of the "population" Acts, namely, "or any other census." In other words, it is limited forever in its application to only the County of Towns, since it states that the only counties affected are those which have the specified population by the last census. The Supreme Court in the case of Barge v. Camp, 209 Ga. 38, quotes with approval the following statement from the case of Murphy v. West, 205 Ga. 116:
"The General Assembly may make classification for the purposes of legislation and may enact general laws with reference to such classes. Where the basis of classification is that of population, in order to be a general law it is necessary that such classification shall be open to let in

163
any county or city which by any future census might have the stipulated population.' "
The Act in question has so defined the classification by population that no county in the future could come into the Act and the affected county could not be let out of the Act.
An identical situation existed in the case of Medders v. Stewart, 172 Ga. 507. The Court there stated as follows:
"The so-called class is so hedged about and restricted that the act applies to only one county, and other counties coming within the class provided cannot also come within the purview of the law; and therefore it is a local or special act, and not a general one.... The classification by population is limited to the United States census of 1920, and can not be affected by future census enumerations, and only a county having not less than 6458 and not more than 6462, under the census of 1920, falls within the classification.'' It is evident that the Act in question is a special Act.
It has been established that county officers may be paid on a fee basis, salary basis, or a fee basis supplemented by salary in such manner as may be directed by law, and that this may be done by a local or special Act. A decision to this effect was handed down by the Supreme Court in the case of Houlihan v. Saussy, 206 Ga., page 1, based in the main upon Article XI, Section II, Paragraph II, of the Constitution (Code Sec. 2-7902). A member of a county board of education has been held to be a county officer. See Stanford v. Lynch, 147 Ga. 518, and cases therein cited. Therefore, it might be said that this Act is constitutional for that reason, even though it is a local or special act. However, the county officers which are dealt with in Code Section 2-7902 are those which are dealt with in Code Section 2-7901, which is Paragraph I of Section II of Article XI. That provision reads as follows:
"The county officers shall be elected by the qualified voters of their respective counties or districts, and shall hold their office for four years. They shall be removed upon conviction for malpractice in office; and no person shall be eligible for any of the offices referred to in this paragraph unless he shall have been a resident of the county for two years and is a qualified voter.''
Members of the county boards of education do not fall within the provisions of that section of the Constitution, inasmuch as they are selected by the grand jury and their term of office is five years. See Article VII, Section V, Paragraph I of the Constitution (Code Sec. 2-6801).
Even under the assumption that the compensation of members of the county board of education could be set by a local Act, the particular Act in question would still be unconstitutional because "Notice of Publication of Intention to Introduce Local Legislation" and the affidavit of the author or certificate of the publisher to that effect was not attached to the enrolled bill, as required by Article III, Section VII, Paragraph XV, of the Constitution (Code Sec. 2-1915).
It is my opinion that the Act approved December 10, 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 60) is unconstitutional, for the reason set out above. I wish to point out, however, that the final authority with regard to declaring an Act of the General Assembly unconstitutional rests with the courts.

164
EDUCATION-County Board of Education-Condemnation 1. County Boards of Education have power of condemnation. 2. Local school systems in existence at time of adoption of 1945 consti-
tion not affected by 1945 constitution.
November 4, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request as to whether the Savannah and Chatham Count:y Board of Education has the power of condemnation.
The general power of a County Board of Education to condemn private property for school purposes is found in Georgia Code Annotated, Section 32-951, which provides as follows:
"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 behereafter authorized by law." [See Ga. Laws, 1956, p. 100.] The procedure to follow is set out in Georgia Code Annotated, Section 32-952. I know of no local and special act as to the Savannah-Chatham system which is in conflict with this general provision. The local Board's own attorney should check further to make sure that there is no such conflict. If there is a law in force having entirely a local application, such local law is not repealed .by the general law, unless so expressly declared. See Georgia Code Annotated, Section 102-107; Davis v. Dougherty County, et al, 116 Ga. 491. While the Savannah-Chatham system was established prior to the adoption of the Constitution of 1877, it is subject to change by the Legislature. Board of Education v. State Board, 190 Ga. 581, 587, held that the constitutional provision that "Existing local school systems shall not be affected by this Constitution" (2-7301), is not a prohibition against legislative en:~ctment changing such systems.
EDUCATION-County Board of Education-Condemnation (Unofficial) (1) Questionable whether Board of Education may obtain fee simple
title to property by condemnation. (2) Advisable for petition of condemnation to be brought in name of
individual members of Board of Education.
February 14, 1955
Honorable Fred A. Gillen This letter is written pursuant to your discussion a few days ago with a
member of my staff relative to a proposal of the Oglethorpe County Board of Education for the condemning of a certain strip of property to be used for drainage purposes by one of your county school buildings.
You requested that we furnish you with any information which we think you
should have relative to this matter. I am further informed that the facility in
question is to be financed by the State School Building Authority. While I am sure you realize that the Law Department does not itself institute
such proceedings with the result that we are not too intimately familiar with the

l65
mechanics of condemnation, there are ~wo cardinal principles which l think should
be kept in mind.
First, the standard contract executed by .the School Building Authority requires that the contracting board of education furnish fee simple title to the real estate upon which the school building is to be constructed. There is some question as to whether or not a school board may obtain fee simple title by condemnation. The original school condemnation Act of 1947 (Code Ann., 1952 Rev., 32-952) provided,
"Condemnation proceedings by the county boards of education as authorized by section 32-951 shall take the form provided in Chapters 36-1 through 36-6."
In 1953, this section was amended so as to authorize condemnation proceedings to be brought under Chapter 36-11 of the Code. (See 32-952, Code :Ann., 1954 Rev.)
Under the procedure embraced in Chapters 36-1 through 36-6, it is clear that a fee simple title cannot be obtained~at least in this instance. See Code, 36-606.
Under Chapter 36-11, however, the provisions of which were made applicable to county boards of education by the 1953 amendment above refe:tnid to, fee simple title may be obtained. Code, 36-1104 (Supp.); but see State Highway Department v. Hastings Co., 187 Ga. 204 (5), holding that a fee simple title is obtainable under this Chapter only where necessary to accomplish the desired purpose. The difficulty arises however, in that Chapter 36-11, by its own terms, is available for use only where the condemnor has reason to believe that the "title of the apparent or presumptive owner of such property is defective, doubtful, incomplete or in controversy, or that there are or may be persons unknown or nonresident who have or may have some claim or demand thereon, etc." Code Ann., 36-1104 (Supp.). It is highly questionable whether your situation would come under the provisions of 36-1115, but I make no opinion thereon for lack of knowledge as to all the facts involved. Similarly, it is doubtful whether the amendment of 1953 to 32-952 used sufficient language to support the interpretation that the lawmakers intended Chapter 36-11 to apply to school boards without the existence of the conditions required by 36-1104. As a matter of fact, this was probably the intention of the legislature, but that intention appears to have been rather poorly expressed.
Therefore, in my opinion, it would be advisable for you to acquire fee simple title to the desired property by purchase, if possible. Until the Supreme Court has had occasion to pass upon this question, it is problematical as to the effect of the 1953 amendment.
My second suggestion is that in the event you nevertheless decide to institute condemnation proceedings, the petition should probably be brought in the name of the individual members of the Board of Education, for unless the Court construes 32-951 as authorizing suits in the name of the board itself, the case of Parker v. Board of Education of Sumter County, 209 Ga. 5, says that a Board of Education, not being a body corporate, can not sue or be sued in its name. See also Opinions of the Attorney: General, 1952-53, p. 57.

166
EDUCATION-County Board of Education-Contracts (Unofficial) County Board of Education has authority to contract with municipality
for sewerage facilities for the public schools.
August 29, 1955
Honorable Owen H. Page
Senator, First District, Savannah, Georgia This is in reply to your questions concerning a contract between the Board of
Education of Chatham County and the City of Savannah for sewerage facilities. Article VII, Section VI, Paragraph I of. the Constitution of the State of
Georgia of 1945 (Code Section 2-5901) provides for contracts for use of public facilities.
In Walker v. McKenzie, 209 Ga. 653, at page 656, the Court said:
"Art. 7, sec. 6, par. 1 (a) of this Constitution (Code, Ann., 2-5901) provides that any county of this State may contract with another county for any period not exceeding fifty years for the use by the county or the residents thereof of any facilities or services of that county, provided such contracts shall deal with such activities and transactions as such counties are by law authorized to undertake. Although this constitutional provision does not expressly authorize a county board of education to enter into a contract with the county board of education of another county, contracts made by a county board of education are the corporate actions of the county. Therefore, this constitutional authority given to counties includes county boards of education."
In a recent case, Norton v. City of Gainesville, 211 Ga. 387, Justice Head in concurring specially stated:
"The Constitution of 1945, art. VII, sec. VI, par. I (Code, Ann., 2-5901), authorizes contracts by a city or municipality with a governmental agency or public agency discharging governmental functions for a period not exceeding fifty years. The Gainesville Lions Club is not a governmental or public agency within the meaning of the constitutional provision referred to, and the contract entered into by named individuals as members of the Gainesville Playground and Recreation Board with Gainesville Lions Railway Company and the Gainesville Lions Club violates the rule that one council of a municipality may not by ordinance or contract bind itself or its successors so as to prohibit free legislation in matters of municipal government. Code 69-202; Horkan v. City of Moultrie, 136 Ga. 561 (71 S. E. 785); City Council of Augusta v. Richmond County, 178 Ga. 400 (173 S. E. 140); Aven v. Steiner Cancer Hospital, 189 Ga. 126 (5 S. E. 2d 356); Screws v. City of Atlanta, 189 Ga. 839 (8 S. E. 2d 16)." The cases cited by him predate the 1945 Constitution.
It would seem that the Constitutional provision wottld supersede Code Section 69-202 and that a contract between the Board of Education of Chatham County and the City of Savannah would come within the Constitutional provision.

167
EDUCATION-County Board of Education-Duties (Unofficial) Discusses duties of County Board of Education and County School Super-
intendent.
February 19, 1954
Honorable B. L. Coram
I am pleased to acknowledge your request as to the duties of the County School Superintendent and the County Board of Education.
A. Constitutional Provisions. Article VIII, Section V, Par. I, provides in part, as follows:
"Authority is granted to counties to establish and maintain public 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." Article VIII, Section VI, Par. I, provides in parts as follows:
"There shall be a County School Superintendent who shall be the executive officer of the County Board of Education..."
B. Statutory Provisions.
Georgia Code Annotated, Section 32-912, provides as follows: "The county superintendent of schools and county board of education
shall make rules to govern the county schools of their respective 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. Said board may suspend the county superintendent of schools for incompetency, wilful neglect of duty, misconduct, immorality or the commission of crime involving moral turpitude, and may suspend teachers for non-performance of duty, incompetency, immorality or inefficiency, and for other good and sufficient cause. In each case appeal may be taken to the State Board of Education." Georgia Code Annotated, Section 32-1009, provides as follows: "The county superintendent of schools shall constitute the medium of communication between the State Superintendent of Schools and the subordinate school officers. He shall be the agent of the county board in procuring such school furniture, apparatus, and educational requisites as they may order, and shall see that none but the prescribed textbooks are used by the pupils; shall audit all accounts before an application is made to the county board for an order for payment; he shall procure a book in which he shall keep a record of his official acts, which, together with all the books, papers and property appertaining to his office, he shall turn over to his successor. It shall be his duty to enforce all regulations, rules, and instructions of the State Superintendent of Schools and of the county board of education according to the laws of the State and the rules and regulations made by the said board of education that are not in conflict with the State laws; and he shall, together with the State supervisors, superintend the county normals and institutes for the teachers of his county, and shall visit every school, both white and colored, within his school district which receives State aid, at least once every 60 days, and familiarize himself with the studies taught in said schools, see what

168
advancement is being made by the pupils, advise with the teachers and otherwise aid and assist in the advancement of education." As to the election of teachers, Georgia Code Annotated, Section 32-604 provides jn part as follows:
"... 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."
EDUCATION-County Boards of Education-Jurisdiction 1. As to the Authority to Contract, the provisions of Act VII, Section VI,
Paragraph 1 (2-5901) apply to Boards of Education.
2. Where the corporate limits of a municipality are extended so as to take in an area where a county school is located, the school authorities of the independent municipal system succeed to the control of all educational matters in such area, and also to title to real estate held as public school property, in the absence of express intent on the part of the Legislature or in the absence of an agreement between the interested parties.
3. Method. of suing County Board of Education discussed. 4. Contract between City and County Board of Education may not exceed fifty years. 5. Territorial jurisdiction between City and County Board of Education may be established by contract.
April 13, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request of March 23, 1954 as to the legality of contracts between City and County Boards of Education regarding their respective territorial jurisdictions.
Where the corporate limits of a municipality are extended so as to take in an area where a county school is located, the school authorities of the independent municipal system succeed to the control of all educational matters in such area and also to title to real estate held as public school property, in the absence of express intent on the part of the legislature or in absence of an agreement between the interested parties. Board of Fulton v. Board of College Park, 147 Ga. 176.
L What authority does the County Board of Education have to contract with a municipal Board of Education?
The general authority for City and County Boards of Education to contract is found in Georgia Code Annotated, Section 2-7201, which provides as follows:
"County Boards of Education and independent school systems may contract with each other for the education, transportation, and care of pupils." See Walker v. McKenzie, 209 Ga. 653; Fordham v. Harrell, 197 Ga. 135; Keever v. Board of Education of Gwinnett County, 188 Ga. 299; Snipes v. Anderson, 179 Ga. 251.

169
Georgia Code Annotated, 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 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." This provision was interpreted in Walker v. McKenzie, 209 Ga. 63, to apply to Boards of Education. 2. If the right to contract exists, should the contracting parties on behalf of the municipality be the Mayor and Council or the Board of Education? The case of Parker v. Board of Education of Sumter County, 209 Ga. 5, held that a County Board of Education "is not a natural person, a partnership, a corporation, nor an artificial person authorized by law as capable of suing." The proper method of suing is "by named individuals as the duly qualified and acting members of a Board of Education, brought in their official and representative capadty as such members in behalf of the board." Here the agreement would be betweeri the County Board and the City Board, not between the County and City. Therefore, under authority of the Parker case, supra, the contract would be between the City and County Board members as individuals in their official and representative capacity. 3. What period of time may such a contract cover? The period cannot exceed fifty years. Georgia Code Annotated Section 2-5901. 4. To what extent may one Board bind a succeeding Board on such matters? 78 C. J. S. page 1255, Section 278, provides in part as follows:
"Although it has been said that a public school. board or officers cannot enter into a school contract so as to limit the discretion of their successors, contracts which were valid when made are binding on the successors of the board or officers making them, except where the contract is not for a necessary matter, or is for an unreasonable length of time, or where fraud attaches...." 5. May such a contract vest in the County Board of Education title to land in the municipality and vest in such County Board of Education on the right to control any school located in the municipality? The dicta of Board of Fulton v. Board of College Park, supra (in the absence of an agreement between the parties) is to the effect that territorial jurisdiction between City and County Boards of Education may be established by contract.
EDUCATION-County Boards of Education-Meetings (Unofficial) Meetings of County Boards of Education must be open to the public,
except that a public school system established prior to the adoption of the Constitution of 1877 is not required to have such open meetings.
March 9, 1954
Honorable T. Lawrence Palmer, Jr. I am pleased to acknowledge your request of February 22, 1954 as to whether
the Board of Education for Savannah and Chatham County may hold an official meeting which is closed to the public.

170
The 1945 Constitution of the State of Georgia, Article VIII, Section VIII, Paragraph I, provides as follows:
"All official meetings of County Boards of Education shall be open to the public."
This provision is quite clear that no official meeting of a County Board of Education can be closed to the public. However, the Georgia Constitution of 1945, Article VIII, Section X, Paragraph I, also provides:
"Public schools systems established prior to the adoption of the Constitution of 1877 shall not be affected by this Constitution."
In my opinion the Savannah-Chatham public school system, being established in 1866, is not affected by the provision requiring official meetings to be open to the public. See, State Board v. Board of Savannah, 186 Ga. 783 (1938).
The meaning of the word "affected" is set out in the case of Board of Education (Bibb) v. State Board of Education, 190 Ga. 581 (1940), wherein the Court said:
".. We can not sustain the contention that it was the purpose of this clause to perpetuate existing systems as against any possible change by the legislature so long as the constitution itself remained of force, and without amendment in relation to these systems. Any such construction would virtually lift the special acts from the realm of legislative action and incorporate them as parts of the constitution itself. We think on the contrary that they were merely continued in effect, with 'the force of statute law' (Code, 2-8504), until 'modified or repealed by the General Assembly' ( 2-8503). If they were not 'affected' by the constitution, it must necessarily be true that they were neither strengthened nor weakened by that instrument, but' were simply left to stand as if the constitution itself had not been adopted. The constitution did 'preserve' and continue them to this extent, that is, against destruction or modificaion by any provision which the constitution itself contained; but further than this it did not go..." (Emphasis added.) See, also, Nichols v. County Board of Education, 203 Ga. 755 (1948).
We see that, while the constitutional provisions of 1945 concerning education do not affect the Savannah-Chatham Public School System, any subsequent legislation by the General Assembly would. In this regard, Georgia Code Annotated, 32-908, provides as follows:
"It shall be the duty of the county board of education to hold regular sessions on the first Tuesday of the month succeeding the election, and each month thereafter at the courthouse of the county, for the transaction of business pertaining to the public schools, with power to adjourn from time to time; and in case of the absence of the president or secretary, they may appoint one of their own number to serve temporarily."
While this provision requires board of education to hold regular sessions at a specified time and place, it does not require that the meetings be open to the public.

171
EDUCATION-County Boards of Education-Meetings
(a) County Board of Education cannot have an official meeting without the presence of the School Superintendent.
(b) County Board of Education cannot delegate duties of local School Superintendent to another person.
(c) County Board of Education can require that a member of the Board countersign checks.
October 17, 1955
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request concerning certain questions as to the authority of a county board of education and the county school superintendent.
"1. Can a County Board of Education have an executive meeting and bar the School Supt. from such meeting?"
The Georgia Constitution (Ga. Code Ann., 2-7201) provides that "All official meetings of County Boards of Education shall be open to the public." It is clear from this provision that every citizen has a right to attend official meetings of a county board of education. These meetings take place on the first and fifteenth of each month at the county seat. Ga. Code Ann., 32-908 (as amended, Ga. Laws 1955, p. 625).
Ga. Code Ann., 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 respective 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...."
See also Ga. Code Ann., 32-907 which states that the "county superintendent of schools shall be ex-officio secretary of the board."
Since the above Code sections require the county superintendent to act as secretary to the board and make a permanent record of the meetings, it is my opinion that he must of necessity be permitted to attend any offichil meeting of the county board of education. To hold otherwise would prevent him from carrying out mandatory duties imposed upon him by law.
"2. Can the Board of Education delegate the powers of the Superintendent to some other person without his consent (Supt.) or with his consent?"
A county school superintendent is a constitutional officer (Ga. Code Ann., 2-6901) elected by the people of the county for a term of four years. His duties are set out in Ga. Code Ann., 32-1009. Where a person has been duly elected and is serving under the law as county school superintendent, it is apparent from what is stated above that the local board of education could not delegate his duties to any other person. Where the office is vacated by death, resignation, removal or any other cause, the county board of education shall elect a successor for the unexpired term.
Ga. Code Ann., 32-1003 provides as follows:
"In the case of a vacancy by death, resignation or removal from office, or from any cause whatever, in the office of county superintendent of

172

schools in any county, the county board of education shall elect a county

superintendent of schools for the unexpired term."

As to his removal from office, Ga. Code Ann., 32-1008 provides as follows:

"The county superintendent of schools may be removed from office

before the expiration of his term by a majority vote of the board of edu-

cation for inefficiency, incapacity, J;J.eglect of duty or malfeasance or cor-

ruption in office: Provided, that any superintendent so removed shall have

the right of appeal from the action of the county board to the State Board

of Education, and provided, further, that this section shall not apply to

any public school system established prior to the adoption of the Consti-

tution of 1877."

'

"3. Can the Board of Education legally pass a resolution authorizing some member of the Board of Education to countersign checks, and if so should they be required to be under bond also?"

Ga. Code Ann., 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."

The above Code section allows the county superintendent to disburse the school fund only upon the order of the county board of education, and in my opinion this order could require that the check be countersigned by a member of the board. The question of the bond as to the member countersigning is a matter for the county board of education to decide. The law specifically requires a bond on the part of. the county school superintendent. Ga. Code Ann., 32-1005.

EDUCATION-County Boards of Education-Members Membership of Griffin-Spalding County .Board of Education discussed.
February 4, 1954
Honorable Ben W. Fortson, Jr.
Secretary~f'State
I am pleased to acknowledge your request of January 27, 1954, as to the terms for which members from County Districts 3 and 5 should be commissioned, pursuant to their election by the Griffin-Spalding County Board of Education on January 11, 1954.
Your letter states that no person was elected in the December 13, 1953 election to fill the three-year terms for County Districts 3 and 5; that the members for these Districts held-over in 1953 and continued to serve until their resignation on January 11, 1954; and that on this date the Board of Education elected Mr. Roy G. Vickery to serve from District 3 and Mr. Billy G. Brooks to serve from District 5.
An amendment to Article VIII, Section V, Paragraph I of the Georgia Constitution, Georgia Laws 1952, p. 554, provides in part as follows:
" 'The initial membership of the said board of education shall be appointed within five (5) days after the effective date of this amendment by the Board of Commissioners of the City of Griffin and the Commissioners of the City of Griffin and the Commissioners of Roads and Reve-

173

nues of Spalding County, five from within the corporate limits of the City of Griffin and five residents of said county residing outsi.de of the said corporate limits, .and each m.ember shall be appointed for a term of one year, and such members shall serve until their successors are elected and qualified as herein provided.'" (Emphasis supplied.)

It is evident that this amendment provides for the members of County Districts 3 and 5 to hold-over for the full term on the failure to elect their successors.

Georgia Laws 1953, page 2563, provides in part as follows:

"The death or resignation of a member of said board, . . shall be

deemed to create a vacancy on the board with respect to such member.

Any vacancy on said board shall be filled by the majority vote of the

remaining members at a meeting duly called and held for that purpose, ...

"If the unexpired terms of the member creating such vacancy shall

expire at the end of the calendar year in which it occurs and which is

also a year in which elections for board members are to be held, as herein

provided1 then the board may fill such vacancy :for the unexpired term; otherwise said board may fill such vacancy only for the period ending

December 31 of the next succeeding calendar year in which elections for

such board members are to be held, at which such election a member of

said board shall be elected to fill the remainder of the unexpired term.

Any such vacancy so filled shall be until the successor thereto is elected

andqualifled." (Emphasis Supplied;)



Upon the resignation of the hold-over members of County Districts 3 and 5, a vacancy was created in each district. Such vacancies were filled by the board of education. The Act states that the vacancy filled would be for a term ending December 31 of the next succeeding calendar year in which elections of such board members are to be held. For a vacancy filled on January 11, 1954, this would mei:m December 31, 1956. :(There is no election for board members in 1955). It works out that this is also the end of the three year term.
It is my opinion that Mr. Roy G. Vickery and Mr. Billy G. Brooks should be commissioned for the terms of January 11, 1954 to December 31, 1956.

EDUCATION-County Boards of Education-Members (Unofficial)
The laws of Georgia make no provisions for representation of service personnel on local Boards of Education.

September 20, 1954

Mrs. Maxine B. Olsted

Your request for information concerning the method of selecting boards .of

education in a:r:eas having a high percentage of children of military personnel, is

hereby acknowledged.

.

The Georgia Constitution (Article VIII, Section V, Paragraph 1; Code Anno-

tated 2-6801) as well as the Georgia Code (Section 32.-902, 1952 rev.) provides

that the grand jury of each county shall select from the citizens of their respective

counties five (5) freeholders, who shall constitute the county board of education.

The Georgia Code, Section 59-106, provides that the grand jurors shall be

selected from the books of the tax receiver. In Dameran v. Brodhead,. decided by

the U. S. Supreme Court (345 U. S. 322, 97 L. Ed. 104) it was held that a service-

man stationed in a state other than the state of his original residence could not

174
be subjected to taxation in the former state, so it is therefore clear that a serviceman could not serve on a grand jury, although this by itself would not prohibit the grand juries from appointing a serviceman as a member of the county board of education. However, the law provides that the grand juror must be a freeholder, so there is some question as to whether or not in a majority of cases a serviceman would meet this definition.
The State Department of Education informs me that the State does not operate any schools on any of the U. S. military reservations of this State, but that in a number of instances children living on such military reservations are transported therefrom to points within the county where they attend state schools. No provision is made in any of these cases for extending representation to the military personnel.
At various times in the past including the recent session of the Georgia General Assembly of 1953, it has been proposed that a constitutional amendment be passed which would change the manner of selecting the members of the county boards of education from appointment by the grand jury to election by the qualified voters. Should this amendment be passed and adopted, it would practically foreclose any possibility of representation on behalf of military personnel since generally a serviceman stationed in a state does not become a resident thereof in a legal sense so as to be entitled to vote, which is usually one of the qualifications to hold office. Numerous counties in this State has adopted constitutional amendments providing for election of the board of education by qualified voters, but unfortunately, I have no information as to the number of such counties.
EDUCATION-County Boards of Education-Members 1. Member of City Council is eligible to serve as a member of County
Board of Education. 2. A person residing within an independent school district cannot be
elected to the County Board of Education.
October 6, 1954
Honorable M. D. Collins Superintendent of Schools
I am pleased to acknowledge your request of September 29, 1954, as to whether a member of a local board of education and a member of the city council are ineligible to serve as members of the county board of education.
1. City Council The date of the election is the time at which a person's eligibility for public office is determined. Hulgan v. Thornton, 205 Ga. 753, 757. Ga. Code Annotated, Section 89-103 prohibits a person from holding at one time more than one county office, but this provision does not apply to two offices where one is a county and the other is a city office. Long v. Rose, 132 Ga. 288, held that one who held the office of solicitor of the county court is not ineligible to hold the office of mayor of a municipal corporation located in such county; nor are the holders of the offices of county treasurer and member of the board of education of the county ineligible to hold the offices of alderman of such municipal corporation. Therefore, it is my opinion that a member of the city council is eligible to serve as a member of the county board of education. 2. Local Board of Education

175
The answer to this question depends upon which area the person resideswithin the independent school system or in the county area outside the independent school system.
Article VIII, Section V, Paragraph I of the Georgia Constitution of 1945 provides in part as follows:
"The members of the County Board of Education of such county shall be selected from that portion of the county not embraced within the territory of an independent school district."
The Constitution is clear that a person residing within an independent school district could not be elected to the county board of education.
EDUCATION-Boards of Education-Members (Unofficial) Law relative to method of electing members of Board of Education quoted.
April 11, 1955
Mr. J. B. Hill, Sr.
I am pleased to acknowledge your request as to the method of electing County Boards of Education.
Article VIII, Section V, Paragraph I of the Georgia Constitution (Code 2-6801), provides as follows:
"... The Grand Jury of each county shall select from the citizens of their respective counties five freeholders, who shall constitute the County Board of Education. Said members shall be elected for the term of five years except that the first election of Board members under this Constitution shall be for such terms that will provide for the expiration of the term of one member of the County Board of Education each year. In case of a vacancy on said Board by death, resignation of a member, or from any other cause other than the expiration of such member's term of office, the Board shall by secret ballot elect his successor, who shall hold office until the next Grand Jury convenes at which time said Grand Jury shall appoint the successor member of the Board for the unexpired term. The members of the County Board of Education of such county shall be selected from that portion of the county not embraced within the territory of an independent school district." Ga. Code Ann., 32-902.1, provides as follows:
"The members of the county boards of education in those counties in which the grand jury selects such members pursuant to Article VIII, Section V, Paragraph I of the Constitution of Georgia of 1945, as amended ( 2-6801), shall be selected by the last grand jury immediately preceding the expiration of the term of the member that the member to be selected will replace."
Many counties have adopted a local constitutional amendment providing for the election of their County Board of Education by the voters of that particular school district. There is no uniformity as to the specific language of these various local amendments.

176

EDUCATION-County Boards of Education-Members When there are only four militia districts in a county, two members of
the Board of Education may come from one district.

May 18, 1955

Dr. M. D. Collins

State Superintendent of Schools

I am pleased to acknowledge your request as to whether it is legal for two

members of a county board of education to reside in the same militia district where

a county has only four militia districts.

Ga. Code Ann., 32-903, provides that in selecting the members of a county

board of education, the Grand Jury shall not select any two from the same

militia district or locality,

The Georgia Constitution of 1945 (Ga. Code Ann., 2-6801) provides that the

Grand Jury of each county shall select from the citizen,s of their respective

counties five freeholders, who shall constitute the county board of education.

There is no provision in the Constitution as to any restriction of one member to

each militia district.

,

The case of McCollum v. Bass, 201 Ga. 537, held that Section 32-903 was not

repealed or superseded by the adoption of the Constitution of 1945. This case did

not present the question involved here.

If a county has less than five militia districts, the application of Code Section

32-903 is in conflict with the Georgia Constitution of 1945 which provides for a

five-member county board of education.

The Georgia Co:iiStitution of 1945 (Ga. Code Ann. 2-402) 'provides. that

"Legislative Acts in violation of this Constitution, or the Constitution of the

United States, are void, and the Judiciary shall so declare them."

On the basis of the above authority, it is my opinion that it is legal for two

members of a county board of education to reside 'in the same militia district

where the county has otiiy four militia districts.

EDUCATION-County Boards of Education-Members (Unofficial)
Removal of residence of member of Board of Education into another militia district where another member of the board resides terminates his membership and creates a vacancy on the board, which may be filled by the Judge of the Superior Court.
July 13, 1955
Mr. J. R. DeLoach County School Superintendent Bryan County Board of Education
I am pleased to acknowledge your letter of July 7, 1955, as to the legal effect of a member of a county board of education moving from one militia district within a county to another militia district.
Ga. Code Ann., 32-903, provides in part as follows: "... Whenever a member of the board. of education moves his resi-
dence into a militia district where another member of the board. resides, or in 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."

177
Ga. Code. Ann., 32-905, provides in part at;; follows: ".. the judges of the superior courts. shall have power to fill vacan-
cies, by appointment, in the county board of education for the counties .composing their respective judicial circuits, until the next session of the grand juries in and for said co1.mties, when said vacancies shall be filled by said grand juries."
EDUCATION-County Boards of Education-Members A member of a County Board of Education may contract with the State
School Building Authority.
October 3, 1955
Honorable M. D. Collins State Superintendent of Schools Department of Education
. I am pleased to acknowledge your request as to whether a citizen may serve on a county board of education while he has a sub-contract dealing with the construction of a school building in said county by the State School Building Authority.
The Constitution of Georgia (Ga. Code Ann., 2-6501) provides in part as follows:
"... No person who is or has been connected with or employed by a school book publishing concern shall be eligible to membership on the Board, and if any person shall be so connected or employed after becoming a member of the Board, his place shall immediately become vacant...." Ga. Code Ann., ~2-902 has the following restriction:
".. Prqvided, however, that no publisher of schoolbooks, nor any agent for such publisher, nor any person who shall be pecuniarily interested in the sale of schoolbooks, shall be eligible for election as members of any board of education or as county superintendent of schools: ..." You will note that none of the above provisions apply to schoolhouse construction; therefore, a citizen may serve on a county board of education while he has a sub-contract dealing with the construction of a school building in said county by the State School Building Authority. This is not to say that such contract would necessarily be legal. Ga. Code Ann., 32-949 prohibits any member of a county board of education from selling supplies to a local board of which he is a member, and Ga. Code Ann., 32-9908 makes any. violation of that Code section a misdemeanor. In addition, Georgia has always followed the common-law rule that no public agent may take a profit out of public business entrusted to his care. Hulgan v. Gledhill, 207 Ga. 349.; Traiqer v. City of Covington, 183 Ga. 759. Any such contract is invalid, although the official did not vote for its approval or exercise his influence in procuring other officials to vote for its approval, and although it is fair and free from fraud and was based on the lowest and most advantageous bid submitted. Trainer v. ,City of Covington, supra; Montgomery v. Atlanta, 162 Ga. 534; Twiggs v. Wingfield, 147 Ga. 790; Hardy v. Gainesville, 121 Ga. 327; Mayor & C. of Macon v. Huff, 60 Ga. 221.
These provisions do ~ot affect a citizen's mentbership on the board. They
merely affect the legality of the contract and establish criminal liability.

17S
Your letter indicates that the contract here is not with the local school board. It is with the State School Building Authority, which is a separate instrumentality of State government (a public corporation). The school building will be owned by the Authority and merely leased to the local school system. See, Ga. Code Ann. Chap. 32-14A. Since the contract is with the Authority rather than the local board, none of the above Code provisions are applicable and in my opinion the contract is legal.
EDUCATION-County Boards of Education-Members
(a) All terms of members of County Boards of Education must be staggered, so that one, and only one, expires each year.
(b) Where a term expires, the incumbent holds over until his successor is duly chosen.
(c) The Secretary of State may, and should, satisfy himself that facts exists under which he may properly prepare a Commission for the Governor.
October 6, 1955
Honorable Marvin Griffin Governor of Georgia
Reference is made to your recent inquiry concerning the responsibility and authority of the Secretary of State in connection with the preparation of commissions of members of local school boards.
You ask my opinion regarding four specific questions, all of which, it appears to me, turns on the question of the meaning of the term "ministerial" as employed by the General Assembly to describe the duty of the Secretary of State in connection with the preparation of commissions and related documents (Acts of 1949, p. 18) and by the Supreme Court in reference to the functions of the Governor in issuing such commissions. (Hathcock v. McGourck, 119 Ga. 973, at 977.)
Webster defines the word "ministerial" as being:
"Of the nature of these acts or duties belonging to the administration of the executive function; designating, or pertaining to, an act that a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or exercise of his own judgment upon the propriety of the act done; opposed to judicial." (Emphasis added)
Both the word "ministerial" and "administrative" pertain to the word "minister" and under the constitutional division of governmental powers into the legislative, the executive (including the administrative), and the judicial, "administrative" and "ministerial" are synonymous (Tucker v. State, 35 N. E. 2d 270, 290, 218 Ind. 614). And, while it is admitted that where the Governor (or the Secretary of State) acts in a ministerial capacity he has no right to decide who has the title to a public office, (McCants v. Layfield, 149 Ga. 231, 239) an act is none the less ministerial because the person performing it may have to satisfy himself that the state of facts exist under which he has the right and duty to act. (Brockett v. Maxwell, 73 Ga. App. 663, 664.) To this Mitcham on Public Offices and Officers adds (page 668, Sec. 1005) that the mere fact that an official exercises judgment or discretion in the performance of his duty does not render his actions or his functions judicial.

179
The Constitution of 1945, Article VIII, Section V, Paragraph I, fixes the term of members of county boards of education at five years (except for those elected at the first election under this Constitution) and provides for election of members to fill unexpired terms in the case of vacancies arising by reason of death or otherwise. The General Assembly provided (Ga. Laws 1949, p. 18) that it shall be the duty of the Secretary of State "to furnish and prepare for delivery to the Governor for his signature and seal of the Executive Department" all commissions, etc.
While it is clear that the Secretary of State can not substitute his judgment for that of the Grand Jury, I do not think that the Constitution and laws of the State of Georgia contemplate reducing his functions to the purely clerical ones of a copyist. I do not think that it was intended that he be required to do a void or a vain thing as would be the case if he prepared and submitted to the Governor a commission so incomplete as to be meaningless or so obviously in conflict with the express provisions of the Constitution as to be void on its face.
I am of the opinion that the Secretary of State not only may, but should "satisfy himself that the state of facts exist under which he has the right and duty to act" in the matter of preparing commissions and related documents (Brockett v. Maxwell, supra) and that the fact that he exercises some degree of judgment and discretion in this regard does not render his acts any the less "ministerial" in nature (Mitcham, supra).
I conclude, therefore, that the specific question which you propound in your letter must be answered as follows:
(1) All terms of the members of county boards of education must be staggered so that one and only one expires each year as provided by Article VIII, Section V, Paragraph I of the Constitution of 1945.
(2) Where the term of a member of a county board of education expires without his successor having been elected by the Grand Jury, as provided by law, such member holds over until his successor is elected and such successor, when so elected, holds office for the remainder of the then current five year term.
(3) The Secretary of State may and should satisfy himself that the facts exist under which he can properly prepare a commission for the signature of the Governor. If, in a given case, this requires inquiry into the matter of whether the term for which the commission is to be issued conforms with that prescribed by the Constitution and laws of the State, such inquiry is not only not inconsistent with but is necessary to the proper discharge of his "ministerial" or administrative functions.
(4) (a) The Secretary of State may and should withhold action on the preparation of a commission until it is made to appear that the facts exist under which he can properly prepare the commission under and in accordance with the Constitution and laws of the State.
(b) Where the certified statement of facts regarding the election or appointment of a member of a county board of education forwarded by the Clerk of the Superior Court to the State Superintendent of Schools, as required by law (Ga. Code Ann., Sec. 32-905), is insufficient to enable the Secretary of State to properly prepare a commission for the Governor's signature, appropriate inquiry should be made of the Clerk and the additional information submitted by him through established channels.

180
EDUCATION-County Board of Education-Members (Unofficial) A Judge of the Superior Court may hold office as a member of the
County Board of Education.
December 18, 1956
Honorable Walter F. Owen You ask the question if a Judge of the Superior Court can also be elected
to serve as a member of the County Board of Education. A member of a County Board of Education is a county office. A Judge of
the Superior Court is a State office. Therefore, a Judge of the Superior Court would not come within the statutory provisions of Code Section 89-101, which provides:
"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by speCial enactment of the legislature; ..." There is no statutory provision with which I am familiar which would prohibit a Judge of the Superior Court from holding the office as a member of the County Board of Education.
EDUCATION-County Boards of Education-Powers 1. County Board of Education has authority to suspend or expel any
pupil who refuses to comply with reasonable :.;ules, regulations, and requirements of the. school authorities.
2. County Board of Education has authority to suspend a teacher, 3. A County, School Superintendent has the authority to suspend a teacher in a public school system not established prior to the Adoption of the Constitution of 1877. 4. A Public School System, established prio~ to the adoption of .the Constitution of 1877, is not affected by the Constitution of 1945, but such a system is subject to all laws of the General Assembly unless the system is specifically excepted in the respective Act. 5. The Minimum Foundation Program for Education is in force in every county in Georgia.
May 26, 1954
Honorable M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request of May 17th as to certain que'stions involving the Charlton County Schools, as follows:
1. May a pupil be expelled from the public schools of Georgia under certain conditions? If so, by whom?
The Constitution of Georgia, Article VIII, Section I, Paragraph I (2-6401) provides as follows:
"The provisl.on of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided by taxation ..." Georgia Code Annotated 32-901 provides as follows:
"Each and every county shall compose one school district, and shall be confided to the control and management of a county board of education."

181
In Board of Education v. Purse, 101 Ga; 422, 434, a child had been suspended for the reason that the child's parent entered the school room and used offensive language to the teacher. In holding that the Board of Education has authority to suspend a pupil for proper cause, the Court said:
"A child who is entered at a public school must be required to conduct himself so as not to interfere with the discipline of the school. Public education which fails to instill in the youthful mind and heart obedience to authority, both private and public, would be more of a curse than a blessing; ... The schoolmaster has always stood in loco parentis for certain purposes, and notwithstanding the change from private schools into public schools, the schoolmaster of the present system is, and ought to be, in the place of the parent in a great many particulars." Leoles v. Landers, 184 Ga. 580, held that:
"... the courts of this State and of other jurisdictions having a free public system of education have repeatedly held that it is within the power and authority of the governmental bodies of such schools or systems to public schools to suspend or expel pupils therefrom upon violation of reasonable and lawful regulations. In Samuel Benedict Memorial School v. Bradford, 111 Ga. 801 (36 S. E. 920), it was ruled that a child might be expelled from school where she refused to write a certain paper, upon express direction by her father not to do so." Appeal dismissed by Supreme Court o:l' United States, 302 U. S. 656.
Underthe above authority, it is my opinion that the county board of education, being the governing bod'y for the county school, has the authority to suspend or expel any pupil who refuses to comply with reasonable rules, regulations, and requirements of the school authorities.
2. Does the county board of education have the authority to suspend a teacher?
Ga. Code Ann., 32-912 provides, in part, as follows:
"... Said board may suspend the county .superintendent of schools for incompetency, wilful neglect of duty, misconduct, immorality or the commission of crime involving moral turpitude, and may suspend teachers for nonperformance of duty, incompetency, immorality or inefficiency, and for other good and sufficient cause. In each case appeal may be taken to the State Board of Education." [See Ga. Laws, 1956, p. 747.]
3. Does a county school superintendent have the authority to suspend a teacher?
Ga. Code Ann. 32-1010 provides as follo~s: "The county school superintendent of sch.ools shall superintend exam-
inations of all teachers of his county as provided by law. He shall suspend any teacher under his supervision for nonperformance of duty, incompetency, immorality or inefficiency, and for other good and sufficient causes. From his decision the teacher may appeal to the county board of educa~ tion, and either the superintendent or the teacher, being dissatisfied with the decision of the board, may appeal to the State Board of Education, the decision of which shall be final: Provided, that this section shall not apply to any public school system established prior to the adoption of the Constitution of 1877."
The Charlton County school system was established in 1872 (Ga. Laws 1872, p. 490). Therefore, 32-1010 has no application in Charlton County.
4. What effect does the Constitution of Georgia (2-7301) have upon the Charlton County public school system?

182
The Constitution of 1945 (2-7301) provides as follows: "Public school systems established prior to the adoption of the Con-
stitution of 1877 shall not be affected by this Constitution." The meaning of the above constitutional provision is set out in the case of Board of Education (Bibb) v. State Board of Education, 190 Ga. 581 (1940), wherein the Court said:
"... We can not sustain the contention that it was the purpose of this clause to perpetuate existing systems as against any possible change by the legislature so long as the constitution itself remained of force, and without amendment in relation to these systems. Any such construction would virtually lift the special acts from the realm of legislative action and incorporate them as parts of the constitution itself. We think on the contrary that they were merely continued in effect, with 'the force of statute law' (Code, 2-8504), until 'modified or repealed by the General Assembly' ( 2-8503). If they were not 'affected' by the constitution, it must necessarily be true that they were neither strengthened nor weakened by that instrument, but were simply left to stand as if the constitution itself had not been adopted. The constitution did 'preserve" and continue them to this extent, that is, against destruction or modification by any provision which the constitution itself contained; but further than this it did not go .." (Emphasis added.) See, also, Nichols v. County Board of Education, 203 Ga. 755 (1948). It is my opinion that any system established prior to 1877 would not be affected by the Constitution of 1945, but such a system would be subject to all laws of the General Assembly unless the said system is specifically excepted in the respective Act. 5. Is the Minimum Foundation Program for Education now in force in Charlton County? Chapter 32-6 of the Georgia Code Annotated, known as the Minimum Foundation Program for Education, is in force in every county in Georgia.
EDUCATION-County Boards of Education-Powers (Unofficial) County Boards of Education have authority to make rules to govern their
respective schools to the extent of requiring students to eat at school cafeteria. Appeal from hearing with County Boards of Education lies with State Board of Education.
September 8, 1955
Mrs. Estelle Westberry
I am pleased to acknowledge your request of September 7, 1955, as to the legality of a school principal requiring pupils to eat lunch in the school cafeteria at the cost of 25c per lunch.
The Constitution of Georgia (Code Ann., 2-6801) places the control and management of the common schools of Georgia in the respective county boards of education. Ga. Code Ann., 32-912 authorizes the county superintendent of schools and the county board of education to make rules to govern their respective schools.
Your letter indicates that both you and several other parents question the administrative policy established by your school principal as to school lunches.

1SS
Ga. Code Ann., 32-910 provides that "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." Either party has the right to appeal from the decision of the county board of education to the State Board of Education. The decision of the latter is final and conclusive. Ga. Code Ann., 32-414.
On the basis of the above authority, it is my opinion that you should present your question to the county board of education for their appropriate action.
EDUCATION-County Board of Education-Powers
(a) County Board of Education may employ an attorney. (b) A county may employ an attorney for a Board of Education. (c) It is not necessary to have the recommendation of the School Superintendent for the Board of Education to hire an attorney. (d) An employee of a local school board may be suspended by either the school board or the local superintendent. (e) When a teacher is dismissed, the dismissal may be appealed to the local board, and to the State Board of Education. (f) Only the local school board may employ teachers and, unless individuals are so employed, they are not entitled to compensation.
October 14, 1955
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request concerning several questions as to local boards of education.
"1. Does the County Board of Education have the legal authority to employ an Attorney to give legal advice when the County Attorney is available?"
There is no general statute concerning the authority of a county or a county board of education to employ an attorney. Certain counties have county attorneys authorized by local legislation applicable to that county. Many counties and local boards of education have attorneys to represent them without any express legislative authority.
The county board of education is a political subdivision of the State and serves as the agency through which the county acts in school matters. Board of Education v. So. Mich Bank, 184 Ga. 641, 642. The Constitution of Georgia (Ga. Code Ann., 2-6801) places the control and managment of the county schools under the county board of education. In construing and administering school laws, these boards are given wide discretionary powers. Boney v. Board of Education, 203 Ga. 152, Downer v. Stevens, 194 Ga. 598; Keever v. Board of Education of Gwinnett Co., 188 Ga. 299.
The county attorney is generally employed to represent the county commissioners or other governing authority as to the general affairs of the county. The county commissioners or other governing authority have no control or responsibility over the administration of school laws. It is inconceivable that the county board of education (a separate political subdivision charged with responsibilities for administering school laws) would be forced to accept the legal representative hired by the county commissioners or other county governing authority.

184
78 C. J. S. 146, p. 950, 951 provides as follows:
"A school district or other local school organization has power, either expressly or by implication, to employ counsel to render .services in matters of proper school interest. . A school district has power to P-mploy counsel where the controversy involves the power of a school dis.trict or an officer and the validity of the exercise of such power, but it has no power to employ counsel for a purpose outside its proper function." See also 47 Am. Jur. 15, p . .308-309.
The individual members of a local board of education are dedicated men who serve for little compensation (under the general law-$2.00 for each day's actual service. Ga. Code Ann., 32-904) in return for the vast responsibility which rests upon their shoulders. One need only look to Title 32 of the Ga. Code Ann. to see the vast maze of school law that concerns the administration of our public schools. Constantly in the background lies the great problems of continuing segregation and adequate financing. To me it is inconceivable that the intent of the framers of our Constitution or the members of our General Assembly in giving these boards control, management and responsibility as to local schools did not imply authority to employ adequate counsel to represent the board in litigation and give legal advice as to the administration of school laws.
"2. Is it legal to pay County funds to an Attorney to give the board advice? Under authority of the Constitution (Ga. Code Ann., 2-5701) and the General Assembly (Ga. Code Ann., 92-3701), counties may levy and collect taxes for educational purposes. Such educational funds may be used for educational purposes and none other. Ga. Code Ann., 32-942. Are funds paid to an attorney for legal advice being used for educational purposes?
47 Am. Jur. 94, p. 365 provides as follows:
"The question has arisen as to the propriety of the expenditure of school funds to pay counsel fees. There appears no doubt that school funds cannot be used to pay costs or counsel fees in actions brought ostensibly in relation to the public interest, but in reality for the benefit of private persons. But since the power to employ includes the power to compensate, it may be generally stated that school funds may be properly expended for the employment of an attorney by a school district for the protection of the public interests committed to it."
As stated in the answer to question 1, I am of the opinion that county boards of education have the implied power to employ legal counsel to represent them and give legal advice on school laws. An educational purpose is not limited to funds spent directly on education such as books, teachers and schoolhouses. It also includes bus drivers, repairmen, janitors, insurance on school property, etc. In my opinion the cost of legal advice on administering school laws would also be an expenditure of educational funds for an educational purpose.
"3. If it is legal to hire and pay an Attorney for legal advice for the Board of Education and the Attorney is paid from funds as other school personnel is paid, could the County Board employ this Attorney without the recommendation of the County School Superintendent as he is required to recommend all personnel in the school system?"
Ga. Code Ann., 32-604 provides in part as follows:
"... In the local units ofadministration, the several teachers, principals and other school employees shall be elected by boards of education on the recommendation of the respective superintendents."

185

The question is as to whether or not the words "other school employees" include the employment of an attorney. In this regard we must seek the definition of the word ''employee" as used in Georgia.

Blair v. Smith, 201 Ga. 747, 748 held:

"'... U:nder the Georgia statute and decisions, the test to be applied in determining whether. the relationship of the parties under. a contract for the performance of labor is that of employer and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control thl:l time, m,anner, and method of executing the work, as distinguished from the right merely to require certain definite results. in conformity to the contract.' "

To constitute the master-servant relationship, the contract or agreement must

give to the employer the right to control the time, manner, and method of executing

the work. Liberty Mutual Ins. Co. v Khi.sey, 65 Ga. App. 433, 440; Young v. Demos,

70 Ga. App. 577. In Studdard v. Phoenix and Company, 79 Ga. App. 467, 471, it was said: "It is the right ~f control, and not the fact of control which is decisive.''

The ordinary relationship of attorney-client does not in any way give to the

client the right to control the manner and method whereby an attorney performs

his service.



In addition, the purpose of 32-604 is to secure the professional recommendation of the superintendent as to school employees who have some form of contact with the education of the pupil. The skill of the superintendent in educational matters is highly desirable as far as his recommendation relates to some personnel, but the same would not be true as to the selection of an attorney.
On the basis of the above authority, it is my opinion that an attorney is not an employee under 32-604; therefore, a county board of .education could employ an attorney to serve as legal counsel for the board without securing any prior recommendation from the county superintendent.
"4. Can a County Board of Education dismiss a teacher, bus driver, or any School Personnel without the approval of the County School Supt. who recommends the personnel and signs their contracts?"
Ga. Code Ann., 32-912 provides that the local board of education "may suspend teachers for nonperformance of duty, incompetency, immorality or inefficiency, and for other good and sufficent cause."
Ga. Code Ann., 32-1010 provides that the county school superintendent may "suspend any teacher under his supervision for nonperformance of duty, incompetency, immorality or inefficiency, and for other good and sufficient causes. From his decision the teacher may appeal to the county board of education, and either the superintendent or the teacher, being dissatisfied with the decision of the board, may appeal to the State Board of Education, the decision of which shall be final:"

A teacher can be suspended by the local board or the local superintendent.

"5. If a teacher or bus driver who are under Contract are dismissed by the Board without a good reason to whom shall they appeal to first for reinstatement?"

Where a teacher has been suspended by either the local superintendent or board, the decision can be reviewed by the board itself sitting as a school court under Ga. Code Ann., 32-910. Either party may appeal from the final ruling of the local board to the State Board of Education whose decision shall be final and conclusive. Ga. Code Ann., 32-414, 910 and 912.

"6. If the County School Superintendent recommends a teacher or bus driver and the Board rejects this person, can the Supt. legally pay this person for the time he works until the next board meeting?"

186
Ga. Code Ann., 32-604 provides in part as follows: "... In the local units of administration, the several teachers, pr~nci
pals 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." (Emphasis supplied.) [See Ga. Laws, 1956, p. 312.] The constitutionality of the above section was upheld in Tripp v. Martin, 210 Ga. 284. In a concurring opinion Mr. Justice Candler said:
"While in the selection of teachers it is the duty of the county superintendent of schools to recommend teachers and, from among those so recommended, the county board of education selects teachers, nevertheless, where the county school superintendent makes a recommendation of a person not satisfactory to the board of education, the board may decline to elect the person so recommended and require the superintendent to submit other recommendations." It is clear that only the local board may employ teachers or bus drivers. Where not so employed, such individuals are not employees; therefore, they are not entitled to compensation. See Pierce v. Beck, 61 Ga. 413.
EDUCATION-County Boards of Education-Purchases It is illegal for a County Board of Education to do business with a cor-
poration which is partly owned by a member of the Board.
January 22, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request of January 11, 1954 as to whether it is illegal for a County Board of Education to do business with a corporation which is partly owned by a member of the Board.
Georgia Code Annotated, 32-949 provides as follows: "No member of any county board of education in this State shall sell
to any county board of education any supplies or equipment used, consumed or necessary in the operation of any public school in this State." Georgia Code Annotated, 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." The following statement is found in 47 American Jurisprudence, Section 49, pages 330, 331:
"As a general rule, however, the confidential fiduciary relation of a director to the district which he represents precludes him from placing himself in a position where his own personal interests may conflict with those of the school district. For this reason, it is generally held unlawful

187
for a director to enter into a contract with the school district in which he has a personal and individual interest, or to continue after election as a director in a contract relation previously assumed; a contract so made by a director will not be enforceable. While the matter is usually regulated by statutes either abolishing or limiting the right to contract, the general rule, being based on public policy, may apply even in the absence of statute... .
"... Where the statute makes it illegal for the school officer to be 'directly or indirectly' interested, relationship to a contracting party has been held not a disqualifying interest. But interest in a partnership or corporation contracting with the school district has been held to constitute an indirect interest within the meaning of such a statute." See, also, Thompson v. School District, 252 Mich. 629, 233 N. W. 439, 74 A. L. R. 790. On the basis of the above authority, it is my opinion that it would be illegal for a County Board of Education to do business with a corporation which is partly owned by a member of the Board.
EDUCATION-County Board of Education-Purchases It is illegal for a County Board of Education to do business with a
corporation or partnership which is partly owned by a member of the Board.
March 22, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request of March 17, 1954 as to whether it is illegal for a County Board of Education to do business with a partnership which is partly owned by a member of the Board.
Georgia Code Annotated, 32-949 provides as follows: "No member of any county board of education in this State shall sell
to any county board of education any supplies or equipment used, consumed or necessary in the operation of any public school in this State." Georgia Code Annotated, 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." The following statement is found in 47 American Jurisprudence, Section 49, pages 330, 331:
"As a general rule, however, the confidential fiduciary relation of a director to the district which he represents precludes him from placing himself in a position where his own personal interests may conflict with those of the school district. For this reason, it is generally held unlawful for a director to enter into a contract with the school district in which he has a personal and individual interest, or to continue after election as a director in a contract relation previously assumed; a contract so made by a director will not be enforceable. While the matter is usually regulated by statutes either abolishing or limiting the right to contract,

188
the general rule, being based on public policy, may apply even in the absence of statute....
"... Where the statute makes it illegal for the school officer to be 'directly or indirectly' interested, relationship to a contracting party
has been held not a disqualifying interest. But interest in a partnership
or corporation contracting with the school district has been held to con stitute an indirect interest within th,e meaning of such a statute."
See, also, Thompson v. School District, 252 Mich. 629, 233 N. W .439, 74 A. L. R. 790. On the basis of the above authority, it is my opinion that it would be illegal
for a County Board of Education to do business with a corporation or partnership which is partly owned by a member of the Board.
EDUCATION-County Board of Education-Purchases A County Board of Education may not purchase gasoline from a cor-
poration where a member of the Board is a shareholder in the corporation.
April 19, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request of April 13, 1954, as to whether a County Board of Education may purchase gasoline from various corporations, where certain members of the County Board of Education were shareholders in these corporations.
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. See 140 A. L. R. 345-361 for an annotation of the various states and of Englapd on this point.
Where statutes make it illegal for the school officer to be directly or indirectly interested in the contract, it has been held that the officer's interest in a partnership or corporation contracting with the school comes within the intent of these statutes. 47 Am. Jur., Sect. 49, p. 330-331.
Georgia Code Ann. 32-949 specifically prohibits a County Board of Education from purchasing school supplies from any member of their Board, and Georgia Code Ann., 32-9908 provides that if any member of the County Board of Education violates this provision, he is guilty of a misdemeanor.
The case of Hardy v. Gainesville, 121 Ga. 327, held that "a stockholder in a private corporation clearly has an interest in its contracts; and if the city can not make a contract with the officer himself, it can not make it with a corporation in which such officer is a stockholder." Montg9mery v. Atlanta, 162 Ga. 534.
Georgia has always followed the common-law rule that no public agent may take .a profit out of public business entrusted to his care. Hulgan v. Gledhill, 207 Ga. 349; Trainer v. City of Covington, 183 Ga. 759. Any such contract is invalid, although the official did not vote for its approval or exercise his influence in procuring other officials to vote for its approval, and although it is fair and free from fraud and was based on the lowest and most advantageous bid submitted. Trainer v. City of Covington, 183 Ga. 759; Montgomery v. Atlanta, 162 Ga. 534;

189

Twiggs v. Wingfield, 147 Ga. 790; Hardy \>-. Gainesville; 121 Ga. 327; Mayor & C. of Mac<in v. Huff, 6~ Ga. 221.

If the service by the corporation is required by law, such as electricity or gas

heat, then the above principle has no application. Capital Gas Co. v. Young,

lO!JCal. 140, 41 P. 869; Re Schenectady Illuminating Co., 88 Misc. 634, 151 N.Y. S.

425..

.

On the basis of the above authority, it is my opinion that the Greene County Board of Education could not purchase gasoline from any corporation of which a member of the Board held shares of stock. This does not mean that the Board could 'not purchase gasoline from retail service stations who in turn purchase fro'm corporations of which Board members are shareholders. The crux of the question is the immediate contract between the Board and the oil corporations. The Board could contract directly with any wholesale oil corporation providing no member of the Board owned any stock in the corporation. The Board could contract with any retailer (assuming no member of Board owned interest in the retail establishment) even though the retailer purchased his gasoline from a wholesaler of which a member of the Board owned shares of stock.

EDUCATION-County Board of Education-Purchases (Unofficial)
A member of a County Board of Education cannot sell gasoline to the Board of which he is a member.
May 28, 1954
Honorable Sam Bluestein
You ask whether a member of a County board of Education may sell gasoline to the said Board.
Georgia Code Annotated, Section 32-949, provides as follows:
"No member of any county board of education in this State shall sell to any county board of education any supplies or equipment used, con~ sumed or necessary in the operation of any public school in this State." Georgia Code Annotated, 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 edLfcation 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."
Georgia .has always followed the common-law rule. that .no public agent may take a profit out of public business entrusted to his care. Hulgan v. Gledhill, 207 Ga. 349; Trainer v. City of Covington, 183 Ga. 759. Any such contract is invalid, although the official did not vote for its approval or exercise his influence in procuring other officials to vote for its approval, and although it is fair and free from fraud ai:J.d was based on the lowest and most advantageous bid submitted~ Trainer v. City of Covington, supra; Montgomery v. Atlanta, 162 Ga. 534; Twiggs v. Wingfield, 147 Ga. 790; Hardy v. Gainesville, 121 Ga. 327; Mayor & C. of Macon v. Huff, 60 Ga. 221.
On the basis of the above authority, it is my opinion that a member of a County Board of Education cannot sell gasoline to the Board of which he is a memh"'"

190
EDUCATION-County Board of Education-Purchases
1. County School Superintendent may disburse school funds only upon the order of the County Board, and this order could require that the check be countersigned by a member of the Board.
2. The County Board of Education has the authority to purchase school supplies, and the County School Superintendent is the agent of the Board for whatever supplies the Board may order.
3. County Board of Education does not have authority to enter into a legal contract with a bus driver without the recommendation of the County School Superintendent (see Georgia Laws, 1956, page 312, as to authority of County Board of Education to employ teachers, principals, and other school employees without the recommendation of the County School Superintendent).
September 23, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your recent requests concerning a County Board of Education and its County School Superintendent.
1. Is it within the authority of a County Board of Education to require all checks drawn on the public school fund to be countersigned by a member of the board?
Georgia Code Annotated 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, imd 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."
The above Code Section allows the County Superintendent to disburse the school fund only upon the order of the County Board, and in my opinion this order could require that the check be countersigned by a member of the Board.
2. Who has the authority for purchasing necessary school supplies for the operation of schools in a county system?
Georgia Code Annotated, 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.... "
Georgia Code Annotated, 32-1009 sets out the duties of the County Superintendent and provides in part as follows:
"... He shall be the agent of the county board in procuring such school furniture, apparatus, and educational requisites as they may order, and shall see that none but the prescribed textbooks are used by the pupils; shall audit all accounts before an application is made to the county board for an order for payment; ... "
In my opinion these two Code Sections place the authority to purchase school supplies in the County Board of Education. The County School Superintendent is the agent of the Board for whatever supplies the latter may order.
3. Does the County Board of Education have the authority to enter into a

191
legal contract with a bus driver without the recommendation of the County School Superintendent?
Georgia,Code Annotated, 32-604 provides in part as follows:
"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." (Emphasis added.)
In my opinion the phrase "and other school employees" would include county bus drivers who are employed by the County Board of Education. Tripp v. Martin, 210 Ga. 284, held that the County School Superintendent has the right and duty to "recommend" teachers for employment by the County Board of Education, and the superintendent cannot be required by mandamus to execute contracts on behalf of the board for teachers employed by the board without his recommendation.
Georgia Code Annotated, 32-426 provides in part as follows:
"County boards of education are hereby authorized and given power to purchase motor vehicles and other equipment for the purpose of transporting pupils and school employees to and from the public schools, to employ drivers and provide for the operation and maintenance of such equipment ... "
It is apparent that Code Sections 32-426 and 32-604 are in conflict in that the former does not require the recommendation of the County Superintendent as a prerequisite to the Board's employing a bus driver, whereas the latter does set up such requirement. It is a rule of statutory construction in Georgia that where two sections of the Code are found to be in irreconcilable conflict, and both sections are derived from acts of the Legislature, this conflict must be settled by resort to the original acts from which the conflicting sections are derived, and that section which is derived from the later act of the Legislature must control. Atlanta Finance Co. v. Brown, 187 Ga. 729; Cairo Banking Co. v. Ponder, 131 Ga. 710.
Code Section 32-426 was enacted in 1947, Ga. Laws 1947, pages 1461, 1462. Code Section 32-604 was enacted in 1949, Ga. Laws 1949, pages 1406, 1409. Under the above rule Code Section 32-604 would control. The fact that Code Section 32-604 is part of the Minimum Foundation Program emphasizes the contention that it expresses the present legislative intent. This program covered bus drivers as well as teachers.
It is my opinion that the County Board of Education does not have the authority to enter into a legal contract with a bus driver without the recommendation of the County School Superintendent.
4. Is it legal for the County School Superintendent to pay a bus driver from County Board funds who does not have a legal contract?
Where a bus driver has been denied an employment contract because of the failure of the County School Superintendent to recommend him to the County Board of Education, it would be, in my opinion, illegal for the County School Superintendent to pay this bus driver for any future services, provided the bus driver was informed of the fact that he had not been employed to transport school children. See Burke v. Wheeler County, 54 Ga. App. 81 (4) on illegal contracts.

192
EDUCATION-County Boards of Education-Purchases A member of a local school board may not sell fire insurance to a
County Board of Education, even though there is no. express statutory prohibition.
June 7, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request as to whether Georgia Code Section 32-949 prohibits the sale of fire insurance to a county board of education by a member of the said board.
Ga. Code Ann., Sec. 32-949 provides as follows: "No member of any county board of education in this State shall
sell to any county board of education any supplies or equipment used, consumed or necessary in the operation of any public school in this State." Ga. Code Ann., Sec. 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." In my opinion the words "supplies or equipment" would not cover the sale of fire insurance. Therefore, neither Section 32-949 nor Section 32-9908 would apply to the sale of fire insurance to a county board of education by a member of the said board. However, Georgia has always followed the common-law rule that no public agent may take a profit out of public business entrusted to his care. Hulgan v. Gledhill, 207 Ga. 349; Trainer v. City of Covington, 183 Ga. 759. Any such contract is invalid, although the official did not vote for its approval or exercise his influence in procuring other officials to vote for its approval, and although it is fair and free from fraud and was based on the lowest and most advantageous bid submitted. Trainer v. City of Covington, supra; Montgomery v. Atlanta, 162 Ga. 534; Twiggs v. Wingfield, 147 Ga. 790; Hardy v. Gainesville, 121 Ga. 327; Mayor & C. of Macon v. Huff, 60 Ga. 221.
EDUCATION-County Boards of Education~Tort Liability County Board of Education cannot be sued for libel when acting in its
official capacity.
February 8, 1955
Mr. N. L. Maddox
I am pleased to acknowledge your request of February 4, 1955, as to whether a County Board of Education may be held liable in an action for libel.
A County Board of Education. in Georgia is not a body corporate with authority to sue or be sued. Parker v. Board of Education of Sumter County, 209 Ga. 5; Verner v. Board of Education of Haralson County, 203 Ga. 521; Ayers v. Board of Education of Hart County, 56 Ga. App. 146.

As to the liability for tort, the case of Ayers v. Hartford Accident and Indemnity Company, 106 F. 2d 958, held that a County Board of Education could not be sued and said:
" . The County for which it acts is not liable, for by Code 23-1502 'A county is not liable to suit for any cause of action unless made so by statute.' Millwood v. DeKalb County, 106 Ga. 743, 32 S. E. 577. There being no liability imposed by law on the Board for this sad tragedy, there can be no loss to the Board to be paid by the Company. . . . "
The same holding is generally found throughout the United States. 78 C. J. S,. Section 320 (b), p. 1323, provide as follows:
"In the absence of a statute imposing liability it is generally held that a school 'district or other local school organization is not liable for injuries resulting from the negligence .or other tortious conduct of its officers, agents, or employees committed in the exercise of their powers or the performance .of their duties, the doctrine of respondeat superior not being applicable. The exemption from such liability is sometimes based on the status of the district or board as a state agency entitled to the same immunity as the state; and sometimes, as discussed infra subdivision d of this section, it is based on the governmental nature of the functions which the district or board performs."
On the basis of the above authority it is my opinion that a County Board of Education cannot be sued nor could they or the county be held liable in tort in their official capacity by a suit for libel.
EDUCATION-County School Superintendent-Commissions (a) All County School Superintendents, whether elected by the grand
jury or by the people, ar<:: entitled to a commission. (b) A certified copy of the minutes of the local board of education,
electing the County School Superintendent, should be forwarded to the Secretary of State by the President of the Board.
September 6, 1956
Honorable Marvin Griffin Governor of Georgia
I am pleased to acknowledge your request as to whether the county school superintendents of Georgia who are elected by the County Boards of Education should be commissioned by the Governor in the same manner as those who take office 'after election by the voters of their county. Also, if they should be commissioned, what would constitute proper notice to the Secretary of State as a basis for preparation of commission, and by whom should this notice be given?
All county school superintendents, whether elected by the people under the 1945 Constitution or elected by the local board of education under a local Constitutional Amendment, are entitled to a commission under Ga. Code Ann., 89-202.
As to notification, a certified copy of the minutes of the local board of education, electing the county school superintendent, should be forwarded to the Secretary of State by the persident of the said board.

1!)4
EDUCATION-County School Superintendents-Contracts for Teachers (Unofficial) County School Superintendent cannot be required by mandamus to execute contracts on behalf of the board for teachers employed by the board without his recomn1endation.
April 13, 1955
Mr. P. W. Vaughn I am pleased to acknowledge your request as to the election of teachers
by the County Board of Education. Georgia Code Annotated, Section 32-604 provides in part as follows: "... 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." [See Ga. Laws, 1956, p. 312.] In the case of Tripp v. Martin, 210 Ga. 284, it was held that the county school
superintendent has the right and the duty to recommend teachers for employment by the county board of education, and the superintendent cannot be required by mandamus to execute contracts on behalf of the board for teachers employed by the board without his recommendation.
EDUCATION-County School Superintendent-Election (Unofficial) The residents of an independent school system cannot vote for the
County School Superintendent, even though the County Board of Education and the independent school systems contract with each other for the education of pupils.
March 10, 1954
Honorable Morris M. Bryan, Jr., I am pleased to acknowledge your request as to whether the residents of
Commerce and J efl'erson, two independent school systems, may vote in election held to select the Jackson County School Superintendent.
Georgia Code Annotated, 32-1002, provides in part as follows: "All county superintendents of school shall be elected by the qualified
voters of their respective counties quadrennially 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.... " (Emphasis added.) Should the County Board of Education merge with an independent system under Chapter 32-12 of the Georgia Code or by local constitutional amendment, the residents of the former independent system could then vote in the said election.

195
In my opinion where the County Board of Education and the independent system contract with each other for the education, transportation and care of pupils under Article VIII, Section IX, Paragraph I of the Georgia Constitution of 1945, this does not of itself give the residents of the independent system the right to vote in an election held to select the County School Superintendent, nor may such right be given by contract. Such a contract does not amount to merger. Where election requirements are set out by statute, neither individuals nor groups may alter such legislative intent by contract.
EDUCATION-County School Superintendent-Election (Unofficial) Voters residing in independent school system are ineligible to vote
in election for County School Superintendent.
November 15, 1955
Honorable Duncan Graham I am pleased to acknowledge your request of November 5, 1955, as to
whether or not the voters residing within the corporate limits of Vidalia are entitled to vote in the election for county school superintendent of Toombs County.
Ga. Code Ann., 32-1002 provides as follows: ' 1All county superintendents of schools shall be elected by the qualified
voters of their respective counties quadrennially 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." Is the Vidalia school system an independent or a quasi-independent system?
Opinions of the Attorney General, 1952-53, p. 69-70 holds "that an independent school system is one which receives its allocation of State funds directly from the State and that a quasi-independent 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."
I have checked the various provisions with amendments cited in your letter: "Georgia Laws 1906, page 1104; 1917, page 895; 1925, page 1530; 1926, page 207; 1920, page 1753; 1914, page 1209; and 1953 Jan.-Feb. Sess., page 2339." The original Act (1906) provided that the Vidalia Board of Education would receive its pro rata share of State and county school funds through the county school superintendent.. The 1953 Amendment provides that "All State school funds to which the public school system of the City of Vidalia is entitled should be paid by the State Department of Education and State Board of Education directly to the Treasurer of the Board of Education of said City."
On the basis of the above authority it is my opinion that the Vidalia school system is now an independent school system and under the above Code Section voters residing within the corporate limits of the City of Vidalia are not entitled to vote in the election of county school superintendent of Toombs County.

196
EDUCATION-County School Superintendent--,-Election Members of an independent school systell1 may not vote in election for
County School Superintendent, but members of a quasi-independent school system may vote in such election.
January. 10, 1956
Honorable Marvin Griffin Governor of Georgia
I am pleased to acknowledge your request of January 9, 1956, as to whether the residents of the City of Bremen and Tallapoosa may vote in an election held to select the Haralson County school superintendent.
Ga. Code Ann~, 32-1002 provides as follows: "All county superintendents of schools' shall be elected by the qualified
voters of their respective counties quadrennially 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 anycouhty 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 qua,si-independent school district from voting in any p~imary or election for county superintendent of schools." Are the school systems of Bremen and Tallapoosa independent or quasiindependent systems? Opinions of the Attorney General, 1952-53,. p. 69-70 holds "that an independent school system is one which receives its allocation of State
funds directly from the State and that a quasi-independent 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."
The localcounty attorney should check the various charter provisions with amendments as to Bremen and Tallapoosa. Where ~ither or both charters provide that allocations of State funds come through th~ county board of education or the county school superintendent, it is my opinion that such school system is a qUasi-independent school system and under the above Code Section voters of such: quasi independent system could vote in any primary or election for the county school superintendent.
EDUCATION-County School Superintendents-Election Discusses qualifications of voters in election for County School Super-
intendents.
April 3, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
In reference to your request I am setting out below certain provisions and principles which govern the right of voters to participate in an election and vote for. the selection of a county s.chool superinte.ndent.

197
Ga. Code. Ann., 32-1002 provides as follows: "All county superintendents of schools shall be elected by the qualified
voters of their respective counties quadrennially 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 al).d 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." Is the school system of the city independent or quasi-independent? Opinions, Attorney General, 1952-53, p. 69-70, holds "that an independent school system is one which receives its allocation of State funds directly from the State and that a quasi-independent 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." The local attorney for the county should check the various charter provisions with amendments as to the said city. If the charter provisions state that the allocation of State funds for the city system come through the county board of education or the county school superintendent, it is my opinion that such school system is a quasi-independent school system and under the above Code Section voters of such quasi-independent system could vote in any primary or election held for the purpose of electing the county school superintendent. If the charter provides that such funds are paid directly to the city system, it is my opinion that such school system is an independent school system and under the above Code Section voters of such independent system could not vote in any primary or election held for the purpose of electing a county school superintendent.
EDUCATION-County School Superintendent-Election (Unofficial) (a) Residents of an independent school district cannot vote in an
election for County School Superintendent, but residents of a quasi-independent school district can.
(b) A "quasi-independent" school district is one which, through specific statutory provisions, receives its funds through the county school system, but contractual agreements between systems do not make a "quasi-independent" system.
December 18, 1956
Honorable Roy W. Coley I am pleased to acknowledge your letter relative to the law relating to the
election of county school superintendents. Section 32-1002 of the 193'3 Annotated Code of Georgia, relating to residents
of independent school systems, provides as follows: "All county superintendents of schools shall be elected by the
qualified voters of their respective counties quadrennially 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

198
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." (Emphasis 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 district. "Quasiindependent" school districts are those districts which, through specific statutory provisions, receive their funds through the county school system. Contractual agreements between the systems do not make the independent system a "quasiindependent" system, but, as stated above, it must be by statutory provison creating or amending the independent system.
The above authorities cited would apply to any county school system of this State except those created by special constitutional amendment making an exception to the general laws of this State relating to the election of county school superintendents and school systems.
EDUCATION-County School Superintendent-Powers (a) The County School Superintendent is eligible to receive state funds
for the teachers of the county. (b) A County School Superintendent, who does not hold a certificate
or permit, is entitled to $70.00 per month to be paid from State funds.
March 27, 1956
Honorable M. D. Collins State Superintendent of School Department of Education
I am pleased to acknowledge your request as to certain questions propounded by the State Board of Education concerning the status of a county school superintendent.
1. Would the State Superintendent of Schools be safe in continuing to send money for the salaries of the teachers of Coweta County to J. Wilkins Smith, Coweta County Superintendent of Schools?
Ga. Code Ann., 32-1005 provides as follows: "The county superintendent of schools must give bond with an ap-
proved surety company payable to the county board of education, the amount to be decided by the board. This bond must be filed with the ordinary and a copy recorded on the ordinary's records; and it shall be the duty of the ordinary to send a certified copy of the superintendent's bond to the State Superintendent of Schools, which copy shall be recorded and kept on file at the State Board of Education." Ga. Code Ann., 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

199

board of education, and the said county superintendent shall not be entitled to compensation for receiving any funds as herein provided."

If Code Section 32-1005 has been complied with and the bond is still in force, it is my opinion that such county school superintendent is eligible to receive such funds for the teachers of the county. The bond being given for the protection of the State.

2. Is the State responsible for any part of a county school superintendent's salary where said superintendent does not hold a certificate or permit? If so, how much each month?

Ga. Code Ann., 32-1006 provides as follows:
"Each county superintendent of schools shall be certified and classified by the State Board of Education as teachers are now classified and certified under the provisions of Chapter 32-6, known as an Act to equalize educational opportunities throughout the State. The county superintendents of schools shall receive salaries in amounts fixed by the State Board of Education, based on classification and certification in the same manner teachers are paid under said Chapter: Provided, however, that in no event shall the salary of a county school superintendent be less than $70 per month, said salaries to be paid monthly out of the school funds of the State, and in addition thereto, the county board of education shall allow for additional compensation for the services to be rendered, as may be in their judgment proper and just. The county superintendent of schools may employ clerical and office help and the county board of education may compensate him for the expenses of such help, as in their judgment is reasonable and proper."

Ga. Code Ann., 32-605 provides as follows:

"The State Board of Education shall provide, by regulation for certi-

fying 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, super-

visor, or superintendent, pursuant to the rules and regulations of the State Board of Education. The State Board of Education shall provide; by

regulation, for the classification of all the teachers in the public schools of this State upon the basis of academic, technical and professional train-

ing and experience, and the certificate issued to each such teacher by the

State Board of Education, or pursuant to its authority, shall indicate the

classification of such teacher."



Ga. Code Ann., 32-606 provides as follows:

"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 administration 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

200
performed, the responsibility of the position, the experience and the individual worth of the teacher." On the basis of the above authority, it is my opinion that a superintendent who does not hold a certificate or permit is entitled to $70 per month to be paid monthly out of the school funds of the State.

EDUCATION-County School Superintendents-Qualifications (Unofficial) Law relating to qualification for County School Superintendent quoted.

December 14, 1955

Honorable Braswell Deen, Jr.

I ampleased to acknowledge your request as to the qualifications of candidates

for the office of county school superintendent.

Ga. Code Ann., 32-1004 provides as follows:

"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

experience 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 commissisoner. 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 abcive qualifications. This certificate must be signed by the president of the county board of

education."

Ga. Code Ann., 89-101 (7) provides as follows:

"No person shall be eligible to hold office in any county unless he shall have been bona fide a citizen of the county in which he shall be elected or

appointed at least two years prior to his election or appointment, and is a qualified voter entitled to vote: Provided, however, that any person who shall have been a bona fide citizen of a county for two years shall be

eligible to be elected or appointed as county school superintendent, even

though said person should not reside in that part of th~ county which is

under the supervision of the county superintendent of schools and ineligi-

ble to vote in the election for such superintendent of schools."

The Your question has reference to the proviso in 89-101 (7).

case of

Avery v. Bower, 170 Ga. 204, held that:

"A man may have several residences, but only one place of domicile. There must be a concurrence of actual residence and the intention to

remain, to acquire a domicile.... Neither residence nor domicile, standing alone, furnishes the qualifications for the privilege of voting. Even one who has established citizenship, which is broad enough to include both residence and domicile, within a county of this State, must perform other

public duties such as registration before he is a qualified voter.... Since voters in an independent school district ... can not vote in an election for county school superintendent, it necessarily :follows that the defendant,

201
under the allegation, is not a qualified voter entitled to vote, and for that reason he is not eligible to hold the office in question." See also, Bower v~ Avery, 172 Ga. 272 (1930). The proviso in 89-101 (7) was added by the General Assembly in 1931. In my opinion, this proviso was enacted to change the result of the above case, i.e., a person would now be eligible to be elected or appointed county school superintendent where he was a bona fide citizen of that county for two years even though he resided and voted within the corporate limits of an independent school district located in said county. As to whether the two years referred to above must be immediately preceding the election, the case of Hulgan v. Thornton, 20.5 Ga. 753, 757, held:
"As to the time at which a person's eligibility for public office is determined, this court has consistently fixed it as the date of the election." Since you look to these qualifications at the date of the election,. it is my opinion that the "two years" means two years immediately preceding the election.
EDUCATION-County School Superintendent-Qualifications (Unofficial) Law relative to time of filing certificate of qualification quoted.
November 28, 1955
Mr. K. N. Phillips I am pleased to acknowledge your request of November 20, 1955, asto whether
a candidate for the office of county school 'superintendent may file the certificate required in Ga. Code Ann., 32~1004 after the primary and in advance of the General Election.
Ga. Code Ann., 32-1004 provides as follows: "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 experience 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 c'ertificate must be signed by the president of the county board of education." Hulgan v. Thornton, 205 Ga. 753, 757, held:
"As to the time at which a person's eligibility for public office is determined, this court has consistently fixed it as the date of the election." In my opinion the word "election" has reference to the General Election in which county officers are elected and not primaries. However,. your attention is called to Ga. Code Ann., 34-3209 which provides:
"The party authorities shall, in all matters not provided for in this

202
Chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities." Under this provision, a County Democratic Executive Committee could set up rules and regulations to effectuate the intent and purpose of Section 32-1004 and require a candidate to file the certificate prior to qualification in the pirmary.

EDUCATION-County School Superintendent-Qualifications Laws relating to eligibility for a person to serve in the office of County
School Superintendent quoted.

February 27, 1956

Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request of February 20, 1956, as to the eligibility of an individual to serve in the office of county school superintendent.
While I would not attempt to give an opinion on the eligibility of any specific individual as to county school superintendent, I will set out certain general principles that would control the situation. I am sure that the county attorney will be able to render an opinion as to the specific application of these principles to any given individual.

Ga. Code Ann., 32-1004 provides as follows:

"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

experience 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 con-

victed of any crime involving moral turpitude. The county superintendent

of schools shall perform all the clerical duties which were formerly re-

quired 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."



Ga. Code Ann., 89-101 provides in part as follows:
"The following persons are held and deemed ineligible to hold any civil office, and the existence of any of the following states of facts shall be a sufficient reason for vacating any office held by such person, but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, viz:

* * * * *
"3. 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."

203
The Georgia Constitution of 1945 (Ga. Code Ann., 2-801), provides as follows:
"The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such person shall have been pardoned. 2nd. Idiots and insane persons." Ga. Code Ann., 77-528 (Supp.) provides as follows:
"Following the effective date of this Chapter, all pardons shall relieve from civil and political disabilities." Section 32-1004 is a part of the Code of 1933. Section 77-528 (Supp.) was enacted in 1943.
EDUCATION-County School Superintendent-Qualifications The State School Superintendent cannot issue a commission to a County
School Superintendent unless a certificate of his qualifications has been signed by the President of the Board of Education.
November 30, 1956
Honorable M. D. Collins State Superintendent of Schools State Department of Education
I am pleased to acknowledge your request concerning the inquiry of Honorable James L. Hooper, Jr., Chairman of the Towns County Board of Education.
The information contained in your letter states that Mr. Garrett did not file his certificate with the State Board of Education prior to his election. You also state that this certificate has not been signed by the president of the county board of education.
Ga. Code 32-1004 provides as follows: "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 experience 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." Two questions are presented in your request-(1) concerns the trying of title to the local office of county superintendent of schools and determining which of

204
the two parties have the stronger right to occupy the said office; (2) the issuance of the commission by the State Superintendent of Schools.
The issuance of the commission is only a ministerial act and is not conclusive as to the right to hold office.
See Hathcock v. McGouirk, 119 Ga. 973; McCants v. Layfield, 149 Ga. 231. In Bennett v. Public Service Commission of Georgia, 160 Ga. 189, the Court held:
"A commission issued by the Governor to a duly elected member of the Public Service Commission of this State, in which the term of such officer is stated to commence on a designated date, is not conclusive evidence of the right of such officer to be inducted into office on such designated date, and does not prevent the courts from looking behind the commission and determining, in a proper case, when the term of such officer legally begins."
From the above decisions of the Supreme Court of this State, it is clear that the issuance of a commission is only prima facie evidence of the right of the person named therein to hold office, and is not at all conclusive and cannot be used to prevent the courts from looking behind the commission and determining for itself who is the proper party to exercise the powers of the disputed office. It is my opinion that you, as State Superintendent of Schools, could not issue the commission unless the certificate was signed by the president of the county board of education.
As to the question of title to the public office of county superintendent of schools, this presents a judicial question for determination by the courts in a proper proceeding.
EDUCATION-County School Superintendent-Vacancy in Office A vacancy in the office of County School Superintendent is not caused by
the temporary illness of the holder of the office.
June 9, 1955
Honorable M. D. Collins State Superintendent of Schools State Department of Education
I am pleased to acknowledge your request of May 31, 1955, as to whether the office of county school superintendent becomes vacant upon the temporary illness of the legal occupant of that office.
The Georgia Constitution of 1945 (Ga. Code Ann., 2-6901) changed the office of county school superintendent from a statutory one to a constitutional one; therefore, the legal occupant of such office is a constitutional officer.
The Constitution also authorizes (Ga. Code Ann., 2-3017) the General Assembly to provide by law for the suspension of any constitutional officer and for the appointment of a suitable person to discharge the duties of the same.
Ga. Code Ann;, 89-501 sets out how all offices in the State shall be vacated, i.e., death, resignation, judgment, incapacity, nonresidence, failing to obtain commission or give bond, and abandonment.
The only act named above that could possibly apply to illness would be "incapacity". The case of Bunch v. City of Macon, 29 Ga. App. 290, held that an office is vacated only from the time the fact is ascertained and declared by the proper tribunal and that imprisonment for thirty-one days while awaiting trial on indictment did no~ incapacitate the office.

205
67 C. J. s, 50 p. 207 pro;vides as .follows:
"An office is vacant in the eye of the law whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening of some future event. On the other hand, an office is not vacant as long as it is supplied, in the manner provided by the constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which appeartain to it. The law abhors vacancies in public office, and courts generally indulge in a strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administ.rative office becoming, for any period of time, wholly vacant and unoccupied by one lawfully authorized to exercise its functions. Further, when the constitution or statute clearly enumerates the events that shall constitute a vacancy in a particular office, all other causes of vacancy are excluded. . . ." Whi~e illness of. the officer is not specifically enumerated in the Georgia statute, in all probability the permanent illness of the officer might be .construed by the Georgia courts to bring about a vacancy on the ground of incapacity. Since the court has held that temporary imprisonment does not incapacitate, I am of the opinion thatneither does temporary illness incapacitate for office. Ga. Code Ann., 32-912 gives the county board of education the authority to suspend a county school superintendent for the following causes:
".... Said board may suspend the County Superintendent of schools for incompetency,..wilful neglect of duty, misconduct, immorality or the commission of crime involving moral turpitude, and may suspend teachers for nonperformance of duty, incompetency, immorality or inefficiency, and for other good and sufficient cause. In each case appeal may be taken to the State Board of Education." The case of Coleman v. Glenn, 103 Ga. 458, held that a public school officer could not be removed under authority of any statute without notice and a hearing on the charge or charges preferred against him. On the basis of the above, it is my opinion that the duly elected superintendent of schools for Bleckley County has been and still is the occupant of that office and has not vacated the same by any temporary illness. If the office of county school superintendent had been vacated, the county board of education could fill the vacancy under authority of Georgia Code Ann., 32-1003, which provides as follows:
"In the case of a vacancy by death, resignation or removal from office, or from any cause whatever, in the office of county superintendent of schools in any county, the county board of education shall elect a county superintendent of schools for the unexpired term."
EDUCATION-Independent School System-Powers
An independent school system has control of all educational matters and title to all real estate held as public school property within its territory.
March 8, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request of February 24, 1954, as to the following questions:

206
"If the Pulaski County Board of Education purchases a site to construct a building or buildings within the corporate limits of Hawkinsville, can the independent system legally obtain control and operation of this school or schools ?
"If the Pulaski County Board of Education purchases property near Hawkinsville to build a school and it is later incorporated into municipality of Hawkinsville, can the municipality obtain ownership and operation of this school, as a part of the independent system?"
The only case in Georgia on this question is Board of Fulton v. Board of College Park, 147 Ga. 776. The court there held:
"Where a municipality is authorized by the General Assembly to create a public-school system coextensive with its corporate limits, a part or all of which territory has theretofore been included within the system of public schools operated by the county, forming a portion of a school district, the municipality succeeds to the control of educational matters and to the title to the real estate held as public-school property within its territory, holding such title, of course, as a statutory trustee or public agent. The legislature, it is universally conceded, has the power to provide for such division of the school property as may be located within the new territory between the county school board and the municipal board of education as it may deem just and equitable.... At most it is a mere change from one trustee to another, where the General Assembly, in express terms or by necessary implication, transfers the title, control, and use of public-school property from a county board to a municipal board. Where, however, the lawmaking power fails to provide for such division, it is presumed that the intention was to leave it to the courts to declare the law in such cases, in the absence of an agreement between the interested parties. This has been a fruitful source of litigation; and it is conceded that no rule can be adopted which will in all cases afford entire justice to the parties. . . .
"As a matter of law, county boards of education and similar boards of municipalities hold title to real estate conveyed to them for school purposes subject to any disposition that the General Assembly may make of it constitutionally; and this is implied as a part ..of every conveyance to them of such real estate, even in the absence of any express intention of the parties. Hunter v. Pittsburgh, supra. The board of education of Fulton county held title to the real estate as trustees for the people of the State, who, through the General Assembly, had full power, at pleasure, to change its trustees; . , ." (Underscoring supplied)
Under authority of the above case, an independent school system would have control of all educational matters and title to all real estate held as public school property within its territory. In the absence of an agreement between the county and the city and where the legislature fails to expressly provide for the manner of division, it is my opinion that both questions would be answered-yes.
EDUCATION-Independent School Systems-Property Ownership (Unoll'icial) Independent school system has control of all educational matters and title
to all real estate held as public school property within its territory.
March 24, 1955 Mr. Burney Humphreys
I am pleased to acknowledge your request as to whether an independent school

207
system would have ownership and control over a school built by a county board of education within the territorial limits of the independent school system.
The only case in Georgia on this question is Board of Fulton v. Board of College Park, 147 Ga. 776. The court there held:
"Where a municipality is authorized by the General Assembly to create a public-school system coextensive with its corporate limits, a part or all of which territory has theretofore been included within the system of public schools operated by the county, fonning a portion of a school district, the municipality succeeds to the control of educational matters and to the title to the real estate held a-s public-school property within its territory, holding such title, of course, as a statutory trustee or public agent. The legislature, it is universally conceded, has the power to provide for such division of the school property as may be located within the new territory between the county school board and the municipal board of education as it may deem just and equitable.... At most it is a mere change from one trustee to another, where the General Assembly, in express terms or by necessary implication, transfers the title, control, and use of public-school property from a county board to a municipal board. Where, however, the lawmaking power fails to provide for such division, it is presumed that the intention was to leave it to the courts to declare the law in such cases, in the absence of an agreement between the interested parties. This has been a fruitful source of litigation; and it is conceded that no rule can be adopted which will in all cases afford entire justice to the parties. . . .
"As a matter of law, county boards of education and similar boards of municipalities hold title to real estate conveyed to them for school purposes subject to any disposition that the General Assembly may make of it constitutionally; and this is implied as a part of every conveyance to them of such real estate, even in the absence of any express intention of the parties. Hunter v. Pittsburgh, supra. The board of education of Fulton County held title to the real estate as trustees for the people of the State, who, through the General Assembly, had full power, at pleasure, to change its trustees; ..." (Underscoring supplied) Under authority of the above case, an independent school system would have control of all educational matters and title to all real estate held as public school property within its territory in the absence of any express intent of the General Assembly to the contrary (local or general act) or an agreement between the systems.
EDUCATION-Instruction-Music and Art Lessons It is not illegal for a local board of education to permit a private Art or
Music Teacher to conduct private lessons on public school property for those pupils who desire such instruction at their own personal expense.
September 4, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request in regard to teachers in DeKalb County who teach piano lessons to individual students where the individual stu-

208

dents and their parents wish to have this type of service, and where said students

and parents pay directly to the teacher the amount charged for said service.. These

parents would liketo know if they are within their rights in asking that this type

of service be continued.





The teaching of music is generally considered a proper subject for the public school systems of the United States. 47 Am. Jur. 200, p. 442. '

In Georgia, the primary responsibility for the establishment of a curriculum lies with the State Board of Education: Ga. Code Ann., . 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 commo_n 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 clas.sification and certification of teachers. They shall make such rules and regulations as may be necessary for the operation of the common schools and for the administration. of the common school fund."

On June 27, 1955, the State Board of Education adopted the following resolution:

"(10) CULTURAL EDUCATION-Art and Music. This item is a matter for the local school systems and is presently determined by them. No action of the State Board of Education is required or necessary."

Under the present laws of the General Assembly and the resolution of the State Board of Education, the local board of education has the discretionary authority to include or exclude the subjects of Art and Music in its curriculum.
Should the local board of education see fit to include Art and Music as a part of
its curriculum, no tuition or matriculation fee could be charged by the local school authorities as a condition precedent to a pupil enrolling in a course in Art and Music.

Ga. Code Ann., 32-937 provides th~t "Admission to all common schools shall be gratuitous to all chil'dren between the ages of six and 18 years residing in the districts in which the schools are located."

The case of Moore v. Brinson, 170 Ga; 680, 686, held as follows:
"A charge for matriculation can not be imposed as a condition prece-
d(mt to the admission of children to a public school forming a part of the general school system of children living in the territory of the school and otherwise qualified. Irvin v. Gregory, 86 Ga. 605 (13 S. E. 120); Mayor etc. of Gainesville v. Simmons, 96 Ga. 477 (23 S. E. 502); Edalgo v. Southern Ry. Co., 129 Ga. 258, 266 (58 S. E. 846); Wilson v. Stanford, 133 Ga. 483 (3), 485 (66 S. E. 258); Brewer v. Ray, 149 Ga. 596 (101 S. E. 667); Claxton v. Stanford, 160 Ga. 752 (128 S. E. 913) . A public school which makes a discrimination between children of parents who pay matriculation fees, and the children of parents who do not pay such fees, violates the above provision of the constitution that the public schools shall be free to all children of this State."

The Supreme Court of Georgia in State of Georgia v. Regents of University, 179 Ga. 210, 224, said:

"The constitution of this State provides that the 'common schools shall be 'free' and to be free means that no charge of any character can be made, whether for. tuition or otherwise. Accordingly it has been held by

209
this court that a charge for matriculation can not be imposed as a condition precedent to admission to any of .the common schools of this State." Would the same rule apply to a voluntary contribution made by a pupil to assist the local authorities in procuring a teacher of Art or Music that would otherwise be. unavailable? There is no case specifically on point in Georgia and there seems to be some confusion on the point elsewhere because of the variation in different statutes and constitutions. See 7.9 C. J. S., 456, page 376; 47 Am. Jur. 148, page 404. Georgia Code Ann~, 32-909 provides in part as follows in reference to Boards of Education:
"They shall have the power to receive any gift, grant, donation, or devise made for the use of common schools...." In my opinion it would not be illegal for a local board of education to permit a private Art or Music teacher to conduct private Art or Music lessons on public school property for those pupils who desire such instruction at their own personal expense. I do not intend to infer that any local board of education is compelled under the laws of Georgia to make such services available. This is a question of administrative policy for each board of education.
EDUCATION-Instruction-Bible Teaching Discusses constitutional validity of bible reading in the public schools
under both the Federal and the State Constitutions.
April 25, 1956
Honorable MarvinGriffin Governor of Georgia
I am pleased to acknowledge your recent request concerning the teaching of the Bible in the public schools of Georgia. The request poses the difficult question of the relationship of Church and State under both our State and Federal Constitutions. I. Georgia Constitution.
The. Georgia Constitution (Ga. Code Ann., 2-6401) provides that "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 compulsory school law requires that all children between their seventh and sixteenth birthday shall be enrolled in either a public or private school. Ga. Code Ann., Chap. 32-21.
Ga.. Code Ann., 32-705 provides in part that "the Bible, including the Old and the New Testaments, shall be read in all the schools receiving State funds, and thatnot less than one chapter shall be read at some appropriate time during each school day. Upon the parent or guardian of any pupil filing with the teacher in charge of said pupil in the public schools, a written statement requesting that said pupil be excused from hearing the said Bible read as required by this section, such teacher shall permit such pupil to withdraw while the reading of the Bible is in progress. Such request in writing shall be sufficient to cover the entire school year in which said request is filed."
Is the above Code Section in conflict with the provisions of the Georgia Constitution on freedom of religion and separation of Church and State? These Constitutional provisions are as follows:

210
Ga. Code Ann., 2-112. Freedom of conscience.-All men have the natural and inalienable right to worship God, each according to the dictates of his own conscience, and no human authority should, in any case, control or interfere with such right of conscience."
Ga. Code Ann., 2-113. Religious opinions; liberty of conscience.No inhabitant of this State shall be molested in person or property, or prohibited from holding any public office, or trust, on account of his religious opinions; but the right of liberty of conscience shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State."
Ga. Code Ann., 2-114. Appropriations to churches, sects, etc., forbidden.-No money shall ever be taken from the public Treasury, directly, or indirectly, in aid of any church, sect, or denomination of religionists, or of any sectarian institution."
In Wilkerson v. City of Rome, 152 Ga. 762, 773-774, 777-778, 781, an ordinance of the City of Rome requiring some portion of the King James version of the Bible of either the Old or New Testament to be read, and prayer offered to God in the hearing of the pupils daily during the regular sessions of the school was alleged to be in violation of the above Constitutional provisions (Constitution of 1877). The Court held:
" ... It would require a strained and unreasonable construction to find anything in the ordinance which interferes with the natural and inalienable right to worship God according to the dictates of one's own conscience. The mere listening to the reading of an extract from the Bible and a brief prayer at the opening of school exercises would seem far remote from interference. It would be equally difficult to find anything in the ordinance which could in any way molest any inhabitant of this State in person or property, or prohibit him from holding any public office or trust, on account of religious opinions. Finally, when it is noted that pupils whose parents or guardians so request, may under the terms of the ordinance, be excused from attendance on Bible reading and prayers, the whole contention of plaintiffs in error . . . must crumble into nothingness. . . .
* * *
". . . The mere reading of extracts from the New Testament of the Bible in the public schools cannot in any legitimate sense be considered as an appropriation of public moneys to the support or establishment of a system of religion or a sectarian institution. . . .
* * *
"The reading of the Scriptures in the public schools does not convert the school into a sectarian institution.... we hold that the ordinance of the City of Rome requiring the board of education to have, through the principals and others, the reading of extracts from the Bible and prayers in the public schools of Rome, is not in conflict with the constitution of this State .."
On the basis of the above authority, it is my opinion that Section 32-705 is not in conflict with the provisions of the Georgia Constitution on freedom of religion and separation of Church and State. II. United States Constitution.
The First Amendment to the United States Constitution (Ga. Code Ann., 1-801) provides as follows:

211
"Rights of conscience; freedom of the press, etc. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The Fourteenth Amendment to the United States Constitution (Ga. Code Ann., 1-815) provides as follows:
"Citizenship. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
In Illinois Ex Rei McCollum v. Board of Education, 333 U. S. 203, 68 Sup. Ct. 461, 92 L. Ed. 649, the Champaign, Illinois, school board agreed that religious education should be given in the local schools to those children in grades four through nine whose parents signed 'request cards.' Such children were instructed approximately forty-five minutes a week by agents of the Council on Religious Education, an organization of Catholic, Jewish, and some Protestant faiths. The Council paid the religious teachers but the public school authorities supervised them. The classes were conducted during regular school hours and in the school building. Attendance was compulsory for the designated children and roll was taken and reported as for regular classes. Those children whose parents had not requested them excused for the religious instruction were required to leave the regular classrooms and go to another part of the building to make way for the religious classes.
This program was challenged on the ground that the details of its operation rendered the plaintiff's son conspicuous and left him exposed to ridicule as the unbeliever which he nevertheless had every right to be. The court held that the Champaign "released time" plan violated the "establishment of religion" clause of the First Amendment and conflicted with the "due process of law" clause of the Fourteenth. The opinion said:
"The foregoing facts, without reference to others that appear in the record, show the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education. The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by seperate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education 330 U. S. 1. There we said: 'Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force or influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing

212
religious beliefs or' disbeliefs, for church attendah~e or non-atte:n'dance.
No tax in any amount; large or small, cari be levied to support any religious activities, or institutions, whatever they may be called, or whatever form they may adopt to teach ot practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.' "
"To hold that a state cannot consistently with the First and Fourteenth Amendments utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious t~mchings. A manifestation of such hostility would be at war with out national tradition as embodied in the First Amendment's guaranty of the free exercise of religion. For the First .Amendment rests upon the promise that both religion and the government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the E:verson c.ase, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.
"Here ,not only are the State's tax-supported public school buildings . used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for the religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State.''
In Zora:ch v. Clauson, 343 U. S. 306, 72 Sup. Ct. 679, 96 L. Ed. 954, the court upheld a New York statute and the action of the school board of the City of New York in providing a "released time" program for religious instruction during public school hours but away from public school buildings as not being in conflict with the First Amendment to the Federal Constitution. The opinion said:
"... No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools. A student need not take religious education. He is left to his own desires as to the manner or time of his religious devotions, if any.
"There is a suggestion that the system involves the use of coercion to get public school students into religious classrooms. There is no evidence in the record before us that supports that conclusion. The present record indeed tells us that the school authorities are neutral in this regard and do no more than release students whose parents so request. If in fact coercion were used, if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented. Hence we put aside that cla:i:m of coercion both as respects the 'free exercise' of religion and 'an establishment of religion' within the meaning of the First Amendment.
"Moreover, apart from that claim of coercion, we do not see how New York by this type of 'released time' program has made a law respecting an establishment of religion within the meaning of the ].i'irst Amend~ ment. There is much talk of the separation of Church and State in the history of the Bill of Rights and in the decisions clustering around the First Amendment.. There cannot be the slightest doubt that the First

213
Amendment reflects the philosophy that Church and State should be separated. And so far as inte'rference with the 'free exercise' of religion and an 'establishment' of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute. The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the main, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other-hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of tht! Chief Executive; the proclamation making Thanksgiving Day a holiday; 'so help me God' in our courtr\)om oaths-these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this Honorable Court.'
"... When the state encourages religious instruction or cooperate!) with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education or use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious oinstruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here."
In Doremus v. Board of Education, 342 U. S. 429, 72 Sup. Ct. 394, 96 L. Ed. 475, and Gideons International v. Tudor, 348 U. S. 816, 75 Sup. Ct. 25, 99 L. Ed. 643, the court refused on jurisdictional grounds to question the validity of a New Jersey statute which required certain Bible reading in the public schools.
On the basis of the above authorities, it is my opinion that sectarian religious instruction, done in the public schools and with particular administrative cooperation, amounts to an unconstitutional establishment of religion under the United States Constitution. Where done outside the school and with only the necessary minimum of administrative cooperation, it does not amount to an establishment of religion.

214
EDUCATION-Merger and Consolidation of Schools (Unofficial). Property within an independent school system is not liable for any prior
bonded indebtedness incurred by a county school system where there has been a subsequent merger of the two systems.
September 1~4
Mr. H. Y. Langford I am pleased to acknowledge your request as to whether property within an
independent school system is liable for any prior bonded debts incurred by a county school system where there is a subsequent merger of the two systems.
When a county school system votes to incur a bonded debt for building and equipping school buildings, persons within an independent school district may not vote in the election nor can property located within the independent district be subject to taxation for the retirement of these bonds. Georgia Code Annotated, Section 32-1403.
Barber vs. Cummings, 167 Ga. 289, held that where two districts have been consolidated, one district, whose residents and taxpayers did not participate in the creation of the bonded debt, is not liable to pay any part of the debt incurred by the other district prior to consolidation. The basis of this decision was as follows:
"Of course, we realize that there is ground in this case which apparently makes a basis for strong equitable claims in favor of the Donalsonville School District, inasmuch as the schooihouse for which the bonded indebtedness was created before the consolidation of the two districts will be used for school purposes by the entire consolidated district. Nevertheless we do not think that any part of this debt can be imposed upon the Hammock Springs School District." See also Bond vs. Pattillo, 174 Ga. 571; Chappel vs. Small, 194 Ga. 143; 121 A. L. R. 834. In light of the above authority, it is my opinion that property within an independent school system is not liable for any prior bonded indebtedness incurred by a county school system where there is a subsequent merger of the two systems.
EDUCATION-Merger and Consolidation of Schools Douglas-Coffee County School merger.
November 24, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request concerning certain aspects of the Constitutional Amendment (Ga. Laws 1953, Jan.-Feb. Sess., p. 569) merging the Douglas and Coffee County school systems.
1. The Douglas-Coffee County school merger becomes effective when a proclamation of ratification has been issued by the Governor.
The case of Gainesville Railway v. Jackson, 1 Ga. App, 632, seems to hold that a constitutional amendment becomes effective when the Governor issues his proclamation.

215
2. The City of Douglas school system and the Coffee County Board of Education were abolished by the Amendment. The present boards of the two systems do not hold over until their successors are elected and take office.
In my opinion there can be no holding over by the present members of the Douglas and Coffee County Boards of Education. The Amendment contains the following provisions:
"... thereby abolishing the present school system and district of the City of Douglas ...
"The present five-member Board of Education of Coffee County, Georgia, is hereby abolished ..." Article XII, Section I, Paragraph VI, (2-8006) provid~s as follows:
"The officers of the Government now existing shall continue in the exercise of their several functions until their successors are duly elected or appointed and qualified. But nothing herein is to apply to any officer, whose office may be abolished by this Constitution." (Emphasis supplied.)
Here the offices held by the members of the Douglas and Coffee County Boards of Education have been abolished; therefore, these members do not hold over.
3. The new seven-member Board of Education of Coffee County is to be elected by the Grand Jury of said county.
The amendment contains the following provision: "The members of the said seven-member Board of Education shall be
elected by the grand jury of Coffee County ..."
Once the Governor's proclamation of ratification is issued, it is my opinion that there will be no Board of Education in Coffee County until the new sevenmember Board is elected by the Coffee County Grand Jury.
4. After the Douglas-Coffee County merger, state school funds should be disbursed to the Coffee County School Superintendent.
The merger does not in any way interfere with contracts entered into by Douglas or Coffee County systems with their employees. This would also be true of any contract entered into between the Douglas Board of Education and the Coffee County Board of Education prior to the merger under Article VIII. Section IX, Paragraph I, (2-7201) of the Georgia Constitution. Both the Georgia (Ga. Code Ann. 2-302) and Federal (Ga. Code Ann. 1-134) Constitutions forbid the passage of any legislation which would have the effect of impairing the obligation of contract. See, Hall v. Wisconsin, 103 U. S. 5, 26 L. Ed. 302. All legislation should be construed so as to not violate these constitutional provisions. Board of Education v. So. Michigan Bank. 184 Ga. 641, 642.
Prior to consolidation, State school funds were disbursed to the Treasurer of the City of Douglas for the Douglas schools and to the Coffee County School Superintendent for the Coffee County schools. See Ga. Code Ann. 32-621, 32-941. Who should receive these funds after the merger?
The case of Board of Education of Paulding Co. v. Gray, 203 Ga. 583, 586, held that where an independent school district has been merged into a county school district, the latter succeeds to all rights, powers and duties vested in the former. The Coffee County school district was enlarged by the Constitutional Amendment to include the Douglas system.
As to the powers of various officials, 78 C. J. S. 48, p. 742 provides as follows:
"So the officers or directors of a district to which territory is added acquire and have jurisdiction of such added territory as fully as over the territory previously comprised within the district, while the officers

216
or directors of a district from which territory is detached possess no further authority or jurisdiction with respect thereto after the transfer." On the basis of the above authority, I am of the opinion that all employee contracts made by the Douglas and Coffee County systems prior to merger will be binding obligations after merger and that State school funds should be disbursed to the Coffee County School Superintendent for payment on employee contracts made by. the Douglas Board of Education or the Coffee County Board of Education. The same would be true of taxes collected or levied by the City of Douglas for the academic year 1954-55. The case of Boswell v. Purks, 43 Ga. App. 123, 125, held as follows:
"We think it more logical to hold that, while they ceased to exist as separate units, the. district schools continued their existence as parts of the co~solidation; and that, therefore, the consolidated schools are entitled to the benefit. of any taxes collected. or levied previous to the consolidation and still uncollected, in the Shiloh School District, now composing the Penfield Consolidated School District. This view seems more consonant with justice and equity than the contrary one, since the taxpayers of the Shiloh District are entitled to the benefits of the consolidated school system, with the corresponding legal obligation to contribute to its support." It would be illegal for the City of Douglas to devote public funds for the support of the consolidated county school after the present contracts expire. See Miller v. City of Cornelia, 188 Ga. 674.
EDUCATION-Merger and Consolidation of Schools (Unofficial) Contract between county and independent school system for the educa-
tion, transportation and care of pupils is not a merger of the two systems, and does not entitle residents within the independent system to vote for County School Superintendent even though their children attend a school in the county system.
February 17, 1955
Honorable Joe B. Adams This letter Is in response to your oral request of February 16, 1955, as to
whether residents of the City of Barnesville, an independent school system, whose children are attending school in the Lamar County system, may vote in an election to select the. Jackson County school superintendent.
Georgia Code Annotated, 32-1002, provides in part a~ follows: "All county superintendents of schools shall be elected by the quali-
fied voters of their respective counties quadrennially 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. . . ." (Emphasis supplied.) Should the County Board of Education merge with an indepedent system under Chapter 32-12 of the Georgia Code or by local constitutional amendment, the residents of the former independent system could then vote in the said election.

217
In my opinion where the County Board of Education an!f the independent system contract with each other for the education, transportation and care of pupils under Article VIII, Section IX, Paragraph I of the Georgia Constitution of 1945, this does not of itself give the residents of the independent system the right to vote in an election held to select the County School Superintendent, nor may such right, be given by contract. Such a contract does not amount to merger. Where election requirements are set out by statute, neither individuals nor groups may alter such legislative intent by contract, nor does the fact that children of certain residents of Barnesville attend the Lamar County school system alter such legislative intent.
EDUCATION-Merger and Consolidation of Schools (Unofficial)
County Board of Education may levy tax only upon property that was subject to taxation in former school district to pay bonded indebtedness of former school district which has been dissolved and merged with county school district.
October 11, 1955
Mr. D. J. Smith I am pleased to acknowledge your request in which you refer to the law
consolidating former school districts into one school district for each county, and transferring all property from the local school districts to the county board of education (Ga. Laws 1946, p. 206).
You ask the question as to whether it is the duty of the county board of education to levy a county-wide tax to pay the bonded indebtedness of these former school districts.
Georgia Code Ann., 32-1402 provides in part as follows: "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 creatin!'i 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. The county board of education shall also annually, within the time required by law, or the terms of said bond issue, recommend to the fiscal authorities of the county, the levy upon the property subject to taxation in the district originally voting said bonds, such tax as may be necessary to provide a sinking fund for the retirement of said bonds and for paying the principal thereof and the interest thereon, in accordance with the terms under which said bonds were issued; this to be in addition to the general tax for the maintenance of the schools of said districts." It is clear from the above quoted Code Section that the local board must levy only upon the property that was subject to taxation in the former school district (to pay the bonded indebtedness of this district) and not upon the county as a whole.

218
All property within the county, including the abolished district will be levied upon for the general tax in maintaining the county schools.
Board of Education of Paulding County v. Gray, 203 Ga. 583, held that where a county board of education received from an abolished school district funds which had been derived from the sale of bonds voted for the purpose of building, repairing, and equipping a school house in that district, it can lawfully use these funds for no other purpose.
EDUCATION-Private Schools-Control of 1. Private schools are subject to reasonable regulations under the
police power of the State, and this police power must be limited to the preservation of the public safety, the public health, or the public morals.
2. No specific grant of authority to State Board of Education to prescribe standard requirements for non-public schools, other than colleges.
October 11, 1954
Honorable M. D. Collins Superintendent of Schools
I am pleased to acknowledge your recent request as to whether the laws of Georgia permit the State Board of Education to adopt regulations governing the operation of non-public schools.
Your request involves two questions. The first is whether any such law would be constitutional. If permitted, the second question would be whether the General Assembly has given the State Board of Education such authority.
It has generally been held that private schools are subject to reasonable regulation under the police power of the State, and the State may require private schools to be registered or licensed, but its regulations for obtaining a license must not be unreasonable. 78 C. J. S. 6, p. 615. The exercise of this police power must be limited to the preservation of the public safety, the public health, or the public morals. 47 Am. Jur. 221, p. 459. See also, Pierce v. Society, 268 U. S. 510, 534.
Specific grants of powers and duties have been given to the State Board of Education by the General Assembly. These include the duty of prescribing standard requirements for colleges conferring degrees or issuing diplomas in Georgia. Georgia Code Annotated 32-2104 requires that every child between their seventh and sixteenth birthday be enrolled in a public or private school.
There is no specific grant of authority to the State Board of Education to prescribe standard requirements for non-public schools other than colleges; therefore, it would be presumed that the General Assembly, under our present law, did not intend for the Board to have such authority. Inclusio unius est exclusio alterius. Bailey vs. Lumpkin, 1 Ga. 392, 403. As stated above, the General Assembly has the constitutional authority to enact laws giving the State Board of Education power to adopt regulations concerning safety, helath and morals in no-public schools.

219
EDUCATION-Private Schools-Status of
The fact that the state pays money to a private corporation does not mean that the corporation is subject to the same restrictions as are placed on the state.
November 19, 1954
Honorable D. Field Yow
I am pleased to acknowledge your letter concerning the case of Kerr vs. Enoch Pratt Free Library, 149 F. 2d. 212, and its relation to any proposed legislation under the Education Amendment adopted on November 2, 1954.
In my opinion the Kerr case is distinguished on its facts as there the corporation was "completely owned and supported from its inception by the state". The distinction is clearly pointed out in Norris vs. Mayor and City Council of Baltimore, 78 F. Supp., 451, where the court said:
"Counsel for the plaintiff advances a new and far-reaching proposition not within the principle of the Pratt Library Case. The contention is that whenever the State or Baltimore City as a municipal agency of the State, advances moneys to a private corporation of an educational nature in an appreciably substantial amount which thereby becomes mingled with other gene\'al funds of the institution, that action of the institution or City thereby becomes State action within the scope of the 14th Amendment. No authority is cited for this proposition and I know of none. In my opinion it is untenable."
The most recent case on this is Dorsey vs. Stuyvesant Town Corporation, 299 N. Y. 512, 87 N. E. 2d 541, cert. denied 94 L. Ed. 1385. Here the action of certain New York housing projects whereby their units were rented only to white tenants, was under attack as violative of the equal protection clauses of the Federal Constitution and the Constitution of the State of New York.
These housing projects were built under New York laws providing for clearance and rehabilitation of substandard areas and redevelopment thereof.
The projects were well-regulated by the New York laws, were exempt from taxation, were acquired by the exercise of the State's power of eminent domain conferred upon the city of New York, and were erected pursuant to contract between the corporating operating them and New York City and its Planning Commission.
The New York statutes in question provided for subsidies by the State under certain conditions, loans of public money, and broad powers of condemnation under the laws of eminent domain.
The court held: "Stuyvesant Corporation is not a public corporation (that is, an
agency of the state) but is a corporation regulated by law. . . . The Legislature deliberately and intentionally refrained from imposing any restrictions on a Redevelopment Company in its choice of tenants".
And the court concluded, notwithstanding the control and subsidy laws, that the action of the corporation in determining who they would receive into these projects, was private action and not State action. Said the court:
"Respondents cannot be held to answer for their policy under the equal protection caluse of State or federal constitutions. The aid which the State has afforded them and the controls to which they are subject are not sufficient to transmute their conduct into State action under the constitutional provisions here in question."

220
During the course of its opinion, the court also said this:
"The increasing and fruitful participation of government, both state and federal, in the individual and economic life of the nation-by subsidy and control analogous to that found in this case-suggests the grave and delicate problem in defining the scope of the constitutional limitations which would be posed if we were to characterize the rental policy of respondents as governmental action. To cite only a few examples: The merchant marines, air-carriers and farmers all receive substantial economic aid from our federal government and are subject to varying degrees of control in the public interest. Yet it has never been suggested that these and similar groups are subject to the restrictions upon governmental action".

EDUCATION-School Buildings-Contracts (Unofficial)
Proper official to offer bids for a county-wide school building program is the County Board of Education if the program is to be locally financed and the State School Building Authority if financed under the Authority.

July 26, 1955

Honorable Jno. P. Blanchard

Superintendent of Schools

Columbia County Board of Education

I am pleased to acknowledge your request of July 21, 1955, as to the proper

official to offer bids for a county-wide school building program.

Your letter does not refer as to whether this program is under the School

Building Authority or purely local in nature. If it is under the Authority, naturally

the Authority will offer the bids, build the buildings, and lease them to the county'

board of education.



As to a locally financed building program, the Constitution ( 2-6801) and Ga.

Code Ann., 32-901 place the control and management of county schools in the

respective county boards of education. The case of Board of Education v. So. Mich.

Bank, 184 Ga. 641, 642, held that the county board of education "is an agency

through which the county acts in school matters."

Ga. Code Ann., 32-909, provides in part as follows:

"The county boards of education shall have power to ... build ... schoolhouses ... , and make all arrangements necessary to the efficient operation of schools.... The construction of all public school buildings must be approved by the superintendent and board of education and must be according to the plans furnished by the county school authorities and the State Board of Education." Ga. Code Ann., 32-907, provides in part as follows:
"... A majority of the board shall constitute a quorum for the transaction of business...."

On the basis of the above authority, it is my opinion that bids for a countywide school building program (locally financed) should be offered by the county board of education or their duly authorized agent.

221
EDUCATION-School Buildings-Liens (Unofficial) No valid lien can arise in favor of materialmen or mechanics as against
a school building belonging to a municipal corporation or any instrumen~ tality of the State.
November 29, 1955
Honorable H. S. Barnes I am pleased to acknowledge your request of November 22, 1955, as to the
application of Ga. Code Ann., 67-2001 and 67-2002 (Liens) with respect to labor and material used on a schoolhouse.
The case of Neal-Millard Co. vs. Trustees, 121 Ga. 208, held that no valid lien can arise in favor of materialmen or mechanics as against a school building belong~ ing to a municipal corporation, and used for a public purpose. See also, Aetna Indemnity Company vs. Town of Comer, 136 Ga. 24; City of Albany vs. Lynch, 119 Ga. 491. Southern Surety Co. vs. Dawes, 161 Ga. 207, held that a material~ man furnishing material to a contractor in making improvements can in his own name, where city fails to sue in time prescribed, maintain action on bond.
The same holding would apply to school buildings built by the Georgia State School Building Authority, which is an instrumentality of the State. See McLucas vs. State Bridge Building Authority, 210 Ga. 1. The Authority requires every contractor to have a performance and payment bond (American Institute of Architects, Form 107).
EDUCATION-School Buildings-Repair (Unofficial) It is a legal expenditure of school funds to improve and repair school
property held under a lease agreement from the State School Building Authority.
September 11, 1956
Honorable J. Carlton Warnock I am pleased to acknowledge your request concerning expenditure of local
county funds for the purpose of improving and repairing school property held under a lease agreement from the State School Building Authority.
The lease contract (Form 74-5, 3-5-55) provides in Paragraph 7 as follows: "Lessee further covenants that during the term of this lease and so
long as it occupies said project or any part thereof, it will at its own proper cost and expense pay all ordinary cost of maintenance, operation and repair of the demised premises or the improvements thereon or any furniture or equipment situated therein, including but not being limited to utility rents and charges.
"If Lessee desires to make structural changes in any facility of the project it shall first obtain the written consent of Lessor to make such changes." On the basis of the above provision it is my opinion that the Treutlen County Board of Education may legally expend county school funds for improvements and repairs to the property now leased from the State School Building authority pro~ vided that written consent is obtained from the lessor as to any structural change in the property.

222
EDUCATION-School Buildings-Revenue Certificates
A county is not authorized to issue revenue certificates for the purpose of building school buildings to be leased by the local school board.
May 17, 1955
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request as to whether a County, acting through the Commissioners of Roads and Revenues, has the authority to issue revenue certificates under the Revenue Certificate Law of 1937 for the purpose of constructing buildings to be leased to the county board of education.
The authority to issue revenue certificates is found in Article VII, Section
vn Paragraph V (Code 2-6005) which provides in part as follows:
"Revenue anticipation obligations may be issued by any county, municipal corporation or political subdivision of this State, to provide funds for the purchase or construction, in whole or in part, of any revenueproducing facility which such county, municipal corporation or political subdivision is authorized by the Act of the General Assembly approved March 31st, 1937, known as the 'Revenue Certificate Laws of 1937,' as amended by the Act approved March 14, 1939, to construct and operate, or to provide funds to extend, repair or improve any such existing facility, to buy, construct, extend, operate and maintain gas or electric generating and distributing systems, together with all necessary appurtenances thereof. Such revenue anticipation obligations shall be payable, as to principal and interest, only from revenue produced by revenue-producing facilities of the issuing political subdivisions, and shall not be deemed debts of, or to create debts against, the issuing political subdivisions within. the meaning of this paragraph or any other of this Constitution...."
While counties are authorized to issue revenue certificates (Ga. Code Ann., 87-802(b) Supp.), and while an "undertaking" is said to include buildings constructed for educational purposes (Ga. Code Ann., 87-802 (a) Supp.), both the Constitution and the Act of the General Assembly require that the funds must be for a revenue-producing facility and that the obligations be paid only from revenue produced by this revenue-producing facility.
The case of Miller v. Head, 186 Ga. 694, 709, held that the Revenue Certificate Act of 1937 (Ga. Code Ann., Chapter 87-8):
"... is designed to provide for self-liquidating projects, and the revenue certificates therein contemplated are not to be a charge against the general credit of the county or municipality. The liability is to be satisfied only from revenues produced by the undertaking, and under the specific terms of the statute the political division will never be required to aid in its retirement with funds derived from any other source, and is in fact prohibited from doing so."
If a county, acting through its Commissioners of Roads and Revenues, constructed a building for the purpose of leasing it to the county school district and thereby used the rent to retire the revenue certificates, would said county be required to aid in the retirement of said certificates with funds derived from any source other than the building ? Would the funds come from the building or from county taxes?
The Georgia Constitution (Ga. Code Ann., 2-7501) provides that the county

223
shall levy taxes for the support and maintenance of education upon the recommendation of the county board of education.
Smith v. Board of Education, 153 Ga. 758, 759, held as follows: "Under the law the county acts through its board of commissioners
of roads and revenue in matters of finance, construction of roads, bridges and like. In matters of education the county acts through its board of education. When the board of commissioners of roads and revenue acts upon mater lawfully within their jurisdiction, it is the county acting through 'its corporate authority'". Burke v. Wheeler County, 54 Ga. App. 81, 86, held:
"The county board of education is merely an agency through which the county acts in school matters." It is apparent from the above authority that the county would be constructing the building and that the county would also be taxing to pay the rent; therefore, the county and not the school building would be producing the revenue. The county would be contracting with itself by the use of a fiction. There would be no revenue producing facility. It is my opinion that a county does not have authority to issue revenue certificates for the purpose of constructing school buildings that will be leased to the county board of education for the reason that the school building would not be producing revenue. As to capital outlay funds, there is no assurance that the General Assembly will pay the full amount of the capital outlay set up for any particular county nor is the credit of the State pledged to pay off the indebtedness of the county to the State School Building Authority. See Ga. Code Ann., 32-1414(a). The indebtedness is between the County Board of Education and the Authority. Sheffield v. State School Building Authority, 208 Ga. 575. The General Appropriations Act is for one year and is subject to change by future sessions of the General Assembly; therefore, no County can be definitely sure of receiving the full amount of capital outlay alloted by the State Board of Education.
EDUCATION-School Buildings-Sale of A local Board of Education may sell any school building, but the proceeds
therefrom must be used for school purposes and no other.
June 8, 1955
Honorable M. D. Collins State Superintendent of Schools State Department of Education
I am pleased to acknowledge your request concerning the sale of a vocational educational building by the Bleckley County Board of Education and the disposition of the money received from any such sale.
Ga. Code Ann., 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 schoolhouses or other property with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the

224
board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; ." The case of Duffee v. Jones, 208 Ga. 639, held that the county board of education has power to and may sell at private sale any schoolhouse property.for which it has absolute title when the board of education by resolution declares that the same is not necessary or convenient for school purposes. Georgia Code Ann., 32-942, 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 fund and keep the same separate and distinct from other funds, and said funds shall be used for educational purposes and none other, ..." The case of Burke v. Wheeler County,. 54 Ga. App. 81, held that public school funds cannot be used for other than school purposes. On the basis of the above authorities it is my opinion that the Bleckley County Board of Education can sell any school building when the Board by resolution declares that such building is not necessary or convenient for school purposes, but all money received from such sale can be used by the Board of Education for school purposes and none other, i.e., the Board can not legally make a contribution to a health center nor buy any property which is not to be used for school purposes.
EDUCATION-School Building-Sublease of Lessee may sublease its leasehold with the State School Building Au-
thority without impairing the limitation upon the Authority to encumber its reversionary interest.
November 9, 1954
Honorable M. D. Collins State Superintendent of Schools
You request my opinion as to the legality of transferring any school buildings being financed through leases with the State School Building Authority to private schools, in view of alleged contract terms stating that the structures are to be occupied by the county and city systems.
On October 30, I wrote you requesting copies of the contracts in question, stating that I felt constrained, ex majore cautela, to decline construing any contract unless I had been furnished with copies thereof. To date, I have not heard from you, and in the meanwhile, I have succeeded in procuring copies of the relevant documents.
The trust indenture executed between the State School Building Authority, and the Fulton National Bank, as trustee for the bondholders, provides, in so far as even remotely relevant here, as follows:
"Section 705. The Authority covenants and agrees that so long as any of the bonds of this issue shall remain outstanding and unpaid it will not voluntarily create, or cause to be created, any debt, lien, pledge, assignment, encumbrance or other charge having priority to or being on a parity with the lien of this Indenture and of the bonds issued hereunder upon any of the revenues of the Authority received under the terms of the said leases hereinabove referred to. The Authority further covenants that it will not transfer, convey or otherwise alienate the facilities or any of them, or the real estate on which said facilities shall be located covered by

225
said leases hereinabove detailed, except that the Authority may sell and convey the combined project as a whole is simultaneously with such conveyance the Authority shall deposit in the Sinking Fund an amount which with other monies then is such fund shall be sufficient both to redeem all outstanding bonds on the earliest date upon which they could be redeemed in accordance with their terms and also to pay all interest which shall have accrued thereon on or before such date, and also the Authority may sell and convey one or more of the facilities of one or more of the projects if simultaneously with such sale the purchase price is deposited in the Sinking Fund, which price must be an amount sufficient to redeem that portion of all of the outstanding bonds as the total cost of the construction and equipment of such facility bears to the then outstanding bonds figured to the earliest date upon which they could be redeemed in accordance with their terms, and also to pay all interest which shall have accrued thereon on or before such date. The Authority further covenants that it will not mortgage or otherwise voluntarily create, or cause to be created any encumbrance on the facilities, or any of them, or the real estate on which they will be located.
"The Authority may, however, from time to time sell any fixtures, equipment or other movable property acquired by it in connection with any facility if the Authority shall determine that such articles are no longer needed or useful in connection with the operation and maintenance of the facility and the proceeds thereof shall be applied to the replacement of the properties so sold or disposed of, or shall be deposited to the credit of the Depreciation Reserve Fund." See also Section 706, page 44, to somewhat the same effect.
It is to be noted that these provisions merely prohibit the Authority from transferring or encumbering its interest. Where school buildings are financed through the State School Building Authority, the transaction is carried out by a lease arrangment, whereby the Authority, the fee simple owner of the facility in question, leases to the individual school system. The school system acquires a leasehold interest in the property, while the Authority retains the reversion or fee simple.
Therefore, it is clear that Section 705 and 706 of the Trust Indenture are only limitations upon the right of the Authority to alienate or encumber its reversionary interest, and do not in anywise restrict or prohibit the lessee, i.e., the local school system, from subletting its leasehold.
Generally, a lease for five years or more, which does not by its own terms interpret the intent of the parties to pass a lesser interest will be presumed, as under the common law, to convey an estate for years (Davis v. Auerbach, 78 Ga. App. 575, 580), and the mere fact that the instrument uses the word "lease" does not, contrary to the impression in the public mind, refer to only a long term landloard and tenant relationship, as distinguished from an estate for years, since the Code, Section 85-806, refers to a "lease" as conveying an estate for years. Warehouses, Inc. v. Wetherbee, 203 Ga. 483, 485 (3a). An "estate for years" as distinguished from a mere usufruct which passes under a landloard-tenant relationship (Code, Section 61-101), may be sold, assigned, or sublet the same as any other real estate, even against the consent of the grantor, unless the deed or "lease" otherwise provides. Clark v. Herring and Mock, 43 Ga. 226 (2); Wilson Manufacturing Company v. Chamberlin-Johnson-DuBose Company, et al., 140 Ga. 593 (2). Of course, the lessee cannot substitute a new paymaster without the consent of the lessor. Warehouses; Inc. v. Wetherbee, et al., 203 Ga. 483, 485 (4).

226
Turning to the standard lease executed between the Authority as lessor, and the various school systems as lessees, the provision which you probably have reference to is paragraph 5, which provides in part as follows:
"During the term of this lease, Lessee shall use and continue to occupy project herein leased to the exclusion of any and all other such buildings or facilities which Lessee may own, build, acquire or otherwise lease except that so long as Lessee does not use and fully occupy said project Lessee may use and occupy any other similar building or facilities in its discretion."
This provision obviously was never intended as a prohibition against subleasing; had the intent so been, the customary language used to convey this intent would have been used, in preference to language which hardly is appropriate to express the idea.
This provision's sole function is to establish a "priorital right." The purpose of this priorital right is to guarantee that where, for instance, a school system is in possession of facilities besides those leased by the Authority, the System could not legally occupy these "other facilities" to the exclusion of those leased by the Authority and thereby create a prior claim or lien against funds held by the School System for paying rents.
In McLucas v. State Bridge Building Authority, et al., 210 Ga. 1, the Supreme Court, in speaking of the debt prohibition provision of our Constitution (Article VII, Section III, Paragraph I; Code Annotated, 2-5601) and the provision under which contracts with the various public authorities are made (Article VII, Section VI, Paragraph 1 (a); Code Annotated, 2-2901), declared respectively.
"The latter lifts out of the former any inhibition against the creation of a debt insofar as the creation of a debt is authorized by the latter clause." (Id. p. 8)
Also, it is true as you stated in your letter that the Turtle River case (State of Georgia v. Toll Bridge Authority, 210 Ga. 690, 704), held that the Legislature could not invalidate a contract, the obligation of which was authorized under the above theory of the McLucas case. Reaffirmation of this principle of constitutional law little needs to be done at this late date for the Supreme Court of the United States has settled this proposition so many times that it has become hoary with age. However, as has been hereinbefore shown, subleasing of the facilities by a local school system does not in the least impair the obligation of any contract with the bondholders. The rule that an estate for years is subject to subleasing was part of our law at the time the original lease agreement and trust indenture, including the bond certificates, were executed, and entered into those instruments as though incorporated therein. Walker v. Whitehead, 83 U.S. 314, 16 Wall. 314, 21 L. Ed. 357; West End and A. St. R. Co. v. Atlanta St. Ry. Co., 49 Ga. 151; Dorsey v. Clements, 202 Ga. 820, 173 A. L. R. 509. Had the bondholders or any other interested person desired that the public school systems not sublet or assign their lease, they could easily have so provided in the instruments effectuating the transaction. No such provision is found.
Of course, I have stated before herein that a new paymaster cannot be substituted without the consent of the bondholders, which means that any public school system transferring its interest to a private school will still be liable to the Authority, and in turn, the bondholders, for the rents, in any case where the sublessee, i.e., the private school, defaults. However, the local public system could readily protect itself by requiring the private school to post good and sufficient bond, conditioned upon the payment in full by it of all rents due.

227
I therefore conclude that there is nothing in either the trust indenture, or the lease, to prohibit the subleasing of facilities by the local public systems.
The bondholders are not concerned with who occupies or is in control of the structures. The attractive inducement to them was the credit of the political subdivisions of the State, which would remain ultimately pledged, even in the event of a sublease or assignment.
Next, it has been said that certain language in the State School Building Authority Act prohibits a political subdivision from conveying or assigning its leasehold interest.
It is true that Section 32-1403(a), in setting forth the definition of "project" and "unit", as to which later sections confer upon the Authority the power to contract with respect to, apparently is confined to public educational systems, so that as presently constituted, it seems safe to assume that the State School Building Authority is without power to contract with private school systems with regard to school facilities. However, this does not, in and of itself, prohibit the public school system or lessee, otherwise authorized, from assigning, subleasing, or otherwise disposing of its interest.
In Ogden vs. Saunders, 12 Wheat. 214, 257, 6 L. Ed. 606, 621, it was declared,
"It is a law which impairs the obligation of contracts, and not the contracts themselves, which is interdicted." (Emphasis supplied.) In defining what was meant by "obligation", the court stated,
"... it is the law which binds the parties to perform their agreement." In Aycock v. Martin, 37 Ga. 124, 128, it was said,
"The obligation of a contract is a legal, not a mere moral obligation; it is the law which binds a party to perform his undertaking. The obligation does not inhere or subsist in the contract itself, proprio vigore, but in the law applicable to the contract."
Even if we assume that the School Building Authority Act will require amendment in order to authorize a political subdivision to convey or assign its interest (in view of the rule that political subdivisions have only the powers expressly granted or those granted by necessaiy implication), this would not in anywise affect the obligation. Before amendment, the bondholders had a rightthe counterpart of the obligation (Aycock v. Martin, Supra; Holland v. Dickerson, 41 Iowa 367)-and that was to require payment of the rents under the procedure prescribed by the Act; after conveyance by the subleasing or other conveyance, the bondholders still retain that right-the local school system has not in the least been relieved of its obligation to pay these rentals.
It would be absurd to say that the School Building Authority Act is not subject to amendment. To so hold would be contrary to our system of government. While the federal Congress only has power to enact laws expressly authorized by the Constitution, the State Legislature has power to enact any legislation not in conflict with the State or Federal Constitutions. Nicholas v. Hovenor, 42 Ga. 514, 517. See also Art. III, Sec. VII, Par. XX (Code Ann., 2-1920). If a proposed amendment to the Act does not impair the obligation of the contracts with the bondholders or authority, it is "not in conflict" with the Federal Constitution.
Of somewhat similar import is Sec. 32-1424(a), which provides that the powers and duties of the political subdivisions and of the Authority shall not be diminished or impaired in any manner that will affect adversely the interests and rights of the holders of such bonds. This provision does not say, nor does it mean, that once leases are made with, say for instance, a city system, the city charter could not

228
ever thereafter be amended. The prohibition is only against such amendments as would "adversely affect" the interests of the bondholders.
EDUCATION-School Busses-Drivers A school bus driver occupies the status of an employe where the Board
of Education retains the right to supervise and direct all phases of the transportation of pupils.
August 17, 1954
Honorable M. D. Collins State Superintendent of Schools
I acknowledge receipt of your letter of August 9, 1954, requesting my opinion on a question propounded by Honorable E. J. Huff, School Superintendent of White County.
Mr. Huff requests information concerning whether or not a school bus driver is an employee of the White County Board of Education, it being stated that his compensation is as follows:
"Salary-$75.00 per month-plus 30c per mile for all dirt miles operated and 25c. per mile for all paved miles operated; the bus driver furnishes the equipment." The Code Annotated, Section 32-604 (1952 Rev.) declares that teachers and other employees shall be elected by the local boards of education upon recommendation of the county school superintendent. The Code Annotated, Sections 32-423 through 32-426 (1952 Rev.) provide for the employment of school bus drivers. Section 32-427 (1953 Rev.) provides as follows:
"Whenever the county board of education deems it for the best interest of the schools of the county it shall also have the right and power to contract with individuals and/or corporations for the transportation of pupils and school employees to and from school."
These sections obviously anticipate two methods of school transportation, by employment, or by independent contractors. The county board of education is given the option of utilizing either.
The distinction between a contract of employment and a contract with an independent contractor is stated by the case of Blair v. Smith, 201 Ga. 747, at page 748, viz.,
"'Under the Georgia statute and decisions, the test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.'" See also Nichols v. G. L. Hight Motor Company, 63 Ga. App. 155. As applies to schools, the rule is well stated by 78 C. J. S. 948, Sec. 145, viz.,
"In accordance with the general rules distinguishing between an employee and an independent contractor, the mere fact that one appointed or engaged to perform services in connection with the public schools or school property is required to pay out of his own compensation the salaries of

229
assistants and the cost of supplies necessary to the performance of his duties does not make him an independent contractor, rather than an employee, where he is subject in exercising his duties to the direction of school officers, especially where no term or tenure of employment is specified; and assistants or helpers employed by such a person but supervised by the board are not employees of an independent contractor, but are employees of the school. However, where one agreeing to render services and furnish materials reserves control of the method of doing work he is an independent contractor and not an employee, ..." In the statement of facts propounded by Mr. Huff, no reference is made to the right of supervision over the bus driver. However, I am inclined to believe that in this particular case, the driver would occupy the status of an employee, since as a matter of common practice, the board of education does retain the right to supervise and direct all phases of the transportation of pupils. Although I am without any specific information as to the various contract provisions in effect in Very county, it is my belief that the independent contractor's status is one. that would usually be found in the larger cities, where contracts are made with established public transit systems which exercise their own judgment, subject to the restrictions placed on common carriers, as to the manner and details of transporting the pupils to school. I am also informed by officials of the State Board of Education that practically all of the transportation contracts specifically provide for the manner of operation of the buses including the specification of the routes to be followed. This serves to confirm the view I have taken here.
EDUCATION-School Buses-Drivers (Unofficial) Law relating to requirements for school bus drivers quoted.
October 4, 1955
Mr. Billy Hollis I am pleased to acknowledge your request of October 1, 1955 concerning the
State requirements for driving a public school bus. As you probably already know, the private owner of a school bus must register
the motor vehicle and the driver must have a chauffeur's license. Ga. Code Ann., 68-201.
Ga. Code Ann., 32-425 provides as follows: "All vehicles hereafter purchased or placed in use for the transpor-
tation of pupils, whether owned or hired by the county board of education, shall conform to minimum standards prescribed by the State Board of EducatioJa, and the State certification requirements of motor vehicle operators employed to transport school children shall be subject to the approval of the State .Board of Education." On April 21, 1954 the State Board of Education adopted the following regulations as to public schoolbus drivers:
"All bus drivers should be examined on their ability to operate a bus mechanically, as well as on their knowledge of safety regulations and driver laws. Such examination shall be conducted by the State Patrol, and copies of. reports shall be sent to the County Board of Education and the State Department. of Education.

230
"School bus drivers should be selected with as great care as teachers, and certain characteristics such as the following considered: "a. Mental and moral fitness, and physical examination by licensed
physical ten days prior to the opening of school. "b. Driving ability. "c. Character and integrity. "d. Emotional stability. "e. Knowledge of driving laws and regulations. "f. Appearance. "g. Knowledge of first aid.
"The bus driver shall keep his bus in a clean and sanitary condition. "Bus drivers may not contract for more than one bus nor own more than one bus." Bus drivers are employed by the local county boards of education (Ga. Code Ann., 32-426), and these boards have authority under Ga. Code Ann., 32-912 to prescribe other rules and regulations as to the qualifications of bus drivers that are not in conflict with the above rules of the State Board of Education. I suggest you contact your local school superintendent as to any such local rules.
EDUCATION-School Buses-Drivers (a) Payment by local school board of privately owned school busses and
drivers comes under jurisdiction of State School Board. (b) Since the State School Board of Education has not set a minimum
salary schedule for bus drivers, a local Board of Education may decrease such salary without affirmative action of the State Board of Education.
(c) A local school board may borrow money to supplement salaries of bus drivers.
(d) Local school boards may supplement bus drivers' salaries. (e) School children may be employed as bus drivers.
October 18, 1955
Honorable Marvin Griffin Governor of Georgia
I am pleased to acknowledge your request concerning several questions as to the jurisdiction of the State Board of Education over private-owned school buses in the transportation of school children.
"(1) Does the payment by the local County School Board of private-owned school busses and drivers in the transportation of school children come under the jurisdiction and supervision of the State School Board?"
There are several statutes giving the State Board of Education certain jurisdiction over school transportation. The State Board has authority to establish a minimum salary schedule for all bus drivers, and the said Board has power to enforce this schedule by withholding funds from any local unit that refuses to comply with any such schedule (Ga. Code Ann., 32-424, 32-611, and 32-632). The transportation contracts are entered into by the local boards of education and the local bus driver. The latter being employed by the former (Ga. Code Ann., 32-611 and 32-427).
"(2) Does the local County School Board have the authority to decrease the payments to private-owned busses and drivers without the consent and approval

231
of the State School Board where such payments are met by both State and County funds (approximately 78o/o by State and 22% by local county funds)?"
Ga. Code Ann., 32-424 provides as follows:
"The State Board of Education is hereby authorized and empowered to establish a minimum salary schedule for all bus drivers provided there shall be a differential in the minimum salary schedule for student, teacher, and adult bus drivers and also for drivers of publicly owned buses and privately owned buses. Nothing in this law [ 32-423 to 32-428] shall prohibit county boards of education from supplementing or paying salaries in excess of the minimum salary schedule prescribed by the State Board of Education."
Ga. Code Ann., 32-611 provides in part as follows:
" * * * The State Board of Education shall annually fix a schedule
of minimum salaries which shall be paid to the drivers of school busses in all counties of the State. This schedule of minimum salaries shall be determined annually. This salary schedule shall be uniform for all bus drivers transporting 12 or more school children, and shall be considered separate and apart from the expense in purchasing, maintaining and operating the vehicle itself. County school authorities may not pay to any bus operator in its employment transporting 12 or more children a salary less than the minimum salary prescribed by the State Board of Education as provided above. County school authorities may supplement the salaries of any of its bus operators, 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 bus operator. This salary schedule shall be used by the State Department of Education to disburse State 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. Funds granted to a local unit of administration for transportation shall be spent only for transportation purposes: Provided, however, notwithstanding any of the provisions of this law to the contrary, that upon the passage and approval of this law, all school bus drivers employed by county boards of education to drive school busses shall receive $25 per month for 10 months each year in addition to their 1951-52 salary, and all contract school bus drivers, joint ownership or otherwise,. shall receive $50 per month for 10 months each year in addition to the 1951-52 contracts."
The above section expressly states that State funds granted to a local school district can be expended for only transportation purposes. I have been informed that the State Board of Education has not set a schedule of minimum salaries for bus drivers. If such a salary schedule would be established by the State Board, no local school board could reduce a bus driver's salary below this schedule.
The case of Veal v. Washington County Board of Education, 211 Ga. 204, 205, in interpreting this section said:
" ... For the school year 1951-52, consisting of nine months, the plaintiff under his contract with the Washington County Board of Education was paid a salary of $200 per month for a period of nine months, or $1,800. In addition to this, the board, as a supplement to his contract salary of $1,800, paid him $356.91 with the understanding that from such supplements an amount equal to two cents per route mile traveled by him during

232
the school year 1951-52 would be accounted for by him out of future funds furnished by the State Board of Education for pupil transportation. For' the school year 1952-53 the plaintiff was paid his contract salary of $1,800 plus supplements of $593.28, which included funds furnished by Washington County and $50 per month for ten months or $500 furnished by the State Board of Education for pupil transportation. Under the provisions of the amending act of 1952, :P.e was entitled .to his contract salary of $1,800 plus $50 per month for ten months or $500. Therefore, it appears from the stipulated facts that the plaintiff, as the driver of a privately owned and personally maintained school bus, has received from the county board of education more than it was required to pay him under the amendment of 1952, and that the board has disbursed pro rata among its school bus drivers all funds received by it for pupil transportation from all sources. This being true, it necessarily follows that the trial judge did not err, as contended, in refusing to grant mandamus absolute...."
The Veal case holds that the $500 is merely in addition to the 1951-52 contract and does not include any supplement the driver receives in addition to the contract salary. The $500 proviso is limited by its express terminology to bus drivers who had a 1951-52 contract, i.e., it establishes a minimum salary for a privately owned bus driver employed in 1951-52 at the contract salary he received in 1951-52 plus $500.
Since the State Board of Education has not set a minimum salary schedule for bus drivers, it is my opinion that as to any bus driver who did not have a 1951-52 contract the local board of education can decrease the payments to said school bus driver in a new contract without any requirement of affirmative action on the part of the State Board of Education. The same would be true of a school bus driver who had a 1951-52 contract providing the decrease is not below the amount of his 1951-52 contract plus $50,0.
"(3) Does a local County School Board have the authority to borrow money over a four-year period for the purpose of supplementing State funds for payment to private-owned busses and drivers in the transportation of school children?"
The county boards of education have the power and authority to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties. This authority being all inclusive as to all needs of public schools, would of necessity include the cost of transportation. The amount is limited to the aggregate of the sum which the county board may be entitled to receive from State appropriations and from taxes levied for educational purposes during the year in which such loan is made. Time limit of the loan is "no longer time than is necessary." See Ga. Code Ann., 32-921, 32-922, 32-923, 32-924, 32-925, 32-926, 32-927 and 32-928.
"(4) Was it the intention of the law pertaining to the financing of transportation of school children that State funds remitted to each local County Board be sufficient for this purpose without local supplement?"
Both Ga. Code Ann., 32-424 and 32-611 contain provisions allowing county school authorities to "supplement the salaries of any of its bus operators."
"(5) Is there now existing an executive order or ruling or law prohibiting the use of school children for bus drivers?"
There is no law, ruling or executive order prohibiting the use of school children for bus drivers~ The law requires that every person who drives a school bus transporting school children must have a public chauffers license, and the

283
m1mmum age for obtaining a chauffers license is 18 years. Ga. Code Ann. 92A-401.
The State Board of Education has adopted the following resolution: "When vacancies occur in the employment of school bus drivers or
additional buses are added to the present fleet, county school officials are hereby advised to employ teachers or pupils who can qualify under Georgia laws to drive school buses at a salary of $25-$35 per month. This part-time employment on the part of teachers and pupils to drive school buses will effect further economies in the operation of school buses." You will note that the resolution merely "advised" as to the use of school children as bus drivers. The final decision is a local administrative question for the county board of education.
EDUCATION-School Buses-Drivers (Unofficial) A County Commissioner may be employed by the County Board of
Education as a school bus driver.
September 5, 1956
Mr. Charles Yarbrough I am pleased to acknowledge your request as to whether it is lawful for a
county commissioner of roads and revenues to also operate a county school bus. While Ga. Code Ann., 89-103 prohibits a person from holding more than
one county office at one time, except by special enactment of the Legislature, a school bus driver is an employee of the county board of education rather than a county officer.
Ga.. Code Ann., 32-428 provides as follows: "No member of the State Department of Education or county school
superintendent or member of the county board of education shall be financially interested in procuring and operating means or facilities for school bus transportation or in selling school buses, school bus equipment, or school bus supplies to county boards of education." Since 32-428 does not apply to a county commissioner of roads and revenues, I know of no law prohibiting such an office holder from operating a county school bus.
EDUCATION-School Buses-Signs (Unofficial) Law relating to school bus signs quoted.
January 4, 1955
Honorable L. W. Wildes I am pleased to acknowledge your request as to the legality of operating school
buses which are not equipped with the standard swinging stop signs, whether they be used on part time runs or on a full time basis.
The State Board of Education has authority under Georgia Code Annotated, Section 32-425 to provide minimum standards as to all vehicles used for the transportation of pupils. One of the standards required by the Board is that all school buses be equipped with a stop-signal-arm attached on the left front side of the bus.
This is an administrative standard, and it is rriy opinion that it would be the duty of

234
the county board of education to see that this administrative standard is complied with.
The Uniform Traffic Code of 1953 (Ga. Code Ann., 1954 Supp., Sec. 68-1667) provides as follows:
"The driver of a vehicle upon a highway upon meeting or overtaking from either direction any school bus which has stopped on the highway for the purpose of receiving or discharging any school children shall stop the vehicle before reaching such school bus and shall not proceed until such school bus resumes motion, or until signalled by the driver to proceed.
"Every bus used for the transportation of school children shall bear upon the front and rear thereon a plainly visible sign containing the words "School Bus" in letters not less than eight inches in height.
"The driver of a vehicle upon a highway with separate roadways need not stop upon meeting or passing a school bus which is on a different roadway or when upon a limited or controlled access highway and the school bus is stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway.
"It shall be unlawful to operate any flashing warning signal light on any school bus except when any said school bus is stopped or approaching a stop on a highway for the purpose of permitting school children to board or alight from said school bus." The violation of any part of the above Code section is a misdemeanor under Georgia Code Annotated, 1954 Supp., Sec. 68-9926, i.e., where a person does any act forbidden or fails to perform any act required by the said Code Section. The above law applies to "every bus"; therefore, it would cover a school bus used on part time runs as well as one used on a full time basis. Please note that the Code requires the sign "School Bus" to be on the front and rear of the bus. The stop-signal-arm attached to the left front side of the bus is an administrative standard set by the State Board of Education for all school buses.
EDUCATION-School Buses-Uses (Unofficial) School buses owned by the County Boards of Education may not be used
for any purpose other than to transport pupils to and from school.
March 9, 1955
Honorable C. J. Cheves, Superintendent Griffin-Spalding County School System
I am pleased to acknowledge your request of March 4, 1955 as to whether school buses, owned by the County Board of Education, may be used to provide transportation for Boy Scouts, Girl Scouts and similar organizations on Saturdays and during the summer months.
Georgia Code Annotated, Section 32-426, provides as follows: "County boards of education are hereby authorized and given power
to purchase motor vehicles and other equipment for the purpose of transporting pupils and school employees to and from the public schools, to employ drivers and provide for the operation and maintenance of such equipment. County school boards are hereby authorized to expend money out of school funds for the purchase of such school transportation equipment and to repair, maintain, and operate same."

235
You will note that the above Code Section limits the use of these vehicles to transporting pupils and school employe~s "to and from the public schools." It is my opinion that this would prohibit the Board from using such vehicles for any purpose other than that expressly stated. In addition, public school funds cannot be used for other than school purposes. Ga. Code Ann., Sec. 32-942. Burke v. Wheeler County, 54 Ga. App. 81.
EDUCATION-School Buses-Uses (Unofficial) School buses owned by County Boards of Education may not be used for
any purpose other than to transport "pupils to and from school." Interpreted to mean place of instruction, and not limited to one building or one locality.
May 6, 1955
Mr. Eugene Attaway, Superintendent Worth County Board of Education
I am pleased to acknowledge your request of May 3, 1955 as to whether school buses, ow_yed by the County Board of Education, may be used to provide transportation for 4-H Club members to and from Rock Eagle Lake and for Home Demonstration members to and from Athens, Georgia.
Georgia Code Annotated, Section 32-426, provides as follows:
"County boards of education are hereby authorized and given power to purchase motor vehicles and other equipment for the purpose of transporting pupils and school employees to and from the public schools, to employ drivers and provide for the operation and maintenance of such equipment. County school boards are hereby authorized to expend money out of school funds for the purchase of such school transportation equipment and to repair, maintain, and operate same."
You will note that the above Code Section limits the use of these vehicles to transporting pupils and school employees "to and from the public schools." It is my opinion that this would prohibit the Board from using vehicles for any purpose other than that expressly stated. In addition, public school funds cannot be used for other than school purposes. Ga. Code Ann., 32-942. Burke v. Wheeler County, 54 Ga. App. 81.
The provision "to and from the public schools" would not be limited to any particular school building. In my opinion it refers to any place where public school instruction is being given. It would be within the discretion of a county board of education to say whether pupils will be taken to some place other than the school building to receive instruction. If the trips to Rock Eagle or to Athens are for the purpose of giving those pupils instruction at these two locations, county owned school buses may be used to provide transportation for the pupils. If the trips are purely recreational, it is my opinion that county-owned school buses may not be legally used for such purpose.

236
EDUCATION-School Buses-Uses (Unofficial)
It is not legal for County Boards of Education to rent or charge mileage to athletic teams, bands, F.F.A. Clubs, etc. for use of county-owned school buses on school sponsored trips.
July 5, 1955
Mr. John W. Miller
I am pleased to acknowledge your request of June 20, 1955, as to whether it is legal for county boards of education to rent or charge mileage to athletic teams, bands, F.F.A. Clubs, Four-H Clubs, etc. for the use of county-owned school buses on school sponsored trips.
Georgia Code Annotated, Section 32-426, provides as follows:
"County boards of education are hereby authorized and given power to purchase motor vehicles and other equipment for the purpose of transporting pupils and school employee;; to and from the public schools, to employ drivers and provide for the operation and maintenance of such equipment. County school boa:r.ds are hereby authorized to expend monev out of school funds for the purchase of such school transportation equipment and to repair, maintain, and operate same."
You will note that the above Code Section limits the use of these vehicl6::s to transporting pupils and school employees "to and from the public schools." It is my opinion that this would prohibit the Board from using vehicles for any purpose other than that expressly stated. In addition, public school funds cannot be used for other than school purposes. Ga. Code Ann., 32-942 and 92-3708. Burke v. Wheeler County, 54 Ga. App. 81.
The provision "to and from the public schools" would not be limited to any particular school building. In my opinion it refers to any place where public school instruction .is being given. It would be within. the discretion of a county board of education to say whether pupils will be taken to some place other than the school building to receive instruction.
There is no case reported in Georgia as to whether the county board of education could rent or charge mileage for the use of county-owned school buses for a purpose other than transporting pupils and school employees "to and from the public schools." As to school porperty in general, other jurisdictions are split on the use of school property for other than sr.hool purposes. Those states which hold the same as Georgia, i.e., cannot be used for other than school purposes, say "that it is immaterial whether an adequate rental is received." 47 Am. Jur. 67, p. 345.
In Georgia, the authority given county boards of education in the purchase and use of county-owned school buses is limited, and on the basis of the above authority it is my opinion that such authority must be strictly construed. Therefore, I must rule that in my opinion it is not legal for county boards of education to rent or charge mileage to athletic teams, bands, F.F.A. Clubs, Four-H Clubs, etc. for the use of county-owned' school buses on school sponsored trips.

237
EDUCATION-School Districts-Contracts (Unofficial) School districts do not have authority to enter into long-term lease con-
tracts for the purpose of securing various types of capital asests, such as equipment and fixtures, except with another public agency.
December 14, 1!155
Mr. L. C. Burwell, Jr. I am pleased to acknowledge your request of December 10, 1955, as to whether
a city or county school district may enter into long term lease contracts for the purpose of securing various types of capital assets such as equipment, .fixtures, etc.
Both the Constitution and Laws of Georgia prevent such contracts except where these school districts contract with another public agency, corporation or authority. See Sheffield v. State School Building Authority, 208 Ga. 575, and Georgia Code Annotated, Section 2-5901;
The Constitution (Ga. Code Ann., 2-6001) provides in part as follows: "The debt hereafter incurred by any county, municipal corporation
or political division of this State except as in this Constitution provided for, shall never exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality or division shall incur any new debt except for a temporary loan or loans, to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of a majority of the qualified voters of the county, municipality or other political subdivision voting in an election for that puropse to be held as prescribed by law; ..." Ga. Code Ann., 32-928 provides as follows:
"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.
EDUCATION-School Employees Authority for employing local school personnel rests solely with the
proper officials of the local school district.
July 16, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
In reference to your request concerning the employment of school personnel, I am of the opinion that the authority for employing local school personnel rests solely with the proper officials of the local school district.
Section 4 of the Minimum Foundation Act (Ga. Laws 1949, p. 1406-as amended, Ga. Laws 1956, p. 312) provides as follows:
" 'Section 4. For the purposes of this Act, the several counties of this State and.the various independent school systems established by law

238
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 Act 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. Provided however the boards, by the vote of threefourths of the entire membership of the board, may employ teachers, principals and other school employees without 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.' " While the State Board of Education would have appellate jurisdiction over the dismissal of school personnel (question of whether local board abused its discretion), it has no jurisdiction to review the failure of a local board to employ any particular individual in the local school system.
EDUCATION-Allocation of School Funds State school funds allotted to the City of Canton must be paid through
Cherokee County Board of Education. (Georgia Laws, 1956, page 133.)
August 20, 1954
Honorable Claude Purcell, Director School Administration Division State Department of Education
You request my opinion on the question as to whether or not the state school funds allotted to the City of Canton may be delivered directly to the city authorities, or whether these funds must continue to be disbursed to the Cherokee County System, which in turn distributes the city's share to it, as has been the practice for many years.
The Constitution, Art. VIII, Sec. VII, Par. I (Code Ann., Section 2-7001) 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 law, and such existing systems may add thereto colleges. No independent school system shall hereafter be established." See also Art. VIII, Sec. X, Par. I (Code Ann., Section 2-7301). You will note that the quoted section above refers to supporting these so-called independent systems by "special or general law." The Code, Section 32-604 (1952 Rev.) declares that each county and each independent school system shall constitute the local unit of administration. Throughout this entire Chapter of the Code (Chapter 32-6), popularly referred to as the Minimum Foundation Program for Education Act, provision is made for the allocation of state funds to the local units of administration, but nothing is mentioned therein as to how these funds are to be disbursed, with respect to the instant problem, so it is thereby apparent that the question you propound may be controlled by local or special law, since no general law is found covering the subject. The independent school system of Canton was created by an Act of the General

239
Assembly approved December 18, 1893 (Ga. Laws 1893, p. 419), wherein it was provided, inter alia, as follows:
"Sec. V. Be it further enacted, That the revenues derived by the town of Canton from the following sources shall be appropriated to the support and maintenance of said public schools, and shall be collected by the corporate authorities of the town of Canton and turned over to said Board of Education, to-wit: 1st. The town's pro rata share of the State school fund. . . ."
"Sec. VI. Be it further enacted, That said board shall be entitled to receive, and it shall be the duty of the County School Commissioner of Cherokee County to pay over to the said board when received, the pro rata share of the State school fund for said county belonging to said town, as based upon the total number of children of school age whose parents or guardians live within said town."
By an Act approved August 13, 1904 (Ga. Laws 1904, p. 396), the above act was amended, wherein Section 9 and 13 thereof, somewhat similar provisions were made regarding the making of reports to the county system so as to entitle the city to receive its pro rata share of the public school funds therefrom.
The last local act I find dealing with the specific question is the Act of August 11, 1913 (Ga. Laws 1913, p. 640), wherein new sections were added to the above Act of 1904, as follows:
"Section 19. Be it further enacted, That the Superintendent of Public Schools of Town of Canton shall make any and all reports of the attendance of pupils in said public schools of the Town of Canton and such other reports as may be required by law of City Public Schools to County Board of Education."
"Section 20. Be it further enacted, That the County Superintendent of Schools shall pay to the public Superintendent of the Public Schools of Canton the pro rata share of public school funds to which said Town of Canton shall be entitled."
We need not indulge in any mental gymnastics in an attempt to determine which of the provisions of these three acts are presently in effect, i.e., whether the later provisions repealed any of the earlier by implication, for beyond all question, at least one most surely is of force and effect. I, therefore, conclude that under existing law, Canton's pro rata share of school funds must be paid through the Cherokee County Board of Education.
Incidentally, I note that a Constitutional Amendment has been prepared whereby the Canton system would be merged with the County system. (See Ga. Laws 1953, Nov.-Dec. Sess., p. 231.) This amendment will be voted on at the General Election to be held in November, 1954. However, in the event this amendment does not pass, the Bill Drafting Unit will be pleased to prepare the necessary local legislation to accomplish the result desired by the Canton system. You might call it to the attention of the interested parties that this legislation would have to be advertised as provided by the Constitution, Art. III, Sec. VII, Par. XV (Code Ann. Supp., Section 2-1915).
As a matter of information, the other local acts which have undertaken to amend the Charter of Canton as respects its .school system, none of which affect the question here, are cited below:
Act approved December 15, 1894 (Ga. Laws 1894, p. 243). Act approved July 31, 1918 (Ga. Laws 1918, p. 604). Act approved July 29, 1919 (Ga. Laws 1919, p. 876).

240
Act approved July 26, 1922 (Ga. Laws 1922, p. 627). Act approved March 10, 1941 (Ga. Laws 1941, p. 1259). Act approved February 17, 1950 (Ga. Laws 1950, p. 2798).
EDUCATION-School Funds-Bonds (Unofficial) Residents of an area which is a portion of a school district when bonds
are issued, continue to be liable for the bonds even though the area becomes a part of another school district.
January 10, 1956
Honorable Frank G. Birdsong The question you posed as to whether or not taxpayers in a school district
having outstanding bond issues will be liable for the school taxes to pay off these bonds after their part of the County is taken into another school district (an independent system maintained by a municipality) is answered in the case of Bond et al vs. Pattillo, 174 Georgia 571, where it was stated in headnote 3:
"Applying the foregoing principles to the facts of this case, it is held that the territory which was originally in the Ingleside School District when the school bonds were voted for the purpose of building the Ingleside schoolhouse, which bonds were duly validated and sold :for that purpose by the Ingleside School District, is taxable for the purpose of paying interest and sinking-fund on the bonds so issued and sold, although such territory was subsequently cut off from the Ingleside School District by an Act of the Legislature and annexed to the municipality of Dec~tur." See also Chappell v.. Small, 194 Georgia 143, 144 (4), which is also directly in point, and Wheeler v. Board of. Trustees, 200 Georgia 323, 336 (a) where the Court stated that the issuance of bond creates a contractual status as to the people in the school district issuing such bonds.
EDUCATION-School Funds-Capital Outlay Funds 1. Authority of and limitations on County Boards of Education to borrow
funds enumerated.. 2. Permitted uses of State Capital Outlay Funds discussed.
December 30, 1954
Honorable M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request as to certain questions concerning the use of capital outlay funds by a local school system,
1. Would it be legal for a county board of education to borrow funds :for a per~od of five years against its annual payments to be received from the State for school building purposes? Article VII, Section VII, Paragraph IV (2-6.004) of the Georgia Constitution of 1945 provides as follows:
"In addition to the obligations hereinbefore allowed, each county, municipality, political subdivision of the State authorized to levy taxes,

241
and county board of education, is given the authority to make temporary loans between January lst and December.31st in each year to pay expenses for such year, upon the following conditions.: The aggregate amount of all such loans of such county, municipality, political subdivision or county board of education outstanding at any one time shall not exceed 75 per cent. of the total gross income of such county, municipality, political subdivision or county board of education, from taxes collected by ~uch county, municipality, political subdivision or county Board of Education in the last preceding year. Such loans shall be payable on or before December 31st of the calendar year iri which such loan is made. No loan may be made in any year under the provision of this paragraph when there is a loan then unpaid which was made in a prior year under the provisions of this paragraph. Each such loan shall be first authorized by resolution fixing the terms of such loan adopted by a majority vote of the governing body of such county, city, political subdivision or county board of education, at a meeting legally held, and such resolution shall appear upon the Minutes of such meeting. No such county, municipality, subdivision or county board of education shall incur in any one calendar year, an aggregate of .such temporary loans and other contracts or obligations for current expenses, in excess of the total anticipated revenue of such county, municipality, subdivision, or county board of education for such calendar year, or issue in one calendar year notes, warrants or other evidences of such indebtedness in a total amount in excess of such anticipated revenue for such year."
County boards of education have been given authority to borrow money in Georgia Code Annotated, Section 32-921; which provides as follows:
"The county boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: Provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made."
Please note the limitation on the amount .that any board may borrow, i.e., no greater amount than the board is entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made.
If this money is sought for the purpose of building and equipping schoolhouses, the board may incur a bonded indebtedness under Georgia Code Annotated, Section 32-1403, which provides in part as follows:
"Hereafter, when any county board of education shall deem it to the be&t 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 87-3...."
2. Can. a board of education retire, as due, both principal aud interest, outstanding bonds issued at a county district and including the old trustee district bonds from funds received from the State for school building purposes ?

242
Georgia Code Annotated, Section 32-613, provides in part as follows: "... It shall be the duty of the State Board of Education to establish
minimum standards to be met by local units in order to qualify for participation in capital outlay funds and the State Board also shall provide advisory and supervisory services to the local units regarding the expenditure of such funds...."
Under authority of the above Act, the State Board of Education passed a resolution on May 16, 1951 which allows State capital outlay funds to be used by local school districts to pay off local bond issues only after "adequate and standard facilities have been provided for all children of the system." If this latter provision has been attained by the local board of education, the board may then retire outstanding school bonds with funds received from the State for school building purposes.
3. Can a county board of education use State capital outlay funds for the purpose of repairs, maintenance and insurance on its public school buildings ? Georgia Code Annotated, Section 32-613, provides in part as follows:
"... Whether any given item constitutes 'capital outlay' as provided for in this chapter shall be left to the discretion of the State Board of Education: Provided, however, the term 'capital outlay' shall include building; and equipping such facilities, as recreation rooms, rest rooms, auditoriums, lunch rooms. The State Board of Education shall have authority to survey the needs of local units for capital outlay expenditures ..."
Under authority of the above Act, the State Board of Education passed a resolution on May 16, 1951 which defined "capital outlay" as new buildings, additions to buildings, equipment (not replacement) for new buildings and further that the expenditure "must result in increase in that amount of property possessed by the school system."
In addition, Georgia Code Annotated, Section 32-613, also provides in part as follows:
"... In the event a local school unit does not have a lease contract with the State School Building Authority ..., the local school unit may apply the funds made available, under terms of this section to the payment of any school obligations incurred for the purpose of acquiring or improving school building and equipment and for no other purpose ..."
It is my opinion that repairs and maintenance of existing school buildings would come within the intent of the above Act as to "improving school buildings" and also within the definition of the State Board of Education for the reason that repairs and maintenance would "result in increase" in the value of the school property. In my opinion, insurance would not meet the requirements of the Act nor the resolution of the State Board of Education; therefore, while State capital outlay funds may be used for the purpose of repair and maintenance of school buildings, such funds may not be used for the purpose of paying insurance premiums on school buildings.
4. Can a county board of education reimburse its operating funds, from capital outlay funds the board receives from the State, for the amount of money expended in previous years from current funds toward building school houses?
Georgia Code Annotated, Section 32-613, authorizes the local school unit to apply capital outlay funds toward the "payment of any school obligations incurred for the purpose of acquiring or improving school buildings and equipment and

243
for no other purpose." (Emphasis supplied.) In addition, there has been no resolution by the State Board of Education authorizing such use of capital outlay funds from the State. In my opinion, a county board of education may not reimburse its operating funds, from capital outlay funds received from the State, for the amount of money expended in previous years from current funds toward building school houses.
EDUCATION-School Funds-Capital Outlay Funds
County Board of Education may legally expend State Capital Outlay Funds for laying sewerage lines from a city sewer main to the site of construction of a school building.
May 2, 1956 Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request of April 19, 1956 as to whether a county board of education may legally expend State Capital Outlay Funds for laying sewerage lines from a city sewer main to the site of construction of a school building.
Your letter states that the city is prohibited by its charter from doing the work beyond the city limits.
Ga. Code Ann., 32-613, provides in part as follows: "... Whether any given item constitutes 'capital outlay' as provided
in this chapter shall be left to the discretion of the State Board of Education: Provided, however, the term 'capital outlay' shall include building; and equipping such facilities, as recreation rooms, rest rooms, auditoriums, lunch rooms. The State Board of Education shall have authority to survey the needs of local units for capital outlay expenditures..."
Under authority of the above Act, the State Board of Education passed a resolution on May 16, 1951 which defined "capital outlay" as new building, additions to buildings, equipment (not replacement) for new buildings and further that the expenditure "must result in increase in that amount of property possessed by the school system."
In addition, Georgia Code Ann., 32-613, also provides in part as follows: "... In the event a local school unit does not have a lease contract
with the State School Building Authority ..., the local school unit may supply the funds made available, under terms of this section for the purpose of acquiring or improving school building and equipment and for no other purpose."
Ga. Code Ann., 32-942, provides in part that school funds "shall be used for educational purposes and none other." See also Burke v. Wheeler County, 54 Ga. App. 81; and Ga. Code Ann., 92-3708.
78 C. J. S. 21, p. 646, provides as follows: "Money belonging to public school funds cannot be used for any other
than school purposes, and revenues once appropriated to the support of common schools cannot subsequently be diverted to other purposes. The payment from public school funds of a special assessment against school property for street improvements, or the payment from school moneys of a judgment recovered for services rendered as a teacher in the common schools is not an unlawful diversion or disposition thereof, but in the

244
absence of express authority the fund may not be subjected to the payment of the costs of a suit." The case 'of Chicago v. Chicago, 207 Ill. 37, 69 N. E. 580, held that the payment from public school funds of a special assessment against school property for street improvements is a proper method of applying the funds of a school district for the benefit of its schools. On the basis of the above authority, it is my opinion that the laying of sewerage lines to the site of construction of a school building, under the above facts, is a, valid expenditure of State Capital Outlay Funds.
EDUCATION-School Funds-Expenditure It is a proper school expenditure for a Board of ,Education ,to pay
street assessments.
September 16, 1954
Mr. L. W. Tabor You request an opinion as to. whether the payment of street assessments on
streets bordering school property would be a legal school expenditure. Ga. Code Ann. 32-942 provides in part that school funds "shall be used for
educational purposes and none other." See also Burke v. Wheeler County, 54 Ga. App. 81.
78 C. J. S., 21, p. 646, provides as follows: "Money belonging to public school funds cannot be used for any other
than school purposes, and revenues once appropriated to the support of common schools cannot subsequently be diverted to other purposes. The payment from public school funds of a special assessment against school property for street improvements, or the payment from school moneys of a judgment recovered for services rendered. as a teacher in the common schools is not an unlawful diversion or disposition thereof, but in the absence of express authority the fund may not be subjected to the payment of the costs of a suit." The case of Chicago v. Chicago, 207 Ill. 37, 69 N. E. 580, held that the payment from public school funds of a special assessment against school property for street improvements is a proper method of applying the :funds of a school district for the benefit of its schools. On the basis of the above authority, it. is my opinion that payment of street assessments on streets bordering school property by the Houston County Board of Education is a legal school expenditure.
EDUCATION-School Funds-Expenditure Expending school funds to obtain water supply for school is "for educa-
tional purposes" and Board of Education has authority to enter into contract with a municipality for that purpose.
February 16, 1955
Honorable R. A. Harrison I am pleased to acknowledge your request of February 12, 1955, as to the
legality of a contract between the Twiggs County Board of Education and the

245
City of Jeffersonville conc'erning water facilities for the Twiggs County schools. Georgia Code, Annotated, Section 32-942 provides in part that school funds
"shall be used for educational purposes and none other." See also Burke v. Wheeler County, 54 Ga. App. 81, and Georgia Code, Annotated, Section 92-3708.
Unquestionably school funds may be used for the purpose of securing an adequate water supply for the school.
The authority for a county board of education and a municipality to contract with each other for facilities and services is found in the Georgia Constitution of 1945, Article VII, Section VI, Paragraph I (2-5901). See also Barge v. Camp, 209 Ga. 38, 48.
EDUCATION-School Funds-Expenditure (Unofficial) School. funds may be expended on the improvement of a f{)otball field
only where title to the property is in the Board of Education.
July 7, 1955
Honorable William J~ Neville I ani pleased to acknowledge your request of June 30, 1955, as to the
expenditure of school funds for improvement of a football field and ownership of said field.
Chapter 32-19 authorizes the expenditure of school funds for the purpose of physical education and training. The football field would be a facility used for such physical education and training.
As to the ownership of the football field, the State Auditor and this office have followed the policy of not authorizing the expenditure of State funds upon any property unless the State has a fee simple absolute title in the same. This is true of grants of 'property to the State containing reversionary clauses. The reason for this requirement is that over the years experience has shown that in many instances conveyances of property have been made to the State containing reversionary clauses, which later resulted in the State losing all permanent improvements placed thereon. In addition, the Constitution of 1945 (Article VII, Section I, Paragraph I-Code 2-5402) prohibits the granting of a gratuity. This provision applies also to counties. Atlanta Chamber of Commerce v. McRae, 174 Ga. 590. Ga. Code Ann., 32-942 and 92-3708 prohibits the use of public school funds for other than school purposes. See Burke v. Wheeler County, 54 Ga. App. 81.
Ga. Code Ann., 32-909 provides that the county boards of education are vested with the title, care and custody of all school property with the power to control the same in such manner as they think will best serve the interests of the common schools.
In my opinion a county board of education could expend school funds on improving a footballfield only where title to the property was in the said board (this would exclude a non-profit athletic association). The management of such property would be under the county board of (i)ducation or their authorized agent.
The fact that the county board of education had title and control of the football field would not prohibit its use by other agencies. Ga. Code Ann., 32-1903 provides that the board may allow the use of such property "after the regular school hours and during vacation as community centers for the promotion of play and other healthful forms of recreation, under such rules and regulations as to them seem proper."

246
EDUCATION-School Funds-Expenditure (Unofficial) Money obtained from a local bond issue for the purpose of buildings
and "equipment" may be used to purchase books for the library.
October 4, 1955
Mr. E. Russell Moulton I am pleased to acknowledge your request of September 28, 1955 as to whether
money obtained from a local bond issue (the purpose of which was for buildings and "equipment") could be legally used to purchase reference books and biographies for the school libraries.
While the Code (Ga. Code Ann., 32-1403.2) authorizes a county board of education to incur bonded indebtedness for the purpose of building and equipping schoolhouses, there is no law or decision of a court as to whether the word "equipment" includes books.
Webster defines equipment as "Material or articles used in equipping." It is also referred to as "apparatus, maps, globes, and other equipment as may be necessary for proper management of the schools and other educational activities under its control." 14A Words and Phrases 549.
The Federal Security Agency in Circular 204 (Revised August 1948), "Financial Accounting for Public Schools," at page 31 lists library books as capital outlay where such expenditures are "for additional school library books, excluding replacements." Expenditures for public library books are also excluded. This seems to say that school library books are capital outlay where the library is being expanded by the purchase of new books.
As to proper accounting the Circular provides: "An equipment item to be capitalized should have a value in excess
of $10, a life of ten years or more, and be of such a nature as to be readily identified for purposes of property accounting or inventory. It should not be a replacement of about equivalent value or less compared to the item replaced." On the basis of the above authority, it is my opinion that money may be legally used to purchase reference books and biographies for the school libraries.
EDUCATION-School Funds-Investment (Unofficial) It is illegal to deposit funds raised by a bond issue for school building
in a Federal Savings and Loan Association.
February 27, 1956
Honorable Charles C. Stebbins, Jr. I am pleased to acknowledge your request as to whether it would be proper
for a local board of education to deposit funds raised by a bond issue for school building and improvement purposes in one or more Federal Savings and Loan Associations until such time as the money was actually needed for building purposes.
Ga. Code Ann., 89-811 provides as follows: "It shall be the duty of every collecting officer and every officer to
hold public money, upon any money belonging to any public body coming into his hands, promptly to deposit the same in a bank or depository as

247
hereinafter stated. All funds belonging to the State or any of its bureaus, commissions, boards, and/or departments shall be deposited in some designated State depository."
Ga. Code Ann., 89-811 provides as follows:
"The county authorities shall designate one or more solvent banks as depositories of all county moneys and moneys belonging to the school funds of the county, and of school districts therein, and of other districts therein organized for any purpose; and if the county authorities shall not have provided for such a depository, the county board of education or the trustees of any school district or the proper authorities having supervision over any other public fund may designate such a depositor as to their funds; and if there be no applicable depository selected, the officer collecting or holding any public funds may select a depository." Ga. Code Ann., 89-816.1 (Supp.) provides as follows:
"It shall be lawful for the treasurer of any municipality or county or board of trustees of any independent school district to invest any surplus funds in his hands, or any special funds held or being accumulated for any special purpose, or any funds on hand not required for the operation of the municipality, county, or school district for the current fiscal year, to invest such funds in war bonds and/or other valid obligations of the United States Government repayable at face value or better when such investment is authorized by the mayor and general council, county commission, ordinary, board of trustees, or other authority in charge of the affairs of said municipality, county, or independent school district: Provided, funds accumulated for any special purpose shall be invested only in securities whose maturity date is prior to the date when such funds shall be needed for said special purposes or which are redeemable prior thereto without penalty or loss of principal. Any bonds or other securities purchased or held pursuant to the preceding paragraph shall be held subject to the same conditions as those attached to the funds from which same were purchased."
Ga. Code Ann., 100-101 provides as follows: "A State Depository Board (hereafter called the Board) is hereby
created, consisting of the Governor, the Comptroller General, and the Treasurer; a majority of whom shall constitute a quorum, and the acts of a majority of whom shall be the acts of the Board. The Board may name and appoint as depositories of State funds, solvent banks and trust companies (whether organized under State or Federal laws) of good standing and credit in any city, town, or community in this State."
12 U. S. C. A. 1464 (b) contains the following provision as to Federal Savings and Loan Associations and deposits:
"(b) Such associations shall raise their capital only in the form of payments on such shares as are authorized in their charter, which shares may be retired as is therein provided. No deposits shall be accepted and no certificates of indebtedness shall be issued except for such borrowed money as may be authorized by regulations of the Board."
Ga. Code Ann., 16-402 (Supp.) contains the following similar provision as to such State chartered associations:
"A building and loan association, or a savings and loan association, hereinafter in this Chapter referred to as a State chartered association shall be defined as a local mutual institution chartered under the laws of

248
the State. of Georgia, without capital stock,. which does not. receive deposits, but which derives the greater portion of its .capital from. the sale of its shares and which lends the greater portion of its invested .funds on the security of first liens on homes and on the security of first liens on its own shares." On the basis of the above authority, it is my opinion that it would not be proper for a local board of education to deposit funds. raised by a bond issue for school building and improvement purposes in one or more Federal Savings and Loan Associations until such time as the money was actually needed for building purposes. As to a similar prohibition against investing sinking funds, see Ga. Code Ann., 2-6101.
EDUCATION-School Funds~Keeping of Law relative to keeping school funds quoted.
November 18, 1955
Mr. Dorsey Jones
I am pleased to acknowledge your request of November 8, 1955 concerning the proper disposition of school bond funds.
The State Auditor's office has informed me that your action in depositing the money from school bonds (voted for purpose of building a gymnasium) in a special account, THE CITY OF TALLAPOOSA SCHOOL GYMNASIUM BtJILDING FUND, is proper. The capital outlay funds received from the State Board of Education may be deposited to this same special account. A separate account should be established for your bond sinking fund.
There is no law which prevents the board of education from investing a portion of its present building fund in treasury bills i'n order to gain interest.
As to sinking funds, the Constitution (Ga. Code Ann., 2-6101) provides in part
as follows:
"* * * The funds in such sinking fund shall be kept separate and
apart from all other moneys of such county, municipality or subdivision and shall be used for no purpose other than that above stated. The moneys in such sinking fund may be invested and reinvested by the governing authorities of such county, municipality or subdivision or by such other authority as has been created to hold and manage such sinking fund, in the bonds of such county, municipality or subdivision, and in bonds or obligations of the State of Georgia, of the counties and cities thereof and of the government of the United States, of subsidiary corporations of the Federal Government fully guaranteed by such government, and no other. Any person or persons violating the above provisions, shall be guilty of malpractice in office and !?hall also be guilty of misdemeanor, and shall be punished, when convicted, as prescribed by law for the punishment of misdemeanors, untilthe General Assembly shall make other provisions for the violation of the terms of this paragraph."

249
EDUCATION-School Funds-Surplus Debt Service Fund
Surplus acquired by a levy.made after sufficient funds were collected to retire the bonds of a school district become a part of the general funds of the County Board of Education.
January 8, 1954
Dr. M. D. Collins State Department of Education
I am pleased to acknowledge your request of January 5, 1954, as to the disposition of surplus debt service funds received by the Washington County Board of Education from the Tennille School District. Your letter states that the surplus was created by a levy made in ignorance of the fact that sufficient funds were available to retire the bonds of the Tennille School District.
Under the law, the taxpayers of the Tennille School District could not legally recover the surplus. Georgia Code Annotated, Section 20-1007 provides as follows:
"Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule." (Emphasis supplied.)
The Supreme Court of Georgia, in Mitchell County v. Phillips, 152 Ga. 787> held that although the county had no authority to levy an assessment for payment of interest on bonds which had not been sold, the taxpayer could not recover since the tax was paid voluntarily and without protest.
Taxes that are collected for the purpose of retiring the principal and interest on school bonds for a local school district are held in trust by the trustees of the district for this. purpose. The money held by the trustees is commonly called a debt service fund. The General Assembly in 1946 transferred these funds, impressed with the same trust purpose, to the county board of education. Georgia Code Annotated, Section 32-1402 provides as follows:
"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. . . ." (Emphasis supplied.)
Once the principal and interest on the school bonds are paid, the trust is at an end. Being no longer held in trust, the particular debt service fund becomes in fact part of the general fund.
Spain v. Hall County, 175 Ga. 600, held that:
"When out of a fund raised by taxation for a specific purpose all demands and indebtedness .properly chargeable against that particular fund have been paid, or deducted, and there remains a surplus from such fund in the hands of the treasurer, the same then becomes a general fund,

250
which may be lawfully applied to the payment of balances due on warrants drawn against other specific funds not sufficient for their payment, or to any other legitimate liability against the county. Butts County v. Jackson Banking Co., 136 Ga. 719." (Emphasis supplied.) Under the above authority, it is my opinion that the surplus, acquired by a levy made after sufficient funds were collected to retire the bonds of the Tennille School District and held by the Washington County Board of Education, is now part of the general funds of the Washington County Board of Education.
EDUCATION-School Funds-Surplus Debt Service Fund (Unofficial) Any surplus funds for a tax levy, to meet payments on a Board of
Education bonded indebtedness, must be paid to the Board of Education, and cannot be retained by the county.
December 8, 1954
Honorable James B. Gilbert You inquire relative to the disposition of surplus funds remammg after
payment of yearly installments of principal and interest on a Glynn County bonded indebtedness.
It is stated that the Glynn County Board of Education has incurred a bonded indebtedness of $800,000.00, and provided for a 3 mill levy to meet yearly payments of principal and interest; that this 3 mill levy is producing income in excess of that required to satisfy yearly installments of principal and interest; that the County Commissioners have failed and refused to pay over to the Board of Education the entire amount arising from this 3 mill levy, but only pay the amount necessary to meet the aforesaid yearly installments. You desire to know whether or not this surplus should be retained by the County Commissioners in the general funds of the county, or whether it should be turned over to the Board of Education.
The Code, Section 32-942 provides, "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 fund and keep the same separate and distinct from other funds, and said funds shall be used for educational purposes and none other, and shall not be invested in bonds of this State, or in any other bonds or stocks, except when investment is necessary to carry out the conditions of an endowment, devise, gift, or bequest; and when taxes are paid into the treasury of the State the Comptroller General shall in no case receipt a tax collector for the same until that part of the tax so paid in, which was raised for school purposes, is separated in amount from the gross amount paid in." See also 92-3708, to somewhat the same effect, and Burke, v. Wheeler County, 54 Ga. App. 81, 82 (4) holding that public school funds could not be used to pay an accountant employed to audit the books of the tax collector. However, in Spain v. Hall County, 175 Ga. 600, 603 (6), it was held,
" 'When out of a fund raised by taxation for a specific purpose all demands and indebtedness properly chargeable against that particular fund have been paid, or deducted, and there remains a surplus from such fund in the hands of the treasurer, the same then becomes a general fund, which may be lawfully applied to the payment of balances due on warrants drawn against other specific funds not sufficient for their payment,

251
or to any other legitimate liability against the county.' Butts County v. Jackson Banking Co., 136 Ga. 719 (4) (71 S. E. 1065).''
See also Walker v. Stephens, 175 Ga. 405, 412; Citizens Bank v. Newton, 180 Ga. 860.
While it might appear that these cases would control your question, there is another consideration which must first be met. It is to be remembered that here we are not concerned with public funds used to defray specific expenditures generally, but tax levies which are to be used in satisfying periodic installments of principal and interest on a bonded indebtedness.
The Constitution, Art. VII, Sec. VIII, Par. I (Code Ann., Sec. 2-6101), provides as follows:
"Ml amounts collected from any source for the purpose of paying the principal and interest of any bonded indebtedness of any county, municipality or subdivision and to provide for the retirement of such bonded indebtedness, above the amount needed to pay the principal and interest on such bonded indebtedness due in the year of such collection, shall be placed in a sinking fund to be held and used to pay off the principal and interest of such bonded indebtedness thereafter maturing.
"The funds in such sinking fund shall be kept separate and apart from all other moneys of such county, municipality or subdivision and shall be used for no purpose other than that above stated. The moneys in such sinking fund may be invested and reinvested by the governing authorities of such county, municipality or subdivision or by such other authority as has been created to hold and manage such sinking fund, in the bonds of such county, municipality or subdivision, and in bonds or obligations of the State of Georgia, of the counties and cities thereof and of the Government of the United States, of subsidiary corporations of the Federal Government fully guaranteed by such government, and no other. Any person or persons violating the above provisions, shall be guilty of malpractice in office and shall also be guilty of misdemeanor, and shall be punished, when convicted, as prescribed by law for the punishment of misdemeanors, until the General Assembly shall make other provisions for the violation of the terms of this paragraph."
This, in turn requires an inquiry as to whether this provision (Sec. 2-6101) is applicable to Glynn County in view of Art. VIII, Sec. X, Par. I (Code Ann., Sec. 2-7301) which provides:
"Public Schools (sic) systems established prior to the adoption of the Constitution of 1877 shall not be affected by this Constitution", and the fact that the Glynn County School System is one of the four in this State which falls within this classification, the latter having been established in 1873 (Ga. Laws 1873, p. 256) 1 prior to the Constitution of 1877.
1 Incidentally, if the 1873 Act were still in effect as to all its provisions, there would be no question but that all funds raised by taxation for educational purposes in Glynn County would have to be turned over to the Board of Education. Section V, p. 259, provides,
"The County Tax Collector shall deposit likewise with the county treasurer to credit of the county board all the amounts he may collect under any school tax levied as hereinafter provided." However, this section has probably been superseded by the Comprehensive Act of 1914 (Ga. Laws 1914, p. 275).

252
In Board of Education, etc. for Bibb County v. State Board of Education et al, 190 Ga. 581, the Supreme Court, after holding that Section 2-7301 would not prohibit the legislature, by local or general act, from changing or otherwise affecting these systems, declared that the principal purposes of Section 2-7301 was to (1) remove these four systems from the requirement of what is now Art. I, Sec. IV, Par. I (Code Ann., Sec. 2-401) requiring that all general laws have uniform operation and that no special law be enacted where provision had been made by general law and (2) to remove these systems from Art. VIII, Sec. I, Par. I (Code Ann., Sec. 2-6601) of the Constitution of 1877, providing that the common school systems of the State be uniform, for "Otherwise", the Court reasoned, (p. 587) "the Constitution itself might have abolished them". I therefore conclude that Art. VII, Sec. VIII, Par. I (Code Ann., Sec. 2-6101), above quoted, applies to the Glynn County school system, which is a political "subdivision" of the State, as defined therein. I believe this to be the case-clearly where there is no contrary provision in the local acts relating to the particular school system. Otherwise, if Section 2-7301 were carried to the limit of its logic, we would have the anomalous result wherein the Board of Education, when sitting as a Court for the determination of school issues, could, insofar as State constitutional guaranties are concerned, deny a person due process of law, and all the other traditional constitutional rights to which they would be otherwise entitled.
Even assuming, however, that this particular section is held to be not applicable to the Glynn County system, general principles would sustain the same view of the matter, since under the Spain case, supra, the tax is levied to pay off the bonds, and the fact that the levy for any year exceeds the interest and principal accruing that year would not affect the fact that the purpose had not been completely satisfied, i.e., payment in full. Tax collections may, and frequently do, vary from year to year, and this year's surplus may well be called upon to defray next year's deficit.
It is also quite possible that Chap. 32-14 of the Code (1952 Rev.) and particular Section 32-1402 thereof, relating to creation of a sinking fund from all funds held by the county board of education where a bonded indebtedness is outstanding, might apply to Glynn County, under the theory of the Bibb County case, supra, where the court held that it was a question of construing each legislative act to determine whether it would be applicable to systems excepted from the constitutional provisions by Section 2-7301.
I do not deem it necessary to decide this question as I believe that general principles would control anyway, as above discussed.
I therefore conclude that all funds collected from the 3 mill tax levy, including any surplus, should be paid over to the Glynn County Board of Education.
EDUCATION-School Funds-Taxes (Unofficial)
(a) A county may not make a gift of money to a Board of Education. (b) A County Board of Education may not levy a tax in excess of fifteen mills.
September 2, 1954
Mrs. E. B. Spivey
You ask for my legal opinion on the two questions that follows: 1. May the Board of County Commissioners give the County Board of Education the sum of $2400.00 to meet the deficit that the Board of Education has incurred?

253
2. Will it be lawful in the year 1955, when making the tax levy for the Board of Education, to make a small levy as a supplementary fund for the school in addition to the fifteen mills now levied?
In answer to your first question, it is provided in Article VII, Section IV, Paragraph I of the 1945 Constitution that the General Assembly may delegate to any county the right to levy a tax for various expenses of the county including: "(3) for educational purposes upon property located outside of independent school systems as provided in Article VIII of this Constitution." As this provision of the Constitution is not self-executing, the Legislature provided in Section 92-3701 of the 1933 Code, as amended, that counties may levy taxes for educational purposes as provided in Article VIII of the Constitution. It is my opinion that from this language of the Constitution and the subsequent enactment of the Legislature that a county could not make a gift of money to the County Board of Education as the County Board of Education is a separate entity and must sustain itself upon its tax levy as provided by Article VIII of the Constitution and on bonded indebtedness voted upon by the citizens of the county.
In answer to your second question, it is provided in Article VIII, Section VII, Paragraph I of the 1945 Constitution that the tax levied for educational purposes of a county is limited to fifteen mills upon the dollar value of all taxable property within the county. Therefore, where the County Board of Education levies a tax at fifteen mills, it may not constitutionally increase its levy.
EDUCATION-School Funds-Taxes Where there is a consolidation of school districts, the resultant school
district is entitled to all taxes collected or due to the old districts.
January 17, 1955
Dr. M.D. Collins State Supe:fintendent of Schools
I am pleased to acknowledge your letter as to school taxes for the year 1955 for the City of Tifton and the County of Tift in regard to the consolidation of the two school systems on July 1, 1955.
The Constitution of Georgia (2-7501) provides in part as follows: "The fiscal authority of the several counties shall levy a tax for the
support and maintenance of education not less than five mills nor greater than fifteen mills (as recommended by the County Board of Education) upon the dollar of all taxable property in the county located outside independent school systems...." Georgia Code Ann. 32-1118 provides in part as follows:
"The county board of education shall annually recommend to the fiscal authorities of the county the rate of levy to be made for taxes for the support and maintenance of education in the county (exclusive of property located in independent school districts), ..." It is clear from these two provisions that a county cannot tax property located within an independent city school system. See Richards v. Zentner, 176 Ga. 222; Almand v. Board of Education, 161 Ga. 911. The question arises as to whether the school taxes for the year 1955 are to be collected by the county for the consolidated school district or by the city and county separately for the city and county school districts that are in existence

254
prior to the consolidation on July 1, 1955. The answer to this question depends on the situs of this property as of tax day.
Georgia Code Ann. 92-6202 provides as follows: "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 preceeding." In addition, the lien for state and county taxes for the year 1955 accrued against such property on January 1, 1955. Ga. Code Ann. 92-5708, 92-6201, 92-6202. Therefore, situs for all property, taxable in the year 1955 for school purposes, i.e., January 1, 1955, is in the city and county school districts. This property will not be subject to taxation by the county for the consolidated school district until the year 1956, the first tax day arising after consolidation of the two school districts. Your letter stated that the school system for the City of Tifton operates on a calendar budget from January 1 through December 31. Therefore, school taxes collected by the city on property located within this independent school district on January 1, 1955, would be used toward the operation of such school system up to the effective date of the consolidation, July 1, 1955. What disposition would be made of surplus school taxes, both collected and uncollected, held by the city after consolidation? The case of Boswell v. Purks, 43 Ga. App. 123, 125, held as follows:
"We think it more logical to hold that, while they ceased to exist as separate units, the district schools continued their existence as parts of the consolidation;and that, therefore, the consolidated schools are entitled to the benefit of any taxes collected or levied previous to the consolidation and still uncollected, in the Shiloh School District, now composing the Penfield Consolidated School District. This view seems more consonant with justice and equity than the contrary one, since the taxpayers of the Shiloh District are entitled to the benefits of the consolidated school system, with the corresponding legal obligation to contribute to its support." On the basis of all the above authority, it is my opinion that the City of Tifton would collect school taxes from all property within the city in 1955, and on July 1, 1955, the Board of Education for the consolidated school system would be entitled to all surplus school tax money, both collected and uncollected by the City of Tifton for the year 1955. The same principle would apply to the county system that was in existence prior to consolidation. School taxes for the year 1956, January 1, 1956, would be levied on all property within Tift County for the benefit of the consolidated school system.
EDUCATION-School Funds-Taxes Law relative to proper procedure for a County Board of Education to raise
the tax limitation levy in its county quoted.
January 19, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request of January 16, 1956, as to how a county board of education may raise the tax limitation levy in their county.

255
The Georgia Constitution, as amended in 1954 (Ga. Code Ann., 2-7501, Supp.) provides in part as follows:
"The fifteen mill limitation provided in this paragraph may be removed or increased in a county under the procedure set out hereinafter. The county board of education, in order to instigate the procedure, must pass a resolution recommending that the limitation be removed and upon presentation of such resolution to the ordinary it shall be his duty, within ten days of the receipt of the resolution, to issue the call of an election to determine whether such limitation shall be removed. He shall set the election to be held on a date not less than twenty nor more than thirty days from the date of the issuance of the call and shall have the date and purpose of the election published in the official organ of the county once a week for two weeks preceding the date of the election. If a majority of the electors qualified to vote for members of the General Assembly voting in such election vote in favor of such proposal, there shall be no limitation in such county and the county board of education may recommend any number of mills not less than five for the purposes set out above. In lieu of recommending that the limitation be removed entirely, the board may recommend that it be increased and shall specify the amount in the resolution. The election provisions for increase shall be the same as for removal and if the proposal is favorably voted upon the board may recommend up to the specified amount. It shall be the duty of the ordinary to hold the election, to canvass the returns and declare the results. It shall also be his duty to certify the results to the Secretary of State. The expense of the election shall be borne by the county."
EDUCATION-School Funds-Tuition and Fees
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.
October 8, 1954
Honorable M. D. Collins Superintendent of Schools
I am pleased to acknowledge your recent request as to whether local school authorities may collect fees of Varying amounts as a condition to the enrollment of a student in the city schools.
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 ages of six and 18 years residing in the districts in which the schools are located...."

256
There are numerous decisions of our appellate courts on this point. See Moore vs. Brinson, 170 Ga. 680, and cases cited therein.
EDUCATION-School Funds-Tuition and Fees Local Board of Education may accept voluntary contributions from pupils,
and use the contributions to purchase supplies and workbooks otherwise unavailable.
December 20, 1954
Honorable M. D. Collins Superintendent of Schools
I am pleased to acknowledge your request as to whether a local Board of Education may accept contributions from pupils for the purpose of purchasing supplies and workbooks where the fee is purely voluntary and not a condition of enrollment.
The Georgia Constitution of 1945 ( 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, 32-937, provides in part as follows:
"Admission to all common schools shall be gratuitous to all children between the ages of six and 18 years residing in the districts in which the schools are located. . . ." The case of Moore v. Brinson; 170 Ga. 680, 686, held as follows:
"A charge for matriculation can not be imposed as a condition precedent to the admission of children to a public school forming a part of the general school system of children living in the territory of the school and otherwise qualified. Irvin v. Gregory, 86 Ga. 605 (13 S. E. 120); Mayor etc. of Gainesville v. Simmons, 96 Ga. 477 (23 S. E. 502); Edalgo v. Southern Ry. Co., 129 Ga. 258, 266 (58 S. E. 846); Wilson v. Stanford, 133 Ga. 483 (3), 485 (66 S. E. 258); Brewer v. Ray, 149 Ga. 596 (101 S. E. 667); Claxton v. Stanford, 160 Ga. 752 (128 S. E. 913) .. A public school which makes a discrimination between children of parents who pay matriculation fees, and the children of parents who do not pay such fees, violates the above provision of the constitution that the public schools shall be free to all children of this State." The Supreme Court of Georgia in State of Georgia v. Regents of University, 179 Ga. 210, 224, said:
"The constitution of this State provides that the common schools shall be 'free,' and to be free means that no charge of any character can be made, whether for tuition or otherwise. Accordingly it has been held by this court that a charge for matriculation can not be imposed as a condition precedent to admission to any of the common schools of this State." It is clear from the above authority that local school authorities cannot charge a tuition fee, matriculation fee, nor any other fee to a pupil residing within the school district. Would the same apply to a voluntary contribution made by a pupil to assist the local authorities in procuring supplies and workbooks that would otherwise be unavailable? There is no case specifically on point in Georgia and there seems to be some confusion on the point elsewhere because of the variation

257
in different statutes and constitutions. See 79 C. J. S., 456, page 376; 47 Am. Jur. 148, page 404.
Georgia Code Annotated, Section 32-909 provides in part as follows in reference to Boards of Education:
"They shall have the power to receive any gift, grant, donation, or devise made for the use of the common schools..." In my opinion it would not be illegal for a local Board of Education to accept voluntary contributions from pupils and use these contributions to purchase supplies and workbooks that would otherwise be unavailable because of budgetary difficulties.
EDUCATION-School Funds-Tuition and Fees There is no specific grant of authority for the State Board of Education
to pay to a local school district any tuition fee charged by the district to a nonresident pupil.
December 21, 1954
Honorable M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request as to whether it would be legal for the State Board of Education to pay the tuition fee charged by the Americus Board of Education to any pupil who desires to attend the Americus public schools and resides outside the territorial limits of the Americus school district.
Admission to the common schools of Georgia is gratuitous to all children between the ages of six and eighteen.years residing in the districts in which the schools are located. Georgia Code Annotated, 32-937. Where a child resides in one school district and desires to attend school in another district, it has been held that the latter school district may charge a reasonable tuition fee to such nonresident child. Jolly v. Catoosa County Board of Education, 171 Ga. 193; Irwin v. Gregory, 86 Ga. 605.
In 1949 the General Assembly of Georgia enacted a Minimum Foundation Program (Ga. Code Ann. Chapter 32-6) which set out a detailed plan of how to calculate the amount of funds needed to administer the common schools of Georgia. It includes the schedule of salaries, the amount of funds for transportation, the amount of funds for capital outlay, the calculated costs of local units and local financial ability, the approval of budgets, how the funds will be drawn, etc. There is no specific grant of authority to the State Board of Education authorizing it to pay a local school district any tuition fee charged by said district to a nonresident pupil; therefore, it would be presumed that the General Assembly, under our present law, did not intend for the Board to have such authority. Inclusio unius est exclusio alterius. Bailey v. Lumpkin, 1 Ga. 392, 403.
It is possible under our present law for the two school districts to resolve the controversy in this case either by contract under authority of the Georgia Constitution (Article VIII, Section IX, Par. I) or through the method prescribed in Georgia Code Annotated, 32-938, where a common school is located near a county line and children from an adjoining school attend this school.
On December 8, 1954, the Georgia Education Commission recommended to the General Assembly a bill dealing with "pupil assignment." The bill provides for a method of appeal, and once the appeal reaches the State Board of Education, the Board would have the discretionary power to make an educational grant to the

258
child under authority of the recent constitutional amendment on Education (Number 4). Should this bill become law, it is my opinion that the State Board of Education could legally make an educational grant to a nonresident pupil residing just outside the Americus school district and such pupil could use the grant to pay any tuition fee required by the Americus school district.
EDUCATION-School Funds-Tuition and Fees A local board of education cannot charge a student fees for the taking
of courses that are part of the school curriculum such as driver's training,
April 21, 1955
Honorable M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request as to the following question: "Is it legally permissible for the DeKalb Board of Education to offer
driver training on an elective basis, prorating among the pupils electing to take the course the cost of the instruction, which would include the cost of operating the car and the salary of the driver instructor?" The public schools of Georgia are free to all children between the ages of six and eighteen years residing in the districts in which the schools are located, and no such child may be charged a fee for receiving such instruction. See Article VIII, Section I, Paragraph I of the Georgia Constitution of 1945 (Code 2-6401) Ga. Code Ann., 32-937; Moore v. Brinson, 170 Ga. 680, 686; State of Georgia v. Regents of University, 179 Ga. 210, 224, and the cases cited therein. 79 C. J. S. 455, p. 375, provides as follows:
"A constitutional or statutory provision for free instruction to resident pupils applies only with respect to the regular prescribed course of study for public schools, or to courses which may be taught in the public schools under the statutes, and does not prevent the school authorities from permitting a teacher to instruct in other branches and to charge the pupils fees therefor, if the efficiency of the instruction in the presscribed common school branches is not thereby impaired...." The State Board of Education has been given authority by the General Assembly of Georgia "to 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." Ga. Code Ann., 32-408. See also Samuel Benedict School v. Bradford, 111 Ga. 801. Acting under the above Code provision the State Board of Education has adopted a "Curriculum Framework For Georgia Schools", published in 1954, Second printing-February, 1955. On page 24 of this publication an elective subject is provided for in Safety Education (driver training); therefore, the course in driver training is part of the regular prescribed course of study for the public schools of Georgia. Being part of such prescribed Curriculum, it is my opinion that should a county board of education offer a course in driver training to the children in the public schools of their county, such course must of necessity be free and no fee may be charged for the cost of instruction as to this course.

259
EDUCATION-School Property-'-Disposition (Unofficial) Board of Education may sell, at private sale, buildings and lands no
longer needed for school purposes, provided that it holds an absolute fee simple title to the property.
October 8, 1954
Honorable Paul W. Calhoun I am pleased to acknowledge your request as to whether a county board of
education has the authority to sell a school building and lot that is no longer needed for school purposes.
It is my opinion that the board may dispose of this property at a private sale, provided that the deed they obtained, as the grantee, gave them an absolute fee simple title.
Georgia Code Annotated, Section 32-909, provides in part as follows: "... The said boards are invested with the title, care and custody of
all schoolhouses or other property, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board...." In reference to this statute, the Court, in Duffee v. Jones, 208 Ga. 639, 644, said:
"... Consequently and pursuant to this, a county board of education has power to and may sell at private sale and schoolhouse property for which it has absolute title when the board finds and by resolution declares the same is not necessary or convenient for school purposes..." (Emphasis supplied.)
EDUCATION-School Property-Disposition (Unofficial) Law relating proper procedure for disposing of school property quoted.
November 16, 1955
Mr. J. R. DeLoach County School Superintendent Bryan County Board of Education
I am pleased to acknowledge your request of November 11, 1955 as to the proper procedure for disposing of school property.
Ga. Code Ann., 32-909 provides in part as follows: "... The said boards are invested with the title, care and custody of
all schoolhouses or other property, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board. . .." The case of Duffie v. Jones, 208 Ga. 639, 644, in interpreting the above Code Section, held:
"Consequently and pursuant to this, a county board of education has

260
power to and may sell at private sale any schoolhouse property :for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes." (Emphasis supplied.)
EDUCATION-School Property-Disposition (Unofficial) The sale price of school property lies with the discretion o:f the County
Board of Education.
March 16, 1956
Mr. Steve M. Hall I am pleased to acknowledge your request as to the sale of school property. Georgia Code Annotated, 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 schoolhouses or other property with power to control the same in such manner 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 same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board. The case of Duffee v. Jones, 208 Ga. 639, 644, held: "... a county board of education has power to and may sell at private sale any schoolhouse property for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes...." (Emphasis supplied.) While the Constitution (Ga. Code Ann., 2-5402) prohibits gratuities (i.e.,
a gift of school property), it is my opinion that the sale price for such school property lies within the discretion of the County Board of Education (Ga. Code Ann., 2-6801).
EDUCATION-School Property-Disposition Discusses disposition of school property, which is no longer needed :for
school purposes.
May 29, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request as to disposing of school property that is no longer needed for school purposes.
Ga. Code Ann., 32-909 provides in part as :follows: "... The said boards are invested with the title, care and custody of
all schoolhouses or other property, with power to control the same.in such

261
manner 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 same in the name of the county board of education; such conveyance to be executed by the presi~ dent or secretary of the board, according to the order of the board...." The case of Duffie v. Jones, 208 Ga. 639, 644, in interpreting the above Code Section, held:
"Consequently and pursuant to this, a county board of education has power to and may sell at private sale any schoolhouse property for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes. But the board has no power or authority under this or any other provision of our law to sell any property which has been conveyed to and accepted by it, or its predecessor in title, in trust for educational purposes, as in this case, except in the manner and way provided for by Code Sections 108-408 and 108-409, which is at public sale after proper leave to sell has been obtained from the superior court." Ga. Code Ann., 108-408 provides as follows:
"A trustee, unless expressly authorized by the instrument creating the trust, shall have no authority to sell or convey the corpus of the trust estate, but such sales shall be by virtue of an order of the superior court upon a regular application to the same. Such application may be made to the judge in vacation, on full notice to all parties in interest; and the order for such sale may be granted at chambers, the proceedings to be recorded as above provided in cases of application for appointment of trustees." Ga. Code Ann., 108-409 provides as follows:
"Sales by trustees, unless otherwise provided in the order, shall be made under the same rules and restrictions, in every respect, as provided for sales by administrators of estates." While the Duffie Case answers the question as to school property held by the local board in fee simple absolute or in trust for educational purposes, it does not cover a situation where the property was conveyed with a reversionary clause stating that the property reverts back into the original grantor upon its failure to be used for educational purposes. The local board of education has no authority to dispose of property conveyed under the latter restriction. If the board could purchase this reversionary interest, the property could then be sold at private sale.
EDUCATION-School Property-Insurance Schools cannot be insured by mutual insurance companies.
April 21, 1955
Honorable M. D. Collins State Superintendent of Schools State Department of Education
I am pleased to acknowledge your request as to whether a county may insure its school property with Mutual Insurance Companies.
Article VII, Section V, Paragraph I, of the Georgia Constitution of 1945 (Code 2-5801) provides as follows:

262
"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. This restriction shall not operate to prevent the support of schools by municipal corporations within their respective limits."
The courts of Georgia have made certain rulings with respect to mutual insurance companies, and they are as follows:
In the case of Carlton, et al. v. Southern Mutual Insurance Co., 72 Ga. 371 (6), "A mutual insurance company is based upon the idea that each of the assured becomes one of the insurers, thereby becoming interested in the profits and liable to the losses ..."
In Gaston v. Keehn, 69 Ga. 500, "A mutual insurance company is a cooperative enterprise, wherein the members constitute both insurer and insured, and contribute by a system of premiums or assessments the creation of a fund from which all losses and liabilities are paid, and profits are divided among themselves in proportion to their interests."
It would, therefore, appear that a county or municipality, or a school board could not insure their property in a strictly mutual company, because of the above restrictions.
However, under Code Section 56-1417, a mutual insurance company has authority to issue two kinds of policies. The Code Section is as follows:
"The maximum premiums payable by any member shall be expressed in the policy or in the application for the insurance. Such maximum premium may be a cash premium, or an additional contingent premium not less than the cash premium, or may be solely a cash premium. No policy shall be issued for a cash premium, without an additional contingent premium, unless the company shall have a surplus of at least one hundred thousand dollars, or a surplus which is not less in amount than the capital stock required of domestic stock insurance companies writing the same kind of insurance."
A mutual insurance company may issue a policy designated as an "assessable policy"; in such a policy, the company would insure the property of the insured on the basis of a cash premium and an additional contingent premium to be assessed according to the terms of the policy or upon the losses or liability of the company. It is very evident that the State or any of the divisions thereof cannot legally insure its property with a mutual company by entering into a contract and securing what is known as an "assessable policy", because such a contract is contrary to the provisions of the Constitution, hereinbefore referred to.
The second form of policy that a mutual insurance company may issue, under the laws of Georgia, is what is commonly termed "non-assessable policy". This policy is a contract whereby the liability of the insured is limited to a cash premium, with no contingent or future liability.
Before mutual insurance companies may issue this kind of policy, they are required to meet further conditions as are expressed in the foregoing code section; they must have a surplus of at least one hundred thousand dollars, or a surplus which is not less in amount than the company stock required of certain domestic stock insurance companies. It therefore appears that the State, or a division thereof, may enter into a contract with a mutual company to insure its property,

263
when the contract fixes the liability of the State, or a division thereof, as a sole cash premium and provides against any future or contingent liability. Before the State or any division thereof can enter into such a contract, however, it is necessary for the company issuing the policy to comply with Code Section 56-1417, which is as follows:
"The maximum premiums payable by any member shall be expressed in the policy, or in the application for the insurance. Such maximum premium may be a cash premium and an additional contingent premium not less than the cash premium, or may be solely a cash premium...." The contract should contain a provision relieving the State or any division thereof of any liability, as provided for against members in Code Section 56-1405. If, in any way, the State, or any division thereof, taking insurance in such mutual insurance company assumes any future liability, the contract could not be binding upon the State or the division of the State taking the policy, because such a contract is forbidden by law. In this connection see Pink, Supt. v. Triple A. Highway Express, 191 Ga. 502(5). I am of the opinion that public property cannot be insured by mutual insurance companies, and that such contracts are unauthorized where there is any contingent liability assumed or agreed to be paid by the State or any of the divisions thereof, or where the State or any division thereof insuring such property would, because of such contract, become members of the association or incorporation by sharing in the profits or losses, as the case may be.
EDUCATION-School Property-Location (Unofficial) County Board of Education may legally conduct school operation and buy
and own lands for educational purposes within an independent school district, provided there is an express intent of the General Assembly or on the basis of an agreement between the independent and County Boards of Education.
October 19, 1955
Honorable H. McWhorter I am pleased to acknowledge your request of October 13, 1955, concerning the
following question: "Can a County Board of Education legally conduct school operations
within an independent school district and buy and own lands within such district?" The recent case you refer to is Tipton, et al, v. Speer, et al., 211 Ga. 886, October 11, 1955. In that case the court held that a contract between the county board of education and the city board of education as to a joint high school located within the city limits was illegal on the ground that the Constitution places the control and management of county schools in the county board of education whereas the contract said all matters concerning the joint school program was subject to the control of both boards of education. The only decision on the question that you raise is Board of Fulton v. Board of College Park, 147 Ga. 776. The court there held:
"Where a municipality is authorized by the General Assembly to create a public-school system coextensive with its corporate limits, a part or all of which territory has theretofore been included within the system

264
of public schools operated by the county, forming a portion of a school district, the municipality succeeds to the control of educational matters
and to the title to the real estate held as public-school property within its
territory, holding such title, of course, as a statutory trustee or public agent. The legislature, it is universally conceded, has the power to provide for such division of the school property as may be located within the new territory between the county school board and the municipal board of education as it may deem just and equitable.... At most it is a mere change from one trustee to another, where the General Assembly, in express terms or by necessary implication, transfers the title, control, and use of public-school property from a county board to a municipal board. Where, however, the lawmaking power fails to provide for such division, it is presumed that the intention was to leave it to the courts to declare the law in such cases, in the absence of an agreement between the interested parties. This has been a fruitful source of litigation; and it is conceded that no rule can be adopted which will in all cases afford entire justice to the parties....
"As a matter of law, county boards of education and similar boards of municipalities hold title to real estate conveyed to them for school purposes subject to any disposition that the General Assembly may make of it constitutionally; and this is implied as a part of every conveyance to them of such real estate, even in the absence of any express intention of the parties. Hunter v. Pittsburgh, supra. The board of education of Fulton County held title to the real estate as trustees for the people of the State, who, through the General Assembly, had full power, at pleasure, to change its trustees; ..." (Emphasis supplied.)
On the basis of the above authority, it is my opinion that a county board of education may legally conduct school operation within an independent school district and buy and own lands for educational purposes within such school district provided there is an express intent on the part of the General Assembly or on the basis of an agreement between the city and county boards of education. The Tipton case requires that all management and control of such schools must be confined to the county board of education.
EDUCATION-School Property-Reversion
Where a deed to school property specifies that, whenever the Board of Education ceases to use property for school purposes, the same reverts to the grantor, this would include all buildings attached to the realty unless the deed contained a provision allowing the grantee to remove the buildings.
January 27, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request of January 19, 1956, as to the title and disposition of certain school buildings.
Under general law (Ga. Code Ann., 85-201), buildings attached to the land become part of the real property. Where the deed to the school property specifies that whenever the board of education ceases to use the property for school purposes the same reverts to the grantor-this would include all buildings attached to the

265
realty unless the deed contained a provision allowing the grantee to remove the buildings. I suggest you have the local attorney check on this point.
As to the proper method of disposing of school houses, Ga. Code Ann., 32-909 provides in part as follows:
"... The said boards are invested with the title, care and custody of all schoolhouses or other property, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board..." The case of Duffie v. Jones, 208 Ga. 639, 644, in interpreting the above Code Section, held:
"Consequently and pursuant to this, a county board of education has power to and may sell at private sale any schoolhouse property for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes." (Emphasis supplied.)
EDUCATION-School Property-Title Title to school property located within a county and recorded as being
owned by trustees of an abolished school district, passed by operation of law to the county board of education upon the abolition and merger of the local school district into the county system.
February 2, 1955
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request as to the ownership of school property located within a county school district but which is recorded as being owned by trustees of an abolished school district.
Ga. Code Ann., Section 32-909 states that County Boards of Education are invested with title, care and custody of all schoolhouses or other property.
The case of Duffee v. Jones, 208 Ga. 639, 643 (1952), concerned the title to school buildings built from a local bond issue and held:
"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) . . . ." On the basis of the above authority, it is my opinion that title to school property located within the county and recorded as being owned by trustees of an

266
abolished school district passed by operation of law to the county board of education upon the abolition and merger of the local school district into the county system.
EDUCATION-School Property-Title (Unofficial) Title to school property located within county, owned by independent
school system, passes by operation of law to Board of Education of county system upon abolution and merger of independent system with county system.
April 20, 1955
Mr. R. S. Wimberly I am pleased to acknowledge your recent request as to the ownership of school
property located within a county school system but which is recorded as being owned by independent city school system which was merged with the county system.
As stated in your letter, there is considerable authority to the effect that title to school property located within the county and recorded as being owned by trustees of an abolished local school district passed by operation of law to the county board of education upon the abolition and merger of the local school district into the county system. Ga. Code Ann., 32-1401; Duffee v. Jones, 208 Ga. 639, 643; Board of Education of Paulding County v. Gray, 203 Ga. 583; Nelms v. Stephens County School District, 201 Ga. 274.
It is my opinion that the same rule would follow as to property held by an independent city system. Ga. Code Ann., 32-1203 provides that all territory formerly included in the independent system constitutes a school district of the county in which it is located. Ga. Code Ann., 32-909 vests title to all school property located within the school district in the county board of education. In any event, the transfer of property from an independent school system to a county school system is merely a change of trustees.
The case of Board of Fulton v. Board of College Park, 147 Ga. 776, held as follows:
"... The legislature, it is universally conceded, has the power to provide for such division of the school property as may be located within the new territory between the county school board and the municipal board of education as it may deem just and equitable.... At most it is a mere change from one trustee to another, where the General Assembly, in express terms or by necessary implication, transfers the title, control, and use of public-school property from a county board to a municipal board....
"As a matter of law, county boards of education and similar boards of municipalities hold title to real estate conveyed to them for school purposes subject to any disposition that the General Assembly may make of it constitutionally; and this is implied as a part of every conveyance to them of such real estate, even in the absence of any express intention of the parties. Hunter v. Pittsburgh, supra. The board of education of Fulton County held title to the real estate as trustees for the people of the State, who, through the General Assembly, had full power, at pleasure, to change its trustees; ..."

267
On the basis of the above authority, it is my opinion that title to school property located within the county and recorded as being owned by an independent city school system which has been abolished and merged with the county system passed by operation of law to the county board of education upon the merger of the two ~>ystems.
EDUCATION-School Property-Title (Unofficial) 1) Title to property conveyed by a city to a County Board of Education,
which property is located within an independent school system, belongs to the County Board of Education.
2) Contract between the County school system and the independent school system for joint use of the property for twenty years is valid, after expiration of which the County system will still retain title.
April 5, 1955
Honorable Jack Murr I am pleased to acknowledge your request concerning a warranty deed and
contract executed by the Sumter County Board of Education and the City of Americus. Your letter states that the City of. Americus conveyed and the County Board of Education accepted title to ten acres of land located within the corporate limits of the independent school system of the City of Americus. You also state that a twenty year contract has been entered into between the City of Americus and the Sumter County Board of Education as to the joint use of a county high school located on this ten acres of land.
1. Is this contract a valid and binding agreement between the parties thereto?
The general authority for City and County Boards of Education to contract is found in Article VIII, Section IX of the Georgia Constitution (Code 2-7201), which provides as follows:
"County Boards of Education and independent school systems may contract with each other for the education, transportation, and care of pupils." See Walker v. McKenzie, 209 Ga. 653; Fordham v. Harrell, 197 Ga. 135; Keever v. Board of Education of Gwinnett, 188 Ga. 299; Snipes v. Anderson, 179 Ga. 251. Article VII, Section VI of the Georgia Constitution (Code 2-5901) provides in part as follows:
"(a) The State, state institutions, and city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transaction as such subdivisions are by law authorized to undertake." This provision was interpreted in Walker v. McKenzie, 209 Ga. 63, to apply to Boards of Education. While I have not seen the contract you refer to, it would seem from the above authority that it would be valid and binding.

268
2. Does the County Board of Education of Sumter County or the Board of Education of the City of Americus, an independent system, own the building and real estate?
The only case in Georgia on this question is Board of Fulton v. Board of College Park, 147 Ga. 776. The court there held:
"Where a municipality is authorized by the General Assembly to create a public-school system coextensive with its corporate limits, a part or all of which territory has theretofore been included within the system of public schools operated by the county, forming a portion of a school district, the municipality succeeds to the control of educational matters and to the title to the real estate held as public-school property within its territory, holding such title, of course, as a statutory trustee or public agent. The legislature, it is universally conceded, has the power to provide for such division of the school property as may be located within the new territory between the county school board and the municipal board of education as it may deem just and equitable.... At most it is a mere change from one trustee to another, where the General Assembly, in express terms or by necessary implication, transfers the title, control, and use of public-school property from a county board to a municipal board. Where, however, the lawmaking power fails to provide for such division, it is presumed that the intention was to leave it to the courts to declare the law in such cases, in the absence of an agreement between the interested parties. This has been a fruitful source of litigation; and it is conceded that no rule can be adopted which will in all cases afford entire justice to the parties...
"As a matter of law, county boards of education and similar boards of municipalities hold title to real estate conveyed to them for school purposes subject to any disposition that the General Assembly may make of it constitutionally; and this is implied as a part of every conveyance to them of such real estate, even in the absence of any express intention of the parties. Hunter v. Pittsburgh, supra. The board of education of Fulton County held title to the real estate as trustees for the people of the State, who, through the General Assembly, had full power, at pleasure, to change its trustees; ..." (Underscoring supplied.)
Under authority of the above case, an independent school system would have control of all educational matters and title to all real estate held as public school property within its territory in the absence of any express intent of the General Assembly to the contrary (local or general act) or an agreement between the systems.
Here there is a warranty deed from the City to the County Board of Education giving the latter fee simple title to the property in question. In addition the contractual agreement recognizes that the school located on the property is to be a county school.
It is my opinion that the above property comes within the exception stated in the Board of Fulton case and that the Sumter County Board of Education has title to the building and real estate.
3. Upon the termination of the twenty year period as provided in the mutually agreed contract, which school system will own both the building and the real estate, of course assuming that the State School Building Authority will have been fully paid on or prior to the termination date?
Since the Sumter County Board of Education has a warranty deed of the

269
property from the City of Americus, such title would continue in the said County Board after the termination of the contract the same as it was during the time of the contract. (See answer to question 2.)
EDUCATION-School Records (Unofficial) There is no legislative authorization for destruction of school records,
May 2, 1956
Mr. D. W. Cleveland This. is in reply to your letter as to any possible destruction of old school
records. Ga. Code Ann., 32-907 and 32-1009 provide that the county superintendent
of schools is the official custodian of all local school records. While the Governor is authorized to order the destruction of State records
under certain procedures where such records are at least seven years old (Ga. Code Ann., 40-809, Supp.), there is no similar legislative authority as to county records;
There are provisions in Chapter 23-26 of the Code as to filing historical records, including school records, with the ordinary of the county.
EDUCATION-School Sponsorship (Unofficial) No public school may sponsor any activity that is not for educational
purposes.
October 20, 1955
Mr. Albert Davis, Superintendent Whitfield County Public Schools
I am pleased to acknowledge your request of October 8, 1955, as to whether or not it is legal for a school to sponsor a school carnival, bingo party, pretty girl contest or any type of entertainment of this kind.
Webster's New International Dictionary defines "sponsor" as "one who binds himself to answer for another's default; a surety; to accept responsibility for."
Ga. Code Ann., 32-942 provides that education "funds shall be used for educational purposes and none other." See also Burke v. Wheeler County, 54 Ga. App. 81. It is clear that a county board of education cannot act as surety, accept responsibility for, or bind itself to answer for another's default for anything that is not an educational purpose.
In addition, I have been informed that the State Board of Education has adopted a resolution stating "that no public school in Georgia be allowed to use games o:f chance, raffles, and lotteries to raise money for the school, nor be allowed to conduct contests of popularity based upon the raising of money."

270
EDUCATION-Schools of Another System Child residing in one county may attend school in an adjoining county
under certain conditions.
August 30, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request of August 26, 1954, as to whether a child residing in one county may attend school in an adjoining county.
The problem is covered in Ga. Code Ann., 32-938 which provides as follows: "In special cases to meet the demand of convenience, children residing
in one county may by express permission of the county board of education attend the common school of another county, and when a common school is located near a county line, children from an adjoining county shall be . permitted to attend the school: Provided, such children reside near such schools or said school is more accessible to the residence of such children than any public school in the county of their residence. In such cases the teachers shall report separately the pupils from each county, but make the reports to the superintendent of schools of the county in which the school is located, and with which superintendent the teacher shall contract and from whom she shall receive her pay; but such superintendent shall report to the superintendent of the other county, and shall be reimbursed by him for the proportionate amounts paid for maintenance of said school in the ratio of the attendance from the other county to the whole attendance. Arrangement for attendance upon county line schools in under the authority and direction of the superintendents concerned representing their respective boards, and provisions shall be made for such children just as for others. The word 'near' as used herein shall mean within two miles of the school of the adjoining county, measured by the shortest route by public road. When the county officials fail to arrange or contract for the attendance of such children, as aforesaid, the parents of such children shall have the right, by mandamus, to compel the county board of education of the county of their residence to make such a contract, or to appeal to the State Board of Education. The decision of the State Board of Education shall be final and binding on the local board." I thoroughly agree with your opinion that the problem should be taken before the Board of Education of Fulton and Forsyth Counties by the child's parents. The law provides for an appeal to the State Board of Education, if the parents do not agree with the decision of the county boards.
EDUCATION-Schools of Another System The right of a county board of education and an independent school
system to contract with each other as to the education of pupils takes precedence over the rights of parents of pupils to insist upon such a contract.
August 30, 1956 Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your recent request for an official opmwn on the Mitchell County School controversy before the State Board of Education.

271
The facts of the matter are as follows: A group of Mitchell County parents filed a petition with the State Board of Education alleging (1) That the public common school of and in Meigs, Thomas County, Georgia, is located near the county line which divides Thomas County, Georgia, and Mitchell County, Georgia; (2) That said Meigs school is more accessible to the residences of petitioners' said school-age children than any public school in and of the county of their residence (i.e., said Mitchell County); (3) That said children have been attending said Meigs school in the past and wish to continue to attend the same in the future; (4) That the Board of Education of said Mitchell County has been requested in writing by petitioners to arrange for and to contract for the attendance of said children at and in said Meigs school but that said Board has failed and refused to arrange and to contract as aforesaid. A copy of said written request is attached hereto and hereby made a part hereof: (5) That the Mitchell County Board of Education has been served with this petition and notice informing said Board that the same will be heard on July 23, 1956, by the State Board of Education at its Offices in Atlanta, Fulton County, Georgia, by mailing a copy of the same to S. B. Adams, Superintendent of Schools of Mitchell County, Georgia, by registered mail on the 19th day of July, 1956. The petitioners prayed (1) That said State Board of Education order and direct the said Mitchell County Board of Education to arrange with and to contract with the Board of Education of Thomas County, Georgia, for the attendance of said children at and in said Meigs school; (2) That said State Board of Education make, by order, such provision for the payment of costs of educating said children at and in said Meigs school as is required by law.
In 1952, the County Board of Education of Mitchell County and the independent School District of Pelham entered into a contract providing that for 25 years pupils in the involved area would be schooled in the Pelham school district. The contract was approved by the State School Building Authority, the State Board of Education, and the County Board of Education of Thomas County.
Ga. Code Ann., 32-938 provides as follows:
"In special cases to meet the demand of convenience, children residing in one county may by express permission of the county board of education attend the common school of another county, and when a common school is located near a county line, children from an adjoining county be reimbursed by him for the proportionate amounts paid for mainsuch schools or said school is more accessible to the residence of such children than any public school in the county of their residence. In such cases the teachers shall report separately the pupils from each county, but make the reports to the superintendent of school of the county in which the school is located, and with which superintendent the teacher shall contract and from whom she shall receive her pay; but such superintendent shall report to the superintendent of the other county, and shall shall be reimbursed by him for the proportionate amounts paid for maintenance of said school in the ratio of the attendance from the other county to the whole attendance. Arrangement for attendance upon county line schools is under the authority and direction of the superintendents concerned representing their respective boards, and provisions shall be made for such children just as for others. The word 'near' as used herein shall mean within two miles of the school of the adjoining county, measured by the shortest route by public road. When the county officials fail to arrange or contract for the attendance of such children, as aforesaid, the parents of such children shall have the right, by mandamus, to compel

272
the county board of education of the county of their residence to make such a contract, or to appeal to the State Board of Education. The decision of the State Board of Education shall be final and binding on the local board."
The Georgia Constitution of 1945, Article VIII, Section IX, Paragraph I (Ga. Code Ann., 2-7201) provides as follows:
"County Boards of Education and independent School systems may contract with each other for the education, transportation, and _care of pupils."
The Georgia Constitution of 1945, Article VII, Section VI, Paragraph I (Ga. Code Ann., 2-5901) provides as follows:
"(a) The State, state institutions, and city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake."
If a county board of education and an independent school system contract with each other under the above Constitutional provision as to the education, transportation, and care of pupils, can the parents of such pupils insist on the rights provided in Section 32-938 even though such rights are in conflict with the said contract?
The able attorneys for both the petitioners and the Mitchell County Board of Education have filed extensive briefs on their respective positions. The former asserts that Section 32-938 is controlling. The latter asserts that the contract is controlling and that Section 32-938 is unconstitutional.
The case of Board of Education of Rockdale County v. Gresham, 21 Ga. App. 440, interpreted the word "shall", found in the first sentence of Section 32-938, to be mandatory. The language of the Court is as follows:
"It appears that the purpose of the legislature was to make such right of attendance independent of any permissive authority of the county boards, the only condition to such right of attendance under the present statute being the added requirement that such children shall reside nearer such school, or that it shall be more accessible to the residences of such children than any public school in the county of their residence."
While the above case was decided in 1917 and the statute has been amended twice (1919 and 1946) subsequent to that time, the relevant portions of the statute as to the basic right set out in the Gresham case remains the same.
Walker v. McKenzie, 209 Ga. 653, involved a suit to prevent the Macon County Board of Education from executing contracts with two other boards of education for the education of certain Macon County children for a period of twenty years. The petitioners asserted that Section 32-938 was unconstitutional. The Court held:
"Code 32-938, as amended by the act of 1946, (Ga. L. 1946, p. 208; Code, Ann. Supp., 32-938), which deals with children residing in one county and attending schools in another county, which section is relied on by the defendants and attacked by the plaintiffs as being violative of art. 3, sec. 7, par. 8 of the Constitution of 1945 (Code, Ann., 2-1908), has no application here, because full power being vested under the Consti-

273
tution in the Board of Education of Macon County to make such contracts, the legislature has not been granted any authority to limit this power. It therefore becomes unnecessary to pass upon the contention of the plaintiffs thJ!s,t the Code section is unconstitutional." In the Walker case, the contract between the school districts was in compliance with Section 32-938. In the present case, the contract between the school district is in conflict with Section 32-938. Nevertheless, the Walker case stands for the principle that school districts may contract with each other under the Constitution for the education, transportation, and care of pupils. If such a Constitutional right to contract exists, would such a contract be limited by any particular Act of the General Assembly'? The Constitutional authority to contract for the education, transportation and care of pupils was originally adopted in an amendement to the Constitution in 1932. Snipes v. Anderson, 179 Ga. 251, 254, in interpreting this provision said:
"The amendment prevails over any former provision in the constitution that is in conflict with it, and over any statute or decision of this court prior to the date of the adoption of that amendment." It is basic law that any right, granted in the Constitution takes precedence over any statute (Ga. Code Ann., 2-402). However, the courts will always refrain from passing upon the question of the constitutionality of a statute if there is any other ground upon which the court can possibly rest its decision. Pippin v. State, 205 Ga. 316. On the basis of the above authority, it is my opinion that the right of a county board of education and an independent school system to contract with each other as to the education, transportation, and care of pupils takes precedence over the rights granted in Section 32-938. In the absence of such a contract, it is my opinion that the parents of such pupils could insist upon the rights provided in Section 32-938. I do not imply in any way that the parents of these children are compelled to send their children to the Pelham school. If they so desire, the children could be sent to a private school (Ga. Code Ann., 32-2104) or to any other public school, including Meigs, that would accept them. However, because of the existing contract, it is my opinion that Mitchell County cannot be compelled under Section 32-938, to provide public tax funds to support the education of these children in Thomas County.
EDUCATION-Segregation in Schools It is unlawful to use the same public school buildings for whites and
negroes.
February 1, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your letter as to a request from the Honorable Carl Scoggins. Your letter states that you advised Mr. Scoggins against using the same public school buildings for both whites and Negroes, but that he wanted an official opinion.
The laws of Georgia are abundantly. clear as to the separation of the races

274
in our public schools. "Separate schools shall be provided for the white and colored races." Georgia Constitution, Article VIII, Section I. See also Ga. Code Ann., 32-909 and Ga. Laws 1955, pp. 174 et seq., "Colored and white children shall not attend the same schools." Ga. Code Ann., 32-937.
In addition, many local bonds are issued for the purpose of financing the construction of school buildings for white or colored children. These school buildings are financed and built by the local voters of the school district as exclusively white or exclusively colored.
On the basis of the above authority, it is my opinion that a colored school building should be considered as exclusively for the use of colored children in the morning, afternoon, and night. The same rule applies as to white school buildings. This would be true regardless of the type of instruction being given in the school building; i.e., academic, vocational or physical training.
For segregation to remain an integral part of Georgia's social customs and traditions, it must and will be practiced twenty-four hours a day, seven days a week, and three hundred and sixty-five days a years.
EDUCATION-Students-Age (Unofficial) Minimum age necessary for a student to enroll in the public schools of
Georgia is an administrative question to be decided by each County or City Board of Education.
April 11, 1955
Mr. Maxwell Moses I am pleased to acknowledge your letter concerning the minimum age of
children enrolling in the public schools in September, 1955. Ga. Code Ann., 32-937, provides in part as follows: "Admission to all common schools shall be gratuitous to aU children between the ages of six and 18 years residing in the districts in which the schools are located...." Worth v. Board of Education, 177 Ga. 166, 176, held that the above provision
is not a limitation as to the ages of children who may be taught in the public schools. It is merely a statement that all children between the ages of six and eighteen years shall be taught free.
The Compulsory School Attendance Law (Ga. Code Ann., Chapter 32-21) requires that all children between their seventh and sixteenth birthdays be enrolled in a public or private school. There is not provision as to any minimum age that a child must attain prior to being enrolled in a public school. Several such bills were introduced in the recent session of the General Assembly but none passed.
The Constitution of Georgia (Code 2-6801) provides that the County Board of Education has the control and management of the district school system and the said Board and County School Superintendent are given authority by statute (Ga. Code Ann., 32-912) to make rules to govern the county schools of their respective counties.
On the basis of this authority, it is my opinion that the question of a minimum age for enrollment in the public schools of Georgia is an administrative question to be decided by each County or City Board of Education.

275
EDUCATION-Students-Immunization (Unofficial)
Parent cannot object on religious grounds to having his or her child vaccinated for smallpox as a condition to entering a local public school system.
August 8, 1955
Honorable J. Charles Rogers
I am pleased to acknowledge your request of August 5, 1955, as to whether a parent can object on religious grounds to having his or her child vaccinated for smallpox as a condition to entering a local public school system.
The case of Anderson v. State, 84 Ga. App. 259, involving the conviction of
parents for failing to send their children to school held:
"... The defendants contend that they are members of a religious sect which permits them to choose for themselves the application of the tenets of their sect; that they interpret their religious instruction to mean that they should not use medicinal aids; that this is a part of their religion and to deprive them of it is to deprive them of their freedom to worship; that they do not wish to deprive their children of an education but, when forced to make a choice between depriving them of an education and allowing them to receive medical treatment, they must choose the former. The ill effects of contagious disease, and its power to wipe out entire populations, is a matter of history. Many of these scourges of the past have been completely dissipated by the preventive methods of medical science. The purpose of the legislature in passing the statute embodied in Code (Ann. Supp.) 32-911 was to prevent the spread of these diseases, not only for the protection of those actually immunized but for the protection of others with whom they might come in contact. The refusal of the defendants here to have their children vaccinated amounted to a transgression on the rights of others....
* * * * *
"... Code (Ann. Supp.) 32-2104 imposes upon parents of children between the ages of seven and sixteen years the duty of enrolling and sending such children to a public or private school. Code (Ann. Supp.) 32-9914 fixes the penalty for non-compliance with this duty. As hereinbefore pointed out, Code and Ann. Supplement 32-911 empowers the county boards of education to fix rules and regulations insuring the vaccination of such school children as a prerequisite to admission. These provisions of our statute law therefore impose upon the parents the duty of sending the children to school and upon the school authorities the duty of fixing the rules and regulations under which they shall attend. The defendants in this case sought to comply with their duty to send their children to school but at the same time usurp the prerogative of the school authorities, and also undertook to fix the rules under which they should attend. Their contention therefore that they did actually enroll the children unvaccinated constitutes no valid defense. It is the same contention urged in State v. Drew, supra, where the offer to send the children unvaccinated to the school was sought to be treated as a 'legal tender' and the rejection was sought to be treated as an estoppel of the school board. Such a contention is unsound for the reason that an offer to do a thing only upon waiver of the conditions precedent thereto amounts to no offer at all. Further, our statute specifically provides, not only that the child shall be enrolled, but kept in school for a minimum of 175 days

276
or the full session thereof, subject to certain exception. Under these circumstances, the action of the parents in refusing to meet the prerequisites of attendance in public school constituted a violation of the statute and the court did not err in so charging." On the basis of the above authority a parent cannot, upon religious grounds, object to a local board of education requiring every school child to be vaccinated for smallpox prior to entering school. [Ed. note: Opinion affected by Ga. Laws, 1957, p. 455.]
EDUCATION-Students-Immunization of Students (Unofficial) Laws relative to immunization of pupils in public schools quoted.
September 9, 1955 Dr. B.S. Carswell
I am pleased to acknowledge your request of September 8, 1955, as to any Georgia law on the immunization of pupils in the public schools of Georgia.
The Constitution of Georgia (Ga. Code Ann., 2-6801) places the control and management of the common schools of Georgia in the respective county boards of education. Ga. Code Ann., 32-912 authorizes the county superintendent of schools and the county boards of education to make rules to govern their respective schools.
Under the above authority, the respective county boards of education have adopted local rules as to requiring immunization of pupils against contagious diseases. The case of Anderson v. State, 84 Ga. App. 259, held that a parent cannot, upon religious grounds, object to a local board of education requiring every school child to be vaccinated for smallpox prior to entering school. [Ed. note: See Ga. Laws, 1957, p. 455.]
County and municipal boards of health also have the power to adopt rules and regulations toward preventing the introduction, generation, and spread of infectious and contagious diseases. Ga. Code Ann., 32-1801 and 1802.
EDUCATION-Students-Marriage (Unofficial) County Boards of Education may not deny students the right to attend
school after they are married.
February 3, 1955 Honorable Glenn T. York, Jr.
I am pleased to acknowledge your request of January 19, 1955, as to whether a county board of education may deny students the right to continue attending school after they are married.
The Constitution and the Georgia Code give the right and require that children attend the common schools of Georgia.
The Constitution of 1945 (Code Sec. 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 in part as :follows:
"Admission to all common schools shall be gratuitous to all children between the ages of six and 18 years residing in the districts in which the schools are located...." While all this is true, the Code also gives to the county board of education

277
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 v. Purse, 101 Ga. 422.
In reference to rules and regulations adopted by school boards, 79 C. J. S. 466, p. 350, provides as follows:
"Such rules and regulations, however, must be reasonable; otherwise they can not be enforced. Thus, a rule or regulation has been held unreasonable ... which excludes him from admission entirely because he is married ..." There is no decision directly on this point in Georgia, but the case of McLeod v. State, 122 So. 737, 154 Miss. 468, 63 A.L.R. 1161, which involved an ordinance adopted by school trustees barring married persons, otherwise eligible, from public schools, held as follows:
"The question, therefore, is whether or not the ordinance in question is so unreasonable and unjust as to amount to an abuse of discretion in its adoption. No case directly in point is referred to in the briefs. The ordinance is based alone upon the ground that the admission of married children as pupils in the public schools of Moss Point would be detrimental to the good government and usefulness of the schools. It is argued that marriage emancipates a child from all parental control of its conduct, as well as such control by the school authorities; and that the marriage relation brings about views of life which should not be known to unmarried children; that a married child in the public schools will make known to its associates in schools such views, which will therefore be detrimental to the welfare of the school. We fail to appreciate the force of the argument. Marriage is a domestic relation highly favored by the law. When the relation is entered into with correct motives, the effect on the husband and wife is refining and elevating, rather than demoralizing. Pupils associating in school with a child occupying such a relation, it seems, would be benefited instead of harmed. And, furthermore, it is commendable in married persons of school age to desire to further pursue their education, and thereby become better fitted for the duties of life. And they are as much subject to the rules of the school as unmarried pupils, and punishable to the same extent for a breach of such rules.
"We are of opinion that the ordinance in question is arbitrary and unreasonable, and therefore void."
On the basis of the above authority, it is my opinion that a county board of education can not deny students the right to continue attending school on the ground that they are married.
EDUCATION-Students-Suspension (Unofficial)
The school officials of the Georgia Public Schools have authority to suspend or expel any pupil that refuses to comply with the reasonable rules, regulations, and requirements of the school authorities.
February 2, 1954
Honorable Thomas J. Espy, Jr.
I am pleased to acknowledge your request as to the authority of school officials to suspend or expel a pupil for misconduct.

278
The Constitution of Georgia, Article VIII, Section I, Paragraph I (2-6401) provides as iollows:
"The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia ..."
Board of Education v. Purse, 101 Ga. 422, 434, in holding that the Board of Education has authority to suspend a pupil for proper cause, said:
"A child who is entered at a public school must be required to conduct himself so as not to interfere with the discipline of the school.
* * *
"Public education which fails to instill in the youthful mind and heart obedience to authority, both private and public, would be more of a curse than a blessing; ...
* * *
"The schoolmaster has always stood in loco parentis for certain purposes and notwithstanding the change from private schools into public schools, the schoolmaster of the present system is, and ought to be, in the place of the parent in a great many particulars." Leoles v. Landers, 184 Ga. 580, held that:
"... the courts of this State and of other jurisdictions having a free public system of education have repeatedly held that it is within the power and authority of the governmental bodies of such schools or systems of public schools to suspend or expel pupils therefrom upon violation of reasonable and lawful regulations. In Samuel Benedict Memorial School v. Bradford, 111 Ga. 801 (36 S. E. 920), it was ruled that a child might be expelled from school where she refused to write a certain paper, upon express direction by her father not to do so." Appeal dismissed by Supreme Court of United States, 302 U. S. 656.
We find the following comment in 47 American Jurisprudence, Sections 173, 177, Pages 426, 429:
"It has been said that when the school room is entered by a pupil, the authority of the parent ceases and that of the teacher begins; when the pupil is sent to his home, the authority of the teacher ends, and that of the parent is resumed."
"The enjoyment of the right of attending the public schools is necessarily conditioned on compliance by pupils with the reasonable rules, regulations, and requirements of the school authorities, breaches of which may be punished by suspension or expulsion."
On the basis of the above authority, it is my opinion that school officials of the Georgia public schools have authority to suspend or expel any pupil that refuses to comply with the reasonable rules, regulations, and requirements of the school authorities.
EDUCATION-Students-Suspension (Unofficial)
School officials have authority to suspend or expel any pupil that refuses to comply with the reasonable rules, regulations and requirements of the school authorities.
April 13, 1955 Mr. L. H. Battle, Superintendent Gainesville Public Schools
I am pleased to acknowledge your request of March 30, 1955, as to the authority of school officials to suspend or expel pupils for misconduct.

279
The Constitution of Georgia, Article VIII, Section I, Paragraph I (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. . . ."
Georgia Code Annotated, Section 32-901, provides as follows:
"Each and every county shall compose one school district, and shall be confided to the control and management of a county board of education."
In Board of Education v. Purse, 101 Ga. 422, 434, a child had been suspended for the reason that the child's parent entered the school room and used offensive language to the teacher. In holding that the (Board of Education) has authority to suspend a pupil for proper cause the court said:
"A child who is entered at a public school must be required to conduct himself so as not to interfere with the discipline of the school.
* * *
"Public education which fails to instill in the youthful mind and heart obedience to authority, both private and public, would be more of a curse than a blessing; . . .
* * *
"The schoolmaster has always stood in loco parentis for certain purposes, and notwithstanding the change from private schools into public schools, the schoolmaster of the present system is, and ought to be, in the place of the parent in a great many particulars."
Leoles v. Landers, 184 Ga. 580, held that: "... the courts of this State and of other jurisdictions having a free
public system of education have repeatedly held that it is within the power and authority of the governmental bodies of such schools or systems of public schools to suspend or expel pupils therefrom upon violation of reasonable and lawful regulations. In Samuel Benedict Memorial School v. Bradford, 111 Ga. 801 (36 S. E. 920), it was ruled that a child might be expedlled from school where she refused to write a certain paper, upon express direction by her father not to do so." Appeal dismissed by Supreme Court of United States, 302 U. S. 656.
We find the following comment in 47 American Jurisprudence, Sections 173, 177, pages 426, 429.
"It has been said that when the school room is entered by a pupil, the authority of the parent ceases and that of the teacher begins; when the pupil is sent to his home, the authority of the teacher ends, and that of the parent is resumed.
"The enjoyment of the right of attending the public schools is necessarily conditioned on compliance by pupils with the reasonable rules, regulations, and requirements of the school authorities, breaches of which may be punished by suspension or expulsion."
On the basis of the above authority, it is my opinion that school officials of the Georgia public schools have authority to suspend or expel any pupil that refuses to comply with the reasonable rules, regulations, and requirements of the school authorities.

280
EDUCATION-State Board of Education-Powers 1. State Board of Education has power to reconsider or modify their
determinations on the ground of fraud or imposition, mistake, surprise, inadvertence, or newly discovered evidence, or to meet changed conditions.
2. Doctrine of res judicata does not restrict the power of an administrative tribunal to reconsider or modify its own determination.
May 31, 1954
Honorable M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your recent request as to whether the State Board of Education, after having passed favorably upon an application by a city or county board of education, may recall the application for further consideration, or if the application is completely out of the hands of the State Board of Education.
It has been generally held that administrative authorities have the power to reconsider or modify their determinations on the ground of fraud or imposition, mistake, surprise, inadvertence, or newly discovered evidence, or to meet changed conditions. 42 Am. Jur., 174, pp. 537-538. See Johnson v. Evangelican Lutheran Church of Messiah, 79 Ga; App. 671.
While administrative decisions are binding upon all the parties, the doctrine of res judicata does not restrict the power of an administrative tribunal to reconsider or modify its own determination. 42 Am. Jur., 176, p. 540.
Should an administrative board seek to reconsider or modify its determination, it is essential that notice be given to all parties and that they be given the opportunity to be heard.
On the basis of the above authority, it is my opinion that the State Board of Education has the power to reconsider or modify its determination as to any application by a city or county board of education.
EDUCATION-State Board of Education-Powers The State Board of Education has appellate jurisdiction only to determine
whether a County Board of Education has abused its discretion in making a location of a school site.
June 24, 1955
Dr. M. D. Collins State Superintendent of Schools State Department of Education
I am pleased to acknowledge your request as to what question involving the Greene County school dispute is now before the State Board of Education, and what authority does the State Board have to pass upon any such question.
The facts are stated by you to be as follows: In 1952 the Greene County Board of Education voted to have one county-wide white high school established in the City of Greensboro to serve the entire county. A new school building was to be built at Greensboro through the aid of the State School Building Authority. Objections to this plan were filed by the Mayor and Council of Union Point and others. A hearing was had by the Greene County Board and this Board adhered to its former decision. An appeal was filed with the State Board from this decision. A rehearing was had before the Greene

281
County Board with the result being the same as before. An appeal was filed with the State Board from this latter decision. On November 13, 1952 the State Board of Education affirmed the decision of the Greene County Board of Education. Upon writ of certiorari by Union Point the Georgia Court of .Appeals affirmed (September 19, 1952) the above action of both the County and State Boards of Education (Mayor and Council of Union Point v. Jones, 88 Ga. App. 848, cert. denied by Supreme Court of Georgia, 88 Ga. App. 897.) Prior to any final action on the part of the State School Building Authority and the Greene County Board of Education, the Greene County Board of Education voted to have two county~wide white high schools to be located at Greensboro and Union Point. Another appeal was taken, this time by Greensboro, to the State Board from this decision by the Greene County Board. This decision was affirmed by the State Board. The day after this affirmance the Greene County Board of Education rescinded its second decision and voted to have one county-wide white high school located at Greensboro. No appeal has been made from this decision.
Article VIII, Section V, Paragraph I of the Constitution of Georgia of 1945 (Sec. 2-6801) provides in part as follows:
"... Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a county board of education...."
The purpose of the above constitutional provision is set out in Saxon v. Bell, 201 Ga. 797, 798, where the court held:
"As pointed out by this Court in Wheeler v. Fargo Consolidated School District, 200 Ga. 323 (37 S. E. 2d 322), the General Assembly in 1919 enacted a very comprehensive code of school laws. See Ga. L. 1919, p. 288; Code, 32-901 et seq. This court in the Wheeler case, supra, said: 'The Constitution of 1945 simply made constitutional the first quoted portion of the Act of 1919, thereby creating a constitutional board of education for the counties, and that is all this provision did.' It follows that the Constitution of 1945 did not purport to disturb our comprehensive code of statutory school laws other than to make the offices of county school superintendent and county boards of education constitutional rather than statutory offices.''
See, also, Powell v. Price, 201 Ga. 833.
Georgia Code Annotated, Section 32-901, provides as follows:
"School districts.-Each and every county shall compose one school district, and shall be confided to the control and management of a county board of education.''
Downer v. Stevens, 194 Ga. 598 held:
"This Court has repeatedly held that the law vests full power and authority for the operation of schools in the County Boards of Education.''
See, also, Boney v.Hoard of Education of Telfair, 203 Ga. 152, and Keever v. Board of Education of Gwinnett County, 188 Ga. 299.
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; . . . The said boards are invested with the title, care and custody of all school houses or other property, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any school house site has become unnecessary or inconvenient, they may

282
sell the same in the name of the county board of education. , .. The construction of all public school buildings must be approved by the superintendent and board of education and must be according to the plans furnished by the county school authorities and the State Board of Education."
Georgia Code- Annotated, Section 32-915 provides as follows: "The board of education of any county shall have the right if, in their
opinion, the welfare of the s.chools of the county and the best interests of the pupils require, to consolidate two or more schools into one school, to be located by said board at a place convenient to the pupils attending the same, the schoolhouse to be located as near the center of the district or districts as possible."
The location of the site for a county school building has generally been held to be within the discretion of the County Board of Education. Fordham v. Harrell, 197 Ga. 135, 137, held:
"As aptly stated by the trial judge: 'Dodge County still has its financial responsibility, and its board of education has the liability and the responsibility to see that every child in this district attends school, the very best school it can provide for it, whether it is on this site or somewhere else. As to what is best for the school pupils and what is the best educational interest of that particular district, is vested in the board of education of Dodge County.' "
See, also, Burton vs. Kearse, 204 Ga. 765; McKenzie v. Walker, 210 Ga. 189; Bramlett v. Callaway,,192 Ga. 8; Plainfield School District v. Cook, 173 Ga. 447; McCalley v. McFarland, 155 Ga. 700; Edge v. Garrett, 138 Ga. 93; Meadows v. Board of Education, 136 Ga. 153.
Georgia Code Annotated, Section 32-910 provides as follows: "The county board of education shall constitute a tribunal for hearing
and determining any matter of local controversy in reference to the .construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State Board of Education, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county board and testimony as agreed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools: Provided, that this section shall not apply to any public school system established prior to the adoption of the Constitution of 1877.''
If any person or group of persons objects in the selection of a schoolhouse site by a County Board of Education, such person or group of persons may appeal this decision to the said County Board of Education under authority of the above Code Section and the County Board, while conducting the appeal, is acting in an administrative rather than a judicial capacity. Mayor/C of Union Point v. Jones,__88 Ga.' App. 848.
Article VIII, Section II, Paragraph I (2-6501) of the Georgia Constitution of 1945 provides in part as follows:
"The said State Board of Education shall have such powers and duties as provided by law and existing at the time of the adoption of this Constitution, together with such further powers and duties as may be hereafter provided by law.''

283
Georgia Code Annotated, Section 32-414, provides as follows:
"The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive. Appeals to the Board must be made in writing through< the county superintendent of schools, or the secretary of the Official Board of Independent Systems, and must distinctly set forth the question of law, as well as the facts in the case. The Board shall provide by regulation for notice to the opposite party and for hearing on the appeal."
Board of Education v. Huddleston, 174 Ga. 761, 762, in reference to an appeal to the State Board of Education, held:
"The right of appeal given in Section 13 of the above act exists only when the County Board of Education has heard and decided some matter of local controversy in reference to the construction or administration of the school law."
The case of Boney v. Board of Education of Telfair County, 203 Ga. 152, 155, 156 and 157 (1947) involved the question of the location of a site for the county schoolhouse and an appeal to the State Board of Education. The Court held:
"It makes their decisions final unless an appeal to the State board is taken. It requires that such appeal be in writing, that it set forth the question in dispute, the decision of the county board and the 'testimony as agreed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools.' In thus requiring that the appeal contain the testimony heard by the county board, the law shows an intent that the State board be restricted at the hearing on appeal to the testimony previously considered by the county board. This would prohibit a de novo trial by the State board. This is further supported by the fact that the law has given the county board wide discretionary powers, and whether or not it has abused its discretion can be ascertained only by a consideration of the testimony which it heard and upon which its decision is based. The conclusion is in harmony with the further policy of the law to give to the local authorities as much power and responsibility as possible for the conduct of the public schools. It accords with the 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. If there has been no issue heard and decided by the county board, there can be no parties and no testimony which the law authorizing an appeal contemplates. We think that this court in Meadows v. Board of Education, 136 Ga. 153 (71 S. E. 146), clearly indicated that, as a condition precedent to an appeal, there must be an issue made and tried by the county board. It is there said, at page 156: 'If the county board has improperly located the school site in the Brownsville District, the complaining parties are afforded a right to be heard before the board sitting as a court; and if that board upon the testimony submitted decides against the complainants, they are given the right of appeal.' If any parties are dissatisfied with the action of the county board, they must file a complaint and submit such evidence as they desire to that board which

284
is empowered by law to sit as a tribunal for the purpose of deciding such issues. If no objection or complaint is filed with the county board, its decision is final and presumably is satisfactory to all parties concerned.... It must be held that, since that decision shows that no appealable,decision upon a local controversy by the County Board of Education was brought under review, the State board was without jurisdiction to render the decision locating the schoolhouse at a site different from that designated by the county board."
It is apparent from the above authority that the State Board of Education is a tribunal of limited jurisdiction and that this jurisdiction is purely appellate, i.e., to review decisions made by a county board of education where an appeal has been duly made and is pending before said State Board.
There were two decisions by the Greene County Board of Education and an appeal to the State Board from each of these decisions. The State Board affirmed both decisions on different dates. At present there is a new decision by the Greene County Board of Education to have one county-wide high school located atGreensboro, and there has been no appeal to the State Board of Education; therefore, there is no question involving the Greene County School dispute now before the State Board of Education. If the decision of the Greene County Board of Education is duly appealed, the question would then be beforethe State Board of Education as to whether the decision by the Greene County Board of Education of having one county-wide high school located at Greensboro was an abuse of discretion by the said local board of education.
EDUCATION-State Board of Education-Workmen's Compensation 1. State Board of Education subject to the Workmen's Compensation
Law. 2. Departments of the State were made subject to provisions of the
Workmen's Compensation Law by the provisions of Georgia Laws, 1943, page 401.
May 27, 1954
Honorable M. D. Collins State Superintendent of Schools
You request my opinion as to whether or not you would be legally authorized to pay an award of $69.08 to Mrs. Rubye S. Baggett, an employee of your department, for certain medical bills, pursuant to an award of the Workmen's Compensation Board.
I have investigated this claim, and the award based thereon, and find it to be in proper order. There is no question as to liability, since it is undisputed that Mrs. Baggett suffered the injuries when the chair in which she was sitting in her office slipped out from under her.
The only question which deserves further comment is with respect to the constitutional authority of the department to make payment.
By Act of the General Assembly of 1943 (Ga. Laws 1943, pp. 401, 402), the departments of the state were made subject to provisions of the Workmen's Compensation law.
Just about every constitutional objection that could be made was made and overruled as to the State Highway Department in the case of State Highway Department of Georgia v. Turner, 198 Ga. 795.

285
The only possible distinction that could be made between the Board of Education and the Highway Department is with respect to the question of notice. In the Turner case, supra, the court rejected an objection to the effect that no sufficient machinery for notice and service had been made. While no statute exists as to the Board of Education, declaring it to be subject to suit and providing for service of process, as is the case as to the Highway Department. I do not deem this controlling, for I construe the Workmen's Compensation law itself as declaring all state departments to be subject to suit as respects said law. Secondly, Chapter 32-4 of the Code leaves no doubt that the Board of Education is the party at interest. See particularly Section 32-410, providing as follows:
"The Board shall have general supervision of the State Department of Education and shall employ and dismiss, upon the recommendation of the State Superintendent of Schools, such clerical employees, supervisors, administrators, and other employees as may be necessary for the efficient operation of the common school system."
I, therefore, conclude that you are legally authorized and required to pay the award to Mrs. Baggett.
EDUCATION-Teachers-Contract (Unofficial) Contracts for terms of employment for teachers, principals and other
school employees are impliedly limited to one school year.
February 25, 1955
Honorable M. M. Sanders I am pleased to acknowledge your request concerning employment contracts
by local board of education. All teachers, principals and other school employees (including bus drivers)
in the public schools of the county are elected by the boards of education on the recommendation of the superintendent. Georgia Code Annotated, Section 32-604. The General Assembly does not expressly provide for the term of employment nor is there any reported case in Georgia on this point (term of employment).
78 C. J. S., Sec. 189 (b), page 1037, provides as follows: "The power of the school authorities to fix the term of employment
may be restricted by statutes which impliedly limit the term of employment, as, for example, to one year where the statute provides for an annual levy of school taxes, limits the life of a teacher's certificate to one year, and places the school budget and curriculum on a yearly basis, or where the city charter contemplates annual appropriations for the support of the schools." Georgia Code Annotated, Section 32-1118 provides for the board of education to "annually" recommend to the fiscal authorities of the county the rate of levy for educational purposes. The education budget is calculated on an annual basis. See Georgia Code Annotated, Sections 32-614, 615, 618, 619, 620, and 621. As to funds for teachers' salaries, Georgia Code Annotated, Section 32-607 provides that these funds shall be determined on a "ten-months basis". Under Georgia Code Annotated, Section 32-606 the State Board of Education "annually" fixes a schedule of minimum salaries for teachers. In addition, Georgia Code Annotated, Section 32-603, which immediately precedes the section on teacher contracts, places the public schools of the county on a yearly basis.

286
Since all of the above acts of the General Assembly have reference to public schools being run on a yearly basis, I am of the opinion that the General Assembly impliedly limited all teachers', principals' and other school employees' terms of employment to one school year.
EDUCATION-Teachers-Contract (a) A teacher's contract with the county board of education must be in
writing. (b) A teacher not under a written contract is not legally employed,
and hence is not entitled to any hearing prior to notification of his suspension.
March 2, 1955
Honorable M. D. Collins State Superintendent of Schools State Department of Education
I am pleased to acknowledge your request concerning teacher contracts. 1. Does a teacher who is employed by the county board of education
have to be given a written contract? Georgia Code Annotated, Section 32-604, provides in part as follows:
"... 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." The following cases have all held that a teacher's contract must be in writing: Orr v. Riley, 160 Ga. 480; Green v. Snellville Consolidated School District, 169 Ga. 667; and Hill v. Conner, 181 Ga. 516. On the basis of the above authorities it is my opinion that a teacher's contract of employment with a county board of education must be in writing.
2. If the teacher has been suspended and is not nnder written contract, does the county board of education have to give her a hearing? Georgia Code Annotated, Section 32-1010 provides as follows:
"The county superintendent of schools shall superintend examinations of all teachers of his county as provided by law. He shall suspend any teacher under his supervision for nonperformance of duty, incompetency, immorality or inefficiency, and for other good and sufficient causes. From his decision the teacher may appeal to the county board of education, and either the superintendent or the teacher, being dissatisfied with the decision of the board, may appeal to the State Board of Education, the decision of which shall be final: Provided, that this section shall not apply to any public school system established prior to the adoption of the Constitution of 1877." The case of King v. Wells, 190 Ga. 776, involved an Act of the General Assembly applicable to counties with a population in excess of 200,000 and required the giving of a written notice of the charges and a hearing. There is no such requirement in Section 32-1010. There are conflicting decisions in other juris-

287
dictions where there is no statute requiring notice and a hearing. See 78 C. J. S., 204 (b).
If the teacher is not employed under a written contract, it is my opinion that such teacher is not legally employed by the county board of education; therefore, such teacher would not be entitled to any hearing prior to being notified of his suspension.
EDUCATION-Teachers-Election (Unofficial) Teachers are elected by the local Boards of Education upon the recom-
mendation of the School Superintendent.
April 13, 1954
Honorable William S. Smith I am pleased to acknowledge your request as to the election of teachers by a
county board of education. As to the election of teachers, Georgia Code Annotated, Section 32-604 pro-
vides in part as follows: "... In the local units of administration, the several teachers, princi-
pals 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." [See Ga. Laws, 1956, p. 312.] In the case of Tripp v. Martin, 210 Ga. 284, it was held that the county school superintendent has the right and the duty to recommend teachers for employment by the county board of education, and the superintendent cannot be required by mandamus to execute contracts on behalf of the board for teachers employed by the board without his recommendation.
EDUCATION-Teachers-Election 1. Teachers are elected by the County Board of Education on recom-
mendation of the County School Superintendent. 2. Recommendation of County School Superintendent not required for
County Board of Education to appoint local school trustees.
July 20, 1954
Honorable M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request as to whether a county school superintendent may employ a teacher as an emergency act and whether the superintendent must recommend the appointment of local school trustees.
All teachers are elected by the county board of education on the recommendation of the county school superintendent. This applies to any teacher employed by the public school system. Georgia Code Annotated, 32-604 provides as follows:
"... 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

288
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." [See Ga. Laws, 1956, p. 312.] Georgia Code Annotated, 32-1104 provides that local school trustees may be appointed by the county board of education for each school in the county. The law does not require the recommendation of the county school superintendent for such appointment. It is completely within the discretion of the county board.
EDUCATION-Teachers-Election Discusses procedure for the election of a teacher by a local board of
education.
May 11, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge the following request: "When five members. of the County Board of Education meet in
regular session, and one of the members does not vote but three vote in favor of electing a particular person as teacher or principal and one member votes opposite to the three members, is the teacher or principal, under House Bill473 which was passed at the last session of the General Assembly, duly elected? Ga. Laws 1956, p. 312 (Ga. Code Ann., 32-604, as amended) provides as follows:
"For the purposes of this Act, 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 Act 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. Provided however the boards, by the vote of three-fours of the entire membership of the board, may employ teachers, principals and other school employees without 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." Prior to the above amendment, Tripp v. Martin, 210 Ga. 284, held that the county school superintendent has the right and duty to "recommend" teachers for employment by county boards of education, and superintendents cannot be required by mandamus to execute contracts on behalf of the board for teachers employed by the board without his recommendation. The 1956 Amendment added the sentence "Provided however the boards, by the vote of three-fourths of the entire membership of the board, may employ teachers, principals and other school employees without the recommendation of the respective superintendents."

289
Ga. Code Ann., 32-907, provides in part that "A majority of the board shall constitute a quorum for the transaction of business."
It is my opinion that where a county school superintendent has recommended a person as a principal, teacher or school employee, such person could be elected by a majority vote of the board members voting providing. that proper quorum was present. Under the 1956 amendment a person can be elected as a principal, teacher or school employee without the recommendation of the county school superintendent provided such person receives three-fourths of the entire membership of the board (four out of the five).
The specific answer to your inquiry would depend upon whether or not such person was recommended by the county school superintendent. If the person was so recommended, the answer is-Yes. If the person was not so recommended, the answer is-No.
EDUCATION-Teachers---:Employment 1. Teachers' term of employment limited to one school year. 2. Contracts of Comity Board of Education that were valid when made
are binding on their successors, except where contract is not for a necessary matter, or is for an unreasonable length of time or where fraud attaches.
3. A teacher unlawfully removed is entitled to receive his salary for the ti:tne after such removal, less any sum he may have earned as a substitute during such time.
December 20, 1954
Honorable M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request concerning employment contracts by local boards of education.
1. Can a county board of education enter into a teacher contract for a longer period than twelve months without specific legislative authority?
All teachers in the public schools of the county are elected by the boards of education on the recommendation of the superintendent. Georgia Code Annotated, 32-604. The General Assembly does not expressly provide for the term of employment nor is there any reported case in Georgia on this point (term of employment).
78 C. J. S., 185(b), page 1037, provides as follows: "The power of the school authorities to fix the term of employment
may be restricted by statutes which impliedly limit the term of employment, as, for example, to one year where the statute provides for an annual levy of school taxes, limits the life of a teacher's certificate to one year, and places the school budget and curriculum on a yearly basis, or where the city charter contemplates annual appropriations for the support of the schools." Georgia Code Annotated, 32-1118 provides for the board of education to "annually" recommend to the fiscal authorities of the county the rate of levy for educational purposes. The education budget is calculated on an annual basis. See Georgia Code Annotated, 32-614, 615, 618, 619, 620, and 621. As to funds for teachers' salaries, Georgia Code Annotated, 32-607 provides that these funds shall be determined on a "ten-months basis". Under Georgia Code Annotated,

290
32,606 the State Board of Education "annually" fixes a schedule of minimum salaries for teachers. In addition, Georgia Code Annotated, 32-603, which immediately precedes the section on teacher contracts, places the public schools of the county on a yearly basis.
Since all of the above acts of the General Assembly have reference to public schools being run on a yearly basis, I am of the opinion that the General Assembly impliedly limited the teacher's term of employment to one school year.
2. Will the acts of one board under a contract be binding upon the succeeding boards?
There is no specific case in Georgia on the point as to a county board of education, but Williams v. The City Council of West Point, 68 Ga. 816, held that while one municipal corporation cannot, by ordinance, bind itself and its successors to a given line of policy, it may bind itself by contract which it has the right to make under its charter.
78 C. J. S., 278, page 1255, provides as follows: "Although it has been said that a public school board or officers
cannot enter into a school contract so as to limit the discretion of their successors, contracts which were valid when made are binding on the successors of the board or officers making them, except where the contract is not for a necessary matter, or is for'an unreasonable length of time, or where fraud attaches..." 3. If the board of education should be liable under such a contract and in the meantime the individual is working at another job, would he be entitled to the full amount of the contract or the difference in the rate of his earnings? This question is controlled by the normal rules of contract, i.e., that "where by a breach of contract one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence." Georgia Code Annotated, 20-1410. Board of Education v. Bacon, 22 Ga. App. 72, 76-77, held as follows:
" 'A teacher can not as a rule be removed or discharged except on charges preferred, and after trial; and if one is unlawfully removed, he is entitled to recover his salary for the time after such removal, less any sum he may have earned as a substitute during such time.' "
EDUCATION-Teachers-Garnishment Unless the county board of education assents to garnishment, there can
be no valid judgment against the garnishee.
January 25, 1955
Honorable M. D. Collins State Superintendent of Schools State Department of Education
I acknowledge receipt of your letter relative to a request from Honorable R. E. Kicklighter, Superintendent of Tattnall County Schools, for an opinion on the question as to whether or not a garnishment may be issued against a teacher without the consent of the local board of education.
The Code, Section 46-805 (Supp.) provides as follows: "Where an official of any of the said governments or other person

291
herein designated, has been garnished, as provided by the preceding section, and answer has been filed by said person, in accordance with the mandate of said writ or summons, admitting that the branch of government which has been garnished is due, or will be due, the defendant in said garnishment proceedings, money for salary, and has said money for payment when due, the said answer must also show the assent of said official, or person hereinabove authorized, that judgment may be entered in said cause for the amount shown in said answer, or so much thereof as may be necessary to satisfy plaintiff's judgment. And in no case shall judgment against said official, or other person herein authorized and designated, as the agent of the garnishee, be entered by default, or on said answer, or in said garnishment proceedings, unless and until such assent and consent to said judgment is shown in said answer or in the trial of the garnishment case. When such final judgment is so entered, after trial of said proceedings, the said judgment shall be against the official or person hereinabove authorized to return said answer, as such official or agent of the garnishee, and said judgment shall show that said official or authorized person, as such agent of the garnishee, consented that said judgment be entered in said garnishment proceedings." (Emphasis supplied.) In the case of Redwine v. Morgan, 88 Ga. App. 625, the Court of Appeals held that prior to the above Code Section, which was codified from the Acts of 1945, p. 438, a garnishment proceeding can not be maintained against cities, counties, and other political sub-divisions and that accordingly the provisions of the statutes were to be strictly construed. Construing Section 46-805 the Court declared,
"... This language is clear and unambiguous and, in our opinion, can mean but one thing, and that is that no valid judgment can be rendered against such official until his assent and consent to said judgment is shown in his answer to the garnishment or in the trial of the garnishment case. . . ." I therefore, conclude that unless the county board of education assents to the garnishment in its answer which is duly filed pursuant to law, no valid judgment can be obtained against the garnishee.
EDUCATION-Teachers-Home for (Unofficial) Public school funds cannot be used to purchase a home for teachers.
January 6, 1954
Honorable Shuler Antley I am pleased to acknowledge your request as to whether the Marietta Board
of Education can legally expend public school funds to purchase a home for teachers of the Marietta public school.
Georgia Code Annotated, 32-942, 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 fund and keep the same separate and distinct from other funds, and said funds shall be used for educational purposes and none other ..." Georgia Code Annotated 32-953, provides as follows:
"County and city boards of education, upon approval of majority

292
members of such board, are hereby authorized to expend funds for the purchase of educational information, literature and services."
Burke v. Wheeler County, 54 Ga. App. 81 (1936), held that: "Public funds can not be expended unless such expenditure is author-
ized by law, and money belonging to the public-school funds can not be used for any other than school purposes.... It is illegal to divert public funds from their particular purpose. School funds are to be used for school purposes." We find the following comment in 47 American Jurisprudence, Section 92, page 363:
"School funds are held to be trust funds for educational purposes which the courts will not permit to be diverted to other even though closely kindred uses, no matter how meritorious the project may appear to be in its practical, ethical, or sentimental aspects . . . school funds can be expended by local bodies only for purposes authorized by statute either expressly or by necessary implication."
To my knowledge there is no direct holding in any state on this matter. Nevertheless, in the light of the above authority, it is my opinion that public school funds cannot be used to purchase a home for teachers.

EDUCATION-Teachers-Home for

Public school funds cannot be used to purchase a home for teachers, but a building used for school purposes can be used, after school hours, to house teachers.

Dr. M. D. Collins State Superintendent of Schools State Department of Education

March 16, 1956

I am pleased to acknowledge your rer;uest as to whether the Bryan County Board of Education can legally expend public funds to purchase a home for teachers of the Bryan County public school, or for use as a place for teaching home economics.
Enclosed you will find a copy of an opinion of this office date January 6, 1954, that public school funds cannot be used to purchase a home for teachers.
It is my opinion that the building could be purchased for use as a place of teaching home economics, and when not used for such purpose after the normal school hours, it could be used to house teachers. The resolution as to the purchase of the building should state that said building is being purchased for the purpose of being used as a place for instruction of pupils in home economics.

EDUCATION-Teachers-State Security Questionnaire 1) Executive Order of Governor requiring the original of the State
Security Questionnaire to be forwarded to the Special Services Agency is valid.
2) Teachers in the public schools are both county and state employees.
March 18, 1954 Dr. M.D. Collins State Superintendent of Schools
By your letter dated March 12, 1954 you have requested of me an official opinion on the legality of the Governor's Executive Order of February 1, 1954

293
and in particular that provision which requires the original of the State Security Questionnaire to be forwarded to the Special Services Agency in Atlanta, Georgia.
By way of preface, the Special Services Agency is a joint activity of the Law Department and the Executive Department and is physically housed in the Law Department. The Sedition and Subversive Activities Act of 1953 imposes certain responsibilities and duties upon the Governor and the Attorney General. In order to effectuate the purposes of the Act these activities are coordinated through the Special Services Agency under the joint management of the Governor and the Attorney General.
The following provisions of the Sedition and Subversive Activities Act applicable to your question are set out below:
Section 11 of that Act provides:
"Every person and every board, commission, council, department, or other agency of the State of Georgia, or any political subdivision thereof, who, or which appoints or employs or supervises in any manner the appointment, or employment, of public officials, or employees, shall establish by rules, regulations, or otherwise, procedures designated to ascertain before any person, including teachers and other employees of any public educational institution in this State, is appointed or employed, that he, or she, as the case may be, is not a subversive person, .."
Section 12 provides:
"Every person who on January 1, 1954, shall be in the employ of the State of Georgia, or any agency thereof, including public educational institutions supported in whole or in part by State funds, shall execute a written questionnaire to determine facts concerning his or her personal history, qualifications, and loyalty, ..."
The above sections have the effect of requiring all personnel who receive in whole or in part State funds for their compensation and who are appointed, employed, or supervised by any agency of the State of Georgia to execute the questionnaire.
Section 11 also provides:
"The Governor is authorized to make appropriate orders, rules and regulations to effectuate the purposes of Sections 10, 11, 12 and 13 of this Act." Section 7 of .the Act provides:
"The Governor by executive order is authorized to establish within existing departments such special enforcement agencies, designate such personnel and fix such duties as may from time to time be required to perform any of the functions and duties required by this Act."
The Constitution of the State, Article V, Section 1, Paragraph XVII (Code Section 2-3017) provides:
"The Governor may require information in writing from Constitutional officers, department heads, and all State employees, on any subject relating to the duties of their respective offices or employment . . ."
I am of the opinion that the Governor, from the foregoing provisions of law, has ample legal authority to issue the Executive Order of February 1, 1954.
The remaining question is whether or not teachers and employees in the common school system may be required to comply with the provisions of the Executive Order. Teachers in the public school system are paid in the most part by funds received from the State under the Minimum Foundation Program and

294
in part from counties and municipalities. 33% of the State's expenditures are for the purpose of maintaining a common school system, or approximately $l15,000,000.00. Under the Minimum Foundation Law, the State Board of Education fixes a schedule of minimum salaries (Ga. Code Ann. 32-606), and issues certificates as a condition to the employment of teachers (Ga. Code Ann. 32-605). The budgets for the various school systems are required to be submitted and approved by the State Board of Education (Ga. Code Ann. 32-620). The State Board of Education is charged with the administration of the Minimum Foundation law (Ga. Code Ann. 32-631), and, finally, the State Board of Education supervises and regulates the entire common school system of this State. The State Auditor is required by law to audit and check the books and accounts of all school systems in which the State provides funds. (Ga. Code Ann. 40-1812).
I am of the opinion that it is not necessary to reach the question of whether employees of the common school systems are State employees or county employees, because under the terms of the Sedition and Subversive Activities Act of 1953, they are specifically included, since that Act states in terms that "public educational institutions supported in whole or in part by State funds" are subject to the provisions of the Act as well as any department or agency, both State and County, which "appoints, employs or supervises' public officials or employees. As was held in the case.of McNeill v. Wood, 198 Ga. 150, 156, in dealing with the joint State and county participation in the welfare programs, such employees "of county department are neither County nor State employees, but are employees of both the State and the County Departments."
I think this decision is conclusive upon the subject, and for the purpose of this Act I entertain no doubt but that employees of the common school systems are employees of the State as well as of the county with whom they contract, because whatever contract the county may enter into with teachers, it is subject to the rules and regulations and supervision of the State Boards of Education.
EDUCATION-Trustees-Authority (Unofficial) The duties of local boards of trustees is merely advisory in nature, and
such boards cannot be delegated authority by the County Boards of Education.
January 25, 1955
Honorable L. W. Tabor Superintendent, Houston County Schools
I acknowledge receipt of your letter of Janua"ry 22, 1955, requesting my opinion as to the scope of authority granted to school trustees.
Constitution, Art. VIII, Sec. V, Par. I (Code Ann., Sec. 2-6801) provides as follows:
* * * *
"The General Assembly shall have authority to make provision for local trustees of each school in a county system and confer authority upon them to make recommendations as to budgets and employment of teachers and other authorized employees." The Code, Section 32-1105 provides, in so far as relevant, 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,

295
employment of teachers, and other authorized employees, and as to other matters relatfng to the school of which they are trustees. Such recommendations shall be merely advisory and the county board of education is not bound to observe or follow the same..." (Emphasis supplied.) I hardly think anything can be added by construction to this clear language. Therefore, since the law specifically and expressly defines the duties of school trustees as being merely advisory in nature, I do not think that a county board of education would be lawfully acting within its power to delegate any other authority to such local board of trustees. Furthermore, throughout Chapter 32-9 of the Code the various duties relative to the control and management of the county system of public schools are conferred upon the respective boards of education, and for such boards to attempt to confer their authority upon the board of trustees would of itself constitute an unlawful delegation of authority. Section 32-1105 quoted above further reinforces the general principal and I do not believe the question is subject to any doubt.
EDUCATION-Trustees-Qualifications A person who has been convicted of any crime involving moral turpitude
and who has not been subsequently pardoned, is not eligible to hold the office of Trustee for a local public school.
July 12, 1956
Honorable M. D. Collins State Superintendent of Schools Department of Education
I am pleased to acknowledge your request as to whether a person who is convicted of a crime involving moral turpitude is eligible to serve as a trustee of a local public school.
The Georgia Constitution (Ga. Code Ann., 2-801) provides as follows: "The General Assembly may provide, from time to time, for the
registration of all electors, but the following classes of persons shall not 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." Ga. Code Ann., 77-528, (Supp.) provides as follows:
"Following the effective date of this Chapter, all pardons shall relieve from civil and political disabilities." On the basis of the above authority it is my opinion that a person who has been convicted of any crime involving moral turpitude and who has not been subsequently pardoned is not eligible to hold the office of trustee for a local public school.

296
EDUCATION-Trustees-Selection (Unofficial) Law relating to method of selecting local school trustees quoted.
November 10, 1955
Mr. E. P. Smiley Your request as to the proper way of selecting local trustees for the schools
of Pierce County, that is whether the county school superintendent or the county board of education makes these appointments.
Ga. Code Ann., 32-1104 provides as follows: "The county board of education of each county, exclusive of those
counties having local systems created prior to the adoption of the Constitution of 1877, may within 30 days from the enactment of this law appoint not less than three nor more than five local school trustees for each school in the county. Each person so appointed shall be a freeholder and manifestly interested in education, and be a resident of the county where he is appointed. Each person so appointed shall have a term of four years, and should any vacancy occur due to death, resignation, change of residence from the county where appointed, or otherwise the county board of education shall, at its next regular meeting after such vacancy occurs, appoint a successor to fill said vacancy. The trustees so. elected or appointed shall elect one of their members as chairman and another as secretary. All trustees shall serve without compensation: Provided, nevertheless, the trustee of each school district as constituted prior to August 7, 1945, shall be the trustees of each school in said district until their respective terms expire."
ELECTIONS-Ballots-Absentee Ballot (Unofficial) 1) Membership in the General Assembly does not make person ineli-
gible to hold office on Board of Education. 2) Failure of election officials to mail absentee ballot at least nine
days prior to election does not affect validity of ballot unless returned too late to be counted.
October 21, 1955
Honorable C. C. Perkins Receipt is hereby acknowledged of your telegram requesting my opmwn on
the question as to whether you, as a member of the General Assembly, would be eligible to run in a special election to fill a vacancy in the County Board of Education, and second, information as to how late absentee ballots may be mailed out in special elections.
Firstly, as to your eligibility to run for the County Board, the Constitution, Article III, Section IV, Paragraph VI (Code Ann., 2-1606) provides in part:
"No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or other of them except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; .."

297

The Code, 89-103, provides:

''No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment."

From an inspection of the above, it would appear that no person can hold more than one county office, nor can any person holding a State office be eligible for membership in the General Assembly. Therefore, if membership on the County School Board constitutes State office, you could not be elected thereto without resigning from the General Assembly, and on the other hand, if membership on the School Board and in the General Assembly are both county offices, you could not hold both.

It is clear that membership on the County Board is a County office (Stanford v. Lynch, 147 Ga. 518, 519(1)), although it is conceded that a board member is not technically a "county officer" within the meaning of the Constitution, Art. XI,

Sec. II, Par. I (Code Ann. 2-7901). See Houlihan v. Saussy, 206 Ga. 1, 5. How-

ever, this last provision has reference to a separate and independent matter, and

has no application to the instant problem.

-

' It therefore follows that there is no conflict as to Art. II, Sec. IV, Par. VI,

(Code Ann., 2-1606).

Secondly, it seems equally clear that membership in the State Legislature is a "State office", although the occupant is elected only to represent a small geographical area of the State. See 40 Words & Phrases, p. 58, Supp., p. 14.
I therefore conclude that you could legally be elected to both of the beforegoing offices. This holding is in accordance with opinions previously issued by this Department. See Op. Atty. Gen. 1948-49, p. 582, and opinion rendered on April 29, 1954, to Honorable Carl Bryant.
With regard to how late absentee ballots may be mailed out, the Code provides that members of our military forces may be registered and permitted to vote in primaries and elections up to and including the election day. Code Ann., 34-3607; 34-3611; 34-3610 (1954 Supp.)

Seperate provisions are made in the code with respect to absentee voters who

are not members of the armed forces.

The Code Ann., 34-3301, as amended (Ga. Laws 1943, p. 288; Ga. Laws 1955, p. 204; Id., p. 732) provides:

"Any voter, when required to be absent from the city or county, ward or district in which he is registered, may vote by registered mail: provided, that he or some member of his immediate family,-viz., husband or wife, father or mother, sister or brother, or son or daughter-shall give notice in writing of such intention to the registrars or the ordinary of his county, not less than 10 days nor more than 60 days prior to the primary or general election in which he may desire to participate."

It will be noted that the above section refers to "the primary or general election", but makes no reference to a special election. However, I construe this section and chapter as being applicable to special elections as well. The fact that this section specifically uses the word "prim;:try" in context with "general election" indicates that the only distinction sought to be made was between a primary, which is not an election under Georgia law, but merely a means employed by political parties for choosing candidates in lieu of a nominating convention (Cox v. Peters, 208 Ga. 498, app. diam. 342 U. S. 936) and the actual election itself, conducted under authority of the State, which results in the election of some candidates to

298
the office. In other words, the phrase "general election" was not used in a sense as being restrictive of "special elections", but merely as contrasting with primaries, so as to convey the intention that both elections and primaries would be governed by the absentee ballot law.
Having so decided, we now turn to 34-3305, as amended (Ga. Laws 1941, p. 366; Ga. Laws 1955, pp. 204, 206) which provides in part:
"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, and make out the certificate and coupon attached, as hereinafter provided, and forward same to the applicant at least 9 days prior to the date of holding said election, by mail, general delivery, and shall also enclose in said letter:
"(a) an envelope containing the folded ballot, sealed and marked 'ballot within'."
* * * *
However, it is questionable as to whether or not the above section should be construed so as to prevent the registrars or other officials from mailing out the b~llots on a day less than nine days prior to the election, particularly where the failure to mail within the legal time was due to no fault of the prospective voter.
In Robinson et al v. Sate of Georgia and Camden County School District, 82 Ga. App. 584, 588 (1), it was said:
"... all provisions of the election laws are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election they should be held directory only, in support of the result, unless of a character to obstruct the free and intelligent casting of the vote, or the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.' Hastings v. Wilson, 181 Ga. 305, 307 (182 S. E. 375) ... .''
See also State of Georgia et al v. Carswell et al., 78 Ga. App. 84, 88 (2).
However, nothing I have said before should be construed as holding that election officials are not obligated to follow the law as to the time for mailing of absentee ballots, but that only where due to some unavoidable occurrence, it was impossible to mail the ballots at least 9 days prior to the election, the validity of any such absentee ballot probably would not be affected unless it was returned too late to be counted.
ELECTIONS-Ballots-Absentee Ballots (Unofficial) The Ordinary must furnish sufficient postage for absentee ballots.
September 14, 1956
Mrs. G. W. Gannon
You state that you are receiving. applications for ballots to be voted in the November General Election and that none of them are sending sufficient postage to defray the expenses thereof, and you ask that I advise you if you must send the ballots when they do not send sufficient postage. You further state that some of these applications are from registered voters of your County who are now in the Army or Navy.

299
Those registered voters in your County who are in the military service of the United States and their spouses are controlled by the provisions of Section 34-3620 of the 1955 Dumulative Pocket Part of the 1933 Annotated Code of Georgia which is codified from the Acts of 1953, pages 244, 251; 1953 Nov. Sess., pages 335, 337, which provides:
"All expenses in connection with the mailing of registration cards and ballots to members of the military, as provided in this chapter, shall be borne by the counties. In every case where the use of air mail will facilitate voting by such members of the military the official administering this chapter shall use such air mail."
The Acts of 1956, page 697, amends the Act providing for absentee voting by members of the military, their spouses and dependents, and provides:
"This Act shall also apply to the spouse and dependents of any member of the military, as defined herein, and the tax collectors and the tax commissioners and the registrars of the several counties are hereby authorized and directed to make provisions for the registration and voting of such spouses and dependents, the same as for members of the military, and are authorized to vary the literal language of the form of the registration card provided for herein, and to make whatever other modifications are necessary in order to carry out the intent of this paragraph, so that such spouses and dependents will also be able to register and vote under the terms of this Act."
The term "military" as used in the Act in question means enlisted and commissioned members, male and female, of the Army of the United States, the United States Air Force, 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.
All other persons desiring to vote by mail not coming within the above must do so under the regular provisions of law for voting by mail as set out in Chapter 34-33 of the 1955 Cumulative Pocket Part of the 1933 Code of Georgia.
Section 34-3301, as amended by the Acts of 1956, page 682, provides:
"34-3301. Any voter, when required to be absent from the city or county, ward or district in which he is registered, or who, because of physical disability will be unable to vote in person, may vote by mail; provided that he or some member of his family,-viz., husband or wife, father or mother, sister or brother, or son or daughter-shall give notice in writing of such intention to the registrars or the ordinary of his county, not less than ten (10) days nor more than sixty (60) days prior to the primary or election in which he may desire to participate."
Section 34-3302, as amended by the Acts of 1956, page 683, provides: "34-3302. Said voter shall by mail forward to the registrars of the
county of his residence a letter of application for a ballot. If the voter is making application for a ballot because of physical disability, there shall also be included a certified statement from a licensed physician, to the effect that such voter will be unable to vote in person because of said physical disability."
Section 34-3302, prior to the 1956 Act, contained the following language: "... and shall enclose therewith postage, or the correct amount in
legal tender, necessary for the return to him of a blank ballot, and full instructions as to making of the said ballot and its proper return to the said registrars ."

300
The 1956 Act, above cited, by repealing the old Section 34-3302 and enacting a new Section, eliminated the above cited language relating to postage.
By the elimination of the requirement that the applicant forward sufficient postage with his request, the General Assembly removed the statutory authority to require the applicant to forward with his application for a ballot sufficient postage for the return of the ballot. Therefore, it must be assumed that the General Assembly intended that the Counties, as a part of the expense of elections, should forward absentee ballots to the voter upon the same basis as those afforded persons under the military statutes above referred to, and not require a person, who, due to physical disability or necessary absence from his voting precinct on election day, to pay for the sending to him of a ballot in order to express his choice in an election in this State.
ELECTIONS-Ballots-Absentee Voting (Unofficial) Absentee voting law construed as to mailing of ballots.
April 12, 1955
Honorable B. H. Ralston You state that you notice a discrepancy in Code Sections 34-3303 and 34-3305,
relating to absentee voting ballots. You will note that the caption of Senate Bill 19, approved February 21, 1955,
states the purpose of the Act to be: "... which Chapter, as amended, relates to voting by mail by persons
other than military personnel, so as to delete thereform the requirement that the application for ballot, mailing of a ballot by the registrars and return of the marked ballot by the voter, be sent by registered mail, so that said mailing may be done by ordinary mail rather than registered mail ..." Section 34-3303 relates to the applicant receiving from the registrars the letter containing the ballot. Section 34-3305 relates to the duty of the registrar in receiving an application and sending the ballot, and you will note that in Section 5 of the 1955 Act the words "registered mail" are specifically stricken from Section 34-3305. Considering the Act as a whole, the intention of the General Assembly can clearly be understood to mean tha:t absentee ballots, other than those to be used by military personnel, shall be sent and received by ordinary mail and not registered mail.
ELECTIONS-Ballots-Marking (Unofficial) An erroneous marked ballot shall not void the entire ballot, but only so
much as has been erroneously marked.
July 25, 1956
Mr. F. A. Kenney I am pleased to acknowledge your letter asking that I advise you if a ballot
which is not filled in entirely can be counted. You state that the question has been brought up that a ballot is void unless a candidate for each office is voted upon.

301
Section 34-1303 of the 1955 Cumulative Pocket Part of the 1933 Ga. Code Ann., provides:
"14. Effect of error in marking ballot.-Any error made by an elector in the marking of his ballot at either a general election or at a primary election of a political party, shall not void the entire ballot, but shall void only so much of said ballot as has been erroneously marked. So much of imy ballot as has been erroneously marked, which is properly marked, shall be counted and tabulated by the managers, but so much of the ballot as has been erroneously marked shall not be tabulated and counted by the managers, but a partial error shall not result in the voiding of the entire ballot." The above cited Section is clear in providing that any erroneously marked ballot shall not void the entire ballot, but would void only so much of the ballot as had been erroneously marked, and that part of the ballot which had been properly marked shall be counted and tabulated by the managers. Where a person, not through error, but of his own choice, desires to vote for some candidates on the ballot, and not for others, and so expresses this desire on the ballot by his marks, his choice must be counted and the ballot not thrown out. A voter may strike out any portion of a printed ballot and write in any name that he so desires and such write-in name must be counted.
ELECTIONS-Ballots-Sample Ballots (Unofficial) Discusses law relating to sample ballots and diagram of ballots.
August 23, 1956
Honorable J. E. Chapman, Jr. I am pleased to reply to your letter stating that Muscogee County is this
year holding its first primary and election using voting machines, under the authority of Georgia Laws 1949, pages 981-998.
You state that under the provisions of this Act, the question has arisen as to whether or not a newspaper can publish (a) a "sample ballot", and (b) whether or not the Democratic Executive Committee can cause such sample ballots to be printed and distributed among the electors for their aid and information.
You take cognizance of Code Section 34-1907.1, which prohibits any person, firm or corporation to print, have, or possess a ballot or ballots of 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.
You also point out that under the Acts of 1949, at page 990, Section 15, subsections (b) and (c), it would appear that the "diagrams" or "sample ballots", copies of which are to be posted within the voting or polling place, may be posted, published, advertised, or distributed among the electors in such manner as the officials may deem desirable.
You request that I advise you if under the quoted Code and legislative provisions, can the Democratic Executive Committee, and subsequently, the Ordinary, publish these diagrams or sample ballots in the newspapers and cause copies of such diagrams or such ballots to be posted, published, advertised, or distributed among the electors as the party officials or the Ordinary may deem desirable.

302
Section 15 of the Acts of 1949, page 990, provides:
"... that the officer or officers charged with the duty of providing ballots and ballot labels for any voting or polling-place shall provide therefor the following:
"(b) The diagrams or sample ballots, of suitable size, representing such part of the face of such voting machine as will be il). use in the election, and accompanied by illustrated directions for voting on the machine. Such diagram shall be posted prominently outside the enclosed space within the voting or polling-place.
"(c) Prior to any election, the officer or officers aforementioned may cause copies of diagrams, explaining machine voting to be posted, published, advertised or distributed among the electors in such manner as they deem desirable." Section 23 of the 1949 Acts, at page 994, provides:
"That the list of offices and candidates, and the statements of questions on the voting machine shall be deemed an 'official ballot'. And that as used in this Act:
"(1) The word 'ballot-labels' shall mean the card, paper or material, containing names of offices and candidates and statements of questions to be voted on;
"(2) The word 'diagram' shall mean an illustration of the official ballot, when placed upon the machine, showing the names of the parties, offices, and candidates, and statements of the questions, in their proper places, together with the voting devices thereof, and shall be considered a specimen ballot; "(3) The word 'question' shall mean a brief statement of such constitutional amendment or other proposition as shall be submitted to a popular vote at any election ...".
I assume that in your letter where you refer to the use of sample ballots in connection with the word "diagram" you simply mean a diagram, or a facsimile of the diagram, and that the sample ballot is merely the legal term applied in the statute for the word diagram.
It has consistently been my opinion that it was the intent of the General Assembly in enacting Section 34-1907.1 of the 1933 Annotated Code of Georgia to prevent any person, firm or corporation, 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 act of voting, from having or possessing an official ballot or ballots or any likeness of the same that could be distributed among the electorate and voted by being placed in the ballot box when such ballots had not been provided. by the election officials under the procedure as provided by law.
It also has been my opinion that, the General Assembly in the enactment of Code Section 34-1907.1 did not intend to deprive the electorate of this State from being thoroughly familiar with the offices and the candidates offering themselves at an election, nor to deprive the newspapers of this State from disseminating information to the electorate through the use of a diagram or the compilation of offices to be filled and the names of candidates thereunder in such form as they may deem advisable and to inform the electorate as to the general makeup of the ballot to be used in an election. My views in this connection are firmly bottomed upon the proposition that a part of a page of a newspaper showing the names and offices that will be on a ballot without the words "official ballot" being printed on the face thereof, could not be used as an official ballot

303
t.o be dropped in the ballot box at an election precinct. It is to be presumed that the election managers at election precincts in this State are far too honest and intelligent to accept a part of a page of a newspaper as an official ballot.
It is my firm opinion that Section 34-1907.1 only prevents the unauthorized possession or use of an official ballot or one so like it that it could not be ascertained to be other than a genuine official ballot.
The Act of 1949, above cited, relating to the use of voting machines specifically authorizes the use of a diagram of the front of a voting machine to inform the electorate as to how to manipulate the various voting handles attached to the front of the machine. There is no doubt in my opinion that the General Assembly intended for the electorate to be fully advised as to how the various mechanical parts of the voting machine could be manipulated by the voter in order to express his desire of voting for the candidate of his choice.
It is academic that a diagram of the front of a voting machine could not be voted as an official ballot in a ballot box in this State, and therefore, the printing of a diagram or photograph by a newspaper of the way the ballot-labels will be on a voting machine at an election would not be a violation of Code Section 34-1907.1.
It is my opinion that a County Democratic Executive Committee in a primary, or the Ordinary in elections under his jurisdiction, would be authorized to cause to be posted prominently outside the enclosed space within the voting or polling places diagrams or pictures of the front of a voting machine which has attached thereto the ballot labels showing the offices and candidates to be selected by a voter at an election, and that such officials may cause copies of such diagrams explaining machine voting to be posted, published, advertised or distributed among the electors in such manner as they may deem desirable.
It is my further opinion that a newspaper would not be violating Code Section 34-1907.1 by publishing a diagram or photograph of the front of a voting machine with the ballot labels attached thereon showing the candidates and the offices to be voted upon at an election.
ELECTIONS-Candidates-Congress of United States Procedure for candidate for Congress of the United States to pursue in
order to have his name placed upon the official ballot discussed.
June 23, 1954
Honorable Ben W. Fortson Secretary of State
I am pleased to acknowledge your letter requesting my official opinion relating to the procedure necessary for a candidate for Congress of the United States to pursue in order to have his name placed upon the official ballot at the forthcoming November 1954 General Election.
The questions you propound are: 1. Is it necessary for a candidate for the Congress of the United States desiring to run in the November 1954 General Election and properly nominated by the appropriate organization or officer of the Republican Party to accompany his notice to you of his candidacy with a petition filed by not less than five per cent of the registered voters in the particular congressional district involved where the voters in such district cast more than five per cent of their votes for the Presidential electors pledged to vote for Dwight D. Eisenhower and Richard Nixon

304
in the 1952 General Election, but where there was no nominee of the Republican Party seeking election as congressman from that district in that election?
2. Assuming that a five per cent petition would be necessary in a particular instance, would a petition have to accompany it, without naming the particular individual who is a nominee of the Republican Party reads as follows:
"We, the undersigned registered voters in the ---------------------- Congressional District hereby petition the Secretary of State, and all other appropriate officers, to place on the ballots for the election of the United States Congressman from this district at the November 1954 general election the properly certified nominee of the Republican Party"?
The statutory authorities pertinent to the question involved by you is contained in Georgia Laws 1953, Nov.-Dec. Sess., p. 336, which provides:
"All candidates for national and state offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the office for which they are candidates with the Secretary of State at least 45 days prior to the general election. . . ."
Section 34-1904 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides:
"That such candidate shall also file a petition for that purpose signed by not less than five per cent of the registered voters in that territory, or that such political party shall have cast no less than five per cent of the votes in the last general election next preceding for the election of such officer ..."
"Provided, further, that any political party or candidate desiring to have their name or names placed upon the general election ballot and subject to the requirements of this Section as to the per cent of votes cast in the last general election and as to a petition filed by five per cent of the votes, shall accompany said petition with a sworn statement to the effect that each of the names appearing in said petition were duly qualified and registered voters in the last general election ..."
The above cited authorities are crystal clear in providing that a person, not the nominee of a political party, desiring to. run in the 1954 general election as a candidate for Congress of the United States must file a petition with the Secretary of State of Georgia signed by five per cent of the voters in the 1952 general election.
It is also clear that if a political party did not have a candidate for Congress of the United States in the 1952 general election, who received not less than five per cent of the votes cast in said election, its nominee for Congress certified to the Secretary of State of Georgia for the 1954 general election must be accompanied
by a petition signed by five per cent of the voters in the 1952 general election.
The fact thatthere may have been five or more per cent of the votes cast in the Congressional District in 1952 for presidential electors will not authorize any organization or officer of the Republican party to have the name of a candidate placed upon the official ballot in the 1954 general election without the said five per cent petition accompanying their certification.
Your particular attention is called to the language used in Section 24-1904 which reads:
"That no such five per cent petition is necessary where the 'political party' shall have cast no less than five per cent of the votes in the last general election preceding for the election of such officer." (Emphasis supplied.)

305

The words "such officer" used in describing the office in question simply

means that the votes must have been cast for a nominee for such office. The

office in question being for Congress of the United States, it could by no stretch

of the imagination be construed to mean votes received by presidential electors.

In answer to your second question, it is my firm opinion that under the above

cited authorities it was the intent of the General Assembly to require that a peti-

tion signed by the required number of the registered voters must be made in the

name of the person seeking to have his name placed upon the ballot, and where

a political party had nominated and designated a particular person as its nominee.

There is no authority for a political party to present to the Secretary of State

a petition on behalf of no named candidate, such as set forth in the second question

propounded by you.

_

If a political party nominates a person for the office of Congressman of the

United States to be elected in the November 1954 general election, and there has

not been the required number of votes cast in the last general election in 1952

for a Congressman in the district in question, it will be necessary for such nom-

inee's name to be accompanied by the petition as prescribed in Section 34-1904 on

behalf of such named nominee.

ELECTIONS-Candidates-Presidential Electors In listing the presidential electors on the ballot, it has been customary
to list the name of the candidate for electors below the name of the candi, dates for President and Vice-President.

July 3, 1956

Honorable Ben W. Fortson, Jr. Secrtary of State, State of Georgia

I am pleased to acknowledge your request for my opmwn as to how Presi-

dential electors should be placed on the ballot for the forthcoming general election.

You specifically ask: "How these electors will be listed-that is, whether

Presidential and Vice Presidential candidates should be listed above the party

Presidential Electors, or should only the Electors for a party be listed under the

party name?", and "does the five per cent section apply to Presidential Elector

candidates the same as for other national and state officers?" The 'answer~ to your questions are found in Section 34-1904 of the 1955 Cumu-

lative Pocket Part of the 1933 Annotated Code of Georgia, which the pertinent

parts thereof provide:

, ,

"... in case of election for President and Vice President of the United States, the names of the candidates for such offices may be added with the electors and party designation ... Provided, further, however, that at any general election at which electors of President and Vice President of the United States are to be elected, there shall be printed on the official ballot, in a separate column, the names of all candidates for State, national, and other offices to be filled at said election, except candidates for President and Vice President and electors of President and Vice President, who have qualified ... under the official name of the political party nominating such candidates, which official name shall be printed directly above said column ... and there shall also be printed on said official ballot, in separate column, the names of all candidates for electors of President and Vice President of the United States notice of whose candidacy has

806
been filed with the Secretary of State by the proper authorities of the political party nominating them 20 days before such general election, together with the names of the candidates for President and Vice President nominated by the political party nominating such candidates for electors, each such list of nominees for electors and for President and Vice President to be printed in a separate column under the official name of the political party nominating them, which official name shall be printed directly above each such separate column; Provided, further, that the requirements of this section as to the percentage of votes cast in the last general election and as to a petition signed by five per cent. of the voters shall not apply to candidates for electors of President and Vice President of the United States, but no person shall be entitled to have his name entered on the ballot as a candidate for such elector except as the nominee of a political party which has nominated candidates for President and Vice President ... Provided, further, that the party authorities certifying the names of candidates for electors of President and Vice President shall accompany such certification with an affidavit signed by each candidate for elector, stating that such candidate is not now and never has been a member of the Communist Party, and does not believe in or sympathize with the principles of such Communist Party." (Emphasis supplied.)
The above cited authority clearly provides that Presidential and Vice Presidential electors, together with the candidates for President and Vice President should be listed in a separate column from the State, national, and other candidates on the ballot under the official party name nominating them. Such electors and candidates for President and Vice President should be placed in a separate column on the ballot for each official political party.
The statute provides that the candidates for electors of President and Vice President, together with the names of the candidates for President and Vice President, shall be placed in the separate column directly under the official party name, but does not specifically provide as to whether the electors shall be above or below the Presidential and Vice Presidential candidates' names. However, it has been the general custom in this State to list the names of the candidates for President and Vice President in first place below the official party name and the electors placed below the names of the Presidential and Vice Presidential candi~ dates' names. Therefore, you would be following precedent and the statute by placing the names of the President and Vice President candidates first under the official party name and the candidates for electors immediately following the Presidential and Vice Presidential candidates' names.
The statute also clearly provides that the five per cent. provision of the Section does not apply to Presidential and Vice Presidential electors, but your attention is called to the provision thereof which specifically provides that no person shall be entitled to have his name on the ballot as a candidate for such elector except as the nominee of a political party which has nominated candidates for President and Vice President.

307
ELECTIONS-Candidates-Qualifications of County Officers (Unofficial) A candidate for county office must qualify with the Ordinary at least
fifteen days before the election.
October 16, 1956
Honorable J. W. Dooly You ask that I advise you as to the last day a person may qualify with you
as ordinary, for a county office. Section 34-1904 of the 1933 Ann. Code of Georgia, 1955 Cum. Pocket Part, is
the controlling statute, and provides: "All candidates for ... county offices, either by themselves or by the
proper authorities of the party nominating them, shall file notice of their candidacy with the Ordinary of the County at least 15 days before the regular election...." You will note that the above quoted statute specifically provides that the candidate for a county office must file his notice with the ordinary at least 15 days before the regular election. In order to determine the correct closing date for such candidates, you do not count the election day. Beginning with the day before election, you count back fifteen days.
ELECTIONS-Candidates-Qualifications of County School Superintendent (Unofficial) A candidate for County School Superintendent does not have to file his certificate of qualifications prior to a primary.
February 16, 1956
Mrs. T. G. Kent I am pleased to acknowledge your request as to when a person seeking the
office of county superintendent of schools must file his certificate with the State Board of Education.
Ga. Code Ann., 32-1004 provides as follows: "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 experience 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." The case of Cox v. Peters, 208 Ga. 498 held:
"A party primary held under the provisoins of Code 34-3212 merely chooses candidates or nominees of a political party to be submitted to the

308
entire electorate in the general election, and is not an 'election' within the meaning of that term as used in the statutory and constitutional provisions of Georgia conferring upon its citizens the right to vote in an election; .." On the basis of the above authority, it is my opinion that the above Code Section has reference to the regular election in which county officers are elected and not primaries. However, Ga. Code Ann., 34-3209 provides as follows:
"The party authorities shall, in all matters not provided for in this Chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities." Under this Code Section, a county Democratic Executive Committee could set up such rules and regulations to effectuate the intent and purposes of Section 34-3209 and require a candidate to file the certificate before allowing such person to run in the primary.
ELECTIONS-Candidates-Qualifications of Independent Candidates (Unotficial) Discusses rules governing the signing of a petition to qualify the name of a candidate to be placed on the ballot.
February 29, 1956
Mr. Harry P. Anestos
I am pleased to acknowledge your letter relative to Section 34-1904, Code of
Georgia, 1933 amended, relating to the filing of a petition by not less than five per cent (5%) of the registered voters by an independent candidate with the Secretary of State, in which you ask the following questions.
l. If a registered voter signs the petition for such candidacy for the United States Congress, may the voter then participate in Municipal and County Democratic Primaries thereafter?
2. Should the signers of the petition allow their names to be publicized before the Democratic Primary, will they then be affected regarding their participation in the Democratic Primaries?
3. Does the petition have to be dated at time of signature? 4. With respect to Section 34-1904, may the five per cent (5o/a) of registered voters be secured from any one county in the whole Congressional District since the law provides that the petition must be signed by five per cent (5%) of the registered voters in that territory? 5. May the sworn statement to accompany the petition be to the "best of my knowledge and belief" that each of the names appearing in the petition were duly qualified and registered voters at the last General Election. Answering Question No. 1, it is my view that a registered voter signs such petition in order to qualify the candidate and not himself, therefore, your question is answered in the negative. Answering Question No. 2, it is a political party matter and not a legal question. Answering Question No. 3, there is no provision in Section 34-1904 requiring the petitioner to date his signature.

309
Answering Question No. 4, Section 34-1904 provides that such petition be signed by not less than five per cent (5%) of the registered voters in that territory. "That territory," as applied to a Congressional District, would mean the Congressional District.
Answering Question No. 5, Section 34-1904 provides that the petition shall be accompanied by a sworn statement to the effect that each of the names appearing on the petition were duly qualified and registered voters at the last General Election. It is my view that this means a positive oath that the stated facts are true and a sworn statement to the effect "to the best of my knowledge and belief" would not meet the requirements of this statute.
ELECTIONS-Candidates-Qualifications of Independent Candidates (Unofficial) Discusses qualifications of, and voting for, independent candidates for county office.
October 18, 1956
Honorable T. J. Swint, Jr. You ask that I give you my unofficial views on the following questions relative
to independent candidates for county offices: 1. What is necessary for them to do to qualify with the Ordinary in
order to authorize him to place their names on the official ballot? 2. Can they qualify as independent candidates and not as members
of an independent or other party? 3. There being no space on the ballot for independent candidates, in
what space would their names be placed on the ballot? 4. If more than one independent candidate for the same office quali-
fies where shall that name be placed on the ballot, and how shall he be voted for?
5. If all such independent candidates' names are placed in one column, will the voter be required to vote for all such names by placing a cross mark at the top of that column or may the voter vote for the individual candidates?
6. Can the voter vote for the respective office of one or more of such independent candidates and at the same time vote for all of the nominees of the Democratic party except the candidate for the office for which he votes for the independent candidates without voiding his ballot. If so, in what manner?
7. If a voter attempts to vote for all of the Democratic nominees without striking any one of them and one or more of the independent candidates, will his ballot be void as to the Democratic nominees, independent candidates, or both? The answer to Question 1: Such candidates would have to file a notice of their candidacy with the Ordinary of the County at least fifteen days prior to the general election (October 21, 1956, during the usual office hours). The answer to Question 2: In a general election a qualified elector has a right to have his name placed upon the official ballot in the general election by following the procedure outlined in the answer to Question 1, regardless of whether he be the candidate of a party or an individual candidate, commonly referred to as an "independent."

310
The answer to Question 3: There is a space provided on the official ballot directly in the center thereof which is to be used for independent candidates, or candidates of a party by such name, if there be any. The use of the words "Independent Party" on the form of the ballot forwarded to you by the Secretary of State is merely "descriptive." If there are no candidates of a party qualified, the word "independent" could be left on your ballot which is to be printed, and each candidate and the office to which he has qualified should be listed at the bracket for each candidate in order that the voter may mark any one he may desire. If there would be a proper qualification for a party, then you could draw a line across space below the independent party and you could put the word "independent" at the top and then list each individual candidate with a place to be marked, and not all the candidates as a whole.
The answer to Question 4: As stated above, each independent candidate and the office which he seeks should be listed separately, with a bracket on the left side so that a voter can vote for each candidate, independent of the other, if there be more than one independent individual candidate. They cannot be voted as a whole.
The answer to Question 5: This is covered in the answers above, but in order that there be no misunderstanding: if there be more than one independent candidate, there must be a bracket provided opposite each candidate's name in order that he may be voted upon separately. If there be more than one independent individual candidate, they can not be listed in a group.
The answer to Question 6: A voter may vote a straight party ticket by placing an "X" mark in the bracket provided at the top of the party ticket and then go down the line and strike out any candidate listed in the party column for whom he does not desire to vote, and then vote for any other candidate printed on the ballot; or he may write in the name of any candidate for whom he desires to cast his vote, and such votes are valid. If a person should vote a straight party ticket and not strike the name of any party candidate, and, mark the name of another candidate in another place on the ballot, then the vote for the particular candidate would be void, but the ballot would not be.
The answer to Question 7 is contained in the answer to Question 6.
ELECTIONS-Candidates-Qualification by Petition
A candidate for a party where the five per cent of the votes for the office were not cast for the party at the last election, must file a petition, signed by five per cent of the registered voters, with the Secretary of State in order to be placed upon the ballot. This requirement may not be satisfied by the indiscriminate sending of postcards to the Secretary of State by voters.
April 3, 1956
Honorable Ben W. Fortson, Jr. Secretary of State
You advise me that you have been requested by Mr. William Schloth of Columbus, Georgia, to inform him whether a person can petition by post cards to become a candidate for the office of United States Representative from a Congressional District for the Republican Party wherein said party did not cast five per cent of the votes for said office in the last general election. You request that I give you an official opinion on this matter.
The question presented is controlled by the provision of Section 34-1904 of the

311
1933 Ann. Code of Georgia, 1955 Cumulative Pocket Part, and the pertinent provisions thereof are:
"Provided, however, that it shall not be the duty of said officers to place the names of any candidates on said official ballots, unless notice of their candidacy shall be given in the following manner, to-wit: All candidates for national and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least 30 days prior to the regular election, ... Provided, further, that such candidate shall also file a petition for that purpose signed by not less than five per cent of the registered voters in that territory or that such political party shall have cast no less than five per cent of the votes in the last general election next preceding for the election of such officer; ... Provided, further, that any political party or candidate desiring to have a name or names placed upon the general election ballot and subject to the requirements of this section as to the percentage of votes cast in the last general election and as to a petition signed by five per cent of the voters, shall accompany said petition with a sworn statement to the effect that each of the names appearing in said petition were duly qualified and registered voters at the last general election: ."
A careful analysis of the statute clearly shows that it was the intent of the General Assembly to require a petition to be circulated in the territory involved and signatures of duly qualified and registered voters of the last general election obtained on said petition and when the petition contained five per cent of the registered voters of the territory or more, that it would be filed by the candidate after attaching his oath that each of the signers of the petition were duly qualified and registered voters at the last general election, and this petition to be filed at the same time that the application of the candidate to have his name placed upon the general election ballot is filed with the Secretary of State. The indiscriminate signing and mailing of post cards by individual voters to the Secretary of State would not be a compliance with the statute.
A candidate must attach a certificate under oath to a prepared petition which has already been signed by five per cent of the voters of the territory in question that each of the names appearing on said petition are duly qualified and registered voters at the last general election.
Under this procedure the candidate takes the petition and verifies it against the registered voters lists of the territory involved as to whether or not the names contained thereon were actual qualified voters at the last general election.
It is my firm opinion that the indiscriminate receipt by you of postal cards requesting that a candidate's name be placed upon the general election ballot would not, authorize you to receive them as a petition under the provisions of Section 34-1904 of the 1933 Ann. Code of Georgia, 1955 Cumulative Pocket Part.
ELECTIONS-Candidates-Qualification-Payment of Taxes (Unofficial) The only County or State office in which the payment of taxes is a neces-
sary qualification in membership in the General Assembly.
November 2, 1955 Honorable W. L. Dallis
This will acknowledge receipt of your letter of October 24, 1955, in which you ask the question, "Can a person run for County or State office if he or she is behind with payment of taxes?".

312

As to State officers, the only provisiOn in our Constitution that relates to your question is found in Article III, Section IV, Paragraph VI (Code Section 2-1606), which provides, in part: "... nor any defaulter for public money or for any legal taxes required of him shall have a seat in either house ...". This provision deals with members of the General Assembly.

As to County officers, Article XI, Section II, Paragraph I (Code Section 2-7901), provides:

"2-7901. The county officers shall be elected by the qualified voters of their respective counties or districts, and shall hold their office for four years. They shall be removed upon conviction for malpractice in office; and no person shall be eligible for any of the offices referred to in this paragraph unless he shall have been a resident of the county for two years and is a qualified voter."

In Marshal v. Walker, 183 Ga. 44, the Supreme Court held that this provision of the Constitution, as amended, refers only to such county offices as were in existence at the time of its adoption and does not apply to offices thereafter created by statute.

Article VI, Section XVII, Paragraph I (Code Section 2-5201), provides:

"2-5201. The General Assembly shall have power to provide for the

creation of county commissioners in such counties as may require them,

and to define their duties."



From the above, I am of the opinion that the payment of taxes is not required of any candidate for a State office except that members of the General Assembly may not be seated if in default for taxes. Whether candidates for County offices are eligible to run where they are behind with payment of taxes depends upon the office and the legislative Acts relating to that office or officer.

ELECTIONS-Holding on a Public Holiday (Unofficial) A city may hold an election on January first, if there is a specific provision
in its charter to that effect.
November 26, 1954
Honorable Knox Bynum
You inquire relative to a city election being held on a legal holiday. The question propounded by you is one which is purely local in nature and one which the State Department of Law is not authorized to give any official opmwn. However, as a matter of information, your attention is called to the case of Hamer v. Sears et al, 81 Ga. 288. You will note that the Supreme Court pointed out in this decision that the 4th of July had been made a holiday by a statutory provision and that for some purposes certain things could not be done, such as the noting and protesting of notes and commercial papers, and that these things were specially mentioned in the statute, they pointed out however that nowhere were the courts prohibited from meeting and transacting business on that day. Your attention is also called to the fact that Section 14-1808, which enumerates the various public holidays to be observed in this State contains the language "shall be treated and considered for all purposes of this Title." The title under which this statute is codified is that pertaining to bills and notes. It would be my personal and unofficial view that if .the charter of the town

313
or city in question contains a specific provision that the city election was to be held on the first day of January each year, that the election should be held on that date regardless as to whether it fell on the first day of January.
ELECTIONS-Justice of the Peace (Unofficial) Discusses election of Justices of the Peace.
September 14, 1956
Honorable P. T. Hipp I am pleased to acknowledge your letter and to advise that Sections 34-3301
and 34-3302 of the Code as amended by the Acts of 1956, page 682, provides that when any voter, when required to be absent from the city or county, ward or district, in which he is registered, or who, because of physical disability will be unable to vote in person, may vote by mail under conditions set forth in said Code Sections. You will note that in Section 34-3302, if the voter is making application for a ballot because of physical disability, there shall also be included a certified statement from a licensed physician, to the effect that such voter will be unable to vote in person because of said physical disability.
The above cited statutory provisions authorize the voting of an absentee ballot in a Justice of the Peace election. A Justice of the Peace election is held under the laws governing the election of members of the General Assembly when not otherwise specifically provided, and is a general election.
There is no entrance fee for qualifying in a general election and therefore no fees for qualifying could be assessed in Justice of the Peace and Constable elections. Any Justice of the Peace or Constable who qualifies with the Ordinary 15 days before the election should be placed upon the ballot to be used in the Justice of the Peace election which is held on the first Saturday in December quadrennially. [Editor's Note: Changed by Ga. Laws, 1957, p. 117.] The Appellate Courts have not passed directly upon the question of the Justice of the Peace and Constable having to qualify with the Secretary of State, due to the status of the offices; however, as pointed out in an opinion of the Attorney General (Opinions of Attorney General, 1939-1941, p. 204):
"I understand from the office of Secretary of State that candidates for the offices of Justice of the Peace and Constable have never given notice of their candidacies to the Secretary of State, but have established an unbroken custom of giving notice of their candidacy to the Ordinary."
ELECTIONS-Justice of Peace 1. A majority of the votes cast in an election for Justice of Peace is
necessary to elect and, in the event of a tie vote, a special election is necessary.
2. Ballots in an election speak for themselves and intention of the voter must come from the ballots.
September 10, 1954
Honorable Ben W. Fortson, Jr. Secretary of State
I am pleased to acknowledge your request for an opinion relative to special election returns for Justice of the Peace in the 1285 District, G. M., Columbia County, which was held on August 21, 1954.

314
You state that the returns were forwarded to you by the Clerk of the Superior Court, and disclose that there was a tie vote between R. T. Hardy and W. B. Dorn. You further state that there was a letter accompanying the returns by the Clerk of the Superior Court, in which he stated that Mr. Hardy and Mr. Dorn both received 14 votes each, and that Mr. Dorn is the Notary Public Ex-officio Justice of the Peace in the district in question and was not in the contest, but that 14 people voted for him under the impression that Mr. Hardy was running against Mr. Dorn.
There is no provision in the law for any person or official to change the results of an election by letter, interview of persons voting, or otherwise. The ballots speak for themselves and the intention of the voters must come from the ballots.
It is my opinion that the election in question, which resulted in a tie vote, did not elect either Mr. Hardy or Mr. Dorn and that another special election should be held to fill the vacancy in said office. It is my further opinion that you are not authorized to issue a commission to any person as a Justice of the Peace, except those receiving, as shown by the returns forwarded to you, a majority of the votes cast in an election for Justice of the Peace.
ELECTIONS-Managers (Unofficial) An election must be supervised by three managers, one of whom must be
an Ordinary or Justice of the Peace.
November 17, 1954
Honorable Nesbit Baker, J. P. Your attention is called to Section 34-1201 of the 1933 Annotated Code of
Georgia, which provides what persons are qualified to serve as managers of elections for members of the General Assembly.
There has been no amendment to this statutory provision. You will note that there must be three managers and one either must be an ordinary or a justice of the peace, and that if by 10 o'clock A. M. on the day of election, there is neither of these officers present to hold the election, or there is one and he refused, three freeholders may superintend the election and perform the duties as provided therein.
ELECTIONS-Managers (Unofficial) The Ordinary is authorized to turn the ballot boxes over only to
election managers.
October 16, 1956
Honorable Preston Rawlins You ask that I give you an official opinion as to whom the ordinary of the
county should deliver the ballot boxes to be used in the general election. I am pleased to call your atention to the provision of Section 34-1201 of the
1933 Ann. Code of Georgia, which provides what persons are qualified to hold elections for members of the General Assembly:
"Managers of elections for members of the General Assembly.-The persons qualified to hold elections for members of the General Assembly are ordinaries, justices of the peace, and freeholders. There must be three

315
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." You will also note that Code Section 34-1202 of the Code provides that each of the managers shall subscribe to the oath contained in this Section, which is:
"All and each of us do swear that we will faithfully superintend this day's election; that we are ordinaries, justices of the peace, or freeholders (as the case may be) of this county; that we will make a just and true return thereof, and not knowingly permit any one to vote unless we believe he is entitled to do so according to the laws of this State, nor knowingly prohibit any one from voting who is so entitled by law, and will not divulge for whom any vote was cast, unless called on under the law to do so. So help me God." The above citations specifically provide who shall be the managers of a general election. The ordinary would not be authorized to turn the ballot boxes over to any other than those named by law.
ELECTIONS-Military Personnel-Registration and Voting (Unofficial) Discusses laws relating to the registration and voting of military
personnel.
October 31, 1956
Mrs. H. Buckel Pursuant to your request for information relative to a person in the military
service of the United States registering and voting in this State, your attention is called to the provisions of Chapter 34-36 of the 1955 Cumulative Pocket Part of the 1933 Code of Georgia, wherein is codified the Act known as the "Participation in Elections by Men and Women in the Military Service."
Section 34-3601 of this Chapter provides: "The purpose of this Chapter 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 in liberalizing the statutes of this State and by making provision for such participation." Section 34-3604 defines the term "military" as used in the cited Chapter to mean "enlisted and commissioned members, male and female, of the Army of the United States, the United States Air Force, 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." Section 34-3605 provides:
"Registration.-The tax collectors or tax commissioners or registrars of the several counties shall provide for the military a registration card in form as follows:
"I do hereby affirm that I am a citizen of the United States; that I have resided in the State of Georgia one year and in the County of------------

316

for six months immediately preceding the date of my induction into the military service of the United States; that my address at the time of my

induction in the military service was ------------------------------------ St. or R.F.D. ------------------------------------ town; that I possess the qualifications of an elector required by the Constitution of Georgia; that I am not disfranchised from voting by reason of any offense committed against the laws of Georgia; and that I am ____________ years of age and reside in ____________ Militia District.

Dated this _____ day of _ _______, 19....."

-----------------------------------------------"

Signature

"The signing of the aforesaid registration card containing the re-

quired information shall be, in all respects, equivalent to complying with

all provisions of the registration laws of Georgia, and shall not require

attestation. "Any member of the military, his relative, or friend, is authorized at
any time to request from the tax collector or commissioner or registrars the aforesaid registration card and in making said request shall furnish the name and address of the military member, and upon receipt of such request it shall be the duty of the tax collector or commissioner or registrars to send the same to the member of the military; and the tax collector or commissioner or registrars shall number the said registration forms and shall keep a permanent record book in his office in which he shall record the number of the card, the name of the member of the military for whom the registration card is sought, the name and relation, if any, of the person requesting the card, and the date the card is furnished, and such other information necessary to identify said registrant; Provided, further, however, for good and sufficient cause made known to the tax collector or commissioner or registrars, he may furnish to the military voter, a duplicate registration card, noting the fact in the

book hereinbefore referred to. "The member of the military receiving and executing the aforesaid

registration card shall place the same in an envelope addressed to the

tax collector or commissioner or registrars of his county, and mail the

same. It shall not be necessary to use registered mail.

"When such registration is completed, signed and returned to the

tax collector or tax commissioner or registrars of the county it shall form

a part of the voter's registration Jist. Upon receipt by the tax collector

or commissioner or registrars of the said registration, the name of the

member of the military so registering shall be placed upon the registra-

tion list as an elector and registered voter, and shall be certified as such

by the registrars: Provided, however, the said member of the military

is.

otherwise
-

qua. lified."

You will note the underscored portion of the above Section provides that a

person in the military service may "at any time" request to be registered, and

such person shall be registered as provided in said Section.

Section 34-3607 provides that nothing contained in the present laws of Georgia

as to the time for the registrars shall complete their work and file the list of

registered voters shall in any way abridge the right of a member of the military

to be certified by the registrars at any time as a registered voter.

Section 34-3620 provides:

"All expense in connection with the mailing of registration cards and ballots to members of the military, as provided in this Chapter, shall be borne by the counties. In every case where the use of air mail will facili-

317

tate voting by such members of the military, the officials administering this Chapter shall use such air mail."

Your particular attention is also called to the Georgia Laws, 1956, page 697,

which is the last amendment to the "Participation in Elections by Men and

Women in the Military Service Act", commonly referred to as the "Soldier's Ballot

Law", which provides:



"This Act shall also apply to the spouse and dependents of any member of the military, as defined herein, and the tax collectors and the tax commissioners and the registrars of the several counties are hereby authorized and directed to make provisions for the registration and voting of such spouses and dependents, the same as for members of the military, and are authorized to vary the literal language of the form of the registration card provided for herein, and to make whatever other modifications are necessary in order to carry out the intent of this paragraph, so that such spouses and dependents will also be able to register and vote under the terms of this Act ..."

It is clear, and has been held by this Department repeatedly that men and women in the military service of the United States who are citizens of Georgia, their spouses and dependents are eligible and entitled to register and vote in any election by the people in this State at any time for the reason that the Acts above cited were passed specifically for the purpose of making an exception to the general registration laws of the State which require a person to register six months prior to the General Election.

ELECTIONS-Political Parties (Unofficial)
A political party must hold its meetings in the County Court House or the Municipal Auditorium and, if meetings are not so held, the Ordinary would be authorized to not recognize the action of such meeting, insofar as placing the nominees upon the official ballot.
October 19, 1956
Honorable Thomas E. Dawson
I am pleased to acknowledge your letter relative to the provisions of Section 34-3402 of the 1933 Annotated Code of Georgia, 1955 Cumulative Pocket Part, codified from the Acts of 1925, p. 321; 1945, p. 206, which provides:
"34-3402. Place of holding mass meetings or conventions; notice.All meetings, mass meetings, county and district conventions of any political party held in this State shall be held in the county courthouse or municipal auditorium of the county wherein held, and the day and hour of such meeting or convention shall be posted at the courthouse door 10 days prior to the date therein named for holding such meeting or convention."
It is crystal clear that this statutory provision applies to the Republican as well as to the Democratic Parties, or any other political party, by whatever name called, and if not complied with, the Ordinary would be authorized to not recognize the action of any meeting, mass meeting, or convention insofar as placing the nominees upon the official ballot. Only those names which are selected according to law should be placed upon the official ballot and those not selected according to law should not be placed upon the ballot. The determination of the question of fact is one resting within the sound judgment of the Ordinary passing upon the question~

318
ELECTIONS-Primaries (Unofficial) Candidates for the General Assembly run in the state primary, not a
county primary.
March 11, 1954
Mr. E. A. Williams You request that I adyise you upon the following question: In which primary do candidates for the House of Representatives and State Senate run, State or County primary?
An act providing for absentee voting by members of the Military Service was passed at the 1953 Jan.-Feb. Session of the General Assembly (Ga. Laws 1953, Jan.-Feb. Sess., p. 244). This act was amended at the Nov.-Dec. Session (Ga. Laws 1953, Nov.-Dec., p. 335), and Paragraphs 2 and 3 of Section 8 now read as follows:
"2. Whenever any political party shall hold primary elections for nomination of candidates for office of 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, the same shall be held on one and the same day throughout the State, which shall be on the second Wednesday in September of each year in which there is a regular general election.
"3. All candidates for nomination for office for Governor, State House officers, Members of Congress, United States Senators, Judges of the Superior Courts, Justices of the Supreme Court, Judges of the Court of Appeals, Solicitors-General and members of the General Assembly shall qualify as such candidates in accordance with the rules of the party calling the primary and within such time as may be provided by such rules, but not less than forty-five days prior to the date of the holding of such primary, except that this provision shall not apply to special primary elections to fill vacancies."
In answer to your question, you will note that the law specifically states that primary elections for nomination of candidates for certain offices, among them being members of the General Assembly, shall be held on the second Wednesday in September of each year in which there is a regular general election, and provides that such candidate must qualify for such primary at a time set by the party. There can be no question, therefore, but that persons desiring to run for the Senate or House of Representatives must do so in the State primary which is to be held in September.
ELECTIONS-Registration (Unofficial)
(1) The responsibility of closing the voter registration books in any county lies with the County Registrars and, as the date for closing the books is provided for by law, the registrars have no discretion in the matter.
(2) The Democratic Executive Committee of a county can exert no more authority with respect to the State system of voter registration than could any other private individual or group of private individuals.
July 7, 1955 Honorable R. S. Connell
By telephone you have requested my opm10n on the question as to whose responsibility it is to close the voter registration books in Jeff Davis County. You

319
state that some parties have informed you that it is the duty of the Democratic Executive Committee to confer with the County Registrars and set this date.
The Constitution, Article II, Section II, Paragraph I (Code Ann., 2-801), provides that "The General Assembly may provide, from time to time, for the registration of all electors ..."
Pursuant to this provision, the General Assembly in 1949 enacted a comprehensive act governing the registration of voters. Georgia Laws 1949, page 1204, as amended (Code Ann., Supp., Chap. 34-1).
Section 34-114 (Supp.) provides as follows:
"The registrars shall, in each year in which there is an election for Governor or members of the General Assembly, cease their operations of taking applications from persons desiring to vote in such election six months before the date of such election. During the period while the general election list is being prepared they may suspend the operation of taking applications from those desiring to vote in subsequent elections, provided the office shall be kept open at least one day and the same day in each week during this period for receiving applications, and provided this day is advertised in the official organ of the county."
It is thus seen that this section itself declares when the registration books are to be closed as to persons desiring to register to vote in the General Election.
However, a separate and distinct operation which must be kept in mind is the completion and filing of the voters' lists. Section 34-127 (Supp.) provides:
"The registrars shall proceed with their work of perfecting said list of qualified voters and shall complete the same not later than June the first. In any county in which the registrars find that one board cannot complete its work by said date, they may call upon the judge of the superior court to appoint one or more assistant boards of registrars with like duties and responsibilities, and the work shall be divided as the regular board may direct. Should the registrars be unable for any reason to complete their work by said date, then the said registrars may at any time before the 20th day of August during the year in which general elections are held make and file said list of registered and qualified voters."
Section 34-128 (Supp.) then provides that the lists will be filed with the Clerk of the Superior Court within five days after completion.
These two sections last quoted have reference to the final registration lists which are completed and made up by the Registrars after the names of all previously registered voters are purged who have become disqualified for some reason or another since their initial registration, whereas 34-114 relates to the closing of the books as to the placing on the lists of persons theretofore not registered.
It will further be seen that all three of these sections primarily relate to the General Election.
With respect to primaries, 34-129 (Supp.) declares that persons whose names are on the list for the general election shall be qualified to vote in primaries for the nomination of candidates for State, County and Federal offices.
Section 34-130 (Supp.) provides as follows:
"If any person whose name is not on said registration list, desires to . vote at any election or primary subsequent to the general State election whether in said year or in the succeeding year, he shall at least six months before the election at which he desires to vote, apply to be registered as a voter, and his application shall be processed in the same manner as the

320
applications of persons qualifying to vote in the general election. The registrars shall, six months before such election other than the general State election, cease taking applications to qualify persons to vote in such election and shall within 25 days thereafter pass upon such qualifications in the same manner as in other cases and file with the clerk of. the superior court a supplemental list showing the names of additional voters who are entitled to vote at such election subsequent to the general election. Any person whose name appears upon said list may vote at such election and at any primary to nominate candidates for offices to be filled at said election, provided that the registrars shall purge said list before filing it of the names of all persons who will not be qualified to vote at said election. All voters on said list shall have the same rights as to elections subsequent to such election as persons on the list for the general election: Provided, that at any special election the provisions of the next succeeding section shall be followed as to registration and voting."
Construing this section in context with 34-129 (Supp.), it is apparent that where a primary election is to be held, the persons qualified to vote therein may be said to constitute two classes, to-wit:
(1) Those persons whose names appeared on the registration lists for the general election held just prior to the holding of such primary, assuming they have not since become disqualified, and
(2) Those persons who have duly registered according to law subsequent to such general election and at least six months prior to the holding of such primary.
Therefore, in conclusion, it is to be noted that the question as to when the registration books are to be closed, with respect to both the general election and primaries, is prescribed by law and is not left to the discretion of county registrars or any other county official.
The only instance in which discretion is to be exercised by the Registrars with respect to the lists is as provided in 34-127, which relates to completion of the lists after they have been purged of disqualified persons. In this case, however, there is no provision authorizing the County Democratic Executive Committee to participate in completion of the lists, or in determining at what specific time (within the permissible time provided by law) the lists are to be completed and filed with the Clerk of the Court. Indeed, under the decision of the Georgia Supreme Court in Cox v. Peters, 208 Ga. 498, app. dism. 342 U. S. 936, reh. den. 343 U. S. 921, holding that party primaries are not a part of the election machinery of this State, it is doubtful whether a Democratic Executive Committee could exert any authority with respect to the State system of voter registration-at least no more than any other private individual or group of private individuals.
However, with regard to completion of the lists as referred to in 34-127 (Supp.), discussed above, I see no reason why the Registrars should not be free to confer with whomever they please for unofficial assistance and advice.
ELECTIONS-Registration (Unofficial) A person moving from one county into another must notify the registrar
of the latter county at least ten days before the election, in order to be able to vote in the latter county.
August 26, 1954
Mrs. lone P. Holt You propound the question as to the last possible date before any election that

321
a person may register, coming into a county by transfer from another county in Georgia.
This question comes within the provisions of Section 34-142 of the 1933 Annotated Code of Georgia (1951 Cumulative Pocket Part), which provides:
"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 sati,sfactory 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 ten 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."
This section was codified from the Acts of 1949, pp. 1204, 1224. You will note that the proof required in the above Code section must be in the hands of the registrars ten days before the date of the election at which the person desires to vote.
ELECTIONS-Registration (Unofficial) Law relative to time of ceasing registration of voters for primary and
general elections quoted.
November 22, 1955
Honorable G. C. Montgomery Receipt is hereby acknowledged of your letter of October 29, 1955, requesting
my opinion on the question as to when the registration of voters for primaries and other elections should cease~
First, with respect to primaries held during a year in which the general election is held and prior thereto, the Georgia Code Ann., 34-114 (1951 Supp.) provides:
"The registrars shall, in each year in which there is an election for Governor or members of the General Assembly, cease their operations of taking applications from persons desiring to vote in such election six months before the date of such election. During the period while the general election list is being prepared they may suspend the operation of taking applications from those desiring to vote in subsequent elections, provided the office shall be kept open at least one day and the same day in each week during this period for receiving applications and provided this day is advertised in the official organ of the county." Section 34-129 (1951 Supp.) provides:
"Each person whose name is on said list for the general election shall be entitled to vote in said general State election for said year, and all primaries to nominate candidates for offices to be filled at said general elections, and also at the Federal election in November of said year, and the election in November of said year, and the election for justices of the peace and constables to be held in said year, and at all primaries for the nomination of candidates for the offices to be filled at said elections and

322
at all primaries for county offices, and all other primaries and elections to be held for any purpose during said year and after the filing of said registration list or during the succeeding year: Provided, however, that such person is not found to be disqualified subsequent to the filing of the list."
Properly construed, 34-129 provides that if a person be registered at least six months prior to the general election, he is qualified to vote in any primary held prior thereto to nominate candidates to run therein, irrespective of the time intervening between the time of registration and the primary. However, as will presently be shown, the date by which the completed voters' list is required to be filed will affect this problem to some extent.
Section 34-126 (1954 Supp.) provides that the registrars shall begin preparation of the voters' list on April 20th of each year in which a general election is to be held.
Section 34-127 (1951 Supp.) provides for completion of the registered voters' list on June 1, or at the latest, by August 20th, during the year in which the general election is to be held.
Section 34-128 (1951 Supp.) provides that this list, after completion, "shall be filed" with the clerk of the Superior Court within five days after completion.
Since Section 34-219 (1951 Supp.), quoted above (which declares that any person whose name is on "said list" shall be entitled to vote in the general election and any primary held to nominate candidates therein) immediately follows 34-126, 24-127 and 34-128, and since an act should be construed as a whole (Freeman et al v. Woodmen of The World Life Ins. Co., 200 Ga. 1, 4; State Revenue Commission v. Alexander, 54 Ga. App. 295, 296), the words "said list," as used in 34~129 must be taken to refer to the list as filed with the Clerk of the Superior Court as provided in these three sections ( 34-126 through 34-128). Therefore, if in any given case a primary is held before the list is filed with the clerk of the Superior Court, 34-105 would require that the last general election list of qualified voters be used in determining who is qualified to vote therein. This section provides in part:
"... In the same manner the last general election list of qualified voters shall be used for any election occurring after said list is prepared but before the preparation of a new general election list. Nothing in this section shall be construed so as to prevent the registrars from purging said old list and the supplemental list and removing therefrom those persons not entitled to vote. . . ."
I understand that there are many counties in this State which have their primaries for county officers before the list of qualified voters is required by law ( 34-127; 34-128) to be filed with the clerk of the Superior Court, and several which hold primaries even before the registration books are required (Code Ann., 34-114) to be closed, which is six months before the general election.
If this results in a hardship to persons registering to vote for the first time during a year in which the general election is held, the remedy is for the party officials to change the date of the primary, as the Supreme Court has held that the courts are not free, in interpreting the election laws, to ignore the legislative intent plainly expressed solely because in the opinion of the judges a better method might have been adopted. Burgess et al v. Friar, 183 Ga. 386, 389.
Insofar as they are in conflict herewith, Op. Atty. Gen., 1952-53, p. 87, and the opinions relief upon therein, are hereby overruled.
Second, with respect to primaries or other elections held subsequent to the regular general election, either during that year or in a succeeding year, the Code Ann., 34-130 (1951 Supp.) provides:

323

"If any person whose name is not on said registration list, desires to

vote at any election or primary subsequent to the general State election

whether in said year or in the succeeding year, he shall at least six months

before the election at which he desires to vote, apply to be registered

as a voter, and his application shall be processed in the same manner as

the applications of persons qualifying to vote in the general election.

The registrars >)hall, six months before such election other than the

general State election, cease taking applications to qualify persons to vote

in such election and shall within 25 days thereafter pass upon such

qualifications in the same manner as in other cases and file with the

clerk of the superior court a supplemental list showing the names of

additional voters who are entitled to vote at such election subsequent to

the general election. Any person whose name appears upon said list may

vote at such election and at any primary to nominate candidates for

offices to be filled at said election, provided that the registrars shall purge

said list before filing it of the names of all persons who will not be quali-

fied to vote at said election. All voters on said list shall have the same

rights as to elections subsequent to such election as persons on the list for

the general election: Provided, that at any special election the provisions

of the next succeeding section shall be followed as to registration and

voting."

,

It will be noted that this section says that if any person desires to vote in any election or primary, he must have been registered to vote at least six months prior to the election-that is to say,-while express reference was made to the election and primary in the first part of the sentence, the condition of the right of a person to vote therein is that registration be had six months before the election itself without respect to the time the primary is held. Since a primary is not an election under Georgia law (Cox v. Peters, 208 Ga. 498, app. dism. 342 U. S. 936) the Legislature must be taken to have attached some significance to its inclusion of the word "primary" in the first part of the sentence and its exclusion in a latter part. The significance to be derived therefrom requires a similar result as was determined with respect to 34-129 (1951 Supp.), relative to primaries held prior to the general election. With respect to 34-130, however, the registrars are required to file the supplemental list within 25 days of the date of closing the books for registration, which means that where a primary is held before the time required by 34-130 (1951 Supp.) for filing of the lists, the list for the general election next preceding such election would be used. Code Ann., 34-105.
Section 34-131 (1951 Supp.) makes special provisions for special elections, and requires no interpretation.
Therefore, to summarize, a person desiring to vote in a primary who had not been previously registered, or who had been previously registered but subsequent thereto had become disqualified, would be governed by the following:

1. Where the primary is to be held during the year of the general election but prior thereto, such person could legally vote in the primary provided he was duly registered at least six months before the general election, irrespective of when the primary is held, subject to the qualification that the primary be held after the voters' list is completed and filed with the clerk of the Superior Court. Where such primary is held before such completion and filing, the last general election list shall be used.
2. Where the election and primary are held subsequent to the general election, either during that year or in a succeeding year, a person could legally vote in the primary provided he registered at least six months

324
prior to the election, irrespective of when the primary therefor is held, subject to the qualification that the primary be held after the supplemental list is filed, which is within 25 days of the closing date of registration.
ELECTIONS-Registration (Unofficial) Discusses various requirements pertaining to registration and qualifica-
tions of voters.
August 30, 1956
Hon. H. C. Hubbard You state that a special election has been called by the Ordinary of Clay
County. The Constitution of the State of Georgia, Section 2703, contains the qualifica-
tions as to the residence of persons entitled to register and vote. This Section is as follows:
"To entitle a person to register and vote at any elect,ion by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election." Under this provision of the Constitution, any person who has not resided in the State for a period of 12 months prior to the time he offers to register to vote is not eligible to register. This provision also makes it mandatory that the person desiring to register must have been a resident of the county in which he desires to register at least six months prior to the date of his registration. Section 34-142 of the Supplement to the Georgia Code provides the manner in which a registered voter may change his registration from one county to another. However, it must be borne in mind that in order for a voter to change his registration from one county to another the voter must have resided in the county to which he desires to change his registration at least six months prior thereto. This Code Section reads 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 ten 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." Code Section 34-131 of the Supplement to the Code of Georgia provides for supplemental lists of registered voters in special elections. This Section is as follows:
"Any person who has registered for a general election shall, if otherwise qualified to vote at any special election before the next general election, be listed and entitled to vote at such special election. Five days after the call of said special election, the registrars shall cease taking

325
applications from persons desiring to register and qualify to vote therein, and proceed to examine into the qualifications of the applicants in the same manner as herein provided with reference. to applicants desiring to qualify to vote in general elections. The registrars shall then prepare a supplemental list showing the names of additional voters who are entitled to vote at such special election, and any person whose name appears on said list may vote at such special election, but the registrars shall purge said list before filing it of all persons who will not be qualified to vote in the same manner as provided with reference to the list for the general election. The list so prepared and arranged alphabetically and divided according to districts and wards as in the case of general election lists shall be filed in the office of the clerk of the Superior Court within ten days after the call of said special election. It shall. be the duty of the registrars upon the call of a special 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 hereinbefore 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." The preceding Code Section 34-130 of the Supplement to the Georgia Code contains the following provision:
!'If any person whose name is not on said registration list, desires to vote at any election or primary subsequent to the general State election whether in said year or in the succeeding year, he shall at least six months before the election at which he desires to vote, apply to be registered as a voter, and his application shall be processed in the same manner as the applications of persons qualifying to vote in the general election." The general laws pertaining to voters' qualifications apply in special elections such as the one you propose to hold in Clay County on September 4, 1956.
ELECTIONS-Special (Unofficial) Election held pursuant to act of the General Assembly reqmrmg refer-
endum election to determine whether the provisions of the act shall become effective is special election and not general election.
September 16, 1955
Honorable L. L. Bennett You ask whether the election in each of two Acts passed at the 1955 Session
of the General Assembly should be considered as a special or general election. The two Acts in question are, (1) placing the sheriff, the ordinary and the
clerk on a salary basis (Ga. Laws 1955, p. 2627), and (2) consolidating the two offices of tax receiver and tax collector into the one office of tax commissioner, and placing the tax commissioner on a salary basis (Ga. Laws 1955, p. 3038).
Both of these Acts contain the same provision for a referendum election, and whatever is said as to one applies to the other. That provision states that the ordinary shall issue the call for an election for the purpose of submitting the Act to the voters of Hall County for approval or rejection, and it provides that

326
the ordinary set the date of the election, but restricts that date to a day in the fourth week of November, 1955. It appears that there is no doubt but that such an election should be considered a special election, as distinguished from a general election. Consequently, it is my view that it should be treated as such.
ELECTIONS-Qualifications of Voters (Unofficial) Law as to requirements to become a qualified voter in Georgia quoted.
July 29, 1955
Major Martin McFarland I am pleased to acknowledge your letter of July 14, 1955 relative to require-
ments of law for a person to become an elector in this State. Article II, Sections I, II and IV of the 1945 Constitution of Georgia provide: Paragraph I. Elections by ballot; registration of voters. Elections by the people shall be by ballot, and only those persons shall be allowed to vote who have been first registered in accordance with the requirements of law. Paragraph II. Who shall be an elector entitled to register and vote. Every citizen of this State who is a citizen of the United States, eighteen years old or upwards, not laboring under any of the disabilities named in this Article, and possessing the qualifications provided by it, shall be an elector and entitled to register and vote at any election by the people: Provided, that no soldier, sailor or marine in the military or naval services of the United States shall acquire the rights of an elector by reason of being stationed on duty in this State. Paragraph III. Who entitled to register and vote. To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election. Paragraph IV. Qualifications of electors. Every citizen of this State shall be entitled to registet as an elector, and to vote in all elections in said State, who is not disqualified under the provisions of Section II of Article II of this Constitution, and who possesses the qualifications prescribed in Paragraph II and III of this Section or who will possess them at the date of the election occurring next aftet his registration, and who in addition thereto comes within either of the classes provided for in the two following subdivisions of this paragraph. 1. All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government; or, 2. All persons who can correctly read in the English language any paragraph of the Constitution of the United States or of this State and correctly write the same in the English language when read to them by any one of the registrars, and all persons who solely because of physical disability are unable to comply with the above requirements but who can understand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars. Paragraph V. Appeal from decision of registrars. Any person to whom the right of registration is denied by the registrars upon the ground that he lacks the qualifications set forth in the two subdivisions

327
of Paragraph IV shall have the right to take an appeal, and any citizen may enter an appeal from the decision of the registrars allowing any person to register under said subdivisions. All appeals must be filed in writing with the registrars within ten days from the date of the decision complained of, and shall be returned by the registrars to the office of the clerk of the superior court to be tried as other appeals.
Paragraph VI. Judgment of force pending appeal. Pending an appeal and until the final decision of the case, the judgment of the registrars shall remain in full force.
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 the 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.
Paragraph I. Holder of Public funds. No person who is the holder of any public money, contrary to law, shall be eligible to any office in this State until the same is accounted for and paid into the Treasury."
In your letter you use the word "Serviceman." I assume that you have reference to any personnel being in the Armed Forces of the United States and of the National Guard of Georgia. In this connection your attention is specifically called to the provision of Paragraph II of Section I of Article II of the above cited authority which provides that "no soldier, sailor or marine in the military or naval services of the United States shall not acquire the right of an elector by reason of being stationed on duty in this state."
You specifically ask the following questions:
"a. If a serviceman lives on Dobbins AF Base what are the necessary requisites, if any, so that he may register and be entitled to vote in all general and state elections.
b. If the serviceman owns real estate in Cobb, Fulton, DeKalb or adjacent counties and performs duty at Dobbins AF Base, what requisites, if any, must he fulfill to entitle him the privileges of registering and voting in all general and state elections.
c. If the serviceman lives off the base, either in rented property or on property owned by him, in one of the counties mentioned, and performs duty at Dobbins AF Base, what requisites, if any, must he fulfill in order to register and vote in all general and state elections."
Answering question a, if a person is not within the above cited constitutional restriction of being in the military or naval service of the United States, he would be entitled to register and vote in all general and state elections if he met the qualifications set forth in Article II above cited.
Answering question b, the question of ownership of real estate would not have any bearing upon the right of a person to register and vote in all general and state elections.
Answering question c, the reply to question b applies to this question since there is no distinction between rented property and property owned by the individual.

328
Assuming that the land on which is situated Dobbins Air Force Base is federally owned, an individual residing hereon could n:ot acquire legal residence in Georgia by reason of being stationed thereon.
Your attention is called to the provisions of Paragraph V above cited which provides that if any person is denied the right of registration upon the grounds that he lacks the qualifications set forth in the above constitutional provisions he has the right of appeal to the Superior Court of the county in which he claims to be a legal resident to determine the question as to whether or not he is qualified under the Constitution and laws of this state to become an elector and entitled to vote in all general and state elections.
I understand that the above questions are predicated upon certain controversies arising at your installation from certain personnel being denied the right to register and vote. The question of a legal residence is one which must be determined in each individual instance by an analysis of all the facts an:d circumstances of the individual as to whether or not he is a legal resident of the county and state in which he proposes to become an elector, therefore, no answer can be given on such questions which would apply to a group of personnel with varied sets of facts relative to their legal residence. The proper procedure in each instance is for the person involved, if he be denied the right to register is have him to sign an appeal as provided by the Constitution in order that the question may be judicially determined. As you know, a person may maintain a great number of domiciles but he may maintain only one legal residence and the determination of the legal residence of the person is a very complex and hard to determine matter unless the individual case is studiously studied and the true intent of the person in becoming a resident of the locality is ascertained. The determination of such a question is bedrocked upon facts rather than upon the law.
I trust that the above information will be of help to you and that if any person in your command feels he is entitled to be registered as an elector and is denied such right by the board of registrars of the county in which he applies that he wiii follow the procedure contained in the above Constitutional Provisions in order to determine if the action of the board of registrars is correct in their premise.
ELECTIONS-Qualification of Voters (Unofficial)
Law relative to voter qualification and registration by mail quoted. September 27, 1955
Mrs. James H. Fish Your letter of September 21, 1955, addressed to the Secretary of State, in
which you request information relative to the procedure for registration for the purposes of voting in Georgia, have been referred to this office for reply.
The information you obtained which stated that only members of the armed forces may register by mail is correct. All other persons must register in person.
Section 34-3605 of the Annotated Code of Georgia, which is the pertinent section regarding registration of members of the armed forces, reads as follows:
"Section 34-3605. The tax collectors or tax commissioners or registrars of the several counties shall provide for the military a registration card in form as follows:
'I do hereby affirm that I am a citizen of the United States; that I have resided in the State of Georgia one year and in the County of ....---------------------------- for six months immediately preceding the date of my

329

induction into the military service of the United States; that my address '

at the time of my induction in the military service was --'-----------------------------

St. or R. F. D. ____________

___________ town; that I possess the qualifications

of an elector required by the Constitution of Georgia; that I am not

disfranchised from voting by reason of any offense committed against

the laws of Georgia; and that I am ____________ years of age and reside in

---------------- Militia District. Dated this ____________ day of ------------------------------------ 19________ .'

Signature
"The signing of the aforesaid registration card containing the required information shall be, in all respects, equivalent to complying with all provisions of the registration laws of Georgia, and shall not require attestation.
"Any members of the military, his relative, or friend, is authorized at any time to request from the tax collector or commissioner or registrars the aforesaid registration card and in making said request shall furnish the name and address of the military member, and upon receipt of such request it shall be the duty of the tax collector or commissioner or registrars to send the same to the member of the military; and the tax collector or commissioner or registrars shall number the said registration forms and shall keep a permanent record book in his office in which he shall record the number of the card, the name of the member of the military for whom the registration card is sought, the name and relation, if any, of the person requesting the card, and the date the card is furnished, and such other information necessary to identify said registrant: Provided further, however, for good and sufficient cause made known to the tax collector or commissioner or registrars, he may furnish to the military voter, a duplicate registration card, noting the fact in the book hereinbefore referred to.
"The member of the military receiving and executing the aforesaid registration card shall place the same in an envelope addressed to the tax collector or commissioner or registrars of his county, and mail the same. It shall not be necessary to use registered mail.
"When such registration is completed, signed and returned to the tax collector or tax commissioner or registrars of the county it shall form a part of the voters' registration list. Upon receipt by the tax collector or commissioner or registrars of the said registration, the name of the member of the military so registering shall be placed upon the registration list as an elector and registered voter, and shall be certified as such by the registrars: Provided, however, the said member of the military is otherwise qualified."
Let me suggest that you write the Fulton County Registration Department, Room 56, 165 Central Avenue, S. W., Atlanta, Georgia, in order to ascertain whether your husband has the required qualifications as far as residence is concerned, in order that he might register by mail.

330
ELECTIONS-Qualification of Voters (Unofficial) Eligiblity to vote in county elections is not necessary to qualification to
vote in municipal elections, except where requirements coincide.
October 19, 1955
Honorable T. M. Brundage You ask the question, "Is it lawful for one, who qualifies under Section 8,
page 1627, Georgia Laws 1943, to vote in any municipal election without first being qualified to vote in a county election 7".
Section 8 of an Act approved March 5, 1943 (Ga. Laws 1943, p. 1624), as amended by an Act approved February 8, 1955 (Ga. Laws 1955, p. 2093) provides:
"Section 8. The qualifications necessary to enable a person to vote in any municipal election shall be as follows:
"(a) Such person shall be at least 18 years of age; "(b) Shall have resided in the corporate limits of the municipality for at least three (3) months preceding the date of the election; "(c) Shall be a citizen of the United States and of the State of Georgia; "(d) Shall have paid all poll taxes that he might have had an opportunity of paying agreeable to law, such payment to be made at least six (6) months prior to the election at which vote is offered, except when such elections are held within six (6) months from the expiration of the time fixed by law for the payment of such taxes." Article II, Section I, Paragraph III of the Constitution of the State of Georgia of 1945 (Code Section 2-703) provides: "2-703. To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election." In headnote 4 of Harris v. McMillan, May v. Harris, 186 Ga. 529, the Court said: "The Constitution of this State does not limit the qualification of voters in municipal elections so as to prevent the General Assembly from providing for such voters qualifications additional to those required in county and State elections." As the above quoted authority relates primarily to residence, and does not provide that a voter in a municipal election must be first qualified to vote in a county election, I am of the opinion that a person can be entitled to vote in a municipal election without first being qualified to vote in a county election, if he has satisfied the residency requirement of the charter of the City of Warner Robins and the Constitutional requirement as to residency in the State and County.
ELECTIONS-Qualifications of Voters (Unofficial) Discusses qualifications of voters.
October 5, 1956
Honorable W. 0. Douglass I am pleased to advise that Article II, Section I, Paragraph IV, of the 1945
Constitution of the State of Georgia, provides in part: "Every citizen of this State shall be entitled to register as an elector,

331
and to vote in all elections in said State, who is not disqualified under the provisions of Section II of Article II of this Constitution, and who possesses the qualifications prescribed in Paragraphs I and III of this Section, or who will possess them at the date of the election occurring next after his registration, and who in addition thereto comes within either of the classes provided for in the two following subdivisions of this paragraph ..." Article II, Section II, Paragraph I, of the 1945 Constitution of the State 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, or embezzlement of public funds, malfeasance in office, bribery or larceny, or any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned . . ." Section 77-528 of the 1955 Cumulative Pocket Part of the 1933 Annotated Code of Georgia provides:
"Following the effective date of this Chapter, all pardons shall relieve from civil and political disabilities." This chapter became effective February 5, 1943. You will note under the above authorities that a full pardon would restore the civil rights of an individual who had been convicted of a felony. Murder is a felony. To determine whether or not a person has a full pardon, inquiry would have to be made to the Executive Department of the State Government, which is referred to as the Governor's Office. There is a difference between a pardon, parole, or commutation of sentence.
ELECTIONS-Voting (Unofficial) A County Democratic Executive Committee cannot make a ruling whereby
the election manager is the only person allowed to assist a voter in preparation of his, or her, ballot.
April 9, 1956
Honorable Roscoe Denmark You ask the following question: "Can, under the law, a County Democratic Executive Committee make a special ruling whereby the election manager of each precinct is the only person allowed to assist a voter in preparation of his or her ballot?" The answer to this question is found in Section 34-1905 of the 1933 Ann. Code
of Georgia, which provides in part: "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 langauge, 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

332
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.... The managers shall preserve these written oaths or affidavits, and return them with the other election papers to the proper officials." [Ed. note: See H. B. 419, 1957 Session General Assembly; presently awaiting second reading in Senate.] Section 34-1917 of the 1933 Ann. Code of Georgia, 1955 Cumulative Pocket Part, provides that the provisions of Section 34-1905 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 ..." It is my unofficial view that a County Democratic Executive Committee would not be a11thorized to pass and enforce any rule or regulation in conflict with the general State law covering the subject matter.
ELECTIONS-Voting (Unofficial) (a) A voter under certain enumerated disabilities may have any free-
holder of his choice assist him in casting his ballot. (b) There is no authority for election managers to carry the ballot
box outside the polling place to receive the ballot of one who is physically unable to come to the polls.
March 13, 1956
Honorable Carl Broome You ask the following questions: 1. Is it legal for a voter to call on any free-holder to help him mark his
ballot at the polls? 2. Can the poll holders, election managers, carry the ballot box outside the
polling place to receive the ballot of someone who is physically unable to go inside the polls?
Code Section 34-1905 of the 1951 Cumulative Pocket Part, 1933 Annotated Code of Georgia, provides:
"Only one voter shall be allowed in a compartment of a room or booth or enclosure at a time, and immediately upon entering the booth or compartment the voter must procure a ballot from the managers, immediately prepare, vote the same and retire. It shall be the duty of the managers before handing a ballot to the voter to ascertain that he is duly registered and qualified under the law to cast a vote, then write the name of the voter on the sheet of the ticket or ballot, and after the voter has prepared the ballot and before depositing the same in the ballot box, it shall be the duty of the manager to see that the ticket attempted to be voted by the voter bears the same letter or designation and the same number as the sheet on which appears the name of the identical voter, and it shall be unlawful for any manager or clerk to receive or count any ticket or ballot except in conformity with these regulations, and any voter attempting to vote any other ticket or ballot, knowingly or wilfully, shall lose his vote for the election in which he offers to vote. If a ticket shall be spoiled by a voter it shall be the duty of the managers, before delivering another ticket or ballot to the voter, to get from the voter the ticket or ballot so

333
spoiled. 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." You will note that the above .Code Section provides under what conditions a person who is unable to read the English language, or by reason of blindness, or the loss of the use of his hands, or other physical infirmity 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 free holder of his choice to aid him in the preparation of his ballot. Your particular attention is called to the provisions contained in this Section relative to the conditions upon which such person may exercise this privilege, that is, the making of a written oath or affidavit and the preserving of these oaths and affidavits by the managers and their return with the other election papers. I know of no law which authorizes the election managers to carry the ballot box outside of the polling place to receive the ballots of anyone.
ELECTIONS-Voting (Unofficial) (a) If a person votes a straight party ticket, and also votes for an
independent candidate for an office, the entire ballot is not voided. (b) A "sample ballot" is illegal, but there is no objection to publishing
a diagram of how names will appear on the ballot, provided that the diagram does not contain the words "official ballot".
October 23, 1956
Honorable J. R. Deese You ask the following questions: 1. On the General Election ballot, there is one place to mark for voting the
Democratic nominees. In our case we have an Independent man running for sheriff and his name is on the ballot. If the people vote for the Democratic nominee and also check the independent ticket and fail to scratch the sheriff nominee's name out, does that mean that neither man gets the vote or the Democratic nominee?
2. There have been several people wanting to know if a sample ballot can be printed in the paper so that people can study it before election date. Is that lawful or not?
I am attaching a copy of a recent unofficial opinion relative to how a person may vote a split ballot. In the event that a voter placed an "X" mark in a straight party ticket, and also placed an "X" mark alongside of an independent candidate, then the election managers would be controlled by Section 34-1303(14), 1955 Supp., 1933 Ann. Code of Georgia, which provides:
"Any error made by an elector in the marking of his ballot at either a general election or at a primary election of a political party, shall not

334
void the entire ballot, but shall void only so much of said ballot as has been erroneously marked. So much of any ballot as has been erroneously marked, which is properly marked, shall be counted and tabulated by the managers, but so much of the ballot as has been erroneously marked shall not be tabulated and counted by the managers, but a partial error shall not result in the voiding of the entire ballot." Specifically answering your question 1., the managers would not count the independent vote for the reason that it was erroneously made in that the voter failed to strike the name of the candidate for the same office on the straight party ticket. Therefore, having erroneously voted for the independent, and correctly voted for the straight party ticket, the vote for the straight party ticket should be counted, and the independent vote not counted. A sample ballot as the term is ordinarily used, would be unlawful. However, if the method pointed out in the enclosed letters is followed, there should be no objection to a newspaper printing a diagram in their columns showing the candidates and offices which they seek, provided that such diagram does not contain the top part or the words "official ballot" thereon.
ELECTIONS-Voting Requirements (Unofficial) Discusses voting requirements in Georgia.
January 6, 1954
Mr. E. V. Parker You requested that I give you the following information relative to voting
requirements in Georgia: "a. Age requirements b. Residence requirements c. Poll tax requirements and exemptions d. When and where to register e. Absentee voting requirements
The answers to your inquiries are: a. Eighteen years of age or upwards. b. State, one year; county in which registered, six months. c. There are no poll tax requirements as a prerequisite to voting. d. Six months before election-register with county board of registrars of residence of applicant for registration. e. Any voter absent from city or county, ward or district in which he is registered may vote by registered mail, provided that he or some member of his immediate family, viz., husband or wife, father or mother, sister or brother, or son or daughter, shall give notice in writing of such intention to the registrars or the ordinary of his county, not less than ten days nor more than sixty days prior to the primary or general election in which he may desire to participate. There is a special statute (Georgia Laws 1953, page 244) applying to absentee voting and registration of persons in the Armed Forces of the United States. Any member of said military, his relative or friend, is authorized at any time to request from the tax collector or board of registrars a registration card to be filled in and returned to the county board of registrars of the residence of such member of the military. Application for a ballot may also be made by such member of the military, his relative or friend, by writing to the ordinary of the county. [Ed. note See Ga. Laws 1956, p. 682; Ga. Laws 1956, p. 647.]

335
ELECTIONS-Voting-"Write-in" Candidates (Unofficial) A voter may strike the name of any candidate which appears on the
ballot, write in the name of any person for whom he desires to vote, and the vote would be counted for the person whose name is written in.
October 11, 1956
Honorable A. E. Ertzberger
You ask whether or not a name written in on the printed ballot for the general election in lieu of a strieken name of a Democratic nominee could be counted as a vote for the person whose name was written in.
In connection with this question you cite as an example the fact that your name is on the Democratic ticket as the nominee, and ask that if an elector should strike your name from the ballot and write in some other name on this same ticket, could the name written in be counted.
In the case of Griffin v. Trapp, 205 Ga. 181, the Supreme Court of Georgia held:
"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., Sec. 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. Cartwright, 156 Ga. 192, 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 Adair v. McElreath, 167 Ga. 294, this court has approved the doctrine that 'the legislature can not restrict an elector to voting 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 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, even if such requirement could be lawfully imposed in a general or State election,
"... 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

336
same time, where the opportunity to do so is afforded, would not render' his ballot illegal, and prevent it from being counted." Under the above cited authority, it is clear that if a voter so desired, he could strike out the name of any candidate printed on the ballot and write in the name of any person for whom he desired to vote, and the vote would be counted as a vote for the person whose name was written in.
EVIDENCE-Privilege of Governmental Records The G. B. I. is not required to turn its files over to an investigating
sub-committee of the United States Senate.
July 6, 1955
Col. W. C. Dominy, Director Department of Public Safety
You inquire whether the head of the G. B. I. may or should release to a subcommittee of the United States Senate visual evidence, i.e., enlarged photographs and analyses of specimens of handwriting prepared for the Solicitor General of the Augusta Judicial Circuit for use in connection with the investigation and prosecution of charges of perjury against "A" growing out of charges and counter charges by and between her and an employee of the Juvenile Court.
The facts of the case, as I understand them, are as follows: "A" signed or is reputed to have signed a consent to the adoption of her daughter, by a couple living in the State of California. Adoption proceedings were instituted and maintained in accordance with the law of the State of Georgia. Subsequently the mother seeking to get her child back denied the genuineness of her signature to the consent under oath and was indicted, prosecuted and convicted of perjury in the Richmond Superior Court.
In connection with the investigation and trial of the perjury ease mentioned, the head of the G. B. I. was asked to and did make or cause to have made certain photographic enlargements and studies of specimens of the mother's handwriting, including that affixed to the instrument and a "known" specimen. These exhibits and oral testimony of Paul E. Shoffeitt, Assistant Director of the Crime Laboratory, were offered in evidence and form a part of the court records.
After her indictment, trial and conviction of perjury, "A", mother of the child, continued to insist that not only the signature to the consent was a forgery, but that the "known" signature used as a basis of comparison was also a forgery. This was brought to the attention of the Sub-committee on Juvenile Delinquency whose members now seek the records of the investigation of the G. B. I. on the subject. The Solicitor General has declined to consent thereto.
I am of the opinion that the files of the G. B. I. covering investigations made by its agents, whether in the field or laboratory, and all information and scientific data secured in connection with or as a result of such investigations is confidential in nature and may be regarded as privileged. I do not believe, therefore, that information obtained as a result of scientific studies of specimens of handwriting made at the request of a Solicitor General and turned over to him for use in connection with the investigation and/or prosecution of a case may be properly released to the Committee in question.
Wigmore on Evidence, Third Edition, Vol. VIII, Sec. 2212(a) (4) recognizes that:

.337
"There must be a privilege for secrets of State, i.e., matters whose disclosure would endanger the nation's governmental requirements or its relations of friendship and profit with other nations." (Emphasis added.) Continuing in Section 2378(g), Wigmore asks:
"What, then, yet remains, in the shape of official privilege? Eliminating the foregoing principles, is there still a genuine testimonial privilege which is to protect public officers from the disclosure of certain kinds of facts or communications received through theirofficial duties? Some such privilege undoubtedly exists. But the scope of that privilege has not been defined with certainty." (Emphasis added.)
Of the several cases cited in the footnote following this latter section, Re. Comingore, 96 Fed. 552, will serve to illustrate the principle here involved in some measure. In that case a Treasury regulation forbade revenue collectors from producing records or furnishing copies. It was held, in a State action for taxes against the distiller that his reports to the Federal Collector were privileged not to be disclosed by the latter on the grounds partly that the State could not control officials of the federal government, partly that the document was an official "quasi confid~Jntial" document solely to aid in the collection of Federal revenue.
Also, Re Weeks, 82 Fed. 729, a habeas corpus for a United States Collector imprisoned for contempt in refusing to produce evidence for the Court of Vermont as to the payment of a liquor tax by defendant in that Court, he replied that he could not remember, whereupon he was asked to ascertain and state the facts, which he refused to do because his means of knowledge had come to him solely in his official capacity and because his superior's instructions forbade disclosure. It was held that although by law the official records were open to public inspection,
the official could not be compelled to give evidence, "the Federal Government * * *
cannot be required to provide evidence for the State Courts."
Federal Practice and Procedure, Rules Edition, Vol. 2, Sec. 1003, p. 713, says in part:
" * * * Government papers and confidential files are a familiar example of privileged documents. * * *"
Turning now to the law of our own State, Section 38-1102 of the Georgia Code Annotated reads in part as follows:
"38-1102 (4544) Privilege of party.- * * * nor shall official persons
be called on to disclose any state matters of which the policy of the State and the interest of the community require concealment." (Emphasis added.)
The Department of Public Safety, moreover, is given the authority by statute
to " * * * provide such rules and regulations as may be necessary for the * * *
division of Criminal Identification, Detection, Prevention and Investigation." Ga. Code Ann., Sec. 92A-105.
Under the authority of Section 38-1102 (4544) privilege of party, Section 92A-105, supra, and upon advice of the Attorney General, the Department of Public Safety has established and adhered to the rule that the results of criminal investigations be made available to the Solicitor General for purposes of prosecution only and while the rule does not appear to have been formalized it appears to be well established and strictly adhered to except as otherwise specifically provided by law.
It is interesting to note that this is precisely the position taken by the F. B. I. and that the only warrant in law for the assertion by the staff of the Attorney General of the privilege as to investigative reports of the Federal

338
Bureau of Investigation is Section 161 of the Revised Statutes, Title 5, Sec. 22 U.S.C.A. which reads as follows:
"Department Regulations. The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business and the custody, use, and preservation of the records, papers and property appertaining to it." Pursuant to this statutory authority, the Department issued United States Department of Justice Order No. 3229 (Revised January 13, 1953) on which its agents rely. In addition to the above, the F. B. I. plead the heresay rule, the confidence of informers and other special rules discussed generally under the heading of "privileged communications." Quite aside from the legal question of the confidential nature of the G. B. I. files and the privileged status of the material therein, there is, I believe, a very significant policy matter involved, i.e., are we going to voluntarily waive the Department's privilege which we, or rather the head of the G. B. I., could probably do, when the Solicitor General has refused to consent thereto and, more important still, when to do so would encourage the review by a Senate Committee of proceedings before and the judgments of the trial Courts of this State? I think that it would be most unfortunate if we were to do so.
FIREARMS-Effect of Foreign License (Unofficial) A license issued by Alabama to carry a concealed weapon would have no
effect in the State of Georgia.
August 10, 1954
Mr. Michael Baranelli You asked whether the State of Georgia honors a license issued by the state
of Alabama to carry a concealed weapon for Alabama citizens who travel in Georgia.
Code Sec. 26-5103 provides that it is unlawful for any person to carry or have about his person any pistol without first taking out a license with the ordinary of the county in which the party resides. This code section makes exceptions for possessing a pistol in one's home or place of business and, of course, does not apply to arresting officers of this State or the United States.
Therefore, it is my opinion that a license issued to Alabama citizens by the State of Alabama to carry concealed pistols would have no effect in the State of Georgia;
FIREARMS-Carrying of Pistols (Unofficial) Laws relative to carrying pistol in private automobile quoted.
April 12, 1955
Mrs. Nettie B. Wood I am pleased to acknowledge your letter of April 4, 1955, forwarded to this
office by Honorable Ben W. Fortson, Jr., Secretary of State, with the request that I advise :vou upon the following question:

339
"It is necessary for me to make a trip alone through your State in the very near future. I would appreciate your advising me of your State law relative to carrying a revolver in private automobiles." Section 26-5103 of the 1933 Annotated Code of Georgia provides:
"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 students of military colleges or schools when they are in the discharge of their duty at such colleges." Section 26-5101 of the 1933 Annotated Code of Georgia provides:
"Any person having or carrying about his person, unless in an open manner and fully exposed to view, any kind of ... pistol ... , shall be guilty of a misdemeanor." You will note that one of the above cited Code Sections makes it a misdemeanor for a person to carry a pistol concealed, and the appellate courts of this State have held that the carrying of a pistol in such a manner that those standing in full view cannot see it would be concealing said weapon. The other cited Code Section makes it a misdemeanor to carry a pistol without a license, even though it might not be concealed. In the case of Hayes v. State, 28 Ga. Ap. 67, the Court of Appeals of this State held that the owner of a pistol, while driving a horse and buggy and having the pistol under the seat of the buggy where it was not in contact with his hands or any other portion of his person, was not guilty of violating this Section (the Court in this case was referring to Section 26-5103 of the Code). The above statutes are given to you merely as information, and are not to be construed to confer upon you or any other person that they may have authority to carry a pistol in the State of Georgia.
FIREARMS-Carrying of Pistols (Unofficial) Laws relating to the carrying of pistols quoted.
April 4, 1955
Mr. W. G. Krebs This will acknowledge receipt of your letter making inquiry as to the law
regulating firearms and the possession thereof. The second paragraph of your letter reads as follows: "In order to demonstrate our products, we are sending out, beginning April 15, 1955, one of our employees with a trailer truck containing various rifles, revolvers and shotguns." Code Section 26-5102, Annotated Code of Georgia of 1933, makes it unlawful
for a person to carry about his person a concealed pistol and reads as follows: "26-5102. Whoever shall carry about his person any dirk, bowie
knife, pistol or revolver, or any kind of deadly weapon, to or while at

340
a court of justice or an election ground or precinct, or any place of public worship, or any other public gathering, except militia muster grounds, shall be punished as for a misdemeanor. This section shall not apply to a sheriff, deputy sheriff, coroner, constable, marshal, policeman, or other arresting officer, or posse, acting in the discharge of their official duties." Section 26-5103 reads as follows:
"26-5103. 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." Section 25-5104 reads as follows:
"Section 26-5104. The ordinary of the county in which the applicant resides may grant such license, either in term time or during vacation: Provided, that the applicant shall be at least 18 years old, and shall give a bond payable to the Governor in the sum of .$100, conditioned upon the proper and legitimate use of said weapon, with a surety approved by the ordinary of said county, and the ordinary granting the license shall keep a record of the name of the person taking out such license, the name of the maker of the firearm to be carried and the caliber and number of the same."
FIREARMS-License to Carry Pistols (Unofficial) License to carry pistol issued by Ordinary does not authorize carrying
pistol concealed.
March 21, 1955
Mr. C. C. Hartmann, Jr. I have received your letter in which you asked my opmron as to whether a
pistol toter's license granted by the Ordinary of the County entitles a person td conceal a pistol on his person.
Code Section 26-5103, 5104 provides that certain persons may obtain a license to carry a pistol from the Ordinary of their certain County but these facts do not give him the power to carry such a pistol concealed and Code Section 26~5104 specifically prohibits carrying concealed weapons under any circumstances.
FIREARMS-License for Pistols (Unofficial) No person shall carry a pistol unless a license is obtained from the
Ordinary.
October 11, 1954
Mr. E. S. Muskin I have received your letter in which you wish to know the laws of this State
regarding the necessity for a permit to purchase a pistol.

341
Code Sec. 26-5103 states that it shall be unlawful for any person to have or carry about his person or to have in his manual possession outside of his 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.
Code Sec. 26-5108 provides that it is a misdemeanor for any person to sell a pistol to a minor.
Code Sec. 26-5110 provides it is unlawful for any person to purchase machine guns without producing a permit signed by the Mayor or Sheriff.
FIREARMS-Pistol License (Unofficial) Service in the armed forces does not disqualify applicant from obtaining
license to carry pistol if such applicant is otherwise qualified.
June 21, 1955
Mrs. Jessika Wright Carswell This will acknowledge receipt of your letter of recent date in which you ask
a question relative to the granting of a license to carry a pistol. Code Section 26-5104 provides: "The ordinary of the county in which the applicant resides may grant such license either in term time or during vacation; Provided, that the applicant shall be at least 18 years old and shall give a bond payable to the Governor in the sum of $100, conditioned upon the proper and legitimate use of such weapon with a surety approved by the ordinary of said county, and the ordinary granting the license shall keep a record of the name of the person taking out such license, the name of the maker of the firearm to be carried, and the caliber and number of the same." As the above quoted Code Section provides that a "resident" may obtain such
a license, I am of the opinion that service in the armed forces would not disqualify an applicant for such a license if he is otherwise eligible.
FIREARMS-Pistols (Unofficial) Laws relating to pistols quoted.
November 1, 1955
Mr. John N. Gaffney I have received your letter in which you have asked me for information con-
cerning the pistol laws in the State of Georgia. Code Section 26-5101 provides that any person having or carrying about his
person, and unless in an open manner and fully exposed to view, any pistol, shall be guilty ofa misdemeanor. It has been held by the Court of Appeals of Georgia that where the owner of a pistol had the same under the seat of his car, where it was not in contact with his hands or any other portion of his person, that he had not violated the law. It has further been held, however, that a weapon is concealed if it is carried in a satchel.
Code Section 26-5102 provides as follows: "Whoever shall carry about his person any dirk, bowie knife, pistol or revolver, or any kind of deadly weapon, to or while at a court of iustice or an election ground or precinct, or any place of public worship, or any other public gathering, except militia muster grounds, shall

342
be punished as for a misdemeanor. This section shall not apply to a sheriff, deputy sheriff, coroner, constable, marshal, policeman, or other arresting officer, or posse, acting in the discharge of their official duties."
Code Section 26-5103 provides 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 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."
Code Section 26-5104 provides as follows: "The ordinary of the county in which the applicant resides may grant such license, either in term time or during vacation: Provided, that the applicant shall be at least 18 years old, and shall give a bond payable to the Governor in the sum of $100.00, conditioned upon the proper and legitimate use of said weapon, with a surety approved by the ordinary of said county, and the ordinary granting the license shall keep a record of the name of the person taking out such license, the name of the maker of the firearm to be carried, and the caliber and number of the same."
Code Section 26-5108 provides as follows: "Any person who shall knowingly sell or furnish any minor with a pistol, dirk, bowie knife, or sword cane, shall be guilty of a misdemeanor. Nothing herein contained shall be construed as forbidding the furnishing of such weapons under circumstances justifying their use in defending life, limb, or property."
FIREARMS-Sales of (Unofficial) Discussion of laws governing the sale of firearms and ammunition.
December 9, 1954
Mr. B. E. Tilley You ask for a copy of any State laws governing the sale of ammunition and
firearms. This office does not carry copies of the various State laws, so that it will be
impossible to fill your request, but I am pleased to quote the following excerpts from the Code of Georgia.
Code Section 26-5108. "Any person who shall knowingly sell or furnish any minor with a pistol, dirk, bowie knife, or sword cane, shall be guilty of a misdemeanor. Nothing herein contained shall be construed as forbidding the furnishing of such weapons under circumstances justifying their use in defending life, limb, or property."
Code Section 26-5109. "Any person, firm, or corporation, selling or offering for sale machine guns, shall keep a record of the persons to whom sales are made, and shall transmit a copy of same, within five days of the sale, to the solicitor general of the circuit in which such sale was made."
Code Section 26-5110: "It shall be unlawful for any person or persons to purchase machine guns, without producing a permit signed by the mayor of the town in which such purchase is made, or by the sheriff of the county where such

843
purchase is made without a municipality, and no persons shall sell, or offer for sale to another, machine guns, unless the purchaser exhibits a permit herein provided for."
Code Section 26-5111: "If such municipality has ordinances covering the sale and handling of machine guns, sections 26-5109 and 26-5110 shall not supersede such ordinances undertaking more in detail to regulate the sale of machine guns, and said sections shall apply thereto."
FIREARMS-Taxation (Unofficial) Wholesale dealers, as well as retail dealers, are required to pay the tax
levied on "each and every dealer" in pistols, or in pistol cartridges, rifle cartridges, dirks, bowie knives, or metal knucks under Code Section 92-2009, and also the tax levied under Code Section 92-2016 on dealers in rifle and rifle cartridges and gun shells.
April 21, 1955
Honorable Reid H. Cox Your friend, Mr. Mustin, inquires concerning the applicability to both whole-
sale and retail dealers of the tax levied under Code Section 92-2009 on dealers in pistols, or in pistol cartridges, rifle cartridges, dirks, bowie knives, or metal knucks and also the tax levied under Code Section 92-2016 on dealers in rifle and rifle cartridges and gun shells.
Both Code Section 92-2009 and 92-2016 provide that the tax levied therein shall apply to "each and every dealer." In my opinion, "each and every dealer" would include wholesalers as well as retailers. I am informed by the License Tax Division of the Department of Revenue that they have consistently taken this position and collected taxes from wholesalers as well as retailers.
FORESTRY-Burning of Woods Status of Code Section 43-242 and Code Section 43-249 discussed.
March 18, 1954
Honorable Guyton DeLoach, Director State Forestry Commission
You request my opinion as to the relative status of Sections 43-242 and 43-249 of the Annotated Code Supplement-more specifically, whether or not these sections conflict, and, if so, which prevails.
After studying the problem, I reach the conclusion that these sections are not in conflict.
The relevant portion of 43-249 (Chap. I, Section D, of the compilation of laws, at p. 9) reads as follows:
"The said Director, with the approval of the Commission, is hereby empowered and authorized to fix definite periods of time not to exceed 30 days in any calendar year, during which woods or uncultivated lands or marshlands may be burned over and to promulgate same." Section 43-242 of the Annotated Code Supplement (Chap. II, Sec. A (13) of the compilation, at p. 14), provides as follows:

344
"Nothing in this law shall be construed as limiting or restricting the owners of any forest land from burning over their own land, provided the fire is not allowed to spread onto or over the land of another or others." It is to be noted that this section uses the words "nothing in this law . "
Section 43-242 is Section 15 of that Act of the General Assembly, approved February 23, 1949 (Ga. Laws 1949, pp. 937, 940) and referred to as the "Forest Fire Protection Act." It is thus clear that Section 43-242 only declares that nothing in this particular Act-the Act of 1949 (Compilation, Chap. II, Sec. A), shall be construed as limiting the right of owners to burn their property, and does not mean that "nothing in all the laws" relating to the Forestry Commission shall be so eonstrued.
Another related section which we did not discuss is Section 43-219.1 (Compilation, Chap. II, Sec. A (2) (a), at page 30, reading as follows:
"Whenever in the judgment of the Director, because of drought, or other eonditions, controlled burning of woods, land, or marshes, in any county, or counties, or in any area within a county, constitutes an unusual hazard to the destruction of property, the Director may by order, rule, or regulation prohibit the setting on fire of any woods, lands, or marshes within any county or counties, or within any area within a county, or may permit the setting on fire of such woods, lands, or marshes only upon such conditions and under such regulations as in his judgment are necessary and proper to prevent the destruction of property. Any order, rule or regulation promulgated by the Director under the authority of this section shall have the force and effect of law."
No conflict arises between this section and Section 43-242, since, as was just stated, Section 43-242 only applies to the "Forest Fire Protection Act."
Neither does it appear that any substantial conflict exists between 43-219.1 and the relevant portion of Section 43-249 hereinbefore quoted; in fact, it would appear that the two sections are merely cumulative. Section 43-219.1 is stated in the negative, i.e., that the Director may prohibit the controlled burning of lands, etc., while Section 43-249 is stated in the positive, i.e., that the Director, with the approval of the Commission, may fix periods for controlled burning of such lands. Possibly, the courts might hold that Section 43-219.1 modifies 43-249 by eliminating the necessity of approval by the Commission of the Director's order or regulation.
The relevant provision of Section 43-249 appeared in the Act as it was originally passed in 1937 (Ga. Laws 1937, pp. 264, 270-271), and has been merely repeated in subsequent amendments. Section 43-219.1 was enacted in 1951 (Ga. Laws 1951, pp. 697, 698), and in case of a conflict would prevail over the earlier statute, being the legislature's "last expression" on the subject. Burgamy v. State, 114 Ga. 852 (1). The fact that Section 43-249 was amended in 1952, after the passage in 1951 of Section 43-219.1, does not alter matters, since the amendment of 1952 merely repeated the provisions of this section after making other changes.

345
FORES'fRY-"Notice of Intention to Burn Act."
The "Notice of Intention to Burn Act" (Georgia Laws, 1956, page 382) does not require persons starting small fires on or near their habitation to give the notice provided in the act.
August 21, 1956
Honorable Guyton DeLoach, Director Georgia Forestry Commission
Receipt is acknowledged of your letter requesting my opinion as to the interpretation of the county option law requiring that notice be given prior to the burning of woods, lands, marshes, etc., as provided in the recent act of the General Assembly, Ga. Laws 1956, Vol. I, p. 382.
You state that questions have arisen in the minds of some people, and several grand juries considering adopting this law, as to whether it would apply to small fires under wash pots, and the burning of small trash piles, and other similar fires.
Section 1 of this Act provides: "Any person, firm, corporation or association otherwise lawfully
entitled to burn any woods, lands, marshes, or any other inflammable or or combustible materials or vegetation, whether in cultivated or uncultivated areas, shall prior to such burning, give notice of the approximate time and location thereof to the county forest ranger of the county wherein such burning is to be made, or to any other employee or official of the county forestry unit serving such county. Such notice need not be given if, on a sudden emergency, due caution requires firing to render one's premises safe, but in any prosecution under this Act, such shall constitute an affirmative defense, the burden of proving which shall rest upon the person asserting it as a defense. The notice required by this Act shall be in addition to any other notice of burning now required or as may be hereafter required by law."
It is to be noted that the reference to fires first enumerates certain specifics, such as "woods, lands, marshes ...", and then concludes with the more general terms "or any other inflammable or combustible materials, whether in cultivated or uncultivated areas ..."
As early as 1853, in the case of Torrance v. McDougald, 12 Ga. 526 (2), the ejusdem generis rule of statutory construction was applied by the Georgia Supreme Court, wherein it was said that "general and unlimited terms are restrained and limited by particular recitals, when used in connection with them."
In Perkins v. Perkins, 21 Ga. 13, 16, the question was whether or not the Superior Court was authorized to establish a lost will under a statute declaring that the court "shall have power to establish copies of lost papers, deeds or other writings." It was held that the general expression "other writings" was limited by the more specific terms preceding it, and hence could not be construed to include wills.
In Grier v. State, 103 Ga. 428, the accused was indicted for carrying away from the lands of another, "one black dress of the value of seven dollars ..." The indictment was drawn under a statute which, as originally enacted, declared it an indictable trespass for "the taking and carrying away, or attempting to take and carry away, any timber, wood, rails, fruit, vegetables, corn, cotton, or any other article, thing, produce or property of any value .. from the land ... of another

846
..." In holding that the general phrase "or any other article, thing, produce or property" could not cover a dress it was said:
"The entire act deals with land and things connected therewith or incident thereto; and, in the paragraph with which we here deal, to constitute criminal trespass, the article must be taken and carried away 'from the land.' Looking to the entire act as well as to the paragraph under consideration, we think it clear that it was the intention of the legislature to confine acts of criminal trespass to those where the trespasser took and carried away from the land something which was attached to, connected with, produced from, or incident to the land. By that act it was not intended to make it a criminal trespass for one person to take and carry away from the dwelling-house personal goods of another, with his knowledge but without his consent."
This rule of statutory construction has received frequent application in this State. (See Davis v. Dougherty County, 116 Ga. 491, 493; Standard Oil Co. v. Swanson, 121 Ga. 412; McGee v. Bennett, 72 Ga. App. 271, 272; Beavers v. LeSueur, 188 Ga. 393; Gilmore v. Gilmore, 201 Ga. 770; Mayor, etc., of Savannah v. Savannah Elec. & Power Co., 205 Ga. 429; Jenkins v. Jones, 209 Ga. 758). This rule is recognized in practically -every state in the Union. See 50 Am. Jur. 244, 249; 82
c. J. s. 656, 332.
As applied to the instant case, the words "other inflammable or combustible materials or vegetation, whether in cultivated or uncultivated areas" are limited and restricted by the more specific enumeration of words which precede, i.e., "woods, lands, marshes.'' These specific terms, given their "ordinary signification" (Code, 102-102 (1)) obviously refer to comparatively large scale burnings out in the open fields, woods or swamps, and do not in anywise encompass small controlled burnings on one's premises such as trash piles and fires kindled to wash clothes.
Moreover, "in all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times, the old law, the evil, and the remedy .. .'' Code, 102-102 (9).
The evil sought to be remedied by the new law was twofold, to-wit: (1) By being informed prior to any controlled burning, the Forestry Commission, through its communication and weather-reporting facilities, could advise the landowner as to whether or not conditions were safe for burning, and mobilize its equipment on a standby basis, and (2) without prior notice, the Forestry Commission towers in the past, upon spotting unreported smoke in any part of the county, would send out equipment to investigate. In a majority of cases, it would be determined that the smoke was from a controlled fire, such as some farmer burning corn stalks or wheat stubble. This not only cost the State and counties considerable expense that could have been avoided had the Commission known of the controlled burning in advance, but also took valuable equipment out of action for use in serious wild fires. Almost all of these situations arose from the large-scale type of burning previously referred to, and it goes without saying that the Forestry Commission has not deemed it necessary to mobilize its powerful forces to extinguish wash-pot "conflagration."
Lastly, statutes are not to be construed so as to cause an "unpopular or ridiculous" result (Roberts v. State, 4 Ga. App. 207 (2) ), but are to be interpreted so as to reach a result that is reasonable. Board of Tax-Assessors of Decatur County v. Catledge, 173 Ga. 656 _(4). Since the "Notice of Intention to Burn" is a criminal statute, carrying misdemeanor punishment, it must be strictly construed against the State, (Matthews v. Everett, 201 Ga. 730, 735; Wood v. State,

347
68 Ga. App. 43 (a); Waldroup v. State, 198 Ga. 144, 145) and in case of doubt, must be construed in favor of the accused. Colson v. Aderhold, 5 F. Supp. 111, aff. 73 F2d 191; Buice v. Bryan, 212 Ga. 508 (decided June 12, 1956).
I therefore conclude that the county option "Notice of Intention to Burn Act" (Ga. Laws 1956, Vol. I, p. 382) does not require that persons starting small fires on or near their habitations, such as hereinbefore referred to, give notice as provided in the Act.
FORESTRY-Herty Foundation (Unofficial)
Status of Herty Foundation discussed.
September 9, 1954
Honorable W. A. Campbell You request my opinion as to whether or not the Herty Foundation is an
"agency of the State of Georgia." While it was broadly stated that the problem has reference to proposed
agreements with federal agencies which are authorized to contract only with "agencies" of the state, no specific federal agency or statute was mentioned, so the following discussion will be limited to general principles.
The Herty Foundation was created by act of the Georgia Legislature of 1938 (Ga. Laws 1937-38, Ex. Sess., p. 191) and codified as Georgia Code Ann. Supp., Chap. 43-5.
Section 43-502 provides for the creation of a board to be known as the Herty Foundation, to be composed of five trustees to be appointed by the Governor, with power to accept donations from the state, any subdivision thereof, or from individuals.
Section 43-503 provides that the Foundation shall do generally "such acts and things as are found necessary to promote and advance the basic purpose of experimentation in pulp wood of all kinds," and Section 43-504 provides for a Board of Directors to have corporate powers.
Section 43-505 declares that the Foundation is a "public Foundation created and designed and intended for the purpose of rendering services to the citizens" of Georgia and the South; authorization is also given for the acceptance of appropriations from the states.
Section 43-509 provides that in the event the Foundation is ever dissolved, its appropriations shall revert to the State of Georgia.
Section 43-511 provides that the State Auditor shall audit the books of the Foundation, which audit shall be presented to the General Assembly by the Governor.
The Herty Foundation is thus seen to be (1) a public corporation, (2) created for performing a governmental function, (3) and whose financial affairs are to be subject to inspection by the State Auditor.
While it may in some respects resemble various state authorities under inspection by the court in such cases as Sheffield v. State School Building Authority, 208 Ga. 575; McLucas v. State Bridge Building Authority, 210 Ga. 1; State of Georgia v. State Toll Bridge Authority, 210 Ga. 690, wherein the "corporate distinctiveness" of these authorities from the state was recognized insofar as the debt provisions of the state constitution were concerned, these holdings must be read and construed in the context of the problem calling them forth. To say that obligations issued by such an authority does not constitute a debt of the state

34&
does not foreclose inquiry into the question as to whether an undertaking such as the Herty Foundation is a state agency under provisions of a federal law antici pating the same purpose as the state act, i.e., cooperation with instrumentalities of other governments, state and national. Numerous definitions of the phrase "state agency" are found in 40 Words .and Phrases, p. 19; Supp., p. 5, the overwhelming majority of which support the view that any public organization, created by the state for the performing of governmental functions, and under the control or supervision of the state, constitutes a state agency.
Lastly, I notice that the 1953 appropriations act (Ga. Laws 1953, Jan.-Feb. Sess., p. 151, p. 163), provides for an annual state appropriation to the Foundation of $20,000.
Unless the Foundation be construed to constitute a state agency or instrumentality, this appropriation would clearly be unlawful as a "donation or gratuity in favor of a corporation," as prohibited by the Constitution, Art. VII, Sec. I, Par. II (Code Ann., 2-5402). I am reluctant to construe the act so as to bring about such grave consequences.
See also, Ga. Laws 1937-38 Ex. Sess., p. 63, approved the same day as the Herty Foundation Act, which provided for an appropriation of $20,000.00 to the Forestry Division for the purpose of developing the paper pulp industry in this state.
I therefore conclude, for purposes of the question stated on the basis of the limited facts furnished me, that the Herty Foundation does constitute a "state agency."
FORESTRY-Damage by Forest Rangers Property damaged by forest rangers should be returned to its original
condition.
March 18, 1954
Honorable Guyton DeLoach, Director State Forestry Commission
You request my opinion as to whether county forest rangers, in entering upon private lands to prevent the spread of fires, are required to repair fences torn down in entering and whether such rangers are also required to cover up any trenches dug by them to prevent the spread of the fire.
The Constitution, Article I, Section III, Paragraph I (Code Ann., Sec. 2-301), requires that just compensation be paid where private property is taken or damaged for public purposes.
Section 88-401 of the Code authorizes cities to destroy private property, such as, inter alia, the "destruction of houses to prevent the extension of a conflagration ...", but expressly requires that just compensation be paid.
In Bishop et al v. Mayor et al of Macon, 7 Ga. 200, firemen of the City of Macon had destroyed the plaintiffs' house by explosives, in an attempt to prevent the spread of a ravaging fire. This case arose before the passage of 88-401, and the Court held that the Constitution of the United States required just compensation to be paid. The Court intimated, that where it could be shown that the plaintiffs' house would have been destroyed anyway, a possibility existed that compensation would not have to be paid. This was merely a suggestion, however, and it has been subsequently recognized that the case did not make this as an affirmative ruling. Martha Mills v. Moseley, 50 Ga. App. 536, 538 (4).

349
Apparently, the right to destroy private property in cases of extreme necessity without the payment of compensation therefor existed at common law. See, 14 A. L. R. 2d 79.
In conclusion, it must be stated that the question you ask has not been settled by the courts, but in my opinion, I am inclined to believe that the courts would require that compensation be paid (or in your case, that the property be returned to its original condition, in failure whereof damages would lie), for while 88-401, cited above, does not apply to the State Government, it does to some extent indicate the general policy of the State, independent of the constitutional provisions hereinbefore stated.
FORESTRY-Fire-Fighters Discusses liability of private fire-fighters for trespass.
July 30, 1956
Honorable Guyton DeLoach, Director Georgia Forestry Commission
Receipt is acknowledged of your letter requesting my opinion regarding the extent to which industry and other private fire-fighters would be protected against trespass under the present fire law.
The Forest Fighters Protection Act provides, insofar as relevant (Code, 43-240 Supp.; Compilation, p. 19) provides as follows:
"The State Forestry Commission and any of its authorized agents, or anyone acting at their direction, shall have the right at any or all times to go upon any land for the purpose of preventing, controlling or suppressing forest fires, as defined herein, or for the purpose of making investigations, without incurring liability for trespassing." It is to be particularly noted that the above section says "or anyone acting at their direction, shall have the right at any or all times, to go upon ...", etc. Clearly, industry personnel would have the right to enter on land when working under the direction of the Forestry Commission personnel, and in view of the phrase "at any or all times," I am inclined to the view that it would not be essential that the private fire-fighters enter lands only when accompanied by, or in the presence of, Forestry Commission personnel. The language of the section is so broad and all inclusive that I do not believe it would admit of construction to the contrary, under the rule that judicial interpretation is excluded where none is needed to give effect to clear and unambiguous language. Aldridge et al v. Federal Land Bank of Columbia, 203 Ga. 285, 289; Twentieth Century-Fox Film Corp. v. Phillips, 76 Ga. App. 825. However, even if the Act be subject to construction, the paramount rule of construction is to "look diligently for the intention of the General Assembly." Code, 102-102 (9). The obvious intent of the Forest Fire Protection Act is to protect Georgia forests against the ravages Df fire, and thereby conserve one of our most valuable natural resources. See declaration of legislative policy of the act, Code, 43-230 (Supp.). With this overriding purpose in mind, the Legislature could hardly have anticipated that a private fire-fighter should await arrival of Forestry Commission forces before entering on land to combat the fire. The very purpose of permitting the Commission to authorize private industry to enter on such land anticipates a

350
situation where Forestry Commission's personnel are not available, but private forces are. If the latter were required in every instance to await arrival of the former, there would then be little need at all for this provision of the Fire Protection Act. A wild fire is a thing that does not accommodate the convenience of its combatants in marshalling their forces in unison.
There are also other provisions of law which are relevant to a consideration of your question.
Code, 43-219 (Supp.) provides:
"The Director, with the approval of the Commission, is authorized to appoint investigators to enforce the provisions of the forestry laws and regulations of this State, and the investigators so appointed, and any fire fighting crews under their direction, may enter upon any land for the purpose of preventing and suppressing fires and enforcing the provisions of the fire and other forestry laws and regulations of this State. The investigators are hereby authorized and empowered to make summary arrests for violations of the fire and other forestry laws and regulations of this State, and in case of such arrests the investigator shall as soon as possible deliver the arrested person or persons to the custody of the sheriff of the county wherein the offense was committed. Investigators are hereby authorized and empowered to carry weapons in order to enforce the provisions of the forestry laws and regulations of this State."
The purpose of this section is to merely define the authority of Forestry Investigators to enter on land to combat fires, but in so doing, it also necessarily confers upon private fire forces the right to enter land under direction of a Forestry Investigator.
Also, 43-220 (Supp.) provides:
"Any fire burning uncontrolled on any forested, cut over, brushland or grasslands is hereby declared to be a public nuisance by reason of its menace to life and property. Any person, firm or corporation responsible either for the starting or the existence of such fire is hereby required to control or extinguish it immediately, and if such person, firm or corporation shall re:fuse or neglect to do so, any organized fire suppression force may suppress the nuisance thus constituted, by controlling and extinguishing the fire, and the cost thereof may be recovered from said responsible person, firm or corporation."
Under this section, any person-official or otherwise-can enter land to combat a fire which the landowner refuses or neglects to combat, and unlike the first provision quoted herein, it would not be necessary in this instance that the person or persons entering the land be under the direction or acting under direct authority from the Commission. However, use of the words "neglect" and "refuse" in this section, together with the fact that the landowner can be recovered against for the costs of fighting the fire, necessarily limits its application. The word "refuse" implies existence of a knowledge of the fire and an arbitrary refusal to try to control it, while "neglects" indicates the "omission of proper attention; disregard of duty, from indifference or wilfulness ..." Webster's New International Dictionary, 2nd Ed. As used in the law, "neglect" usually differs from a mere omission, since "neglect," unlike "omit" generally imports intent and knowledge. Reinhard v. Lawrence Warehouse Co., 41 Cal. App. 2d 741, 107 P2d 501, 505. On the other hand, a "refusal" indicates a wilful, conscious and deliberate act, while "neglect" means something different-a denial or declination to do what is requested or ordered. State v. Harland (Ohio Com. Pl.) 105 N. E. 2d, 295.

351
Therefore, it is safe to say that insofar as 43-220 (Supp.) is concerned, a private person not previously authorized by the Commission would not be safe in entering land to combat a fire unless the owner at least knew thereof and failed to take action to combat same which was reasonably within his power to do so.
So far as criminal responsibility for trespass is concerned, practically all of the provisions of Code, Chap. 26-30 would not apply even in the absence of the fire laws just previously discussed, and of course, so far as civil responsibility is concerned, no law could constitutionally immunize any individual against liability for his negligent acts committed while on another's property. In this respect, however, it must be recalled that "persons confronted by a dangerous situation or by an emergency or other circumstances likely to impair judgment and ordinary discretion are not held to the same quantum of care as they would otherwise. Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97 (3); Chitwood v. Stoner, 60 Ga. App. 599, 603 (6); Pollard, recv'r. v. Weeks, adm., 60 Ga. App. 664 (le); Luke v. Powell et al, 63 Ga. App. 795, 804; Bass v. Seaboard Air Line R. Co., 205 Ga. 458, 474. However, the mere fact that one is confronted with an emergency does not relieve him from exercising ordinary care, but is merely one of the circumstances which are proper for consideration in determining whether ordinary care has been exercised. "He is to be dealt with in the light of his surroundings at that time, and he is not necessarily negligent even though his judgment was wrongly exercised." Luke v. Powell, supra.
There also exists in our law a doctrine known as the doctrine of "necessity," which is held to justify what otherwise would constitute an actionable trespass. See 52 Am. Jur. 867, 40; 87 C. J. S. 993, 35.
In conclusion, I see no reason why you could not issue blanket authority to all private fire-fighting forces cooperating with you which would suffice generally for all times in the future, but where possible, to avoid doubts, it would always appear desirable to have the private forces to contact Forestry Headquarters, either county or district, and secure their authorization. In any event, I am of the clear opinion that Forestry Commission personnel would not have to be actually present when the entry was made.
FORESTRY-Volunteer Fire-Fighters Volunteer fire-fighters are not entitled to Workmen's Compensation from
the State Forestry Commission.
March 8, 1955
Honorable Guyton DeLoach, Director Georgia Forestry Commission
You have requested my opinion on the question as to whether or not certain private persons who volunteer their services in combatting fires are entitled to be paid workmen's compensation by the Forestry Commission in the event of their injury while so engaged.
The relevant facts are stated to be as follows: Quite frequently, when forest fires occur in the various counties and the Forestry Rangers are called upon to combat same, citizens of the surrounding community congregate upon the scene, and some of them voluntarily lend aid and assistance to the Commission's employees and representatives. No compensation is paid such participants, and no agreement or other hiring is made with them. Moreover, whatever assistance is given is entirely voluntary, and unsolicited.

352
I am of the opinion that this question is controlled by the case of Jones v; Lumbermen's Mutual Casualty Company, et al., 58 Ga. App. 713, 714(1). In that case an employer who had just purchased two vehicles in an adjoining county, consented for a friend of its employee to accompany the latter to pick up said vehicles and deliver them to the employer's office, the understanding being that the friend would drive one of these vehicles but would not receive any payment therefor. An accident occurred resulting in injuries to the friend and in holding that he was not an employee under the Workmen's Compensation laws so as to be entitled to compensation, the court declared:
"It is only an employee who is the servant of another for hire who is entitled to be paid compensation under the workmen's compensation act. A person who performs a gratuitous service for another, although at the latter's request or suggestion, but which he performs for his own pleasure and accommodation, does not thereby become the employee or servant of the person for whom he performs the service. Not being a servant or employee of the other person, he is not entitled to compensation from such person for an injury received by him while in the performance of the service."
The Code, Section 114-101, defines an employee as "every person in the service of another under any contract ... , written or implied, ..." Manifestly there is no written contract in the situation referred to and just as clearly I believe it to be obvious that no implied agreement would arise. When one of the citizens in the neighboring community appears upon the scene and undertakes to volunteer his services it is inconceivable that he considers himself to be working for the Forestry Commission.
In addition in the case of Georgia Railway and Power Company v. Middlebrooks, 34 Ga. App. 156, it was held:
"Payment of wages, although not necessary to render one a master, is necessary to bring one within the workmen's compensation act, which contemplates that compensation shall be fixed in proportion to the employee's wages as applied to the particular injury."
Lastly the rule is well settled that to constitute the master-servant relationship, the contract or agreement must give a right to the employer to control the time, manner, and method of executing the work. Liberty Mutual Insurance Company v. Kinsey, 65 Ga. App. 433, 440; Young v. Demos, 70 Ga. App. 577. In Studdard v. Phoenix and Company, 79 Ga. App. 467, 471, it was said: "It is the right of control, and not the fact of control which is decisive." The only way in which the Commission could possibly have the right to control volunteers assisting in the combatting of fires would be for a contractual relationship to exist between such persons and the Commission. The word "right" clearly has reference to a legal right. Unless there was a contract of some description, the employees and officials of the Forestry Commission would only have the "right" to instruct the volunteers to decease their activities in helping combat the fire. The Commission would not have the right to require the volunteers to render the assistance in any particular manner.
I therefore conclude on the basis of the facts furnished me, that the Commission would not be liable for Workmen's Compensation in the stated circumstances.

353
FORESTRY-Regional Forest Fire Protection Compact The Regional Forest Fire Protection Compact does not extend the defi-
nition of "employee" for the purposes of Workmen's Compensation.
July 7, 1955
Honorable Guyton DeLoach, Director Georgia Forestry Commission
This is in response to your request for my opinion on the question as to the workmen's compensation coverage of commission employees with regard to the Regional Forest Fire Protection Compact (Ga. Laws 1953, Nov.-Dec. Sess., p. 49; Compilation, Chap. II, Sec. C, p. 21, et seq.)
You state that it is expected that the Governor will shortly effectuate ratificacation of this Compact, and it is desired to determine the effect of certain language thereof defining "employees."
The relevant provisions are the last three paragraphs of Article V, which read as follows:
"Each member State shall provide for the payment of compensation and death benefits to injured employees and the representatives of deceased employees in case employees sustain injuries or are killed while rendering outside aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within such State. For the purposes of this compact the term employee shall include any volunteer or auxiliary legally included within the forest fire fighting forces of the aiding State under the laws thereof. The compact administrators shall formulate procedures for claims and reimbursement under the provisions of this article, in accordance with the laws of the member States."
Succinctly stated, the specific question for determination is whether any conflict exists between these quoted compact provisions, more particularly the second paragraph, and the existing workmen's compensation laws of this state.
I have before me an opinion rendered to Mr. Charles H. Flory, State Forester of South Carolina, rendered by the South Carolina Attorney General's office, which construes Article V and determines that these provisions are compatible with South Carolina law in that they only provide for compensation and benefits to injured employees of the state participating in the combatting of fires outside the state, only in the same manner and on the same terms as if the injuries or deaths were sustained within the State. To this extent I see no reason for holding that Georgia law differs in any respect with that of South Carolina. However, the opinion above referred to also mentions the possibility that the second paragraph quoted above (which is the 6th paragraph of Article V) may be in conflict with South Carolina law insofar as it might be subject to the construction that "casual employees" are thereby covered.
In Maloney v. Kirby, 48 Ga. App. 252 (3), 172 S. E. 683, and in City of Waycross v. Hayes, 48 Ga. App. 317 (3), 172 S. E. 756, the Court of Appeals construed an amendment of 1925 (Ga. Laws 1925, pp. 282, 283) to what is now Georgia Code, 114-107 as deleting therefrom the exception as to "casual employees", so that under the Georgia law as presently in force, "casual employees" are subject to the provisions of our Workmen's Compensation laws as any other class of employee.
However, it should be kept in mind that to be covered by workmen's compensation, a person must actually be an "employee", whether "casual" or other-

354
wise, and in this respect your attention is called to an opinion I rendered you on March 8, 1955, holding that certain private volunteers who frequently offered the Commission their assistance in combatting fires would not be employees, for several reasons therein discussed. This opinion is also applicable to the instant question, and although I am fully cognizant of the decision of the United States Supreme Court in West Virginia ex rei Dyer v. Sims (1951), 341 U. S. 22, 95 L. Ed. 713, 71 S. Ct. 557, holding that the construction of an interstate compact is a federal question upon which the Supreme Court has the last word, even as against a decision of the highest state court declaring the Compact void under the state constitution, I do not believe that the relevant provision of Article V is capable of such a construction as would change the effect of my opinion of March 8th a:s to activities conducted pursuant to the Compact.
In construing any law, the interest of the Legislature must be kept in mind (Code, 102-102 [9]; Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 [1], 160 S. E. 909); the words must be construed in connection with the context (State v. Cherokee Brick and Tile Co., 89 Ga. App. 235, 239, 79 S. E. 2d 322); in determining the intent, the subject matter of the Act may be looked into (Ragland v. Justices, 10 Ga. 65, 71); and lastly, the literal meaning of terms may never be invoked to defeat the legislative intent. Claxton v Johnson County, 194 Ga. 43, 47, 20 S. E. 2d 606; Ford Motor Co. v. Abercrombie, 207 Ga. 464, 467, 62 S. E. 2d 209.
Applying these principles to Article V of the Compact, and particularly, construing it in connection with the Act as a whole, it is obvious that the only purpose of this Article was to insure that one state would not become liable to employees of another state while they were engaged in combatting fires in the former under a mutual aid agreement entered into pursuant to the Compact. It should be kept in mind that the overriding purpose of the Compact was to provide for the cooperative interexchange of facilities and personnel between contiguous states in combatting forest fires on or near the boundaries of the particular states involved. Anticipating that questions might arise where personnel of one state were injured while fighting fires in another state, the draftsmen reasonably sought to insure that such injured employees could not thereby claim compensation and benefits (or damages) from the state in which they were temporarily working, thereby subjecting it to an unexpected liability to a person not employed by it. The reference to "volunteers" or "auxiliaries" was obviously not placed in the Article for the purpose of creating new rights on behalf of this class of persons working under the forestry program, which rights were not available to other persons under the general scope of the Workmen's Compensation laws. Its sole function was to relieve the state requesting or receiving aid from any demand for workmen's compensation from any class of persons whose services were temporarily made available to the former by a member state.
In short, the Article is concerned solely with interstate liability, and does not purport to redefine "employee" with respect to the coverage of workmen's compensation as to the state forestry agency's personnel.
FRATERNAL SOCIETIES-Reserve Funds (Unofficial) Reserve funds for a fraternal society cannot be transferred to unassigned
funds, even when the certificate holders cannot be located.
December 17, 1954 Mr. Joseph P. Conte
You again inquire if fraternal beneficiary societies, under Georgia Law, would

355
be permitted to release the reserves to unassigned funds on certificates outstanding where there is very slight possibility that the claimant can be located.
In our previous correspondence we furnished you with a copy of the Insurance Laws of Georgia and we suggest that you have your attorney examine our law and advise whether he thinks fraternal societies are permitted to make such a transfer of reserve funds. We can appreciate that this type of transfer might be convenient from a bookkeeping or accounting standpoint, however since we are unable to find any law permitting such transfer, it is our personal unofficial opinion that the reserve funds of a fraternal society cannot be transferred to unassigned funds, even when the certificate holders or claimants cannot be located and where there is very slight possibility that a claim will ever develop.
GAME AND FISH-Powers of Commission
(a) The Game and Fish Commission has authority to sell timber and other woodland products.
(b) The proceeds from such sales shall be placed in the State Treasury, but each year an amount equal at least to the amount deposited in the State Treasury by the Commission shall be appropriated to the Commission.
June 28, 1956
Honorable Fulton Lovell, Director State Game and Fish Commission
Your letter enclosing a letter from the United States Corps of Engineers in the matter of the sale of timber on the Clark Hill Game Management Area, is acknow!edged.
The three questions propounded by the Corps of Engineers, and answers are as follows:
(a). Does the State Game and Fish Com1T1ission have authority under State statutes to conduct competitive sales of timber and/or other woodland products?
Answer: The State Game and Fish Commission has authority to have the timber cruised and marked, and on recommendation of the Director of the Commission, the Governor may declare the same surplus property on the grounds of an improvement cutting, in which case the Purchasing Department will cause an advertisement of the sale of said property to be published in a paper of state-wide publication and receive bids thereon, and will let the bid to the highest and best bidder on the date named in the advertisement.
(b). If the Commission does have authority for such disposal, can the proceeds be retained for development, conservation, maintenance and utilization of the Clark Hill Wildlife Area, or must the proceeds be deposited in the State Treasury? It is requested that an opinion of the State Attorney General be furnished.
Answer: This question can be answered by Section 8 of an Act of the General Assembly of 1955, approved March 7, 1955 (Ga. Laws 1955, p. 483, p. 486) which reads as follows:
"Section 8. All funds resulting from the operation of the State Game and Fish Commission and from the administration of the laws and regulations pertaining to wildlife and to the State Game and Fish Commission, excluding fines, but including all license fees and other income, shall be paid into the general fund of the State Treasury, and each year, at least such amount shall be appropriated to the Game and Fish Commission.''

356
This prov1s1on of law, in my opmwn, would be binding on the Budgetary Committee, and, as stated in your letter, a resolution adopted by your Commission that the funds received from the sale of the timber would be "spent on the further development of this project" should be assurance sufficient to satisfy the Corps of Engineers, under Section 209 of the Flood Control Act of 1954, which authorizes the Corps of Engineers to authorize you as licensee to cut this timber.
(c). If retention of proceeds by the Commission is authorized, would appropriate accounting procedure be established to permit audit by representatives of the Government?
Answer: This is a matter of discretion of the Director of the Commission, and not a question of law.
GAME AND FISH-Game Fish (a) There is not prohibition against selling game fish in Georgia, which
are taken from private ponds. (b) Taking of fish by seine is illegal by regulation of the Game and
Fish Commission.
July 12, 1955
Honorable Fulton Lovell, Director Game and Fish Commission
You request opinions on the following questions: 1. Whether the law prohibiting the sale of game fish in Georgia should be construed to include fish for private ponds and illegally taken fish in other States shipped into Georgia for sale? 2. Whether the law prohibits the taking of fish by a seine in the streams and lakes without first obtaining a regulation by the Commission designating certain streams and lakes and to otherwise comply with existing commercial fishing law? In answer to your first question propounded, I refer you to Section 55 of Senate Bill No. 60 of the General Assembly at its 1955 Session (Ga. Laws 1955, pp. 483, 517), which in part provides as follows:
"It shall be unlawful for any person, firm or corporation to have in possession in this State any wildlife purchased outside of the State of Georgia, without first securing or obtaining a permit from the commission. ..." This section further provides that a violation is a misdemeanor. Section 51 of said act provides:
"Any person who makes any use of, or has in his possession any wildlife or parts thereof, which have been killed, taken, captured, possessed or destroyed contrary to any of the wildlife laws, rules and regulations, shall be equally guilty of the offense and shall be punished in like manner as the person who caught, took, killed or destroyed such wildlife." Section 85 of said act provides as follows:
"No person shall barter, sell, or offer to barter, sell, or to purchase or offer to purchase, or have in possession for barter or sale, any game fish, except as otherwise provided by law. Any person violating this section shall be guilty of a misdemeanor and punished as provided by law." Section 91, Paragraph (d) and Paragraph (i), provides as follows:

857
"(d) All species of fish designated by the game and fish laws or regulations as 'game fish' which are taken by use of commercial fishing gear shall be immediately returned to the waters from which taken, and possession of such fish by commercial fishermen shall be unlawful, and such possession by such commercial fishermen shall be prima facie evidence that such fish were taken by commercial fishing gear."
"(i) It shall be unlawful to knowingly ship or transport or to knowingly receive for shipment or transportation any fish taken from the public impounded waters or navigable streams of this State in violation of the terms of this section, and should such fish be knowingly shipped or transported or knowingly received for shipment or transportation, the, same shall be seized and confiscated and upon confiscation shall be disposed of as ordered by the Director of the Game and Fish Commission."
Section 14, Paragraph 4, provides as follows:
"The commission is hereby directed and authorized to perform the following duties and functions:
* * *
','4. To capture, propagate, transport, buy, sell or exchange any species of wildlife needed for propagation or stocking purposes, and to exercise control measures of undesirable species."
With this exception and laws applicable to commercial fishing and rough fish trapping, there seems to be no other exception as to the prohibition of the sale of game fish in Georgia. [Ed. note: See Ga. Laws 1957, p. 340.]
In answer to the second question propounded by you, I refer you to Section 86 of the above referred to act, especially Paragraph (a) thereof, which provides as follows:
"(a) Any person who shall place in any river, creek or stream any dam, trap, net, seine, or other device for catching, killing, taking or harming fish, unless the main channel of such stream shall be left open for a space of 10 feet for rivers, and one-third of the channel of a creek or stream at low water mark, unobstructed for the free passage of fish up and down such stream, shall be guilty of a misdemeanor and punished as provided by law. The sheriff of the county or wildlife rangers shall have authority to break and open any dam, net or other obstruction that may be placed in such waters in violation of this section. This section shall not apply to dams for milling and manufacturing purposes, except as otherwise provided. Provided, however, that the commission may promulgate rules and regulations prohibiting the use of said methods herein prescribed or may modify the footage space as herein required."
Except as provided in said paragraph, it would seem that although not affirmatively so provided, it would infer that as long as the terms of this paragraph are met and that there is no prohibition against the use of seines for the taking of fish. It is, however, pointed out that the last sentence of the above paragraph, together with other provisions of said Act, empowers the Game and Fish Commission to pass regulations prohibiting the use of seines if they so desire. This was done by regulations adopted by your Commission on July 6, 1955 and when the same has been posted properly according to the provisions of the above referred to Act for 30 days will become effective as law.
F'cr the purpose of interpreting the above Acts, I further would like to call "m'~ Rttention to the definitions of "wildlife" and "private pond" which are set

358
out in Paragraph (b) and (e) of Section 1 of the above referred to Act as follows: "(b) 'Wildlife' shall mean any vertebrate or invertebrate animal life
indigenous to the State of Georgia or any such species introduced or specified by the State Game and Fish Commission."
"(e) 'Private pond' is a body of water being wholly on or within the lands of one title, where the fish cannot go up stream or down stream or to the lands of another."
GAME AND FISH-Basket Fishing Game and Fish Commission has regulatory powers over basket fishing
in Mcintosh County
June 17, 1954
Honorable Fulton Lovell, Director State Game and Fish Commission
You pose the query: Does the Game and Fish Commission now have regulatory power over basket fishing in Mcintosh County under the law recently enacted by the Legislature (Ga. Laws 1953, p. 85), inasmuch as prior to enactment of this statute Mcintosh County authorized basket fishing within its boundry in accordance with a special act of the Legislature (Ga. Laws 1927, p. 626; Ga. Laws 1941, p. 935).
Article XII, Section I, Paragraph IV of the Constitution of Georgia of 1945 states: "Local and private acts passed for the benefit of counties, cities, towns, corporations and private persons, not inconsistent with the Supreme Law, nor with this Constitution and which have not expired nor been repealed, shall have the force of Statute Law, subject to judicial decision as to their validity when passed, and to any limitations imposed by their own terms."
The Supreme Court in Pausch v. Guerrard, et al 67 Ga. 319 said:
"While ordinarily a general law does not repeal a prior local law, unless the latter specially named or necessarily embraced in the terms used, yet where it is apparent from the Act itself and the Constitution of the State that it was intended to embrace the local law, the latter will be held to be modified or repealed thereby." In the case of Hammond v. The State 10 Ga. App. 143, where the Legislature had passed a general act relating to the hunting of a certain game at certain times and said Act was subsequent to an act passed relating to the same subject for a particular county, the court said:
"A general act will be held to repeal or modify a special Act embraced within the terms of the general act only when the provisions of the two acts are clearly repugnant and irreconciable, or where the provisions of the general act manifest that it was the intention of the Legislature to enact a general law on the subject-matter which should be exhaustive and a substitute for every prior general, local and special law relating to the subject-matter."

369
It is my opinion that the Game and Fish Commission does have regulatory powers over basket fishing in Mcintosh County, inasmuch as the local act of Mcintosh County applies to fishing for catfish by use of a basket while the recent act of the Legislature embraces catfish when it provided for basket fishing of all types of rough fish, thereby covering the same subject-matter.
GAME AND FISH-Fishing Licenses It is not lawful for a person to fish in the county of his residence without
a license.
May 1, 1966
Hon. H. W. Hodges, Chief Law Enforcement Division State Game and Fish Commission
In reply to your letter inquiring as to whether or not people can fish in their home county without a license, it is a pleasure to give you the following information:
Section 2 (Ga. Laws, 1949, p. 1189) of the Act of the General Assembly of 1949 in part provides as follows:
"No resident of this State shall fish in any way or by any means in any of said waters of this State other than that of the county of his residence without first procuring from the Director of Wildlife an annual license, for which he shall be charged and shall pay the sum of $2.50." This Act was specifically repealed by an Act of the General Assembly of 1955 (Ga. Laws, 1955, p. 483, 545), and the following section was enacted in said laws in Section 31 of the Act of 1955, (Ga. Laws, 1955, p. 506) to-wit:
"It shall be unlawful for any resident of this State to hunt, fish or trap without a proper resident license. It shall be unlawful for any resident of this State to hunt, fish or trap in this State without carrying the required license upon his person. Any person violating any of the provisions of this section shall be guilty of a misdemeanor and punished as provided by law." In this connection I would like to call your attention to the provisions of the 1955 Act above cited, that in addition to a license a person fishing on another's land must acquire the owner's permission, and I would like further to call your attention to the provisions of said Act which exempt from the requirement of having a license, the owner of a private pond, his family or tenants, with the owner's consent.
GAME AND FISH-Creek Obstructions (Unofficial) Placing barricades or obstructions in creeks discussed.
March 10, 1954
Honorable Fulton Lovell Director, State Game & Fish Commission
You request unofficial information concerning your duties and powers relative to a land-owner who has placed barricades or obstructions in a creek running through his property, so as to prevent the escape of fish therefrom. You specifically

360
ask whether or not Section 45-510 of the Code applies to this factual' situation.
1. Section 45-510 reads as follows:
"Any person who shall place in any river, creek, or fresh-water drain, any dam, trap, net, seine, or other device for catching fish, unless the main channel of such stream shall be left open for a space of 10 feet for rivers and one-third of the channel of a creek, at low-water mark, unobstructed for the free passage of fish up or down such stream, shall be guilty of a misdemeanor. The sheriff of the county, upon complaint of persons in the territory of such obstructions, shall have authority to break and open any dam, net or other obstruction that may be placed in such waters in violation of this section. This section shall not apply to dams for milling or manufacturing purposes. The words "low-water mark" shall not apply to fresh water drains."
This section, with but one or two exceptions, is one of the oldest game and fish laws of this state, and is derived from an act of the General Assembly approved December 10, 1878 (Ga. Laws 1878, p. 176) as amended by acts approved October 21, 1891 (Ga. Laws 1890-1, Vol. I, p. 85) and December 14, 1895 (Ga. Laws 1895, p. 33.) These acts were all passed at a time when there were relatively few restrictions upon the taking of fish, and indeed, when there were very few game and fish laws of any nature. This law unquestionably anticipates that the use of net, seines and traps for catching fish will be legal under prescribed circumstances.
Section 45-506 of the Code, which originates from the act approved August 26, 1925 (Ga. Laws 1925, pp. 302, 307), after its codification in the 1933 Code, reads as follows:
"Any person who shall place or cause to be placed in any of the waters of this State, except private ponds, any trap, basket or similar device for the purpose of catching fish shall be guilty of a misdemeanor. It shall be the duty of the game protector, deputy game protector, sheriff or other officer to destroy such trap, basket or other device upon discovery of same and report that fact to the Commissioner of Game and Fish.'~
It is to be noted that this section makes it illegal to place any trap, basket, or similar device for the purpose of catching fish in any of the waters of this state under any conditions, (except private ponds), and does not merely place restrictions or regulations upon the doing of these activities, as does Section 45-510.
Therefore, notwithstanding the fact that the act of 1925 from which Section 45-506 is taken does not expressly repeal Section 45-510, and further, notwithstanding the fact that repeals by implication are not favored (Thomas v.. Board of Commissioners of Chattooga County, 196 Ga. 10), I am of the opinion that Section 45-506 has by necessary implication repealed Section 45-510.
In Folds v. Auto Mutual Indemnity Co. et al, 55 Ga. App. 198, 199, the Court stated the general rule announced many times by the decisions, as follows:
"Every effort must be made to make all acts stand, and the later act will not operate as a repeal of the earlier one, if by any reasonable construction they can be reconciled.'' (Emphasis supplied.) See also Martin v. State, 75 Ga. App. 807(1).
To hold that these two sections are not in irreconcilable conflict is to ignore the unambiguous language of Section 45-506, and would constitute an unreasonable restriction of plain language. This section covers the same subject as does Section 45-510, but only more comprehensively.
Although both of these acts were codified in the 1933 Code, the courts have held that the section derived from the later act shall prevail. U. S. Fidelity and

361
Guaranty Company vs. Toombs County, 187 Ga. 544, 551(5); Atlanta Finance Co. v. Brown, 187 Ga. 729, 731.
I therefore conclude that Section 45-510 of the Code has been repealed by Section 45-506. If this is not the case, the conviction obtained in the case of Nipper v. State, 71 Ga. App. 389, under Section 45-506 was illegal, since the facts of that case would have brought the accused within the exemption of 45-510, relating to the 10 foot passageway.
2. It is almost impossible to decisively state that a repeal by implication has or has not been effectuated. Only the appellate courts can finally determine this question; but even assuming that Section 45-510 has not been repealed, I conclude that this section is not applicable to the factual situation here involved. In the first place, I doubt seriously whether a barricade such as you describe would fall within the definition of a "dam", "trap", "net", or "seine". The only remaining enumeration in the statute is the phrase "or other device for catching fish." I will pretermit any discussion as to whether the prepositional phrase "for catching fish" properly modifies only the word "device" or whether or not it modifies all the preceding enumeration, because, either way, I believe the result must be the same. In any event, this prepositional phrase modifies "other device", and the question then arises as to whether or not this phrase, i.e., "or other device for catching fish" would embrace a barricade such' as is involved in the instant .case. I believe the answer must be that it does not, for the barricade clearly is not a device which "catches" fish in the sense in which the term is commonly accepted.
In State v. Dunning, 22A. 109, 83 Me. 178, the Supreme Court of Maine had under consideration a statute prohibiting the "catching" of lobsters under certain prescribed conditions. The Court stated:
"1;'he operation of catching lobsters necessarily involves at least a momentary possession." (Emphasis supplied.)
Needless to say, a barricade does not reduce the fish to the possession of anyone; it only restricts their mobility with limits hardly tantamount to captivity. Confinement of such a nature is hardly a beginning on the journey to the frying pan.
The same argument applies to Section 45-506, and renders this section inapplicable to the instant case, since the language of this latter section is almost identical to that of Section 45-510.
In so holding, I am aware that different minds may put different interpretations on the words employed, but for this very reason, the statute cannot be held applicable, since criminal statutes are to be strictly construed (Waldroup v. State, 198 Ga. 144) and in case of doubt, the statute will be construed against the State. Pacolet Mfg. Co. v. Weiss, 185 Ga. 287, 295.
Section 102-102 of the Code further declares "The ordinary signification shall be applied to all words, except words of art ..." Mr. Justice Holmes once said that "a hound dog knows the difference between a kick and a stumble" and, by the same token, the most illiterate but hungry negro could tell a real difference between a fish that had been "catched" and one that had been merely restricted to the elusive and labyrinthine caverns of a Georgia creek.
3. Sections 45-132, 45-133, 45-134, and 45-135 of the Annotated Code prescribe a procedure whereby the Game and Fish Commission may provide a free passageway for fish in the streams of this state. (See Section 31-34, p. 10-11 of 1953 compilation). These sections are still in effect, having been retained by the various acts reorganizing your department. If you desire to proceed under these sections, I recommend that you give the notice there required, expressly noting the withdrawal of your former notice given under 45-510. If the barricades are not volun-

362
tarily removed, your agents may proceed to construct any needful passageway around these obstructions and have a fi. fa. levied to cover the costs incident to such action.
4. Lastly, since no express statute exists regulating the use of barricades, the Commission may legally cover the subject by regulation. Let me suggest, however, that the regulation be worded so as to give the land owner an opportunity, after being notified, to remove these obstructions, for otherwise, the regulation would possibly be construed as ex post facto legislation, void under the state and federal constitution.
5. There unquestionably is civil liability involved, as to the adjacent land owners, but these are matters of private and not public rights. See Hodges v. Pine Product Co., 135 Ga. 134, 138; Robertson v. Arnold, 182 Ga. 664; Cole v. Braddford, 52 Ga. App. 754; Code, 105-1407; Chap. 85-13.
GAME AND FISH-Honorary Licenses The Game and Fish Commissioner can only issue honorary hunting and
fishing licenses to persons over sixty-five years of age, and then only under the conditions prescribed by law.
June 26, 1956
Honorable Fulton Lovell, Director State Game and Fish Commission
In reply to your letter requesting an opinion as to whether or not the Commission has legal authority to issue honorary annual or lifetime hunting and fishing licenses regardless of age to members of the Commission and/or others, the following provisions as to the issuance of licenses are quoted:
Georgia Laws 1955, p. 158, provides the issuance of resident licenses for hunting and fishing to be known as 45-206 of the Code of Georgia, to-wit:
" 45-206. (a) A hunting license entitling any resident of this State to hunt in any county shall be issued upon payment of a fee of $2.25 annually, and a fishing license entitling any resident to fish in the fresh waters of any county shall be issued upon payment of a fee of $1.25 annually. Persons under the age of sixteen (16) years shall not be required to obtain the hunting or fishing licenses referred to herein, and landowners and their families and their duly authorized tenants, shall not be required to procure any such licenses for hunting or fishing on such landowner's lands and private ponds.
"(b) A combination license, entitling any resident to hunt or fish as above provided shall be issued upon the payment of a fee of $3.25 annually.
" (c) Residents engaging in seining or netting, where otherwise authorized, shall obtain the fishing license as above provided, or the combination license.
"This Act shall become effective April 1, 1955." This Act was amended by later Act of the General Assembly, Georgia Laws 1955, page 483, specifically page 507, as follows:
"Resident licenses shall be issued as provided by House Bill No. 219, Act No. 62, relating to resident licenses, previously enacted by the Gov-

363
ernor on February 8, 1955. Sections 1 through 4 of this Act are not repealed hereby but are expressly continued of force and effect; provided, however, that so much of Par. (a) of Sec. 4 of House Bill No. 219 as reads as follows is hereby superseded and repealed: ... 'and landowners and their families and their duly authorized tenants, shall not be required to procure any such licenses for hunting or fishing on such landowner's lands and private ponds', said provisions being covered by separate sections of this Act herein."
The only exceptions as to annual licenses included in the Acts relative to your Department are as to honorary licenses which are contained in Georgia Laws 1955, page 483, and specifically on page 506 under Section 31 thereof, which are as follows:
"Section 31. It shall be unlawful for any resident of this State to hunt, fish or trap without a proper resident license. It shall be unlawful for any resident of this State to hunt, trap or fish in this State without carrying the required license upon his person. Any person violating any of the provisions of this section shall be guilty of a misdemeanor and punished as provided by law.
"Resident license fees shall be as follows: Trapping. (a) Yearly in the location where permitted____________________________________$3.00 Honorary License. (a) All legal residents of Georgia who are 65 years of age or more and who apply to the commission shall receive an honorary hunting and fishing license which shall entitle the holder thereof to hunt and fish without the payment of any fee whatsoever. "All honorary hunting and fishing licenses with the exception of the payment of fees, are subject to all other provisions of laws, rules and regulations of this State. Such honorary licenses may be revoked upon the conviction of the holder for any violation of the game and fish laws of this State. It shall be unlawful for any person having a honorary fishing license or hunting license to permit the use of same by any other person. It shall also be unlawful for any person to use an honorary hunting and fishing license who is not entitled to the same. Any person violating the provisions of this section shall be guilty of a misdemeanor and punished as provided by law. "All sports fishing licenses issued under the provisions of this section and Section 30 hereof, shall entitle the holder thereof to sport fish in any of the fresh or salt waters of this State, but in the latter case, only within the three mile limit."
Under the above laws and other laws relative to resident hunting and fishing licenses, it is my opinion that your Commission is without authority to issue hunting and fishing licenses for a lifetime, except to persons over the age of 65 years and then on the conditions of the laws hereinabove cited.

864
GAME AND FISH-Pen-Raised Quail The 1956 Act providing for breeding and sale of pen-raised quail and the
issuing of a license therefor, in no way conflicts with the provisions of the 1955 Comprehensive Game and Fish Act, authorizing the capture, killing and and transporting of wildlife for propagation or scientific purposes upon obtaining a permit from the State Game and Fish Commission.
March 6, 1956
Honorable W. H. Hodges, Chief Law Enforcement Division State Game and Fish Commission
In reply to your oral request for an opinion as to whether Senate Bill No. 20, Act No. 45, approved February 13, 1956, conflicts with the provision as to Scientific and Propagation Permits under paragraph 3, Section C of the comprehensive Game and Fish Bill (Ga. Laws 1955, page 483), so that said provision of the 1955 Act would be repealed by implication.
It is my opinion that there is no conflict between the provisions of said Acts. The 1955 Act provides for the capture, killing, shipping or transporting of any of the wildlife of this State, or the plumage, skin or body thereof, or the nest or eggs of the same for propagation or scientific purposes, or for pets, under such regulations and restrictions as may be imposed by the Commission. It further provides for permits to be issued by the Commission for a fee of $1.00. The 1956 Act provides for breeding and sale of pen-raised quail and provides for a license therefor to be issued by the Commission upon payment of $25.00 for each such license. This Act deals with only a commercial quail breeder's license and places regulations theron, whereas the 1955 Act does not refer to or provide for raising quail for commercial purposes.
GAME AND FISH-Shipping of Wildlife Wildlife of the State may be shipped, provided that a "Scientific Col-
lector's Permit" is obtained.
March 19, 1956
Honorable Fulton Lovell, Director State Game & Fish Commission
In reply to your letter requesting an opm10n as to the charge for issuing "Scientific Collector's Permits", I refer you to Section 32 of the 1955 Acts of the General Assembly of Georgia which was a comprehensive Act as Game and Fish Laws, (Ga. Laws 1955, p. 483, 507). This section reads as follows:
"Under the seal of the commission, permits may be issued to any person to take, capture, kill, ship or transport any of the wildlife of this State or the plumage, skin or body thereof, or the nest or eggs of the same for propagation or scientific purposes or for pets, under such regulations and restrictions as may be imposed by the commission. Such permits may be issued upon payment of a fee of $1.00, and the same may be revoked at the pleasure of the commission. Such permits, unless sooner revoked, shall be valid from April first of the year in which issued until March thirty-first of the following year. It shall be unlawful for any person or persons to take, capture, kill or transport any of the wildlife of this State

365
or the plumage, skin or body thereof, or the nests of eggs of the same for propagation. or scientific purposes or for pets, without first obtaining a valid permit as herein provided. Anyone violating the provisions of this section shall be guilty of a misdemeanor and punished as provided by law." From the above referred to Act, it appears that the condition precedent to application being made by a person desiring such a permit is the payment of $1.00 therefor.
GAME AND FISH-Marking of Automobiles and Boats of Wildlife Rangers Automobiles and boats used by Wildlife Rangers in making arrests of
persons violating the Game and Fish Laws and the laws pertaining to the operation of boats, need not be marked as required of automobiles used in making arrests for violation of traffic laws.
April 15, 1954
Honorable Fulton Lovell, Director Game and Fish Commission
Reference is made to your letter of April 6, 1954 in which you inquire regarding the applicability of Section 107-A of Article XIV of the Uniform Act Regulating Traffic on Highways to Wild Life Rangers.
The section in question provides in part that: "Any motor vehicle which is used. on official business by any person
authorized to make arrests for traffic violations in this state * * * shall be distinctly marked * * *." (Emphasis added)
Section 20 of Article I of the Act defines "traffic" as: "Pedestrians, ridden or herded animals, vehicles, street cars, and other
conveyances either singly or together while using any highway for purposes of travel." Again, Section 2 of the same article defines "vehicle" as:
"Every device in, upon, or by which any person or property is or may
be transported or drawn upon a highway * * *" (Emphasis added)
It is true that the term "highway" has a very broad generic meaning as well as more limited applications. It is:
"The generic name for all kinds of public ways, whether carriage-ways, bridge-ways, bridle-ways, foot-ways, bridges, turnpike roads, railroads,
canals, ferries or navigable rivers. 6 Mod. 255 * * *" as quoted in Black's
Law Dictionary-Second Edition. (Emphasis added) It is quite clear, however, from a careful reading of Section 14, Article I of the Act that the General Assembly used the term in a much more restricted sense.
"(a) Streets and highways. The entire width between the boundary
lines of every way publicly maintained * * *."
"(c) Roadway. That portion of a highway improved, designed or
ordinarily used for vehicular travel. * * *"
"(f) Through highways. Every highway or portion thereof at the entrances to which vehicular traffic from intersection highways is required
by law to stop * * *"
While the General Assembly has laid down certain rules and regulations governing the operation of "any boat, vessel or water-going craft of any size or

366
description whatsoever operating upon the fresh waters of this state" (Ga. Laws 1952 page 281), and has also made it a misdemeanor for any person to "operate a boat upon any public waterway of this state in a manner which disregards the safety of others or operate such boat while in an intoxicated condition" (Ga. Laws 1953, Jan.-Feb. Sess. page 55), and the General Assembly has authorized Wildlife Rangers employed by your department to make arrests therefor, I am of the opinion that such arrests would not be "arrests for traffic violations" within the meaning of Section 107 (A), Article XII of the Uniform Act Regulating Traffic on Highways.
It follows, therefore, that in my opinion automobiles and boats used by Wildlife Rangers on official business need not be marked as required by Section 107 (A) of the Uniform Act Regulating Traffic on Highways.
GAME AND FISH-Jurisdiction of Violations (Unofficial) Court of Ordinary has no jurisdiction of game and fish violations.
December 30, 1954
Mrs. Mildred L. Brantley Ordinary, Hancock County
Your question as to the jurisdiction of the Court of Ordinary on matters pertaining to game and fish violations can be answered by referring you to Section 24-1901 of the 1933 Code of Georgia, which sets out the jurisdiction of the courts of ordinary. This jurisdiction has been extended by Sections 92A-501 and 92A-502 which give the courts of ordinary the jurisdiction of traffic violations. This is the only jurisdiction of misdemeanor cases vested in the courts of ordinary that I have been able to find.
GARNISHMENT-Collection of Indebtedness (Unofficial) 1) Collection agencies in this state are not required to be bonded; are
taxable in amount of $200.00. 2) Justice of Peace Court has jurisdiction of small debts up to $200.00. 3) Writ of garnishment may issue only after final judgment. 4) Salary of State employee is subject to garnishment, provided the
official on whom garnishment is served consents thereto. No judgment can be taken in default against said official.
January 10, 1955
Mr. Frederick E. Tyler Receipt is acknowledged of your letter of December 30, 1954, addressed to
the Secretary of State, in which you ask: "(1). Collection agencies. We wish to know if same are required to be both
licensed and bonded in your State? "(2). Small debts courts. Are there special small debt courts in your State?
What are the limits to the major amount for which the use of such courts may be made?"
"(3). Garnishee. Is it possible to issue a garnishee order against wages, or monies due to a defendant, before judgment? Or after judgment only?

36.7
"(4). Attachment of wages due to civil servants for debt. Can the wages or salaries of State employees be attached for debt in your State? If so, what are the details of such an order?"
Answering your questions in the order stated, you are advised: Collection agencies are taxable in the amount of $200.00 in every county in this state in which they do business. I do not find any provision in our law requiring them to be bonded. The Justice of Peace court has jurisdiction in civil matters up to $200.00. The writ of garnishment may issue in this state against wages only after a final judgment. Salary or wages of a state employee are subject to garnishment provided the official or other authorized person on whom the garnishment is served, consents thereto. No judgment can be taken in default against said official.
GARNISHMENT-Persons and Property Subject (Unofficial) Laws relative to persons and property subject to garnishment quoted.
February 24, 1955 Honorable Nesbit Baker
This is to acknowledge receipt of your letter making inquiry as to the garnishment law involving the employees of cities and so on. In order that this may be clearly understood, I am setting out the entire law involving the subject about which you make inquiry.
Section 46-801, Georgia Code, Annotated of 1933, Pocket Part, provides as follows:
"Money due officials or employees of an incorporated town, city, county or State Government, or any department or institution thereof, as salary for services performed for or on behalf of said town, city, county or State, or any department or institution thereof, may be garnished."
Section 46-802, Georgia Code, Annotated of 1933, Pocket Part, provides as follows:
"In such cases, the writ or summons of garnishment may be served on the person authorized by law to draw the warrant on the treasury of the government to be garnished, or to issue a check for such salary so due, and such person shall be required to answer said writ or summons in accordance with the mandate thereof, and as provided by law."
Section 46-803, Georgia Code, Annotated of 1933, Pocket Part, provides as follows:
"The term 'salary' as herein used, is not intended to include or cover costs and charges of court, or fees, commissions, percentages or allowances of public officers, and such are not subject to writs of garnishment under the provisions of this Chapter."
Section 46-804, Georgia Code, Annotated 1933, Pocket Edition, provides as follows:
"The salary herein referred to is not subject to writ or summons of garnishment in aid of a pending suit, but such writ or summons may issue only after final judgment, or decree, on which executions can issue, rendered in actions on contracts, or growing out of contracts express or implied, and being judgments ex contractu. The judgment on such writ or summons can issue, must be found upon a debt, demand or claim against said defendant, which originated subsequent to the 1st day of April, 1945,

868
and the salary herein referred to is not subject to writ or summons of garnishment issued on judgments ex delicto."
Section 46-805, Georgia Code, Annotated 1933, Pocket Edition, provides as follows:
"Where an official of any of the said governments or other person herein designated, has been garnished, as provided by the preceding sections, and answer has been filed by said person, in accordance with the mandate of said writ or summons, admitting that the branch of government which has been garnished is due, or will be due, the defendant in said garnishment proceedings, money for salary, and has said money for payment when due, the said answer must also show the assent of said official, or person hereinabove authorized, that judgment may be entered in said cause for the amount shown in said answer, or so much thereof as may be necessary to satisfy plaintiff's judgment. And in no case shall judgment against said official, or other person herein authorized and designated, as the agent of the garnishee, be entered by default, or on said answer, or in said garnishment proceedings, unless and until such assent and consent to said judgment is shown in said answer or in the trial of the garnishment case. When such final judgment is so entered, after trial of said proceedings, the said judgment shall be against the official or person hereinabove authorized to return said answer, as such official or agent of the garnishee, and said judgment shall show that said official or authorized person, as such agent of the garnishee, consented that said judgment be entered in said garnishment proceedings.
Section 46-806, Georgia Code, Annotated 1933, Pocket Edition, provides as :follows:
"After such writ or summons has been served, as provided in this Chapter, the said agent of the garnishee shall draw no warrant or check for the money due such defendant, as salary, and included in the answer filed in said garnishment cause, until such garnishment proceedings have terminated, unless said writ is dissolved in the manner provided by law. And after final judgment condemning said money, as herein provided, said agent of the garnishee may draw warrant or check for the money so condemned in favor of and deliver same to the clerk of the court, or to the court, where such judgment was obtained."
From reading the above quoted sections it is clear that the city may be garnished. However, under Section 46-805 before judgment may be obtained against the city it will be necessary that the city has consented thereto.
The above quoted law is a codification of Georgia Laws 1945, pp. 438, 489, 440 and 441.
GARNISHMENT-Persons, Property Subject To-Exemptions (Unofficial) Salary of married woman is subject to garnishment, and she is not
entitled to claim husband and children as exemptions; is only entitled to statutory exemption.
April 19, 1955
Honorable A. Frank Stapleton
I call your attention to Code Section 46-208, Annotated Code of Georgia of 1933, which reads as follows:
"46-208. All persons shall be exempt from the process and liabilities

369
of garnishment on $1.25 per day of their daily, weekly or monthly wages
and on 50 per cent. of the excess thereof, whether in the hands of their
employers or others. All wages above the exemption herein provided for shall be subject to garnishment." Your next question, "If it is subject to garnishment, how much is her daily exemption?", is also answered in the above quoted Section. Your next question, "Can the wife claim her husband and her children for additional exemptions?". I know of no law that authorizes a greater exemption than provided in the above quoted Code Section by reason of the defendant having dependents. An Act approved March 4, 1943 (Georgia Laws 1943, page 316), Section 1, provides as follows:
"From and after the passage of this Act a husband living with his wife shall not be entitled to, and shall not receive, the salary or wages of his wife, except by her consent." Of course, it would be a matter for the plaintiff to decide whether or not he wished to proceed by garnishment against the employer of the defendant.
GARNISHMENT-State Employees Wages of employees of the state and the political subdivisions thereof
may be garnisheed if the state official involved consents to the garnishment.
May 26, 1955
Dr. M. D. Collins State Superintendent of Schools State Department of Education
You request my opinion on the questions involving a garnishment of employees of the State.
A garnishment is purely a statutory proceeding, and the statute authorizing such proceeding is to be strictly construed and is not to be extended beyond its terms and provisions. Western v. Beverly, 10 Ga. App., 261; Few v. Pou, 32 Ga. App. 620; Hartsfield v. Zakas Bakery Co., 50 Ga. App. 284.
Prior to the Act of 1945 (Ga. Laws 1945, pp. 438-441) a city, county or State government was not subject to the process of garnishment. The General Assembly in 1945 amended the garnishment laws of this State so as to make the salaries of officials and employees of this State and its subdivisions subject to garnishment under the terms and conditions therein stated. The Act of 1945 contains the following language:
"And in no case shall judgment against said official, or other person herein authorized and designated, as the agent of the garnishee, be entered by default or on said answer, or in said garnishment proceedings, unless and until such assent and consent to said judgment is shown in said answer or in the trial of the garnishment case ... and said judgment shall show that said official or authorized person, as such agent of the garnishee, consented that said judgment be entered in said garnishment proceedings." The State of Georgia took the position in the case of Redwine v. Morgan, 88 Ga. App. 625, that a State official could not be garnisheed under the 1945 Act without his assent or consent, and the Court of Appeals upheld the State in its contention. Prior to the 1945 Act, the courts of this State repeatedly held that a gar-

370
nishment proceeding against a public employee or official was contrary to public policy.
"To allow state, county or municipal governments to be subject to the process of garnishment would disrupt the affairs of such agencies to such an extent as to jeopardize the interests of the public at large."
Haverty Loan & Savings Co. v. McAfee, et al., 179 Ga. 673, 675.
The court in the above case followed the opinion of Justice Bleckley as set out in the case of Born, et al., v. Williams & Brother, 81 Ga. 796, 798. In this case Justice Bleckley said:
"The strength of the argument, as commonly presented, involves two considerations affecting public policy. The first is, that officers charged with municipal functions; should devote their time and labor to the public service, and not be burdened with care and attention respecting suits in which the public as such, has no interest. To answer garnishments often requires preparation by examination of accounts, or otherwise collecting facts on which to base the answer in each case. To have the answers drawn, verified and filed is a further tax on official time and diligence. The result in the aggregate, especially in large cities, may be a serious interference with the transaction of current municipal business, since the garnishments to be attended to from time to time may not only be numerous, but scattered through the city court, the superior court, and perhaps the circuit court of the United States. Furthermore, the answers may be contested as to their sufficiency, their truth traversed, etc., and to uphold them may require the city to engage in expensive litigation. The second consideration is, that to arrest or delay payments by a city for labor, services or supplies, would seriously disturb, and sometimes wholly obstruct its arrangements for procuring these necessaries, lead to frequent changes of employees and contractors, cause unfinished work to be abandoned or suspended for lack of prompt payments, etc., etc."
Another eminent Georgia jurist, Justice Lumpkin, expressed a similar view in the case of Leake & Vandivander, et al., v. Lacey, 95 Ga. 747, 748, wherein he said:
"... The municipality has no interest in aiding a creditor to collect his debt, or in shielding the debtor from paying it, and therefore there is no reason why it should be drawn into litigation pending between these parties, but many good reasons why it should not. It necessarily requires time, labor, and oftentimes expense in the employment of counsel and otherwise, to answer and defend garnishment suits, attend courts, and otherwise give attention to litigation; and these burdens should not be imposed upon public servants, whose entire time and attention ought to be given to the discharge of their official duties. Even if the municipality should be compensated in money for the loss of the time of its officials and the expenses of litigation, it by no means follows that all the evils would be relegated."
Justice Lumpkin also expressed a like opinion in the case of Connolly v. The Thurber Whyland Company, et al., 92 Ga. 651, 655, in which he stated:
"Exemption from the process of garnishment is not for the benefit of the officer, but for the benefit and protection of the public, whose interest it is that he shall not be subjected to the necessity of leaving his post of duty to answer in a proceeding in which he has no official concern. The present case affords a striking illustration of the necessity of a rule of this

371
kind. It is obvious, without elaboration, that to attend to the numerous lawsuits, (mentioned in the reporter's statement) now pending against Connolly, the chief of police must necessarily require a very large portion of his time and attention which should be devoted to the public service; and if he were liable to garnishment in every case of this kind which might arise, it is easy to perceive that he would be subjected to constant danger of heavy personal loss, or else be forced to seriously neglect his official duties. The former would be a great hardship upon him, and the latter a serious and entirely unwarranted hardship upon the public. The policy of the law forbids that either of these things should occur." I am of the opinion that the laws of the State of Georgia in reference to garnishment proceedings take precedence over rules and regulations promulgated by the Internal Revenue Service of the United States. I am of the further opinion that it was the intention of the General Assembly in passing the Act of 1945 to vest in any government official garnisheed a discretion as to whether or not he would consent to the garnishment. The Act itself clearly so states, and our Court of Appeals in the case of Redwine v. Morgan, herein referred to, has affirmed this interpretation. I am informed that the heads of the various departments of the State have in some instances answered summons of garnishment; in other cases they have declined to answer. Each case is considered on its merits.
GENERAL ASSEMBLY-Compensation Resolutions The whole of the amount appropriated by a compensation resolution must
be paid to the individual named in the resolution, not just the sum of expenses incurred.
December 14, 1955
Colonel W. C. Dominy, Director Department of Public Safety
You request my opinion regarding the disposition of an unexpended balance of $1,767.18 of funds in the total amount of $3,500.00 appropriated by the General Assembly for the relief of Trooper C. L. Everett of the Georgia State Patrol who was injured in line of duty December 16, 1952. You state that the remaining $1732.82 of the funds so appropriated have been expended to pay doctors, hospital and other bills incurred by Trooper Everett as a result of the injury referred to.
House Resolution No. 118-362g passed by the General Assembly at the Nov.Dec. 1953 session and approved by the Governor December 22, 1953 reads in part as follows:
"... Department of Public Safety is hereby ordered and directed to pay to Claude L. Everett the sum of $3,500.00 as compensation for injuries ..." (Emphasis added)
This sum covers: "... physical and mental pain and suffering . . . medical, doctor, hospital, and ambulance expenses ..." endured and incurred as a result of the accident described in the resolution. In my opinion it is proper that the unexpended portion of the original grant of $3,500 to wit: $1,767.18, be paid to Trooper Claude L. Everett under, and in accordance with the provisions of House Resolution No. 118-362g passed by the General Assembly during the Nov.-Dec. 1953 session and approved December 22,

372
1953 (Ga. Laws, Nov.-Dec. Sess., 1953, pp. 3183, 3184) as compensation for the injuries set out above and the expenses incurred in connection therewith, the same to be paid from the funds appropriate and available to the Department of Public Safety.
GENERAL ASSEMBLY-Compensation Resolutions Compensation resolutions, duly enrolled, become a legal charge against
funds of the State Highway Department. January 13, 1954
Ron. Jim L. Gillis, Chairman State Highway Board of Georgia
I am in receipt of your letter of this date requesting an opinion as to whether or not House Resolutions not regularly introduced by any member of the House or the Senate of Georgia, but regular in all other respects, become a legal charge against funds of the State Highway Department of Georgia.
I am of the firm opinion that such resolutions are a legal charge against the State Highway Department. In 186 Ga., at page 145 to 154, Williams v. MacFeeley, et al., the third and fourth headnotes read as follows:
Headnote 3. An enrolled act of the legislature, bearing the signature of the officers of both Houses, and the approval of the Governor, and deposited with the Secretary of State, can not be shown to be invalid by reason of entries or lack of entries in the journals of the General Assembly touching the details of its passage.
Headnote 4. A duly enrolled act, authenticated by the presiding officers of both houses of the General Assembly, approved by the Gov-. ernor, and depqsited with the Secretary of State as an existing law, is conclusively presumed to have been enacted in accordance with constitutional requirements, and it is not permissible to show the contrary by extrinsic evidence. Further, I am unable to find any requirement of the Constitution or of the rules of the Senate or the House which require a Bill to be sponsored by a member of the House, therefore, it is my opinion that an Act duly enrolled, bearing the signature of the officers of both Houses, and the approval of the Governor, and deposited with the Secretary of State, can not be shown to be invalid by reason of not being sponsored by a member of the General Assembly. As to your second query, House Resolution 71-262k is not violative of the constitutional prohibition against two subject matters in the same Act since there is but one subject matter in this Act to wit compensation growing out of the same accident, although made to two separate individuals.
GENERAL ASSEMBLY-Legal Effect of Legislation When Amended Act Misquoted (Unofficial)
Where amendatory act to the code purports to deal one subject matter, but a different section number which does not deal with such subject matter and, in fact, does not exist, legal effect of amendatory act is to amend section of same subject matter.
April 12, 1955 Honorable Frank P. McGowan
Receipt is acknowledged of your letter of April 5, 1955, in which you point out that the title of the above Act refers to Section 56-224 of the Code of Georgia,

373
as Amended, particularly by an Act approved March 31, 1937 (Georgia Laws 1937, p. 462) while Section 1 of the Act refers to Section 26-224 of the Code of Georgia, as amended, particularly by an Act approved March 31, 1937 (Georgia Laws 1937, p. 462). You ask if Act No. 182 is legally effective even though in the first line of Section 1 it refers to Section 26-224 instead of Section 56-224.
Title 26 of the Georgia Code deals with crimes and punishments and there is no Section 26-224 in our Code. Title 56 deals with Insurance and Section 56-224 deal with authorized investments by insurance companies organized and doing business in this State. Thus, it appears that the reference to Section 26-224 in the first line of Section 1 is a typographical error.
Section 102-102(9) of the Code of Georgia dealing with the construction of statutes provides:
"In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy. Grammatical errors shall not vitiate, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands." The Supreme Court of Georgia has held:
"In the construction of an amending statute, the law amended, as well as the amending act, should be construed in such a manner as to give full effect to the legislative intent". (Atlantic R. Co. v. Postal Tel. Co., 120 Ga. 268, .at page 276) Our courts have also held that clerical errors may be corrected in construing an Act. (129 Ga. 258, 267; 131 Ga. 708). Since there was no Section 26-224 to amend, and since the title and subject matter of Act No. 182 refers to and deals with the subject matter contained in Section 56-224, it is my personal view that the Act under consideration is legally effective.
GENERAL ASSEMBLY-Legislation-Effective Date (Unofficial) Act purporting to change the terms of the City Court of Athens, begin-
ning with the February term when not approved by Governor until March 7th, changes only those terms subsequent to approval date.
March 15, 1955
Honorable Arthur Oldham Judge, City Court of Athens
You request an opinion as to the validity of House Bill 443 (Act No. 281), that changes the terms of the City Court of Athens.
The Act amends an Act entitled "An Act to establish a City Court in the County of Clarke, and to provide for the appointment of a Judge and a Solicitor thereof", approved September 9, 1879 (Ga. Laws 1879, p. 291), as amended. By an Act approvedDecember 18, 1894 (Ga. Laws 1894, p. 212), the name of the Court was changed to "City Court of Athens".
The Supreme Court, in the case of Humthlett v. Reeves, 211 Ga. 210, at page 219, citing Carroll v. Ragsdale, 192 Ga. 118, said: "While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent should be effectuated even though some verbage may have to be eliminated." In State v. Cherokee Brick Co., 89 Ga. App. 235, at page 239, the Court of Appeals

374
said: "It is inadmissible to mutilate a statute by lifting a mere segment from its context and construing it without consideration of all other parts of the Act."
Section 2 of the Act was included to change the February term of the City Court of Athens, if the Act was approved before the February term, but as the Act was not signed until after the February term, and as the Act may be effective as to future terms of the City Court of Athens, it would seem that the Act would be effective as to all terms subsequent to the approval of the Act by the Governor.
As House Bill 443 (Act No. 281) amends the 1879 Act that established the Court, as amended by the various Acts, including the amendatory Act that changed the name of the Court, and as Section 2 is not essential to the effectiveness of the other provisions of the Act, I would be of the opinion that House Bill 443 (Act No. 281) would be effective to change the terms of the City Court of Athens as to all terms subsequent to March 7, 1955, the date of approval of the Act by the Governor.
GENERAL ASSEMBLY-Legislation Affecting Municipal Corporations (Unofficial) Amendment to charter of municipality by General Assembly requiring candidates for office of councilman to designate post for which they desire to offer, is legal without approval by referendum.
November 2, 1955
Honorable Hoke S. Wynne City Councilman Eastman, Georgia
This will acknowledge receipt of your letter of October 29, 1955, which reads as follows:
"The purpose of this letter is to ask you to render an opinion on the amendments made to the Eastman Charter during the last meeting of the General Assembly, #290 (House Bill #430), which amendments were made without being voted upon by the people.
"I am a member of the present City Council, and I would like for you to render an opinion on Section 20, page 2992, Local and Special Acts and Resolutions, Vol. II, for we will have an election November 16th of this year, and the people are not in sympathy with the manner they are going to have to elect their council. If you do not have time to render a decision on the entire amendment, then would you please let me hear from you in regard to the above section, before Nov. 16.
"The Eastman amendment is in Georgia Laws 1955, page 2986." Although you do not say what particular question you desire answered, I assume you have reference as to whether that portion of the Act which you designate as Section 20 is constitutional. It appears from the Act that the main change made by Section 20 is that now persons running for the office of councilman must designate the post for which they desire to offer, whereas heretofore, the persons receiving the highest number of votes have been elected. As far as I have been able to ascertain, no provision in the Constitution has been violated by this change, and I am of the view that it is legal.

375
GENERAL ASSEMBLY-Legislation-Population Bills Discusses the effect of population bills as an exception to general laws
of the state.
February 10, 1955
Honorable Marvin Griffin Governor of Georgia
This opinion is written pursuant to your request relative to the constitutionality of the above two bills, passed by the General Assembly and which are awaiting action by you.
House Bill 92 is a population act applying only to Fulton County and which amends Section 34-6201 of the Code so as to provide that in all primary and general elections held in Fulton County for the office of sheriff, a candidate must receive a majority (rather than a mere plurality) of all votes cast in order to be elected. In the event no candidate receives a majority, provision is made for a run-off between the two candidates having the highest and next highest number of votes cast. There is no general statute anywhere in the Code which expressly prescribes that a candidate must receive only a plurality of votes cast, but this principle apparently is generally understood as a part of our law and is universally followed except where otherwise specifically provided. As evidence that this rule is implied is the fact that the Constitution, Art. V, Sec. I, Par. IV (Code 2-3004) specifically requires that a candidate for Governor must receive a majority of all votes cast. Section 34-3213 (Supplement) requires that the candidates for nomination for the offices of Governor and United States Senator must receive a majority of the votes cast in the primary. Therefore, it may be said that a general law covers the subject embodied by H. B. 92, and if H. B. 92 is determined to be a special law, it cannot be upheld as constitutional under Art. I, Sec. IV, Par. I (Code Ann., 2-401) prohibiting special legislation where provision has been made by general law. Even if it be said, however, that a "general law" arising from "necessary implication" is not such a general law as referred to in 2-401, which of course would render H. B. 92 valid as against this section (Spielberger v. Hall & Co., 159 Ga. 511 [1]), the end result would not be affected, since S. B. 13 has not been advertised as a local bill, as required by Art. III, Sec. VII, Par. XV (Code Ann., 2-1915). Therefore, in any event, H. B. 92 must be a general law to be valid.
Senate Bill13 is also a population act applying only to Atlanta which amends Section 34-1904 (Supplement) of the Code by (1) requiring candidates to file notice of their candidacy with the city 30 days before the general election, there being a general law, 34-1904 (Supplement) requiring such filing to be done only 15 days prior to the election, (2) requiring all independent candidates for Mayor, i.e., those not nominated in a city-wide primary, to file a petition signed by not less than 5o/o of the registered voters, this provision being contrary to the general law as found in 34-1904 (Supplement) providing for qualification of candidates for municipal offices throughout the state as a whole. Therefore, the question to be resolved is whether or not S. B. 13 constitutes a special law, for it if does, it is clearly invalid in view of the general laws covering the same subject.
It is believed that both bills are unconstitutional as being special laws where provision has been made by existing general law. More specifically, it is believed that the acts are "special laws" because population bears no reasonable relation to their subject matter. However, it should be pointed out that any question involving a so-called "population act" is exceedingly difficult to answer, not only because of its inherent complexity, but because of the wholly inconsistent holdings of the

376
Supreme Court. Since the past few years have produced an alarming volume of this type of legislation affecting only local subdivisions, particularly Fulton County and Atlanta, it has been deemed desirable to exhaustively review the cases and restate some of the underlying, basic principles, which unfortunately have been too frequently ignored or misinterpreted.
Senate Bill 13 applies to all cities having more than 300,000 population, and House Bill 92 applies to all counties having a population of 300,000 or more, in both cases according to the last or any future Federal decennial census." It is therefore obvious that the population basis, or bracket, is identical in so far as relevant for purposes of testing their constitutionality-one applies to counties, the other to cities.
1. General Discussion of Art. I, Sec. IV, Par. I, (Code Ann., 2-401) This section will be broken down in two numbered parts, to facilitate discussion. In so far as relevant here, this section provides,
(1) "Laws of a general nature shall have uniform operation throughout the state, and
(2) "no special law shall be enacted in any case for which provision has been made by an existing general law."
It is frequently assumed, even in the court decisions, that both of the above two independent clauses of the compound sentence represent but one principle of law, usually embraced by only the latter, but such is manifestly not the case. In Mathis v. Jones, 84 Ga. 804, Chief Justice Bleckley, with his usual astuteness, pointed out this distinction, for at page 808 of the decision, it was said,
"A law may take its general nature either from its territorial comprehensiveness or from the nature of its subject matter, or from both. A law may be of a general nature notwithstanding its subject matter is of a local nature, its general nature being due alone to its territorial comprehensiveness.''
Firstly, the above quoted reference to laws taking their "general nature from the nature of their subject matter" clearly has reference to the first clause to 2-401, and simply means that as to certain things general in their character or nature, any law affecting them must be general to be vaild, without regard to whether or not there exists any prior laws on the subject. The idea was expressed at page 810, viz.:
"When general in the nature of its subject matter,- ... No local or special laws touching the essentials of these matters can be enacted, whether they trench upon a prior general law or not; but where the subject-matter of legislation is of a local nature,-such as fences, sale of intoxicating liquors and other matters of local police, laws may be general or special at the will of the legislature, with the sole restriction that, whilst a general law prevails, no special law can be enacted in any case for which the general law provides...."
Secondly, in so far as reference is made by the Chief Justice in the above two quotes to "general laws having a subject matter of a local nature," he clearly is referring to the second clause of 2-401, providing that "no special law shall be enacted in any case for which provision has been made by an existing general law," and which is the only clause drawn in question in practically all of the cases considering 2-401, and hardly without exception in those cases concerning population acts. This last clause, as interpreted by Judge Bleckley, simply means that as to those things local in their subject matter, the General Assembly originally has the election of dealing therewith by general law, i.e., a

377
law which is general because it operates uniformly throughout the state in a territorial sense, or the law-makers may elect to deal with the subject by a multitude of special laws, each affecting only a designated area or territory of the state, but that in any case where the General Assembly enacts a general law on the subject, no subsequent special law may either amend, alter or repeal the prior general law:
"A law which is general by reason of its territorial comprehensiveness only, can no more be limited in its operation territorially by a subsequent special law than one which is general in the nature of its subject-matter. You cannot make a general statute cease to be general otherwise than by another statute repealing it. That is, under the Constitution of 1877, you cannot repeal a general law in part by a local law; for in the eye of the Constitution, every local law is special relatively to a general law. A law once territorially general must remain so until it is wholly repealed...." (Emphasis supplied) Id., p. 809.
It will thus be noted that as to subject-matters general in nature, whatever legislation enacted with respect thereto must be territorially general to be valid, whereas with respect to subject-matters local in their nature, the General Assembly has a choice, subject only to the restriction that once a territorially general statute is enacted, no special legislation can thereafter be enacted until the general law is repealed entirely. The first instance, i.e., laws general because of their nature, resembles a somewhat analogous situation presented by Art. VI, Sec. IX, Par, I, (Code Ann., 2-4401), the "uniformity of courts" provision, and Art. XI, Sec. I, Par. VI, (Code Ann., 2-7806), the "uniformity of county tribunals" provision. The courts have held that these two constitutional provisions impose separate and distinct uniformity requirements upon the subjects embraced therein, independent from those required by the second clause of 2-401, in that as to matters covered by these two sections, all laws thereunto relating must be uniform, and that no population classifications were permissible. See Toole v. Anderson, 177 Ga. 814; Law v. McCord, 143 Ga. 822; Atlanta v. Sims, 210 Ga. 605, 606 (2). In other words, a "special" law is invalidated by the second clause of 2-401 only where a general law covering the subject already exists, while the first clause of that section and sections 2-4401 and 2-7806, invalidate any special legislation, even where no general laws dealing with their respective subject matters exist.
2. Discussion of Population Classifications. In the full bench decision of Stewart v. Anderson, 140 Ga. 31, an act was under consideration which required designated county officers to file certain statements as to the number of assistants employed by them, their compensation, and other information, all contrary to the then existing general statutes. The act in question applied only to counties having a population of 100,000 by the last or any future census. Concerning this classification, the court declared:
"The legislature may make classifications for purposes of legislation and pass general laws with reference to such classes. They may classify counties. The basis of classification must have some reasonable relation to the subject matter of the law, and must furnish a legitimate ground of differentiation. Mere arbitrary discriminations are not permissible under the constitution...." (Emphasis supplied) Applying this principle, the court then determined that a reasonable relation existed between the population of a county and the amount of work done by its officials, and considered on this basis alone, the act was held to be subject to no objection, but due to the fact that the act affected certain officials whose duties

378
extended over several counties, the court felt constrained to declare the act invalid on the principle that it was "so hedged about and restricted" as to apply to only one county, namely Fulton.
There are numerous cases, mostly subsequent to the Stewart case, which have apparently ignored this principle, but it is believed that the most recent decisions of the court have reverted to it.
One such case ignoring the principle is Nichols et al. v. Pirkle, 202 Ga. 372(2a), construing an act regulating trailer camps in all counties have more than 3,000 population. Although, as a matter of fact, population probably does bear a reasonable relation to this subject matter, certain broad language found in the opinion seems to ignore this point, for in speaking of the plaintiff's claim of unconstitutionality under 2-401, the court declared:
"This contention is clearly without merit, in view of the repeated rulings by this court to the effect that laws operating uniformly throughout the State with respect to the subject-matter, but applying only to cities or counties of a common class having a certain number of inhabitants or more, are general statutes having uniform operation. Starnes v. Mutual Loan & Banking Co., 102 Ga. 597, 606 (29 S. E. 452); Cooper v. Rollins, 152 Ga. 588, 591 (3) (110 S. E. 726, 20 A. L. R. 1105)."
Other cases ignoring the principle that for population to be a basis of classification, some reasonable relation must exist between it and the subject matter, are Murphy v. West, 205 Ga. 116, 119; Crovatt v. Wilson, 101 Ga. 246; Starnes v. Mutual Loan & Banking Co., 102 Ga. 597, 606. In some of these cases, as in the Nichols case, supra, population probably did bear a reasonable relation to the subject matter, but the courts apparently did not base the decision on this ground, but merely assumed that any population classification, subject to the qualification discussed hereafter, would be valid. This qualification, which has been generally followed, is that any population act, even those where the reasonable relation does exist, must not be so hedged in with restrictions and limitations as to he purely arbitrary. One such holding is presented by Worth County v. Crisp County, 139 Ga. 117(2), where an act provided that where there were two contiguous counties, one having a population of not less than 19,146 and not more than 19,148, the county line between them might be changed by the procedure set out in the act rather than by the existing general law. In declaring this act void, it was said:
"The possibility of other counties having such population by any subsequent census is too remote to form a basis for a reasonable classification on the subject of territorial generality of the act ..."
In Tift v. Bush, 209 Ga. 769, an act undertook to place designated county officials on a salary rather than a :fee basis, in "all counties having not less than 40,000 nor more than 50,000 population by the present and any future census." The court held that even assuming a reasonable relation existed between popullation and the subject matter, the act could not be upheld since by use of the conjunctive "and" rather than the disjunctive "or" in referring to the census, the act had permanently frozen within its operation all counties falling. within its limits at the time of enactment.
In Estes v. Jones, 203 Ga. 686, 688(3), an act provided that members of boards of education in all counties having not less than 85,000 population and not more than 90,000, could not succeed themselves. Although this bracket seems very restrictive and arbitrary independent of the question as to reasonable relation of the subject matter to population, the act was upheld on the ground that no existing general law covered the subject. This decision completely ignored the

379
problem as to whether or not the act had been properly advertised, but the decision is explainable on the ground that apparently no question was raised by the parties as to its advertisement, and it is well settled that the court only considers constitutional questions properly raised.
To an increasing extent, the courts have been considering whether or not in all population acts, population bears any relation to the subject matter. For instance, in Cain v. State, 166 Ga. 539, an act applying to designated population bracket provided that the jury in misdemeanor cases would prescribe the punishment to be imposed upon conviction, there being a general statute declaring that the Judge would exercise this power. The court held that there was no reasonable relation between the manner of fixing a convict's punishment and the population of the county in which he was convicted, and accordingly the act was declared void as being in conflict with what is now Section 2-401.
In Williamson v. Housing Authority of Augusta, 186 Ga. 673, 677(2), a housing authority act applying only to cities having a population of 5,000 or more was upheld, the Court finding that a reasonable relation existed in that it was usually only the larger cities which were confronted with slum area conditions.
Barge v. Camp, 209 Ga. 38, upheld an act authorizing any county having therein any city with a population of 300,000 or more, to contract with such city for police services, rather than provide such service itself.
But in Atlanta v. Wilson, 209 Ga. 527, an act providing a special condemnation procedure for counties and municipalities having a population of more than 250,000 was declared invalid, the court stating:
"Population in no wise affects or relates to such a privilege.... In order to constitutionally classify for legislation, the basis for classification must relate to the object or purposes of the legislation. Geele v. State, 202 Ga. 381 ..." The same act was subsequently re-enacted, and again was declared void in City of Atlanta v. Sims, 210 Ga. 605. Although the court in both instances pointed out several incidental features of these two acts, it is believed in view of the above quoted language, that these features were not controlling. The Court thereafter momentarily departed from this principle in Herrod, et al. v. O'Beirne, 210 Ga. 476, in upholding an act relating to rural cemetery permits in all counties having a population of 125,000 or more. In an excellent dissenting opinion, Justice Almand pointed out that the population of a county as a whole had no relation to the establishment of cemeteries in its rural areas, since conceivably the greater part of its population might well be concentrated in the cities. However, the Herrod case did not long survive, for in Humthlett et al v. Reeves, et al, 210 Ga. 210(1), involving an attack on the same act, the Court reversed its position and overruled the Herrod case, declaring that:
"Acts which have been classified upon the basis of population have been held to be general and not special laws where population has some reasonable relation to the subject matter of the law, and furnishes some legitimate ground of differentation ..." (Emphasis supplied)
While it is true that the act under consideration in the Humthlett case involved an additional element, i.e., it was made applicable to all counties adjoining those within the population figure, yet it is believed that the result would not have been changed in the least absent this element. In the Herrod case, at page 478, the majority opinion uses language indicative of an understanding that any population act would be valid, assuming of course, that the act was not hedged in with a "floor and ceiling", without regard to the question of reasonable basis for differentiation on the basis of population. The Humthlett case rejected this theory.

380
Perhaps a legalistic way of distinguishing the cases is to say that where a rational basis exists for differentiation between those units with a population classification and those outside it, the classification is one of subjects or things, whereas, when there is no such basis, the classification is one merely of territory. In Mathis v. Jones, 84 Ga. 804, 808, Justice Bleckley pointed out that the "generality" required by what is now 2-401 is "territorial generality," and in Sasser. v. Martin, 101 Ga. 447, 456, it was said that the legislature was free to classify "persons or things."
Therefore, it seems safe to say that for population to be used as a basis of classification in any case, a reasonable relation must be shown between population and the subject matter of the act. If such relation does not exist, the law may be said to be just as arbitrary as if the legislature had hedged it in with limitations and restrictions.
The question to be resolved now is whether or not population bears such a reasonable relation to the subject matters of the two bills as would authorize the General Assembly to differentiate between cities and counties on this basis.
Apparently, very few cases have been decided concerning population acts amending the election laws. Green v. Harper, 177 Ga. 680 (2), was disposed of on the ground that the subject matter of the act, i.e., party executive committees, was not deal with by general law, and the act under consideration was upheld on this basis.
First, with regard to S. B. 13, it would appear that a law requiring independent candidate to procure signatures of a designated percentage of the qualfied voters is of such a nature as would not permit a differentiation on the basis of population. While such a general requirement undoubtedly could be said to have some merit in that it prohibits the ballot being encumbered with numerous "nonserious" contenders, this consideration is just as prevalent whether the city has a population of 500 people, 299,999, or over 300,000. In fact, whatever differences may exist between cities of different population in this respect would seem to require an exception as to large cities, since it would present an onerous task, considered from the physical work alone, to procure 5% -of say, 90,000 voters. A "serious contender" for public office having good chances of winning might well find it difficult if not impossible to finance such an undertaking.
Likewise, the other provisions of S. B. 13 seem to fare no better when subjected to scrutiny in light of the applicable test.
It is simply arbitrary to require a candidate to qualify for municipal office 15 days before the election in one city, and 30 days before election in another city, solely because the latter happens to have a larger population.
Turning now to H. B. 92, little can be said other than that population bears no relation to this subject matter.
Presumably, the bill is aimed at ticket-splitting, but this is a subtle stratagem just as perniciously effective in small towns as in large ones.
Unquestionably, the comparatively enormous population of our largest city creates myriad problems not found in the less populous areas, but the subject dealt with by H. B. 92 does not, it seems, fall within this category.
In conclusion, the result reached here may seem singularly outmoded to some, coming as it does at a time when "home rule" is receiving its most ardent support in the history of the state, but the command of the Constitution is clear. It is the function of the legislature and people to amend that instrument, and not the courts, or for that matter, the Law Department. Whatever notions other supple and fawning tribunals may entertain about the pliability of Constitutions, we, like Caesar, have sought to be "constant as the Northern Star."

381
GENERAL ASSEMBLY-Legi!$1ationAffecting Term of Office (Unofficial) General Assembly has authority to enact legislation to provide for the
election of two additional County Commissioners in a county, and invest in said commissioners the same powers, rights and duties of the commissioner then serving; or it may enact legislation to abolish the term of.office of the present commissioner provided such legislation is approved by referendum; it may also change the salary of a commissioner during his term of :qffice.
January 3, 1955
Honorable E. Alvin Foster Representative, Clayton County
This will acknowledge receipt of your letter of December 28, 1954, the pertinent part of which reads as :follows:
"Will you kindly give an opinion on the following questions? It is :tny intention to introduce a bill in the coming Legislature for the purpose of submitting to the people of Clayton County an election to elect two additional County Commissioners.
"At the present time, we have one Commissioner and a five man advisory board appointed by the Grand Jury, and the present Commissioner has been elected for a four (4) year term and has two (2) more years to serve.
"QUESTION 1. Can two additional commissioners be elected with the same power, rights and duties as the commissioner now serving?
"QUESTION 2. Does the Legislature have power to abolish the present Commissioner's office and replace it with a three (3) man commission elected by the people?" You have also orally requested my opinion as to whether the compensation of the present commissioner may be changed during his term of office. Article III, Section VII, Paragraph XV of the Constitution of the State of Georgia of 1945, as amended, (Code Section 2-1915) reads 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 to the General Assembly. No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author, to the effect that said notice has been published as provided by law. No office to which a person has been elected shall be abolished, nor the term of 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. When any local law shall add any member or members to any municipal or county governing authority, the members of which are elected by the people, such local law must provide that the member or members so added must be elected by the qualified voters of the political subdivision affected under such rules as the General Assembly may in said law provide." The answer to question number one is yes, provided that the last sentence of the above. quoted constitutional provision is followed. The answer to question number two is yes, provided the next to the last sentence of the above quoted constitutional provision is followed. The answer to your oral question is yes (See Houlihan vs. Saussy, 206 Georgia, page 1).

382

GENERAL ASSEMBLY-Legislation-Title (Unofficial) It is not necessary for an Act to contain all that is mentioned in the title.

January 3, 1956

Honorable A. R. Lawton

Receipt is hereby acknowledged of your letter relative to the Act of 1947 (Ga. Laws 1947, p. 1130), conferring authority on School Boards to condemn lands. It appears that your problem arises from the fact that the caption of the Act refers

to approval by the State Board of Education prior to condemnation, whereas the body does not contain any such requirement, and counsel for a condemnee claims

that this invalidates the Act.

The first answer to this contention is that Art. III, Sec. VII, Par. VIII (Code Ann., Sec. 2-1908) does not require that the body of an Act express everything

mentioned in the caption, but o.nly vice versa.

However, what actually happened in .this case has happened many times

before, and that is, the Act as originally introduced included a section in the body

requiring approval by the State Board prior to cond~mnation, and was later

amended on the floor by.!5triking this section, but the floor amendment inadvertently

neglected to amend the caption accordingly.



The title of an Act is generally not considered part of the Act, as evidenced by the fact that it is never looked to except in case of ambiguity in the body. Eastman et al., v. McAlpin, 1 Ga. 157; and see specifically Swift & Co., v. Evans, 125 Ga. 109; 112, where it was said:

"While the preamble is not, strictly speaking, any part of the act itself, yet where the body of an act is ambiguous or uncertain, resort may be had to its preamble for the purpose of ascertaining the legislative

intent." See also the many cases annotated under Code Ann., Sec. 102-102(9), catchword, "Title".

GENERAL ASSEMBLY-Legislation-Effect of Changes Not Encompassed in Title of Act (Unofficial) Title of act relating only to change in number of days in which Jury Commissioners shall be allowed to revise jury lists, a change in body of act of the word "citizens" to the word "men" which would prohibit service of women jurors is unconstitutional and; therefore, it is still legal to place the names of women on jury lists.
August. 11,. 1955
Honorable H. W. Moss This will acknowledge receipt of your letter of August 4, 1955, in which you
state that the General Assembly passed an Act at the 1955 session (Ga. Laws 1955, p. 247) amending Code Section 59-106. This Section relates to the revision of jury lists. This Act, when quoting the Section as it should read as amended, used the word "men" instead of the word "citizens", as used in the 1953 Act (Ga. Laws 1953, Nov.-Dec. Sess., p. 284), which Act made it possible for women to serve on juries. You request my opinion as to whether, in view of the wording of the 1955 Act, it will now be legal for Jury Commissioners to place the names of women on the jury lists.

383
The title of the 1955 Act reads as follows:
"An Act to amend Section 59-106 of the Code of Georgia of 1933, relating to the revision of jury lists, by providing that the time allowed boards of jury commissioners after the first Monday in August in the years of their meeting to revise jury lists shall be extended from thirty to sixty days; to repeal conflicting laws; and for other purposes."
It will be noted that the only provision covered by the title relates to the number of days in which Jury Commissioners shall be allowed to revise jury lists. This number is to be changed from thirty to sixty. Therefore, it is evident that the changing of the word "citizens" to "men" in the body of the Act is something which is not covered by the title, and would therefore be unconstitutional under the provisions of Article III, Section VII, Paragraph VIII of the Constitution (Code Sectio~ 2-1908), which provides:
"No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof."
I feel certain that the Supreme Court would hold th11t particular portion of the Act unconstitutional without invalidating that part relating to the extension of the number of days, under the well-established theory that if an unconstitutional portion of an Act may be removed and still leave anough of the Act to stand alone, such will be done. It appears to me that this theory could certainly be followed in this particular instance.
Consequently, in answer to your specific question; I am of the opinion that it is still legal for Jury Commissioners to place the names of women on jury lists under the provisions of the 1953 Act.
GENERAL ASSEMBLY-Qualifications of Members (Unofficial) A member of a County Board of Education may serve as a member of
the General Assembly. April 29, 1954
Honorable Carl Bryant
You ask whether membership on the Lumpkin County Board of Education will disqualify a person from serving as a State Senator.
The eligibility of members of the General Assembly is set forth in the Constitution of 1945 (2-1606), which provides as follows:
"No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of hiin shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term/'
The appellate courts have held that a member of the County Board of Education is a county officer. See Stanford v. Lynch, et al, 147 Ga. 518. The case of McWilliams v. Neal, 130 Ga. 733, is not applicable in that the briefs of counsel for

384
both parties agreed that a member of the county board of education was a state officer. The court there specifically pointed out that they were not determining whether the board member was a state officer.
I can find nothing in the law that prohibits a member of a county board of education from serving as a member of the General Assembly.
GENERAL ASSEMBLY-Qualifications of Members (Unofficial) A member of the General Assembly can hold the office of Justice of the
Peace.
December 9, 1954
Honorable S. E. Sappington You inquire relative to the eligibility of a member of the General Assembly
to hold the office of justice of the peace. Your attention is called to Article III, Section I, Paragraph 6 of the Consti-
tution of Georgia, which is codified in the 1933 Annotated Code as Section 2-1606, which sets forth the eligibility of members of the General Assembly. You will.note that justices of the peace are excepted from the appointments forbidden under this constitutional provision.
. A member of the General Assembly can hold the gffice of justice of the peace
while a member of the General Assembly.
GENERAL ASSEMBLY-Qualifications of Members (Unofficial) A County Commissioner can be a member of the General Assembly.
August 8, 1956
Honorable J. A. Gilmore You request that I advise you on the. following question: (1) Can a member of the Board of Commissioners of Roads and Revenue be
a member of the Legislature? There is no specific statutory or constitutional provision making a county
commissioner ineligible to serve as a member of the General Assembly in Georgia. There is a stautory provision with which you are familiar that prohibits a
person from holding two county offices at the same time. However, a member of the General Assembly is not a county officer, but a State House officer, and therefore, there would be no statutory or constitutional prohibition against a county commissioner's name being on a ballot for re-election to a county office, while at the same time being on the same ballot for a State House office. There are some county offices, such as county school superintendent, that. receive an emolument from the State, and they 1VOuld be disqualified under the constitutional provision from serving in the General Assembly; however,. a county commissioner does not receive any emolument from the State and is therefore qualified to serve as a member of the General Assembly while holding.his county office.

385
GEORGIA INDUSTRIAL LOAN ACT-Effect of The Georgia Industrial Loan Act by implication repealed the license tax
previously in effect for salary and wage buyers.
April 19, 1955
Honorable Clarence C. Campbell Director, Property Tax Division
"We have had several inquiries as to whether or not the Industrial Loan Act repealed the Salary & Wage Buyers Law. Attached hereto is a letter from the Tax Collector of Richmond County requesting this information.
"In order that we may properly inform this Tax Collector and others, please give us an official opinion as to the status of the Salary & Wage Buyers Law since passage of the above Act."
In the letter you attached to your communication, Mr. Otto E. Grimstead, .Tax Collector, Richmond County, Augusta, Georgia, stated that several wage buyers. say that they are not now liable for the tax imposed under Code Section 92-2010 since the passage of the Industrial Loan Act. (Ga. Laws 1955, p. 431)
The purpose of the Industrial Loan Act was to regulate the business of making loans of $2,500 or less and to bring within the regulation of this Act and within its provisions all loans of $2,500 or less, whether or not made by a person organized to operate under the provisions and authority of some other statute, except those persons and loans expressly exempted by the terms of the Act.
The Industrial Loan Act exempted from the provisions of the Act businesses organized or operating under the authority of any law of this State or of the United States relating to banks, trust companies, real estate loan or mortgage companies, Federal and Georgia building and loan associations not including "like associations" organized pursuant to Section 16-101 of the Code of Georgia of 1933, as amended, credit unions and pawn brokers, or. to the transactions of such businesses which businesses are expressly excluded from regulation under this Act and exempted from the operation of its provisions. The Act expressly provided that no bank, trust company or national bank, insurance company or real estate loan or mortgage company, authorized to do business in this State shall be required to obtain a license under this Act. It further provided that persons making loans and charging interest thereon at a rate of not more than eight (8) per cent simple interest per annum shall not be subject to the provisions of this Act or required to obtain a license thereunder. This Act expressly repealed (Section 22):
"(a) The words 'other like associations' contained in the second line of Chapter 16-1 of the 1933 Code of Georgia. as amended relating to Building and Loan Associations and 'other like associations' and the definition of 'other like associations' following thereafter, so that such 'other like associations' shall not be authorized to operate under said chapter;
"(b) Chapter 25-2 of the 1933 Code of Georgia, relating to the business of making loans on personal property or buying wages or salaries in general, providing for the licensing of such business, the giving of bond by licensees, and the regulation of such business;
"(c) Chapter 25-3 of the 1933 Code of Georgia, relating to small loan business, providing for the licensing and regulation of such businesses by the Superintendent of Banks, fixing the rate of interest chargeable at 11f.a per cent per month as amended by the Act of 1935 (Ga. Laws p. 394);"
and also contains the following provision:

886
"(d) Be it further enacted by the authority aforesaid that all laws or parts of laws inconsistent with any of the provisions of this Act be, and the same are hereby repealed, to the extent of such inconsistency." The Act did not expressly repeal Code Section 92-2010, which is as follows:
"92-2010. Salary and wage buyers.-Each person, firm, corporation, or partnership buying salary or wage accounts or lending money upon the same shall pay $250 for each office or place of business maintained." However, I am of the opinion that the business of lending money on salaries is covered in the Industrial Loan Act (approved March 4, 1955) and that the tax imposed in Section 92-2010 on the business of lending money on salaries an.d wages was repealed by implication. In the case of Thornton v. The State, 5 Ga. App. 397, the court held. that repeal by implication results where the later of two acts covers the same field, and while not purporting to amend the former act, plainly shows that it was meant as a substitute for it. Again, in the case of Central of Georgia Railway Company v. Keating, 45 Ga. App. 811, the court held that implied repeal, though not favored, is accomplished when the whole statute is revised in later enactment. The Supren).e Court of our State in the case of City of Atlanta v. Goodman, 183 Ga. 834, said that while repeals by implication are not favored, yet repeal by implicaton will result where a statute is manifestly intended to cover subject matter of a former statute, and to act as a substitute for it, notwithstanding the express provisions of the Acts are not repugnant. I am therefore of the opinion that a person who lends money on wages and salaries is subject to the provisions of the Industrial Loan Act, approved March 4, 1955, and is not liable for the license tax provided in Code Section 92-2010.
GEORGIA INDUSTRIAL LOAN ACT-Effect of (Unofficial)
Industrial Loan Act covers all persons making loans of $2,500.00 or less,
except those persons making such loans at a rate of not more than So/o
simple interest per annum.
July 21, 1955
Honorable Downing Musgrove
You outline the loan operation of a friend who also conducts a general insur-. ance business and ask if such operation comes under the provisions of the Georgia Industrial Loan Act.
You state that this person has available for lending purposes the sum of $45,000 which is supplied by one source; that all loans are made in Clinch County; that no advertising is done and no solicitations are made; that loilns in amounts of $100.00 and up are made for periods from 1 to 24 months. Most loans are paid back monthly, however some loans are for 6 or 12 months. The lender bandies (purchases) commercial paper (conditional sales contracts) on automobiles and other personal property with recourse to the seller of such paper and also makes loans on real estate. When a loan is made on dwellings and furniture, fire and extended coverage insurance is written, with the borrower being permitted to put up existing policies on such properties as collateral by inserting a loss payable clause. Fire, theft and collision insurance are required where an automobile is taken as security for the loan; All insurance is written through licensed companies at rates duly filed with and approved by the Georgia Insurance Department. No inspection fees or handling charges are made and refunds of unearned insurance

premiums and unearned interest are made .when the loan is paid before maturity. You .state that, in your opinion, it was not the intent of the General Assembly to bring. this type of operation under the provisions qf the Georgia Industrial Loan Act.
The intent of the Legislature should be determined, if possible, from the language employed in the Act itself. In Section 2-Purpose-is found.. the following language:
"The purpose of this Act is to authorize and provide regulation of the business of making loans of $2500, or less, and to bring within the regulation of this Act and within its provisions all loans of $2500 or less, whether or not made by a person organized or operating under the provisions and authority of some other statute except those persons and loans expressly exempted by the terms of this Act" (Underscoring supplied.)
In Section 3 is found this language: "Scope-2-This Act shall apply to all persons, as hereinafter defined,
unless expressly exempted herein, engaged in the business of making loans .. of $2500 or less.... On and after the effective date of this Act no person
within the operation of this Act shall . , or engage in the business of making such loans of $2500 or less, without a license from the Commissioner as provided in this Act..." (Underscoring supplied.)
The language of the Act is clear and unambiguous that the Act covers all persons making loans of $2500 or less, unless expressly exempted under the terms of the Act. The exemptions are set forth in Section 5 and the only exemption that might possibly fit the operation under consideration is:
"It is further provided that persons making loans and charging interest thereon at a rate of not more than 8 per cent simple interest per annum shall not be subject to the provisions of this Act or required to obtain a license hereunder."
It is my opinion that the type of operation submitted by you does not fall
entirely within the exemption. In the first place the lender is conducting several types of finance business:
1. He is buying conditional sales contracts on personal property with recourse;
2. He is making real estate loans; and 3. He is making loans of $2500 or less, which fall within the purview of the Georgia Industrial Loan Act.
The fact that the operating capital is furnished by some one other than the "lender", in my opinion, is not controlling in arriving at a decision on the operation involved. Neither is tlie fact that the "lender" does not collect all of the fees and charges permitted, since the fees and charges set out in the Act are permissive.
The buying of commercial paper, either with or without recourse, from a bona fide dealer is not prohibited by the Georgia Industrial Loan Act; neither is the making of loans secured by mortgages on real estate, where the rate of interest does not exceed 8% per annum simple interest. However, when a loan is made at 8o/o and the interest is added to the face of the loan and payments are pro-rated over the life of the loan, this is not 8% simple interest per annum and is a violation of the laws of this State. The same is true when interest is deducted in advance. In this connection your attention is directed to Sections 57-101 and 57-116 .of the Georgia Code.
The making of loans of $2500 or less, re-payable in one or more installment payments, whether or not security is required, in my opinion falls within the scope

388
of the Georgia Industrial Loan Act, and requires a license on the part of the lender. I presume that you have received the,copy of the Act which was mailed to you last week. You will note that the penalty for violating its provisions is very severe in that it makes loans by unlicensed lenders void.
If you desire to obtain a license for the person involved, blanks can be obtained from Mr. Zack D. Cravey, Georgia Industrial Loan Commissioner, here at the Capitol. You may also be interested in a copy of the Act and the regulations promulgated thereunder by the Commissioner. A charge of $1.00 is made for this booklet by the Commissioner.
GEORGIA INDUSTRIAL LOAN ACT-Endorser A lender cannot require an endorsement for a loan under the Georgia
Industrial Loan Act.
June 17, 1955
Honorable Zack D. Cravey Industrial Loan Commissioner
You ask if a person who occasionally endorses the note of a borrower at a bank or small loan company and charges a fee for his endorsement is required to obtain ~ license under the Georgia Ind-qstrial Loan Act. You also ask if the small loan company would be violating either the spirit or letter of the Act by permitting an occasional endorsement by such endorser on a loan at said loan company.
The Georgia Industrial Loan Act, Section 5, expressly exempts from its operations transactions with banks. You, as Industrial Loan Commissioner, therefore, would not be concerned with any charges made by an endorser against the borrower, in a transaction with a bank.
The question of endorsement charges on loan notes at licensed lenders is not specifically covered in the Industrial Loan Act. This Act is an exception to the general law of Georgia fixing the lawful rate of interest at 8o/o per annum by contractual agreement, and must be strictly construed. Since the Act specifically sets out certain charges and interest rates that exceed those. allowed by the general law, I am of the opinion that only such charges as are specifically set forth in the Act may be made in connection with obtaining a loan from a licensee.
There is no provision in the Act that permits a lender to require an endorsement of a loan note or contract. The Act spells out the type of security which a lender may accept and endorsements are not included therein. I am, therefore, of the opinion that a loan company would be violating the spirit if ~ot the letter of the Industrial Loan Act by making loans on the security of a paid endorser, and at the same time charging the fees permitted by the Act. You would certainly be authorized under your regulatory authority to promulgate regulations covering this type of transaction.
If the party involved in the question submitted desires to continue negotiating loans other than through banks, I suggest that he obtain a license and operate in accordance with the provisions of the new law. To permit the type of operation outlined would be to throw the door wide open to all kinds of schemes and subterfuges to get around the provisions of the Industrial Loan Act.

389
GEORGIA INDUSTRIAL LOAN ACT-Insurance in. connection with loa:n (Unofficial) Discussion of prepared bill permitting money lenders to accept insurance on tangible property and on the life and health of borrowers. (Editor's Note: See "Georgia Industrial Loan Act," Georgia Laws, 1955, page 431.)
December 21, 1954
Mr. John M. Nuckols, Executive Secretary You ask if the State of Georgia has a statute or law specifically relating to
the control or regulation of the writing of insurance on real or personal property by money lenders.
At present there is no such statute in this state, however, a special committee appointed by the Georgia Legislature has been studying the small loan laws of this State with a view of proposing new legislation in that field. The committee has gone at length into the question of insurance written in connection with such loans. A bill is being drawn, which is still in a rough draft stage, which would permit money lenders to accept insurance on tangible property and on the life and health of the borrower, the amount of which must be reasonably related to the type and value of the property insured and to the amount and term of the loan, and shall be obtained from an insurance company licensed by the Insurance Commissioner, at rates lawfully filed with the Commissioner and through a regularly licensed insurance agent. The Act provides that the charges for insurance shall not be considered usurious interest, and authorizes the Commissioner to make reasonable rules and regulations governing the writing of su-ch insurance.
GEORGIA INDUSTRIAL LOAN ACT-Interest and Usury (Unofficial) Application of the 5% per month usury rule on the delinquent charge
of 5% allowed by Georgia Industrial Loan Act.
June 23, 1955
Mr. Denmark Groover, Jr. I have your letter requesting an interpretative opinion of the application of
the 5% per month rule on the late charge of 5% allowed in Section 15(d) of the Georgia Industrial Loan Act. You also ask how the 5% per month is calculated under the Industrial Loan Act.
It is my opinion that the 5% per month maximum set forth in Section 57-117 of the Code of Georgia is an overall control of all fees, interest and charges, exclusive of insurance premiums, that may be collected under the Industrial Loan Act. The interest and fees set out in Section 15 (a) and 15 (b) would, on certain short term small loans, exceed the 5% per month limitation of Section 57-117, and since this section was not repealed by the new act would be a violation of the criminal usury ~tatute. Therefore, the proviso was necessary that the charges permitted by Sections 15(a) and 15(b) must not exceed the 5% per month maximum.
When Section 15(c) was written the Legislature saw fit to exclude insurance premiums from the 5% per month criminal usury statute. However, no such exclusion was made of the late charge of 5% in Section '15(d) of the act.
When the Legislative Commission was considering new legislation in the small loan field, it was the thinking of the group that the 5% per month criminal usury statute should control the total fees and interest collected by a lender and when the bill was being debated in the Legislature proponents argued repeatedly

390
that the maximum charges permitted by the bill was 5% per month, which would not violate existing statutes.
I am, therefore, of the opinion that the 5% delinquent fee can be charged only when such fee together with all other charges, fees and interest, exclusive of insurance premiums, does not exceed 5% per month for the total time the loan has been outstanding.
With reference to your second question, it is my opinion that the total charges, whether discounted or added to the face amount of the loan, can at no time exceed 5% per month of the total amount of money advanced to the borrower. I do not concur in the thinking of Mr. Kirk Landon, Vice-President of the American Bankers Life Assurance Company, that the lender is advancing to the borrower the amount of interest on the loan, since the interest has not been earned when the loan is made and will not be fully earned until the final payment is due.
GEORGIA INDUSTRIAL LOAN ACT-Licenses A veteran can be required to pay a license fee for operating under the
Georgia Industrial Loan Act, since the fees imposed are for regulation and are not occupational taxes.
May 16, 1955
Honorable Zack D. Cravey Comptroller General
You request an opinion on the question of whether or not a disabled war veteran is required to pay a license fee in order to operate a small loan business under the Georgia Industrial Loan Act.
Section 84-2011 Ga. Code Ann. 1954 Supp., reads as follows: The following classes of persons subject to the limitations hereinafter provided may peddle, conduct business, or practice the professions and semi-professions in any town, city, county or municipality in this State without paying a license for the privilege of so doing, provided such person receives a certificate of exemption issued by the State Revenue Commissioner as hereinafter provided: (a) Any disabled veteran of any one or more of the following wars:
(1) Spanish-American War, (2) World Vlfar I, (3) World War II, (4) Korean Conflict.
(b) Any blind person. (c) Any veteran of peace-time service in the United States armed forces
who has a physical disability incurred during the period of said service. (Acts 1953, Nov. Sess., pp. 431, 434.) In McKinney v. Patton et al., 176 Ga. 719, the Supreme Court held that under the statute a veteran was authorized to peddle or conduct business "without paying a license for the privilege of so doing," thus providing an exemption from liability for occupation taxes without purporting to confer any additional right or privilege. (Emphasis supplied). The holding in the McKinney case was followed in Snipes v. Flournoy et al., 178 Ga. 815, in upholding a judgment of refusal of mandamus to require the Georgia Real Estate Board to issue to plaintiff as a disabled war veteran a license as a real estate broker without paying the $25.00 license fee. The distinction between an occupation tax and a regulatory license fee was pointed up by the case of City of Marietta v. Howard, 208 Ga. 719, which held that a taxi operator would be required to purchase a license from the City even though

391
the operator was a disabled war veteran and was exempted from occupation taxes. Judge Duckworth, speaking for the Court said: "That law (Section 84-2011 Ga. Code Ann.) purports only to relieve the person there described from paying any fee to cities, towns, or counties for the right to engage in business. The law stops there, but this petitioner seems to have construed it to constitute a denial of any power of such subordinate governmental units to regulate businesses that require close policing. The law relied upon neither expressly nor by implication takes away the police power of towns, cities, or counties.
In an opinion dated July 23, 1953 reported in Opinions of the Attorney General, 1952-1953, the Attorney General of Georgia held: That Veterans are exempt under Section 84-2011 Ga. Code Ann., only from revenue taxes, and are not exempt from the payment of license taxes imposed for regulatory purposes.
It is, then, well settled that Section 84-2011, Ga. Code Ann. (1954 Supp.) exempts the disabled veterans, who qualify under the terms and conditions of the law, from the payment of occupational taxes and does not confer a right to exemption from a fee or tax imposed under the police power for regulatory purposes.
In view of these principles, the question here raised depends or turns upon the nature of the fee or fees imposed by the Georgia Industrial Loan Act. Section Seven is as follows:
"Application; Fees; Existing Businesses. All persons engaged in the business of making loans of $2,500.00 or less in the State of Georgia, unless expressly exempted therefrom, shall be required to obtain a license under this Act. Application for license shall be made to the Commissioner in writing, under oath, on forms prescribed by the Commissioner and shall give the location from which the business is to be conducted and shall give the names of the persons connected with the business together with any other information required by the Commissioner. Except as hereinafter provided the application shall be accompanied by a fee of $50.00 to cover cost of investigation of applicant, and by a license fee of $200.00. Said license shall expire on the last day of the calendar year in which granted, subject to renewal pursuant to Section 9 of this Act; provided, however, the license fee on all licenses issued on or after July 1st shall be the sum of $100.00; provided, further, that all persons required to obtain a license under this Act who are on the date of approval of this Act, lawfully authorized and bona fide engaged in making loans of $2,500.00 mless in the State of Georgia shall be entitled to a license hereunder upon tl1e filing 6f an application as herein provided and the payment of the li ~ense fee as herein set out and such person shall also be required to pay the $50.00 investigation fee. The Commissioner shall collect fees and cost a; provided in this Act, and shall issue his receipt for all sums collected by- him, and periodically, not less than once in each quarter of each year, at such times as may be convenient, shall pay into the State Treasurer sll sums collected by him.
')'he unambiguous language of that section reveals the fees imposed are for purp<ses of regulation and are not occupation taxes. It, therefore, follows that a diMbled war veteran is required to pay the fees imposed by the Georgia Indust.,...al Loan Act.

392
GEORGIA INDUSTRIAL LOAN ACT-Licenses (Unofficial)
A person not engaged in the business of making loans, but who makes
occasional loans in amounts less than $2,500.00 repayable in monthly, quarterly or annual installments, may charge interest at 6o/o per annum for the entire period of the loan and take security therefor, and is not required to obtain a license under the Industrial Loan Act.
May 16, 1955
Mr. Lovejoy Boyer, Esquire You ask: (1) Does the Georgia Industrial Loan Act (H. B. 251-Ga. Laws 1955, p. 431)
exempt from its terms persons making loans repayable in monthly, quarterly or yearly installments at interest at 6o/o per annum for the entire period of the loan?
(2) Is a person, not engaged in the business of making loans, but who makes (occasional) loans from time to time in amounts less than $2,500.00, required to obtain a license under the Industrial Loan Act?, and
(3) Can such person (referred to in question No. 2) charge 6o/o interest for the full term of the loan and take security therefor, if such loans are repayable in monthly, quarterly or annual installments, without obtaining a license under the Georgia Industrial Loan Act?
The Georgia Industrial Loan Act expressly excludes from its operation persons making loans at 6% interest per annum for the entire period of the loan, where such loan is repayable in monthly, quarterly or annual installments.
Thus it follows that a person making occasional loans in amounts less than $2,500.00 at 6% interest per annum for the full term of the loan, under the provisions of Section 57-116 of the Code of Georgia, where such loans are repayable in monthly, quarterly or annual installments would not be required to secure a license under the Industrial Loan Act.
Section 57-116 of the Code of Georgia permits loans at 6o/o interest per annum for the full term of the loan, discounted in monthly, quarterly or annual installments and allows the lender to take as security for such lqans mortgages with waiver of exemption or title or both, upon or to real or personal property, or both.
The answers to questions (1) and (3) are in the affirmative, and the answer to question No. 2 is in the negative.
GEORGIA INDUSTRIAL LOAN ACT-Loan Brokers and Lenders (Unofficial) 1) Loan broker operating under Code Section 57-104 is not required to
qualify as lender under Industrial Loan Act. 2) Person lending money at 6% interest per annum in amounts less than
$2,500.00 is not required to obtain license under Act.
March 21, 1955
Honorable R. G. Stephens This has reference to letter dated February 27, 1955, addressed to you by
W. C. Thornton, Jr., which you left with Frank Edwards of my staff, which was in turn referred to Douglas King.
The questions propounded are: 1. Is a loan broker operating under Section 57-104 of the Georgia Code required to qualify as a lender under House Bill 151?

393
2. Does a person lending money at 6% per annum in amounts less than $2,500.00 under Section 57-116 have to obtain a license under House Bill 151?
House Bill 151 does not repeal Section 57-104 and it is my present thinking that a loan broker operating under this Section would not be required to obtain a license under House Bill 151.
While the language in Section 5 of House Bill 151 exempting "persons making loans and charging interest thereon at a rate of not more than 8% simple interest per annum shall not be subject to the provisions of this act or required to obtain a license hereunder" would not include persons making loans at 6% and adding the amount of interest to the principal of the loan and dividing that total into monthly, quarterly or annual installments, it was not the intent of the Commission that drafted the proposed legislation which resulted in House Bill 151 to include such lenders in the operation of the act.' My present thinking is that such lenders would not be required to obtain a license under House Bill 151.
GEORGIA INDUSTRIAL LOAN ACT-Taxes Where there is a collection of interest on a loan in advance; i.e., discount,
it is subject to the three per cent tax.
December 9, 1955,
Honorable Zack D. Cravey Industrial Loan Commissioner
You request an opinion as to the application of the three per cent tax imposed on licensees under the Georgia Industrial Loan Act by H. B. No. 2 of the 1955 Special Session of the General Assembly. [Ga. Laws, 1955, Ex. Sess., p. 57.] You ask specifically since the Industrial Loan Act is a discount law, if the three pet cent should be assessed on the entire amount of interest at the time the loan is made or if the tax should be pro rated over the life of the loan when the installment payments are made?
I call your attention to the language of Section 15 (a) of the Act which reads as follows:
"Maximum rate of charge. Every licensee hereunder may loan any sum of money not exceeding $2,500.00 for a period of two years or less, and may charge, contract for, collect and receive interest, and fees and may require the fulfillment of conditions on such loans as hereinafter provided:
"(a) Charge, contract for, receive and collect interest at a rate not to exceed eight per cent per annum of the face amount of the contract, whether repayable in one single payment or repayable in monthly or other periodic installments. On loan contracts repayable in 18 months or less, the interest may be discounted in advance, and on contracts repayable over a greater period, the interest shall be added to the principal amount of the loan. On all contracts, interest or discount shall be computed proportionately on equal calendar months." I construe the above language to permit a licensee to collect the entire amount of interest on loans repayable in 18 months or less at the time the loan contract is made and I am of the opinion that if a licensee takes a loan note for a specific amount and deducts therefrom the amount of the interest and other charges computed on the amount of the loan note so that the borrower actually receives an amount of cash which has been reduced from the amount of the note by the amour1t of such interest and other charges, that such interest and charges were

394
collected by the lender at the time the loan was made without regard to the terms of the installment repayments, and is therefore subject to the three per cent tax.
On loans repayable over a period in excess of 18 months the licensee collects a pro rata part of the interest in each installment payment.
It is my information that a large portion of the loans made are for 18 months or less and that it is a general practice in the loan industry to discount the interest at the time the loan is made.
HIGHWAYS-Construction-Use of Prison Labor (Unofficial) Prison .labor may be used to move and relocate a service station when
susch is an integral part of highway repair or construction.
March 11, 1955
Honorable Jack M. Forrester, Director State Board of Corrections
I acknowledge receipt of your letter of March 9, 1955, requesting my opinion on the question as to whether or not convict labor may be used by the county commissioners of Whitfield County in reconstructing and relocating a service station, which was made necessary by the cutting of a new highway.
I will preface my opinion with a brief summary of the applicable statutes. The Code of 1933, 77-207 provides:
"Except as provided in section 77-336, no person or official shall hire to any other person or corporation any misdemeanor convict, and it shall be unlawful for any person or corporation to work any such misdemeanor convict so hired." Section 77-336, referred to above, reads as follows:
"It shall be unlawful for any person or official, except as herein provided, to hire to any other person or corporation any misdemeanor convict; and it shall be unlawful for any person or corporation to work any such misdemeanor convict so hired. It shall be the duty of the Prison Commission, upon notice by the county authorities of any county having misdemeanor convicts undisposed of under the law, and not having an established chain gang and not working its misdemeanor convicts on the public roads, bridges, or other public works, to dispose of the same as felony convicts are herein disposed of, and the net funds so arising from the same shall be returned to said county authorities to be placed in the county treasury, to be used for road purposes only." "Except as herein provided," referred to in Section 77-226 quoted above, clearly has reference to the other provisions of Chapter 77-3 of the Code which authorize the hiring of convicts to counties and municipalities, such as Sections 77-325 and 77-330. In other words, the only hiring of convicts permissible under Chapter 77-3 as originally found in the 1933 Code was the hiring to counties and municipalities for work on roads and other public facilities. The sections quoted above, by their terms, apply only to misdemeanor convicts. Section 77-331, which apparently applies to felony convicts as well, provides:
"No convict labor shall be used in competition with skilled mechanical free labor, nor under any contract by the terms of which the contractor is interested in the quantity of work a convict may be required to do per day;

895
it being the fixed policy of this State that the control and management ot
its convicts, both felony and misdemeanor, shall never .pass from it and its public officials into the control and management of any private corporation or person." See, also, Section 77-334.
The laws governing the present Board of Corrections have undergone many changes through as many amendments, the most significant of which is the act of 1946 (Ga. Laws 1946, p. 46, Code Ann. Supp.,. 77~358 through 77-289).
An editorial note found in the pocket parts supplem~nt to the Ga. Code Ann. reads as follows:
"The effect of the Act of 1946 on the various prison statutes, enacted since 1933 and codified in this Chapter, is doubtful. All of them may have been repealed by necessary implication on the idea that the Act of 1946 was intended to cover the whole subject-matter. Certainly some of them are duplicated by provisions of the Act of 1946. Others may be modified by that Act and yet others in some respects may be in conflict with it. In view of this uncertainty, it has been deemed best to retain these Acts in this codification."
However, in the case of Moore v. Baldwin County (1953), 209 Ga. 541 (1), it was held that the act of 1946 had not completely superseded all prior acts and statutes relating to prisons and prisoners, and that the old provisions of the Code conferring upon counties a right to make requisition for its quota of convicts had not been superseded.
Therefore, it would be speculative to decide whether or not the provisions of the 1933 Code above quoted and cited have been superseded.
Code Ann. Supp., 77-323, taken from the Act of 1937 (Ga. Laws 1937, p. 484), prohibits the sale of prison-made goods except in limited circumstances stated therein .
To somewhat the same effect is Code Ann. Supp., 77-356, taken from the Act of 1941 (Ga. Laws 1941, p. 294).
The latest expression on the subject is found in the Act of 1946, codified as Ga. Code Ann. Supp., 77-375, reading 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."
It is entirely possible that this section has completely superseded all previous provisions of law relating to prison work. Should the courts so determine, presumable county authorities could use convict labor free from any restriction, in view of the last sentence of the section.
However, for purposes here, we can assume that Section 77-331 of the 1933 Code is still in effect, and it is believed the result will not be changed. Clearly, in any event, it has always been anticipated in our laws that .convicts may be used for labor on the roads and other public works.. See Code, 77-201, 77-325, 77~326,. 77-328,77-336,77-338,77-363 (Supp.), 77-369 (Supp.), and lastly, McGinty v. Keith, 182 Ga. 869 (3).
Ever since the Constitution of 1877 (Art. I, Sec. III, Par. I of 1945 Constitution; Code Ann., 2-301) counties have been liable for damages to private property caused by the working of public roads (Atlanta v. Green, 67 Ga. 386; Barfield v. Macon County, 109 Ga. 386; Adkins v. Crawford County, 135 Ga. 679), and this has been true not only where formal condemnation proceedings were instituted, but also

396
where private property is damaged and suit for damages is instituted subsequently thereto to enforce the constitutional provision guaranteeing just compensation where property is taken for public uses. Bates v. Madison County, 32 Ga. App. 370, 371 (2); State Highway Board et al v. Ward, 42 Ga. App. 220. Had no agreement been entered into between the parties, and condemnation proceedings thereby made necessary, the cost to the county would have been considerably increased, since only money damages may be awarded by a jury..Darien and Western Railroad Co. v. McKay, 132 Ga. 672 (verdict granting damages and authorizing owner to remove .building held void). The measure of damages computed as to the building alone would have been the "fair and reasonable cost of putting the building in as good condition as it was before." Burke County v. Renfroe, 64 Ga. App. 395.
Viewed in the light of the above principles, I am inclined to the view that the removal and repair of the service station is an integral part of the job of relocating the road, and is a proper part of the expense attributable thereto. On this basis, I am further of the opinion that prison labor may legally be used to do this work. However, this opinion is restricted solely to the facts of this particular case, and presupposes that the relocating of the service station is a necessary and bona fide part of the road work. Clearly, the county could not go into the construction business generally, and use prison labor. I have so held in an opinion of October 16, 1951, (Op. Atty. Gen., 1950-51, p. 337), wherein it was determined that convict labor could not be used for work on church property, the churches involved having agreed to pay a stipulated amount therefor.
In the instant case, the right to use the prison labor is upheld solely on the ground that the work to be done is an integral and essential part of the roadbuilding operation, and further, that the convicts will be under the control and. direction of prison officials and not merely "hired out." (See County of Walton v. Franklin, 95 Ga. 538.
In Op. Atty. Gen., 1952-53, p. 153, previous opinions relating to the question discussed here are collected and cited.

HIGHWAYS-Contracts-Letting by State Highway Department No legal prohibition against the letting of contracts at any time by the
State Highway Department.

March 15, 1954

State Highway Building, Atlanta, Georgia

I am in receipt of your communication of March 15, in which you inquire if Section 16 of the Act approved March 17, 1943 (Ga. Laws 1943, pp. 216-222) is now in effect, such Section placing a prohibition against the letting of contracts

by the State Highway Department during any period of three months next preced-

ing :the end of the term of office of any Governor of this State.

Section 1 of the Act approved March 2, 1950 (Ga. Laws 1950, pp. 62-72, being House Bill No. 536 and Senate Bill No. 34), specifically repeals the Act approved March 17, 1943 (Ga. Laws 1943, pp. 216-222) in its entirety. Hence, the prohi-

bition of the letting of contracts during the ninety day period next preceding the end of the term of office of any Governor was repealed and has not been re-enacted.

There is no legal prohibition against the letting of contracts at any time by th~

State Highway Department.



397
HIGHWAYS-Control-Jurisdiction of State Highways Patrol on United States Military Property Georgia State Patrol has not only the right, but the duty and obligation, to . police and patrol State Highway 280 within the Fort Benning Military District.
April 16, 1954
Ho11orable W. C. Dominy, Director Department of Public Safety
In reference to your query requesting an opinion on the question of jurisdiction of the State Patrol over the State Highways intersecting Fort Benning Military District, I am pleased to advise you as follows:
Article I, Section 8, Clause 17 and 18 of the Constitution of the United States provides in essence that the United States may acquire land by purchase or cession from another State. The Attorney General of the United States in interpreting the above quoted provision of the Constitution stated that "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. provided that it was not necessary for Congress itself to ac.cept exclusive jurisdiction over lands or interests therein which are acquired; bu the head or other authorized officer of any department or agency of the Gov~ ernment may accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody or control are situated, an~ indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of each State.
An Act of the General Assembly approved February 15, 1952 (Ga. Laws 1952, p. 264) provides 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 sen~ tence 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:
" '15-802. 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, 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

898
protection of its property and rights in said ceded territory, and; the. proper maintenance of good order therein.' "
Subsequent to the passage of the above Act and in accordance thereto, the Secretary of the Army filed with the Governor of Georgia official acceptance of jurisdiction of the lands in Georgia used for Army installations, Fort Henning included.
Going one step farther, we become concerned over the highways built and maintained by the State. On January 23, 1941, and February 27, 1941, the United States granted a permit to the State of Georgia, signed by Robert P. Patterson, then Under-Secretary of War, granting them a license to enter upon the federal reservations and giving the State a right-of-way for the. purpose of widening arid realigning the highway, now called U. S. Highway 280; and gave the State a license to use material on the reservation for construction and maintenance of the highway, The right-of-way to old Highway 280 for its improvement and widening was in the State of Georgia and has not been divested, but has only been improved and changed.
Paragraph 6 of the permit of January 23, 1941 provides:
"That the United States reserves to itself right-of-way for all purposes across, over and/or under the right-of-way hereby granted, such rights, however, to be used in a manner that will not create unnecessary interference with the use and enjoyment of the State of Georgia of said right-of-way for highway purposes."
A proper construction of the above quoted paragraph from the permit of January 23, 1941, in whiCh it is agreed that the rights of the United States will not be used "in a manner that will not create unnecessary interference with the use and enjoyment of the State of Georgia of said right-of~way for highway purposes," can only mean that the citizens of Georgia will have the use and enjoyment of said road.
Since the maintenance of the road is imposed upon the State, the obligation is imposed on the State through its agencies to provide a safe road, including maintenance and proper policing.
It is, therefore, my opinion that the State Patrol not only has the right, but the duty and obligation to police and patrol the aforementioned roads.

HIGHWAYS-Georgia Turnpike Authority-Effect of Act

The act creating the Georgia Turnpike Authority did not repeal the act

empowering the Fernandina Port Authority (a public body of the State

of Florida) to construct a road into Georgia.



April 7, 1955

Honorable W. A. Blasingame, Chairman State Highway Board of Georgia
I acknowledge your request for an opinion respecting the validity. of an Act of the Georgia General Assembly No. 135 approved February 16,.1951 [Ga. Laws, 1951, p. 199], as the same was amended by the General Assembly in 1952, Act No. 920 approved February 15, 1952 [Ga. Laws, 1952, p. 397}.
Your inquiry indicated concern whether or not subsequent Acts creating the Georgia Turnpike Authority had the effect of repealing these two Acts, and whether or not the subsequent repeal of the two Georgia Turnpike Authority .Acts affected the. validity of the Act of 1951 as amended.

399
It is my opinion that the subsequent enactments creating the Georgia Turnpike Authority di:d not have the effect of repealing the Act of 1951 as amended which empowered the Fernandina Port Authority, a public body corporate and politic, organized and existing under the laws of the State of Florida to construct toll roads,from the Georgia-Florida line 50 miles into Georgia; and further defining the conditions, powers, limitations and purposes of the grant of authority; and further authorized the negotiation of contracts, leases, agreements and related activities in cooperation with the Highway Department of the State of Georgia. These powers' continue in full force and effect.
I am further of the opinion that the repeal of the Acts creating and defining the powers of the Georgia Turnpike Authority did not have the effect of repealing the Act of 1951 as amended.
This opinion, however, shall not be construed by you as an opinion on the constitutionality of the Act of 1951 referred .to. Your letter did not extend to a request for such an opinion.
HIGHWAYS-Maintenance of Bridge State Highway Department under no duty to maintain a bridge con-
structed prior to August 23, 1927, unless it has been substantially reconstructed since that date.
December 2, 1954
Honorable Dixon Oxford, Member State Highway Board of Georgia
You request me to advise you whether it is the legal duty of the State Highway Department to repair or reconstruct the bridge in question or whether this duty is imposed on the Commissioners of Morgan County and the Georgia Railroad Company, or its, lessees.
My opinion respecting the subject matter will be based upon the assumption that the. pertinent statements in Mr. Tipton's letter are facts, and that there is nothing in the State Highway Department records indicating what has or has not been done to the bridge in question as to repairs and maintenance.
Code Section 95-1909 reads as follows: "95-1909. Maintenance of overpass or underpass.-After construc-
tion of an overpass or underpass, it shall be the duty of the Department ip. the case of State roads, and of the county board in the case of county public roads, to maintain at its or their own expense the drainage, surface, and pavement of the highway and bridge, as well as the approaches and guardrails, if any; except that when an overpass is constructed with a :floor of wood, then the railroad or railroads shall maintain such :floor. It shall be the duty of the railroad or railroads to maintain at its or their expense the foundations, piers, abutments, and superstructures of all underpasses and overpasses located,within the limits of its right of way (Acts 19ll7, p. 304)." This Code Section was amended as the same appears as Section 95-1909 in the Cumulative Po,cket Part,of the Code for the year 1951; which reads as follows:
"95-1909. Maintenance of overpass or underpass.-(a) It shall be the 'duty of the Department in the case of State roads, to maintain all overpasses as defined by Section 95-1901, hereafter ,constructed or which

400
have been constructed or substantially reconstructed since August 23, 1927, even though such overpasses may have been constructed or reconstructed wholly or in part with Federal Funds.
(b) It shall be the duty of the railroad company or companies to maintain underpasses, as defined by Section 95-1901, hereafter constructed or which have been constructed or substantially reconstructed since August 23, i927, except the lighting, drainage, and pavement of the roadway thereunder which forms a part of the highway or public road.
(c) All maintenance herein required by the department shall be at the expense of the Department, and all maintenance herein required by the railroad or railroads shall be at the expense of such railroads; Provided, however, the duty of maintenance imposed upon the Department by this section shall not operate to subject the department to liability on account of damages resulting from any failure of such maintenance.
(d) Notwithstanding the foregoing, the duty and obligations of maintaining overpasses on county public roads shall remain and continue as provided by the original Section 95-1909 of the Code of 1933, but the burden of maintenance of underpasses on such county roads shall be as provided by this section; and. where an overpass on any county road is constructed with a floor of wood, it shall be the duty of the railroad or railroads to maintain such floor at its or their own expense. (Acts 1927, p. 304; 1950, PI>. 419, 420.)" It is clear from these statutes that the duty of the State Highway Department to maintain overpasses or bridges on state roads relates only to those which were constructed or substantially reconstructed since August 23, 1927. Assuming that this bridge was constructed in 1925, there would be no duty on the part of the State Highway Department to maintain it unless it has been substantially reconstructed since August 23, 1927. I do not find any satisfactory legal definition of the words "maintain" and "reconstruct" that would be of any assistance in this matter in our Georgia court decisions; however, the word "reconstruct" has been legally defined in the courts of other states which I quote as follows:
"To 'reconstruct~ means to construct anew, to rebuild, to remodel, to form again or anew. Berry v. McConnell, 173 S. W. 100, 187 Mo. App. 673."
"'Reconstruct' means to construct again; to rebuild; to form again or renew. Contas v. City of Bradford, 55 A. 989, 990, 206 Pa. 291; Farraher v. Keokuk, 82 N. W. 773, 111 Iowa, 310, 313."
"Acts 1911, c. 207, providing that, when any highway bridge over which a street :railway is operated shall become unsafe, the company shall pay the expense of reconstructing the bridge, but, if reconstruction or the construction of a new bridge is required for any cause, the Public Utilities Commission may apportion the cost thereof between the municipality and the railway company, provides for the reconstruction of a bridge adapted to changed conditions, though the reconstructed bridge is in one sense a new one, but in fact a substitute in point of highway traffic for the old one, the word 'reconstruction,' as distinguished from mere repair and strengthening, meaning rebuilding. Appeal of City of Norwalk, 91 A. 442, 443, 88 Conn. 471."
"Construct' means to build; 'reconstruct' means to rebuild, to build over again; and a street is not reconstructed by being resurfaced either in whole or in part.' Webster defines 'repair' as to restore to a sound or good state after decay, injury, dilapidation, or partial destruction, as to

401
repair a house, a wall, or a ship. He defines 'reconstruction' as to construct again, to rebuild. Where, after a street which had been paved with asphalt at the expense of abutting owners had fallen into disrepair, the city passed an ordinance directing that it be reconstructed with asphalt pavement in accordance with the ordinance, insofar as it related to resurfacing streets with asphalt paving, so that the entire improvement consisted merely of relaying a new three-inch asphalt surface on the original macadam base, without disturbing the same, the work did not contitute a 'reconstruction' of the street, but was a mere 'repair' thereof, for which the city was solely responsible. City of Covington v. Bullock, 103 S. W. 276, 277, 126 Ky. 236, quoting and adopting the definition in Levi v. Coyne, 57 S. W. 790, 22 Ky. Law Rep. 493."
The word "maintenance" or "repair" has been .legally defined in the courts of other states as follows:
" 'Maintenance' of a business means the upkeep or preserving the condition of the property to be operated, and includes the cost of ordinary repairs. San Francisco & P. S. S. Co. v. Scott, D. C. Cal., 253 F 854."
"The repair of waterworks is 'maintenance' within the constitutional provision authorizing the issuance of bonds for the maintenance of waterworks plants. Herbert v. Griffith, 82 S. E. 986, 99 S. C. 1."
"The 'maintenance' of a street within the meaning of an ordinance providing for the reconstruction and maintenance of a street for a period of years under one contract practically has the same meaning as the word 'repair,' and therefore an ordinance in requiring adjoining owners to pay for the construction and maintenance of a street is in violation of St. Louis Charter, Art. 6, Sec. 18, providing that the repairs of all stre';ets shall be paid by the city. The word 'maintain' does not mean to provide or construct, but means to keep up, to keep from change, to preserve (Worcest. Diet.); to hold or keep in any particular state or condition, to keep up (Webst. Diet.). In Boon v. Durden, 2 Exch. 21, it was said the verb 'to maintain' signified to support what has already been brought into existence. 'To repair' means to restore to a sound or good state after decay, injury, dilapidation, or partial destruction. Barber Asphalt Pav. Co. v. Hezel, 56 S. W. 449, 451, 155 Mo. 391, 48 L. R. A. 285."
The legal definition of "substantial," as given in Black's Law Dictionary, page 1671, means: "without material qualification; in the main; in substance; materially."
Inasmuch as there is no record of a rebuilding or substantial reconstruction of the subject bridge at any time since 1925, and there appearing to be evidence of only occasional repairing of the same when necessary, it must be concluded as a matter of law, based upon the assumed facts herein contained, that the State Highway Department is without authority to maintain or reconstruct the bridge in question.
HIGHWAYS-Members of the State Highway Board Successor to member elected at regular session preceding the expiration
of his term.
November 15, 1954
Honorable Jim L. Gillis, Sr., Chairman State Highway Board of Georgia
You request that I give you an official opinion as to whether the General

402
Assembly session convening in January, 1955, or the session convening in January, 1956, is the "session preceding the expiration" of my term at which my successor is to be elected by the Legislature.
You further state that your commission shows that your term as a member and chairman of the State Highway Board expires on February 8, 1956.
Section I of the State Highway Board Act--Amendments; Georgia Laws 1951, p. 31, provides in part:
"Thereafter the terms of the members of the State Highway Board shall be six years, each dating from the expiration of the first terms, or from a subsequent six year term, and election for board members shall be held by members of the General Assembly at regular session, at the session preceding the expiration of the terms of board members in the manner hereinafter provided."
"No newly-elected board member shall enter upon his duties until the expiration of the term of his predecessor in office unless there shall be a vacancy in the position which the newly-elected member was elected to fill, in which event such newly-elected member shall enter upon the performance of his duties as soon as he is duly .qualified."
The above cited statutory authority is clear in providing that the election of State Highway Board members should be held by members of the General Assembly at regular session, at the session preceding the expiration of the terms of the members of the State Highway Board.
Assuming that your commission is in conformity with your appointment and that the term to which you were appointed would expire on February 8,. 1956, it would be my opinion that the January, 1956, session of the General Assembly would be the session preceding the expiration of your term expiring on February 8, 1956, at which your successor would be elected by the General Assembly.

HIGHWAYS-Repairs
State Highway Board may negotiate, without competitive bid, an agreement to reimburse a railroad company, or other utility, for actual expenses incurred by the utility in the performance of repair, maintenance, or removal or replacement of facilities of the Highway Department.

July 30, 1954

Honorable James L~ Gillis, Sr. Chairman, State Highway Board

Reference is made to your communication dated July 29, 1954, requesting that you be advised whether or not it is within the power of the Highway Board to negotiate, without competitive bid, an agreement to reimburse a railroad company, or other utility, for actual expenses incurred by the utility the performance of repair, maintenance, or removal or replacement of facilities for the benefit of the Highway Department.

Section 95-1715 of the 1951 Cmnulative Pocket Part, Code of Georgia, Anno-

tated, reads as follows:



"The State Highway Department of Georgia shall have authority to plan and to construct, improve and maintain the State~aid roads iri any manner it may deem expedient, by free labor, by contract, or by any other method or combination of methods, in its discretion."

403

. This broad power is modified by the limitations upon the power qf the Depart-

nient to negotiate construction contracts as set forth in Sections 95-1620, 95-1630,

95-1631, 95-1632 and 95-1633.



It is my opinion that the limitations imposed by the sections listed in Chapter

95-16 do not refer to any type of agreements other than construction contracts.

It appears that the agreement concerning which you desire direction was for

maintenance and repair. The Board has authority to use its own discretion relative

to the methods employed in accomplishing maintenance and repair.-

I am further of the opinion. that the agreement in question did not fall

within the prohibition against the letting of construction contracts by negotiation,

for the reason that the agree!llent was for reimbursement only and not for profit.

HIGilWA-yis~"State~aid Roads" (Unofficial)
A city may install parking meters on "state-aid roads" within its corporate limits, notwithstanding the fact that they are state highways.
May 21, 1954
Mr. J;ohn W. Kidd
Reference is made to your question of the authority of cities to install parking meters along state highways within the corporate limits of the municipality.
The Attorney General has taken the position that state-aid roads within the limits of any city, town .or village are "state-aid roads" only for the purpose of construction and maintenance (Ga. Code Ann. 95-1726 and 95-1727) and that, if the ordinance providing for the .installation of the parking meters is constitutional, the city has the necessary authority under its police power to install and operate such meters on any or all of its streets, notwithstanding the fact that they are state high;ways.. See, Ashley v. City of Greensboro, 206 Ga. 800, 807, and Gardner v. Brunswick,)97 Ga.J67, 172.

HIGHWAYS-State Bridge Building Authority
State Highway Department has power to lease from the State Bridge Building Authority, and pay them rent for a bridge project over the Chattahoochee between Georgia and Florida, a portion of such bridge lying within Florida.
October 19, 1954
Honorable' Jim L. Gillis, Sr., Chairman State Highway Board of Georgia
In reply to your letter inquiring whether under the State Bridge Building Authority Act the State Highway Department has the power to lease from the Authority, and to pay them rent, for a bridge project over the Chattahoochee River between Georgia and Florida connecting Donalsonville, Georgia, with Marianna,-Florida, a portion- of such bridge lying within Florida, I advise as follows:
I am of the opiriioh that the State Highway Department has the power to accept the offer of the Authority, as the owner of such project, to lease to the Department that project; and to execute leases for the use of such project; and to pay rentals under said lease contract for a term not to exceed fifty years from the date of the execution of such lease;

404
The State Bridge Building Authority Act has been codified in the 1954 Supplement to the Annotated Gode of Georgia under Chapter 95-23; and citations herein will refer to sections in that chapter by the Code number.
Section 95-2303 defines the project as follows:
"(b) The word 'project' shall be deemed to mean and include one or more bridges (as defined in subparagraph (c) of this section) together with the approaches (as defined in subparagraph (d) of this section) thereto." The same Section defines a bridge as follows:
"(c) The word 'bridge' shall be deemed to mean a structure of standard design approved by the State Highway Department or its successor in office erected in order:
1. To afford unrestricted vehicular passage over obstructions in the public highways of the State, or between the State and any neighborii~g State, including rivers, streams, ponds, lakes, bays, ravines, gullies, railroads, public highways, and canals, and
2. To afford unrestricted vehicular passage under existing railroads and public highways." An approach is defined as follows:
"(d) The word 'approach' shall be deemed to mean not more than three miles of the traffic artery on either end of the bridge and within the limit shall mean so much of the traffic arteries on either end of the bridge as shall be required to develop the maximum traffic capacity of the bridge, including necessary grading, paving, minor drainage structure and other construction necessary to the approach."
Under these definitions the project would include the bridge and its approaches in both States.
I have been advised that the State Highway Department has acquired, or is in process of acquiring, a fee simple title to the necessary rights-of-way for the bridgehead and the approaches in each of the State's, Georgia and Florida; and proposes, prior to the commencement of this project by the Authority, to convey to the Authority such rights-of-way.
Among the powers of the Authority are the following: Section 95-2304:
Subsection (2). "To acquire, by purchase, lease or otherwise, and to hold, lease, and dispose of real and personal property of every kind and character for its corporate purposes."
Subsection (4). "To make such contracts as the legitimate and necessary purposes of this Chapter shall require and to execute and perform such bridge lease contracts with the State Highway Board as shall be consonant with all the requirements of this Chapter, and to make all contracts necessary for the projects as defined and described in this Chapter: Provided, that all contracts for the construction of projects shall .be let by public bid upon plans and specifications approved by the State Highway Board or their successors in office."
Subsection (5). "To construct, erect, repair, own, maintain, add to, extend, improve, operate and manage projects, as hereinabove defined, to be located on property owned by the Authority, the cost of any such projects to be paid in whole from the proceeds of revenue bonds of the Authority."
Under these powers the Authority may, undoubtedly, become the owner of

405
the entire project from the beginning of one approach to the end of the other even though such project lies in two States.
Section 95-2308 reads, in part, as follows; "The Authority is authorized and empowered, as owner of .such
.projects as it may cause to be constructed, to offer; as lessor, to lease, and the State Highway Board or its successors, for and on behalf of the State Bighway Department and/or its successors is authorized and empowered to accept and execute leases for the use of such projects for terms not exceeding 50 years . . . " Under this language it will be seen that the power of the Authority to offer for lease, as owner, and the power of the Department to accept such offer and execute leases, are co-extensive. Assuming the acquisition of the right-of-way within both States by the Department; assuming the conveyance of such rights-of-way by the Department to the Authority; and assuming the construction of approaches and bridge upon such rights-of-way by the Authority, the Authority would be the owner of such project, and as such would be empowered to offer it for lease to the Highway Department; and the Department would be empowered to accept and execute lease therefor and pay rentals for the term of such lease for a period not to exceed fifty years.
HIGHWAYS-Wayside Parks
The State Highway Department is authorized to expend funds for wayside parks, only when they are contiguous to the highway right-of-way.
April 18, 1955
Honorable W. A. Blasingame, Chairman State Highway Board of Georgia
I am in receipt of your letter of April 8, 1955, requesting an opinion regarding a proposed Wayside Park at Pineora.
In your letter you stated that you had been asked to establish a Wayside Park at Pineora in Effingham County which project would be approximately 1800 feet West of the right-of-way of State Route 17. You ask whether you are authorized to use State Highway funds for this purpose, in view of the fact that the project is not contiguous to the State Highway right-of-way.
It is my opinion that State Highway funds cannot be expended for the purpose of obtaining, .constructing and maintaining a Wayside Park 1800 feet West of State Route 17 right-of-way.
The authority for obtaining sites for the construction and maintenance of Wayside Parks is set out in Code Section 95-1715, as amended, which Amendment was in the Act approved March 3, 1953, as House Bill 115.
In Black's Law Dictionary published by West Publishing Company, "way" is defined as a passage, path, road, or street. In my opinion, in using the term "Wayside Park" the Legislature was referring to parks which are appendant or appurtenant to the "right-of-way" of the specific highway in question and not to possible locations which might be some distance away. Otherwise, a Wayside Park might be located a distance from one to any number of feet, or even miles, away from the highway and still come within a supposed definition of Wayside Parks, which evidently was not the intention or purpose of the Legislature when it enacted the above statute.

406
HIGHWAYS-Wayside Park Where a proposed wayside park is adjacent to a county road improved
with Highway Department funds, is close and readily accessible from the present state highway, and the county road will be taken to the State Highway System, then the Highway Department may expend funds for such a park.
June 8, 1956
Honorable W. A. Blasingame, Chairman State Highway Board
Your undated memorandum requesting confirmation or modification of my opinion given under date of April 18, 1955, on the subject of wayside parks has been considered.
I still adhereto the principles underlying the opinion rendered April 18, 1955. Wayside, or roadside, parks are what the name implies, i.e., alongside the road or way; and, as the name is generally understood, does not include those parks which are primarily designed for recreational purposes and are equipped with facilities designed to that end.
Under the Georgia administrative system, the recreational type parks are administered by the Department of State Parks. Parks built and maintained by the State Highway Department should, in my opinion, be limited to those parks designed for brief periods of rest or refreshment for travelers using the highways. Their use is ancillary to highway use.
I have received further information, however, which indicates that it may be possible, for the State Highway Department to accept the donation of the lands in Effingham County at Pineora, Georgia which are located on a county road about eighteen hundred feet from the intersection of that road with State Highway 17. It appears that this may be done without receding from the opinion dated April 18, 1955, as to the general application of that opinion.
This additional information indicates that the subject proposed park is adjacent to a county road which was improved and paved with State Highway Department funds, and is close to and readily accessible from the present State highway; and that prospectively the county highway referred to will at some future date be taken into the State system.
The existence of these conditions, which were unknown to me at the time the opinion of April 18, 1955, was furnished to you, appear to make this proposed park eligible for improvement with Highway funds, as a roadside, or wayside, park of the type referred to above.
I suggest, however, that whenever a proposed roadside park site is not located directly on an existing State highway, the full facts be submitted to me for an individual opinion relating to whether or not such proposed site would be so eligible.
INSANE PERSONS-Furloughs from Milledgeville State Hospital (Unofficial) (a) A person to whom an inmate of Milledgeville State Hospital is fur-
loughed, assumes responsibility for expenses of returning such inmate to the Milledgeville State HospitaL
(b) There is no provision for the state to pay the expenses of returning an insane person to his home state.

407
July 8, 1954
Judge Victor B. Jenkins, Jr.
You inquire relative to the expenses of patients released on furlough and subsequently returned to the Milledgeville State Hospital, and non-residents of the State being returned to the state of their origin in lieu of commitment to the Milledgeville State Hospital.
The Milledgeville State Hospital, under their rules and regulations, will only furlough a patient to his guardian or relative, under the conditions contained in the attached form of furlough. You will note that the person to whom the patient is furloughed assumes full responsibility to return the patient to the Hospital at his own expense.
In view of this contract, the State would not be authorized to use State funds to return such patients to the Hospital. Of course, in the case of an escapee, the Hospital uses their own facilities for returning him to the Hospital, upon receiving notification from the county in which such escapee has been apprehended.
Relative to non-residents of the State of Georgia who are returned by the officers of a county to the state of their origin in lieu of commitment to the Milledgeville State Hospital, I find no authority which would authorize the State of Georgia to expend State funds for such purpose. It may be that this would be a good subject to present to the General Assembly, on the basis that the State would be saving money by transporting these people back to the states of their origin and assuming this expense, rather thari the keeping of them for several years at the expense of the State in the Milledgeville State Hospital.
INSURANCE-Agents
Solicitors for the purchase of shares in a cumulative investment trust program are not required to obtain licenses as life insurance agents.
February 9, 1954
Honorable Zack D. Cravey Insurance Commissioner
I am in receipt of your letter of February 4, 1954 in regard to the licensing as insurance agents of securities solicitors for investment trust programs. The facts disclosed by your letter and file are substantially as follows:
Duly licensed and authorized securities solicitors desire to solicit in Georgia applications for the purchase of shares in a cumulative investment trust program whereby the First American National Bank of Nashville is made the agent of the investor for the purpose of procuring shares in Investment Trust of Boston for the benefit of participating individuals who make periodic payments to the bank for the purpose of acquiring such shares pursuant to the investment program entered into by contract with the bank.
Two alternative plans are offered. One of these plans consists simply of the program outlined above while the second provides in addition an extension of coverage to the investor under a group reducing term life insurance policy, which master policy is held by the bank for the purpose of completing the unpaid portion of the investment program in the event of the death of the investor. The two plans are optional and no separate premium is charged an:d the securities solicitors receive no commission on the insurance feature of that alternative plan. The cost of coverage under the group policy is simply deducted by the ban~ from the payments of the investor and forwarded to the insurance underwriter.

408
You request my opmwn as to whether or not such solicitors should be required to obtain a Georgia life insurance agent's license.
Section 56-501 of the Code defines an insurance agent in such a manner as to include such solicitors. However, it is my opinion that the purpose of this Code section is to define actions sufficient to constitute a solicitor as the agent of an insurance company and to bind the company thereon. In addition, Section 56-901 of the Code defines the contract of life insurance in such manner as to cover the above stated arrangement and Section 56-902 provides that such contracts may be taken only by persons or corporations specially authorized by law so to do.
In the absence of any other provision of law it would be my opinion that under the three Code Sections above referred to such solicitors as are described in your letter and file would be required to obtain a license. However, since the adoption of the Act of 1953, January-February Session, page 497, and codified as Chapter 56-5B of the Annotated Code, which provides a comprehensive system of licensing and examination for agents of life, health and accident insurance companies, it is my opinion that prior licensing laws relating to agents of such companies are restricted by the terms thereof. The term "agent" is defined for the purpose of this latter act in Section 56-501b (a) and this 'section contains a proviso which reads as follows:
"Provided, however, that under a group insurance plan a person who serves the master-policyholder of group insurance in administering the details of such insurance for the employees or debtors of such person, or of a firm or corporation by which he is employed, and who does not receive insurance commissions for such services, shall not be deemed to be an agent." It is clearly the intent of this proviso to make an exception from the licensing statutes in the case of persons who service master policies of group insurance and who receive no commis'sion for such services. That is apparently the situation which exists in the subject case and for that reason it is my opinion that the securities solicitors referred to herein are not required to obtain licenses as life insurance agents by virtue of their activities in the solicitation of investment trust applications.
INSURANCE-Agents Where the "A" Insurance Company is duly licensed to do a fire and
casualty insurance business and a certain agent is duly licensed to represent one or more fire and casualty companies, but has no contractual relations with the "A" Insurance Company as its agent and holds no license issued by the Insurance Commissioner authorizing the agent to represent the "A" Insurance Company, and the agent obtains applications for fire and casualty business and submits them to the "A" Insurance Company and the "A" Insurance Company accepts them and issues policies thereon, neither the agent nor the "A" Insurance Company has violated any law, criminal or otherwise.
May 31, 1954
Honorable Zack D. Cravey Insurance Commissioner
Reference is made to your letter in which you ask for an opinion on the following statement of facts:

409
"Where the "A" Insurance Company is duly licensed to do a fire and casualty insurance business in Georgia, and a certain agent is duly licensed to represent one or more fire and casualty companies but has no contractual relations with the "A" Insurance Company as its agent and holds no license issued by me authorizing him to represent the "A" Insurance Company, but, nevertheless, the said agent obtains applications for fire and casualtybusiness and submits them to the "A" Insurance Company which accepts them and issues policies based thereon,-has this agent committed a misdemeanor within the meaning of Section 56-9919, also has the insurance company violated any law, criminal or otherwise, in accepting such applications and issued policies thereon? It is my opinion that neither the agent nor the company has violated any criminal provision of our laws. Section 56-9919 of the Georgia Code Annotated does not appear to apply since under the facts given the agent writing the policy was licensed (to represent another or other companies) and the company issuing the policy was also licensed to do business in Georgia. This section is taken from the Acts of 1935, page 144, and after reading the entire Act, I am of the opinion that the statute is directed against any company that transacts business in Georgia without being licensed to do business in this State. This Act imposes a penalty of $1,000 for the first offense and $2,000 for each additional offense against the insurer, and then goes a step further and makes it a misdemeanor for any person to act as agent for such non-licensed company or insurer. The other penalty sections dealing with fire and casualty companies (56-528, 56-530, 56-1004, 56-1005, and Chapter 56-9901 through 56-9935) have been examined and these sections do not apply to the section under consideration. I do not find anything in Chapter 56-5 of the Code that requires the names of all companies which an agent will represent to be shown in his application for license.
INSURANCE-Brokers (Unofficial) Georgia has no law authorizing insurance brokerage activities, but a
company which sells renewals on expirations of insurance contracts to licensed agents is an "Insurance Agent."
October 6, 1954
Mr. Gordon E. Iliff Your letter containing outline of operations of SASCO, has been referred
to me for reply. The proposed operations of SASCO appear to be that of insurance broker,
selling renewals on expirations of insurance contracts to licensed agents or brokers. This State has no law authorizing such brokerage activities.
It is my opinion that service with SASCO prpposed to render would bring it within the definition of an "insurance agent" as defined by Section 56-501 of the Code of Georgia, which provides:
"Any person who shall solicit in behalf of any insurance company, or agent of the same, incorporated by the laws of this or any other State or foreign Government, or who shall take or transmit, other than for himself, any application for insurance or any policy of insurance to or from such company or agent of the same, or who shall advertise or otherwise give notice that he will receive or transmit the same, or who

410
shall receive or deliver a policy of insurance of any such company, or who shall examine, or inspect any r:i.sk at any time, or receive or collect or transmit any premium of insurance, or make or forward any diagram of any building or buildings, or do or perform any other act or thing in the making or consummating of any contract of insurance for or with any such insurance company, other than for himself, or who shall examine into or adjust or aid in adjusting any loss for or in behalf of any such company, whether any of such acts shall be done at the instance or request or by the employment of such insurance company, or of, or by, any broker or other person, shall be held to be the agent of the company for which the act shall be done or the risk shall be taken." The company, therefore, would be required to meet the qualifications of an insurance agent as set out in the laws of this State, before it could operate in Georgia.
INSURANC:&-Companies-Alien Companies (Unofficial) (a) Residents of Georgia may insure cargoes moving in international
commerce with alien companies. (b) Requirements for admission of alien insurance companies to do
business in this state are substantially the same as requirements for an insurance company from another state.
October 7, 1954
Mr. Thornton V. Kalijarvi You ask:
"1. Are there any laws or regulations in your State prohibiting or restricting the placement of ocean cargo marine insurance with alien unadmitted insurance companies? Are residents in your State restricted in their choice of the insurance companies with which to insure the international transportation of merchandise by sea, land or air? Are they required to insure the transport of merchandise they have bought or sold abroad in an insurance company admitted to do business in your State?
2. What are the admission requirements in your State for alien insurance companies? Are these requirements the same for United States insurance companies organized in your State or in other States?" The answer to each of the three companies listed under No. 1 is no. As to the questions listed under No.2 the requirements for admission of alien companies is substantially the same as the requirements for admission of companies organized in other states. Alien companies are required to have on deposit in either this or the state of original entry eligible securities in an amount equal to the capital and surplus required of domestic companies doing the same type of business. Alien companies are also required to have on deposit with an approved trustee in either this state or the state of original entry a sufficient amount of eligible assets to discharge all of the company's obligations to United States policyholders. Your attention is called to Section 56-501 (a) and 56-502 (a) [Ga. Code Ann.] permitting the placement of excess ocean cargo marine insurance with unadmitted companies through a regularly licensed agent. Your attention is also directed to Section 56-301 dealing with the requirements of foreign and alien companies doing business in this state. Also note Section 56~209 dealing with the amount of

411
capital stock required and Section 56-529 covering transactions with unadmitted companies.
Insofar as the subject of your survey is concerned it is not believed that the laws of Georgia discriminate in any way against alien marine or other types of insurance companies or are designed in any manner to interfere with international trade.
INSURANCE-Companies-Charter Amendments (Unofficial) Insurance company having issued no stock and having no stockholders
or officers cannot amend charter.
October 20, 1955
Honorable Walter W. Calhoun You advise that the Georgia National Life Insurance Company, which obtained
a charter from the Secretary of State on August 1, 1955, now desires to amend the charter by changing its name and increasing its capital stock, as provided in Sections 22-510 through 22-515 of the Code of Georgia. You state that the company has issued no capital stock, has no stockholders and has no officers. You ask if a chartered life insurance company, unorganized except for having a charter granted by the Secretary of State, may proceed to amend its charter upon petition of the corporation alone, or must at least five of the original incorporators bring such petition for amendment?
I am of the view that Sections 22-510 through 22-515 are applicable .only after an insurance company has completed its organization by the raising of the required amount of capital, the holding of an organizational meeting, and the electing of officers and directors. Section 22-513 provides that the petition to amend a charter shall contain certified abstract of the minutes of the board of directors showing that the application for the proposed amendment has been authorized by the vote of a majority in number and amount of the entire capital stock entitled by the terms of the charter to vote at a stockholders meeting. Since Georgia National has no stockholders, it is unable to comply with this provision.
Since an insurance company terminates unless it completes its organization within two years of the date on which it was chartered under the provisions of Section 56-212, it would seem to me that the most practical approach to your problem would be to abandon the old company, and to start over and bring a petition before the Secretary of State to organize an entirely new company.
INSURANCE-Companies-Conversion of Fraternal Benefit Society into First National Life Assurance Society, Atlanta, Georgia, has complied
with the provisions of Georgia Statutes applicable to the conversion of such Society into a stock life insurance company.
September 15, 1954
Honorable Zack D. Cravey Insurance Commissioner
Reference is made to your letter of September 10, 1954 wherein you ask if the above named Society has complied with all the provisions of the Georgia Statutes (Chapters 56-16 and 56-16A, Supplement to the 1933 Georgia Code)

412
applicable to the conversion of such Society into a stock life insurance company. You also ask if it is necessary for the Society to distribute its general unas-
signed surplus of approximately $141,000 to its members when the conversion to a stock company is made.
Chapter 56-16A of the Georgia Code Annotated deals with conversion of Fraternal Benefit Societies into stock or mutual companies. Section 56-1602A provides that all subordinate lodges shall be notified by registered mail at least 90 days before the meeting of the Supreme Lodge at which such proposed action is to be taken, which notice shall state that a proposal will be made at such meeting to convert the Society into a stock or mutual company.
The file submitted to me indicates that this Section was complied with and that all ten of the subordinate lodges of the Society were notified 90 days in advance and called meetings and elected delegates to the Supreme Lodge and authorized said delegates, by resolution duly adopted, to vote for the conversion at the meeting of the Supreme Lodge.
Section 56-1603A provides that the Supreme Lodge at the meeting called for the purpose of proposing the conversion into a stock company shall adopt a resolution authorizing the conversion and authorizing the obtaining of a charter from the Secretary of State which shall set forth: (1) The name of the converted company; (2) the kind or kinds of insurance to be carried on; (3) the location of the principal office; (4) the names and addresses of themembers who shall petition the Secretary of State for a charter for the new company; (5) any and all other provisions which shall be necessary to comply with the laws of this state with respect to obtaining a charter.
The file submitted indicates that this Section has been complied within every particular.
Section 56-1604A provides that a report of the authorization meeting shall be filed with the Insurance Commissioner under the corporate seal of the Society, if any.
This Section has been complied with by the filing of a resolution under the Society's seal signed by the President, which resolution sets out the date of the meeting of the Supreme Lodge and the action taken thereat authorizing the conversion into a stock company, the persons authorized to apply to the Secretary of State for a charter, and all the other requirements of Section 56-1603A.
Section 56-1605A authorizes the petitioners named by the Governing Board to petition the Secretary of State for a charter, which petition shall set forth: (1) The name of the former Fraternal Benefit Society; (2) a report of the meeting of the Supreme Governing Body certified by the President (under the charter of the First National Life Assurance Society the Supreme Governing or Legislative Body is the Supreme Lodge); (3) a certificate of the Insurance Commissioner approving the conversion.
This Section has been complied with as to requirements (1), (2) and will have been fully complied with if and when the Insurance Commissioner issues his certificate approving the conversion.
Section 56-1606A gives the members of the Society the right to subscribe within 90 days to that portion of the stock in the new company that the amount of his insurance bears to the total insurance in force at the time of conversion. The conversion plan provides this right for members of the present Society.
Section 56-1607A deals with organization and rights, privileges, obligations and duties after a charter is obtained and we are not concerned with this Section at the present time. It is assumed, however, that the petitioner will comply with this Section when the conversion is effected.

413
The remaining Sections of the Chapter deal with rights of creditors and rights of certificate holders after conversion and require no comment at this time.
The Society and petitioners appear to have complied with this Chapter in every respect.
With reference to your second question, if it is necessary for the Society to distribute its general unassigned surplus of $141,000 to its present members before effecting the conversion, Section 56-1612 of the Georgia Code Annotated (Acts of 1943, pages 495 and 496) expressly provides:
"Unless otherwise provided in the contract, all funds shall be held, invested and disbursed for the use and benefit of the society, and no member or beneficiary shall have or acquire individual rights therein or become entitled to any apportionment or the surrender of any part thereof, except as provided in the contract." I have examined some of the saniple policies of the Society on file in your office and do not find any provision in these contracts which gives the policyholders any vested right in the general unassigned surplus of the Society. The Constitution of the Society, Section 23 of Chapter III, gives the Board of Trustees discretionary power to distribute any surplus that the Society may acquire. Since the Board of Trustees has voted to transfer this surplus with all other assets to the new company for the protection of all of the policyholders, it is my opinion that the policyholders or members are bound by this action. Your attention is called to letter of March 3, 1952 from M. H. Blackshear, Deputy Assistant Attorney General, addressed to your department dealing with the Acme Life Insurance Society, in which he advised that it was not necessary nor does the statutes provide for the distribution of surplus funds of that Society before being converted into a stock life insurance company.
INSURANCE-Companies-Dissolution (Unofficial) Fire insurance companies may not dissolve by voluntarily surrendering
charter to the Secretary of State under the provisions of Code Section 22-1206. Any dissolution of a fire insurance company by voluntary surrender of charter must be received and accepted by the Legislature.
July 22, 1955
Mr. Warren R. Mixon You inquire whether the charter of a fire insurance company may be surren-
dered to the Secertary of State, under the provisions of Section 22-1206 of the Code of 1933, and the corporation thus dissolved. I am of the opinion that it may not.
In the case of White v. Davis, 134 Ga. 274, at 280 and 281, it was said in part as follows:
"* * * In 1891 an Act was passed proposing an amendment to the Con-
stitution, which was subsequently ratified by the people. Acts of 18901891, p. 59. As thus amended the section reads as follows: 'The General Assembly shall have no power to grant corporate powers and privileges to private companies, to make or change election precincts, nor to establish bridges or ferries, nor to change names of legitimate children; but it shall prescribe by law the manner in which such powers shall be exercised by the courts. All corporate powers and privileges to banking, insurance, railroad, canal, navigation, express, and telegraph companies shall be

414
issued and granted by the Secretary of State in such manner as shall be prescribed by law; and if in any event the Secretary of State should be disqualified to act in any case, then in that event the Legislature shall provide by general laws by what person such charters shall be granted.' Civil Code, 5780. It was contended that the conferring on the superior court of the power to grant charters to priva.te companies carried with
it by implication the power to accept the surrender of such charters. * * *
The Legislature has the general power of enacting laws for the State in regard to corporations; and in the absence of any provision for the acceptance of a voluntary surrender by the court, it does not take by implication the State's power in that regard. It by no means follows that the conferring on a governmental agency of the power to issue charters includes the power to release or accept a surrender of such grants. The delegation of authority to do a certain thing does not necessarily imply the delegation also of the power to accept its undoing." It follows, therefore, that in merely giving the Secertary of State the authority to grant corporate charters to insurance companies, it did not thereby give him the right to accept the surrender of such charters. The authority, if any he has, on this subject must have resulted from a specific and direct grant. Section 22-505 contains the following:
"* * * Whenever any insurance company which, by its charter, is
permitted to do other than a fire insurance business, desires to abandon the same, or any part thereof, it may, upon application to the Secretary of State, relinquish and surrender any or all the powers and privileges granted to it for the conduct of such other business, provided no rights of contract be thereby violated." Here the General Assembly gave the Secretary of State the authority to accept and act upon petitions of insurance companies which desire to abandon their charters, but limited it to those doing "other than a fire insurance business." I find no other statute extending or enlarging upon this grant of authority. I must and do conclude, therefore, that any and all authority to receive and accept the voluntary surrender of the charter of a fire insurance company under the provisions of Section 22-1206 of the Code rests with the Legislature.
INSURANCE-Companies-Dissolution The State Insurance Commissioner has no further duties or responsibil-
ities toward a mutual insurance company and its stockholders upon the dissolution of such company after it has ceased to write policies, cancelled out all policies, and discharged all its obligations; therefore, the Insurance Commissioner has no duty or responsibility of supervision over the distribution of the assets of the company.
February 8, 1956
Honorable Zack D. Cravey Insurance Commissioner
I have your letter in which you ask if it is your duty and responsibility as Commissioner of Insurance to direct how and to whom the surplus funds of the above company should be distributed. You further ask how such funds should be distributed, should you have any responsibility in the matter.

415

Examination of the original application for charter, the charter, and the

amendments thereto indicate that this company is a farmers' mutual assessment

fire insurance company operating in no more than four counties. While this type

of company is mentioned in our insuranee statutes on several occasions, Sections

92-2509 and 56-312, for example; these references merely exempt such companies

from the provisions of the particular statute.

'

Generally speaking, you as Commissioner of Insurance have supervision over

all insurance companies in the process of being organized and over all companies

licensed and doing business in this State. This general supervision carries with

it the duty to safeguard the rights of policy holders, and in respect to companies

being organized, carries with it the duty to reasonably protect the interest of stock

purchasers while such company is in a formative or organizing period.

In a mutual assessment company there are no stockholders other than the

policy holders. The operation of such a company would be governed to a large

extent by the law of partnership in this State. You point out in your letter and

the enclosures that the company ceased to write policies several months ago, had

canceled out all policies, and that all obligations of the company of whatever

nature had been discharged. These facts being so, you, as Commissioner, have no

further obligation or duty to safeguard the rights of policy holders. Their policy

rights having ceased by reason of cancellation of their policies, their status is now

that of a stockholder in a corporation which is in the process of liquidation. The

distribution of the assets of the company is a matter of internal management, to

be governed by the charter and bylaws of the company. The bylaws of this com-

pany vest the management in the Board of Directors. While the bylaws are silent

as to distribution of assets after ceasing to do business, Section 6 of such bylaws

implies that both active and retired members of the company may be entitled to

share in any remaining surplus in the event of dissolution.

I fail to find any statute directing the Insurance Commissioner to direct how

and to whom the surplus funds of a mutual assessment fire insurance company

shall be distributed.

Having determined that you have no further duty or responsibility of super-

vision over the distribution of the assets .of this company, it is not necessary to

answer your questions as to how such assets should be distributed.

INSURANCE-Companies-Licenses (Unofficial) (a) An insurance company doing business in four counties is not required
to deposit a bond prior to receiving a license to do business. (b) An insurance company doing business in four counties can insure
city property.
October 22, 1954
Mr. L. Bayne Barfield You request an opinion on the following: 1. Is a deposit required by four-county insurance companies under Section
56-312, Ga. Code Ann., as a condition precedent to the issuance of licenses to such companies?
2. Can a four-county insurance company insure city property? The first question posed is controlled by Section 56-312, Ga. Code Ann. (1953 Revision) which reads as follows:
"All insurance companies chartered under the laws of this State to

416
do a fire insurance business upon the mutual, cooperative or assessment plan, shall, before receiving a license from the Insurance Commissioner, deposit with the State Treasurer registered bonds of the United States or this State, or county or municipal bonds of this State, registered and validated, in.the sum of $10,000. Said deposit shall be made under the same conditions that deposits of nonresident fire insurance companies are made with the State Treasurer: Provided, that this section shall not apply to such companies as operate in not more than four counties in a division of this State, or to farmers' cooperative companies doing fire insurance business in this State on the assessment plan where their policies stipulate that all the property, real and personal, of the policyholders is pledged for the payment of the policy."
An examination of the language of this section reveals that "companies (mutual, cooperative or assessment plan) as operate in not more than four counties in a division of this State" are exempt from making a deposit before receiving a license from the Insurance Commissioner. Therefore, the categorical answer to question one is no.
As to the second question, an examination of the statutes relating to mutual, cooperative or assessment fire insurance companies, reveals no restriction as to insuring city property. Accordingly, the answer to question two is yes.
INSURANCE-Companies-Sale of Stock (a) The Insurance Commissioner has no jurisdiction of the sale of
stock of any insurance company in Georgia, where it is a foreign corporation already organized, and not doing business in Georgia, and the stock being sold have already been issued.
(b) The Insurance Commissioner has no supervisory power over the sale of a new issue of stock in Georgia by a foreign company which has already completed its organization and is licensed to do business in Georgia.
(c) A domestic insurance company, after its organization, (other than a fire insurance company) does not have to obtain the approval of the Insurance Commissioner to increase its capital stock.
December 8, 1955
Honorable Zack D. Cravey Insurance Commissioner
You submit the following queries: "(1.) Life Companies, Incorporated referred to in the Sullivan &
Cromwell letter is not licensed in the State of Georgia. In the circumstances set out in this letter must such a company, under the Insurance Laws of this State, obtain the approval of the Insurance Commissioner to sell its stock in this State? Is the Commissioner authorized and required to take some affirmative action in a case of this kind?
"(2.) United Insurance Company of America referred to in the Johnston, Thompson, Raymond & Mayer letter is currently licensed in the State of Georgia. In the circumstances set out in this letter must such a company, under the Insurance Laws of this State, obtain .the approval of the Insurance Commissioner to sell its stock in this State? Is the Commissioner authorized and required to take some affirmative action in a case of this kind?

417
"(3.) Is an insurance company that is incorporated under the Laws of the State of Georgia, after it has completed its organization, obtained a license and begun operations required to obtain the approval of the Insurance Commissioner if and when it decides, through appropriate corporate action, to increase its capital stock by offering for sale to the public additional issues of stock?
1. The stock of Life Companies, Inc. referred to in letter of Sullivan & Cromwell is original issue stock which the selling stock holders have decided to sell. The proceeds of the stock sold goes to the selling stock holders and not to the company, so the capital structure of the company will not be affected.
Life Companies, Inc. was chartered by the Commonwealth of Virginia on August 1, 1955 and completed its organization and was licensed on August 8, 1955. It is engaged exclusively in life, accident and sickness and annuity reinsurance.
Section 56-110 of the Georgia Code invests in the Insurance Commissioner supervisory powers over any company being organized in this State and over any company being organized in other states and offering its stock for sale in Georgia, before it has been organized and has procured a license to do business in this State. In my opinion this section has no application to a company already organized such as in the instant case. Furthermore, the instant case deals with sale of stock by individual stock holders and not by the company.
It is my opinion that this transaction comes within the jurisdiction of the Securities and Exchange Commission and not under the jurisdiction of the Commissioner. It is noted that a declaration has been filed with the S.E.C. and if that body approves this sales transaction I do not believe the Insurance Department of Georgia will be concerned in the matter. I do not find any provision in the insurance laws of Georgia requiring the approval of the Insurance Commissioner before such stock can be offered for sale in this State and neither do I find that the Commissioner is required to take any affirmative action in a case of this kind.
2. With reference to United Insurance Company of America and letter of Johnston, Thompson, Raymond & Mayer, by John D. Knodell, Jr., I assume that the stock referred to is a new issue by the company for the purpose of increasing its capital and surplus. If this be true and the issue is authorized by its charter or proper amendment thereto, it is my opinion that the sale of such stock in Georgia would be subject to the regulations of the Securities and Exchange Commission and not to the Insurance Commissioner. As before pointed out, Section 56-110 gives to the Commissioner supervisory powers over insurance companies after being chartered and before their organization is completed who are offering stock for sale in Georgia. However, I do not find any statute giving to the Commissioner such supervision over a foreign company that has completed its organization and has been licensed to do business in this State.
3. With reference to question No. 3 you are referred to an opinion of March 21, 1950, Opinions, Attorney General, 1950-51, P. 105 which cites sections 56-805 and 56-911 of the Code. I call your attention to the fact that the opinion of March 21, 1950 dealt with a company in the process of organization and not a company that had completed its organization as in the instant question. The language now codified as 56-911 which states "The principles before stated as to fire insurance, wherever applicable, shall be equally the law of life insurance" was a part of the insurance laws of this State many years before the enactment of Section 56-802 (Acts 1900, p. 76). The principles of fire insurance referred to in 56-911 are now codified in 56-811 through 56-831, and in my opinion, Section 56-911 has no refer-

418
ence to the financial structure and internal management and operation of a company after its organization has been completed.
It is therefore my opinion that a Georgia insurance company, other than a Georgia fire insurance company, may increase its capital stock after its organization has been completed by appropriate action of the share holders or board of directors as provided by its charter and bylaws, within the limits authorized by its charter, without the approval of the Commissioner. If the amount of the proposed increase in capital stock exceed the maximum permitted by its charter, then it would be necessary to amend the charter before the increase could be made. In this connection your attention is called to Section 56-215 of the Code which authorizes a company to issue stock dividends in lieu of cash dividends at the discretion of the board of directors, not to exceed the highest limit of the capital stock fixed by the charter.
INSURANCE-Companies-Surplus Funds Funds raised by an insurance company through "Guaranteed Surplus
Note," could be treated as surplus funds under Georgia Insurance Laws.
May 10,1954
Honorable Zack D. Cravey Insurance Commissioner
I am in receipt of your letter of May 5, 1954, enclosing a copy of a proposed "Guaranteed Surplus Note" to be used by the subject company for the purpose of providing additional surplus, and requesting that I advise you as to whether or not funds raised by a company through obligations of this character could be treated as surplus funds under Georgia Insurance laws.
I am of the opinion that funds obtained by the company under obligations of the type proposed in your enclosure amount in effect to a contribution to the capital of the company and to the extent that such funds exceed liabilities other than those of a proprietary nature, same might be treated on the books of the company as surplus funds.
INSURANCE-Companies-Title Insurance Business A foreign insurance company, licensed in this state to write fire and
casualty insurance, may also qualify to write title insurance, provided it keeps its title insurance business entirely segregated from its fire and casualty business, and provided it has and maintains, in reference to the title insurance business, an unimpaired capital of $100,000.00 and deposits not less than $50,080.00 with the Treasurer of this State as security, or has not less than $100,000.00 on deposit with an official of another state as security, and deposits not less than $25,000.00 with the Treasurer of this State.
February 10, 1956
Honorable Zack D. Cravey Insurance Commissioner
You ask if a foreign insurance company now licensed in this State to write fire and casualty insurance would be eligible to qualify to write title insurance in

419
this State. You point out that this company is qualified in its home state and in a number of other states to write title insurance.
The title insurance statutes of this State, as codified in Chapter 56-19 of the Code of Georgia, implies that title insurance is to be separate and distinct from other forms of insurance. In this connection, you are referred to Section 56-1901 which reads as follows:
"The provisions of this Chapter are intended to supersede all previous laws defining, regulating and providing for the licensing of title insurance companies and are intended to exclude the regulatory provisions applicable to other insurance companies, other than as herein expressly provided."
This does not necessarily infer that a company writing fire and casualty lines of insurance cannot qualify to write title insurance.
Section 56-1905, among other things, provides:
"Before a corporation shall be licensed to transact title business the Insurance Commissioner shall be satisfied by such examination as he may make or such evidence as he may require that such company is duly qualified under the laws of this State to transact such business herein." Section 56-1907 provides:
"No corporation shall be entitled to transact title insurance business in this State unless it has and maintains, unimpaired, a capital of not less than $100,000, fully paid and invested in the securities in which life insurance companies ale authorized by the laws of the state in which the company is incorporated to invest their funds." Section 56-1908 provides:
"Every corporation chartered under the laws of this State engaged in the business of title insurance in this State shall deposit with the Treasurer of this State in cash or in market value of securities deemed by him to be the equivalent of cash, as a guarantee for the security of all its policy holders, an amount equal to five percent. of its capital, but in no event less than $50,000."
The next Section, 56-1909, provides that non-resident companies desiring to qualify in this State shall make the same deposit for the benefit of and security for its policy holders as is required of domestic companies, with the proviso that:
"... Any such non-resident company shall not be required to make the deposit required of domestic companies upon showing that it has deposited with the Treasurer of this State not less than $25,000; and has deposited with the Comptroller General of the state in which it is chartered, or the Insurance Commissioner or other officer authorized to receive it, not less than $100,000 in cash or in securities satisfactory to such officer, subject to his order as a guaranty fund for the security of all policy holders of such company."
Thus, it appears that if the company under discussion has and maintains an unimpaired capital of not less than $100,000 fully paid, and properly invested according to the laws of the state of its incorporation, and deposits with the '.i'reasurer of Georgia the sum of $50,000 as a guarantee for the security of all its policy holders, it would be qualified to be licensed to write title insurance in
f!..,nr~>'ia.
On the other hand, if this company has on deposit with the proper official in t.he state of its incorporation the sum of $100,000 as a guaranty fund for the aHcurity of all the policy holders of such company, and deposits with the Treasurer

420
of this State the sum of $25,000 for the protection of Georgia policy holders, it would likewise qualify to be licensed to write title insurance.
As I construe Chapter 56-19, a company writing fire and casualty lines of insurance and also writing title insurance would have to keep its title insurance business completely segregated from its fire and casualty business, and would have to have $100,000 capital unimpaired, and would further have to make one of the deposits hereinbefore referred to. If the company's deposit in the state of its incorporation is for the protection of all its policy holders, fire, casualty and title, such deposit would not be unimpaired within the meaning of Section 56-1907 since that section requires that title companies transacting a title insurance business in this State must have $100,000 unimpaired capital.

INSURANCE-Commissions (Unofficial)
1) Rebates on insurance commissions are prohibited by Georgia law. 2) Insurance commissions paid by companies doing business in Georgia are included in annual detailed reports to the Insurance Commissioner and are a matter of public record.

January 10, 1955

Honorable Arthur J. Goldberg

You ask:

"1. Is there a legal requirement that an insurance carrier must reflect the cost of commission payments in the total cost of insurance benefits? Or, to state the question in another way, is it possible for an insurance purchaser to receive the advantage of the circumstance that no commission has been paid in connection with an insurance contract?

"2. Are there any provisions which require the availability of com-

mission schedules and/or payments (a) to the public, (b) to the policy

holder, (c) to others?



"3. If the law of your State is silent on the subject of insurance commissions, would you so indicate?"

Under separate cover, I am mailing you a copy of the Insurance Laws of Georgia.

With reference to your first question, you are referred to Code Section 56-218 and Section 56-404a(8) which prohibit rebates of any kind. It would seem that if our insurance company passes on to the insured the amount which ordinarily would be paid out in commissions, to a particular class of insureds, such action is prohibited by the two sections above mentioned.

With reference to questions two and three, you are advised that all companies doing business in Georgia are required to make detailed annual reports to the Insurance Commissioner, which among other things, reflect the total amount of commissions paid during the preceding year. These annual reports are public records. Also, when a company files its rates, the rates are broken down into acquisition costs which include commissions, administration costs and profits. After the rate has been approved it becomes a public record.

421
INSURANCE-Deposits-Claims Subject To
Securities deposited with the State by a non-resident insurance company to comply with statutory requirements are not subject to claim by a nonresident under a judgment obtained against a resident insured by such company upon a notice by the non-resident, since such funds are security for the protection of residents of this state.
January 16, 1956
Hon. George B. Hamilton State Treasurer
You request my opinion as to whether or not you would be authorized to retain as subject to claim certain securities deposited in your office by the Trans-America Insurance Company, Inc., a non-resident corporation of Montgomery, Alabama, hereafter referred to as the Company, under the following facts:
One "A" has advised you that he, as Administrator of the estate of "B", deceased, of Greenville, Tennessee, has obtained judgment in the Circuit Court of. Greene County, Tennessee, against "C" of Columbus, Georgia, as the result of an automobile accident. "C" is insured against such liability under a liability policy issued by the Company, who has qualified to do business in Georgia by depositing securities with you, pursuant to Ga. Code Ann., 56-301 (1953 Rev.).
"A" now requests that you honor his claim, and whether or not you are required by law to so do is the legal question to be resolved here.
The Ga. Code Ann., 56-302 (1953 Rev.) provides as follows:
"When notice of loss given, bonds to be retained; appointment of receiver.-Whenever any loss insured against shall occur the insured, in order to secure his recovery, may give notice to the State Treasurer of the occurrence of said loss and of the amount claimed, after which notice the State Treasurer shall be bound to retain, subject to the order of the court trying any suit that may be brought for the recovery of such loss, a sufficient amount to pay the judgment in said case in the event of recovery; and if the amount for which said company is liable shall not be paid within 10 days, said plaintiff may file an application with the judge of the superior court of the county where the case was tried, for a receiver to take charge of as many bonds as shall be necessary to satisfy the aforesaid judgment."
Code Ann., 56-1109 (1953 Rev.) is to the same effect, but applies to fidelity insurance, and has no application here.
Succinctly stated, the specific question is whether or not 56-302, quoted above, can be construed as creating rights in behalf of non-resident claimants for transactions arising outside this State.
In construing Sections 56-301 and 56-302, it was said by the Court of Appeals in ~fg. Lumberman's Underwriters v. South Georgia R. Co., 57 Ga. App. 699, 701.
"These bonds are for the protection of the citizens of Georgia who have insurance with the nonresident company, and if the foreign company ceases to do business, the bonds remain in the State Treasury until such company 'shall have settled all claims against it' in this State, and are subject to the claims of Georgia citizens under certain prescribed conditions.",
A:i:td again, at page 703, it was said:
"The bonds which a foreign Corporation doing business in this State

422
is required to deposit with the State Treasurer, are to prevent a suit against a dissolved corporation from being futile and unavailing; and a suit brought in a local court is a condition precedent to the appropriation of the bonds held by the State Treasurer to the payment of a fire loss such as in the instant case. The statute as to the depositing of these bonds and retaining them so long as there is a pending Claim in the State, and the statute providing for the prosecution of pending suits after the dissolution of a foreign corporation, are a part of the general scheme of our Georgia law to protect Georgia citizens in the collection of just claims against foreign corporations which are dissolved and which have their principal assets in another State."
While 56302 refers to notice by the "insured", who in this case would technically be "C" of Columbus, it is true, as pointed out to you by local counsel for the claimant, that the Georgia Supreme Court, in Collins v. Dacus, 211 Ga. 779, 782, has held that a person holding a judgment against the insured, although not against the insurance company, is "within the class of persons holding a claim for a loss insured against under Code 56-302"-at least to the extent of having a right to intervene in a liquidation proceeding.
In this respect, it is to be noted that 56-301, in defining the types of companies which must make deposits subject to claim under 56-302, refers to "fire, marine and life, casualty, indemnity and inland insurance companies", in that order. In addition, Sections 56-301 and 56-302 were originally enacted in 1887 (Ga. Laws 1887, pp. 113, 116) at which time liability insurance had hardly the widespread usage that it now enjoys, due obviously to the coming of the automobile. It was only natural then, that the great majority of persons requiring the protection afforded by the deposit law were the policyholder's of fire, life and other types of insurance, and they would constitute the "insured" referred to in Section 56-301.
However, all the foregoing discussion, and the holding of the Collins case, supra, are so much "brutum fulem", since the question here turns on another point.
In Vance on Insurance, 3rd Ed., p. 127, it is stated:
"The State laws relating to foreign insurance companies doing business within a particular state are, in general, directed towards the protection of the citizens of the state.
* * * *
"In order to aid their citizens in the collection of any judgments procured, many states require that the foreign insurance company make a deposit of securities with some state official. ..." (emphasis supplied)
In somewhat agreement with the Mfg. Lumberman's case quoted from above, it is uniformly recognized that the deposits required of foreign insurance companies by a State constitute a trust fund for the benefit of that state's citizens. Holloway v. Fed. Reserve Life Insurance Co. (D.C. Mo. 1937) 21 F. Supp. 516(2); In re Southern Surety Co., (1939) 256 App. Div. 237, 9 N.Y.S. 2d 567, App. 282 N.Y. 54, .24 N.E. 2d 845; State ex rei Van Schaick v. Bowen, Supt. of Ins. (1936), 131 Ohio 310, 2 N.E. 2d; 824; Senter v. Lockhart (1935) 125 Tex. 20, 82 S.W. 2d. 375, 376(1); contrary rulings have been based on specific statutes so providing. See In re New Jersey Fidelity & Plate Glass Ins. Co., 191 A. 475, 15 N. J. misc. 384.
It is interesting to note that the Schaick case, supra, decided by the Ohio Supreme Court, held the deposit to be subject only to resident's claims even

423
though the statute providing therefor was expressed in terms "for the benefit of all policyholders".
While state statutes giving preference to residents as against non-residents in the distribution of a foreign corporation's general assets have been held violative of the Privileges and Immunities clause (Art. 4) of the Constitution (Blake v. McClung (1898) 172 U. S. 239, 43 L. Ed. 432, 19S. ct. 165, I.A.L.R. 648) the same rule is obviously not applicable to a special trust fund specifically required by a state to protect its citizens. Cf. Fischer v. American United Life Ins. Co., e.t al. (1942) 314 U. S. 549, 555, 86 L. Ed. 444, 452, 62 S. ct. 380.
Moreover, that 56-302 was intended to apply only to resident claimants is reinforced by the reference therein to the claimant's filing "an application with the Judge of the Superior Court of the county where the case was tried, for a receiver to take charge of as many bonds as shall be necessary to satisfy the aforesaid judgment."
Also, the "Voluntary Deposit Law" (Ga. Laws 1941, p. 456; Code Ann;; 56-326 et seq) makes specific reference to the fact that the securities deposited thereunder are for the benefit of "all persons having a legal or equitable right against the company arising in the United States." Code Ann., 56-330 (1953 Rev.). Similarly, 56-330 (1953 Rev.) refers to suits pending in this State brought on judgments obtained in other states. The inclusion of this language in the Voluntary Deposit Law, and its absence in the law providing for the required statutory deposit ( 56-301, 56-302) compels the conclusion that the latter statutes were not intended to benefit non-resident claimants.
Since you state in your letter that the Trans-America Company has made no deposits under the Voluntary Deposit Law, 56-330, relied upon by the claimant, has no application; and in the eyes of the law a non-resident, so far as 56-301 and 56-302 are concerned, is-to borrow a phrase from Chief Justice Jackson in Roberts v. State, 72 Ga. 673, 678(2)-, a "heathen man", "publican", and "an uncircumcised Philistine."
I therefore conclude that you would not be authorized to honor the notice filed with you by "A". Should "C", the resident insured, file notice, an entirely different question would be presented.
INSURANCE-Deposits-Necessity for
A fire insurance company that has deposited with the Treasurer, United States Treasury Bonds in the amount required by law, is required to make an additional deposit after the company's license is extended to write miscellaneous casualty insurance.
August 2, 1954
Honorable Zack D. Cravey Insurance Commissioner
Receipt is acknowledged of your letter of July 27, 1954 in which you request an opinion as to whether or not a Mutual Fire Insurance Company, Incorporated, under the laws of the State of Georgia, which has deposited with the Treasurer of Georgia United States Treasury bonds in the amount of $10,000 under the provisions of Section 56-312, Georgia Code Annotated, and has also deposited United States Treasury bonds in the amount of $280,000 under the provisions of Section 56-326, is required to make any additional deposit after the company's license is extended so as to permit it to write miscellaneous casualty insurance. It is noted that the company is now writing non-assessable policies.

424
Section 56-312 requires all insurance companies chartered under the laws of this State to do a fire insurance business upon the mutual, cooperative or assessment plan to deposit registered bonds (United States Treasury, State of Georgia, county or municipal) in the amount of $10,000 with the Treasurer of the State before receiving a license. Section 56-313 requires all such companies to embrace in their policies a clause termed an emergency clause whereby the Company reserves the right to call for extra assessments from its policyholders whenever the contingency arises. This Section contains a proviso that the company is not required to embrace in its policies said emergency clause after the company shall have deposited with the Treasurer bonds as above described in the amount of $100,000.
Thus since the company under discussion is now writing non-assessable policies it is required to have on deposit with the Treasurer the sum of $100,000 in acceptable bonds under the provisions of Section 56-313.
The voluntary deposit statute, Section 56-326, permits deposits of bonds by insurance companies chartered both in Georgia and in other states for the purpose of enabling such company to do business in any other state. Since this section does not fix the amount of bonds to be voluntarily deposited, it is assumed that the company under discussion has deposited the sum of $280,000 in order to qualify under the laws of some other state or states. This section specifically provides that the voluntary deposit is in addition to all deposits of bonds now permitted by or required under Section 56-301.
Section 56-301 deals with a deposit required of all fire, marine, life, casualty, indemnity and inland insurance companies chartered by other states or foreign governments. This section requires a deposit of $10,000 or 2% of the paid up capital stock in excess of $500,000 with a minimum requirement of $10,000 and a maximum requirement of $25,000. Since the instant company is chartered under the laws of Georgia it is not required to make any deposit under Section 56-301.
Section 56-317 requires all life and accident insurance companies to deposit with the Treasurer of this State $100,000 in securities deemed by the Insurance Commissioner to be equivalent to cash as a guaranty fund for the security of policy holders of the company making the deposit. This section has previously been construed to include companies doing general casualty business (O.A.G. 10-26-36Yeomans) and I am not inclined to disturb this construction.
It is, therefore, my opinion that if the license of the instant company is to be enlarged so as to permit the writing of miscellaneous casualty business, not including fidelity and surety and workmen's compensation coverages, it should be required to deposit an additional $90,000 in securities under Section 56-313 and the further sum of $100,000 in securities under Section 56-317.
INSURANCE-Deposits-Necessity for
An insurance company, to write fidelity and security bonds and Workmen's Compensation insurance, must make the deposits required by law for these purposes, and it is immaterial that there has already been a deposit made for another type of insurance.
March 30, 1955 Honorable Zack D. Cravey Insurance Commissioner
Re: Southern General Insurance Company Atlanta, Georgia
Receipt is acknowledged of your letter of March 9, 1955, asking if the above company, which now has on deposit with the State Treasurer $100,000 in securities

425
under Section 56-326 of the Code and an additional $100,000 in securities under Section 56-317, should be required to make additional deposits in order to qualify to write Fidelity and Security Bonds and Workmen's Compensation Insurance. It is noted that the company is now writing Fire and Allied Lines and Miscellaneous Casualty Insurance.
Section 56-311 of the Code provides:
"Before any surety or bonding company shall write any bonds in this State, it shall be required to deposit the sum of $25,000 with the State Treasurer, conditioned as is provided by law for the deposits required of such companies in writing bonds of public officials of this State: Provided, that whenever any such company shall have already deposited $25,000 as provided by law for writing bonds of public officials it shall not be required to deposit an additional sum."
This section has been construed as requiring a special deposit for the benefit of the obligee in a bond executed by the company. (Eads v. Southern Surety Co., 178 Ga. 348.)
Section 114-606 provides:
"All policies insuring the payment of compensation UJlder this Title, including all contracts of mutual, reciprocal, or inter-insurance, must contain a clause to the effect that as between the employer and the insurer or insurers the notice to or knowledge of the occurrence of the injury on the part of the insured employer shall be deemed notice or knowledge, as the case may be, on the part of the insurer or insurers; that jurisdiction of the insured for the purposes of this Title shall be jurisdiction of the insurer or insurers; and that the insurer or insurers shall in all things be bound by and subject to awards, judgments, or decrees rendered against such insured employer. Every insurance company doing a workmen's compensation business in this State shall furnish a bond payable to the State in the sum of $50,000 with some surety company authorized to transact business in this State as surety, in such form as may be approved by the Insurance Commissioner, conditioned for the payment of compensation losses on policies issued by such insurance company upon risks located in this State. Suit may be brought upon said bond by the Department of Industrial Relations, for the use and benefit of any party or parties at interest. The annual license of such company shall not be issued or renewed until it has filed with the Insurance Commissioner of this State a bond as aforesaid. In lieu of such bond a deposit of the same amount may be made with the Treasurer of the State in the form of other security satisfactory to the Insurance Commissioner."
You will note that the $50,000 bond required under this section is conditioned for the payment of compensation losses.
The deposit required under 56-317 of domestic life and accident companies is for the security of policyholders (life and accident); while the deposit required by 56-326 is for the purpose of enabling a domestic company to qualify to do business in other states which may require a larger deposit than is required by Georgia, and is a general deposit held for the protection of all policyholders.
It is my opinion that the captioned company should be required to deposit $25,000 with the State Treasurer under Section 56-311 of the Code before it should be licensed to write surety bonds; and that said company should be required to make an additional deposit s.f $50,000 under Section 114-606 before it should be licensed to write Workmen's Compensation Insurance.

426
INSURANCE-Deposits-Release The deposit of an insurance company may be released when the com-
pany has ceased to do business in the state, and all its policy obligations have been assumed by another insurance company authorized to do business in the state.
August 6, 1956
Honorable Zack D. Cravey Insurance Commissioner
I have your letter together with your'tue on the above company. You request advice as to whether it is now in order to release the deposit of $100,000.00 made by All America with the State Treasurer under the provisions of Section 56-317 at the time of the organization of that company.
It is noted that All America Insurance Company sold, transferred and conveyed all of its property of every kind and character to the Columbus National Insurance Company by action of the stockholders and Board of Directors on March 10, 1956, and by such conveyance has ceased to be in the business of writing life insurance; and that Columbus National has by policy rider reinsured all of the policy obligations of All America and has assumed full liability under such contracts. It is further noted that. you, as insurance Commissioner of Georgia, approved this action on March 15, 1956.
The deposit required by Section 56-317 of the Code of Georgia is for the purpose of guaranteeing the security of the policy holders in a company. In view of the fact that all of the policy obligations of All America are now assumed and guaranteed by Columbus National which company has a like deposit of $100,000.00 with the State Treasurer under Section 56-317, I know of no reason why the deposit originally made by All America should not be released.
The $100,000.00 deposit required by Section 56-317 has no relationship to the volume of outstanding policy obligations. It is a flat amount required of all companies organized in this State whether such volume be large or small. Therefore, if you are satisfied as to the solvency of Columbus National, and I am sure that you are else you would not have 'approved of the sale on March 15, 1956, you may authorize the release of the deposit under discussion.
INSURANCE-Deposits-Withdrawal Transfer of deposit of insurance company to another State will not defeat
the purpose of Code Section 56-316 if the deposit remains subject to claims of Georgia policyholders, both as to future claims and to the extent of accrued .claims against the present Georgia deposit.
March 2, 1954
Honorable Zack D. Cravey Comptroller General and Insurance Commissioner
You state that the subject company has on deposit with the State Treasurer obligations of the United States Treasury in the face amount of $110,000.00. This deposit was made pursuant to the Georgia "voluntary deposits" statute, contained in Section 56-326 of the Annotated Code, for the purpose of complying with deposit requirements relating to foreign life and accident companies contained in Section 56-316 of the Code at the time the subject company qualified in Georgia.
You state that the company now desires to qualify in the State of Michigan,

427
whose laws require a deposit of $200,000 in that State. The company has, for that purpose, already deposited $105,000.00 in Michigan and requests that it be allowed to withdraw its deposit in Georgia and place it on deposit in Michigan, in order to make up the required amount in that State. The company does not intend to withdraw from business in Georgia, but wishes merely to have these funds transferred to Michigan and recognized by Georgia as compliance with Code Section 56-316. You request my opinion as to whether or not this may be allowed without impairing the company's right to do business in this State.
Section 56-326 of the Annotated Code, relating to voluntary deposits, provides that such deposits may be withdrawn by any company whenever the Insurance Commissioner shall certify. to the State Treasurer that such deposit is no longer required, in whole or in part, in order to comply with the laws of this or any other State. In the file attached to your letter are contained letters from the proper officials of each of the States in which the company is presently a,dmitted, stating that these states have no objection to the transfer of the deposit to Michigan, provided that it remains subject to clai.ms of all policyholders in the United States. Thus, in order to certify to the State Treasurer that .said deposit is no lo,nger required, it will necessarily .have to appear (1) that the deposit in Michigan will remain subject to claims of all policyholders in the United States and (2) that no reas.on exists under Georgia law requiring the present deposit to be maintained in Georgia. At this point, I wish to examine the latter requirement.
Although the subject deposit was made pursuant. to the "voluntary deposits" statute, it was necessitated in .order to comply with Section 56-316 of the Code, which requires a $100,000.00 deposit of all foreign and alien life and accident companies, and the certificate of release provided for in Section 56-326 can not be given if the transfer to Michigan has the effect of placing the company in noncompliance with Section 56-316.
Section 56-316 requires that deposits made pursuant to its terms shall be made by the company in the State in which it is chartered or elects to make its deposit. There is no provision for the withdrawal of such deposits made in this State except in the event of withdrawal of the company from business in this State as provided in Code Section 56-323 et seq. So it might be argued that by placing funds on deposit in Georgia pursuant to Section 56-316 the company has made an election which is irrevocable so long as the company continues to do business here. However, it might also be forcefully argued that the word "elect" contained in Section 56-316 implies that the company may make such an election at any time and change its deposit from one State to another. Lacking the benefit of judicial construction of this point, I am inclined to look to the purpose of the deposit required under 56-316 in order to determine whether such purpose will be served or defeated by permitting the requested transfer. The purpose is obviously to make assets of the company readily available to policyholders for recovery in the event of a loss insured against. The deposit is not required to be made in Georgia, as the legislature unquestionably could have required had it so desired. The conclusion must, therefore, be reached that the purpose and intent of Section 56-316 is met whenever the required amount of securities are deposited with some proper State official so as to be subject to claims of policyholders in Georgia. Therefore, I am of the opinion that the transfer of the deposit to Michigan will not defeat the purpose of Section 56-316 of the Code if the Michigan deposit remains subject to claims of Georgia policyholders both as to future claims and to the extent of accrued claims against the present Georgia deposit.
The problem thus resolves itself, both as to Georgia and the other States in which the company is now. admitted, to whether or not the Georgia deposit when

428
transferred to Michigan would continue to stand for accrued and future claims of policyholders in Georgia and such other states to the same extent and on the same basis as the present Georgia deposit. This must be determined from applicable laws of the State of Michigan.
The deposit, when made in Michigan, would be governed by Section 512,5 and 521.3 of the Insurance Code of Michigan of 1950. These sections provide that such deposits shall be held as security for any loss suffered by policyholders of said insurer. There is no language restricting such losses to policyholders in Michigan, and I would assume, therefore, that it applies to all policyholders wherever located. I believe this construction is supported by the administrative interpretation placed thereon by the Michigan Department of Insurance in its letter to your department under date of February 3, 1954, and included in your file in this matter.
The only remaining question, therefore, is whether or not the deposit, when transferred would stand in lieu of the Georgia deposit as to accrued claims. On this point, the law of Michiga~ is silent. However, I believe that such effect could be given by agreement of the company to expressly subject the deposit in Michigan to all claims accrued against the Georgia deposit prior to its release of which neither you nor the State Treasurer have been given notice. Such agreement should recite that it is based on consideration of your release of the Georgia deposit. When this agreement is executed and delivered to you by the subject company, it is my opinion that you may certify the release of the subject deposit to the extent that the same is not required to be held by notice of claims given to the State Treasurer as provided by law.
I wish to point out that this opinion deals only with the deposit made by the subject company pursuant to the provisions of Section 56-316 of the Code and in no way relates to deposits required by Code Section 56-301 or any other provision of Georgia law. I am returning herewith the file transmitted with your letter.
INSURANCE-Deposits-Withdrawal An insurance company may withdraw the security deposited with the
Insurance Commissioner upon ceasing to do business in the State, by following the procedure contained in Code Section 56-323, and by appointing an agent for service of process.
November 21, 1956
Honorable Zack D. Cravey Insurance Commissioner
Re: Southern States Life Insurance Co. Houston, Texas
I have your letter advising that the above captioned company has ceased to do business in Georgia and wishes to withdraw the securities it has on deposit with the State Treasurer. You point out that as of the end of 1955 the company has outstanding 318 life policies on the lives of. residents of this State. You ask if you are authorized by statute to release the securities as long as. the company has outstanding policies in force on residents of Georgia.
I believe that your request is covered by the opinion furnished you on April 28, 1947 (Opinions of Attorney General, 1945-47, p. 371), in which you were advised that Section 56-323 of the Georgia Code is the applicable section in a situation of this kind. Sections 56-324 and 56-325 do not apply to life companies.

429
I would further advise that before releasing the securities that you require the withdrawing company to formally designate and appoint an attorney upon whom process may be served in this State in order that the Georgia policy holders or beneficiaries may avail themselves of the courts of this State in the event any litigation should arise out of the contracts now outstanding.
INSURANCE-Definition A Credit Indemnity Corporation, writing contracts which give the cor-
poration the right to collect past due accounts of a "client" in return for a fee paid by the "client" and where the corporation does not guarantee to collect accounts, cannot be regulated by the Insurance Commissioner.
June 29, 1954
Honorable Zack D. Cravey Insurance Commissioner
Receipt is acknowledged of your letter of June 28, 1954 with enclosures. After examining the contract of warranty issued by the Guardian Credit Indemnity Corporation it is our opinion that said contract of warranty is not a contract or policy of insurance. We are further of the opinion that it is not even a contract of indemnity. As far as we are able to ascertain this so-called contract of warranty is no more than an agreement on the part of the "client" to pay the indemnity -company a fee for giving the indemnity company the right to collect certain past due accounts on a percentage basis. The company does not guarantee to collect the accounts, but only agrees to remit the funds due to the client on the accounts it collects. The agreement goes further and grants to the company the right to compromise said past due accounts and to return them to the client if it is unable to collect them. I do not believe that you, as Insurance Commissioner, are authorized under the statutes of our State to regulate this company.
INSURANCE-Definition Installment contract with guarantee that in event of death account will
be paid in full, constitutes a contract of insurance.
October 13, 1954
Honorable Zack D. Cravey Insurance Commissioner
You pose the following questions: 1. Would. A Company be engaged in insurance business if it sold a written guarantee to a customer who was buying merchandise on the installment plan, which contract guarantees that in the event of the death of the customer his unpaid balance would be marked "paid"? In other words, is an agreement providing for the cancellation of a debt, in case of the death, a contract of insurance? 2. Would A Company be engaged in the insurance business if it contracted with each installment customer to mark the account "paid" on the death of the customer, but charged no specific fee for this additional obligation and absorbed the cost in its sales price and carrying charges?

430
Section 56-901, Georgia Code Annotated, (1953 Revision) defines a contract of life insurance as follows:
"A contract of life insurance is one whereby the insurer, for a consideration, assumes an obligation to be performed upon the death of the insured, or upon the death of another in the continuance of whose life the insured has an interest, whether such obligation be one to pay a sum of money, or to perform services, or to furnish goods, wares or merchandise or other things of value, and whether the cost of value of the undertaking on. the part of the insurer be more or less than the consideration flowing to him. Every person, firm or corporation writing or issuing contracts of life insurance, as defined in this section, shall be deemed to be engaged in the business of life insurance and shall be subject to all of the provisions of the laws of Georgia regulating life insurance companies."
In Paolucci v. U. S., 151 Fed. 276, certiorari denied 208 U. S. 617, it was held that Section 56-901, Georgia Code Annotated, was declaratory of the general law on this subject. This statutory definition ( 56-901) of life insurance is not exhaustive. South Georgia Funeral Homes Incorporated, et al. v. Harrison, 183 Ga. 379, citing Benevolent Burial Association, Inc. v. Harrison, 181 Ga. 230.
In view of these decisions, the Supreme Court of Georgia in the application of Section 56-901 to a given factual situation would not be bound by the textual rigidity of that section but would be free to apply principles of the general law on this subject.
The first question posed is settled by Attorney General vs. C. E. Osgood Com~ pany, 249 Mass. 473, 144 S. E. 371, 35 A. L. R. 1037, in which it was held that an undertaking on the part of one selling merchandise on the installment plan to cancel the debt in case the buyer dies before the debt is paid is insurance. This case arose under a statute similar to Section 5~-901, Georgia Code Annotated (.1953 Revision). The principle announced in the Osgood case has been followed in several jurisdictions and is the general rule. See United Securities Insurance and T. Co. v. Bond, 16 App. D. C, 579; State v. Beardsley, 88 Minn. 20, 92 N. W. 472; Missouri, K. & T. Trust Co. v. Krumseig, 23 C. C. A. 1, 77 Fed. 32; Missouri, K. & T. Trust Co. v. McLachlan, 59 Minn. 468, 61 N. W. 560.
Funeral service contracts have been held to constitute policies of life insurance. Benevolent Burial Association, Inc. v. Harrison, 181 Ga. 281.
Although no Georgia cases were found to be on all fours with the Osgood case, nevertheless, the funeral service contract cases enunciate the same rule.
In Ruto v. Italian Burial Casket Company, 158 A. 657, 104 Pa. Super. 288, it was held that a contract for funeral services and equipment in consideration of weekly payments until payments total a certain sum, but payment to cease upon death, was an insurance contract.
A contract for the purchase of land containing a provision that in event of the death of the purchaser the remaining debt would be cancelled is a contract of insurance. Saltzman v. Fairbanks Realty Corporation, 257 N. Y. S. 575.
In view of the extensive acceptance of the principle enunciated in the Osgood case, and since that case arose under a statute similar to Section 56-901, the Supreme Court of Georgia would very likely apply that principle, if such case arose here. This is especially likely as previous adjudications have held that Section 56-901, Georgia Code Annotated (1953 Revision) is declaratory of the general law.
Applying these principles of law to the first question posed, I hold that "A"

481
Company would be engaged in insurance business if it sold a written guarantee to a customer who was buying merchandise on the installment plan, which contracts guarantee that in the event of the death of the customer his unpaid balance would be marked "paid".
The only difference between the two questions posed by you is the manner in which the consideration is handled. In the first situation the guarantee, to forego the collection of the unpaid balance in case of death of the purchaser, is sold, i.e., a cash consideration, to the customer. In the second situation. the consideration is absorbed in the sales price and carrying charges. Thus in the second question there is ostensibly no consideration. Of course, if there is no consideration for the obligation, then one of the necessary elements would be lacking and there would be no contract of insurance. The problem then reduces itself to whether the guarantee could be "given" to the customer and the price of the article raised to cover the losses from the ostensible gift. There is a split of authority on this issue. However, reason and the weight of authority appear on the side that holds that the consideration is in the sales price and that such guarantees are contracts of insurance.
The terms and mode of payment of the consideration are not determinative of the question whether the contract is one of insurance. 29 Am. Jur. 4.
A warranty promises indemnity against defects in the article sold, while insurance indemnifies against loss or damage resulting from perils outside of and unrelated to defects in the article itself. State ex. rei. Duffy v. Western Auto Supply Co., 134 Ohio St. 163, 16 N. E. 2d 256, 119 A. L. R. 1236; State ex rei Herbert v. Standard Co., 138 Ohio St. 376; 35 N. E. 2d 437.
In Hunt v. Public Mutual Benefit Foundation, 94 F. 2d 749, a corporation advertised family security and benefit in case of death as inducement to public to obtain coupons by buying goods from specified stores. It was held that this was insurance. This same case held that in determining whether a corporation was engaged in the insurance business the Court must look through the forms in which parties state their relations to ascertain whether relation of insurer and insured exists in fact.
It is a universal rule that the creditor has, for the purpose of indemnifying himself against loss, but for no other, an insurable interest in the life of his debtor. Exchange Bank of Macon v. Loh, Administrator, et al., 104 Ga~ 446 (31 S. E. 459).
By virtue of the above stated principle, the Supreme Court would in my opinion look through the form of the transaction and seeing all the necessary elements present as set forth in the statutory definition of life insurance (Section 56-901) would hold that such contracts were contracts of insurance.
Of course, the holder of a chose in action has a legal right to forego the enforcement of such right. There is no law that makes it mandatory upon the creditor to collect his debts. It necessarily follows that if "A" Company so desired it could adopt a policy of not enforcing the debt where the debtor died leaving an unpaid balance. It could not enter into a contract of such nature, but it could adopt as a policy this action, unrelated to any particular s~Je or contract. It could undoubtedly advertise this policy, but probably should not use the word ''insurance" in connection with such advertisement.

432
INSURANCE-Definition
Insurance 'is the assumption of a risk for an agreed consideration and thus, a plan of the company to pay certain expenses of employees coupled with a contribution of the company and the employee is not engaging in the business of insurance.
January 26, 1955
Honorable Zack D. Cravey Insurance Commissioner
Reference is made to oral request for a memorandum opinion as to whether the proposed plan of the American Sumatra Tobacco Corporation would constitute doing an insurance business within the meaning of the laws of Georgia.
Briefly, the proposed plan is as follows: It would cover the employees of the corporation and their immediate families, that is, any unemployed husband or wife and minor children. Contribution would be made by employees on a voluntary basis and would be deposited in a fund to be administered by a board composed of employees. Contributions would be deducted from pay roll. Employees and members of their families would be provided with medical treatment and hospitalization by designated doctors at designated hospitals. The plan is subject to voluntary discontinuance by either employer or employee. There would be no coverage if employee is protected by Workmen's Compensation Insurance. There would be a top level of benefits. The board would annually fix the rates or payments required to be made by participants and distribute surplus, if any. The corporation would underwrite the fund. Rules and regulations would be adopted governing the administration of the fund.
The fundamental principle of insurance is the assumption of a risk for an agreed consideration. I have examined the many opinions of former Attorneys General and in each of these opinions the question turned on this point. In the plan outlined above, there is no assumption of risk by the corporation. I do not think that the mere underwriting of the fund constitutes an assumption of risk. Furthermore, there is no consideration inuring to the corporation. The pay-roll deduction of voluntary contributions goes into the fund, not to the corporation, which fund is administered by a board composed of employees. The plan is definitely a non-profit association since it contemplates an annual distribution of surplus, if any, among the participants.
The establishment and maintenance of such a plan is a proper exercise of the incidental or implied powers of a corporation. (See: Heinz v. National Bank of Commerce, 237 Fed. 942; State, ex rei Atty. Gen. v. Pittsburg, Cin., Chi., & St. Louis Ry Co., 208 N. Y. 275).
Insurance involves distribution of a risk, and whether a contract (or plan) is one of insurance, or indemnity, each involves contractual security against anticipated loss, and there must be a risk of loss to which one party may be subjected by contingent or future events and an assumption of it by legally binding arrangement by another. (Jordan, Supt. of Ins. v. Group Health Assn., 107 Fed. 2nd, 239). The plan does not contemplate any such assumption of risk on the part of the corporation.
I have examined the opinion of the Attorney General of Florida on this plan and I concur with his conclusion that the proposed plan would not constitute doing an insurance business. The question of the rights of a participant against the fund, not being before me, is left open.

433
INSURANCE-Definition
An association which provides for payments to beneficiaries upon the death of a member is engaged in the business of insurance, and subject to regulation by the Insurance Commissioner;
September 16, 1955
Honorable Zack D. Cravey Insurance Commissioner
I have your letter in which was enclosed copy of proposed Rules and Regulations of the Georgia State Fire Fighters Association Death Benefit Fund.
You ask for an opinion on whether the proposed operation of the fund would constitute doing the business of insurance; and if so, would the administration of the fund be subject to your regulation.
I note from the correspondence submitted that the Georgia State Fire Fighters Association is not incorporated but is simply a voluntary organization composed of approximately 2,000 members who are joined together by mutual agreement and who are affiliated with an international organization bearing the name of "International Association of Fire Fighters."
Section 56-901 of the Code of Georgia defines a contract of life insurance as:
"A contract of life insurance is one whereby the insurer, for a consideration, assumes an obligation to be performed upon the death of the insured, or upon the death of another in the continuance of whose life the insured has an interest, whether such obligation be one to pay a sum of money, or to perform services, or to furnish goods, wares or merchandise or other thing of value, and whether the cost of value of the undertaking on the part of the insurer be more or less than the consideration flowing to him. Every person, firm or corporation. writing or issuing contracts of life insurance, as defined in this section, shall be deemed to be engaged in the business of life insurance and shall be subject to all of the provisions of the laws of Georgia regulating life insurance companies."
Section 56-231 of the Code provides that all laws regulating the business of insurance in this State by companies shall apply to individuals, associations and corporations in like business.
In section 2 of Article 1 of the proposed Rules and Regulations the object of the Fund is stated as being "to cement the bonds of fraternity and friendship now existing between the members of the Georgia State Fire Fighters Association, and to furnish immediate assistance to the families of beneficiaries of its members. Section 3 of Article 1 provides that the fund shall become due and payable as provided in the Rules and Regulations.
Article 3, Section 1 conditions membership in Fund upon payment of dues and assessments and Article 4 provides for membership certificates and designation of beneficiary. Article 5 provides for the payment from the fund to the beneficiary of a deceased member of an amount equal to $1.00 for each member in good standing; and article 6 provides for the levy of assessments when a member dies in order to maintain sufficient funds to pay off death claims.
It is my opinion that the proposed operation of the Fund falls within the definition of a life insurance contract as quoted above. Under such a plan the assessments become the consideration for the obligation which the Board of Directors who administer the fund, assumes to perform on the death of a member.

434
With reference to the question of your supervision of such fund, Section 56-104 provides that the Insurance Commissioner may examine at any time into the affairs of any insurance company doing business in this State on an assessment, fraternal, industrial or charitable company or otherwise ... and that it shall be the duty of the Commissioner to examine every domestic company at least once in five years. As before pointed out, since the word "company" includes individuals and associations, I am of the opinion that the proposed administration of the fund would be subject to regulation by you as Insurance Commissioner.
INSURANCE-Definition An automobile club which guarantees bail for members, etc. is engaged
in the business of insurance, and must comply with the laws relating to insurance.
December 1, 1955
Honorable Zack D. Cravey Insurance Commissioner
You ask my opinion as to whether a corporation using in the conduct of its business a membership certificate and membership cards providing such benefits as are set forth in the forms of certificate and cards of United Motorist Association, Inc. which you attach must obtain a license to transact insurance business and comply with other insurance laws.
These documents provide, among other things, that in consideration of the payment of an annual membership fee the Association will furnish reimbursement within stated dollar limits of legal expenses incurred (1) "to represent and defend a member when charged with. manslaughter", (2) "to collect damages to member's automobile caused by collision with a trolley car, or any other motor driven vehicle . . .", and (3) ..,to represent and defend a member against suits arising from a collision of member's car with another automobile or truck ...". The documents also contain a certificate guaranteeing the appearance of the member in any court of competent jurisdiction to answer a charge of violation of any motor vehicle law and the payment of any fine up to $200 levied for each failure to so appear, and they invite public officers to accept this certificate in lieu of a cash bond for such appearance.
Section 56-401 of the Code of Georgia Annotated provides: "56-401. Companies required to be licensed.-No insurance company
chartered by this State or by another State or a foreign Government, shall transact any business of insurance in this State without first procuring a license from the Insurance Commissioner." Section 56-414 of the Code of Georgia Annotated provides:
"56-414. Insurance companies, domestic and foreign, and fraternal benefit societies required to secure license.-No insurance company chartered by this State or by another State or a foreign government and no fraternal benefit society, shall transact any business of insurance in this State without first procuring a license from the Insurance Commissioner of Georgia, and no such insurance company or fraternal benefit society shall continue in the business of insurance in this State or to transact any such business in this State after the expiration of its license, without renewing the same."

435
The word "insurance" does not appear to be defined generally in our Code. In 44 C.J.S.-Insurance, Section 1, Page 471, it is stated that insurance in this context "has been said to be best defined as a contract whereby one undertakes to indemnify another against loss, damage or liability arising from an unknown or contingent event." See, also, annotation irt 119 A.L.R. 1242.
In the case of Continental Auto Club, Inc. v. Navarre, Commissioner of I!lsurance, (Supreme Court of Michigan, 1953) 337 Mich. 434; 60 N. W. 2d 180, the Court had before it contracts which provide for payment for similar services of an attorney and for bail bonds. The Court there stated:
"Where membership in automobile club entitled members to attorney services to extent of dollar limitation designated for various types of services, and club would arrange for bail for members, benefits to members embraced indemnity against expense resulting from ownership, maintenance, or use of automobile and were to that extent within the meaning of word 'insurance' as used in insurance code, and club, being engaged in business of insurance, was required to comply with insurance code." At page 181, it is stated in the decision that the Michigan Insurance Code contains no general definition of the word "insurance", but under the heading "general mutual law" automobile insurance is identified as insurance against loss, expense and liabilty resulting from the ownership, maintenance or use of any automobile. I am of the opinion that when a corporation uses such instruments in the conduct of its business providing these benefits to its customers, it is to that extent engaging in the transaction of a business of insurance and hence must obtain a license as required by the above code sections and comply with other applicable laws relating to insurance.
INSURANCE-Definition (Unofficial) A company which agrees to replace a certain article if it is lost through
theft, etc., within a period of one year from purchase, is issuing an insurance policy and must conform to Georgia laws.
July 10, 1955
Honorable Zack D. Cravey Insurance Commissioner
I have Mr. Cadle's letter transmitting a copy of the letter of U. S. Diamond Ring Corp. of New York City under date of June 11, 1956. Mr. Cadle inquires as to whether the proposal of the ring corporation in its letter constitutes insurance on its part, and hence, the acts of the local dealer under the proposal are within the statutes prohibiting anyone from acting as an insurance agent unless he complies with the requirements of the statutes. I understand that you wish an informal statement of the law rather than a formal opinion.
From the letter of the ring corporation, it appears that each purchaser of a diamond ring will receive from the local retailer a certificate under the terms of which if the ring is lost, destroyed, or damaged through burglary, robbery or other theft of which there is reasonable evidence, loss of stone out of mounting, fire and lightning, cyclone, hurricane, windstorm, etc., earthquake, water or flood, strikes, riot, or civil commotion but not including disappearance, gradual deterioration, and war conditions, the ring will be replaced by the ring corporation which

436
will take insurance to cover such losses from a foreign insurance company not authorized to do business in Georgia. It is said that no charge is made the customer for this coverage, and it constitutes in force for one year from the date of the purchase.
In their essential elements, the facts above outlined do not differ materially from the facts that were before the Court of Appeals of New York, which is the highest appellate court in that State, in the case of Ollendorff Watch Co., Inc., et al, v. Pink, Superintendent of Insurance, 279 N.Y. 32, 17 N.E. 2d 676. The Court there stated:
"2. A watch manufacturer which delivered to purchasers of its watches certificates whereby it contracted for no consideration in addition to purchase price of the watches, to replace watches lost through burglary or robbery within one year from date of the purchase, with new watches of like quality and value, was transacting 'insurance business' in violation of the statute prohibiting transaction of insurance in the state without certificate of authority from Superintendent of Insurance. Insurance Law Sec. 9."
Concerning the contention that this was not an insurance transaction because the purchaser paid no sum in addition to the purchase price of the watch, the Court said (Page 677):
"It is said this is not insurance because the price .is the same, whether the certificate be given or not; that the purchaser pays nothing for the insurance; that he pays only for the watch. Nevertheless, we have in this case: The seller insures the risk and pays the Traveler's Indemnity Company a premium; in other words, it reinsures at its own expense. This, however is the payment for insurance by indirection instead of by direct act of the purchaser. The fact that the insurance comes out of the proceeds of all the income of the watch company cannot hide the reality of the transaction. The price which the purchaser of the watch pays is not only for the watch but for everything which the seller gives him. The seller would not give him the insurance if he did not buy the watch. The price he pays for the watch is the inducement for the insurance the same as the certificate of insurance is an inducement for the purchase."
The fact that the insurance contract provides for payment in property by replacing the article does not change the nature of the transaction. See also in this connection Benevolent Burial Assn., Inc. v. Harrison, 181 Ga. 230, 181 S.E. 829; State Ex Rei Duffy v. Western Auto Supply Co., 134 Ohio State Reports 163, 16 N.E. 2d 256.
It is therefore my judgment that under the facts stated, the ring corporation would be engaging in the insurance business although it re-insm:es the risks with the Canadian company, and that the local retailer would be acting as its agent for the purpose.
The letter of the ring corporation recognizes that if it becomes an insurer and the local retailer its agent under the proposal which it outlines they must comply with the Georgia Statutes providing for the licensing and regulation of insurance companies and their agents.

437
INSURANCE-Insurance Commissioner-Representation by Attorney-General The Commissioner of Insurance is entitled to representation by the
Attorney General in an anti-trust suit arising because of acts growing out of meetings attended by the Commissioner in his official capacity.
April 29, 1954
Honorable Herman E. Talmadge Governor of Georgia
In response to your letter of April 28th, 1954, with regard to the anti-trust suit against the Commissioner of Insurance of this State, the petition shows that the acts complained of grow out of meetings of the members of the National Association of Insurance Commissioners, and for that reason, since these meetings are attended at various times by all the Commissioners of all the respective States and territories, I am of the opinion that those meetings are conducted in furtherance of the official duties and responsibilities of the Insurance Commissioner of Georgia, and are his official acts in which he is entitled to the representation of the Law Department.
Further, I am pleased to advise that Code Section 40-1601 (6) provides that it shall be the duty of the Attorney General "to represent the State in all civil and criminal cases in any court whim required by the Governor."
For the foregoing reasons, I am of the opinion that it is appropriate at your direction for the Attorney General to represent the Insurance Commissioner in such a matter, or appoint a deputy for such purpose.
INSURANCE-Investments of Companies An insurance company can invest in a loan secured by a long-term lease
of property, only upon approval of the Insurance Commissioner.
April 23, 1956
Mr. J. L. Yaden Teachers' Retirement System of Georgia
I have your letter with attached letters and memoranda in connection with your inquiry as to whether the Teachers' Retirement System is authorized by the acts under which it operates to make a loan to Nalley Chevrolet Company, Inc., secured by a deed to secure debt upon its interest in property leased to it for 99 years.
Some parts of the lease are in the form generally employed for the purpose of giving only the right to possess and enjoy the use of real estate rather than grant an estate or interest in the property. However, since it is a lease of realty for five years or more, Code Section 61-101 operates to cause it to convey an estate for years in the absence of provisions in the lease negativing the granting of such an estate. See Warehouses, Inc., v. Wetherbee, (Supreme Court of Ga., Feb. 10, 1948), 203 Ga. 483, 46 S.E. 2d 894.
Section 32-2917 of the Georgia Code Annotated authorizes the Board of the Teachers' Retirement System to invest and re-invest its assets subject to all of the terms, conditions, limitations and restrictions imposed by the laws of Georgia on domestic life insurance companies. Section 56-224 of the Code authorizes domestic life insurance companies to make loans secured by first liens on improved real estate not exceeding 66-2/3 percent. of its value. It may be assumed that the

438
building now on thi's property makes it improved real estate, but the lease for 99 years did not convey title, and this being true, the Teachers' Retirement System could not obtain a first lien upon the property.
The succeeding Code Section 56-225 provides that while loans within the provisions of Sec. 56-224 may be made without approval of the Insurance Commissioner, all other loans must have his approval. Hence, if the Teachers' Retirement System wishes to make a loan upon the interest in the property obtained by this company under the lease, it must first obtain the approval of the Insurance Commissioner. Paragraphs 10 and 17 of the lease make buildings erected by the lessee a part of the real estate and they cannot be removed or a separate lien granted thereon.
Paragraph 12 of the lease provides that in the event the lessee shall default for five days in the payment of rent or default in the payment of taxes or assessments when due, the lessor may terminate :the lease by giving written notice to the lessee. Hence, in the event of such a default the lessor could deprive anyone who had granted a loan on the lessee's interest in the property of all of their security for the loan. Most property would be substantially improved by the construction the new buildings, and their construction and use may facilitate the payment of rent and taxes, the lessor may be willing to convey the full title to the property to the lessee to enable the lessee to obtain the loan. After the loan is closed and a first lien is established of record the parties may make such othe1 arrangements as they wish, subject to the first lien of the loan deed.
INSURANCE--Investments of Companies A foreign insurance company may invest in improved property in Georgia,
where the borrower holds a lease-hold estate, if such an investment is permitted by the laws of the state in which the company is chartered.
June 9, 1955
Honorable Zack D. Cravey Insurance Commissioner
I have your letter in which you ask if a foreign insurance company licensed to do business in this state may invest its assets in improved properties (filling station, buildings, etc.) where the borrower holds a leasehold estate.
I believe this question is answered in the second paragraph of page one of the opinion of the Attorney General dated August 31, 1938, addressed to your department, copy of which is herewith enclosed. I have been unable to find any statute enacted since that opinion was issued which attempts to regulate investments by insurance companies domiciled outside this state.
In my opinion a foreign insurance company may invest in improved properties in Georgia where the borrower holds a lease-hold estate if such company is permitted to make such investments under the laws of the state which chartered it.
INSURANCE--Investments of Companies (a) "Industrial corporations," in which an insurance company may
invest its funds, do not include insurance companies, banks, and incorporated financial institutions.

439
(b) "Securities" in which an insurance company may invest its funds include common and preferred stock.
April 22, 1955 Honorable Zack D. Cravey Insurance Commissioner
You request:
(1) An opinion defining the term "industrial corporations" as used in Section 56-224 (j) of the Georgia Code as amended at the last session of the General Assembly; and
(2) An opinion defining the word "securities" as used in Section 56-226 of the Georgia Code.
In connection with the second question you ask specifically if the word "securities" refers to common and preferred stocks of corporations, or to bonds and other types of obligations of a person or company secured by real estate mortgages or some other form of security.
1. Section 102-102 (e) of the Georgia Code, on construction of statutes provides that words shall be given their ordinary signification, except words of art or words connected with a particular trade. Since Section 56-224 of the Code deals with authorized investments by insurance companies organized and doing business by virtue of the laws of this State, the term "industrial corporations" as used in the amended sub-section should be given the signification applied to it in the investment field.
Jordon on Investments (1949 Edition) at page 383 defines industrial companies as "those that are engaged in the production and distribution of commodities under competitive conditions with limited governmental regulation. They are the great extractive, productive, and distributive agencies of the nation. The extractive industries include mines, oil wells, timber and fisheries. The productive industries include manufacturing in all phases, from automobiles and aeroplanes to textiles and typewriters. The distributive industries include merchandising operations of all kinds, wholesale, retail, and direct selling by mail. As a group these industries provide the economic life of the country." This author lists 831 industrial companies by groups, none of which are insurance, banking or financial institutions. Jordon breaks down investments into the following categories: Governmental bonds (including federal, state and municipal), railroad securities; public utility securities; industrial securities; securities of financial companies; real estate securities and foreign securities. Other recognized authorities in the field of investments, such as Poor, Moody, and Fitch, use similar breakdowns and place insurance companies, banks and financial institutions in a separate category and do not include them in the industrial group.
It is therefore my opinion that the term "industrial corporations" as used in Section 56-224, sub-section (j) of the Code of Georgia as amended by the 1955 session of the General Assembly does not include insurance companies, banks and incorporated financial institutions.
2. With reference to question No.2, the language contained in Section 56-226 of the Code of Georgia down to the proviso, is the codification of Section 3 of the Act approved August 27, 1929 (Ga. Laws 1929, p. 273, 276) while Section 56-224 down through subparagraph (k) is the codification of Section 1 of the same Act. Since the Act of 1929 was a part of the Code of 1933, when it was adopted by the General Assembly of Georgia, and since the Act of 1929 in subparagraph (i) and (j) specifically .classifies preferred stocks of solvent corporations, and common stocks of solvent railroads, street railways and other utility corporations and industrial corporations, as securities, it is my opinion that the word "securi-

440
ties" as used in Section 56-226 of the Georgia Code includes both preferred and common stocks of the named corporations, which meet the other requirements of subsections (i) and (j) of Section 56-224, and is not limited to obligations of a person or corporation secured by real estate mortgages or other form of security.
INSURANCE-Policies-Return of Premium The Insurance Commissioner has authority to disapprove any type of
insurance policy which he does not believe is in the best interests of the people of Georgia.
July 9, 1956
Honorable Zack D. Cravey Insurance Commissioner
Re: 20 Pay Life Family Income Policy with Return of Premium I have your letter in which you enclosed letter from Rintye, Stribling & Associates and copy of above described policy, you ask for an unofficial opinion as to the validity and fairness of the annual dividend provisions of the proposed policy in the light of the provisions of Section 56-216 of the Georgia Code as amended by th" Act of February 27, 1956 (No. 177, Ga. Laws, 1956, page 278).
Section 56-216, as amended, provides:
"56-216. The board of directors, after providing for such reserve as may be required by law, by a majority vote, may give the holders of policies of any company organized under this Chapter on any particular line or class of insurance the right to participate in the net profits of such company to such an extent, in such manner, and upon such terms as the board of directors may agree, the same to be plainly stated on the face of the policy; and unless it be stated on the face of the policy that the policyholder has the right to participate, such policyholder shall not participate in any of the profits of such company. This principle shall apply to all participating policies issued by any company organized under this Chapter, whether such company is a mutual or stock company. The form of any policy containing such provisions must be submitted to and receive the approval of the Insurance Commissioner of the State of Georgia before issuance and delivery of such policy within this State."
Strictly construed, the original portion of this statute authorizes a company to issue participating policies whereby policyholders of a "particular line or class" might participate in the net profits of the company upon such terms as the board of directors might agree, provided the plan of participation was clearly stated on the face of the policy. The 1956 Amendment merely requires that such participating policy forms be approved by the Commissioner before being issued in Georgia.
Of similar import as the Act of February 27, 1956 (No. 177, Georgia Laws 1956, p. 278) is another Act approved February 27, 1956 (No. 179, Ga. Laws 1956, p. 279) which requires all policy forms to be approved by the Commissioner before being issued for delivery in Georgia. Act No. 179 gives the Commission discretion to exempt certain types of policies from the requirements of the Act "to which in his discretion this section may not practically be applied, or the filing and approval of which are, in his discretion, not desirable or necessary for the protection of the public."
I construe the language of Act No. 179 to vest in the Commissioner the right to disapprove any policy, the provisions of which he does not deem to be to the best interest of the insurance buying public of Georgia.

441
With reference to the dividend provisions of the proposed policy whereby such dividends are to be derived from mortality savings, excess investment earnings, lapses and administrative economy, I am of the view that such provisions are nothing more than an "eye. catcher" or "sales gimmick" which would lend themselves to misrepresentations in the hands of over enthusiastic salesmen. I know of no other substantial source from which an insurance company could earn a profit out of which to pay dividends.
Your attention is called to the fact that Act No. 177 amending Sec. 56-216, deals with "any company organized under this Chapter;" that is, Georgia companies, while Act No. 179 deals with "policies of insurance of any class whatever ... for delivery in the State of Georgia," which includes foreign as well as domestic companies.
I think, therefore, that the Commissioner has the discretion to disapprove the proposed policy if he deems. the sale of it not in the best interest of the people of Georgia and if he is convinced the questioned provisions would lend themselves to misrepresentation by agents. Such discretion, however, should be exercised uniformly, and if the proposed policy is disapproved, all policies of other companies having like provisions should likewise be disapproved. Otherwise, such exercise of discretion would be deemed arbitrary and capricious by the courts in the event a test was made.
INSURANCE-Policies-Tontine Tontine insurance policies are not prohibited by Georgia laws, but the
Insurance Commissioner has the right to reject such policies if he believes they are not in the best interest of the insurance buying public of the state.
May 26, 1955
Honorable Zack D. Cravey Insurance Commissioner
I have your letter in which you enclose seven life insurance policies issued by different companies containing what is generally referred to as tontine, or semitontine, provisions. It is noted that in some of the policies a stated percentage of the premium is to be placed in a special fund and the fund invested, with a division of the fund and its earnings among the policyholders who survive and pay their premiums to certain maturity dates. Other policies purport only to invest the dividends earned on all policies of that class and to divide the earnings pro-rata among surviving policyholders who have paid premiums to certain specified maturity dates. Still a third type of policy provides for the establishing of a "special reserve" for the benefit of purchasers of like contracts in the same calendar year and allot to this special reserve all profits derived by the company from this group, including the savings from mortality experience, surrenders, interest earnings in excess of the company's assumed rate of interest, and earnings from the investment of the "special reserve" fund.
In my opinion all of these types of policies are innovations and variations of the type of contract originated by Lorenzo Tonti, the Italian banker, in France in the 17th Century, generally referred to today as tontine policies or tontine contracts. In the type of contracts submitted the earnings of the special funds or special reserves, by whatever name cailed, is dependent to some extent, and in most instances, to a large extent, on lapses or forfeitures.
The forfeiture is not necessarily all of the contribution to the fund, becausa

442
some contracts of this nature guarantee the contribution together with a stipulated rate of interest which is usually small. However, in order to qualify for a full pro rata share of the new "fund" the policyholder must survive and pay the premium for a specified period of time. If he lapses his policy, he forfeits the accumulation on his contribution.
A company issuing this type of policy places in the hands of its agents an instrument which tends to cause the agent to make extravagant claims about the contract and the possible returns thereon and thus mislead the insurance buying public. Even if it should be determined to be otherwise legal, the policy serves as a basis for misrepresentation on the part of the agent and I do not feel that a company is to be excused from such extravagant statements and misrepresentations simply on the grounds that it cannot control the enthusiasm and sales talk of their agents and that the buyer should read the contract.
The statutes of this state dealing wih life insurance, particularly those statutes treating the amount of reserve that a life insurance company must set aside to pay a given policy, contemplate and imply that the company lay aside from the premium paid, a reserve or amount, which invested at a reasonable rate of interest or return, will produce the amount of the policy when it matures, according to the mortality table and rate of interest designated in the policy. Our statutes do not contemplate accruals of this reserve, or of any special reserve or fund, by other than sound conservative investments, nor do they contemplate increase in such funds to any material extent, by lapses and forfeitures, especially where participation in the accruals of such reserve is conditioned upon payment of premiums for a stated period of time.
I am unable to find any direct decision in Georgia on the legality of this type of life insurance contract. The nearest case in poiRt is Equitable Loan Company v. Waring, 117 Ga. 599. As I construe this case, it condemns contracts, dependent to a large extent on lapses or forfeitures, but holds that the particular scheme involved was not a lottery and was not contrary to public policy. I am in accord with the legal principles laid down by Judge Lumpkin in that case. In the Equitable case, Judge Lumpkin, citing State v. Interstate Saving Company, 52 L. R. A. 530, stated:
"Contracts of investment, security, debenture or certificates, which cannot reasonably be expected to accumulate a reserve fund equal to the stipulated endowment values within the stated period, without the aid of lapses or appropriation from premiums on new business, are fraudulent and contrary to public policy and unlawful." (117 Ga. 599, at p. 628.) Again in the same case the learned Judge said:
"While a forfeiture may happen without involving illegality in the individual contract, and accretions be added to the funds, yet if a company whose business is issuing of bonds, certificates, or promises to pay, must depend for its ability to do so upon this chance element, it is an illegal scheme, fraudulent in law, and contrary to public policy. A company may contract with a certificate-holder that a forfeiture of amounts already paid, or a 'lapse' shall occur on a failure to make payments. But if a company's business is to promise large numbers of certificate-holders to pay them certain amounts, and as an essential element of ability to pay some of them the agreed amounts it must depend upon the chance of lapses or failure on the part of others to keep their contracts, and consequent forfeiture of sums already paid in, the scheme is essentially one of chance."
I am in accord with the principle just stated and believe that it extends to earnings of a fund just as much as it does to contributions to such fund.

443
As previously pointed out, you as Insurance Commissioner have broad discretionary powers in regulating the insurance business in the State of Georgia. In my opinion, based on the legal principles laid down by Judge Lumpkin in the Equitable Loan Company case, so far as such principles relate to the writing of life insurance, you have the right to reject the type of policies submitted, if you believe such policies are not in the best interest of the insurance buying public of this State. As was stated by Judge Lumpkin, the modern trend of legislation and decisions is rather in the direction of limiting than extending what is loosely called the tontine principle.
INSURANCE-Taxation-Premium Tax Assets eligible for calculation of abatement of premium tax discussed.
March 9, 1954
Honorable Zack D. Cravey Insurance Commissioner of Georgia
You inquire whether or not the captioned company may claim the following items as assets eligible for calculation of abatement of premium taxes under Section 92-2510 of the Georgia Code Annotated:
1. Deposits in banks outside the State of Georgia which have not been subjected to taxes in such other States as provided in Code Section 92-122, and are taxed by Georgia.
2. Agents balances. 3. Accrued interest. Section 92-2510 of the Georgia Code Annotated provides that the tax upon gross premiums of an insurance company shall be abated or reduced to 1 per cent if at least one-fourth of the company's assets, exclusive of government war bonds, are invested in certain securities, and the tax shall be further abated to one-fourth of 1 per cent if as much as three-fourths of its said assets are invested in such securities. Those securities are designated by said statute, and no company may claim any abatement of premium tax except by virtue of investment in the specified classes of securities. The three items at issue in the instant case can qualify for tax abatement, if at all, only under the class of securities recognized in said statute as "property situated in this State and taxable herein." All other categories are clearly inapplicable. In order to be allowed for tax abatement purposes under this category, the items in question must (1) be property, (2) be situated in this State, and (3) be taxable in this State. If any item fails to meet either of these requirements, it must be disallowed. The first item in question, bank deposits in other states, is clearly not allowable. It is not property situated in this State. The fact that Georgia intangible taxes might be paid thereon because the property has not acquired a taxable situs and been subjected to taxes in another state can not alter the provision of Section 92-2510, which requires that property be both situated and taxable in this state to entitle the company to abatement of premium taxes. The premium tax does not abate solely because the property is taxable under other provisions of Georgia law. The additional requirement is imposed that the property be situated in Georgia. As to the second item, referred to as "agents balances," it is impossible to determine the extent to which the same should be allowed from the file transmitted

444
with your letter. It is my understanding that this item represents premiums collected by the companies' agents and deposited in designated banks both within and without this state for safekeeping prior to transfer to the companies' Atlanta bank on which checks are drawn in due course of business. Because of the fiduciary relationship existing between the company and its agents, these funds should be treated as funds of the company for purposes of computing the premium taxes, since they constitute a portion of the gross premiums received by the company. The fact that such premiums are unearned or held in reserve for payment on cancelled policies would not remove these funds from the category of "gross premiums," since such deduction is allowed only for premiums which have been actually returned because of change of rates or cancelled policies. Such "agents balances" are taxable under the laws of this State and where such balances are situated in this State, the same should be a'llowed in computing premium tax abatement under Section 92-2510 of the Code. Such "agents balances" can not be allowed for such purpose, however, when situated outside the State of Georgia, for the reasons stated in the preceding paragraph, regardless of whether or not the same are taxed by the State of Georgia. Further investigation of the item claimed as "agents balances" in the subject return should be made and the same allowed or disallowed in conformity with the above stated principles.
The last item about which you inquire is that of "accrued interest." It is impossible to tell exactly what this .item embraces. However, it is my opinion that such item may be properly allowed to the extent that it consists of notes, accounts receivable; or other evidences of indebtedness situated in Georgia and taxable under the intangible tax laws of this state; The same can not be allowed when situated outside of Georgia or when not evidenced by some form of indebtedness taxable under the laws of this state as property of the company.
INSURANCE-Taxation-Premium Tax
.A membership fee is a part of the premium and subject to the premium tax.
July 1, 1954
Honorable Zack D. Cravey Insurance Commissioner
You request an opinion as to whether or not the membership feel;! collected by the above named insurance company are subject to the premium tax provided for in Sections 92-2509.1 and 92-2510, Georgia Code Annotated.
Section 92-2509.1 provides:
"All foreign and domestic insurance companies doing business in this State shall pay a tax of two per cent upon gross direct premiums received by them upon persons, property or risks in Georgia from January 1, to December 31, both inclusive of each year, without regard to business ceded to or assumed from other companies, with no deductions for dividends whether returned in cash or allowed in payment or reduction of premiums, or for additional insurance; nor shall any deductions be allowed for premium abatements of any kind or character or for reinsurance or for cash surrender values paid, or for losses or expenses of any kind, said tax being imposed upon gross premiums received from direct writings, without any deductions whatever except for premiums returned on change of rate or cancelled policies. The term 'gross direct premiums' shall include

445

annuity considerations: Provided, that local organizations known as

'farmers' mutual insurance companies' operating in not more than four

counties in a division shall not be subject to this tax."

It is pointed out that the statute imposes the tax upon "gross direct premiums

received . ~ . with no deductions ... for expenses of any kind, ... "

.

The term "premium" has bee:q defined as: The consideration paid, whether

in money or otherwise, for a contract of insurance. The premium may take many

of various npminal forms, as that of initiation fee, an admission fee, an assessment, or a stipulated single or per~odic payment, according to the nature of the insurance.

(Danfel vs. Life Insurance Company of Virginia, Tex. Civ. App., 102 S. W. 2d,

256, 259.)

.

Again: The definition o{ "premium" as used in law and the business of insur-

ance, is "the consideration for a contract of insurance." (Bouvier's Law Dictionary; Webster;s Dictionary.) Whether c'alled:' an initi~tion :fee, an admission fee, or

by any other name, this consideration is nonetheless strictly a premium. (North

Western Life Association v. Stout, 32 Ill. App., 31, 38.)

--The membership fee charged by the State Farm Mutual Automobile Insurance

Company is designed to defray the costs of obtaining a policy. The company

requires the applicant to pay the investigating cost of establishing that the appli-

cant is a good risk. This is im expense r:ormally and customarily charged against

the premium.

Thus, it appears that the membership fee is nothing more than procurement

cost or expense. While the membership fee does not necessarily entitle the appli-

cant to insurance, the investigation must establish that the applicant is a desirable

risk, nevertheless the fact remains that the applicant cannot obtain insurance

without paying the membership fee. Thus, the membership fee is a direct charge

and must be included in the "gross direct premium" received by the company;

Section 92-2509.1. contains a direct inhibition against allowing any deduction for

expenses of any kind.

I am not unmindful of the fact that a former Deputy Insurance Commissioner

<in March 25, 1938, issued a written interpretation to the company to the effect

that membership fees were not taxable. This interpretation was based on a prior

statute (Acts of 1927, p. 92; Acts of 1935, p. 60). The statute was amended by

the Act of 1945, pp: 419, 420. While prior administrative interpretations should be

given serious and careful consideration, this is true only when a statute is' ambigu-

ous. The Act of 1945 does not appear to be ambiguous, but i n my opinion, ex-

presses a clear intent on the part of the Legislature to impose a tax on the total gross 'premiums received' by a company without any deductions for expenses of

any kind. The company relies upon a decision by the Supreme Court of California

(1939) and a decision by the Circuit Court of Oregon for the County of Multnomah

(1938). I am not persuaded by these two decisions. A more recent decision is

that of Duel v. The State Farm Mutual Automobile Insurance Company, 1 N. W. 2d,

p. 887 (Supreme Court of Wisconsin, 1942) in which the identical membership fee

was held to be a part of the premium charged by the company. In the Duel case

the Court held:

"We are thus met at the outsetwith the fundamental dispute, whether

the membership fee is a wholly separate and distinct matter, or in fact,

nothing more than a splitting of the premium. We are of the view that

plaintiff's contention is sound. The membership fee is the result of a

separation by defendant of cer'tain expenses connected with the sale to,

or acquisition by, the insured, and the recapture of this amount by a

446
separate fee. The balance of the charge is denominated a premium and is concededly lower than the conference rate for similar protection. While it is claimed that other economies contribute to the low rate, it is not denied that a substantial factor is the exaction of the membership fee. It is claimed that the membership fee entitles insured to no insurance; that all insurance protection is in consideration of the separate premium. The fact remains that a person may not become insured without paying the membership fee and that the. membership fee defrays expenses customarily allocated to premium in the writing of insurance. We are unable to avoid the conclusion that .such.an exaction is a splitting of the premium as that term is used in the statutes." It is, therefore, my opinion that the membership fee charged by the State Farm Mutual Automobile Insurance Company is a part of the premium and is taxable under Sections 92-2509.1 and 92-2510 of the Code of Georgia Annotated, as amended.
INSURANCE-Taxation-Premium Tax
Insurance Company may be called upon to amend its premium tax return for a period of seven years.
September 21,' 1954
Honorable Zack D. Cravey Insurance Commisisoner
Reference is made to your letter of August 31, 1954, in which you ask if there is any limitation as to the number of years for which you can call upon the above company to amend its premium tax returns so as to include the amounts collected as "membership fees."
The facts involved are understood to be as follows: The company charges a membership fee to a prospective policy purchaser and if the "member" qualifies as a desirable risk, the company then issues him insurance at a premium which is less than competitive rates.
In March, 1938, the company obtained an administration ruling from a former deputy director that its membership fees were not taxable under Section 92-2509, Ga. Code Ann. Since that time the company has not included the membership fees in .their premium tax return but has shown the amount of membership fees as well as the amount of premiums collected in their annual statement to the Insurance Department.
Since Chapter 92-25 of the Georgia Code Annotated is silent on the question here involved, the answer must be sought from the general law.
Section 92-7701 provides that all tax executions shall be enforced within seven years from the date of their entry or within seven years of the last entry on the execution.
Section 92-7702 provides that all laws in reference to a period of limitation as to ordinary executions are applicable to tax executions.
The Supreme Court of Georgia in Georgia Railroad and Banking Company v. Wright, 124 Ga. 596, has construed these Acts to provide a statute of limitation against the right of the State to enforce a lien for taxes. In that case the Court said:
"Such a lien is barred not only- by a failure to have the proper entires made on the tax execution and recorded as required by the act, but also

447
by a failure to issue the tax execution within seven years from the date that such execution may be lawfully issued. The lien of the State or its subordinate public corporations is to this extent placed, by the act above referred to, fully under the operation of the 'dormant-judgment act'." (Emphasis supplied.) The decision in the Wright case, supra, was followed in Reynolds v. Hardin, 187 Ga. 40, at page 46. In that case the Court said:
"Construing this act as a whole, its language indicates that the purpose of the lawmaking power was to place the State, in respect to its claim for taxes, in the same position that a plaintiff in a judgment would be placed as to the enforcement of a right upon which a judgment would be founded." (Emphasis supplied.) Since no fraud is involved in the situation under discussion and since no steps have been taken to collect premium taxes on the membership fees since the administrative ruling of 1938, it is my opinion that you may call upon the insurance company to amend its premium tax returns for a period of seven years including the return for the year 1953 which already has been amended and the additional tax paid under protest.
INSURANCE-Unclaimed Funds (Unofficial) No provision in insurance laws of Georgia for reporting unclaimed sums.
May 11, 1955
Mr. P. J. Ferencik You advise that your company has certain unclaimed funds payable to several
policyholders whose last known address was in the State of Georgia, and in which you request that you be forwarded forms necessary to report these sums.
You are advised that the State of Georgia has no abandoned property department. Neither is there any provision in the insurance laws of our State for reporting unclaimed sums.
The laws of this State dealing with escheat are codified in Chapter 85-11 of the Code of Georgia. Briefly, they are as follows:
Escheat results upon failure of heirs in Which case the estate of an intestate reverts to the State. The escheator as soon as he obtains possession of the estate as Administrator is required to make known to the Ordinary of the County the fact that same has apparently escheated to the State; whereupon the Ordinary is required to pass an order requiring the Administrator to advertise by publication in one or more newspapers in the State, notifying all persons interested as next of kin of such deceased person of the facts and date of his death, the amount of the estate, and the pendency of proceedings to escheat the same, which publication shall continue for six months. In the event no claim is filed, the proceeds are paid into the educational fund of the County wherein the decedent resided. Next of kin may file claims against the estate within six years of the date of the Ordinary's order.
It is suggested that you contact the Ordinaries of the counties of their last known residence.

448

INTEREST AND USURY-Carrying Charges. (Unofficial) Law relative to "carrying charges" quoted.

August 19, 1955

Captain Marvene A. Gordon, JAGC
I have your letter of August io, 1955 in which you ask:
1. Does Georgia make a differentiation between carrying charges on a conditional sales contract, and interest?
2. Is there a maximum allowable rate for such carrying charges?.
3. What penalty is imposed upon the vendor for a usurious rate, if there be a maximum rate upon carrying charges?
4. If such penalty exists, is there any differentiation dependent upon the amount of the principal owed?
I find no provisions in the: laws of this State for "carrying charges" on conditional sales contracts or other sales. Section 57-101 of the Code of Georgia provides:
"The legal rate of interest shall be seven per centum per annum, where the rate per centum is not named in the contract, and any higher rate must be specified in writing, but in no event shall any person, company, or corporation reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight per centum per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever." Usury is defined by Section 57-102 as:
"Usury is the reserving and taking, or contracting to reserve and take, either directly or by indirection, a greater sum.for the usEl of money than the lawful interest."
The penalty for violating the usury statute is misdemeanor punishm;ent and the contract is void.
The Supreme Court of Georgia (B. Tris Napier Company v; Trewick, 164 Ga. 781, at p. 782) recognized the right of a vendor to charge a higher. price for a "time" sale than a cash sale and held that the usury statute does not apply to such transactions. In that case the Com:t said:
1'If, however, the property is sold at a cash price, and time is given by the vendor to the purchaser upon a portion .of the purchase money, and a greater rate of interest than that allowed by law is charged on such dferred payments, the contract is usurious." (Citing Irvin v. Mathews, 75 Ga. 739; Ozmore v. Coram,. 133 Ga. 250 (65 S. E. 448).
I am of the view that, in cases where no distinction is made between the cash price and the time price of an article, the "carrying charges" would be limited to the legal rate of interest, plus any actual expense incurred by the. vendor incident to the sale,. such as fee for recording the security instrument and reasonable protective insurance.

449
INTEREST AND USURY-.:Laws Relating to Quoted (Unofficial)
June 23, 1955
Honorable Sol Altman
This will acknowledge receipt of your letter of June 6, 1955 relative to interest rates on loans under Georgia law.
The present laws authorize and permit the following interest rates. The regular maximum rate of interest is eight per cent per annum. Ga. Code Ann., 57-101 (1933), Ga. Laws 1878-89, p. 184; the rate on monthly, quarterly, or yearly installment loans is six per cent on the original amount for the entire period of the loan, or almost twelve per cent on the average balance. Ga. Code Ann., 57-116 (1933), Ga. Laws 1912, .p. 144; 1937, p. 463, The rate on loans by Building and Loan and "other like associations" is eight per cent on the original amount for the period of the loan, or almost 32 per cent on the average balance where certificates of indebtedness are issued as security. Ga. Code Ann., 16-101, Ga. Laws 1913, p. 54. See: The Loan Shark Problem Today, Law. and Contemporary Problems, page 83, Vol..19, cNo; 1; Duke University School of Law. There is also .a statute governing the rate on loans made under Georgia Industrial Loan Act which was enacted and approved earlier this year.
Section 13-2109, Ga; Code Ann., Ga. Laws 1919, p. 199, declares the following: ''Any bank may take, receive, reserve and charge on any loan or
advance of money or forbearance to enforce the collection of money, interest at not exceeding eight per cent per annum."
This Section is in accord with the Usury Statute ( 57-101, Ga. Code Ann.) and in effect merely reiterates the maximum interest rates on regular loans. Quite naturally the usual bank loan would be regulated by Section 57-101, Ga. Code Ann., insofar as the interest rate is concerned. However, if an installment loan is made by a bank or any other person or corporation, the interest rate is governed by Section 57-116 Ga. Code Ann., Ga. Laws 1912, p. 144; 1937, p. 463. In Union Savings Bank and Trust Co. v. Dottenheim, 107 Ga. 606, the Supreme Court of Georgia held:
"Where money is loaned and interest is calculated at the highest lawful rate for the full period of the loans, and the aggregate of the principal and interest thus c.alculated is divided into as many notes as the period embraces months, one of such notes maturing each month, the transaction is; mider Civil Code, 2877, 2886 (now 57-101, 57-102, Ga. Code Ann.), infected with usury."
It is, therefore, clear that a bank cannot charge eight per cent for the full period of indebtedness where the loan is payable in monthly or other installments.
Section 16-101, Ga. Code .Ann., prescribes the interest rate on loans made by building and Joan associations and other like associations.
Section 16-104, Ga. Code Ann., Ga. Laws 1889, p. 180, reads as follows:
"All the provisions of this Chapter are to apply to all saving institutions which pay interest to depositors and whose deposits are not subject to check." See: Atlanta Loan and Saving Company v. Norton, 149 Ga. 805.
Although the definitiqn of a bank under Section 13-201, Ga. Code Ann. (Ga. Laws 1919, p. 135; 1925, p. 119; 1927, p. 204), excludes building and loan associations, the question of whether or not a particular bank is a saving institution and authorized to lend money under the rules set forth in Section 16-101, Ga. Code Ann., depends upon its charter provisions and its type of operation.

450
INTOXICATING LIQUORS-Alcohol-Shipments of (Unofficial) Georgia regulations governing shipment of non-beverage tax-paid pure
alcohol for medicinal and flavoring extract manufacturers.
December 14, 1954
Mr. J. Louis Rinet You request a copy of the Georgia regulations governing shipment of pure
alcohol non-beverage tax-paid for niedicinal and flavoring extract manufacturers in the State of Georgia. The following are the pertinent regulations you request:
Code Section 58-401. "Transportation and Receiving; permit; oath; certificate; false statement.-Any common carrier may transport, ship or carry from any point without this State to any point within this State, pure alcohol to be received only by any practicing physician who is the sole proprietor of a drug store, licensed druggists, pharmacists, manufacturers, chartered colleges, chartered hospitals, or State institutions, and to be used only for medicinal, mechanical and scientific purposes not contravening in any way the prohibition laws of this State, under the following conditions: Any practicing physician who is the sole proprietor of a drug store, or any licensed druggist, pharmacist, manufacturer, chartered college, chartered hospital, or State institution, desiring to have shipped and to receive pure alcohol for said purpose within this State shall make sworn application to the ordinary of the county of his residence for a permit to receive said alcohol, upon the certificate of two responsible citizens of .said county as to his good moral character in the following form:
GEORGIA,------------------------ County. ------------------------------------------------------------ (naming applicant) applies for right to receive __________________ gallons of pure alcohol, which is to be used for the
following scientific, mechanical or medicinal purposes only, ---------------------(state purposes for which intended). The business or occupation of applicant is that of __________________ (state business or occupation).
------------------------------------------------------------ (Name of party making application) Personally comes --~--------------------- the above stated applicant, who being duly sworn says that the facts herein set forth are true. This, the _________ day of ________________________, 19______,
----------------------------------------------------------- (Ordinary) -------------------------- County, Georgia
We, ------------------------ citizens of ------------------------ County, State of Georgia, do hereby certify that ________________________ , the above named applicant is personally known to us as a citizen of this county, and is of good moral character, and is engaged in the business or occupation named in the above stated application. This, the ________ day of _________________ , 19______,
The above application is approved and granted by me on this the ________ day of ------------------ 19_____ ,
-----------------------------------------------------,----- (Ordinary) -------------------'---County, Ga.

451
This application shall be presented in duplicate, the Ordinary to retain one copy in his office. When said application is presented to the Ordinary aforesaid he shall issue and approve the same, and when so issued and approved it will authorize said applicant to present the same to any common carrier, and will authorize said common carrier to deliver to said applicant and the said applicant to receive the quantity of pure alcohol therein specified.
Said common carrier is hereby required to indorse on the back of said application the date of delivery and the quantity of alcohol so delivered on said application. Whereupon said application shall cease to be authority for the delivery or receiving of any further quantity of alcohol on said certificate, and no other or further certificate shall be issued to said applicant until he shall have made a sworn statement to the Ordinary :;;howing in what ma~mer and for what purposes said alcohol has been used, and the names of parties to whom sold. If any person under the provisions of this section shall make a false statement of the use made of said alcohol, he shall, on conviction thereof, be punished as for a misdemeanor, and on conviction for the second offense be forever denied the right to receive any further shipments of alcohol."
Code Section 58-1059. "Chapter not applicable to ethyl alcohol used for certain purposes.-The provisions of this Chapter (Chapter herein pertains to that chapter which regulates and taxes alcoholic liquors) shall not apply to ethyl alcohol intended for use and/or used for the following purposes:
(a) For scientific, chemical, mechanical, industrial, medicinal, and culinary purposes.
(b) For use by those authorized to procure the same tax-free, as provided by the Act of Congress and regulations promulgated thereunder.
(c) In the manufacture of denatured alcohol produced and used as provided by the Acts of Congress and regulations promulgated thereunder.
(d) In the manufacture of patented, patent, proprietary, medicinal, pharmaceutical, antiseptic, toilet, scientific, chemical, mechanical, and industrial preparations or products, unfit for beverage purposes.
(e) In the manufacture of flavoring extracts and syrups, unfit for beverage purposes."
INTOXICATING LIQUORS-Beet and Wine-Election to Determine Sale (Unofficial)
The legality of the sale of beer and wine rests with the county and municipal governing authorities, and cannot be determined by election.
November 22, 1955
Honorable Lotis McAfee This is in response to your letter of November 8, 1955. It appears that your
recent grand jury has recommended that an election be called to permit the sale of beer and wine in your county.
Your attention is directed to Section 15 (a) of the Malt Beverages Act (Ga. Laws 1935, p. 73, 80) which provides that the governing authority of the county and municipality shall have the discretionary power of granting or refusing permission for the manufacture, distribution and selling of malt beverages. It is

solely within the discr~tion of such governing authprities as to whether a license should. be issued, and an. election called on the subject would have no legal effect upon such governing authorities.
It is doubtful that you could expend public funds for the purposes of conducting such an election.. (See Houston County v.Kershand Wynne, 82 Ga. 252 at p. 255, which holds that the expenditure of public funds must be. upon authority of an express law.)
The question of the sale of beer and wine is independent of the sale of intoxicating liquors and it is possible for the county commissioners to authorize the sale of beer and wine even where the. sale of whiskey js not permitted.
INTOXICATING LIQUORS-Beer and Wine-Free Beer (Unofficial) Social organizations may provide members with free beer if beer was
purchased pursuant to the laws of Georgia.
March 28, 1955
Honorable Richard B. Russell III You state: "Please advise your writer if there exists any statute or regulation which pr~hibits social organizations, which have retail beer licenses from giving . to its members free malt beverages on meeting night, provided that said beverages were purchased pursuant to the law of Georgia." The Georgia State Malt Beverage Act and the rules .and regulations pro-
mulgated thereunder do not prohibit the practice described in your letter.

INTOXICATING LIQUORS-]3eer and Wine-Furnishing of Beer to Minors

(Unofficial)



It is a felony to furnish a minor beer.

September 9, 1954

Mr. Jack J. Lissner, Jr. You request my opinion as to whether or not Code Section 58-612, as amended,
applies in a case where the defendant is selling beer to minors. You state, "there appears to be some question as to whether or not the Code Section is only for the furnishing of liquors, or whether or not the same includes beer."

Code Section 58-612 is as follows:

"Any per;:;on who knowingly, by himself or another, shall furnish or

cause to be furnished, or permit any other person in his employ to furnish

any minor spirituous or intoxicating or malt liquors, without first obtain-

ing written authority from the parent or guardian of said minor, shall be

guilty of a felony and shall be punished by confinement and labor in the

penitentiary for not .less than one year nor more than five years."

(Emphasis ours.) .

'

The question propounded in your letter has not been decided by our Georgia Courts so far as I have been able to determine. You will note that the Code Section makes it a felony to furnish spirituous or intoxicating or malt liquors to minors. While I have found no Georgia case in point, I do find that the courts of other states have defined "malt liquor" as follows:

453
"The court will take judicial notice of the fact that beer is a malt liquor, and that it contains sufficient alcohol to produce intoxication. State ex rel. Lyon v. City Club, 65 S. E. 730, 731, 83 S. C. 509; State v. Mitchell, 114 S. W. 1113, 134 Mo. App. 540; Vines v. State, 116 P. 1013, 1016, 19 Wyo. 255; Moreno v. State, 143 S. W. 156, 64 Tex. Gr. R. 660."
"Where the liquor in defendant's possession is proved to be 'beer,' which is a malt liquor, the court will presume that it is intoxicating without proof of that fact, though defendant may rebut such presumption. Hoskins v. Comonweallh, 186 S. W. 348, 349, 171 Ky. 204."
"As some kinds of beer are not intoxicating, the question whether beer sold was an intoxicating liquor, within the meaning of a statute regulating the sale of intoxicating liquors, is a question for the jury, if there is evidence tending to show that it was intoxicating. Schlosser v. State, 55 Ind. 82, 87." In view of the decisions made in other states, I think you would be perfectly justified in proceeding with the prosecution of the defendant in the case you describe.
INTOXICATING LIQUORS-Beer and Wine-Illegal Possesion of Beer (Unofficial) Procedure to be followed in a prosecution for illegal possession of beer.
September 21, 1954
Honorable William T. Roberts You state: "The sheriff of Macon County has seized some eighteen cases of beer at a store in a rural area. The owner of the establishment does not have a license to sell beer in this county and he has also flouted the law in numerous ways. . . ." "I would appreciate it greatly if you would help me by advising what Code Section and under what theory I should prosecute this case in order to stand the best chance for a conviction. We also have signed statements from two witnesses to the effect that they have purchased beer in this establishment." I am .of the opinion that the best procedure to be followed will be to prosecute
under Code Section 58-726, which is as follows: "No person, firm or corporation shall sell, offer for sale, or possess
for the purpose of sale, any of the malt beverages specified and legalized by this Chapter, without first having obtained a license to deal in such beverages under the provisions of this Chapter, and any person, firm or corporation guilty of violating the provisions of this section shall be guilty of a misdemeanor and punished as provided in this Chapter." Under this Code Section, the accusation against the defendant could be drawn in two counts: first, the selling of beer without first obtaining a license as is provided under Section 58-726 of the Code of Georgia (Annotated Supplement); second, possessing beer for the purpose of sale without first obtaining a license as is provided in Section 58-726 of the Code of Georgia (Annotated Supplement). This was the procedure followed in the case of Harris v. The State, 61 Ga. App. 81. See also the case of Buchanan v. The State, 77 Ga. App. 435 as to the sufficiency of evidence necessary to convict.

454
INTOXICATING LIQUORS-Beer and Wine-License for Wine (Unofficial) Ordinary is without authority to issue a permit to owner of a delicatessen
store to enable him to sell special wines for sacramental purposes to individuals to be used in their homes.
March 15, 1955
Honorable John C. Harper Ordinary, Richmond County
This is in response to your letter as to whether there is any law which will permit you as Ordinary to issue a permit to the owner of a delicatessen store enabling him to sell special wines for sacramental purposes to individuals to be used in their homes.
Code Sections 58-203 and 58-204 permit the Ordinary to issue permits to ministers, priests, rabbis, etc., but this permit is restricted to their receipt of such sacramental wines as ordered once monthly and such wines must be retained by the minister in his custody save when administering said sacramental wines at a religious service.
There appears to be no other provision in the laws which will permit anyone to sell such wines other than the regular issuance of a wine license to a regular wine dealer.
INTOXICATING LIQUOR-Dry Counties (Unofficial) An American Legion Post cannot sell liquor to its members in a dry
county, but each member can keep one quart of liquor at the Post for his own use without violating the law.
August 19, 1954
Mr. R. C. Carter This will acknowledge receipt of your question of whether or not an American
Legion Post in a dry county can dispense liquor to its members. This question is controlled by Section 58-102, Georgia Code Annotated, which
reads in part as follows: "It shall be unlawful for any person, firm, association of persons, or
corporation to sell, offer for sale, keep for sale, barter, furnish at public places, keep on hand at a place of business or at or in any social, fraternal or locker club, or otherwise dispose of any of the prohibited liquors and beverages ..., in any quantity." The term "prohibited liquors and beverages," according to Section 58-101, Georgia Code Annotated, includes alcohol, alcoholic liquors, spirituous liquors, and all mixed liquors, any part of which is spirituous, foreign or domestic spirits, or rectified or distilled spirits, absinthe, whiskey, brandy, rum, gin, as well as vinous liquors and beverages. Section 58-103, Georgia Code Annotated, expressly makes it unlawful for the State or any county or municipality to license the sale of any of said prohibited liquors or beverages. Of course, it is not a violation of the law for any person in a dry county to possess one quart of intoxicating liquor for use and not for sale, provided it was purchased from a lawful and authorized retailer and is properly stamped. See Section 58-1073, Georgia Code Annotated.

455
In view of the foregoing section, each member of the American Legion Post could keep one quart of liquor in his individual locker for his own use without violating the law.
On the other hand, the sale of liquor in a dry county by an American Legion Post to its members is unlawful.
INTOXICATING LIQUORS-Dry Counties (Unofficial) Where a county has voted "dry," it is still permissible for the county, or
any municipality therein, to issue licenses for the sale of beer.
September 11, 1956
Hon. A. S. Killingsworth You state: "We have just had an election on whiskey in Clay County in which the drys won by a 2 to 1 vote. "Will you please advise me at your earliest convenience just where we now stand in Fort Gaines on beer. The drys are saying that beer was also voted out with whiskey but it is my understanding that under the present law the licensing of beer is left up to the Mayor and Council. "Will you please advise me on this at once?" Under the provisions of Chapter 58-7 of the Code of Georgia regulating the
licensing and sale of malt beverages, the licensing of beer is left up to the discretion of the Mayor and Council of the municipalities in this State where beer or malt beverages are sought to be sold within the corporate limits of any town or city. The licensing of malt beverages where sold outside the corporate limits of any city or town is vested in the governing authority of the county.
The fact that Clay County has voted dry in an election called under the provisions of Chapter 58-10 of the Code of Georgia, known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," would not prohibit the Mayor and Board of Aldermen of Fort Gaines or any other municipality in Clay County from licensing the sale of beer should they so desire, nor would it prohibit the governing authorities of the County to license the sale of beer outside the incorporated areas in Clay County.
INTOXICATING LIQUORS-Election to Legalize Sale-Petitions (Unofficial) There is no time limit for circulating a petition to call an election to
determine whether the sale of intoxicating liquor shall be legalized or made unlawful in a county.
February 7, 1955
Honorable Martin B. Holt Ordinary, Ware County
You state that there is a petition being circulated in your county to call an election to outlaw whiskey stores in Ware County. You propound the following question: "Does a petition of this nature have a deadline or not?"
In my opinion, Section 58-1010.1 of the 1951 Supplement to the 1933 Annotated Code of Georgia answers your question. This section is as follows:

456
"In any county which has at any time held an election in accordance with the provisions of this Chapter, resulting in the majority of the votes being cast in favor of taxing, legalizing and controlling alcoholic beverages and liquors, and the manufacture, distribution and sale of same in such county, the ordinary of such county shall, upon a petition signed by at least 35 per cent of the registered qualified voters of said county, proceed to call another election in the same manner as hereinbefore provided, for the purpose of nullifying the previotts election; however, no such election shall be called or had within two years after the date of the declaration of the result by the ordinary of the previous election had for such purpose under this Chapter." This section is to be construed in connection with Code Section 58-1003, which is as follows:
"Upon a petition, signed by at least 35 per cent of the registered voters, qualified to vote at the general election immediately preceding the presentation of the petition, being filed with the ordinary of any county, he shall call a special election to be held within 30 days from the filing of such petition, and shall publish the notice of the call of the election, in the official gazette of the county once a week for two weeks preceding the election." It will be observed from these two sections that an election can be called upon a petition signed by 35 per cent of the registered voters qualified to vote at the general election immediately preceding the presentation of the petition, provided that no election shall be called or had within two years after the declaration of the result of the previous election by the Ordinary. As I construe these sections, there is no time limit governing the period in which a petition may be circulated for the purpose of calling an election.
INTOXICATING LIQUORS-Election to Legalize Sale-Voters (Unofficial) Persons qualified to vote for members of the General Assembly, and who
were registered to vote at the general election immediately preceding the filing of the petition requesting the election to determine the sale of intoxicating liquor, are eligible to vote in the election.
May 9, 1955
Honorable W. C. Lanier I wish to acknowledge receipt of your letter of May 2, 1955 in which you state
that it is anticipated an election will be called in Bryan County within the next 60 days to vote on the question of the sale of alcoholic beverages and liquors. You request my opinion as to who would be qualified to vote in such an election when it is held.
Chapter 58-10 of the 1951 Supplement to the Georgia Code Annotated, known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," makes provision for the holding of an election to determine whether or not the sale of alcoholic beverages and liquors shall be permitted in any county in this State. In answer to your question as to who would be entitled to vote in said election, I am of the opinion that Sections 58-1003 and 58-1004 of said Chapter should be construed together. Section 58-1003 is as follows:

457
"Upon a petition, signed by at least 35 per cent of the registered voters, qualified to vote at the general election immediately preceding the presentation of the petition, being filed with the ordinary of 'any county, he shall call a special election to be held within 30 days from the filing of such petition, and shall publish the notice of the call of the election, in the,official gazette of the county once a week for two weeks preceding the election." Section 58-1004 is as follows:
"At such special election, there shall be submitted to the voters of the county who are qualified to vote for members of the General Assembly the question of whether the manufacture, sale and distribution of alcoholic ,beverages and liquors in the county shall be permitted or prohibited." It will be observed from the two above quoted sections that persons qualified to vote for members of the General Assembly are qualified to vote in the election. It will also be noted that the election shall be called upon a petition signed ,by at least 35 per cent of the registered voters qualified to vote at the general election immediately preceding the presentation of the petition. This Chapter does not make any provision for any registration list other than those persons registered and qualified to vote at the general election immediately preceding the presentation 'of the petition. Therefore, I am of the opinion that the only persons qualified to vote in said election are those who are qualified to vote for members of the General Assembly and who were registered to vote at the general election immediately preceding the filing of the petition requesting the election.
INTOXICATING LIQUORS-Election to Legalize Sale-When May Be Held (Unofficial) Special election to determine whether intoxicating liquor may be sold in county may be held on Saturday.
May 17, 1955
Mrs. Bertie L. Bacon Ordinary, Bryan County
I wish to acknowledge receipt of your letter of May 13, 1955 in which you request my opinion as to whether or not you would be authorized to name a date falling on Saturday as the date on which an election could be held in Bryan County under the provisions of the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors."
Chapter 58-10 of the Supplement to the Georgia Code, known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," makes provision for the calling of an election. Section 58-1003 is as follows:
"Upon a petition, signed by at least 35 per cent of the registered voters, qualified to vote at the general election immediately preceding the presentation of the petition, being filed with the ordinary of any county, he shall call a special election to be held within 30 days from the filing of such petition, and shall publish the notice of the call of the election, in the official gazette of the county once a week for two weeks preceding the election." The regulations and the time of holding ,the election are provided in Section 58-1005:

458
"Such election shall be held according to the rules and regulations governing elections for members of the General Assembly, but shall not be held at the time of holding any other election (primary or general) in such county." You will observe that under Section 58-1005 you can call an election on Saturday or any other day of the week you desire within 30 days after the filing of the petition, but the election cannot be held at the time of holding any other election (primary or general) in your county.
INTOXICATING LIQUORS-Licenses (Unofficial) County Commissioners may not issue license free of charge to retailers
to sell intoxicating liquors, but may issue free license for sale of beer and wine.
May 19, 1955
Mr. Lamar L. Murdaugh I wish to acknowledge receipt of your letter of May 6, 1955, in which you
request my opinion as to whether or not the Board of County Commissioners of Lowndes County has authority to give free licenses to clubs selling intoxicating liquors, beer, or wine. The clubs in question are located in the county outside the city limits of any municipality and are non-profit making organizations.
Code Section 58-1032 provides for a minimum license fee which must be charged to all retailers who obtain a license under the Chapter known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors."
Section 58-1071 of this Chapter is as follows: "There shall be no exception from the permit fees, license fees, and/or
tax as provided by this Chapter in favor of any person whatsoever." There is no provision of law requiring county commissioners to charge a minimum license fee for the sale of beer and wine, except fortified wine as is described in Code Section 58-1058. The regulations of the State Revenue Commissioner require that the local license issued to a retailer must show on its face the amount of the license fee paid therefor.
INTOXICATING LIQUORS-Sale-Military Reservation Opinion of March 27, 1953 (Opinions of Attorney General 1952-53, page
445), modified.
June 9, 1954
Honorable Charles D. Redwine Commissioner of Revenue
Pursuant to the conclusions reached by us in our conference with General Bolling, Colonel Lawrence, and Honorable Stephen S. Jackson relative to the subject matter, I desire to modify my opinion to you dated March 27, 1953 in which I concurred that under the circumstances and Federal law at that time, you were authorized to require distillers of liquor to route all shipment to military reservations within the State directly to a State warehouse, and to require the payment of State taxes as provided for in all other cases.

459

This opinion is predicated on the assumption that wholesale violation of the

State liquor laws resulting from shipments of liquor from the distillers to military

reservations in Georgia afforded you the 'right to resort to the constitutional police

power of the State and to pass such enforcement and police regulations as the

conditions required. Pursuant to this opinion you executed such a regulation on

April 1, 1953, re-establishing Regulation No. 406, as promulgated June 28, 1948,

and repealed Amendment Regulations Nos. 2 and 5.

At the time I wrote my opinion of March 27, 1953 I reserved serious doubt as

to the possibility of sustaining it should a legal attack be made upon it which

would inject the interstate clause provisions of the Federal Constitution. I still

entertain this doubt, and in view of the recent action by the Department of

Defense in Directive No. 1330.1, dated December 7, 1953, canceling Reference (a)

DOD directive 1330.1, 15 Feb. 1952, and providing for a prohibition of the purchase

of intoxicating liquor for sale in package form on military reservations in Georgia

after April 1, 1954, made effective April 1, 1954, thereby removing from our con-

sideration the question of exercising the police power of the State, it is my view

that the opinion of March 27, 1953 be discarded and your Regulation Nos. 2 and 5

be reinstated and No. 406 cancelled.

,

INTOXICATING LIQUORS-Possession (Unofficial)
Any person may possess one quart of tax paid liquor, even in a dry county.
July 25, 1956
Mr. Robert M. Heard
You asked our opinion as to the following:
"As City Attorney, I am interested in receiving reference to any law or rule of your Department as to the possession of intoxicating liquors by persons after the seal has been broken, that is possession not at his domicile. Also any reference that you can give me as to the duty of law enforcement officers when they arrest a man for being under the influence and he has in his possession whiskey that is tax paid and the seal broken. Should they destroy such liquor, or does that party have the right to demand the return of the whiskey as personal property."
Under Georgia Code Section 58-1073, one quart of alcoholic liquor may be lawfully possessed in a dry county, that is, one which has not legalized the sale and possession of such liquor, provided such liquor so possessed or controlled has been purchased from a lawful or authorized retailer and is properly stamped. Jackson v. State of Ga., 64 Ga. App. 648, 652. The possession in a dry county of an amount of properly stamped Georgia tax paid whiskey in excess of one quart is a violation of the Act. Code Section 58-1077. Of course, Georgia Code Section 58-1056 prohibits the possession of any quantity of unstamped or non-tax paid liquor and such liquor shall be subject to seizure by any peace officer or agent of the Revenue Commissioner,' and the individual possessing it shall be guilty of a misdemeanor. See also Williams v. Snelling, 71 Ga. App. 525.
It, therefore, appears that there is no provision for an officer seizing and destroying whiskey lawfully possessed pursuant to Code Section 58-1073 and 58-1077. It seems that possession of one quart or less of properly tax paid liquor in a dry county is not prohibited under the law, and likewise, would not be subject

46.0
to seizure as contraband when possessed even by a person under the influence of alcohol. There is no distinction made in the Alcohol Control Act as to the sobriety of those permitted to possess tax paid whiskey.
INTOXICATING LIQUORS---:Retail Liquor Bond The word "taxes" in the Retail Liquor Bond covers sales taxes in addition
to other taxes.
March 29, 1955
Mr. Jason Weems Assistant Director Sales and Use Tax Unit
This will acknowledge receipt of your request for my official opinion as to whether or not the word "taxes" in the retail liquor bond includes sales tax in addition to other taxes.
It is my opinion that the language used in the retail liquor bond, which states: "Now therefore, should the said principal above named promptly pay
to the obligee for the use of said State all sums which may become due by said principal to the State of Georgia as taxes, license fees, rental charges, or otherwise, by reason of, or incident to, the operation of said business... " is sufficient to cover the collection of all Georgia taxes, including the sales tax. Any tax on liquor paid by the retail liquor dealer would be paid at the time the retail liquor dealer purchased his whiskey from the wholesaler. Therefore, if the bond did not pertain to other taxes, the above-quoted clause would be superflous and have no effect whatsoever.
INTOXICATING LIQUORS-Sale-Consumption (Unofficial) Sale of intoxicating liquors to be consumed on the premises, either in
unbroken package or by the drink, is unlawful.
May 2~ 1955
Honorable Grady Rawls You state: "Please give me an opinion as to whether the Georgia laws will permit the sale of spirituous whiskies and liquors in unbroken packages or by the drink to be consumed on the premises." Chapter 58-10 of the Code of Georgia (1951 Supplemental Pocket Part),
known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," in Section 58-1011 contains the following definition of "spirituous liquors:"
"(a) The words 'Spirituous liquors' or 'distilled spirits' mean any alcoholic beverage containing alcohol obtained by distillation, mixed with water or other substance in solution, and includes brandy, rum, whiskey, gin, cordials, or other spirituous liquors by whatever name called, to include fortified wines as defined by Federal Alcohol Administration, but

461
n{)thing in this Chapter shall prohibit ~he sale of wines fro,p1 natural f~r mentation of fruits, berries, and other products." Section 5.8-1027 in said Chapter is as follows:
"It shall be unlawful for any retail~r, as defined in this Chap~er, to allow or permit the breaking of said package or packages on the premises where sold. or to allow or pez:mit the. drinking of the contents of said package or packages on the premises where sold and any violation thereof shall be a misdemeanor, and the offender thereof shall be guilty. of a misdemeanor, and, upon conviction, be punished as for ~ misdemeanor." I am qf the opinion that under Code Section 58-1027 it is unlawful to permit the sale of spirituous liquors and whiskies, as defined in Section 58-1011, in unbroken packages or by the drink to be consumed on the premises.
INTOXICATING LIQUORS-Sale-Near Schools and Churches (Unofficial) No business shall be licensed to sell alcoholic beverages within 100 yards
of a church or 200 yards of a school.
December 3, 1954
Honorable Albert W. Stubbs Your question is: what is the proper method for measuring the distance
between a liquor license location and schools and churches, that is, whether the distance should be measured by airline or by the usually traveled route?
Section 9 of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga. Laws 1937-38, Ex. Sess., p. 103, 111) provides in part that:
"No business licensed under this Act shall be operated within one hundred yards of any church and two hundred yards of a school ground or college campus, .." In the case of Leonard v. State, 204 Ga. 465, it was held that Section 9 of the above-entitled Act as codified as Section 58-1029 of the 1933 Code of Georgia (Supplemental Pocket Part) repealed by implication Section 58-601 of the 1933 Code. I call your attention to this case because under 58-601 it was provided that no sale of alcoholic beverages might be lawfully made with a "radius of three miles of any church." Whereas, the repealing section, Section 58-1029, does not use the word, "radius", but only the word "within".
INTOXICATING LIQUOR-Sale-Near School or Church (Unofficial) No alcoholic beverage shall be sold within one hundred yards of a school
or church, the one hundred yards being the dist.ance from the school or church property to the place of business where such beverages are sold by the nearest traveled road, street, or highway.
May 1, 1956
Mr. 0. C. Hammond You state that the City Council of Pelham has requested a ruling with ref-
erence to the sale. of retail beer 1000 yards from a church or school. They wish to know whetper the distance is measured from the building selling beer ~o the

462
church or school or from the property line of the establishment selling beer to the property line of the church or school.
I assume from your question that you wish my opinion on the construction of Code Section 58-724, which is as follows:
"No alcoholic beverage of any kind shall be sold upon any church,
school ground or college campus or within 100 yards of such ground or campus. The school ground or college campus referred to in this paragraph shall apply only to State, county, city, or church school ground campus, and to such other schools as teach the subjects commonly taught in the common schools of this State. Any violation of this section shall be a misdemeanor." You will observe from this Code Section that the distance named therein is 100 yards and not 1,000 yards, as stated in your letter. I construe Code Section 58-724 as prohibiting the sale of alcoholic beverages within a distance of 100 yards from the place of business where the alcoholic beverages are sold to the property line of any church or school grounds as described in Code Section 58-724. The caption of the Act of 1937 (Ga. Laws 1937, p. 148) provides that the 100 yards mentioned in the Act shall be said to mean by the nearest traveled road, street or highway. The Code Section herein quoted covers not only any church or school but the campus or grounds surrounding the church or school which constitutes a part of the church or school properties.
INTOXICATING LIQUORS-Use in Maimfacture of Food (Unofficial) Use of intoxicating liquor as a flavoring in the manufacture of candy, or
any other article of food, is prohibited under Georgia Food and Drug Laws.
August 29, 1955
Honorable Harlan P. Christy You ask is there any statute or regulation of the State of Georgia which would
prohibit the use of bourbon whiskey as a flavoring in the manufacture of candy. Our Food and Drug Law (Chapter 42-1, 1933 Annotated Code of Georgia)
relates to the question you asked. Code Section 42-107 provides "... The term 'food' as used herein shall include
all articles used for food, drink, confectionery or condiment by man or other animals whether simple, mixed or compounded."
Code Section 42-109 provides: "42-109. For the purposes of this Title an article shall be deemed to
be adulterated."In the case of confectionery: If it contain ... any vinous, ,malt or
spirituous liquor ..." Code Section 42-9901 provides:
"42-9901. It shall be unlawful for any person to manufacture, sell or offer for sale, any article of food ... which is adulterated ... within the meaning of Chapter 42-1. Any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and for each offense shall, upon conviction thereof, be fined not to exceed $500, or shall be sentenced to one year's imprisonment, both such fine and imprisonment, in the discretion of the court; and for each subsequent offense; and on conviction thereof, shall be fined not exceeding $1,000, or sentenced to

463
one year's imprisonment, or both such fine and imprisonment, in the discretion of the court: , .." From the above q~;Joted Code Sections, the use of bourbon whiskey in the manufacture and sale of soft center candy would violate Code Chapter 42-1.
LABOR UNIONS-Right-To-Work Law (Unofficial) Laws against compelling membership in labor unions quoted.
March 29, 1955
Honorable Charles P. Doughtie Your letter has been referred to me for reply. For your information, Section 54-804 of the Annotated Code of Georgia,
Pocket Edition, reads as follows: "58-804. It shall be unlawful for any person, acting alone or in con-
cert with one or more other persons to compel or attempt to compel any person to join or refrain from joining any labor organization, or to strike or refrain from striking against his will, by any threatened or actual interference with his person, immediate family, or physical property, or by any threatened or actual interference with the pursuit of lawful employment by such person, or by his immediate family." Code Section 54-902 provides:
"54-902. 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 1abor organization, or to resign from or to refrain from membership in or affiliation with a labor organization." Code Section 66-9906 provides:
"66-9906. Any person or persons, who, by threats, violence, intimidation, or other unlawful means, shall prevent or attempt to prevent any p~rson or persons from engaging in, remaining in, or performing the business, labor, or duties of any lawful employment or occupation, shall be guilty of a misdemeanor."
LANDLORD AND TENANT-Removal of Tenant (Unofficial) Law relating to removal of tenant from lands or tenements possessed
by him quoted.
February 18, 1955
Honorable J. R. Williams You ask the question: "Is the sheriff auth0rized to actually remove a person
and his belongings from a rented home under a dispossessory warrant?" The law on this question is very clear, so rather than give you an unofficial
opinion as requested in your letter, I call your attention to the following Sections of the Annotated Code of Georgia of 1933:
"61-301. Demand for possession; proceedings on tenant's refusal to deliver.-In all cases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him, or shall fail to pay the rent when the same shall become

464

due, and in all cases where lands or tenements shall be held and occupied

by any tenant at will or sufferance, whether under contract of rent or not,

and the owner of the lands or tenements shall desire possession of the

same, such owner may, by himself, his agent, attorney in fact or attorney

at law, demand the possession of the property so rented, leased, held or

occupied; and if the tenant shall refuse or omit to deliver possession when

so demanded, the owner, his agent or attorney at law or attorney in fact

may go before the judge of the superior court or any justice of the peace

and make oath to the facts.".



"61-302. Warrant for tenant's removaL-When the affidavit pro-

vided for in the preceding section shall be made, the officer before whom

it was made shall grant and issue a warrant or process directed to the

sheriff, or his deputy, or any lawful constable of the county where the

land lies, commanding and requiring him to Qeliver to the owner or his

representative full and quiet possession of the lands or tenements men-

tioned in the. affidavit, removing the tenant, with his property found

thereon, away from the premises."

"61-303. Arrest of proceedings by tenant; counter-affidavit and

bond.-The tenant may arrest the proceedings and prevent the removal

of himself and his goods from the land by declaring on oath this his lease

or term of rent has not expired, and that he is not holding possession of

the premises over and beyond his term, or that the rent claimed is not due,

or that he does not hold the premises, either by lease, or rent, or at will,

or by sufferance, or otherwise, from the person who ;made the affidavit

on which the warrant issued, or from anyone under whom he claims tl1e

premises, or from anyone claiming the premises under him: I'rovided,

such tenant shall at the same time tender a bond with good security, pay-

able to the landlord, for the payment of such sum, with costs, as m,ay be

recovered against him on the trial of the case."

"61-304. Issue tried in superior court.-If the counter-affidavit and

bond provided in the preceding section shall be made and delivered to the

sheriff or deputy sheriff or constable, the tenant shall not be removed;

but the officer shall return the proceedings to the next superior court of

the county where the land lies, and the fact in issue shall be there tried by

a jury."

"61-305. Double rent and writ of possession, when.-If the issue

specified in the preceding section shall be determined against the tenant,

judgment shall go against him for double the rent reserved or stipulated

to be paid, or if he shall be a tenant at will or sufferance, for double what

the rent of the premises is shown to be worth; and the movant or plaintiff

shall have a writ of possession, and shall be by the sheriff, deputy, or

constable placed in full possession of the premises." [Ed. Note: see Ga.

Laws, 1957, p. 18.]

LIENS__.:.Mechanics' and Materialmen's (Unofficial) Laws relating to statutory forms to be used in filing mechanics' and
materialmen's liens quoted.
April 25, 1955
Honorable William S. Ramsay This will acknowledge receipt of your letter of April 20, 1955, in which you
request information relative to statutory forms to be used in filing mechanics' liens.

465
For your information I quote part of. Code Section 67-2002, 1954 Supplement, Georgia Code Annotated of 1933, which was codified from 1953 Georgia Laws, page.582:
"2. The filing for record for his claims of lien within three months after the completion of the work or furnishing of such architectural services, or within three months after such material or machinery is furnished, in the office of the clerk of the superior court of the county where such property is situated, which claim shall be in substance as follows: 'A.. B., a mechanic, contractor, materialman, machinist, manufacturer, registered architect, or other person (as .the case may be), claims a lien on the house, factory, steam mill, machinery, or railroad (as the case may be), and the premises or real estate on which it is erected or built, of C. D. (describing the houses, premises, real estate or railroad), for building, repairing, improving or furnishing material (or whatever the claim may be)."
This provides for the forms of liens where the mechanics have taken no personal security for work done or material furnished.
.Code Section 67~2003, 1954 Supplement, provides as follows: "67-2003. All mechanics of every sort, for work done and mate:dal
furnished in manufacturing or repairing personal property, shall have a special lien on the same, which may be asserted by retention of such property, or the mechanic may surrender such personal property and give credit, when the same shall be enforced in accordance with the provisions of section 67-2401, and shall be superior to all liens except liens for taxes a~d such other liens as the mechanic may have had actual notice of before th work was done or material furnished. When they surrender possession of the property to the debtor, such mechanics shall record their claims of lien, within 30 days after such work is done and material furnished in the office of the clerk of the superior court of the county where the owner of such property resides which claim shall be in substance as follows: 'A. B., mechanic, claims a lien on ....... (here describe the property) of C. B., for work done and material furnished in manufacturing or repairing (as the case may be) the same." Title 67, Chapter 20 of the Georgia Code Annotated of 1933, relates to mechanics' and materialmen's liens.
LIENS-Jewelers (Unofficial) Laws pertaining to jewelers' liens quoted.
June 29, 1955
Honorable C. T: Kimberly
This will acknowledge receipt of your letter of June 28th in which you request information as to jewelers' liens. For your information, I quote Code Chapter 67-21:'
"67-2l01. Lien for repairs; enforcement by sale.-Any jeweler, or other person, firm, or corporation engaged in the business of repairing watches, clocks, jewelry and other articles of similar character, may sell such articles upon which charges for repairs, including work done and

466

materials furnished, have not been paid, which have remained in the possession of such jeweler, person, firm, or corporation, for a period of one year after the completion of said repairs, for the purpose of enforcing the lien of such jeweler, person, firm, or corporation for materials furnished and work done in repairing such. article .or articles. (Acts 1927, p. 218.)

"67-2102. How declared; notice.-Before any sale shall be made as provided in section 67-2101, the person, firm, or corporation making such sale shall give 30 days' notice thereof by posting a notice of such sale before the court house door of the county in which such repairs were made, giving the name of the owner of the article or articles so repaired, if known, and if not known, the name of the person from whom such article or articles were received, a description of the article or articles to be sold, and the name of the-person, firm, or corporation making such repairs and proposing to make such sale; and shall also give written notice thereof by sending a registered lette.r to the last known address of the owner of such article or articles, or the person who left such article or articles for repairs, advising such persons of the time and place of sale, the description of the article or articles to be sold and the amount claimed by said person, firm, or corporation for such repairs, including work done and materials furnished, and the said amount so claimed for such repairs shall also be stated in the notice posted before the courthouse door as hereinbefore stated. (Acts 1927, p. 219.)

"67-2103. Sale at public outcry before courthouse.-All sales made under the provisions of this law shall .be made at public outcry, before the courthouse door of the county where the person, firm, or corporation making such sale had his place of business at the time of receiving the article or articles to be sold, and during the hours provided by law for holding sheriff's sales. (Acts 1927, p. 219.)

"67-2104. Application of proceeds of sale; residue.-The proceeds of

any sale made under the provisions of this law shall be applied first to

the payment of the lien for services rendered by the person, firm, or cor-

poration making such sale, for work done and materials furnished in

repairing such article or articles sold, including the cost of the registered

notice hereinbefore provided for, and the residue, if any, shall be paid to

the ordinary of the county wherein such sale shall have taken place, who

shall hold said sum for a period of one year, during which time the owner

or owners of the article or articles so sold may claim said residue; but

at the end of said period of one year, if said residue shall not have been

claimed by the owner or owners of the article or articles, so sold, then and

in that event said residue shall be placed by the said ordinary in the

common school fund of the county wherein said sale was made. (Acts

1927, p. 219.)

'

"67-2105. Display of sign as to intention to sell.-Any jeweler, person, firm, or corporation desiring to avail himself of the provisions of this law shall display a sign in his place of business notifying the public that all articles left for repairs will be sold for charges at the expiration of one year from completion of such repairs. (Acts 1927, p. 219.)"

467
LIENS-For Water and Sewer Charges (Unofficial) There is no state law providing for a lien for non-payment of water and
sewer charges, and some municipalities have ordinances to that effect.
November 16, 1954
Mr. J; V. Swanson Dear Sir:
l have received your 'letter in which you asked if there is any State Law which provides for placement of a lien upon an individual's property for the non-payment of water and sewer charges.
I do not find any State statute in the Laws of Georgia which provides for an automatic lien for non-payment of water and sewer charges, but such liens are practically used in the various municipal corporations of the State as provided for in their charters granted by the General Assembly.
Under the charter, the various municipalities have passed ordinances to this effect. It will be necessary for you to contact the municipality wherein you are interested in doing business to ascertain if the lien is in effect in that particular municipal corporation.

MOTOR VEHICLES-Driver's License-License Tags (Unofficial)
Non-residents of Georgia in the military service and stationed in Georgia are not' required to obtain a Georgia driver's license or license plate if they have same issued by another State, or they may obtain Georgia license plate without obtaining Georgia driver's license.

! I

March 28, 1955

Major Charles G. Dupuis
In your letter your propound the following questions: '1a. Does a military person or his dependents, who hold a valid
driver's license from another state, have to obtain a Georgia State driver's license?"
In an unofficial opinion rendered by me on March 6, 1953 (Op. Atty. Gen., 1952-53, p. 469, 470), I held:
"I am of the opinion that a serviceman stationed in his State, who is a resident of another State and has a valid driver's license issued by the State of his residence, would not be required to have a Georgia driver's license regardless of the length of his stay (tour of duty) in Georgia."
"b. Does a military person or his dependents, who has a valid state license tag from another state on his car, have to obtain a Georgia State license tag ?"
In the opinion above referred to in answer to question a; I held that nonresidents of the State .of Georgia in the military service of the United States and stationed in Georgia are in the performance of their military duties who have a legal license tag of the State of their residence affixed to their automobile would not be required to buy a Georgia license tag. Non-residents other than persons in the milita;ry service are required to purchase Georgia license plates under the provisions of. Code Section 68-221, which is as follows:
"Motor vehicles owned by nonresidents of the State may be used and operated on the public streets and highways for a period of 30 days with-

468
out having to register and obtain a license to do so or a chauffeur's license: Provided, that the owner or owners thereof shall have fully complied with the laws ~equiring the registration of motor vehicles in the State or Territory of their residence, and that the registration number and initial letter of such State or Territory shall be displayed and plainly visible on such vehicle or vehicles. In other respects, however, motor vehicles owned by nonresidents and in use temporarily within the State shall be subject to the provisions of this law: Provided, no resident shall be allowed to operate a motor vehicle within this State under a license issued by another State."
"c. Is there any law covering military personnel and their dependents requiring them to obtain Georgia State driver's licenses if their car has Georgia State license tags?''
There is no provision of law requiring the purchaser of a Georgia license tag to .obtain a Georgia driver's license.

MOTOR VEHICLES-Equipment (Unofficial)
Motor vehicles owned by a city or county are subject to the same equip~ ment requirements as privately owned vehicles.

February 23, 1954

Mr. J. Robert Morris

You inquire whether school busses and motor trucks owned and operated by the various cities and counties throughout the State are required to be equipped

with electrical or mechanical directional signals, stop lights and rear view. 11\ir-

rors, as are other motor vehicles.

.

Article XIV, Section 102, et seq .[of the Uniform Act Regulating Traffic on

Highways, Ga. Laws, 1953-Nov.-Dec. Sess., p. 556] provide,. that motor vehicles shall be equipped with head lamps, tail lamps, stop lights, rear view mirrors; and other equipment, and that such vehicles may be equipped with other optional equipment as desired. It then proceeds to provide standards, manner-of installation and time and conditions of use of all such equipment.
Section 108, referring to the sale of "new motor vehicles" says in part that

it shall be' unlawful "to drive such vehicle on the highways unless it is equipped

with at least one stop lamp." It continues by providing that no person shall

operate any "motor vehicle" trailer or semi-trailer registered in this State, manu-

factured or assembled after January 1, 1954, unless it is equipped with mechanical

or electrical turn signals. The only exception contained in this paragraph is that

it "shall not apply to any motorcycle or motor-driven cycle."



.Section 118 provides that every "motor vehicle" which is so constructed or loaded as to obstruct the driver's view to the rear thereof from the driver's position shalL be equipped with a mirror so .located as to reflect a view of the highway.

In none of the several provisions in which you are 'interested do I find any exemption or exception either expressed or implied which would except school

busses, motor trucks or passenger vehicles owned and operated by cities and counties from equipment requirements applicable to .similar vehicles owned and

operated by private individuals.

469

MOTOR VEHICLES-Guest Statutes (Unofficial)

Georgia does not have a Guest Statute in its statutory law, but the sante end

as is usually accomplished by these statutes is achieved in Georgia by

judicial decision.

.

October 5, 1954

Mr. Walker E. Anderson

You asked me to send you a true or certified copy of the Guest StatutE) for

the State of Georgia.

In Georgia we do not have a Guest Statute such as you have in mind. How-

ever, the Appellate Courts have handed down certain rulings of law which govern

and have the same application.

.

The general rule is that one that is riding by invitation through the State

in another's automobile cannot recover an injury caused by the driver's negligence

in the operation of the automobile unless it amounts to gross negligence.

For further. elaboration of the point, I would suggest that you read some

of the following cases, to wit: 183 S. E. 835; 188 S. E. 465; 193 S. E. 358.

MOTOR VEHICLES-Headlights (Unofficial) . Dual headlights are not illegal under the laws of the State of Georgia.
November 13, 1956
Mr. Ewart Wilson I have received your letter in which you ask whether it is legal for automo-
biles to be equipped with dual headlights. However, in order to be of assistance to you, I am glad to quote to you Ga.
Code Ann. Section 68-1704 which states that: "Every motor vehicle other than a motorcycle or motor driven cycle shall be equipped with at least two headlamps, with at least one on each side of the front of the motor vehicle, which headlamps shall comply with the requirements and limitations set forth in Section 68-1701 through 68-1722."
While there is no code section which specifically authorizes or sets out that dual headlights are legal, I feel that we can infer from the above section that it was anticipated that motor vehicles could be equipped with more than two headlamps.
Therefore, it is my unofficial opinion that provided the headlights comply with the requirements of the law as to location and size and strength, that dual headlights are not illegal under the laws of the State of Georgia.
MOTOR VEHICLES-License Tags-Application (Unofficial) (a) A delinquent application for an automobile tag may be endorsed
by the County Tag Agent, rather than the sheriff. (b) The fee received by a sheriff for a delinquent application for an
automobile tag is remitted to the State Revenue Commissioner.
April 18, 1956
Honorable J. C. McArthur You request my construction of Sections 5 and 6 of a directive dated March
21, 1956, issued by Mr. H. G. Bannister, Director of the Motor Vehicle License

470
Unit. You also request my opinion as to the proper construction of Code Section 68-201 and in this connection you propound the following questions:
(1) "Is the County Tag Agent or his designated representative authorized by law to indorse delinquent applications in view of Code Section 68-201 stating the same shall first be indorsed by the Sheriff or deputy sheriff, etc.?"
The County Tag Agent or his designated representative is authorized by law to indorse delinquent applications under Code Section 68-201. This section contains the following provision:
"... and all applications made to the State Revenue Commissioner for the registration of said delinquent automobile, truck or trailer shall, before being accepted by the State Revenue Commissioner, be first indorsed by the sheriff or a deputy sheriff, chief of police or his designated representative, ,or by a State Highway Patrolman or by a State Motor Vehicle License Inspector; ..."
A State Motor Vehicle License Inspector is an employee of the State Revenue Commissioner and in my opinion the County Tag Agent, under the rules and regulations of the Commissioner of Revenue, essentially stands in the same position and may perform the same acts with respect to such delinquent applications as a State Motor Vehicle License Inspector. Both are agents of the State Revenue Commissioner who has authority to fix their duties and promulgate .the rules and regulations under which they work.
Your second question is as follows:
(2) "Under this Code Section the officer making the indorsement first receives from the applicant the sum of $1 and then he indicates on the application the total amount of the prescribed registration fee together with the 20% penalty provided. Does the officer receiving this $1 turn it into the County Tag Agent or does he retain it and indicate on the application the prescribed registration fee plus the 20% penalty and instntct the delinquent applicant that he must pay the latter amounts to the County Tag Agent in order to receive his tag?"
The Attorney General rendered an opinion on May 8, 1950 (Op. Atty. Gen., 1950-51, p. 189) holding that the Sheriff had no right to waive the indorsement fee of $1 asjs provided in Code Section 68-201. The Director of the Motor Vehicle License 'Unit requested an opinion on this question, stating in his request that some delinquent applications failed to show whether or not the registration fee had been paid. After the opinion of May 8, 1950 holding that the $1 registration fee could not be waived, it was administratively determined by the Revenue Commissioner that the best way to uniformly enforce the provisions of Section 68-201 was to require that both the $1 indorsement fee and the 20% penalty be remitted to the Revenue Commissioner. This practice, I am informed by the Revenue Commissioner, is the interpretation of the Code Section in question and has been followed since 1950.
Under this administrative interpretation, the $1 registration fee plus the 20% penalty should be paid to the County Tag Agent who will remit such amounts to the State Revenue Commissioner and he in turn will distribute such funds in accordance with the provisions of Code Section 68-201.

471
MOTOR VEHICLES-License Tags-Consuls Automobiles used by Consular Officers of Germany stationed in Georgia
in the discharge of their duties are not required to pay the annual registration fees for the licensing of the automobiles so used.
June 1, 1954
Honorable W. L. Burch Director, Motor Vehicle License Unit
You referred to this office a letter which you received from Dr. W. Brueckmann, Acting German Consul, in which he requested that you obtain an opinion from me as to whether or not German Consuls stationed in Georgia are subject to payment of license fees for automobile tags used on their cars in the State of Georgia. This letter states that American consuls are accorded exemption from charges for automobile registration and license plates and the consul assumes that reciprocity in this respect would be granted by the State of Georgia.
Article XIX of the Treaty of Friendship, Commerce, and Consular Rights between the United States and Germany reads in part as follows:
Consular officers, including employees in a consulate, nationals of the State by which they are appointed other than those engaged in private occupations for gain within the State where they exercise their functions shall be exempt from all taxes, National, State, Provincial and Municipal, levied upon their persons or upon their property, except taxes levied on account of the possession or ownership of immovable property situated in, or income derived from property of any kind situated or belonging within the territories of the State within which they exercise their functions. All consular offic13rs and employees, nationals of the State appointing them shall be exempt from the payment of taxes on the salary, fees or wages received by them in compensation for their consular services. While it is true that no provision is made in our Georgia law for the exemption of foreign consuls from payment of the regular registration and license fees imposed by our law, the treaty of the United States with Germany would take precedence over our State statutes. It is therefore my opinion that automobiles used by consular officers of Germany stationed in Georgia in the discharge of their duties would not be required to pay the annual registration fees for the licensing of the automobiles so used. This is especially true since the German Government, in accordance with their treaty with the United States Government, does exempt American consuls from charges for automobile registration and license plates.
MOTOR VEHICLES-License Tags-Dealer Tags (Unofficial) Dealers in motor scooters are required to register and secure dealer's tags.
August 12, 1955
Mr. Tommy Wages You inquire as to whether or not there is any provision of law requiring dealers
in motor scooters to register and secure dealer's tags. A motor scooter comes within the definition of a motor vehicle under the
Georgia Law, Code Section 68-101, which states: "'Motor vehicle'-Any vehicle, except tractors, propelled by power
other than muscular power, not operated exclusively upon tracks."

472
The Acts of 1953, pp. 556-561, dealing with motor vehicles and traffic regulations, provided a new definition for "vehicle" which is set forth in Section 68-1502(a) of the 1954 Supplement to the Georgia Code, Annotated. This section is as follows:
"(a) Vehicle. Every device in, upon, or by which any person or or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks, or overhead trolley wires.." This Act also provided:
"(b) Motor vehicles. Every vehicle which is self-propelled, except trackless trolleys which are classed as streetcars in subsection 6(c) hereof."
Under Code Section 68-213 manufacturers and dealers engaged in the manufacture, sale, or leasing of motor vehicles are required to register with the State Revenue Commissioner and make an application for a dealer's number, specifying the name and make of the motor vehicle manufactured, sold or leased by them upon blanks prepared by the State Revenue Commissioner for such purposes, and pay therefor a fee of $25, which fee shall entitle them to two dealer's number plates.
Code Section 68-213 is as follows: "Manufacturers and dealers engaged in the manufacture, sale, or
leasing of motor vehicles or tractors shall register with the State Revenue Commission, making application for a distinguishing dealer's number, specifying the name and make of motor vehicle manufactured, sold or leased by them, upon blanks prepared by the State Revenue Commission for such purposes, and pay therefor a fee of $25, which fee shall accompany such application, and for which said fee the State Revenue Commission shall furnish to said dealer two number plates to be known as a dealer's number and to be distinguished from the number plates herein provided for by a different and distinguishing color to be determined by the State Revenue Commission, with the word 'Dealer' on same; dealer's number plates to be for. the purpose of demonstrating or transporting dealer's vehicles for sale or lease. No dealer or manufacturer may use or permit to be used a dealer's number for private use or on cars for hire, or other manner not provided for in this section. In case dealers or manufacturers desire more than two tags, they shall so state on the application, and, in addition to the fee of $25 hereinabove provided, shall pay $10 for each and every additional number plate furnished."
MOTOR VEHICLES-License Tags-Dealer Tags A dealer who permits his dealer's tags to be used for purposes other than
demonstrating or transporting dealer-owned vehicles for sale may be prosecuted for a misdemeanor.
21 October, 1955
Col. W. C. Dominy, Director Department of Public Safety
Reference is made to your recent letter in which you refer to numerous cases of apparent misuse of dealer tags issued under the provisions of Section 68-213 of the Ga. Code of 1933, and inquire as to what action you may and should take in such cases.

473
You use, as an illustration, the case of the dealer who sold a car on Sunday and deliver possession to the purchaser although the formalizing of the contract through the execution of the necessary documents had to be postponed until a later date. The purchaser drove off in the car using dealer tags.
Section 68-213 of the Code provides for the issuance of dealer tags or plates "... for the purpose of demonstrating or transporting dealers vehicles for sale ...". The vehicle in this case had been demonstrated, sold and delivered and was being driven by the purchaser to his official station at Fort Jackson, S. C.
The section referred to (Section 68-213) continues by providing that "No dealer ... may use or permit to be used a dealer's number for private use . , . or other manner not provided for in this section." Section 68-9908 then provides that "Any person violating the provisions of Chapters 68-1, to 68-4 relating to licenses, registration and operation of motor vehicles shall be deemed guilty of a misdemeanor."
It follows, therefore, that a dealer who permits his dealer tags to be used .for purposes other than demonstrating or transporting dealer-owned vehicles for sale may and should be prosecuted as for a misdemeanor under the provision of Section 68-9908, but I do not believe that such tags may properly be picked up by a law enforcement officer unless the dealer registration has been revoked by the Revenue Commissioner for cause under Section 68-206.
MOTOR VEHICLES-License Tags-Dealer Tags (Unofficial) It is mandatory for an automobile dealer to register with the State
Revenue Commissioner and obtain a dealer tag, even though the dealer has no use for such.
October 22, 1956
Mr. J. Corbett Peek, Jr. You ask the opinion of the State Law Department as to whether a dealer in
new cars is required under Georgia Code Section 68-213, et seq. to register as a "dealer" with the Department of Revenue, Motor Vehicle License Unit, pay the $25.00 fee and obtain one special dealer license plate, irrespective of the fact that such dealer does not plan to use such plates in its business, or whether dealers must so register only if they desire to obtain the special dealer license plates for use in their business. You state that your dealer-client does not use demonstrator cars since each salesman personally owns outright the car he uses for demonstrating and selling purposes, and that your client has no use for dealer tags and does not desire any.
Georgia Code Annotated, Section 68-213, provides in part: "Manufacturers and dealers engaged in the manufacture, sale, or
leasing of motor vehicles or tractors shall register with the State Revenue Commissioner, making application for a distinguishing dealer's number, specifying the name and make of motor vehicle manufactured, sold, or leased by them, upon blanks prepared by the State Revenue Commissioner for such purposes, and pay therefor a fee of $25, which fee shall accompany such application, and for which said fee the State Revenue Commissioner shall furnish to said dealer one number plate to be known as a dealer's number and to be distinguished from the number plates herein provided for by a different distinguishing color to be determined by the State Revenue Commissioner, with the word 'Dealer' on same; ..."

474
A reading of this quoted portion of Section 68-213 shows that it is mandatory that dealers "shall register with the State Revenue Commissioner" and pay a fee of $25.00 in exchange for which the Commissioner "shall furnish to said dealer one number plate to be known as a dealer's number."
The remaining portion of Section 68-213 provides:
"... dealer's number plate to be for the purpose of demonstrating or transporting dealer's vehicles for sale or lease. No dealer or manufacturer may use or permit to be used a dealer's number for private use or on cars for hire, or other manner not provided for in this section. In case dealers or manufacturers desire more than one tag, they shall so state on the application, and, in addition to the fee of $25 hereinabove provided, shall pay $5 for each and every additional number plate furnished. (Acts 1927, p. 232; 1931, pp. 7, 34.)"
This portion of this statute states the purpose of the dealer's number plates as being for "demonstrating or transporting dealers' vehicles for sale or lease." This, however, merely states the purpose of the special license plates rather than stating the purpose of dealer registration. This statement of purpose does not, however, appear to place any limitation upon the mandatory requirement of the prior clause in said sentence that such dealers "shall register with the State Revenue Commissioner."
It is noted that the caption of the Motor Vehicle Act of 1927 (Georgia Laws 1927, p. 226) states that one of the purposes of the Act is "to provide for registration of . . . dealers and manufacturers of motor vehicles . . .". There does not appear in subsequent amendments any limitation indicating that dealers need register only if they desire to obtain dealer's auto license plates. Also, the provisions of Section 68-213 are repeated practically verbatim in Georgia Code Annotated, Section 92-2903, which is the Chapter of the Revenue Title pertaining to the annual fees for the licensing and registration of motor vehicles, and, to that extent, this registration of dealers probably should be considered as a revenue measure.
This conclusion that Section 92-213 requires that dealers must per se register with the State Revenue Commissioner and pay the $25.00 fee seems to have been the conclusion of the Law Department for some time (See O.A.G. 1950-51, p. 385-86 (March 7, 1951), although we have not found an opinion responding directly with this precise question.
Perhaps the overall primary purpose of the Motor Vehicle Registration Act, Title 68 of the Georgia Code, was and is to provide for the registration and licensing of motor vehicles including providing dealers with the convenience of a special tag, transferable at will from vehicle to vehicle, and I do not know the reason or purpose requiring the registration of dealers, except possibly, it may have been the General Assembly's thought that such registration of dealers and the maintenance of a roster of dealers by the Department of Revenue might aid it in enforcing the vehicle licensing provisions. Yet, when faced with the plain language of Section 68-213 and the caption of the original act, we can reach uo other conclusion than herein expressed.

475
MOTOR VEHICLES-License Tags-Dealer Tags Procedure for obtaining dealer's tags for motor vehicles.
December 17, 1956
Mr. Robert E. Stubbs You state that you desire a license to buy and sell used cars at home and at
auctions. I assume that you have reference to a dealer's license plate as provided for in the Act of 1927 (Ga. Laws, 1927, p. 232; 1931, p. 7, 34; Ga. Code Ann., Section 68-213). There is no State law requiring automobile dealers to have any other license issued by the State.
Dealers' license plates are, as are all other motor vehicle license plates, with the exception of certain types of truck license plates, obtainable through the designated representative of the Commissioner of Revenue in your home county. In most counties this representative is the Tax Collector, though another individual may in some instances be designated. If the tax collector in your county is not the designated agent of the Commissioner of Revenue for the purpose of selling motor vehicle license plates, he undoubtedly will know who has this job in your county.
The Act mentioned above provides for a fee of $25.00 for dealers' license plates for which the Revenue Commissioner or his agent shall furnish the dealer one number plate. In case a dealer desires more than one plate, he should so state on his application and pay an additional fee of $5.00 for each additional plate. These plates are valid for the calendar year and must be purchased on or before the first day of April in each year. I know of no provision of law which authorizes a discount to veterans on the purchase of these license plates.

MOTOR VEHICLES-License Tags-Highway Use Tax Applicability of Tax to truck or trailer discussed.

February 16, 1954

Honorable W. L. Burch Director, Motor Vehicle License Unit State Department of Revenue
You ask my opinion as to whether a truck or trailer domiciled in Ohio or New York and carrying the license plate of that state would be subject to the new Georgia Highway Use Tax if that truck or trailer carried a license plate of a state which does not impose the Highway Use Tax or a state with which Georgia has reciprocity.
It is my opinion that a truck or trailer must carry the license plate of the state from which it operates and should not be allowed to carry plates. of other states. However, if the trucks or trailers do operate with license plates from more than one state and one of the states imposes a highway use tax and is not in reciprocity with the State of Georgia, then the tax imposed under Georgia's Highway Use Tax Act is applicable to that truck or trailer.
It is my belief that this opinion meets with the full intention of the Legislature and a tax may not be avoided by obtaining secondary or additional license plates from states to which the State of Georgia gives taxing credit.

476
MOTOR VEHICLES-License Tags-Highway Use Tax
1. Georgia Highway Use Tax Act (1953 November-December Session, page 343), Section 6D, contemplates a conviction or acquittal of persons accused of violating the provisions thereof.
2. Trailers operating under Class "B" certificates and liable for tax under the Georgia Highway Use Tax are not entitled to reduction in this tax under Code Section 92-2902.
March 30, 1954
Honorable W. L. Burch Director, Motor Vehicle License Unit
This is in response to your letter of March 26, 1954 in which you pose two questions relative to the Georgia Highway Use Tax as provided by an Act approved December 22, 1953 (Ga. Laws, 1953, Nov.-Dec. Sess. p. 343).
Your first question is whether the authorized inspector of the Motor Vehicle License Unit should collect the $100 fine provided by Part II, Section 6D of the Highway Use Tax Act or should a warrant be sworn out against the violator of this Act. It is provided in subsection D of Section 6 of the Act that, "Any persons who violates any provision of this section, upon first conviction shall be punishable by a fine of not less than $100.00 or more than $250.00; and upon a second or subsequent conviction, by a fine of not less than $250.00 or more than $500.00; or by imprisonment for not more than 30 days, or both. It is my opinion that this Act contemplates a trial by jury and a conviction or acquittal of persons accused of violating this tax act. Therefore, it would be necessary for a warrant to be sworn out against an alleged violator and a trial held in the court with appropriate jurisdiction.
Your second question concerns whether trailers operating under Class. "B" certificates issued by the Georgia Public Service Commission for the transportation of household, kitchen, office furniture and store fixtures are entitled to pay only one-half of the cost of the application fee underthe Highway Use Tax and only one-half of the. round trip cost under the Highway Use Tax Act.
Section 92-2902 of the 1933 Code of Georgia was amended by an Act approved December 23, 1953 (Ga. Laws, 1953, Nov.-Dec. Sess., p. 371) which provides that all trailers operating under Class "B" certificates issued by the Georgia Public Service Commission shall pay a license fee as provided under Paragraph 5 of this section which is the fee for truck trailers or semi-trailers not used as nonpassenger-carrying or common or contract carriers for hire. Although by this amendment to Section 92-2902 the fee for these trailers operating under Class "B" certificates was reduced in half, this holds no precedent for allowing trucks liable under the Highway Use Tax Act to a reduction of one-half of the fees required to be paid thereunder. It is therefore my opinion that the trailers operating under Class "B" certificates and liable for tax under the Georgia Highway Use Tax, would not be entitled to a reduction in this tax under Section 92-2902 as amended by the 1953 Act.

477
MOTOR VEHICLES-License Tags-Highway Use Tax Vehicles traveling in Georgia, registered in Arizona but not in Georgia,
should be required to obtain a Georgia Highway Use Permit and identification tags, and no more.
March 21, 1955
Mr. W. M. (Don) Wheeler, Director Motor Vehicle License Unit
You request my opinion as to whether or not trucks or trailers registered in the State of Arizona come under the Georgia Highway Use Tax Act.
The fees imposed by Arizona are of such a nature as to be considered merely registration fees, being the same nature as imposed by the State of Georgia in compliance with Section 1 Part 2 of the Automobile License Plates Act of the Nov.-Dec. Session of the 1953 General Assembly, amending Georgia Code 68-214 (Ga. Laws 1953, p. 343). Since these fees are not in addition to any tax, fee or toll imposed upon gasoline or motor fuel purchased within Arizona nor in addition to an Arizona registration fee, vehicles registered in Arizona are not subject to the additional tax, fee, or toll imposed by Section 2 of the above mentioned Act.
It is, therefore, my opinion that vehicles traveling in Georgia, registered in Arizona but not registered in Georgia, should be required to obtain a Georgia Highway Use Permit and identification tags and stickers pertinent thereto, but said vehicles should not be required to pay the additional $10.00 for each round trip as imposed by Section 2 of the Automobile License Plates Act.
MOTOR VEHICLES-License Tags-Purchase Vehicles used for earth moving that travel on their own power over
highways are subject to license tax.
November 29, 1954
Honorable W. L. Burch Director, Motor Vehicle License Unit
I am pleased to acknowledge your request for an official opinion as to whether certain vehicles used primarily as "off the road" equipment are subject to the Georgia license plates. The vehicles are two-wheeled with pan built into the machine used for earth moving on grading jobs in connection with highway construction. Said vehicles travel on their own power and travel over highways at certain times, mostly from one job to another.
Section 68-201 of the 1933 Code of Georgia, 1954 Annotated Supplement, states in part:
"Every owner of a motor vehicle, trailer, tractor (except tractors used only for agricultural purposes) or motorcycle, shall, on or before the first day of April in each year, before he shall operate such motor vehicle, tractor, trailer or motorcycle, register such vehicle in the office of the State Revenue Commissioner, and obtain a license to operate the same for the ensuing year; ..." Section 68-101, 1933 Code of Georgia, defines motor vehicles as follows:
"'Motor vehicle'-Any vehicle, except tractors, propelled by power other than muscular power, not operated exclusively upon tracks." Code Section 92-2901(B), 1933 Code of Georgia, Annotated Supplement, is as follows:

478
"B. Truck. A motor vehicle for the transportation of property, which shall include any self-propelled vehicle designed for use as a traveling power plant or for drawing other vehicles but having no provision for carrying loads independently, except what are commonly known as farm tractors." It appears from your letter that the vehicles described therein in a motor vehicle and is a self-propelled vehicle designed for use as a traveling power plant and is, therefore, subject to license tax.
MOTOR VEHICLES-License Tags-Purchase 1. A truck crane, which travels into Georgia under its own power to do
work in Georgia, is considered a motor vehicle and is required to be licensed in Georgia.
2. The Ten-State Joint Motor Vehicle Reciprocal Agreement was not designed to include movable machinery, such as a truck crane.
December 16, 1954
Hon. W. L. Burch, Director Motor Vehicle License Unit
This is in response to your request for my official opmiOn on the following question: Does the Ten-State Joint Motor Vehicle Reciprocal Agreement apply to a P & H truck crane which travels into Georgia under its own power to do work? The crane is not required to be licensed in Alabama, the state of residence of its owner and the state in which it is based.
The reciprocal agreement relates to interstate transportation; the transportation of goods or passengers in interstate commerce. It was not designed to include machinery of a movable nature such as the crane above mentioned.
Regardless of whether the agreeing parties intended to include self-propelled machinery when they entered into the reciprocal agreement, it is my opinion that this piece of machinery did not remain within the channel of interestate commerce. As I have previously ruled (official opinion dated September 22, 1950), "vehicles domiciled in other states but engaged in intrastate commerce in Georgia, do not come within the provisions of the reciprocal agreements, and must therefore be licensed in Georgia." When this piece of machinery stopped in Augusta to do work upon the bridge being constructed there, it was no longer in the stream of interstate commerce. Not being in interstate commerce, it was then required to have a Georgia license. This rule would have applied even if the crane had been a vehicle which was contemplated by the Ten-State Reciprocal Agreement as the agreement only relates to vehicles transporting goods or passengers in interstate commerce.
Since this crane is a vehicle driven by power other than muscular power not operated exclusively upon tracks, it is considered a motor vehicle, and is required to be licensed in Georgia.

479
MOTOR VEHICLES-License Tags-Purchase County tag agent (tax collector) may not refuse to issue a tag to an
applicant because he has not paid personal property taxes on property other than the vehicle he owned January first of previous year.
December 29, 1955
Mr. Carl J. Morley This is in response to your letter. The recent Act of the General Assembly
(Ga. Laws 1955, p. 639-643) requires that the owner of an automobile must make an affidavit as to the payment of ad valorem property taxes on that automobile, or such other automobiie as was owned by him on January 1, 1955, and file such affidavit with the county tag agent (usually tax collector) at the time he purchases his 1956 motor vehicle license plate. The affidavit does not require that the applicant swear as to the payment of other personal property taxes for the prior year. The affidavit as to the payment of property taxes on the motor vehicle owned by such applicant on January 1 of the prior year is contained on the license plate application form. The law does not permit the county tag agent (tax collector) to refuse to issue a license plate to anyone even though the personal property taxes have not been paid by such applicant.
MOTOR VEHICLES-License Tags--Purchase An automobile dealer may not purchase license plates for the purchasers
of the vehicles he sells.
December 30, 1955
Honorable J. C. Mathews You asked whether the recent act of the General Assembly (Ga. Laws 1955,
p. 659-662), requiring that motor vehicle license plates be issued in the counties, and the Act of the General Assembly (Ga. Laws 1955, p. 639-643), requiring
purchasers of license plates to furnish an affidavit as to the payment of ad valorem
property taxes on vehicles owned by such applicant on January 1, 1955, permit automobile dealers to obtain license plates for the purchaser of such vehicle in the county in which the dealership is located.
Unless the dealership wishes to obtain separate regular license plates for each vehicle obtained by it from the factory prior to selling such vehicle, it is my opinion that such vehicle cannot be registered in the county of the residence of the dealership. The Act of the General Assembly requiring license plates to be sold in the counties and the sections under Chapter 68 of the Code of Georgia require that the owner of a vehicle in Georgia must purchase his license plate in the county of his residence, or, if he is a non-resident who is required by Section 68-221 to purchase a tag after residing in Georgia for over thirty days, he must purchase his license plate in the county of his principal place of abode. The recent regulations promulgated by the Commissioner of Revenue, dated December 1, 1955, state in Paragraph 13 that license plates must be purchased in the county of the residence of the applicant.
Also, as you know, the Act of the General Assembly requiring that an ad valorem property tax affidavit must accompany the application for a license plate, prevents the tag agent from issuing a 1956 tag unless the applicant for such tag can swear on such affidavit that he has paid all taxes due on all vehicles owned bv "im on January 1, 1955.

480
Enclosed is a copy of the regulations promulgated by the Commissioner of Revenue, Mr. T. V. Williams, on December 1, 1955, with respect to issuance of license plates in the counties.
MOTOR VEHICLES-License Tags-Purchase Discusses laws pertaining to the registration of motor vehicles and the
issuance of license tags.
March 9, 1956
Mr. Robert D. Hedrick You present the following questions and ask my unofficial opinion with
respect thereto: "1. When does an owner of a new vehicle purchased on January 3
have to buy a license tag? "2. When does the owner of a used vehicle having an expired out of
state license tag have to purchase a tag when the vehicle is brought into the State on January 3?
"3. Is an owner of a new vehicle purchased on January 3 and not registered for the previous year subject to the delinquent provisions for not registering by April 1?
"The date January 3 as used in this letter is merely for the purpose of showing the vehicle was purchased after December 31, which is the expiration date of license tags." Georgia Code Section 68-201 provides:
"Every owner of a motor vehicle ... shall, on or before the first day of April in each year, before he shall operate such motor vehicle, ... register such vehicle in the office of the State Revenue Commissioner, and obtain a license to operate the same for the ensuing year; ... Provided, that on and after the second day of April in each year owner of an automobile, truck of trailer, registered for the previous year, who shall have failed to comply with the provisions of this section, shall be deemed and held to be a delinquent under the provisions of this section, and the registration of such automobile, truck or trailer shall, on said second day of April and thereafter, be subject to a penalty of 20 per cent. of the registration fee for said automobile, truck or trailer in addition to the fee herein provided; ..." 1. The motor vehicle registration and license statutes require that every vehicle operated in the State of Georgia shall bear a current valid license plate. The statutes do not contemplate or permit that any vehicle operated within the State of Georgia shall not bear a valid current license plate. Therefore, the owner of a new vehicle purchased on January 3 is required by statute to obtain a license plate for such vehicle prior to the operation of same on the Georgia highways. A Georgia license plate covers the period January 1 through December 31 of the calendar year. The owner of a vehicle bearing a valid current license plate is permitted, by the above-quoted statute, to and through April 1 of the following year to obtain a new license plate. The previous year's license plate, however, expired on December 31 of the prior year, and the obligation to obtain a new Georgia license plate began on January 1. Code Section 68-201 merely permits such owner an additional period in which to purchase a current license plate, and the validity of the prior year's license plate is recognized until April 2.

481
2. The same would be true with respect to a nonresident owner of a vehicle bearing a previous year's license plate from another State. That is, such out-ofState license plate would be valid through April 1, however, in no event can a nonresident owner of a vehicle using the highways of Georgia be permitted to use his vehicle in the State of Georgia longer than 30 days without thereafter being obligated, under Code Section 68-221, to obtain a Georgia license plate. Nonresidents using the highways of Georgia must obtain a Georgia tag after 30 days residence in the State of Georgia (68-221); and this is true irrespective of whether such nonresident has a current out-of-State license plate or whether such vehicle has a prior year's tag being continued to be used to April 1.
If a vehicle bearing an O).lt-of-State license plate is transferred to a resident owner on January 3, such resident owner is required to immediately obtain a Georgia license plate. The use of out-of-State license plates is permitted in this State only as a courtesy to nonresidents moving into this State, and then such courtesy recognition of the validity of such out-of-State tag extends merely for the first 30 days of residence in Georgia. See Code Section 68-221: " .. no resident shall be allowed to operate a motor vehicle within this State under a license issued by another state."
3. Any person purchasing a vehicle on January 3 where such vehicle was not registered for the prior year and bears no license plate at all, is delinquent under Code Section 68-201 the first day thereafter that he uses such vehicle on the Georgia highways. Such owner does not have until April 1 to obtain a license plate. The delinquent provisions for failure to immediately register would, therefor apply in this instance prior to April 1.
The operation of such a vehicle without a license plate would also subject such owner to the criminal penalty of a misdemeanor. See Code Section 68-9901 and Code Section 68-9904.
Along this line you might be interested in an official opinion of the Attorney General dated February 10, 1953 (Opinions of the Attorney General 1952-53, p. 470-471).
MOTOR VEHICLES-License Tags-Purchase Where the owner of an automobile is apprehended in a county other than
that of his residence for failure to have current motor vehicle license tag, he cannot purchase a tag from the apprehending county, but must purchase it from the. county of his residence.
March 21, 1956
Mr. H. G. Bannister, Director Motor Vehicle License Unit, Dept. of Revenue
You have referred a letter to me from Mr. W. H. Allen, Sr., Tax Receiver of Charlton County, wherein he asks in paragraph 5 whether he, as County Tag Agent of Charlton County, should issue a license plate to the owner of a vehicle bearing a delinquent license plate, where the State Patrol or other law enforcement officer apprehends a motor vehicle in his county after April 1, 1956, which does not bear a 1956 license plate, and where the owner of such vehicle is a resident of another Georgia county, and where such delinquent owner has not paid his 1955 ad valorem property taxes on such vehicle, and, therefore, cannot sign the affidavit as to the payment of taxes.
Georgia Code Section 68-201 provides that on and after the second day of

482
April in each year, the Georgia resident owner of any vehicle who shall have failed to have obtained a Georgia license plate for the current year is delinquent under the law, and any voluntary or involuntary registration of such vehicle on or after that date shall (in addition to the regular license fee provided by law) be subject to a penalty of 20 per cent of the registration charge for licensing such vehicle, plus an additional $1.00 for the endorsement of the apprehending officer on such delinquent application. A nonresident owner of a vehicle bearing an out-of-State tag for the year 1955 (or prior thereto), would also be delinquent under this statute if in use in Georgia after April 1, 1956.
The regulations of the Commissioner of Revenue, promulgated on December 1, 1955, pursuant to the motor vehicle statutes of Georgia, provide that all owners of vehicles in the county of the residence of the owner. This is consistent with the 1955 Act (Ga. Laws 1955, p. 657) providing for sale of license plates at the county level by the Tax Collector or other qualified county officer duly appointed by the Commissioner of Revenue to perform this duty as Agent, and with the 1955 Act (Ga. Laws 1955, p. 639) requiring all applicants for tags to make a sworn affidavit as to the payment of all the prior year's taxes on such vehicles in the county and city of his residence.
The last paragraph of Section 68-214, Ga. Code Ann. (p. 12 of Motor Vehicle Laws Booklet, issued January 1, 1956) requires that any vehicle bearing a delinquent tag "shall be stored at the owner's risk and expense by any law enforcing officer of the State of Georgia"-until a license plate is obtained. Prior to 1956, all license plates were, of course, obtained at the State Capitol, and such delinquent vehicles had to be held by the enforcement officer until a current tag was obtained at the State Capitol by mail or otherwise.
Therefore, in any case in which a Georgia owner of a motor vehicle bearing delinquent license plates is apprehended in a county other than that of the owner's residence, it is my opinion that such owner may not obtain a Georgia license plate from the County Tag Agent in the county of apprehension. He must order or otherwise obtain his tag from his home county, while his vehicle is being held by the apprehending officer. I feel that the above-cited two 1955 Acts require that the affidavit as to payment of ad valorem property taxes for the prior year must be made to the County Tag Agent of his home residence, and that the County Agents may issue tags only to residents of the Agent's home county.
Moreover, the State Revenue Commissioner has the authority to provide a prefix number or other designation on license plates in accordance with the population of counties so as to distinguish our license tags according to the county residence of the owner thereof. There is, I understand, much encouragement from throughout the State that this be done. If this is done next year or in the future, it is an additional reason why the issuance of tags must be confined to the county of the residence of the owners of vehicles.
In any event, such delinquent owner may not obtain a license plate for such delinquent vehicle unless and until he can make the proper affidavit required by law as to the payment of all the prior year's ad valorem property taxes owed by him on that vehicle or other vehicle or vehicles as may have been owned by him on January 1 of the prior year.

483
MOTOR VEHICLE-License Tags-Rates (Unofficial)
Vehicle used by Contractor with Government to transport mail subject to "for hire" license rate.
February 26, 1954
Honorable W. L. Joiner
In response to your request for information relative to the licensing of vehicles for hire, please be informed that my unofficial opinion is as follows:
First, you state that the particular problem involved concerns a party who had proctired a contract with the Government to haul mail between certain designated post offices by truck, and that as a part of this job it is occasionally necessary for the operator to sort the mail for the different post offices to which delivery is to be made. Your question is whether or not this operation is subject to the "for hire" license rate, apparently having reference to that part of the Act of 1938 found in the Code Annotated Supplement as Section 92-2902 (10).
In the case of Railway Express Agency v. Cook, Revenue Commissioner, 198 Ga. 715, the question for determination was whether the Railway Express Company was subject to the "for hire" license rates for their trucks which were used in picking up and delivering freight and carrying it to or from the terminal station. The company contended that this service was rendered free to their patrons and was merely incidental to the main job in carrying the freight between railway terminals, because no difference in charge was made between those patrons requesting the pick-up and delivery service and those patrons who merely delivered to or picked up their freight from the company's main office at the terminal station. In rejecting this reasoning, and holding that the company was subject to the "for hire" rates, the court stated as follows:
"If the transportation is a part of an undertaking on the part of the carrier, for which there is a valid consideration, it will be a carriage for hire, although it is agreed that, in connection with the general advantage resulting to the carrier from the entire transaction, this particular part of the service is to be rendered without charge.... The rule we have stated might well be different were the service here involved one which did not constitute a direct ingredient of the particular business in which the common carrier is engaged, that is, the transportation of freight. Where the delivery of goods is purely incidental to an altogether different and independent business such as delivery by a merchant of goods sold to a customer, it might well be reasoned that in such cases the truck making the delivery was a private truck and the merchant in making the delivery was not a 'common or contract carrier for hire. (Citations)"' (Emphasis ours.) A somewhat similar case is the Florida case of Travis v. Fry, 190 So. 793, 795, 139 Fla. 522, where defendant was in the business of disconnecting and removing power transformers from their foundations and transporting them to other substations of the power company. It was uncontroverted that the principal part of this work was a technical skill and knowledge necessary for disconnecting the transformer from the line, hooking it and removing it from its foundation. The Florida court held that notwithstanding that the transporting was incidental to the main job, the defendant was still in the business of transporting "for hire."
I, therefore, conclude that the mail carrier involved in your problem is subject to the "for hire" license rates.

484
MOTOR VEHICLES-License Tags-Reciprocity (Unofficial) (1) Reciprocity laws pertaining to license tags for trucks quoted. (2) Motor trucks employed by a person for transportation of merchan-
dise in the conduct of his own business, and not for hire, are not required to be registered with Georgia Public Service Commission.
February 25, 1955
Stokely-Van Camp, Inc. Reference is made to your letter of Ferbuary 23, 1955 regarding registration
of motor trucks and more particularly the question of reciprocity. Motor trucks employed by a person, firm or corporation for the transportation
of merchandise in the conduct of his or its own business, and not for hire, are not subject to or required to be registered with the Georgia Public Service Commission.
Trucks from other states are granted reciprocity so far as license tags are concerned where trucks from this state are afforded like treatment. There is, however, a requirement that owners and operators of unregistered trucks obtain a permit and obtain an identification tag. (Georgia Code Annotated, Section 68-228.)
Moreover, it is provided that trucks registered in and operating from a state which imposes upon motor trucks registered in this state a tax, fee or toll for .the privilege of using the highways of such state, etc., shall pay a fee of $10.00 for every trip into the state. (Georgia Code Annotated, Section 68-229.)
MOTOR VEHICLES-License Tags-School Buses A bus which is used exclusively for the transportation of pupils to and
from school, is entitled to a school bus tag.
September 24, 1956
Honorable T. V. Williams State Revenue Commissioner
You ask in your letter whether a public utility which owns and operates several buses exclusively for the purpose of transporting school children to and from the public schools, where each child pays an individual charge, is entitled to purchase a "school bus" motor vehicle license tag for such vehicles. As I understand your question, such buses are not used during the entire calendar year for any purpose other than the transportation of school children-that is, the only use of such buses during the entire calendar year is to transport children to school during the school year.
You ask that I review my opinion of April 13, 1950 in which I held that a vehicle, in order to qualify for a school bus license tag, must either be (1) owned by school authorities and used exclusively for transportation of school children, or (2) owned by a private party who operates under a contract with the school authorities whereby he is compensated by the county school officials.
Under this opinion, a public utility, which had no contract with school officials, but which charged each student on an individual basis, would not be authorized to purchase a school bus tag for such vehicle.
However, the Court of Appeals of Georgia, in a decision rendered subsequent to that opinion (i.e., Dishinger v. Suburban Coach Company et al, 84 Ga. App. 498), considered the proper definition of a "school bus" in connection with a tort case. In effect, the Court of Appeals held that where a vehicle is being used to transport school children, and regardless of ownership of the vehicle and regardless of how

485
the owner is compensated, that vehicle is a "school bus" within the meaning of Georgia Code Section 68-311, which requires school buses to be plainly marked. The effect of this ruling, in my opinion, makes the classific.ation of a vehicle dependent upon its use, rather than upon the method by which the owner is compensated for use, or the ownership of the vehicle.
Also, the General Assembly, in the Uniform Act Regulating Traffic on Highways (Ga. Laws 1953, Nov. Sess., pp. 556, 557), as codified in Georgia Code Annotated, Section 68-1502 (1) (f), defines a "school bus" as follows:
"School bus. Every motor vehicle owned by a public or governmental agency and operated for the transportation of children to or from school or privately owned and operated for compensation for the transportation of children to or from school."
That same act further provides that a school bus shall be clearly marked. Code Section 68-1667 (b).
It is apparent that both the Court of Appeals and the General Assembly feel that the use must control in the classification of a vehicle.
While the decision and the act cited above do not directly concern the licensing of vehicles, it is felt that for our purpose they are sufficient to allow you to issue a school bus tag to the public utility which has applied for such a tag. It is suggested that before issuance of such a tag, you require the applicant to show compliance with the Code Sections requiring the marking of school buses, and with all regulations governing school buses which have been issued by the State Board of Education and the Department of Public Safety.
This opinion is confined to those vehicles which are not used at any time during the calendar year for any purpose other than the transportation of school children; a vehicle used for other purposes in addition to use as a school bus would not be classed as a "school bus" under the motor vehicle licensing laws.

MOTOR VEHICLES-Motor Scooters (Unofficial)
A motor scooter is a motor vehicle which must be licensed before operation in Georgia, and the operator of a motor vehicle is subject to the same rules as drivers of automobiles.

Mr. Foy Evans

October 24, 1956

You state:

"Will you please advise me what, under Georgia law, is the status of

motor scooters?

"Are they legally 'motor driven vehicles'? Are the drivers subject to

the same rules as drivers of automobiles?

"Must drivers of motor scooters have driver's licenses? Must motor

scooters have tags? "What is the minimum age a person can legally drive a motor

scooter?"

Georgia Code Section 68-201 requires that all motor vehicles and motorcycles be licensed before operation in Georgia. In my opinion a motor scooter is such a

motor vehicle which should be licensed under the provisions of Title 68 of the

Georgia Code, and further, the operator of such a vehicle must have obtained the

proper license from the Department of Public Safety.

486
MOTOR VEHICLES-Registration-Who is Entitled to Register Automobile (Unofficial) The holder of a conditional sales contract on an automobile who repos. sesses the automobile is entitled to register the automobile in Georgia.
August 7, 1956
Mr. Cubbedge Snow You ask if a finance company or other holder of a conditional sales contract
on an automobile may obtain a Georgia license registration tag for the vehicle after it has repossessed the vehicle upon the default in payments by the purchaser.
The answer to your question is found in paragraphs 14, 15 and 19 of the Regulations of the State Revenue Commissioner promulgated December 1, 1955. (Seep. 35-40 of booklet of License Laws and Regulations.) Paragraph 14 makes it the duty of the Agent of the Commissioner to sell a license to any Georgia resident who can establish ownership of the vehicle. Paragraph 15 defines an "owner" as any "person, firm, corporation or association holding title to a vehicle."
There seems to be little question that a seller who reserves title in the personalty to himself, and who later repossesses the property, is an "owner" within the meaning of the above definition. See Enterprise Distributing Corp. v. Zalkin, 154 Ga. 97. He does not have to be the "purchaser" at a judicial sale in order to be the bona fide owner of such repossessed vehicle.
If such owner of a repossessed vehicle is a resident of Georgia, he may register said repossessed vehicle in Georgia and obtain a Georgia license plate.
Paragraph 19 of the Regulations states that an owner-applicant for registration of a vehicle purchased after January 1, may obtain a Georgia license tag without swearing that the prior year's ad valorem taxes on the repossessed vehicle have been paid. That is, payment of the prior year's ad valorem personal property taxes is not a prerequisite to registration of a vehicle for the current year if the applicant for registration was not the owner on January 1 of the prior year. The applicant must, of course, swear that he has paid the ad valorem taxes on all vehicles that he did in fact own on January 1 of the prior year, and, in any event; the lien for taxes against the repossessed vehicle would follow the vehicle.
The location of the vehicle at the time of repossession or application, whether within or without the State, would not affect the above conclusions. Furthermore, it is essential that the applicant for the license be a Georgia resident where such vehicle is not located in this state at the time of application.
MOTOR VEHICLES-Registration-Change of (Unofficial) A change of registration of motor vehicle can be accomplished only by a
payment of fee of 50 cents. This is true, even though there is no actual change of ownership of the vehicle, but merely a change in the name of the owner.
December 18, 1956
Mr. Sol D. Kapelsohn You ask the following questions: "Question No. 1: Corporations 'A' and 'B' are corporations of your State. Corporation 'C' is a foreign corporation authorized to do business in your State. Corporation 'D' is a foreign corporation not authorized to do business in your state. All four corporations own motor vehiclEliS reg-

487
istered and licensed in their respective names by your State. A merger of all four corporations is effected under which the name thereafter used is that of corporation 'A'. In correcting the motor vehicle registrations, are the forms and fees which are required those applicable to a sale or transfer of ownership, or are they those applicable to a mere change of name?
"Question No. 2: Will the answer to Question No. 1 be different if upon the merger, the name thereafter to be used was that of corporation 'C'?" Putting aside the legal questions arising out of the ownership of property formerly held by a merged corporation which has lost its corporate identity, it is the opinion of the writer that if a change of name of motor vehicle registration is to be made, it can only be done by proper application and payment of the 50 cent fee. This conclusion is based upon the language of Georgia Code, Section 68-214. While it is true that there might not have been a "sale or exchange" of a motor vehicle as is stated in the Act, it is the opinion of the writer that the Commissioner could consider the change of name as being in the nature of a "sale or exchange" for the purpose of issuing a new registration certificate in the name of the surviving corporation. The question of whether there has been a change in title where there has been a corporate merger has been deliberately ignored on the basis that the Commissioner can only take such actions as are authorized by statute. As you can see from the enclosed booklet, the Commissioner would have no authority to make a change in registration without payment of the required fee. This fee is intended merely to cover the cost involved in making such a change, and is in no wise intended to be a tax. Following the logic set forth in the above paragraph, the conclusion is reached that where the surviving corporation has the same name as that originally shown upon the registration certificate there would be no need for a change in registration, and it is felt that the original registration certificate would be sufficient.
MUNICIPAL CORPORATIONS-Creation (Unofficial) (a) A municipality may be created without a vote of the people. (b) The act creating a municipality may also designate the municipal
officials. (c) No particular area is needed for a municipality. (d) A charter of a municipality may be revoked by the Legislature. (e) There is no minimum population necessary to establish a munici-
pality.
September 4. 1956
Honorable W. C. "Bill" Parker You ask several questions relative to legislation affecting municipal
corporations. I will deal with each question in order. 1. Can a new town or city be created in a County by an act of the Legislature
without a vote of the people, and if any vote is required, is this only the vote of the people within the area to be incorporated or do the voters of the County as a whole vote on whether or not such a new town or city be created ?-A municipality may be created by an Act without the vote of the people. In the event a referendum provision is desired, normally only the vote of the people within the area to hP. incorporated is used. I am of the personal view, however, that there is no lee:al

488
prohibition against requiring in the referendum provision itself a vote of the people of the county as well.
2. In the event that such a new town is created or incorporated by an act of the Legislature, can said act also include appontment of the governing body of said town, and the creation of a police force for said town? and courts ?-Yes.
3. Does the area to be incorporated into a town have to be of any particular size or acreage, or can a very small area be thus incorporated ?-No particular area is necessary.
4. Once incorporated, could a subsequent Legislature revoke the charter of such town? If so, would there be any vote on this question by the people of said town or would there be a vote by the people of the County as a whole?-A subsequent Legislature could revoke the charter of a town, although a point could be involved which might possibly cause court suits, namely, in the event the town had contracts with various parties. This is a point upon which I have done no research, but have thought about it on various occasions. It could be possible that the court might declare such an Act unconstitutional upon the basis that it was legislation impairing the obligation of existing contracts. On the other hand, the court might very well say that any person contracting with a municipality does so with the knowledge that the Legislature might revoke the municipal charter at any time, and consequently, the impairment provision would not apply. With regard to the second portion of this question, there could be a vote of the people, and I refer you to Chapter 69-1 of the Annotated Code of Georgia and the Pocket Part thereto.
5. Is there any regulation concerning the minimum number of people who must reside within an area before the area can be incorporated ?-There is no statute concerning the number of people.
MUNICIPAL CORPORATIONS-Home Rule (Unofficial) Constitutional provisions pertaining to home rule are permissive in nature,
and require affrmative enabling legislation.
November 23, 1954
Mr. H. S. Peters
This will acknowledge receipt of your letter which you request information regarding the effective date of Home Rule legislation.
The constitutional amendment ratified at the November General Election, relative to Home Rule, is permissive in nature and it will be necessary that the General Assembly enact enabling legislation before it will be effective. Of course, it is not mandatory that the General Assembly enact such legislation, either at the next session or, for that matter, at any session. The General Assembly has complete discretion as regards this matter.

489
MUNICIPAL CORPORATIONS-Powers-Businesses (Unofficial) Municipality cami.ot, even with approval by referendum election, construct
a building for rental to a private industry as municipalities have no authority to enter into business.
January 17, 1955
Honorable D. W. Thompson You ask whether an amendment could be made to the cha~ter of the City of
Lyons to provide for an election by the voters of that City for approval or disapproval of the city constructing a building for rental to an industry in Lyons. You state that the present plans contemplate the construction costs being paid for over a period of twenty years from rental revenue, and that the city would have a twenty-year lease from the owners of the industry to assure that the building would be occupied for the full time.
It is my view that your question must be answered in the negative, and I believe you will find this matter is controlled by the decision handed down by the Supreme Court of Georgia in the case of Beazley v. DeKalb County, 210 Ga. 41.
MUNICIPAL CORPORATIONS-Powers-Courts (Unofficial) A Mayor's Court may try traffic offenders in any county where there
is no City or County Court.
July 29, 1954
Honorable Roy B. Barton, Mayor Reference is made to your question of your authority to try persons accused
of operating automobiles while under the influence of intoxicating liquors or drugs. To begin with, you have the authority to try persons for offenses against
ordinances of the city and to impose sentences therefor as set out in your city charter. See Acts of 1913, page 728, et seq. In addition, you have the authority to try persons for violations of the penal provisions of Title 92A of the Georgia Code provided there is no City Court or County Court having jurisdiction thereof in your county.
In this connection I suggest that you consider the provisions of Section 92A-503 and 92A-504 of the Georgia Code Annotated. They read as follows:
"92A-503. Jurisdiction of municipal and police courts.-All municipal and police courts shall have jurisdiction to dispose of misdemeanor cases as provided by this Chapter which arise within the territorial limits of their respective jurisdictions, as now or hereafter fixed by law. The term 'police courts' shall be construed to include mayor's courts or recorder's courts, or like municipal courts by whatever names called."
"92A-504. Waiver of jury trial necessary.-No court defined in this Chapter shall have the power to dispose of misdemeanor cases as herein provided, except the defendant shall first waive in writing a trial by jury. If defendant shall wish a trial by jury, he shall notify the court, and if reasonable cause exists he shall be immediately bound over to the court in such county having jurisdiction to try the offense wherein a jury may be impaneled." As to forms and a docket which you might require, it does not occur to me that you would need anything except a form of a "Copy of Charges" for the use

490
of the police officer and a simple docket in which was recorded the name of the accused, the charge made against him and the disposition of the case.
MUNICIPAL CORPORATIONS-Powers-Eminent Domain (Unofficial) Authority of City of East Point to condemn land outside corporate
limits and in adjoining cm;mty.
June 29, 1955
Mr. A. G. Meadows, Chairman Board of Commissioners of Roads and Revenues Douglas County
I am pleased to acknowledge your letter of June 14, 1955 relative to the legality of a municipal government located in another county going into an adjoining county and condemning and buying land for the purpose of impending water for the use of a municipal water system.
I assume you have reference to the City of East Point exercising such powers and, therefore, your attention is called to Section 71 of the Georgia Laws of 1912 which gives the City of East Point the following powers of eminent domain:
"Sec. 71. Be it further enacted that the City of East Point is hereby granted power of eminent domain, and the city council are hereby authorized and empowered to condemn lands within or without its corporate limits for the erection of public buildings for said city, for public parks, water supply, sewers, septic tanks, crematories, farms for handling and disposing of sewerage, and for all other public purposes and improvements, such condemnation to be made as provided by the Act of the General Assembly providing a uniform method of exercising the right of condemning, taking or damaging private property, approved December 18, 1894, as found in Sections 4657 to 4686 inclusive, of Volume 2 of the Code of Georgia of 1895 and the Acts of the Legislature, amendatory thereof; and they are also authorized similarly to take and condemn personal property in the same manner when needed for public purposes of the city." This authority is cited to you only as information and is not to be considered an opinion either official or unofficial.
MUNICIPAL CORPORATIONS-Powers-Police (Unofficial) A city policeman may not arrest one for a violation of city ordinances
when he is outside the city limits.
July 9, 1954
Honorable P. L. Youmans Reference is made to your question as to whether a city policeman may
follow and arrest a motorist for violation of a city ordinance after he has crossed the city limits.
My own thinking is that a city policeman may not properly arrest a motorist for the violation of a city ordinance after he has crossed the city limits and is no longer within the boundaries of the municipality. My reasons are that the officer, once he is outside his jurisdiction, has no more or less authority to make arrests than a private citizen would have and, although a private citizen can make arrests

491
for violations of State laws under some circumstances (Ga. Code Ann., Sec. 27-211), he may not make arrests for violations of city ordinances. In this connection see Blair v. State, 90 Ga. 326, at page 330, and Graham v. State, 143 Ga. 440, at page 444.
In the Blair case Judge Bleckley said, in part: "On the trial of the present case in the court below the policeman
alleged to have been assaulted should have been treated simply as a private citizen with reference to his power of making arrests on territory adjacent to the city." In the Graham case Judge Lumpkin said, also in part:
"The authority of a private person to arrest is more limited than that
of an officer * * * Statutes allowing arrests by private individuals when
not called upon by proper authority to act, should be strictly rather than liberally construed, as in derogation of the common law protecting the liberty of the citizen. The Code section last above quoted was dealing with offenses amounting to a misdemeanor or felony and not with infrac-
tions of municipal ordinances as such. * * *"
Realizing the importance of the question to city police officers, I took the liberty of holding your inquiry until I could complete a rather thorough search of the authorities. I had hoped to find basis for contrary position but I have not been able to do so.
MUNICIPAL CORPORATIONS-Public Revenue-Debt (Unofficial)
In municipal elections to incur debt, approval of majority of qualified voters participating in election is required to incur debt rather than approval of majol'ity of all qualified voters.
April 21, 1955
Honorable Raymonde Stapleton I am pleased to acknowledge your request concerning the construction to be
given Article VII, Section VII, Paragraph I of the Georgia Constitution of 1945 (Code 2-6001) and Go. Code Ann., Chapter 87-6 as to a municipal election to incur an indebtedness.
The answer is found in the case of McKnight v. City of Decatur, 200 Ga. 611, 613, 618, and 619, which provides asfollows:
"The intervenor objected further upon the ground that none of the bonds received the necessary vote, even under the terms of the revised Constitution, to-wit, 'without the assent of a majority of the qualified voters of the county, municipality, or other political subdivision voting in an election for that purpose to be held as prescribed by law.' Art. 7, Sec. 7, Par. 1 (Ga. L. 1945, p. 69). This contention calls for a construction of the quoted clause as applied to the facts.
*
"As we have seen, each of the proposed bond issues was approved by a majority of those who voted, but not by a majority of all of the qualified voters of the municipality; nor did a majority of all such voters participate in the election, as to any of the proposed issues.
*
"While an intent to change the existing law is not to be lightly inferred, yet the provision here makes a radical change in the constitutional

492
law, and we think that it plainly means .only a majority of the qualified voters who actually vote in the election....
* * *
"The third and final objection was, that the provision of the revised Constitution as to incurring debts by a municipality is not self-executing, and that since the General Assembly has passed no enabling act .putting this provision into operation, the City of Decatur could not issue these bonds. There is no merit in this contention. The Constitution of 1877 used the words, 'at an election for that purpose, to be held as may be prescribed by law,' while the language in the present Constitution provides, 'in an election for that purpose to be held as prescribed by law.' It took an enabling act for the Constitution of 1877. Hudson v. Marietta, 64 Ga. 287. But such an act was passed in 1879. Elliott v. Gammon, 76 Ga. 766; Ga. L. 1878-79, p. 40. This statute, only slightly changed, now appears in the present Code as 87-201 et seq., the changes having been made after the constitutional amendment of 1918, and apparently having been inserted by the codifiers, to conform to that amendment....
* * *
"...,we hold. that the statute providing for such elections must still be given effect, subject to the change as made by the revised Constitution in reference to the proportion of qualified voters necessary to authorize a bond issue; and that no further enabling act was necessary...."

MUNICIPAL CORPORATIONS-Public Revenue-Debt (Unofficial)
City governing authorities cannot obligate the city for equipment in an amount in excess of their annual anticipated revenue.

May 11, 1955

Honorable Zack Arnold Secretary, Georgia Municipal Association

You request an unofficial opinion on the question, "Can the Mayor and Council obligate the City for equipment .such as tractors, street grade~s, fire en-

gines, etc., in an amount in excess of their annual anticipated revenue frqm ad

valorem taxes and business licenses?"

.



Code Section 2-6001 provides, in part:

".. and no such county, municipality or division shall incur any new debt except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one-fifth of one percentum of the assessed value of the taxable property therein, without the assent of a majority of the qualified voters of the county, municipality or other political subdivision

voting in an election for that purpose to be held as prescribed by law ..."

In the case of the Town of Wadley v. Lancaster, 124 Ga. 354, headnote 1, the Court said:

"1. Under the Constitution of 1877, a municipal corporation can not lawfully purchase a fire-engine and apparatus and give negotiable promissory notes therefor, payable annually "through a series of years; nor can a resolution passed at a mass meeting of citizens authorize such contract."

493
In the case of State Ports Authority v. Arnall, 201 Ga. 713, at page 725, the Court in citing Renfroe v. Atlanta, 140 Ga. 81, said:
"We know of no law which authorizes a city council to pledge the good faith of the city for the payment of money in future years, any more than to mortgage the city hall for the same purpose. The city's good faith is a great asset, and no council has the right to pledge it to evade the Constitution. Certainly no council has the right to admit that it can not bind future councils, and yet to fix payments for future councils to make, and so arrange the contract that, if the future councils do not make the payments, moral and pecuniary loss will automatically fail upon the city, a~d it will be put to serious inconvenience." In view of the Constitutional provision and the cases cited, I am of the opinion that the question youask must be answered in the negative.
MUNICIPALITIES-Public Revenue-Licenses (Unofficial) (1) Licensing power of municipality is granted by charter creating it. (2) Amount of license fees or taxes a municipality may levy on a par-
ticular business is not r.egulated by statute, but Appellate Courts have ruled that a municipal tax on an occupation must be reasonable.
April 21, 1955
Mr. Kenneth I. Franks You request reference to the general statutes of the State of Georgia which
authorize municipalities to impose license fees, such as outlined in your letter, and also any statutory limitations that may be imposed upon the licensing power of municipalities.
The licensing power of a municipality is granted to the municipality in the charter creating it. All of the municipalities are chartered by an Act of the General Assembly. Charters of the municipalities vary, however, all contain provisions giving the incorporated city the right to levy taxes and collect license fees for business occupations.
There is no section in our Georgia Code relative to the amount of the license fees or taxes which may be collected in any particular business. However, our appellate courts have held that a municipal tax on an occupation must be reasonable. Atlantic Postal Telegraph-Cable Co. v. Mayor and Aldermen of Savannah et al, 133 Ga. 66. Our appellate courts have also held that the party attacking the license ordinance as unreasonable must prove his contention. Our Court of Appeals has held that reasonableness of the occupation tax is not dependent on the amount of business conducted or profit received by a particular individual but is determined by conditions in the municipality as a whole as justifying the tax on the business or occupation in question. Wright v. City of Atlanta, 50 Ga. App. 244.
MUNICIPAL CORPORATIONS-Public Revenue-Licenses (Unofficial) Any differences in license rates imposed by a municipality must be
based on a reasonable classification.
December 8, 1955
Honorable Clarence D. Blount I wish to acknowledge receipt of your letter of December 6, 1955 in which you
propound the question as to whether or not a municipality can legally issue a

494
retail liquor license to a club and charge $250 per year for such license and at the same time issue a retail liquor license to a private individual retailer and charge $500 per year for such license.
Code Section 58-1032 provides that the annual license fees charged by a municipality to a retailer shall not be less than $250. Code Section 58-1071 is as follows:
"There shall be no exception from the permit fees, license fees, and/or tax as provided by this Chapter in favor of any person whatsoever." In addition to the above-quoted section, which is a part of the Act to Legalize and Control the Sale of Alcoholic Beverages and Liquors, I would like to call your attention to the case of City of Douglas v. South Georgia Grocery Co., 180 Ga. 519 and the cases cited therein. Also the case of the City of Newnan et al v. Atlanta Laundries, Inc., 174 Ga. 99, headnote 5. These cases, in my opinion, lay down the rules which municipalities must follow in levying municipal licenses.

MUNICIPAL CORPORATIONS-Public Revenue-Licenses (Unofficial) A municipality may impose a license fee on a Building and Loan Assn.

August 6, 1956

Mr. Clyde Short

You state: "The City of Commerce, Georgia has a section in. its ordinance requir-
ing a special license on a Building and Loan Association of $50.00. "We have a Commerce Building and Loan Association in Commerce
and they say they are not supposed to pay a special license. "The Mayor and City Council instructed me to write you and get your
opinion."

It appears to me that the Supreme Court has answered your question in City of Atlanta v. First Federal Savings & Loan Association, 209 Ga. 517 (1), wherein it was said:

"The Act of the General Assembly (Ga. Laws Ex. Sess. 1937-38, pp.

307, 317; Code, Ann. Supp., 16-427), providing for building and loan or

savings and loan associations and their exemption from taxation, does not

prohibit the levying and collection by a city of a license fee."

The Court in this case also stated:

"While the trial judge properly followed the ruling of the majority

opinion in City of Griffin v. First Federal Savings & Loan Assn., 80 Ga.

App. 217 (55 S. E. 26, 771), where the identical question was held contrary

to what is here ruled, yet the ruling made in that case must yield."

;; ..,~... .. -"-"'-""'..:.~J:ii:-~::.:;.;__;;;:C' ,;: ,>,'

':'J,:~~i;ti~~~

MUNICIPAL CORPORATIONS-Public Revenue-Taxation A business located upon the property of a State Farmers' Market is
exempt from municipal taxation and regulation.
February 4. 1955
Honorable Phil Campbell . Commissioner of Agriculture
This letter is written in reply to the question raised in the letter to you from

495
Alex B. Cameron, City Clerk, City of Macon, Georgia, concerning the imposition of a municipal tax on businesses operating on State Farmers Markets.
The question of whether or not a municipality may impose a license upon a business being conducted on any State Farmers Market is decided by Section 5-209, Georgia Code Ann., which reads as follows:
"The Commissioner of Agriculture shall have authority, when a site has been acquired by purchase, lease, rent, gift, or otherwise, to establish thereon a farmers market, independent of and without the necessity of securing any permit from any municipality in which a site or sites may be located." [Editor's Note: See Ga. Laws, 1957, p. 607.]
This precise question arose in the case of Newton et al v. City of Atlanta et al, 189 Ga. 441. This case held that the activities of the Commissioner of Agriculture pursuant to the act of February 25, 1935 (Ga. Laws 1935, p. 369; Code 5-208, 5-223) in creating or operating a State Farmers Market, are State governmental functions. The case further held that as a general rule, public property and the instrumentalities of government are freed from taxation, and municipalities can not tax a property or instrumentality of the State, used in the exercise of its governmental functions, in the absence of express legislative authority. Such immunity will extend beyond State-owned businesses and instrumentalities to those owned or operated by others on State-owned or State-controlled property for private gain, but for the performance of a governmental function authorized by statute, and in accordance with the rules and regulations imposed by the State authority, since the acts of the municipality against such a business or instrumentality might threaten by taxation to impair the functions of the State which are thus performed.
It is therefore established beyond any question that no municipality may impose a license upon any business being operated upon a State Farmers Market where such business is being operated pursuant to the regulations issued by the Commissioner of Agriculture in accordance with the act of February 25, 1935 (Ga. Laws 1935, p. 369).
A new question is presented, however, when a person operating a business upon a State Farmers Market leaves the market and goes into town and solicits orders and makes deliveries from the market. This precise point has never been litigated up to the present time; however, a reading of the statute which authorizes the Commissioner of Agriculture to operate State Markets does not reveal any authority to grant an immunity to persons leaving the State Market and doing business in the city.
I am of the opinion that if the Legislature had intended to grant any such special immunity they would have expressly provided for it; and in the absence of any express legislative authority, the municipality may legally impose a license upon any person who conducts a business in the municipality even though his base of operations may be a State Farmers Market.
This problem is further complicated by Code Section 92-4105 (Ga. Code Ann.), which reads as follows:
"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."
It is entirely possible that under this statute a person doing business on a State Farmers Market might be able to solicit orders and make deliveries without being subject to a municipal tax. However, such immunity in that situation

496
would flow from Code Section 92-4105 rather than from the authority vested in the Commissioner of Agriculture to operate State Farmers Markets.
This problem is further complicated by the following law. Section 5-603 of the Georgia Code Annotated is as follows:
"No municipal corporation shalllevyor assess a tax on cotton or the sales thereof, nor levy or asses a tax on any agricultural products raised in this State, or the sales thereof (other than cotton), until after the expiration of three months from the time of their introduction into said corporations." Section 84-2001, Georgia Code Annotated, reads as follows:
"Every peddler or itinerant trader, by sample or otherwise, shall apply to the ordinary of ea~h county where he may desire to trade, for a license, which shall be granted to him on the terms said ordinary may impose. The ordinaries are authorized to impose such tax as they may deem advisable, to be used for county purposes. The license shall extend only to the limits of the county."
However, agricultural products were exempted from the license provided for in Section 84-2001 by Section 84-2010 of the Georgia Code Annotated.
Section 5-606 of the Georgia Code Annotated, Cumulative Supplement, pro~ vides that with certain exceptions, agricultural products in Georgia shall be exempted from taxes and licenses.
In an opinion dated February 11, 1953, reported on page 449, Opinions' of the Attorney General, 1952-53, the Attorney General held that purchasers of products or other direct farm products who sell such products directly to the consumer are not required to pay city, county or State occupational or peddlers' licenses.
From a consideration of the above cited Code Sections, it will be readily seen that there are instances when a business could be operated from a State Farmers Market and solicit orders in adjacent municipality and make deliveries from the market and not be subject to any business license, provided, of course, the product sold was an agricultural product and came within the above cited Code Sections. Of course, a business that did not involve agricultural products would not be entitled to exemption from the municipal license.
To recapitulate, I am of the opinion that a business operated upon the property of a State Farmers Market is exempted from municipal taxation and regulations of any kind except, of course, certain regulations as to police, fire and health. I am also of the opinion that anyone operating a business on a State Farmers Market who leaves the market and solicits orders and makes deliveries in the adjacent municipality would be subject to municipal license laws unless they are exempted under one of the statutes exempting agricultural products.
MUNICIPAL CORPORATIONS-Public Revenue-Use of (Unofficial) The General Assembly may not authorize a municipal corporation to
provide a group insurance plan to its employees free of charge, as such would be an illegal use of public revenue.
September 30, 1955
Honorable Zack Arnold, Secretary Georgia Municipal Association
Y~u request an unofficial opinion on the question of whether a city, under proper charter powers granted by the Legislature, could purchase and pay for

497
group insurance for its employees. I have Elxamined the authorities cited in your previous correspondence, to-wit: City of Macon v. Benson, 175 Ga. 502; West v. Trotzier, 185 Ga. 794 (which is a re-hearing of the case of Trotzier v. McElroy, 182 Ga. 719); Cole, Clerk v. Foster et al, 207 Ga. 416; and City of Atlanta v. Pickens, 176 Ga. 833.
Macon v. Benson, supra, involved the constitutionality of the Georgia Workmen's Compensation Law, as did Atlanta v. Pickens. The West v. Trotzier case involved the constitutionality of an Act approved March 28, 1935, amending an Act approved August 13, 1924, commonly referred to as the Atlanta Firemen's Pension Act, and the Cole v. Foster case involved the constitutionality of the Peace Officers Annuity and Benefit Fund Act.
In Foster v. Cole the Supreme Court held that the Peace Officers Act did not violate Article VII, Section V of the Constitution of Georgia for the reason that the court did not construe' the $1.00 assessment of all fines and bond forfeitures to be a tax. The, court, at page 419, said:
"We do not construe the $1.00 to be a tax. Fines and bond forfeitures and the disposition thereof are proper subject matters of legislation. An act allocating a portion of a fine or forfeiture is neither in violation of Article 7, Section 2, Paragraph 1 of the Constitution, as seeking to impose an unauthorized tax, nor violative of Article 7, Section 5, Paragraph 1, as being an appropriation of money." The Court then went on to say (p. 420):
"The provisions of Section 9 of the Act, reqmrmg that peace officers pay a defined monthly sum into the fund, create a contractual relation, and the disability and retirement pay provided therein is not a gratuity but is adjusted compensation for services rendered." (Citing Trotzier v. McElroy, 182 Ga. 719). In the Trotzier case the Court held (182 Ga. at p. 724):
"The creation of the pension fund was intended for the protection of disabled firemen, and of their families when death resulted from the discharge of their duties, and forms an inducement to qualified persons to become and continue members of the fire department. Each fireman contributes to the fund in the form of annual dues of $8; and this, if for no other reason, vests in him substantial rights of which he cannot be deprived except by due process of law.... We therefore hold that the pension in question is not ... a mere gratuity to be granted or withheld at the whim of the association."
The Court then went on to rule the Act of 1935 reducing the pension from $100 to $75 per month would impair the obligation to pay the pensioner involved in the case. On re-hearing, 185 Ga. 794, the Court went further and ruled the Firemen's Pension Act to be constitutional.
You will note that both the Peace Officers Fund case and the Firemen's Pension Fund case turned on a contractual relationship brought about by contribution to the fund by members thereof. Under your proposed group insurance plan, this element of contractual relationship brought about by contribution is apparently missing.
Little help is found on the question under consideration in the case of Macon v. Benson. Various attacks were made on the constitutionality of the Workmen's Compensation Act in that case and the Court simply held that the Act was not unconstitutional for any of the reasons urged. Again in Atlanta v. Pickens numerous attacks were made on the constitutionality of the Act, the principal attack being "that there is no authority for a municipality in this State to, levy

498
taxes for the payment of Workmen's Compensation, and that an act of the General Assembly which undertakes to require this to be done and to require municipalities to pay compensation to injured workmen is illegal and void and unconstitutional."
In this case Russel, C. J., went at length into a discussion of the constitutional restrictions of the powers of taxation by a county and by a city. He pointed out that the Consitution set out exactly the purposes for which a county could impose taxation and that counties were limited and restricted to those purposes only. He went further to point out that there were no such severe restrictions on cities and that "A city chartered by the State, if empowered by its charter to levy and collect occupational taxes of various kinds, may raise sufficient funds from which may be paid accident insurance."
In this case, the Chief Justice, at page 836, said: "It is provided in Civil Code (1910), sections 864, 865 (now codified as
92-4101 and 92-4102, Code of 1933): 'No municipal corporation shall levy or collect for the ordinary current expenses of said .corporation, except as hereinafter provided, any ad valorem tax upon the property within said corporation, exceeding one half of one per cent upon the value of said property... The term 'ordinary current expense' shall be construed to include all current expenses, excepting only expenditures for education, for paving or macadamizing streets, and for payment of the principal and interest of the public debt, which shall be known as 'extraordinary expenses.' "
"It will be noted from the foregoing that the term 'ordinary current expenses' excepts all expenditures for education, for paving and macadamizing streets, and for payment of the principal and interest of the public debt. These are designated as 'extraordinary expenses.' It is not to be implied from this that any additional tax is necessary to cover current expenses; and so the real question in this case is whether the General Assembly, in the passage of the Workmen's Compensation Act, could properly say that compensation of such employees of the city as the husband of the claimant in the present instance, who might be injured or lose their lives in an everyday occurrence as the repair of the streets of the city, would be a legitimate exercise of the sovereign power of the State. We deem this a matter altogether of legislative discretion. It would seem clear that the municipal duty of keeping its streets and thoroughfares safe by properly repairing and maintaining them would be an ordinary current expense of the city; and until it is shown that one half of one per cent upon the value of the property within the municipality subject to ad valorem taxation is insufficient for the purpose of affording such compensation to the employees of the municipality who may be injured while in its service, the questions is not one for judicial interpretation. This is for the reason that it is a question of municipal government, in which the sovereign State has instructed the municipal corporation to act in a specific manner. Furthermore, it does not appear in this case that the City of Atlanta has availed itself of the privilege granted by its charter to raise additional monies by various business and occupation taxes, which may be devoted to ordinary current expenses. So it is not made to appear that the Workmen's Compensation Act relating to municipalities is unconstitutional so far as it affects the plaintiff in error."
In construing and applying the principles laid down in the Pickens case, it must be kept constantly in mind that the Court in talking about accident insurance

499
was referring to the insurance required by the Workmen's Compensation Act. It was not referring to health and accident and life insurance, as is contemplated under the ordinary group coverage plan. Furthermore, the Court, in discussing "ordinary current expenses" of a municipality was dealing with a liability which the Legislature had imposed on such municipalities. The Legislature, so far, has not seen fit to attempt to impose on municipalities the obligation to provide general group insurance coverage on its employees.
So the question under consideration now resolves itself: Can the Legislature, through charter powers granted to a municipality, authorize such municipality to provide group insurance coverage to its employees out of the public revenue of such municipality? As previously pointed out to you in the unofficial opinion of May 18, 1955, which was withdrawn for further study and consideration, Article VII, Section V of the Constitution of Georgia (Section 2-5801 of the Code) provides that:
"The General Assembly shall not authorize any county, munici:J;>al corporation or political subdivision of this State, through taxation, contribution or otherwise to ... appropriate money to ... any corporation, company, association, institution, or individual except for purely charitable purposes...."
For a city to provide free group insurance coverage for its employees would certainly appear to be an appropriation of money raised through taxation, contribution or otherwise, to individuals not for a purely charitable purpose.
In reaching this conclusion, permit me to point out, as I have done orally before, there is no restriction on the city's employees applying for and obtaining group insurance coverage for themselves. Neither is there any restriction upon the city raising its employees compensation in an amount sufficient to pay for such group coverage. It goes without saying that the city could withhold from the salaries of its employees, who so authorized, the premiums due on such insurance.
MUNICIPAL CORPORATIONS-Public Revenue-Use of (Unofficial) A municipality cannot constitutionally donate tax funds to a Chamber
of Commerce. December 4, 1956
Honorable W. C. Hawkins Honorable J. Henry Howard
You ask advice as to whether or not the City of Sylvania and the County of Screven can make a donation of tax funds to the Chamber of Commerce.
You state that a meeting of the local Bar was unanimous in saying that there was no way the City and County could legally donate tax funds to a Chamber of Commerce and that it occurred to you that probably the State Department of Law may have a different position.
The Supreme Court of Georgia, in the case of Atlanta Chamber of Commerce et al v. McRae, 174 Ga. 590, held that tax funds could not be donated by the County to the Atlanta Chamber of Commerce or the Atlanta Freight Bureau or the Atlanta Convention and Tourist Bureau or the Atlanta Better Business Commission, in that it violated the provisions of Article VII, Section I, Paragraph II of the Constitution of the State of Georgia, which provides:
"The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association." Your local Bar is eminently correct in its advice to you.

500
MUNICIPAL CORPORATION-Public Utilities-Operation Municipally. and county owned gas systems are subject to regulation of
the Public Service Commission when they operate outside their home counties.
March 8, 1956
Honorable Matt L. McWhorter, Chairman Georgia Public Service Commission
This will acknowledge receipt of your letter requesting my opinion on the question as to whether or not a municipal corporation or county which issues revenue anticipation certificates and extends its gas distribution system outside its corporate or county limits, becomes thereby subject to regulation by the Public Service Commission as to activities conducted outside its aforesaid limits.
By the provisions of H. B. No. 455, signed by the Governor on February 17, 1956 (Act No. 100; Ga. Laws 1956, p. 104), all persons or corporations constructing or operating any pipeline or other system for the distribution, transportation or sale of natural gas, are required to first procure a certificate of public convenience and necessity from the Public Service Commission. Provision is made whereby persons or corporations already engaged in such activities on the effective date of the Act are entitled to receive such certificate as a matter of course. (Section 5.)
The provision of this Act relevant to the instant question is Section 12, which provides:
"Notwithstanding the provisions of any statute or ordinance to the contrary, the requirements of this Act for a certificate of public convenience and necessity shall apply to each and every person, firm or corporation, whether public or private, excepting only municipal corporations and counties of.this State." (Emphasis supplied.)
The question thus resolves itself into a determination of whether or not any conflict exists between the above section and certain provisions of the Georgia Constitution, particularly Art. VII, Sec. VII, Par. V (Code An:n., 2-6005), which authorizes municipal corporations, counties and other political subdivisions of the State to issue revenue-anticipation certificates to finance the construction of revenue-producing facilities authorized in the Revenue Certificate Law of 1937, as amended (Code Ann., Supp., Chap. 87-8). Paragraph V provides, inter alia:
"... Provided that after a favorable election has been held as set forth above, if municipalities, counties or other political subdivisions shall purchase, construct, or operate such electric or gas utility plants from the proceeds of said revenue certificates, and extend their services beyond the limits of the county in which the municipality or political subdivision is located, then its services rendered and property located outside said county shall be subject to taxation and regulation as are privately owned and operated utilities/'
In Ga. Pub. Serv. Commission v. City of Albany (1935) 160 Ga. 355, it was expressly decided that a municipality was not subject to regulation by the Public Service Commission. While the opinion does not expressly refer to the question of activities outside the city limits, one of the contentions of the Commissicm was set forth at page 358 of the opinion, viz., "that with reference to municipalities, whether having express charter powers or not, the Public Service Commission has jurisdiction to regulate the rates to be charged customers living beyond the corporate boundaries of the municipality."
The holding in the Albany case, supra, which was then based on statutory

501
interpretation of the laws relating to, the Commission, was later written into the Constitution of 1945 as Art. IV, Sec. I, Par. I (Code Ann., 2-2401), where, after defining the power of the General Assembly to regulate utility rates, it is declared that,
"... Provided, nevertheless, that such power and authority shall never be exercised in any way to regulate or fix charges o:f such public utilties as are or may 'be owned or operated by any county or municipality of this State; except as provided in this Constitution."
It would thus appear that some conflict exists between the provision just quoted and that part of Art. VII, Sec. VII, Par. V, relaing to political subdivisions h;suing revenue-anticipation certificates, quoted at the beginning hereof.
In Mayor & Council of Savannah v. Savannah Electric & Power Co., 205 Ga. 429, 436, the Supreme Court, in quoting from 50 Am. Jur. 371, 367, declared.
"Where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the :former, the particular provision must control, and the general provision must be taken to effect only such cases within its general language as are not within the provisions of the particular provision."
It is uniformly held that special provisions control over general ones which in the absence of the special would control. Missouri v. Poss (1936) 299 U. S. 72, 76, 81 L. Ed. 46, 49, 57 S. Ct. 60; Ginsberg & Sons, Inc. v. Popkin (1932) 285 U. S. 204, 208, 76 L. Ed. 704, 708, 52 S. Ct. 322; Kepner v. United States (1904) 195 U. S. 100, 125, 49 L. Ed. 114, 123, 24 S. Ct. 797.
In the Ginsberg case, supra, it was further said:
"General language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part o:f the same enactment." (Id., p. 208.)
Moreover, in Tyler v. Huiet, 189 Ga. 845, 850, it was held that "It is a wellsettled rule of construction that if there is a conflict between two parts of a single act, the latest in position will be declared to be the law, since it is presumed to be the last expression of the legislative will."
'Vhile the beforegoing are. rules of statutory construction, it should be noted that "in the main, the general principles governing the construction of statutes apply also to.the construction of a constitutional provision." City of Valdosta v. Singleton, 197 Ga. 194, 210.
Based on these considerations, I am of the opinion that insofar as Section 12 of H. B. No. 455 conflicts with the Constitution, Art. VII, Sec. VII, Par. V (Code Ann., 2-6005), the former cannot be given effect. However, since it is held "that every part of a statute must be viewed in connection with the whole, so as to harmonize all its parts if practicable, and give a sensible and intelligent effect to each, for it is not to be presumed that the Legislature intended any part of the statute to be without meaning" (State Revenue Commissioner v. Alexander, 54 Ga. App. 295, 296; State of Georgia et al v. Cherokee Brick & Tile Co., 89 Ga. App. 235, 239), I am of the further opinion that Section 12 is not void in its entirety, as "effect may still be given thereto" in one respect. See Dorchy v. Kansas (1924) 264 U.S. 286, 68 L. Ed. 686, 44 S. Ct. 323; Moseley v. State, 176 Ga. 889; Felton v. Bennett, 163 Ga. 849 (1). This has specific reference to instances where the gas system being extended beyond the county limits was not financed with revenue certificates, since 2-6005 is expressly limited to those instances where revenue certificates are involved.

502
It might do well in passing to remark that little legislative history is available which might serve as a guide in interpreting 2-6005, for although approximately ten pages of discussion were devoted to this section as originally proposed by the Constitutional Commission of 1945 (Records of Constitutional Commission, Vol. I, pp. 460.469) the original draft did not include the reference to extention of services outside the limits of the political subdivision undertaking such public utility service (Records of Constitutional Commission, Vol. II, p. 599), but the latter was added by the General Assembly in its act submitting the 1945 Constitution to the people for .ratification. See Ga. Laws 1945, pp. 8, 71-73. However, I can only speculate that possibly the reason electric and gas systems were singled out, was because of the Valdosta case, supra (197 Ga. 194) where the city was held unauthorized to issue revenue certificates for financing of an electrical system which would supply not only the city itself, but apparently a large surrounding area as well, and which loomed large in the minds of the people at the time.
See the discussion in Records of the Constitutional Commission, supra (Vol. I, pp. 460-469). Since gas and electric facilities which political subdivisions were authorized to issue certificates for, it is possible that the requirement of regulation as to extra-territorial services was sponsored by those who feared that the agencies of government thereby enabled to finance large undertakings by the means of revenue certificates which were expressly declared not to be debts subject to the debt-limitation clause (Code Ann., 87-807; Miller v. Head, 186 Ga. 694), might in some instances supplant private, regulated utilities entirely, and extend their operations to consumers, who, because of their non-residence in the operating county would have no recourse, either to the Commission or at the polls.
However, irrespective of the motive responsible for the provision placed in Art. VII, Sec. VII, Par. V (Code Ann., 2-6005), the meaning of the words used therein, i.e., that publicly-owned gas or electric facilities extended beyond the county limits with revenue certificates "shall be subject to taxation regulation as are privately-owned and operated utilities" is clear and unambiguous, and not subject to judicial construction. Aldridge v. Fed. Land Bank of Columbia, 203 Ga. 285, 289; Standard Oil Co. v. State Revenue Commission, 179 Ga. 371, 375. The manifest purpose of the underscored language, taken in its ordinary signification (Code, 102-102 [1]), is that if private gas and electric utilities are ever subjected to regulation, publicly-owned utilities operated under the prescribed conditions, shall likewise be subject to regulation in the same manner. Therefore, since H. B. No. 455 requires gas utilities to obtain certificates of public convenience and necessity, and since Art. VII, Sec. VII, Par. V of the Georgia Constitution classifies publicly-owned systems in foreign counties for regulatory purposes as privatelyowned and operated utilities, it follows that such publicly-owned gas systems are subject to H. B. No. 455 with respect to all extensions beyond the limits of their home county and which are financed by revenue certificates.
To the extent that it conflicts with this holding, 12 of H. B. No. 455 can not be given effect.
MUNICIPAL CORPORATIONS-Streets (Unofficial)
A city may refuse to accept streets of less than a specified width, when laid out by a subdivider of private property.
December 17, 1954
Honorable Joseph .R. Cumming
You request an informal opinion relative to the right of the city to refuse

503
to accept streets of less than a specified width when laid out and designated by a developer or subdivider of private property.
Upon examination of the Chapter of the Code to which you refer (69-9), it is the personal opinion of the writer that ample authority for the position you take appears in Section 69-801, 69-802 and 69-838. I have found no Georgia cases on this question but I suggest that for authorities in point you see the 3rd, 4th and 5th Decennial Digests, Municipal Corporations, 43, and see the cross references at that place in the 3rd Decennial Digest. The case of Ridgefield Land Company v. City of Detroit, 217 N. W. 58, 241 Mich. 468, which seems to hold with your view in the matter, is there cited.
MUNICIPAL CORPORATIONS-Tort Liability (Unofficial)
City not liable for hospital care rendered prisoner shot by city policemen while attempting escape in the absence of provision in city charter authorizing such liability.
May 24, 1955
Mr. William J. Anderson
I understand that in the process of making an arrest, it became necessary for city police officers to shoot and wound the prisoner, requiring hospital services which were requested by the police officers. You request my opinion on the question as to who is liable for the hospital bill thus incurred.
Firstly, in any event, the prisoner himself is liable on the basis of an implied contract. (Assuming no express contract was made.) See, generally, Code, 3-107; specifically, 70 C. J. S., 68, p. 1023; 41 Am. Jur., 142, p. 255; Scott v. Simpson, 46 Ga. App. 479 (2); Raoul v. Newman, 59 Ga. 409 (4).
Secondly, the police officer who brought the prisoner to the hospital and procured medical and hospital services would not be liable, for generally, a promise to pay is not implied from one who procures medical services for another, unless the former is under legal obligation to provide such services (Norton v. Rourke, 130 Ga. 600 (1); Gainesville Limeston Co. v. Robertson, 28 Ga. App. 805 (1); Becker v. Humphries, 34 Ga. App. 644 (3); 70 C. J. S., 70, p. 1028; 41 Am. Jur., 144, p. 257), unless of course, the person making the request expressly promised to pay therefor. Becker v. Humphries, supra; Proctor v. Sisler, 182 Okl. 603, 72 P. 2d 802; Warren v. Supernaud, 309 Ill. App. 575, 33 N. E. 510; Caylor v. Pearson, 104 Ind. App. 702, 10 N. E. 2d 411.
Lastly, as to whether or not the city is liable for the hospital services, the answer is by no means clear, but I am inclined to the view that it probably is not, in the absence of an applicable charter provision. In the case of Nolan v. Cobb County, 141 Ga. 385, a physician had been requested by the sheriff for a prisoner who had been shot while being captured. The physician thereafter brought action against the county for the value of his services. The Supreme Court held him not entitled to recover on the ground first, that a county could not be sued without its consent, and secondly, there was no statutory authority for a sheriff to bind the county.
While there exists no general statute as to cities such as is in effect with respect to counties, i.e., Code, 28-1502, declaring that "A County is not liable to suit unless made so by statute," neither is there any general statute authorizing police officers to contract on behalf of the city. Moreover, it is a well established principle that the municipality itself, even through its duly authorized officials, can

504
make no contract or incur any liability that is not authorized by its charter or some general law, and any such contract beyond the scope of its corporate powers is void. Barrett v. City of Atlanta, 145 Ga. 678 (1); Blackman Health Resort v. Atlanta, 151 Ga. 507, 508 (6); also, any grant of powers to a municipality is to be strictly construed. Georgia Railway and Power Company v. Railroad Comm., 149 Ga. 1 (2).
It is generally held that in the absence of a specific statute, the public is not liable for medical services furnished an inmate of a penal institution. 41 Am. Jur. 24, p. 900; 44 A. L. R. 1285.
The Constitution, Art. VII, Sec. IV, Par. I (Code Ann., 2-5701 [5]), and the Code, 92-3701 (5) authorize counties to tax to pay for the maintenance and support of prisoners, but no similar authority exists with respect to municipalities, even assuming for the moment that such would constitute sufficient authority ,for medical services of the nature involved here.
Therefore, to conclude, I do not believe the city could be held liable in the absence of a specific charter provision. As I am unaware of the city involved in your case, I am unable to instruct you further, and it is suggested that you contact the city attorney for his opinion on this question.
PARDONS AND PAROLES-Conditional Release State Board of Pardons and Paroles may grant a prisoner confined in the
Battey State Hospital upon any reasonable conditions that the Board deems necessary and proper in the interest of the prisoner and the general public.
February 23, 1954
Honorable Charles A. Pannell, Chairman State Board of Pardons and Paroles
Reference is made to your letter with regard to the above captioned subject, and more particularly with regard to the authority of the 'Board in the premises.
It appears that "A" is serving a three to five year sentence for larceny; that
.he is presently confined in Battey State Hospital; that he has served his minimum sentence with a good conduct record.
You state that in the past you have withheld applications for conditional release under similar circumstances pending notification by the Superintendent of Battey State Hospital that the prisoner's condition has improved to such an extent that he would no longer be of danger to others, and you ask whether in following this course in the instant case you would be within your rights.
The Constitution places in the State Board of Pardons and Paroles the broad authority to issue pardons and paroles formerly vested in the Governor of the State.
Under the authority of the Constitution the Board has laid down certain policies, rules and regulations governing such actions. Under Section V, page 10, of the Board's Policies, Rules and Regulations, as passed, published and promulgated by the Board a prisoner is deemed entitled to a conditional release as a matter of right when he has served his minimum sentence with a good behavior record. Both by definition and by judicial determination, however, this is a "conditional release" and may be granted upon any reasonable conditions that the Board deems necesS;lrY and proper in the interest of the prisoner and the general public.

505
In the case of Crider v. Balkcom, 204 Ga. 480, 481, the court said in part: "Code 27-2502, after providing for an indeterminate sentence,
states: 'The Prison Commission [now the Board of Pardons and Paroles] shall fix rules by which said convict, after serving the minimum sentence, may be allowed to complete his term without the confines of the penitentiary upon complying with said rules.'
"In the instant case, among other conditions of his release, it was provided that he should not violate the law, and where it was shown that he did so, the board was authorized to revoke the release and return him to the penitentiary. Accordingly, the trial judge did not err in remanding him to the custody of the warden.'' It is my opinion that under the Constitution, the Acts of the General Assembly and the Policies, Rules and Regulations of the State Board of Pardons and Paroles, such Board may, if it deems it necessary and proper in the interest of the prisoner and the public, grant to such prisoner a conditional release providing therein that such release is conditioned upon the prisoner's remaining in the Battey State Hospital and continuing the treatment prescribed by the members of the staff until such time as he has been cured of tuberculosis, or the infection reduced to such point where the physicians in charge of his case deem it prudent and safe for him and the general public that he be dismissed from the hospital.
PARDONS AND PAROLES-Destruction of Records Preservation of documents discussed.
May 10, 1954
Honorable Charles A. Pannell, Chairman State Board of Pardons and Paroles
Reference is made to your recent letter in which you inquire whether, in my opinion, you may properly microfilm and destroy documents on the basis of which pardons, paroles and conditional releases have been granted or rejected, i.e., closed cases. I regret to inform you that in my judgment you may not.
Section 77-522, Georgia Code Annotated (Acts of 1943, p. 185-193) covering "The Preservation of Documents on Which Clemency is Based reads in part as follows:
"The Board shall preserve on file all documents on which it has acted
in granting clemency, reprove, pardon or parole * * *."
The same Legislature that passed the act referred to above, also passed a bill (Acts of 1943, p. 468, at 469, Sec. 2) dealing with the destruction of records and providing in part that:
"* * * any head of the Department of State charged by law with the
custody of any such records may destroy the same upon his own responsi-
bility provided he first causes microfilms of the same to be made * * *."
The words "such records" refers to language used in Section 1 of the Act. Here reference is made to records that are:
"* * * without historic value, are obsolete, are expensive to store and
will serve no further useful purpose." The act continued by providing that the records so destroyed must not be less than seven years old. It should be noted that the authority to destroy such records is

506
vested in the "head of the Department of State," a somewhat ambiguous phrase. It doeil not accurately describe either the Secretary of State or the head of one of the several departments of the Executive Branch of the State Government but, taken in context, probably refers to the latter.
The 1950 session of the General Assembly passed an act to make "photostatic, micro-photographic or photographic" reproductions admissible in evidence (Acts of 1950, pages 73-74) but did not deal directly with the destruction of documents or in anywise alter or amend the acts in question.
I find it difficult to justify, in my own mind, the conclusion that the Legislature that imposed upon the State Pardon and Parole Board the responsibility to preserve without limit as to time the documents on which it based its actions in passing on applications for pardons, paroles, conditional releases, etc., intended by another act passed at the same session to classify or authorize the classification of S)lch documents as obsolete and useless after a certain period. I can not, moreover, see how the Board could well certify such documents as obsolete and serving no useful purpose when its conduct in a certain case might be made the subject of inquiry by the individual during his lifetime or thereafter by his kin or members of the general public.
In any event, giving the statutes in question the broadest interpretation and application, the Board could only destroy those records that are seven years old or older after (1) going on record as having found them to be, without historic value, obsolete, expensive to store and capable of serving no useful purpose, and (2) having had them microfilmed.
I take the liberty to suggest, as an alternative, that you consider microfilming these records and placing them in "dead storage" and, at the same time, preparing an amendment to your act or the general law on the subject clearly authorizing their destruction after such period as you may deem proper.
PARDONS AND PAROLE-Effect of Pardon Notwithstanding the fact that an individual has been pardoned for a
traffic offense, he is not entitled to have his driver's license reinstated.
December 21, 1956
Honorable W. C. Dominy, Director Department of Public Safety
Reference is made to your letter in which you inquire as to the effect of a pardon granted by the Georgia Pardon and Parole Board upon an order of the Ordinary of Warren County suspending and a later order of the Director of Public Safety revoking the operator's permit or driver's license of "A."
The facts of the case are as follows: On October 28, 1956, at or about 9:00 P.M., "A" was arrested by members of the State Patrol on State Route No. 2 a few miles east of Warrenton in Warren County, Georgia, and charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of Section 68-1625 of the Georgia Code Annotated. He was turned over to the Sheriff of said County and subsequently and on November 29, 1956, he appeared before the Ordinary and entered a plea of guilty to the offense as charged. He was fined $100.00 and his driver's license was suspended for 12 months under and in accordance with the provisions of Section 68-9927 of the Code.
Thereafter, upon receipt of notice of conviction, the Director of the Department of Public Safety issued an order under date of November 5th revoking the

507

said driver's license for a period of three years under the mandatory provisions

of and subject to the conditions set out in Section 92A-608 of the Code, one of said

conditions being that the license might be reinstated "... after the expiration of

any revocation or suspension period by any court or upon receiving a letter of

recommendation by the court

" The suspension period imposed by the

court has not expired and the Ordinary has not recommended reinstatement of

the license.

On November 28, 1956, "A" was granted an unconditional pardon by the State Pardon and Parole Board and thereupon appealed to you for reinstatement of his driver's license. You now inquire what effect such pardon has upon the order by the Ordinary of Warren County suspending "A's" driver's license for 12 months under Section 68-9927 and your later order revoking the same under Section 92A-608.
Under Article V, Section I, Paragraph XI of the Constitution of 1945 it is provided in part that:

"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 and impeachment ...". Section 77-511 of the Georgia Code Annotated reads as follows:
"The State Board of Pardons and Paroles shall have the power to grant reprieves, pardons and paroles, to commute penalties, to remove disabilities imposed by law, and to remit any part of a sentence for offenses against the State, after conviction, except in cases of treason and impeachment ...". (Emphasis added.)

Section 77-528 of the Code covering the effect of a pardon on disabilities provides that:

"Following the effective date of this Chapter, all pardons shall relieve from political and civil disabilities." (Emphasis added.) Section 77-525 grants to the Board the power and authority to:
"... adopt and promulgate rules and regulations not inconsistent with the provisions of this Chapter, touching all matters herein dealt with ..."

Under the authority of the statute above quoted the Board amended its Policies, Rules and Regulations effective May 10, 1955, to provide for pardons for any first offender:

"... who has served his minimum sentence and made a satisfactory readjustment and rehabilitation in society ..."

It was under this rule and the constitutional and statute law above quoted that the parole in the instant case was granted. It must be granted that if the order of the Ordinary of Warren County suspending "A's" driver's license and the subsequent order of the Director of Public Safety revoking the same under the mandatory provisions of the Motor Vehicle Safety Responsibility Act are "civil and political disabilities" within the meaning of Section 77-528 of the Code, he is entitled to have his driver's license and the right to operate a motor vehicle thereunder restored. But is this necessarily true?

Neither the statutes nor case law of the State offer any clear, definite and certain answer to the question, what are 'civil disabilities" within the meaning of the Code. Section 79-205 of the Code under the heading "Rights of Citizens" provides that:

508
"Among the rights of citizens are the enjoyment of personal security, of personal liberty, private property and the disposition thereof, the elec tive franchise, the. right to hold office unless disqualified by the Constitution and laws, to appeal to the courts, to testify as a witness, to perform any civil function, and to keep and bear arms." (Emphasis added.) The Constitution of the State, Art. II, Section II, Part I, provides that:
"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, or trust in this State, to-wit: 1st, Those who shall have been convicted in any court of competent jurisdiction of treason against this State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such person shall have been pardoned ..." Ga. Code Ann., Section 2-801.
Here then we have a clear indication if not a definite and certain statement as to what is covered by and embraced in the phrase "civil disabilities." Here are the customary civil rights which ordinarily belong to a citizen of the State, rights of which he may be divested by conviction of crime and rights whicJt may be restored to him by a pardon. Here are the "civil disabilities" referred to in Section 77-528. There is no mention of licenses, whether to operate a motor vehicle, practice medicine, practice law, operate a taxicab or operate a liquor store for the reason that these are not customary civil rights, but are extraordinary rights or privileges granted by the State under its police powers.
Finding no case directly in point among the decisions of the high courts of this State, we are forced to look elsewhere for decisions which, though not controlling, are nevertheless persuasive. In the case of Commonwealth v. Ellett, 174 Va. 403, 414, the Supreme Court of Appeals of Virginia held:
"The right of a citizen to travel upon the public highways is a common right, but the exercise of that right may be regulated or controlled under the police power of the State. The, operation of a motor vehicle on such highway is not a natural right. It is a conditional privilege, which may be suspended or revoked under the police power ..."
In Baldi v. Gilchrist, 198 N. Y. S. 493, it was held that an application for license to operate a taxicab might be denied on the ground that he had been convicted of a felony, although he had been fully pardoned. In Ex parte Stephenson, 237 Ala. 488, it was held that a full pardon granted to an attorney who had been convicted of a felony did not restore him to the right to practice law. In State v. Hazzard, 139 Wash. 487, it was held that a pardon granted to a physician did not restore his right to practice medicine.
The same result was reached in Page v. Watson, 140 Fla. 536. Here the court held that while a pardon "restores one to the customary civil dghts which ordinarily belong to a citizen of the State which are generally conceded or recognized to be the right to hold office, to vote, to serve on a jury, to be a witness," it does not restore the extraordinary right to practice a profession which is a privilege granted under the police power of the State to one who is entitled to it.
In Prichard v. Battle, 178 Va. 455, the Supreme Court of Appeals, citing many of the cases above quoted, said in part:
"If one who leaves the scene of an accident becomes, by reason of such act, unfit to exercise the privilege of driving an automobile on the highways, he is not rendered fit simply because the State's Executive has

509
relieved him of the burden of paying a fine or serving a sentence in prison for the act done."
In Hughes v. The State Board of Medical Examiners, 162 Ga. 246, it is recognized that the right to practice a profession, though a valuable right, is not a natural right but one granted by the State under its police power and therefore subject to regulation.
I am of the opinion, therefore, that the "civil disabilities" which may be restored by pardon following conviction for crime and suspension or revocation of civil rights are those which the Supreme Court of Florida, referred to in Page v. Watson, supra, as "the customary civil rights which ordinarily belong to a citizen of the State which are generally conceded or recognized to be the right to hold office, to vote, to serve on a jury ..."
I am further of the opinion that the right to operate a motor vehicle, to practice a profession and other extraordinary rights granted and regulated by the State under its police power are not affected by a pardon.
Finally, I am of the opinion that notwithstanding the pardon granted him by the Pardon and Parole Board, "A" is not entitled to the return of his driver's license or to the right to operate a motor vehicle upon the public streets and highways of this State until he has complied with all and singular the acts, rules and regulations governing the issuance, suspension, revocation and restoration of drivers' licenses presently in force and effect in this State, including but not limited to the Public Safety Act of 1937, the Act Regulating Traffic on Streets and Highways of 1953 and the Motor Vehicle Safety Responsibility Act of 1951 as amended in 1956.
PARDONS AND P AROLES~Etfect .of Parole 1. No provision of law prohibiting Superior Court Judges from revoking
suspensions made by the original sentences of a later time. 2. Parole issued by the Board of Pardons and Paroles does not have the
effect of remitting the remainder of the original sentence under these circumstances.
February 5, 1954
Honorable R.E. Warren, Director State Board of Corrections
Subject was sentenced on March 19, 1952 on a plea of guilty to felony in Banks Superior Court. This sentence provided that after serving one year thereof the remaining four years were suspended on the conditions: "(a) Tliat after serving said one year that said defendant pay $200.00, value of chickens stolen to "A" at the rate of not less than $10.00 a month, and (b) that he do not violate any criminal statute of this State." Six days later on March 25, 1952 the original sentence was amended by the Court reducing the sentence to a term of three to three years with the last two years suspended on the same conditions imposed by the original sentence. A further explanation was entered in the amended sentence to the effect that the purpose of the modification was that the defendant should be eligible for parole by the proper authorities after serving one-third of the year imposed by the sentence.
Subject was released on parole under order of the Board of Pardons and Paroles dated September 11, 1952, such parole to continue on the conditions therein specified "until the expiration of his maximum sentence, to-wit, March 18,

510

1953." On January 26, 1954 the convicting court revoked his suspension after a

hearing, at which it was determined that subject had not complied with the condi-

tions of suspension imposed by the original sentence in that he had failed to make

restitution, and ordered the remainder of said sentence to be served.

You request my opinion as to whether or not the Board of Corrections should

take custody of the subject and return him to the penitentiary to serve the remainder of his sentence as directed by the court, or will it be necessary for the State

Board of Pardons and Paroles to revoke said parole before subject can be legally

reincarcerated.

There is no question but that the modification of the original sentence made

by the court on March 5, 1952 was valid since it was made at the same term of court

at which the original sentence was imposed and the matter was still in the breast

of the court. See Opinion of the Attorney General, 1945-47, page 107, to Hon-

orable Francis R. Hammack, Director, Board of Corrections, dated November 5,

1945. Furthermore, the court was authorized under Section 27-2706 of the Code

to suspend the execution of the portion of the sentence which had the effect of placing the subject on probation by the court under Sections 27-2702 to 27-2705

of the Code, as amended by the Act of 1950, page 352, making the same applicable to felonies as well as misdemeanors. Neither does there seem to be any objection

to conditioning the suspension upon the making of restitution. (Henry v. State, 77 Ga. App. 735, 738.)

The Act of February 17, 1950 (Ga. Laws 1950, pages 352, 354) contains a provision in Section 3 (a) thereof that after prisoners have entered upon their

services in penal institutions of Georgia the Superior Court Judges have no authority to suspend and probate the sentences of said prisoners by modifying

sentences. However, there is no provision of law prohibiting such Judges from

revoking suspensions made by the original sentences at a later time.

.

The powers of Judges of the Superior Courts to suspend sentences or impose probation sentences arise by virtue of the Acts of 1913, page 112; Acts of 1933,

page 266, and the Act of 1950, page 352. For a discussion of these powers as

they have been developed by the above statutes, see Clarke v. Carlan, 196 Ga. 130.

As shown by this case and the Act of 1950, supra, a Judge may suspend sentence

in any case except abandonment and bastardy cases and thereby give such sentence

the effect of a probation sentence. In view of the foregoing, there is no question but that the original sentence
of the court is valid and that the Judge retains the power to revoke the suspension

unless the parole issued by the Board of Pardons and Paroles on September 9, 1952 had the effect of remitting the remainder of the original sentence. It is my

opinion that it did not. While the Board of Pardons and Paroles is empowered under Section 27-2701

of the Code and under Title 77 of the Code to grant reprieves, pardons and paroles,

to commute penalties and any part of the sentence with certain limited exceptions,

Section 77-524 of the Annotated Supplement to the Code, codified from the Parole

Board Act of 1943, page 185, provides that nothing in that Act shall be construed

as repealing any power of any court to place offenders on probation or to supervise

the same. This has been recognized by the Pardon and Parole Board in Section III (2) of its rules and regulations of 1950, which states:

"Suspended or probationary sentences are judicial actions, subject to

being revoked by the sentencing court. Removal of suspended sentences

or probation orders will be considered by this Board only upon recom-

mendation of the trial judge."

Furthermore, the parole certificate issued by said Board recites that the pris-

511
oner is paroled until March 18, 1953, which time has since passed and it is my opinion that the prisoner is not subject to the supervision of the Board of Pardons and Paroles under this order. Aside from the recitals on the face of the certificate itself, however, there can be no question but that the parole period has expired since at the time said parole certificate was issued only one year of service in the penitentiary had been imposed upon the subject, the remainder of his sentence having been under suspension by the convicting court so that the Board of Pardons and Paroles could not have made the parole period extend beyond the one year period of confinement since it must be presumed at the time the parole was issued that no confinement would be required after the expiration of one year.
It is, therefore, my opinion that the Superior Court of Banks County has made a valid revocation of the suspended sentence in its order of January 26, 1954 and that the subject is no longer under the supervision of the Pardon and Parole Board. It is, therefore, my further opinion that the Board of Corrections should take custody of the subject and return him to the penitentiary system in accordance with the Court's order of January 26, 1954.
I have dealt at some length with this question because I have given no previous opinion directly on this subject and because there have been frequent changes by statute dealing with the powers of courts in such matters. I trust, therefore, that this opinion may serve as a guide to interpretation in similar cases which come before the Board of Corrections and may to some extent obviate the necessity for repeated consideration of such problems.
PARDONS AND PAROLES-Eligibility 1. Acts 1953 November-December Session, page 289, amending Code,
Section 27-2511, is not retroactive. 2. A person serving a third felony sentence of life imprisonment, having
violated the terms of his parole, and a fourth felony sentence of ten years for a crime committed while out on parole, would be eligible for parole only at any time after serving the maximum time provided in the sentence of the jury.
February 12, 1954
Honorable Charles A. Fannell, Chairman State Board of Pardons and Paroles
Reference is made to your letter of January 26, 1954 regarding the above captioned case and more particularly the application of House Bill No. 585 (Committee Substitute) thereto. This bill, an amendment to Section 27-2511, Georgia Code Annotated, provides, in substance, that a person having been convicted of a fourth felony must serve the maximum sentence imposed therefor and shall not be eligible for parole.
Your first and third questions appear to have to do with situations in which the crime was committed and the person tried, convicted, sentenced and imprisoned prior to the effective date of the Act. It is my opinion that the Act is not retroactive and hence is of no effect in such cases.
The Supreme Court held as early as 1866 in Gibson v. State, 35 Ga. 224, that: "All crimes and offenses committed shall be prosecuted and punished
under the laws in force at the time of the commission of the offense, notwithstanding the repeal of such laws before the trial takes place."

512
This case was cited with approval and followed in Jordan v. State, 38 Ga. 585. More recently, and in 1938, the court held in Winston v. State, 186 Ga. 573:
"* * * a statute is void and ineffective as related to previous offenses,
if it takes from the accused a substantial right given to him by the law
in force at the time to which his guilt relates * * *"
and continues that, as a general rule, "any law is ex post facto which is enacted after the offense was com~ mitted, and which, in relation to it, or its consequences, alters the situation of the accused to his disadvantage."
See, also, Hurt v. State, 187 Ga. 73, Camp v. State, 187 Ga. 77, and Burns v. State, 191 Ga. 60. The statute law on which these cases rest is to be found in Section 26-103, Georgia Code Annotated. It has remained unchanged in all material regards throughout the years.
Your second question has to do with the case of a person who is serving a third felony sentence of life imprisonment, having violated the terms of his parole and also a fourth felony sentence of ten years for a crime committed while out on parole. You ask when, if ever, he will be eligible for parole. In my opinion the ten~year sentence, if imposed for a crime committed after the effective date of
this act, must be served in full, for the statute clearly provides that he "* * * must * * * serve the maximum time provided in the sentence of the jury * * *."
(H. B. 585, Sec. 27-2511.) Under the rules and regulations of the Board, as I understand them, he could be eligible for parole at any time thereafter. See Policies, Rules and Regulations of the Board, Section 2, page 5.
This opinion, of course, is based on the presumption that the bill regularly passed, certified to and approved by the Governor, is valid under the Constitution of the State of Georgia.
P~RDONS AND PAROLES-Eligibility A prisoner transferred to the Milledgeville State Hospital may not be
released from custody so that his family may place him in a hospital in another state, until he has been declared sane and returned to the custody of the State Board of Corrections and released under parole or otherwise.
February 12, 1954
Honorable Charles A. Pannell, Chairman State Board of Pardons and Paroles
You inquire whether a felony convict who is serving a three to five year sentence for larceny of an automobile, who has been adjudged t{) be mentally diseased to such an extent that his transfer to the criminal ward at the State Hospital for the Insane at Milledgeville, Georgia has been found to be advisable and who has been so transferred may be released from custody so that his family may place him in a hospital in Alabama where they may see him more frequentl,.
I advise you that, in my opinion, no such release and transfer may be made. The patient is still a prisoner of the State of Georgia, having been convicted of the violation of the laws of the State and sentenced to serve a three to five year sentence. He has been transferred to the criminal ward at the State hospital for the mentally ill under the provisions of Section 77-367 of the Georgia Code Anno~ tated solely because it has been determined advisable by virtue of the nature and extent of his mental illness, and for no other reason.
The statute which authorized his transfer from the State Prison to the State

513
Hospital for the Insane and the commitment itself had a condition to it. It provides in part:
"Such person shall remain at said hospital until the Superintendent of said hospital declares that his sanity has been restored, at which time the said prisoner shall be returned to the custody of the State Board of Corrections. (Acts of 1951, page 787.)"
Not until he has been declared sane and returned to the custody of the State Board of Corerctions may be the State Board of Pardons and Paroles consider his release from the custody under parole or otherwise.
While this opinion is predicated in whole or in part on language introduced into the Code Section referred to by amendment since the date of the opinion of my predecessor, the Honorable T. Grady Head, on this subject (see letter opinion Head to Everett, August 8, 1944), my conclusions are in harmony with the opinion expressed therein.
PARDONS AND PAROLES-Eligibility State sentence begins to run on day and date of sentence' and is not
tolled by an informal release to Federal Marshal and subsequent trial, conviction and imprisonment in Federal Penitentiary.
April 23, 1954
Honorable Charles A. Pannell, Chairman State Board of Pardons and Paroles
Reference is made to your recent letter in which you request an opinion as to whether "A" is presently entitled to consideration for a conditional release.
The facts of the case as I understand them are that he was tried and convicted in the Fulton Superior Court on January 22, 1953 for receiving stolen goods, and sentenced to serve from one to three years in the State Penitentiary, to be computed as provided in the Act approved August 27, 1931. Thereafter, and on or about February 6, 1953, while awaiting transfer to the State Penitentiary, he was informally released to the United States Marshal without any order probating him to the Federal Government, and was thereupon tried and convicted of violating Title 18, Section 2313 U. S. C. A., and was sentenced to serve 18 months in the Federal Penitentiary. Having served this latter sentence, he was released to the State ~f Georgia on April 5, 1954, and is now confined in the Fulton Tower awaiting assignment and transfer to DeKalb County Public Works Camp.
The question is raised as to whether under the circumstances "A's" sentence did not begin to run on the day and date that he was sentenced in Fulton Superior Court, i.e., January 22, 1953, and whether he did not become eligible for consideration for a conditional release on January 22, 1954 at the expiration of one year following the date of the sentence.
I am of the opinion that his sentence did begin to run on the day and date he was sentenced to Georgia Penitentiary, i.e., January 22, 1953, that his sentence was not tolled by his informal release to the Federal Marshal and his subsequent trial, conviction and imprisonment in the Federal Penitentiary.
I know of no case in which it has been judicially determined that a prisoner may be held in prison after the date on which his term of imprisonment would expire, counting it from the beginning date set out in the judgment of conviction and sentence, except where such priso!).er was probated to another court, was paroled, or escaped.

514
PARDONS AND PAROLES-Eligibility
Board of Pardons and Paroles may not consider a conditional release for a prisoner confined at the Milledgeville State Hospital until he has been restored to mental health and returned to the custody of the State Board of Corrections.
May 26, 1954
Honorable Charles A. Pannell, Chairman State Board of Pardons and Paroles
Reference is made to the question of the Board's authority and duty in a case in which a prisoner sentenced to serve one to five years in the penitentiary for assault with intent to rape and presently confined in the Milledgeville State Hospital has completed his minimum sentence.
It is true that the Attorney General has ruled that "* * * the General Assem-
bly, in making provision that the jury should fix a minimum and a maximum term within the term described by law, intended that each and every prisoner abiding by the rules of the State Prison authority should expect to be and would be released upon completion of the minimum term set by the verdict of the jury," but this contemplated only those cases in which the prisoner served his sentence under normal circumstances contemplated by the General Assembly, i.e., in custody of. the State Board of Corrections, and there is no indication to be found in the statute that that body had in mind prisoners committed to the hospital for mentally ill.
The release of such a prisoner by the Board would pose several interested questions, viz., (1) how the Board could consider the question of the conduct of the prisoner when being mentally ill he is neither responsible for his bad conduct nor credible with his good, i.e., he is irresponsible, (2) how a mentally ill man can be granted a conditional release which contemplates his assent to the conditions thereof, and (3) how the Board can assume the responsibility of returning a mentally ill man to society until the Superintendent and medical staff of the hospital to which he has been committed certify that he has been restored to mental health and sanity?
Section 35-202, Georgia Code Annotated, provides in part that:
"Lunatics * * * may become inmates of the hospital and shall be
admitted to, and discharged from, the hospital under such rules and regulations as the Board of Control shall prescribe." (Emphasis added.) Section 77-367 authorizes the Board of Corrections, under certain circumstances and conditions, to transfer mentally diseased inmates to the criminal ward at the Milledgeville State Hospital, and continues:
"Such prisoners shall remain at the hospital until the Superintendent of said hospital declares that his sanity has been restored at which time the prisoner shall be returned to the custody of the State Board of Corrections." (Emphasis added.)
I am of the opinion that once a prisoner is adjudged to be mentally diseased and is transferred to the Milledgeville State Hospital, as provided in Section 77-367, Georgia Code Annotated, the Board of Pardons and Paroles may not properly consider the question of a conditional release for him until he has been restored to mental health and returned to the custody of the State Board of Corrections.
This opinion is consistent with the opinions of the Honorable T. Grady Head, the Attorney General, to Honorable Edward B. Everett then Chairman of the Board of Pardons and Paroles, June 7, 1944 and August 8 of the same year, in which I concur.

515
PARDONS AND PAROLES-Eligibility A prisoner's sentence runs during the period that he was receiving
treatment for a mental disorder at the Milledgeville State Hospital.
July 16, 1954
Honorable Charles A. Pannell, Chairman State Board of Pardons and Paroles
Reference is made to your recent letter in which you inquire as to the eligibility of a prisoner for a conditional release.
Specifically, you inquire whether this prisoner's sentence was running during the period that he was receiving treatment for a mental disorder at the Milledgeville State Hospital. I am of the opinion that it was.
Under the provisions of Section 27-2502 a prisoner's sentence begins to run from the date of sentence "provided he is confined in jail or otherwise incarcerated" and continues unless interrupted by his escape or parole to Federal or other authorities for trial upon another charge. It follows that hospitalization for a physical or mental disorder does not interrupt the running of the sentence.
PARDONS AND PAROLES-Eligibility Sentences computed from the date of sentence.
December 8, 1954
Honorable Charles A. Pannell, Chairman Board of Pardons and Paroles
Reference is made to your letter regarding the eligibility of a prisoner for parole.
The facts appear to be as follows: The prisoner plead guilty to a larceny indictment in Cobb County September 18, 1953, and was sentenced to serve two to five years on each of several counts, such sentences to run concurrently. Thereafter, and on September 29, 1953 he plead guilty to certain charges in the United States District Court for the Middle District of Georgia, and was sentenced to serve two years. He then immediately entered upon service of the latter sentence.
Under Section 27-2505 of the Georgia Code Annotated sentences shall be computed "as from the date of sentence." Thefefore, the prisoner has begun the service of his sentence and you may properly receive and consider his application for parole or conditional release under the rules, regulations and policiel> laid down by the Board.
PARDONS AND PAROLES-Governor's Authority (Unofficial) Governor's authority in relation to commuting death sentence to life
imprisonment quoted.
April 28, 1955
Mr. Rice A. Felder You request information as to whether or not the Governor of Georgia has the
legal power to commute death sentences to life imprisonment. Under both the Constitution of Georgia of 1945 (Art. V, Sec. 1, Par. XI, Code
Ann., 2-3011) and the Code of Georgia (Ga. Code Ann., Supp., 77-511), the

516.
Board of Pardons and Paroles has exclusive power in this State to.commute. death sentences to life imprisonment. The Governor is a1,1thorized to suspend execution of the death sentence until such time as the Board of Pardons and Paroles shall have an opportunity of passing upon the application. If the Gove~nor refuses to suspend the sentence, the Code provides that the Board of Pardons and Paroles will not be authorized to commute the sentence to life imprisonment.
PARDONS AND PAROLES-Governor's Authority The denial by the Governor of a suspension of a death sentence deprives
the State Board of Pardons and Paroles of further jurisdiction in that particular case.
October 18, 1955
Honorable Hugh C. Carney, Chairman State Board of Pardons and Paroles
You request my opinion on the question as to whether or not the Board of Pardons and Paroles loses jurisdiction with respect to a prisoner condemned to death, where such prisoner has applied to the Governor for a suspension of sentence to enable the Board to pass upon his case and the suspension was denied. '
The Constitution, Article V, Section I, Paragraph XI (Code Ann., 2-3011), insofar as relevant, provides:
"The Governor shall have power to suspend the execution of a sentence of death, after conviction, for offenses against the State, until the State Board of Pardons and Paroles, hereinafter provided, shall have an opportunity of hearing the application of the convicted person for any relief within the power of such Board, or for any other purpose which may be deemed necessary by the Governor. . . . 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 niay remit any part o 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..." (Emphasis added) Prior to this provision of the 1945 Constitution, which had been added to the Constitution of 1877 by a resolution passed in 1943 (Ga. Laws 1943, p. 43), and ratified in that same year, the exclusive authority over pardons and paroles had been vested in the Governor. See Constitution of 1877, Art.icle V, Section I, old Paragraph XII; Op. Atty. Gen. 1952-53, p. 137. An inspection of the above provision as it now appears readily indicates that its purpose was to transfer this authority from the Governor and vest it in an administrative board. The only authority retained by the Governor was the power to suspend death sentences so as to afford the Board an opportunity to pass upon an application for clemency or other relief. Clearly, the Governor has no power to commute death sentences himself, but only to suspend pending a hearing by the Board. Secondly, it is to be observed that the Board itself is empowered to grant "reprieves." In Gore v. Humphries, 163 Ga. 106, 114, it was said:
"Properly construed, a reprieve by the executive is nothing but a

517
temporary suspension for the period named in the respite of the execution of the sentence imposed by the court." (Emphasis added)
I have previously determined that the only distinction between a "reprieve" and a "suspension" is that the former is a suspension for a definite, named time, whereas the later is for .an indefinite time. See Op. Atty. Gen. 1945-47, pp. 444, 446.
Nothing more being said, it would thus appear that in any case, whether involving a death sentence or otherwise, the Board itself could grant a reprieve pending full consideration by it of the prisoner's request for commutation, even where no application for suspension of sentence had been made to the Goveronr as provided for in the first sentence of the constitutional provision. It could be argued that the Board was given the power to grant reprieves because presumably it should have some idea of how long consideration of an application for clemency should take, whereas the Governor, not being in this position, was given authority to grant a "suspension," for an indefinite period measured only by the time required by the Board to consider the application on its merits.
However, it is not altogether impossible to construe the first sentence of the Section 2-3011, relating to the Governor's power of suspension, in conjunction with the exception relating to the Board's lack of jurisdiction-"in cases in which the Governor refuses to suspe11d a sentence of death," as expressing the principle that the Board would have no jurisdiction in any death case, until and unless the Governor had suspended the sen;.cn:c.e so as to enable the Board to pass upon an application for clemency. However, to answer your question, it is not necessary that I decide this issue, but I will state that such a construction seems unlikely, not only because it would defeat the principal purpose of the Constitution, i.e., transfer of power over pardons, paroles and commutation of sentences from the Governor to the Board, but also, it does not comport with the administrative interpretation uniformly placed thereon by every Board since ratification of the original amendment. In the later respect, administrative interpretations are always entitled to respect and consideration. Elder v. Home Building and Loan Association, 188 Ga. 113 (2); Temple Baptist Church v. Georgia Terminal Company, 128 Ga. 669, 680; Griner et al v. Baggs & Perry, 4 Ga. App. 232 (3a); Miller v. Wilson,
60 Ga. 505, 508; Solomon v. Commissioners of Cartersville, 41 Ga. 157 (1); Rice
and Williams v. Johnson, 20 Ga. 639, 644; Jones v. Dougherty, 10 Ga. 273, 280.
It might also be well to note that in the reported case of Parks v. State, 206 Ga. 675, 676, it appeared that an application had been made to the Board for commutation of sentence without a previous suspension of sentence by the Governor, although this point was not raised by the parties nor commented on by the Court.
Therefore, for purposes here, it will be assumed that the Board as well as the Governor can grant a temporary suspension of a death sentence, which brings us to the principal question, i.e., whether the proviso declaring,
". . . and except in cases in which the Governor refuses to suspend a sentence of death,"
would operate to deprive the Board of jurisdiction to act in death cases where the Governor had denied a suspension so as to permit the Board to consider the application for commutation..
In construing the Constitution, generally, the same rules governing the construction of statutes apply (City of Valdosta v. Singleton, 197 Ga. 194, 210), one of which is that the "legislative history" of the law may be looked to in determining intent. See Barker v. State, 117 Ga. 428, 431; Bacon v. Jones, 116 Ga. 136, 138; Mayor & Council of Savannah v. Hartridge, 8 Ga. 23; Great N. R. Co. v. U.S., 315 U.S. 262, 86 L. Ed. 836; Harrison v. Northern Trust Co., 317 U. S. 476, 87 L. Ed.

518
407. This legislative history may be derived from the House and Senate Journals. Marietta Hospital Authority v. Redwine, 87 Ga. App. 629.
With respect to the instant problem, the meager legislative history of what is now 2-3011 offers little assistance.
Introduced in the Senate on Wednesday, January 13, 1943, asS. R. No. 12 (Senate Journal 1943, p. 35), the resolution was read for the third time in the Senate on January 27, 1943, when an amendment was added relating to the requisite of a unanimous vote in capital cases. (Senate Journal 1943, p. 141-5.) The exception relating to cases where the Governor had denied suspension was in the original draft and no subsequent action was ever taken with respect thereto from which any inference could be gained, either one way or the other.
However, the same Legislature which submitted the constitutional amendment also enacted a comprehensive bill setting up the Pardon and Parole Board created by the amendment, and defining its duties. (Ga. Laws 1943, p. 185.)
Section 11 of this Act (Code Ann., 77-511), after stating in the same language the exception relative to cases where a suspension had been denied by the Governor, added the words:
"... to enable the Board to consider and pass upon the same."
Obviously, these words from the statute could not change the effect of the constitutional provision otherwise manifest, but it would appear that consideration could be given thereto in seeking the constitutional intent, since the two laws are in pari materia. Ezekiel v. Dixon, 3 Ga. 146 (1); Huntsinger v. State, 200 Ga. 127, 131; Harrison v. Walker, 1 Ga. 32; Daniel v. C. & S. Nat. Bank, 182 Ga. 384. Laws are in pari materia which "relate to the same person or thing or the same class of person or thing, or which have a common purpose." Maynard v. Thrasher, 77 Ga. App. 316, 319.
It is therefore to be concluded that the exception just mentioned relates to the first sentence of 2-3011 providing for suspension of death sentences by the Governor.
It then follows that if the exception is to be given any meaning at all, its effect, taken from the ordinary signification of the words used (Code 102-103 [1]; Epping v. Columbus, 117 Ga. 263 [1] ; Jones v. Darby, 174 Ga. 71, 72), must be that in death cases where the Governor had refused to suspend, the power of the Board no longer extends to that prisoner. It is never to be presumed that the Legislature intended any part of a law to be without meaning. State Revenue Commissioner v. Alexander, 54 Ga. App. 295, 296; Mitchell v. Union Bag Co., 75 Ga. App. 15, 17; PostmasterGeneral Gf U. S. v. Early, 12 Wheat. 136, 6 L. Ed. 577; Accident & Cas. Ins. Co. v. Cook, 72 Ga. App. 241.
I am fully aware that this construction may seem subject to criticism on two grounds, viz:
1. To some extent, it defeats the primary purpose of the law, which was to transfer authority from the Governor to the Board. It might be said, however, that the Legislature and people may not have intended this transfer to have been absolute to the last minute detail, but absolute subject only to the exceptions named.
2. The illogical situation would result whereby the Board would have complete power over death cases up to the date of execution where no application for suspension had been made to the Governor and denied by him, but the Board's jurisdiction would be lost in those cases where such an application had been made and denied. The power of the Board would thus be made to depend upon a somewhat fortuitous circumstance.

519
But however illogical all the foregoing may seem, it is even more illogical to rule otherwise, which would be tantamount to striking these words from the Constitution entirely-a ruling which the authorities previously cited declare I am unauthorized to make. Perhaps it was intended that normally applications would be made to the Board rather than the Governor, and the provision relating to the Governor's power of suspension was added merely as a measure of last resort, with the intention that once denied, the proceedings would thereby be at an end and the Board immunized from further harrassment arising from repetitious applications.
In any event, the right of the Legislature and people to enact unwise and capricious laws inheres 1just as much in a democratic society as does the right to legislate on a basis of cold logic and unremitting propriety.
"In interpreting . , , a constitutional exemption, it is to be presumed that the words therein used were employed in their natural and ordinary meaning ... and where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it; but must construe it according to its terms." Rayle Electric Corp. v. Cook, 195 Ga. 734 (2). The last subordinate question which I deem it necessary to refer to here is whether or not the exception relates to all the powers of the Board, or only to the power immediately preceding the exception, i.e., the power "to remit any part of a sentence ..." While the general rule is that an exception only applies to its immediate antecedent (Thompson v. Talmadge, 201 Ga. 867, 883), it is always subject to the principle that a law must be construed as a whole. Carroll v. Ragsdale, 192 Ga. 118, 121; State of Ga. v. Cherokee Brick & Tile Co., 89 Ga. App. 235, 239. Considering the instant case, it would be inconsistent and unreasonable to construe the exception as relating only to its immediate antecedent, and an absurd or unreasonable construction is to be avoided. Board of Tax Assessors v. Catledge, 173 Ga. 656 (3); Wharton v. State, 67 Ga. App. 545, 549; Gillis v. Gillis, 96 Ga. 1, 9; Kent v. State, 18 Ga. App. 30, 32 (8). Moreover, the exception relating to cases of treason and impeachment is parallel with the instant exception as a matter of grammatical structure, and it would seem from the very nature of these cases, i.e., impeachment and treason, that the intention was to except them entirely-from all jurisdiction of the Board; hence the same result would seem to follow as to the exception here under consideration. On the basis of the foregoing, I conclude that the denial by the Governor of a suspension of death sentence deprives the Board of further jurisdiction in that particular case.
PARDONS AND PAROLES-Habitual Criminals Georgia Laws, 1953, Nov.-Dec. Sess., page 289, providing that an habitual
criminal shall not be eligible for parole, is unconstitutional and may be ignored.
September 30, 1955
Honorable Hugh Carney, Chairman State Board of Pardons and Paroles
You requested my opinion as to the constitutionality of 27-2511 of the Georgia Code, as amended, Georgia Laws, 1953, Nov.-Dec. Sess., p. 289.

520
This section, sometimes referred to as an habitual offender law, provides as follows:
"If any person who has been convicted of an offense and sentenced to confinement and labor in the penitentiary shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted; Provided, however, any person who, after having been three times convicted under the laws of this State of felonies, or under the laws of any other State or of the United States, of crimes which, if committed within this State would be felonies, commits a felony within this State other than a capital felony, must, UJ?OD conviction of such fourth offense, or of subsequent offenses, serve the maximum time provided in the sentence of the jury or the judge based upon such conviction, and shall not be eligible for parole until the maximum sentence has been served. For the purpose of this section conviction of two or more crimes charged on separate counts of one indictment or information or in two or more indictments or informations consolidated for trial, shall be deemed to be only one conviction." The proviso was added to the above section by the amendment of 1953 hereinbefore referred to. The section as it originally existed has been upheld by the Courts as against constitutional attacks based on "double jeopardy," right of an "impartial trial," and "due process." Tribble v. State, 168 Ga. 699; Reid v. State, 49 Ga. App. 429. See also McDonald v. Massachusetts, 180 U. S. 311, 45 L. Ed. 543, 21 S. Ct. 389; Carlesi v. New York, 233 U, S. 51, 58 L. Ed. 843, 34 S. Ct. 576; 25 Am. Jur. 261, 4; 132 A. L. R. 92. However, the amendment of 1953 has not yet been passed upon by the Courts. The Constitution, Art. V, Sec. I, Par. XI (Code Ann., 2-3011), insofar as here relevant, provides:
"There shall be a State Board of Pardons and Paroles composed of three members, who shall be appointed by the Governor and confirmed by the Senate. Appointments made at times when the Senate is not in session shall be effective ad interim. The first members shall be appointed for terms of three, five, and seven years, respectively, to be designated by the Governor, and all subsequent appointments shall be for a period of seven years, except in case of an unexpired term. The Governor shall not be a member of the State Board of Pardons and Paroles. The members of the State Board of Pardons and Paroles shall each receive an annual salary of $5,000.00, payable monthly. 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."
It is to be noted that this provision says the Board "shall have power to grant reprieves, pardons and paroles ..."
The Constitution does not restrict the Board to any particular class of offenders, or make distinctions as to habitual criminals, and if the amendment of 1953 to 27-2511 is to be given effect, it of necessity would operate to limit the authority of the Board with respect to "habitual criminals" to the same extent as though the proviso had been added to the constitutional provision itself.

521
In Ex Parte Garland (1867) 4 Wall. 333, 380, 18 L. Ed. 366, 370-371, it was said: "The Constitution provides that the President 'shall have power to
grant reprieves and pardons for offenses against the United States except in cases of impeachment.'
The power thus conferred is unlimited, with the exception stated. It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.'' (Emphasis added.) It is generally recognized that when the Constitution confers powers of pardon and parole upon a designated board, such powers are n~t subject to legislative control or restriction except as provided in the Constitution itself. 39 Am. Jur. 538, 34; 16 C. J. S. 336, 132; Pollack v. Bridgeport Steamship Co. (1885), 114 U. S. 411, 414, 29 L. Ed. 147, 5 S. Ct. 881; United States v. Klein (1872), 13 Wall. 128, 20 L. Ed. 519; Yelvington v. Presidential Pardon and Parole Attorneys (C. A. D. C. 1954), 211 F2d 642; Pope v. Wiggins (Miss. 1954), 69 So. 2d 913, 915 (2); People v. Freleigh, 334 Mich. 306, 54 N. W. 2d 599; Slater v. Olson (1941) 230 Iowa 1005, 299 S. W. 879; Ex Parte Anderson, 192 S. W. 2d 280, 149 Tex. Cr. R. 139; Waggoner v. State (Tex. Cr. R.) 275 S. W. 2d 821; Whittington v. Stevens (Miss.) 70 So. 2d 137. The law evinces a policy that however severely the Legislature may declare any given defender to be punished by way of imprisonment, the transcendent consideration in our system of criminal jurisprudence, insofar as reasonably possible, is the rehabilitation of those who once may have gone astray. As an inducement to this end, it is intended that a means be provided whereby a prisoner's situation is to remain fluid, and not frozen by an inexorable and unyielding formular: the law, as well as the Gospel, follows a way of penance. As Tennyson expressed it,
"I hold it true * * * that men may rise on steppingstones of their dead
selves to higher things.'' I therefore conclude that insofar as it would affect the granting of pardons and paroles, the amendment of 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 289) is unconstitutional, void, and of no effect, and you would be authorized to ignore it in the consideration of applicants for parols.
PARDONS AND PAROLES-Rights of Parolee Parolee mother of illegitimate child would be entitled to State aid if
application was approved by State Welfare Department following investigation.
January 21, 1954
Honorable Charles A. Pannell, Chairman State Board of Pardons and Paroles
This is to acknowledge receipt of your letter in regard to a parolee who is soon to have an illegitimate baby. The New Jersey parole authorities have raised the following question:

522
"We would like to know if your laws permit her to file a paternity affidavit for the purpose of establishing the child's paternity and to obtain support for the child." It is my opinion, if the mother of the child is unable, by reason of her poverty, to support the child, she might apply to the State Welfare Department for aid under the "Aid for Dependent Children" Act. The Board would receive her affidavit as to the illegitimacy of the child and make an investigation and if they determined that the child was entitled to aid from the State, the same would be awarded.
PARTNERSHIP-Creation A partnership is not created by a mere agreement to divide the profits
of a business.
February 16, 1955
Honorable J. B. Rhodes Director, Miscellaneous Tax Unit
You requested an opinion on the following situation: "Is a partnership created under the following circumstances? "'A' and 'B' enter into a contract under which 'A' is to operate a busi-
ness, and 'B' is to lend to 'A' the sum of $10,000 upon the condition that if a profit is made after the payment of the ordinary operating expenses of the business, such profits will be shared between 'A' and 'B,' but that if the business makes no profit, or suffers a loss, 'A' still owes 'B' the sum of $10,000, but without liability for interest. In other words, the profit, if any, is to be shared with 'B,' but the loss, if any, is to be borne entirely by 'A,' and 'B' has no interest in the assets of the business in any event." Under the facts above stated, I am of the opinion that no partnership existed between "A" and "B." I base this opinion upon the following authority:
Section 75-101, Georgia Code, Annotated: "Manner of creating partnership.-"A partnership may be created either by written or parol contract, or it may arise from a joint ownership, use, and enjoyment of the profits of undivided property, real or personal." It will be observed that under the facts stated above there was no joint ownership or use nor was there undivided interest in the property. The business at all times belonged to "A" and the only element of a definition of a partnership which appears in the case is a joint interest in the profits, which is not sufficient to create a partnership. Section 75-102, Georgia Code, Annotated:
"A joint interest in the partnership property, or joint interest in the profits and losses of the business, shall constitute a partnership as to third persons. A common interest in profits alone shall not." (Emphasis ours.) In the case of Moore v. Harrison et al, 202 Ga. 814, the court held:
"A contract whereby one of the contracting parties is to have an interest in profits alone is insufficient to establish a contract of partnership. See Falk v. LaGrange Cigar Co., 15 Ga. App. 564 (84 S. E. 93); Allgood v. Peckoury, 36 Ga. App. 42 (135 S. E. 314); Beard v. Oliver, 52 Ga. App. 229 (182 S. E. 921); Hannifin v. Wolpert, 56 Ga. App. 466 (193 S. E. 81); Lanier v. Shuman, 195 Ga. 246 (24 S. E. 2d, 517)."

523
PERSONS-Residency (Unotl'icial)
Law relative to what is necessary to constitute residency quoted.
November 1, 1955
W /0 Charles W. Hubbard This will acknowledge receipt of your letter of October 26, 1955, in which you
request information relative to establishing residency in Georgia.
Residency is more a matter of the intention and facts, and each case must be determined in the light of the circumstances surrounding it. I quote from an opinion of the Attorney General dated May 29, 1946 to Honorable C. H. Henderson, Chairman, Board of Registrars, Echols County, Statenville, Georgia:
"Our Courts, by many decisions, have recognized the distinction between legal and actual residence. A person may be a legal resident of one place and an actual resident of another. He may abide in one county without surrendering his legal residence in another if he so intends. See Hardeman v. Hardeman, 179 Ga. 34 (7).
"There is also recognized a distinction between domicile and residence. Under Section 79-406 of the Code, it is provided:
" 'The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention.'
"It was said in Worsham v. Ligon, 144 Ga. 707: " 'Residence and domicile are not synonymous and convertible terms. In order to change his domicile a person must actually remove to another place with a present intention of remaining there as his place of domicile, or, having removed to the new place, avow his intention of remaining there as his place of domicile.' "In Bush v. The State, 10 Ga. App. 544, it was said by Justice Russell: " 'Loss of citizenship does not result from a change of residence
not intended to be permanent * * *. There must be either the tacit or
the explicit intention to change one's domicile before there is a change of legal residence.'
"Again in the case of Knight v. Bond and Brother, 112 Ga. 828 (1), it was held:
"'A man having wife and children with whom he permanently resided in a given county did not, by accepting a contract in another county, renting a furnished house therein, and occupying the same with his family during the period covered by the performance of such contract, acquire a domicile in the latter county, when he did not intend to abandon his domicile in the county first referred to or that he or his family should permanently reside elsewhere, but did intend that his or their stay in the county wherein the contract was to be performed should be temporary only and terminated upon the completion thereof.'"
I assume that you are at the present time considered a legal resident of some State, possibly the State of your residence at the time you entered the service. Such things as voting, paying taxes, owning real estate and other matters would enter into a determination as to a person's residence. Technically, it might be possible for a person to establish residency in Georgia by coming into the State and declaring that he intends to reside here, although as stated above, this would be a matter of proof in the event some question or controversy arose concerning it.

524
If you have any particular place in which you intend to establish your residence, let me suggest that you write the Board of Registrars of that County and obtain their opinion as to your eligibility to register as a voter in that County.

PRISONS AND PRISONERS-Convict Labor (Unofficial)

(1) Convict labor cannot be used to build septic tanks on private prop-

erty for a consideration to be paid and used for operation of local Public

Health Department.



(2) Use of convict labor from public works camps and State highway

camps in competition with private enterprise is questionable.

(3) Funds to support local Public Health Department are to be derived

from taxation and paid from County Treasury.

February 4, 1955

Honorable Jim Denson Reference is made to a letter from you and the Honorable Stewart Watson
regarding the use of convicts for the construction of septic tanks on private property for a consideration and the use of the proceeds for the operation of the local Public Health Department.
The law of the State, generally, does not favor the use of convict labor in competition with private enterprise. Section 77-323-Sale of Prison-made Goods Prohibited, Section 77-356~Competition with Free Enterprise Forbidden, and Section 77-375-Theory of Prison Work, make this crystal clear. The applicability of these provisions to county prisoners is subject to question. The section last cited specifically provides that "The provisions of this section shall not apply to county public works camps and State highway camps."
As to the law regarding the financing of County Health Departments, however, there can be no question. The Georgia Code Annotated, Section 88-206, provides that,
"All costs and expenses necessary and proper * * * shall be paid out of the county treasury***.",
and Section 88-313 provides that,
"* * * the proper taxing authority of the county * * * shall levy a tax rate
sufficient to raise its proportioned part of the total amount fixed upon
and assessed by the county board of health * * *."
It would appear, therefore, that it would not be proper to finance the county health department through the income derived as aforesaid.

PRISONS AND PRISONERS-Convict Labor (a) A county has the right to use convicts maintained by the State. (b) It is illegal to enter into a contract for the state to furnish an
indeterminate number of convicts to a particular county at the option of the county.
November 21, 1955
Honorable Jack M. Forrester, Director State Board of Corrections
Receipt is hereby acknowledged of your letter regarding my opm10n on the question as to whether or not the Board of Corrections would be legally authorized

525
to enter into an agreement with Putnam County whereby the latter would hite convicts from the Board at a rate of $3.50 per prisoner per day. The specific contract provision reads as follows:
"Be it further resolved, That Putnam County agrees to use a minimum of fifteen (15) prisoners, under the terms above stated, with the right to employ additional prisoners at the rate of $3.50 per day for each day's work performed by them."
Firstly, since the contract states that the prisoners are to be used for the "construction and maintenance of the public road systems of Putnam County," the expenditure of tax fun:ds, at least for this general purpose, is legal. Constitution, Art. VII, Sec. IV, Par. I, sub-paragraphs 4 and 6 (Code Ann., 2-5701); Garrison v. Perkins, 137 Ga. 744; Moore v. Baldwin County, 209 Ga. 541.
Secondly, while the authority of counties to hire convict labor, as here proposed, is not made so clear by law as is such authority with respect to the State Highway Department (Code Ann., 95-1716; 95-1715, Supp.), there are provisions of law which would seem to authorize such an arrangement. See Code Ann., 77-325, 77-328, 77-329, 77-330 (municipalities) and 95-304 (1). These sections last cited clearly authorize counties to "hire" prisoners to work on the public roads where the prisoners are to be maintained in public works camps owned and operated by the county itself under the supervision of the State Board of Corrections. Although the sections above cited from Title 77 of the Code are in the old 1933 Code, prior to the many aniendments which have subsequently been made, thereby rendering it difficult to ascertain whether or not they have been repealed by implication, I am rather inclined to believe that they are probably still in effect, in view of the case of Moore v. Baldwin County, 209 Ga. 541, holding that the right of a county to demand its quota of prisoners (as provided for in 77-325, et seq) and its authority to construct and maintain prison camps, had not been repealed by implication.
In any event, the prisoners would still be "hired" by the county, and I see no reason why the fact that the Board of Corrections rather than the county owned the prison camp and exercised immediate supervision should make any difference.
Lastly, insofar as the contract, as quoted above, would give the county the right to demand an unlimited number of convicts, I am of the opinion that this provision can not be legally included in the contract.
If each county is entitled by law to a quota of prisoners, no one county could be legally empowere~ to demand more than its quota; yet the effect of this contract provision could result in Putnam County depriving other counties of their quota. Moreover, it is questionable as to whether or not the Board of Corrections could legally obligate itself to supply prisoners without limitation, since in the event the County requested more than the Board had, the contract would by its terms create a debt against the State.
I think it goes without saying that the unlikelihood of these events ever becoming realities does not affect the legal principles involved.
Therefore, I suggest the following change:
"Be it further resolved, That Putnam County agrees to use a minimum of fifteen (15) prisoners, under the terms above stated, with the right to employ such additional prisoners as may be made available to said county, by the Board of Corrections in its discretion, said additional prisoners to be furnished at the rate of $3.50 per prisoner per day for each day's work performed by them."

526
PRISONS AND PRISONERS-Prison Camps The State and a County may not jointly operate a prison camp, but they
can contract with each other.
April 28, 1955
Honorable Jack M. Forrester, Director State Board of Corrections
I acknowledge receipt of your letter enclosing copy of a proposed contract with the County Commissioners of Chatham County, in which you request my opinion on the question as to whether or not this contract is in proper form and further, whether or not the State Board of Corrections would be authorized to enter into same.
The contract makes provision for the establishment of a prison camp on or near the site of the Chatham County Public Works Camp. By interpretation of the agreement is that it is simply an arrangement whereby the Board of Corrections will purchase housing, food and laundry accommodations from the county for a specified sum. The contract does not, I perceive, envisage a joint operation as between the county and the Board.
As I construe the laws relating to your Department, it is apparent that two types of penal institutions are intended by the General Assembly: First, those established and maintained by the Board itself; Second, those established and maintained by the counties subject to approval by the Board. See 77-371. The law is not specific in either case, and the above is derived from a reading of the various provisions as a whole. By necessary implication, it is apparent that no authority is conferred whereby the Board and any county might jointly establish a prison.
However, as I said before, the instant contract amounts to simply a purchase of accommodations. The county will have nothing to do with the care, custody or control of the prisoners under your supervision, and in all major respects, there will be two separate, autonomous prisons maintained in Chatham County. Under these circumstances, I am of the opinion that you are legally authorized to enter into the attached agreement.
I assume that the County Attorney of Chatham County has determined that the Commissioners are fully authorized to enter into the agreement, and I have not undertaken a review of the many local laws governing the county.
It would probably be a good idea to include a provision in the agreement stating that "This agreement is subject to existing appropriations and those duly made by law, and shall not, in any case, create a debt against the State of Georgia."
PRISONS AND PRISONERS-Prison Camps The State Board of Corrections has authority to require a prison dormitory
of any standard, so long as the standard is not below that set by the Georgia Safety Fire Commission.
November 22, 1955
Honorable Jack M. Forrester, Director State Board of Corrections
Receipt is hereby acknowledged of your letter requesting my opinion on the question as to whether or not the State Board of Corrections has authority to compel a county to construct a prison dormitory of brick, concrete, or concrete

527
block, where the Georgia Safety Fire Commission regulations would permit utilization of a lesser safe building.
The Ga. Code Ann., 77-363 (1951 Supp.) authorizes the Board to promulgate rules and regulations governing the housing of prisoners coming under its custody, and rules and regulations governing the welfare of employees of public institutions and public works camps.
Section 77-371 (1954 Supp.) authorizes counties to establish public works camps "meeting the requirements of the Board of Corrections," and the latter is authorized to withdraw all prisoners from any camp which does not meet its requirements.
Section 77-391 (1954 Supp.) provides in part:
"Provided, that after January 1, 1955, the Director of Corrections shall be prohibitied from assigning, transferring, or placing any prisoner in any prison camp, public works camp, or other place of detention for the service of the sentence or sentences imposed upon him, unless the building or buildings used to house prisoners at such place of detention shall be so constructed as to be reasonably safe from fire hazards and as nearly escape-proof as possible, and it shall be the duty of the Director of Corrections to have prepared and to keep on file in his office specifications of the types of materials which shall be used in the future construction of such buildings, and to require all such buildings, which may be so erected after the passage of this law, to be constructed in such manner as will make such buildings as nearly escape-proof as may be reasonably possible; . . ."
While we may assume for the moment that the Board could not legally approve building requirements below the minimum requirements prescribed by the Fire Commissioner (See Ga. Code Ann., 1951 Supp., Chap. 92A-7) it is equally clear that the final authority to approve or disapprove of structures to be used as a prison lies in the Board. The Fire Commissioner's function, it would seem, should be to establish an absolute minimum for buildings in general, and if some other public agency dealing specifically with one type of structure should require more, it is no concern of the Fire Commissioner. Any insistence by the Fire Commissioner that his requirements as to prisons be binding so as to prohibit higher requirements by the Board would take the Commissioner out of the Fire Regulating business and put him in the prison regulating business.
Obviously, the Board is in a better position than the Commisisoner to know what type of building the public interest requires, as the former's knowledge is not limited to considerations of fire safety alone.
I therefore conclude that the authority to determine whether or not a building is sufficiently safe from a fire hazard standpoint lies in the Board, so long as such determination does not fall below the requirements established by the Fire Commissioner.
PRISONS AND PRISONERS-Prison Camps
The State Board of Corrections cannot enter into a contract with a county to house county prisoners while a county jail is being rebuilt.
October 23, 1956 Honorable Jack M. Forrester Director, State Board of Corrections
Receipt is acknowledged of your letter requesting my opinion on the question as to whether or not you would be authorized to enter into a contract with the

528
Sheriff of Ware County to house county prisoners while the county jail is being rebuilt.
The Act of 1956 (Ga. Laws 1956, pp. 161, 171) provides in Section 13, in part: "The State Board of Corrections shall have no authority, jurisdiction
or responsibility with respect to jail sentences, and the county wherein such jail sentence is imposed shall have the sole responsibility of seeing that such sentence is executed and providing for the care, maintenance and upkeep of such prisoner while so serving." Nor is there any provision in this Act, which comprehensively revised all laws relating to the Board of Corrections, which would authorize you to enter into such a contract, but on the contrary, the Code, 77-110, in defining the duties of county sheriffs, provides, inter alia.
"It shall be the duty of the sheriff- * * * To take all prisoners ar-
rested, or in execution under any criminal or civil process, to the jail of an adjoining county, or to the jail of some other county when more accessible, if the jail of the county shall be in an unsafe condition, under such rules as are prescribed in this Code." I therefore conclude that you would be unauthorized to enter into the contract in question. While there is nothing inherently wrong in such an agreement, it is simply a matter of the law providing otherwise.
PRISONS AND PRISONERS-Prisoners-Expenses of Returning Escapee (Unofficial) (1) Expense of returning an escaped prisoner is to be borne by State institution from which prisoner escaped. (2) Escaped juvenile may be transferred from State Training School to State Board of Corrections under Act of 1953 (Georgia Laws, 1953, Novem~ her-December Session, page 87) once he is returned to Georgia.
February 15, 1955
Honorable Carey Skelton This letter is written pursuant to my telephone conversation with you of Tues-
day, February 15, in which you requested our opinion as to who should pay the expenses for returning an escaped inmate of the Georgia State Training School for Boys from a foreign state wherein the prisoner sought asylum.
The Code, Section 77-620, provides as follows: "77-620. Judges of superior courts, as well as judges of juv~nile
courts, are authorized to commit incorrigible boys to this institution. Any commitment by superior or juvenile courts shall be final, any boy committed thereto being subject solely to the control of the authorities in charge of said institution with regard to rules for parole, discharge, etc. If there shall be room, parents may enter incorrigible boys on payment of the fees required by the management." Based upon this section and other like sections of the Code, the Attorney General has uniformly held that where a prisoner is committed to the care of a penal institution, the responsibility for his care and custody becomes an obligation against the State institution to which he was committed, and in the event he escapes therefrom, the State is responsible for paying all expenses incident to his

529
return. Op. Atty. Gen., 1948-49, p. 622; Op. Atty. Gen., 1950-51, p. 341; Op. Atty. Gen., 1950-51, p. 436; Op. Atty. Gen., 1952-53, p. 400.
The Code does not prescribe procedures relative to the return of escaped prisoners, but I do not believe that any person could, without proper authority from the Superintendent of the State Training School, return an escaped prisoner and require payment from the State. In other words, it would appear that the Superintendent is the proper party to determine whether, when and how an escaped prisoner is to be returned.
With regard to the possibility of transferring this prisoner to the State Board of Corrections once he is returned to Georgia, Section 77-602 of the Code was repealed by the Act of the General Assembly approved December 12, 1953 (Ga. L. 1953, Nov.-Dec. Sess., p. 87, 90). However, somewhat similar provisions are found in the Code Annotated, Section 77-346, as impliedly amended by Section 4 of the Act of 1953, above referred to. See Georgia Code Annotated, 1954 Supple:.. ment, Sections 24-2435 and 24-2436.
In my opinion, the prisoner could be transferred to the State Board of Corrections pursuant to the provisions of the Act of 1953.
PRISONS AND PRISONERS-Prisoners-Misdemeanor
State Board of Corrections has authority to receive misdemeanor prisoners from a Mayor's court of a municipality where there is no City or County Court in that county.
March 8, 1954
Honorable R. E. Warren, Director State Board of Corrections
I have your letter in regard to the above subjects with sentences attached. One of the above subjects was convicted in the Mayor's Court in the City of Alma, Georgia for the offense of "Driving very U. I." and the other was convicted in the same court on the same date for the offenses of "Driving very U. I., Reckless Driving, Public Drunkenness." Misdemeanor sentences were imposed by the court for four weeks and six weeks respectively at labor on Public Works. You ask whether or not the Board of Corrections has authority to receive these subjects and confine them in the State penitentiary system under such sentences. The provisions of Article VI, Section VI, Paragragh II of the Constitution of Georgia 'of 1945 (Code Section 2-4102), which were originally contained in an amendment of 1937 to the Constitution of Georgia of 1877, confer jurisdiction upon courts of Ordinary and Judges of the Police Courts of incorporated cities for the trial artd sentencing for misdemeanors of violators of the Georgia State Highway Patrol Act of 1937 and other traffic laws in counties in which there is no city or county clerk, provided the defendant waives a jury trial. This constitutional provision is implemented by statutory provisions contained in Chapter 92A-5 of the Annotated Code. As stated by the Supreme Court in the cases of Clarke v. Johnson, 199 Georgia 163, and Gibson v. Gober, 204 Georgia 714, prior to the adoption of this amendment the Legislature had no power to confer jurisdiction over crimes against the State upon a court created for the trial of municipal offenses. This former doctrine is embodied in the decision of the Supreme Court in the case of Grant v. Camp, 104 Georgia 428. However, the holding of the court in that case seems to have been modified by the constitutional amendment and Supreme Court decisions above referred to.

530
For this reason, it is my opinion that in the absence of a city or county court in Alma or Bacon County, and where the defendant waives in writing a jury trial, the Mayor's Court of the City of Alma has jurisdiction to impose a misdemeanor sentence for violation of traffic laws occurring within the corporate limits.
I might point out that the jurisdiction conferred extends only to traffic violations and does not extend to the offense of public drunkenness. Mathis v. Rowland, 208 Georgia 571.
I would suggest that when receiving prisoners under sentences by municipal courts the Board of Corrections require some officer of the committing court to furnish evidence of the fact that no city or county court exists having jurisdiction of the offense, and that the defendant has waived in writing a jury trial.
PRISONS AND PRISONERS-Prison Made Goods The State Board of Corrections is authorized to sell crushed stone to a
municipality.
March 30, 1955
Honorable Jack M. Forrester, Director State Board of Corrections
I acknowledge receipt of your letter requesting my opmwn on the question as to whether or not the State Board of Corrections can legally sell crushed stone to a municipality to be in turn used by a contractor in constructing streets for the municipality. It is stated that the sale of the stone is to be direct to the city, that the city itself will pay the State Board of Corrections therefor, and that the stone will then be delivered to the contractor for use on the project.
The Georgia Code, Annotated Supplement, Section 77-323 provides: "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." This section is taken from the Act of 1937 (Ga. Laws 1937, p. 484). Section 77-356 provides:
"Said Superintendent shall not, either with or without the direction and approval of the Governor, set up or operate any business, whether industrial or agricultural, for the sale of any products, manufactured or grown at any prison farm or penal institution, to the public in competition with private industries or agricultural activities, except for the needs of the State, its subdivisions, institutions, agencies, departments, and the labor used therein shall be primarily prison labor. In the manufacturing of products for the aforesaid limited purposes, no free labor shall be employed except foremen, electricians and necessary professional employees." Based on the foregoing I am of the opinion that the Board of Corrections would be legally authorized to sell the crushed stone to cities. What disposition the city makes of the stone after receiving title thereto would be immaterial.

531
PROFESSIONS, BUSINESSES AND TRADES-Accountants 1. All members of a firm must be Certified Public Accountants before the
firm may practice as Certified Public Accountants. 2. Nonresident who holds a certificate from some other State must
register with the Georgia State Board of Accountancy on or before January first of each year and pay the license fee to receive a certificate of registration in Georgia.
February 5, 1954
Mr. M. H. Barnes, Chairman Georgia State Board of Accountancy
You make inquiry as to the qualifications of Certified Public Accountants. The second paragraph of your letter reads as follows:
"One of the firms practicing as 'Accountants and Auditors,' all of whose members hold certificates as Certified Public Accountants issued by this or by other States, has asked if they can practice in this State as Certified Public Accountants and if so what action was necessary to enable them to do so." Section 84-213 of the Annotated Code of Georgia of 1933 makes it unlawful for any member of a firm or association to announce or state in writing or printing by advertisement or otherwise, that such firm is practicing as Certified Public Accountants unless all members of the firm are holders of valid and unrevoked certificates and are Certified Public Accountants within the meaning of this chapter. Section 84-211 makes provisions for licensing nonresident accountants and reads as follows:
"The holder of a valid and unrevoked certificate as a certified public accountant, or its equivalent, issued under the authority of any State or political subdivision of the State, or any foreign country, who is not a resident of the State of Georgia, may practice accountancy in this State by registering with the Board on or before January 1 of each year, and paying a fee of $10. Upon the payment of such fee the Board shall issue a certificate of such registration: Provided, that this fee shall not be assessed against residents of States not assessing residents of this State.'' So, it is my opinion, for a nonresident to become licensed so as to practice accountancy, it would be necessary for the nonresident who holds a certificate from some other state to register with the Board on or before January 1 of each year and pay the $10 fee, and upon the payment of such fee it would be the duty of the Board to issue a certificate of registration.
PROFESSIONS, BUSINESS AND TRADES-Accountants A firm practicing public accounting in Georgia, that has one or more
members who do not hold certificates as Certified Public Accountants issued by the State of Georgia, may not practice accountancy in Georgia as Certified Public Accountants.
February 15, 1954
Mr. M. H. Barnes, Chairman State Board of Accountancy
This is to acknowledge receipt of your letter of February 12, 1954, the second paragraph of which reads as follows:

532
"The specific question we wish answered is: 'Can a firm practicing public accounting in Georgia having one or more members who do not hold certificates as Certified Public Accountants issued by the State of Georgia practice accountancy in Georgia as Certified Public Accountants?'"
Section 84-213 of the 1933 Annotated Code of Georgia provides, among other things:
"It shall be unlawful for any member of a firm or association to announce or state in writing or printing, by advertisement or otherwise, that such firm is practicing as certified public accountants unless all members of the firm are holders of valid and unrevoked certificates and are certified public accountants within the meaning of this Chapter." So the answer to your question necessarily must be in the negative.
PROFESSIONS, BUSINESSES AND TRADES-Accountants The State Board of Accountancy cannot prescribe the place of the office
of an accountant who has been certified by the Board.
October 27, 1955
Honorable R. C. Coleman Joint Secretary, State Examining Boards
I am pleased to acknowledge your letter.
Your attention is called to the ruling of the Attorney General of Georgia to Honorable M. H. Barnes, Chairman of the State Board of Accountancy, dated February 5, 1954, which is clear and without need of further clarification, except as to specifically point out that this opinion was not restricted to any particular state or national firms.
The records of your office show that the firm of Smoke, Davis and Nixon under consideration is composed of Paul R. Smoke, holder of Georgia certificate as a Certified Public Accountant No. 168, Jewel A. Davis, holder of Georgia certificate as a Certified Public Accountant No. 276, and Francis C. Nixon, holder of Georgia certificate as a Certified Public Accountant No. 337.
Under the opinion of the Attorney General dated February 5, 1954, above cited, this firm under the law is authorized to practice as Certified Public Accountants for the reason that they have been granted certificates as Certified Public Accountants as provided by the Georgia Laws cited in said opinion, and they would also be entitled to transact and carry on the business of Certified Public Accountants in such office or building, or offices or buildings, as they may in their discretion determine necessary for the proper performance of their professional services to their clients.
It is my opinion that the State Board of Accountancy of Georgia does not have the authority or power to say that a person who has been issued a certificate by said Board as a Certified Public Accountant cannot open an office for the transaction and carrying on of his profession as a Certified Public Accountant, and to have a place where such person's clients may be able to go to and communicate with him in the transaction of his business as a Certified Public Accountant. It is my opinion, after a thorough and careful analysis of the Act creating the State Board of Accountancy, that it was the intention of the General Assembly of Georgia to create a Board for the purpose of ascertaining and certifying the qualifications of a person to practice as a Certified Public Accountant or public accountant,

533
but nowhere in said Act can I find where it was intended to confer upon this Board any authority to regulate and tell a person or a group as a partnership as to whether or not they can maintain an office to carry on the business of Certified Public Accountants after they have been granted a license to do so by said Board in this State.
Your attention is called to the principle of law that a public official can only exercise those powers and authorities specifically granted to him by the General Assembly of Georgia, and that any acts beyond these powers are unofficial and become personal acts, for which a person who has been damaged may proceed against as provided by law. Therefore, it behooves the members of the State Board of Accountancy to disassociate themselves from attempting, by regulation or otherwise, to say as to whther or not a person holding a valid Certified Public Accountant's license to practice in this State may or may not maintain an office for the conduct of his business.
Specifically, the firm of Smoke, Davis and Nixon, according to the records of your Department, is entitled to maintain an office or as many offices as they deem advisable to transact the business of Certified Public Accountants, under their names individually or collectively, so long as they hold a valid Certified Public Accountant's license from the State Board of Accountancy of Georgia.
PROFESSIONS, BUSINESSES AND TRADES-Architects The use of the firm name "X Architects and Engineers" is not illegal, if
at least one of the chief executive officers of such firm is a regular licensed architect.
May 21, 1956
Honorable C. L. Clifton Joint Secretary, State Examining Boards
This is to acknowledge receipt of your letter which reads in part as follows: "... This is to request an official opinion. Facts-[Certain individuals], all registered and practicing architects
and/or engineers have entered into a partnership arrangement under the name and style of 'Tri-State Architects and Engineers'.
"Question-Would such an operation be subject to injunction under Rule No. 12 of the Georgia State Board of Examination, Qualification and Registration of Architect beginning on page 14 and ending on page 17 of the attached pamphlet, together with Section 84-321 (a)?" Your question as I understand it to be, would such operation as set out in your letter be such a violation that an injunction would lie under Rule No. 12, together with Code Section 84-321 (a). The law governing the practice of architecture in Georgia provides, among other things, under Code Section 84-302 the following:
"... No firm, company, partnership, association, corporation, or other similar organization shall be registered as architects. Firms, companies, partnerships, association, and corporations may prepare plans, drawings, and specifications for buildings and structures as defined by this Act and perform the services. heretofore enumerated common to the practice of architecture, provided that at least one of the chief executive officers of such firms, companies, partnerships, associations, corporations, or similar companies, are registered architects in the State of Georgia under this

534
Act and provided further that the supervision of such buildings and structures shall be under the personal supervision of said registered architects and that such plans, drawings and specifications shall be prepared under the personal direction and supervision of such registered architects and bear their individual signatures and seals. Every firm, company, partnership, association, and corporation performing architectural services as described herein shall submit annually a certification as to the name of its executive officer who is a registered architect, his certificate number, and its compliance with the provisions for practice prescribed in this section."
Section 84-307 of the Code provides that the Board shall adopt all necessary rules, regulations and by-laws, not inconsistent with this Chapter and the Constitution and laws of this State and of the United States, to govern its times and places of meeting for organization and reorganization and the holding of examinations, etc.
Code Section 84-321 (a) mentioned in your letter reads as follows:
"As cumulative of any other remedy or criminal prosecution, whenever it shall appear to the Georgia State Board for Examination, Qualification and Registration of Architects that any person, firm, company, partnership, association, or corporation is or has been violating any of the provisions of this chapter, or the lawful rules, regulations or orders of the Board, or any of the laws of the State of Georgia relating to the practice of architecture, said Board may on its own motion and must on the verified complaint in writing of any person or association, file an equitable petition in its own name in the Superior Courts of this State, alleging the facts, and praying for a temporary restraining order, an injunction and permanent injunction against such person, firm, company, partnership, association, or corporation, restraining him from violating such law, order, rule, or regulation, and upon proof of such facts the said court shall issue such restraining order, injunction and permanent injunction without requiring allegation or proof that the petitioner therefor has no adequate remedy at law." Rule 12, of which you make reference to in your question, is as follows: "Partnerships Practicing Architecture:
"The State Board for the Examination, Qualification and Registration of Architects has frequently been asked to rule on the proper use of names of partnerships practicing architecture in Georgia therefore on May 2, 1955 the following resolution was adopted:-
"BE IT RESOLVED:
"It is contrary to law to practice architecture under a partnership name, if one or more of the persons referred to in the partnership name is deceased, is not actively engaged in the practice of architecture or is not currently registered to practice architecture in Georgia, unless the true facts are publicly disclosed.
"In order to further reply to questions the following examples are given as being considered legal for use on letterheads, drawings, etc. Not on seals.
"1.-'DOE, ROE & BROWN, Architects' Legal if all three members are registered architects.
"2.-'Architectural Office of ROE & DOE'. Legal if both partners are registered architects.

585

"3.-'DOE, ROE & SMITH-JOHN E. SMITH, Architect'. Legal provided that Smith is registered as an architect although Doe and Roe may not be registered as architects.

"4-'DOE, ROE, BROWN & BLACK-ARCHITECTS & ENGINEERS'.

Legal provided each person is registered in his own profession and

pro1rided it is made clear as to the identity and status of each member.

This is often accomplished by listing the names thus:

John Doe, A.I.A.

George Brown, A.S.M.E.

Richard Doe, A.S.C.E.

Frank Black, R.A. (or 'Architect')

It is also proper to list staff members with their titles, for example:

James Blue, Office Manager

T. M. Snow, Accountant

Ralph Smith, Delineator

"5.-'JOHN JONES-Architect

WILLIAM SNOW-Consulting Architect'

This is legal provided Jones is registered in Georgia and provided

the status of Snow is made clear. This could be done by the addition of a

notation reading 'Registered__________ (other) State.'

The following examples are given as being considered Not Legal:

"6.-'JOHN DOE & ASSOCIATES, Architects'.

Illegal unless the 'Associates' are identified.

This is often accomplished by listing the 'associates' names thus:

John Doe, A.I.A.

George Brown, Structural Engineer

Richard Roe, Architect

Frank Black, Mechanical Engineer, Etc.

"7.-'JOHN DOE, Architect, FRANK BLACK, Associate'.

Illegal unless Black is registered in Georgia because the use of the

title 'associate' appears to indicate that Black is also a registered architect.

"8-When a former member of a partnership is not living or is not

registered in Georgia, it is illegal to practice architecture under the former

partnership name unless the facts are clearly stated, for example:

'JOHN DOE, Architect, successor to DOE & BROWN'; or

'OFFICE OF DOE & BROWN, John Doe, Architect'.

It is proper to place on the office stationery, clarification of the status

of the partners somewhat as:-

John Doe, A.I.A.

Arthur Brown, 1890-1949

"9.-'DOE BROTHERS-Architects'.

This is illegal because the names of the 'brothers' are not given,

although they both are all may be registered.

"10.-A corporation is not a person, therefore because it cannot be

registered as an architect in Georgia it is illegal to practice architecture

under the following names, even if the persons whose names appear are

registered:-(with the exception to (a))

(a) 'JONES, SMITH, SNOW AND ASSOCIATES, Architects'.

Legal provided all three are registered and the associates are identi-

fied and their status made clear.

(b) 'THE JONES-FRANK ARCHITECTURAL CO.'

(c) 'JONES BROWN & CO., ARCHITECTS'

(d) 'FRANK L. JONES, INC., ARCHITECTS'

(e) 'UNIVERSAL DESIGNERS, INC., ARCHITECTS'

(f) 'BLACK, INC.-DESIGNERS'

(g) 'ATLANTA ARCHITECTS & ENGINEERS'

(h) 'ASSOCIATED ARCHITECTS, INC.'

(i) 'SCHOOL EQUIPMENT COMPANY, DESIGNERS'.''

536
In your request for an opinion, you state that a group of people who are either registered and practicing architects or engineers, have entered into a partnership arrangement under the name and style "Tri-State Architects and Engineers." You then asked if these people could be enjoined from the use of the name "Tri-State Architects and Engineers".
It is my opinion that if at least one of the chief executive officers of such firm is a regular licensed architect, such firm could legally use the trade name "Tri-State Architects and Engineers," and would not be subject to be enjoined in a court of equity under Code Section 84-321 (a) or Rule 12.
PROFESSIONS, BUSINESSES AND TRADES-Barbers and Hairdressers (Unofficial) Discusses legality of giving home permanent waves when no charge is made for the service.
December 14, 1954
Mrs. C. H. Hale You state in your letter that you have been advised by your lawyers that giv-
ing Toni's [home permanent waves] is not a violation of the law unless you charge for your work. I shall not attempt to say what the law is in this matter, but rather call your attention to the following Code Sections. Code Section 84-401 of the 1933 Annotated Pocket Part of the Code reads as follows:
"To shave or trim the beard, cut or dress the hair, to give facial or scalp massaging, facial or scalp treatment with oils or creams and other preparations made for this purpose, either by hand or mechanical appliances, to singe and shampoo the hair, or to dye the hair of any living person for hire or pay, shall be considered as practicing the occupation of a barber within the meaning of this Chapter.
For the purposes of this Chapter, a hairdresser, the word "hairdresser" being synonymous with "beautician," shall be any person who does any of the things enumerated in this section, and who does permanent waving of the human hair for compensation but does not for compensation shave the masculine beard. Any person who does any of the things above enumerated and who does not do permanent waving of the human hair for compensation, but does shave the masculine beard for compensation shall be a barber, for the purposes of this Chapter." Emphasis supplied.)
Code Section 84-402 of the Annotated Pocket Part of the Code provides as follows:
"It shall be unlawful for any person to follow the occupation of a barber or hairdresser in any city or town or outside of the cities and towns, unless he or she shall have first obtained a certificate of registration as provided in this Chapter.
This Chapter shall have uniform operation throughout the State to that no barber, hairdresser, barber school or college, beauty school or college, barber shop or beauty shop shall be exempt from regulation." (Emphasis supplied.)
Code Section 84-9904 of the 1933 Annotated Code provides among other things that if any person shall violate any other provision of Chapter 84-4, he shall be guilty of a misdemeanor.
This law is so clear that it needs no interpretation.

537
PROFESSIONS, BUSISNESSES AND TRADES-Barbers and Hairdressers The State.Board of Barber and Hairdresses Examiners has authority to
. promulgate reasonable rules and regulations as to sanitary conditions prevailing i1;1 barber shops and beauty shops.
August 3, 1955
Honorable J. H .. Parham, Chairman State Board of Barber and Hairdresser Examiners
You request an opinion on Rule No. 3 set up by your Board. You set out Rule No. 3 as follows:
"Rule 3. Rooms or space used for barber shops, beauty shops, schools or colleges shall be so constructed that they can be kept sanitary and separated from other places of business by such partitions as will accomplish this end. They shall be well lighted with sufficient outside light, if possible, and be well ventilated and properly heated under standard rules and regulations for the construction of such buildings. They shall not have a floor space of less than 120 square feet.
"All places of business used as barber shops, beauty shops, schools and colleges shall not have any door leading into a dwelling and shall be screened with sixteen strand wire to the inch or a ceiling fan not over two feet from all doors which will adequately serve the same purpose."
The last paragraph of your letter reads as follows:
"The question is can the Board enforce said Rule where there is a large opening in a side wall petition between a barber or beauty shop and a clothing store, or an opening in the end of a barber or beauty shop connecting with a dry cleaning establishment."
Section 84-404, Cumulative Pocket Part, 1933 Annotated Code of Georgia, provides as follows:
"84-404. Such Board shall have power to adopt reasonable rules and regulations prescribing the sanitary requirements of a barber or beauty shop subject to the approval of the State Board of Health, and to cause the rules and regulations to be printed in a suitable form, and to transmit a copy thereof to the proprietor of each barber and beauty shop. It shall be the duty of every proprietor or person operating a barber or beauty' shop in any city or town or outside of the towns and cities, to keep a copy of such rules and regulations posted in a conspicuous place in his shop so as to be easily read by his customers. A failure of any such proprietor to keep such rules so posted, or to observe the requirements thereof, shall be sufficient ground for the revocation of his license, but no license shall be revoked without a reasonable opportunity being offered to such proprietor to be heard in his defense. Any member of said Board shall have power to enter and make reasonable examination of any barber or beauty shop in any city or town, or in the country outside of the cities and towns, during business hours for the purpose of ascertaining the sanitary conditions thereof. Any barber or beauty shop in which tools, appliances, .and furnishings in use therein are kept in an unclean and unsanitary condition, so as to endanger health, is hereby declared to be a public nuisance and the proprietor thereof shall be subject to prosecution and punishment therefor. Said Board shall have authority to require employees in such shops to annually stand a physical examination.

538
The Board may appoint not more than five inspectors for such period of time as necessary to adequately enforce the provisions of this Chapter. Such inspectors shall be experienced barbers and/or beauticians and hairdressers and they shall receive five dollars a day for their services and actual traveling expenses, same to be paid from fees collected by authority of said Board." In the case of Eason v. Harrison et al, 181 Ga. 322, Head Note 1, it is held that the Board shall have power to adopt reasonable rules and regulations not inconsistent with the Constitution, the laws of the United States or of the State or with the terms of this Chapter. In pursuance thereof, the Board adopted a regulation requiring every applicant for an annual renewal license to have a laboratory report and a doctor's certificate showing his freedom from infectious and contagious disease. It was held that this was a reasonable rule and regulation. If your Board has regularly adopted Rule No. 3 above set out, and said Rule has the approval of the State Board of Health, then it is my opinion that Rule No. 3 may be enforced by the State Board of Barber and Hairdresser Examiners.
PROFESSIONS, BUSINESSES AND TRADES-Chiropractors 1. A Chiropractor must attend at least one educational program con-
ducted by the Georgia Chiropractic Association before his license may be renewed.
2. Attendance at National Educational Convention or other State Educational Convention does not satisfy requirement.
October 15, 1954
Mrs. Mattie C. Stephens, Secretary Georgia State Board of Chiropractic Examiners
This is to acknowledge receipt of your request. The first part of your letter reads as follows:
"The State Board of Chiropractic Examiners would like to have an opinion on Paragraph 84-521 concerning the renewal of licenses by attendance of at least one of the two educational programs of the Georgia Chiropractic Association." Section 84-521, Pocket Part of the Annotated Code of Georgia, 1933, dealing with the subject about which you make inquiry reads in part as follows:
"Every person who receives, or has received a license to practice chiropractic from the State Board of Chiropractic Examiners shall pay the said Board on or before January 1st of each and every year, beginning with the year 1940, a fee of $2, which shall renew his license to practice chiropractic for the ensuing year, provided, however, that said Board has satisfactory evidence that applicant for renewal attended at least one of the two educational programs conducted by the Georgia Chiropractic Association, during the preceding year." This Code Section is very clear that before a practitioner may have his license renewed he or she would be required to furnish the Board with satisfactory evidence of having attended at least one of the two educational programs conducted by the Georgia Chiropractic Association during the preceding year. It is my opinion that before the license may be renewed by the Board that the Board must have before them satisfactory evidence of the applicant's having attended at least

,539
one of two educational programs conducted by the Georgia Chiropractic Assciation during the preceding year.
The second question is set out in paragraph 3 of your letter, the question being: "May the Georgia State Board of Chiropractic Examiners accept in
lieu of evidence of the practitioner having attended at least one of the two educational programs conducted by the Georgia Chiropractic Association during the preceding year evidence that the practitioner, either he or she, has attended the National Educational Conventions or other State Educational Conventions?" The answer to your second question must necessarily be in the negative for the reason that the law makes no such exceptions.
PROFESSIONS, BUSINESSES AND TRADES-Chiropractors The State Board of Chiropractic Examiners is without authority to give
examinations to those students who have graduated from a school teaching four years of nine months each, but only requiring the attendance of twentyseven months.
April 28, 1955
Dr. Irving Rose In the first paragraph of your letter you state: "Most chiropractic schools
allow but ten per cent absenteeism. We do have one chiropractic college that states in their catalogue that they allow twenty-five per ce:nt absenteeism and still graduate." The last paragraph of your letter reads as follows:
"The point that the Board wants to know is, specifically, are we permitted to examine a student from this one college that allows twentyfive per cent absenteeism and still graduates. Hoping that this is not troubling you too much, I beg to remain ..." Section 84-507, Annotated Code of Georgia, 1933, Cumulative Pocket Part, 1951, sets up the qualifications to practice chiropractic. Among other qualifications, this Code Section provides:
"... Each applicant shall be of good moral character and shall be a graduate of a chartered chiropractic school or college which teaches only attendance courses and requires a four-year standard college course .. ," In the case of Moore et al v. Robinson, 206 Georgia, page 27 (6), the court construed four-year standard college course to mean a four-year college course of nine months each year. The court in construing this question used the following language:
"Four-year standard college course, as used in the Act of 1939 (Ga. Laws 1939, p. 225), which amended the original chiropractic Act of 1921 (Ga. Laws 1921, p. 169), to mean a four-year college course of nine months each." It is my opinion that a chiropractic school or college which teaches a four-year
a course of nine months each, but allows student to be absent twenty-five per cent
of the time and still allows the student to graduate, would not comply with the law requiring four years of nine months each. To allow a student to be absent twenty-five per cent of 36 months would be to require him to attend college for a period of tim~ equal to three years of nine months each.

540
Therefore, it is my opinion that the Georgia Board of Chiropractic Examiners is without authority to give examinations to those students who have graduated from a school or college teaching four years of nine months each, but only requiring the attendance of twenty-seven months.
PROFESSIONS, BUSINESSES AND TRADES-Engineers A professional engineering license does not authorize the holder thereof
to engage in the practice of land surveying.
March 30, 1956
Honorable M. E. Cox, Chairman State Board of Engineers and Land Surveyors
This is to acknowledge receipt of your request for an official opinion. Your question is:
"Does a professional engineering license authorize the holder thereof to engage in the practice of land surveying ?" The answer to this question must necessarily be in the negative. That is, a license to practice professional engineering does not carry the authority to practice the trade or profession of land surveying. Code Section 84-2103 of the Annotated Code of Georgia 1933, defining the term professional engineering reads as follows:
"The term 'professional engineer' as used in this Chapter shall mean a person who is qualified by reason of his knowledge of mathematics, the physical sciences, and .the principles by which mechanical properties of matter are made useful to man in structures and machines, acquired by professional education and practical experience, to engage in the practice of engineering as hereinafter defined.
"The term 'engineering' as used in this Chapter shall mean the practice of the art and science by which mechanical properties of matter are made useful to man in structures and machines, and shall include any 'professional service, such as consultation, investigation, evaluation, planning, designing, or responsible supervision of construction or operation, in connection with any public or private utilities, structures, buildings, machines, equipment, process, works or projects, wherein the public welfare, or the safeguardi:ng of life, health or property is concerned or involved, when such professional service requires the application of civil, electrical, chemical, or mechanical engineering principles and data 'and training in the application of mathematical and phyiscal sciences. A person shall be construed to practice or offer to practice professional engineering, within the meaning of this Chapter, who by verbal claim, sign, advertisement, letterhead, card, or in any other way represents or holds himself out as able or qualified to perform, or who does perform any of the services hereinbefore set out. Nothing contained in this Chapter shall include the work ordinarily performed by persons who operate or maintain machinery or equipment.
"The term 'engineer-in-training' as used in this Chapter shall mean a candidate for registration as a professional engineer who is

541
(a) A graduate in an approved engineering curriculum of four years or more from a school or college approved by the Board as of satisfactory standing; or
(b) Who has had four years or more of experience in engineering work of a character satisfactory to the Board, and who, in addition, has successfully passed the examination in the fundamental engineering subjects prior to completion of the requisite years of experience in engineering work;
(c) Who shall have received from the Board, as hereinafter defined, a certificate stating that he has successfully passed this portion of the examinations as provided in Section 84-2129."
The same Code Section defines the term land surveyor in the following language:
"The term 'land surveyor' as used in this Chapter shall mean a person who engages in the practice of land surveying as hereinafter defined. The practice of land surveying within the meaning and intent of this Chapter includes surveying of areas of the earth surface for their correct determination and description and for conveyancing, and recording, or for the establishment or re-establishment of land boundaries and the plotting of land and subdivisions thereof.
"The term 'Board' as used in this Chapter shall mean the State Board of Registration for Professional Engineers and Land Surveyors, provided for by this Chapter. (Acts 1945, pp. 294, 296.)"
It is clear that the qualifications for a professional engineer are different from that of the land surveyor.
Code Section 84-2131 of the Annotated Code of Georgia 1933, provides among other things the following:
"Each registrant hereunder shall, upon registration, obtain a seal of the design authorized by the Board, bearing the registrant's name and the legend, 'Registered Professional Engineer,' or 'Registered Land Surveyor.' Plans, specifications, plats and reports issued by a registrant shall be stamped with the said seal when filed with public authorities, .. .''
Code Section 84-2129 of the Annotated Code of Georgia 1933, provides as follows:
"... Separate examinations shall be given for the purpose of determining the qualifications of applicants for registration in professional engineering and in land surveying. . . .''
Code Section 84-2122 sets out the qualifications for professional engineers. Code Section 84-2123 sets out the qualifications for land surveyors. The last two Code Sections provide different qualifications for professional engineers and land surveyors.
Therefore, it is my opinion that a license authorizi:ng the practice of professional engineering does not carry with it the right to practice land surveying. Nor, would a license as a land surveyor authorize the holder thereof to practice professional engineering.

542
PROFESSIONS, BUSINESSES AND TRADES-Engineers It is illegal for one to advertise as an Engineer Company and engage
in laying sewer grades, street grades, etc., and the business practices not carried on under the direction of professional engineers registered in the state are a violation of the Jaw.
August 23, 1956
Honorable M. E. Cox, Chairman State Board of Regist:ration for Professional Engineers and Land Surveyors
The first paragraph of your letter reads as follows:
"We have had a number of reports from a firm 'B Engineering Company' who seems to be a real estate developer in Macon, Georgia. He advertises in the paper and telephone book as 'B Engineering Company' and implies that he has qualified engineer personnel to do engineering work. As a matter of fact, we have been told that in his real estate development he has laid sewer grades, street grades, etc., which bylaw must be done by registered engineers. I am attaching hereto a letter from Mr. Futch, our special investigator, who after three trips to Macon, Georgia, finally contacted Mr. B."
You then say, "Please give us an opinion as to whether Mr. B has t)le right to advertise as 'B Engineering. Company' without having licensed engineers in his organization."
Section 84-2102 of the Annotated Code of Georgia reads as follows: "84-2102. It shall be unlawful for any person to practice or to offer
to practice in this State, professional engineering or land surveying, as defined in the provisions of this Chapter, or to use in connection with his name or otherwise assume, use, or advertise any title or description tending to convey the impression that he is a professional engineer or land surveyor, unless such person has been duly registered under the provisions of this Chapter."
Code Section 84-2135 reads as follows:
"84-2135. A firm, corporation, copartnership, or an association may engage in the practice. of professional engineering or land surveying in the State: Provided only such practice is carried on under the direction of professional engineers or land surveyors respectively, who are registered in this State."
Code Section 84-9937 reads as follows:
"84-9937. Any person who shall practice, or offer to practice, the profession of engineering or land surveying in this State without being registered or exempted in accordance with the provisions of this Chapter, or any person presenting or attempting to use as his own the certificate of registration or the seal of another, or any person who shall give any false or forged evidence of any kind to the Board or to any member' thereof in obtaining a certificate of registration, or any person who shall falsely impersonate any other registrant of like or different name, or any person who shall attempt to use an expired or revoked certificate of registration, or any person who shall violate any of the provisions of this Chapter shall be prosecuted before a court of competent jurisdiction and if found guilty punished as for a misdemeanor and subject to fine or imprisonment at the option of the court, such fine shall be a minimum

543
of $100 and not more than $500, and such imprisonment shall be for a term not exceeding three months." It is my opinion that if Mr. B is doing the things stated in the first paragraph of your letter, above quoted, he would be in violation of the law and subject to punishment under Section 84-9937 of the Annotated Code of Georgia, above quoted, unless he is operating under the provisions of Section 84-2135 of the Annotated Code of Georgia, above quoted; that is, unless his practice is carried on under the direction of professional engineers who are registered in this State.
PROFESSIONS, BUSINESSES AND TRADES-Funeral Directors (Unofficial) Residence is a necessary qualification in order to be licensed as a Funeral
Director in this State. Laws regulating Embalmers and Funeral Directors quoted.
April 4, 1955
Honorable Murray A. Battles This is in compliance with the request set out in the letter from Governor
Griffin to you. Paragraph 2 of the Governor's letter to you reads as follows: "I am today requesting the Honorable Eugene Cook, Attorney General, to advise you whether Alabama licensed funeral directors may be licensed in Georgia, and the necessary procedures to secure same. I .am sure Mr. Cook will contact you at once." Section 9 of the Act regulating embalmers and funeral directors reads as
follows: "Section 9. Qualifications of applicant for license. Apprentices.
Exceptions. (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; (c) a citizen of the United States; (d) of good moral character, which fact shall be evidence by two affidavits, one from a funeral director, and one from an embalmer, both of whom are at the time duly licensed and engaged in active practice in this State; and (e) possessed of a high school education of not less than sixteen Carnegie units or the equivalent thereof, the determination of the equivalent education of the applicant to be left to the discretion of the board.
(2) In addition to the qualifications set out above, an applicant for an 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.
(3) In addition to the qualifications set out in paragraph (1) above, an applicant for a funeral director's license shall: (a) have completed thirty-six months as an apprentice funeral director under the direct supervision of a licensed funeral director actively engaged in the practice of funeral directing in this State; or (b) if, however, the applicant is a licensed embalmer of this State, he shall be required to serve only twelve -nonths' apprenticeship.

544
(4) Each apprentice, upon commencing his apprenticeship, shall register as an apprentice with the Joint-Secretary and pay such fee as may be fixed by the board. He shall notify the board immediately upon completion of his apprenticeship and as an evidence thereof; submit to the board a sworn affidavit signed by the licensed embalmer or funeral director under whom such apprenticeship was served. The fee for registration of an apprentice shall at no time exceed the sum of five dollars, and shall be paid and dispersed as other fees provided for under the terms of this Act.
(5) Any person holding a valid funeral director's or embalmer's license in another state or territory, which has been in effect continuously for five years or more shall not.be required to serve an apprenticeship to qualify for examination before the board in this State.
(6) Any person who is at the time of the passage and approval of this Act and has been continuously :for a period of one year prior thereto actively engaged in the business or profession of a funeral director in this State shall be entitled to a license as a funeral director without the necessity of taking an examination, provided such application is submitted to the board within six months from the date of the passage and approval of this Act.
(7) That any firm, corporation or partnership that is in business at the time of passage shall not be denied a license under the provisions of this Bill."
This section sets out the qualifications of applicants and provides among other things that an applicant for a license to practice as an embalmer or funeral director must be a resident of Georgia.
Section 28 of the Act above referred to provides a penalty for anyone violating the provisions of this Act and reads as follows:
"Section 28. Penalty for illegal practice.-Any person who shall practice or hold himself or herself out as practicing the science of embalni.o ing or the business or profession of funeral directing, or shall act as an embalmer or funeral director, or assist in so doing as an apprentice, without having complied with the provisions of this Act, or who shall practice embalming or engage in the business of funeral directing, without having paid the fee for license or renewal of license as provided herein, or who shall violate any of the provisions of this Act, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided by law in such cases." Upon the study of the Act in question it is my opinion that there is no provision for licensing of embalmers and funeral directors by comity.
PROFESSIONS, BUSINESSES AND TRADES-Naturopathy Naturopath may use the word "Doctor" only when followed by the word
"Naturopathy" or the letters "N. D."
July 23, 1954
Hon. William P. Mills, Chairman State Board of Naturopathic Examiners
This will acknowledge receipt of your request for an official opinion as to the use of the word "Doctor ot (Dr.)" in connection with your practice.

545
The Georgia Legislature in 1950 (Georgia Laws 1950, p. 168), created the Board of Naturopathic Examiners and provid~d for their appointment, organizational meetings, and provided for the licensing of practitioners and Section 6 of the Act provides as follows:
'''Section 6. That any person, other than as set out in Section 5, desiring to enter upon the practice of naturopathy, shall make written application to the Board of Naturopathic Examiners for a license to practice naturopathy. Said application shall be accompanied by a fee of $25.00. Any person making such application must be of good moral character, a high school graduate, must have. had at least one academic year of premedical schooling, and must have successfully completed at least four years study (of nine months each) or a total of 4,400 scholastic hours, in a ,reputable and approved college of naturopathy conferring the degree of naturopathy (N. D,). Nonresident applicants shall furnish the said Board with adequate character references, which references shall, be checked to the satisfaction of all members of the Board.
Upon satisfactory evidence of qualification, the applicant shall be permitted to take the examination for license to practice naturopathy. Said examination shall be partially oral and partially written, and shall be conducted by the Board of Naturopathy Examiners. In the event the applicant successfully passes said examination, he shall be issued a license by the Board entitling him to engage in the practice of naturopathy in Georgia. No applicant shall be permitted to take more than three examinations in all."
This section provides that the applicant must have successfully completed at least four years study (of nine months each) or a total of 4,400 scholastic hours in a reputable and approved college of naturopathy conferring the degree of naturopathy (N. D.).
Notwithstanding the fact that the law requires the conferring of a degree upon a person licensed to practice naturopathy, the last paragraph of Section 16 of the Act above referred to makes the following provision:
"Those practicing naturopathy in this State shall not be deemed or designated as doctors or physicians, except as provided herein." It is my opinion that the words "except as provided herein" could have no other meaning than that a practitioner would be authorized to use the word Doctor only when followed by Naturopathy or N.D. For example, John Doe, Doctor of Naturopathy, or John Doe, (N.D.).
PROFESSIONS, BUSINESSES AND TRADES-Naturopathy Naturopathic Board may maintain a high educational standard for
practitioners.
November 29, 1954
Mr. John L. McCallum, N. D., Vice-President Georgia Board of Naturopathic Examiners
This is to comply with your written request. Your letter reads as follows: "Under Section 4 of the Act of 1950, a copy of which is herein enclosed
the Georgia Board of Naturopathic Examiners passed a rule, a copy of which is here set out, 'In order to maintain a high educational standard in the Naturopathic profession and to keep practitioners abreast of current developments in Naturopathy, each licensee of this Board shall be required

546
to attend an annual educational meeting of such standards as will be recognized by the Georgia Board of Naturopathic Examiners.'
"We would appreciate an opinion as to whether or not this is a reasonable rule and one that may be enforced by the Board.'' Georgia Laws 1950, page 168, created by the Georgia Board of Naturopathic Examiners, provided for the appointment of the Board, and provided for examination and licensing of practitioners. Section 4 of this Act provides that the Board may have the authority to formulate rules and regulations and reads as follows:
"Section 4. That the said Board shall have the authority to formulate rules and regulations for the purpose of carrying out and enforcing the P!ovisions of this Act." It is my opinion that the rule set out in your letter in regard to maintaining a high education standard for practitioners is a reasonable rule and one that may be enforced by the Georgia Board of Naturopathic Examiners.
PROFESSIONS, BUSINESSES AND TRADES-Naturopathy Since the Georgia Board of Naturopathic Examiners was abolished by a
1956 Act, the Joint Secretary of .State Examining Boards no longer has any duties, powers, or responsibilities in connection with the practice of naturopathy, except to keep and maintain the records of the Georgia Board of Naturopathic Examiners, which came into being during the period of its legal existence; therefore, it is not within the jurisdiction of the Joint Secertary of Examining Boards to advise anyone on any matter in connection with the practice of naturopathy.
February 29, 1956
Honorable C. L. Clifton Joint Secretary, State Examining Boards
I am pleased to acknowledge your letter of February 17, 1956, enclosing a letter from Miss Kathryn Mac Vane relative to House Bill No. 121 of the 1956 General Assembly, relating to naturopathy.
In 1950 (Ga. Laws 1950, p. 168), an Act was passed by the General Assembly of Georgia creating the Georgia Board of Naturopathic Examiners with certain powers, duties, and provisions relating to the practice of naturopathy in this State, and this agency came under your jm:isdiction as Joint Secretary of the State Examining Boards as required by law.
The 1956 General Assembly, by enactment of House Bill No. 121, specifically abolished the Georgia Board of Naturopathic Examiners created by Georgia Laws 1950, page 168 by repealing said law in its entirety.
In view of the fact that the 1956 Act (House Bill No. 121) abolished the Georgia Board of Naturopathic Examiners, you no longer have any duties, powers, or responsibility in connection with the practice of naturopathy except to preserve, keep, and maintain the records of the Georgia Board of Naturopathic Examiners which came into being during the period of its legal existence.
Since you; in your official capacity as Joint Secretary of the State Examining Boards, have no duties, powers, or responsibilities in connection with the practice of naturopathy in this State, except as to the preservation of the records above pointed out, it would not be within your official province to officially advise Miss

547
Mac Vane on any matter in connection with the practice of naturopathy in this State, other than you may advise her to consult with her attorney.
Any violation of the criminal penalties in Section 3 of House Bill No. 121 falls within the same category as a violation of any other criminal law of this State, and the prosecution for such violation would come within the jurisdiction of the Solicitors of the criminal courts of the counties wherein an alleged violation may have occurred.
Any individual personal right that a person may feel that he is legally entitled to arising from any act of the Georgia Board of Naturopathic Examiners during its existence, would address itself to the courts of this State to determine his contentions.
PROFESSIONS, BUSINESSES AND TRADES-Nurses Advisory Committee to Practical Nurses Board serves without compen-
sation.
January 5, 1954
Honorable R. C. Coleman Joint Secretary, State Examining Boards
You ask my opinion as to whether or not "under Section 11 of the Practical Nurses Law the members of the Advisory Committee can be paid actual expense while in attendance of Board meetings."
Section 11 of the Act above referred to establishes an Advisory Committee and provides how the members shall be appointed and their duty, ang specifically provides that "the members of said Committee shall serve without compensation."
It is, therefore, my opinion that the question posed in your letter must be answered in the negative.
PROFESSIONS, BUSINESSES AND TRADES-Opticians Where the State Board of Dispensing Opticians receives an application for
a license under the "grandfather clause" of the Act creating the Board, the fee received therewith must be refunded if the application is rejected.
August 29, 1956
Honorable C. L. Clifton Joint Secretary, State Examining Boards
You state that an application has been filed with the Joint Secretary of the State Examining Boards for a license under the Act creating the State Board of Dispensing Opticians (Ga. Laws 1956, p. 148), requesting a license under Section 8 of said Act. You state that the applicant presented a check in the amount of $25.00 at the same time he filed his application. You say that the Board has ruled that he is not entitled to his license under Section 8 of the Act (commonly referred to as the "grandfather clause").
Your question is, since the Board has determined that the applicant is not entitled to a license under Section 8 of the Act, should the Board return the $25.00 check to the applicant?
The Act creating the State Board of Dispensing Opticians, approved February 17, 1956 (Ga. Laws 1956, p.148), creates a board to .be known as the State Board

548
of Dispensing Opticians, and provides for three different classes of applicants. Section 4 of the Act deals .with that class of applicants who desire to be licensed by examination, and reads as follows:
"Section 4. Examination of applicants for license to practice the trade or occupation of dispensing optician shall be made by the State Board of Dispensing Opticians, consisting of five (5) licensed dispensing opticians, according to the methods and covering subject matter deemed by it to be the most practical and expeditious to test the applicant's qualifications. The board may require the examination to be both written and oral. There shall be paid to the Joint-Secretary of the State Examining Boards by each applicant for license an examination fee of twentyfive ($25.00) dollars, which is accompanied by the application. No part of any fee is returnable under any circumstances. Failure to pass a satisfactory examination shall not debar applicant from participating in subsequent examinations before said board upon complying with the provisions of this Act." (Emphasis supplied.)
Section 8 of the Act deals with licen,sing applicants without examination, and reads as follows:
"Section 8. Any resident of the State of Georgia engaged in the trade or occupation of dispensing opticians, or who is engaged as a dispensing optician as an employee of a licensed physician or a licensed optometrist or a licensed dispensing optician, and who is so engaged at the time of the passage of this Act, shall be entitled to receive a license upon submitting proof of such practice to the State Board of Dispensing Opticians within a period of six months after the effective date of this Act, upon forms prescribed by said board and the payment of the fee aforesaid; otherwise, said dispensing opticions will be required to pass an examination in the same manner as other applicants. Nothing herein contained shall be construed to mean that an employee of a licensed physician or a licensed optometrist shall be required to secure a license under this Act, or be otherwise subject to the provisions of this Act, so long as said employee is working exclusively for and under the direct supervision of said licensed physician or said licensed optometrist or licensed optician and does not hold himself out to the public generally as a dispensing optician."
Section 9 of the Act deals with the licensing of a third class, that is, nonresident applicants, and reads as follows:
"Section 9. Any person who has been duly licensed to practice as a dispensing optician in any State of the United States which has a standard of qualifications and examination for such practice at least as high as that provided for in Georgia by this Act, and who has been principally engaged in said practice pursuant to such license, for a period of not less than two years preceding may, upon proper application to the board and upon payment of the sum of twenty-five ($25.00) dollars in lieu of examination and registration fees, be issued a Certificate of Registration without examination and shall thereupon be authorized to practice as a 'Registered Dispensing Optician' in this State subject to the provisions of this Act and rules and regulations of the board. Provided, that such State accords similar privilege to those wanting licenses issued by this State; and provided further that the applicant shall not have previously failed to pass an

541J
examination required in this State within five years, and that he intends to rel:)ide and practice as a dispensing opti~ian in this State." Section 8 of the Act does not require an examination, and it is my opinion that if the Board, upon reading the application for a license.unde!' Section 8, should determine that the applicant was not entitled to a license under Section 8, the applicant would be entitled to the return of his $25.00, and it would be the duty of the Board to return to the applicant the $25.00 that they had received with his application :for a license.
PROFESSIONS, BUSINESSES and TRADES-Opticians (Unofficial) Discusses. qualifications of applicants for license on Dispensing Optician.
December 5, 1956
Honorable Woodrow Lavender LAW Section 8 of the Act [Ga. Laws, 1956, p. 148] reads as follows: "Section 8. Any resident of the State of Georgia engaged in the trade or occupation of dispensing opticians, or who is engaged as a dis-
, pensing optician as an employee of a licensed physician or a licensed optometrist or a licensed dispensing optician, and who is so engaged at the time of the passage of this Act, shall be entitled to receive a license upon submitting proof of such practice to the State Board of Dispensing Opticians, within a period of six months after the effective date of this Act1 upon forms prescribed by said Board and the payment of the fee afore~ said; otherwise, said dispensing opticians will be required to pass an examination in the same manner as other applicants. Nothing. herein contained shall be construed to mean that an employee of a licensed physician or a licensed optometrist shall be required to secure a license under this Act, or be otherwise subject to the provisions of this Act, so long as said employee is working exclusively for and under the direct supervision of said licensed physician or said licensed optomertist or licensed optician and does not hold himself out to the public generally as a dispensing optician." Rule 13 of the Board reads as follows: "13. No individual, firm or corporation shall engage in the business of dispensing optician who is engaged in the manufacture or wholesale distribution to dispensing opticians or optometrists of lenses, frames, optical supplies, optometric appliances or devices or kindred products."
QUESTIONS: "1. If a person were engaged in the trade of a dispensing optician at the time of the passage of the dispensing opticians act (Ga. Laws 1956, page 148), and made application on the prescribed forms, within the time limit, and paid his fee, would said person be entitled to receive his license without an examination under the provisions of section 8, of said act?" "2. Does the State Board of Dispensing Opticians have the authority under the terms of the aforesaid act to establish rules and regulations, with reference to a person's outside activities, and thus refusing to issue a license to one otherwise qualified to receive under section 8, of the aforesaid act?" "3. Assume that a person is entitled to a license without an examination

550
under the provisions of section 8, of the aforesaid act, does the State Board of Dispensing Opticians have the authority to pass rules and regulations which would bar such persons from receiving his licenses by reason of such person's affiliation with other legitimate business activities?"
"4. Does the State Board of Dispensing Opticians have the authority to refuse a license to a person, who is entitled to the same under the provisions of section 8 of the aforesaid act, when said person's other activities are in conflict with rule 13 of the State Board of Dispensing Opticians' Rules and Regulations?"
The answer to question one is yes. The answer to question two is no. The answer to question three is no. The answer to question four is no.
It is my opinion that any rule or regulation that would deprive a person of his license where such person is qualified under the law set out in Section 8 above quoted would be void. It is my opinion that Rule 13 above quoted conflicts with the clear and unambiguous letter of the law as set out in Section 8 of the Act above referred to.
PROFESSIONS, BUSINESS and TRADES-Pharmacy Describes method for the filling of a vacancy upon the State Board of
Pharmacy.
November 26, 1956
Honorable C. L. Clifton Joint-Secretary State Examining Board
This will acknowledge receipt of your request for a ruling upon filling vacancies on the Georgia State Board of Pharmacy. We will first set out the law to be considered in this matter. We will then set out the facts to be considered.
LAW:
"Code Section 84-1302. Georgia State Board of Pharmacy; creation. -There is hereby created and established a board to be known as the 'Georgia State Board of Pharmacy,' with the duties and powers hereinafter in this Chapter provided. (Acts 1927, p. 292.)
"Code Section 84-1303. Number and Terms of members of Board; eligibility; vacancies; reappointments.-The Georgia State Board of Pharmacy shall consist of five members and shall be commissioned by the Governor, and shall serve for a term of five years, or until their successors are duly appointed and qualified. No person shall be eligible for appointment to membership on said Board who is not a licentiate of the Board of Pharmacy of this State, and who has not actually been engaged for a period of five years or more in the retail drug business. If any member of said Board after his appointment and qualification shall cease to be actually engaged in the retail drug business, his membership on said Board shall at once become vacant; and no person who has any official connection with any school or college of pharmacy shall be eligible to appointment, and if any member of said Board shall, after his appointment and qualification, become connected with any school or college of pharmacy, his membership on said Board shall immediately become vacant. No member of the Board who has served one full term shall be eligible to reappointment until there has intervened a period of one full term from the date of the expiration of his membership to the date of his reappointment. (Acts 1927, p. 292.)"

551
"Code Section 84-1304. Georgia Pharmaceutical Association to elect one member of Board.-The Georgia Pharmaceutical Association shall from its membership annually elect one member for the next occurring vacancy on the Board of Pharmacy, who shall meet the qualifications required by this Chapter. When regularly submitted to him by the secretary of said Association, the Governor shall make the appointment for the vacancy occurring in said Board. (Acts 1927, p. 293.)"
"Code Section 84-1305. Vacancies on Board, how filled.-Vacancies on the Board of Pharmacy, occurring other than by expiration of the term of a member, shall be filled for the unexpired term only by the member receiving the next highest number of votes at the last annual convention of the Georgia Pharmaceutical Association. (Acts 1937, p. 293~)" [See Ga. Laws, 1957, p. 92.]
FACTS. (As I understand them to be) Mr. T. M. McCleskey is now a member of the Georgia State Board of Pharmacy and his term will expire on November 30, 1956. The Georgia Pharmaceutical Association at its annual convention in April, 1956, elected Mr. Mell T. Anderson to fill the next occurring vacancy upon the Board by giving Mr. Anderson the highest number of votes, and at the same election Mr. Jesse Goldman received the next highest number of votes. Prior to the expiration date of Mr. McCleskey's term, Mr. Mell T. Anderson died.
QUESTION: 1. Under the above stated law and facts, would Mr. Goldman be entitled to qualify to fill the vacancy of Mr. McCleskey whose term will expire on November 30, 1956? 2. If the answer to this question is in the negative, then what procedure should the Pharmaceutical Association follow under the above existing facts?
OPINION: It is my opinion that Mr. Goldman would not under the facts and under the law be entitled to fill the vacancy occurring by reason of the expiration of Mr. McCleskey's term. The law is not clear as to just what action the Georgia Pharmaceutical Association should follow under the above existing facts. However, Code Section 84-1303 provides that Mr. McCleskey shall serve for a term of five years, or until his successor is duly appointed and qualified. As above stated, the law does not seem to clearly make a provision to take care of the existing situation. However, it is my opinion that the Board may at its next annual convention elect someone to fill the term which Mr. McCleskey will be serving.
PROFESSIONS, BUSINESSES and TRADES-Real Estate Brokers A person who has not held a real estate salesman's license for at least
twelve months is not entitled to stand a real estate broker's examination.
March 18, 1956
Honorable L. C. Pitts Chairman, Georgia Real Estate Commission
This is to acknowledge receipt of your request for an opinion, your request being as follows:

552
"I will appreciate ah opinion from your office construing the 1953 Act in regard to the word MAY instead of the word MUST of the 1953 Act."
I assume that you desire an opinion from this office as to whether or not a person who has never held a real estate salesman's license is qualified and entitled to take an examination for a real estate broker's license.
After a careful study of the Act approved December 17, 1953 (Ga. Laws 1953, p. 203, Nov.-Dec. Sessi~n), and also a study of Code Section 84-1409 of the Pocket Edition, Annotated Code of Georgia of 1933, which the 1953 Act amended, it is my opinion that a person who has never held a real estate salesman's license is not entitled to take the examination for a real estate broker's license. The caption of the 1953 Act, p. 203, reads as follows:
"An Act to amend Section 84-1409 of the Code of Georgia of 1933, relating to the qualifications of applicants for license to act as real estate brokers or salesmen and the bond to be given so as to change the require~ ments of the bond; to repeal conflicting laws; and for pther purposes." Section 1 of the 1953 Act reads as follows: "Section 1. Section 84-1409 of the Code of Georgia of 1933, relating to the qualifications of applicants for license to act as real.estate brokers or salesmen and the bond to be given, is hereby amended by striking the following: "and provided that all licensed brokers shall give bqnd in the sum of $1,000, acceptable to and to be approved by said commission, to abide by all laws enacted in reference to such brokers.", and inserting in lieu thereof the following: "and such licensed brokers shall give an indemnity , bond in the amount of $1,000, in a form approved by the commission, and such shall be an indemnity bond in which the broker and his surety are held and firmly bound to the Governor of the State of Georgia, in his. official capacity as such and his successors in office; and the condition of this obligatien is that the bond shall be subject to suit by action thereon by any person who shall sustain actionable injuries or loss or damage, and it shall be for the purpose of indemnifying any person injured, or damaged, or who may suffer loss, due to any wrongful act of any broker, his agents or employees. Said broker shall be bound under said bond to faithfully perform all of his duties as such broker so far as public citizens are concerned.", so that Section 84-1409 when so amended shall read as follows:
"Licenses shall be granted only to persons who are trustworthy and bear a good reputation for honesty and fair dealing and are competent to transact the business of a real estate broker or real el'ltate salesman in such a manner as to safeguard the interests of the public and only after satisfactory proof thereof has been presented to the Georgia Real Estate Commission. Before any individual may be granted a broker's license he may have had a salesman's licl')nse in the State for at least 12 months and must have been actively engaged in the real estate business for such period of time, and must have passed an examination provided by the commission; except that in extraordinary cases the commission may in its discretion grant a temporary certificate; and except when the applicant has previously held a broker's license in this State he will be eligible for reinstatement of his license upon satisfactory proof being furnished the commission that he was in good standing with the Georgia Real Estate Commission at the time of his retirement from the real estate business, and conditioned upon his passing an examination to be given by the commission, and such licensed broker shall give an indemnity bond in

553

which the broker' and his surety are held and firmly bound to the Governor of the State of Georgia, in his official capacity as such and his successors in office; and the condition of this obligation is that the bond shall be subject to suit by action thereon by any person who shall sustain actionable injuries or loss or damage, and it shall be for the purpose of indemnifying any person injured, or damaged, or who may suffer loss, due to any wrongful act of any broker, his agents, or employees. Said broker shall be bound under said bond to faithfully perform all of his duties as such broker so far as public citizens are concerned."

It is clear from reading this Section that it was never the intention of the

legislature to charige the word "must" in Section 84-1409 in the Pocket Edition,

Annotated Code of Georgia of 1933, from "must" to "may".

.

The caption of the Act o:!' 1953 states dearly the intention of the legislature

was to cpange the requirements of the bond which a real estate broker is required

to give. Then in Section 1 of the i953 Act, the legislature states clearly what

language they intended to strike from Section 84-1409 of the Code, and what

language they intended to insert in lieu thereof, and it is clear from reading this

Section that the legislature did not intimd.to strike the word "MUST" in line 8

of Section 84-1409 of the Pocket Edition, Annotated .Code of Georgia of 1933.

It is, therefore, my opinion that a person who has not held a real estate sales-

man's license for at least 12 months is not entitled to stand a broker's examination.

PROFESSIONS, BUSINESSES and TRADES-Taxes artd Fees (Unofficial)

Law relating to authority of municipal corporations and counties to tax

or license occup~tions or professions quoted.

.

April 27, 1955

Dr. W. C. Boswell

Your letter making inquiry as to fees and professional taxes, has been for-

warded to my office for an answer. Section 92-1909 of the Annotated Code of Georgia of 1933; Georgia Laws 1951,
page 157, Section 2; and Georgia Laws l953, page 207, all deal with the question about which you make inquiry.
Georgia Laws 1953, page 207, Sections 1 and 2, approved February 25, 1953, reads as follows:

"Section 1. From and after the passage of this Act no municipal cor-

poration 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, chiro-

practic, chiropody, dentistry, optometry, masseur, public accounting, em-

balming, funeral.directors; civil, mechanical, hydraulic, or electrical engineers or architecture except at th~ 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."

554
PROFESSIONS, BUSINESSES and TRADES-Wholesale Fish Dealers Commercial fishermen licensed by the Game and Fish Commission not
required to obtain wholesale fish dealer's license to sell their catch.
January 12, 1954
Mr. F. S. Carr, Director Food and Feed Division Department of Agriculture
I am in receipt of your request for my opinion as to the proper interpretation of the provisions of the Act approved March 4, 1953 (Georgia Laws 1953, JanuaryFebruary Session, page 521) amending the 1937 Act providing for licensing and inspection of wholesale fish dealers by the Commissioner of Agriculture so as to exempt from the provisions of said Act commercial fishermen licensed by the Game and Fish Commission.
I believe that you will agree that the provisions of the 1953 amendment are so clear that there can be no doubt that its purpose and effect is to exempt and relieve commercial fishermen who are properly licensed from the license fee and inspection requirements of wholesale fish dealers. To attempt to place any other interpretation on the act would be to ignore clear legislative pronouncements. For that reason, it is my opinion that the Commissioner of Agriculture should not require licensing and inspection under the wholesale fish de-alers act of commercial fishermen licensed by the Game and Fish Commission.
I do feel, however, that since the words "commercial fisherman" are not defined by the General Assembly, the Commissioner of Agriculture should determine in a given case whether or not the holder of a commercial fisherman's license is, in fact, a commercial fisherman or whether such person is simply claiming to be a commercial fisherman in order to avoid inspection and licensing. In other words, the 1953 Act does not make exemption solely dependent upon the procuring of a license from the Game and Fish Commission, but rather such exemption is made to depend on a particular individual's (1) being engaged as a commercial fisherman and (2) being properly licensed as such.
A proper test for determining such question would be whether or not a person claiming exemption as a commercial fisherman is engaged. only in selling or peddling his own catch, either at wholesale or retail, or whether such person is regularly engaged in the sale of fish or seafood caught by persons other "than himself.
It is my opinion that the legislature clearly intended to allow commercial fishermen licensed by the Game and Fish Commission to sell their own catch without complying with the 1937 fish dealers Act, but I do not believe that it was the intent or effect of the 1953 Act to allow a commercial fisherman's license to extend to its holder an immunity as to the sale and distribution of fish derived from other sources which other persons similarly situated do not enjoy. To adopt the latter interpretation would cast serious doubt upon the constitutionality of the Act, whereas the courts of this State have repeatedly held that the interpretation which will render an Act constitutional is to be preferred over one which will render it invalid.

555
PROPERTY-Etowah River Etowah River is owned by the landowners adjoining it.
September 2, 1954
Honorable Garland Peyton, Director Department of Mines, Mining and Geology State Division of Conservation Dear Mr. Peyton:
I am pleased to acknowledge your request of August 20, 1954, concerning permission to mine sand out of the Etowah River at Rome, Georgia.
In the Treaties of February 27, 1819 (Washington), and December 29, 1835 (New Echota), between the United States and the Cherokee Nation, the latter ceded to the former lands which included the Etowah River. When the Land Lots included in this territory were surveyed and granted, if any part of a lot was crossed by the Etowah River, the acreage covered by the river was included in the acres granted.
It would appear that the Etowah River is owned by the landowners adjoining it as it was included in the grants made by the State.
In addition, if we assume the Etowah is not a navigable stream, Ga. Code Ann. 85-1302 provides that the beds of such streams belong to the owner of the adjacent land and where the stream is the dividing line, each owner owns to the thread or center of the main current.
PROPERTY-Trespass by Flooding (Unofficial) Erecting a dam so as to flood the land of another without a license is a
trespass. A parol license to flood lands given by the owner operates as an easement when aded on and money is spent in constructing dam.
March 29, 1955
Mr. John F. Bradley, Chairman State A. S. C. Committee United States Department of Agriculture
This will acknowledge receipt of your letter of March 21, 1955 requesting information as to the rights and duties under State law of a participant in the Agricultural Conservation Program who constructs a dam causing water to flood the lands of another with the verbal consent of the latter. The solution to this question requires the synthesis and application of several rules of statutory and case law.
The owner of land has a right to the unmolested use and enjoyment of it. Anything that works hurt, inconvenience or damage to the land of another is a nuisance, 72-101, Georgia Code Annotated, which may be abated by the injured person. 72-203, Georgia Code Annotated. The obstruction of a watercourse so as to cause it to overflow or injure the land of another is a trespass upon the property. 105-1407, Georgia Code Annotated; 41 Georgia 162; 96 Georgia 415; 132 Georgia 246.
In DeVaughn vs. Minor, et al., 77 Georgia 809, the Supreme Court of Georgia held that anyone erecting a dam so as to flood the land of another without license is a trespasser.
The construction of a dam across a creek thereby causing water to back upon

556

the premises of another, gives rise to an action for injuries.- Wetter v. Campbell, 60 Georgia 267; Southern Railway Company. vs. Morris, 119 Georgia 234. It is, therefore, established beyond cavil that persons who flood the land of another without permission is guilty of trespass.
This general rule is subject to the exception that an easement to _flood thEl lands of another may be gained by prescription..That is to say, wherelands are flooded uninterruptedly for twenty years, adversely and under a claim or assertion of right a prescriptive title, i.e. easement, is obtained. Mitchell v. Rome, 49 Georgia 20.
In the early case of Phinizy v. The City Council of Augusta, _47 Georgia 260, it was held that any incorporeal right which might be lawfully granted, .as to the right to divert water from, or the right to ilow water upon, the land of another may be acquired by prescription, to-wit: by. the 1minterrupted use and. enjoyment thereof for twenty years.

Of course, the legal relationship is changed when permission to flood is given. The basic rule relative to permission is 85-1404, Georgia Code Annotated, which reads as follows:

"A parol license is primarily revocable at any time, if its revocation does no harm to the person to' whom it has been granted; but it is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easem~pt running with the land."

In Sheffield v. Collier, 3 Georgia 82, one party verbally agreed that another might erect a mill dam on a stream and overflow his land. Afterwards the one who agreed to have his land flooded sold it to a third person who agreed to abide by the stipulations between the original parti_es. After the dam was partially constructed the third party sold the flooded land to a fourth party and the said fourth party brought an action of trespass for the overflow of the larid. The Court held that "under the circumstances the action could not be maintained, and that the original parol agreement could not be revoked after it had been executed at the defendant's expense." This rule was adhered to in Mayor and Council of Macon v. Franklin, 12 Georgia 239; Hiers v. Mill Haven Co. 113 Georgia 1002; Woodruff v. Bowers, 165 Georgia 408; Dickey v. Yarbrough, 186 Georgia 120; Waters v. Baker, et al. 190 Georgia 186.

In your letter the following hypothetical situation was presented:

Farmer "A" constructed a dam on his own land. The impounded water

extends across the property line onto the land of farmer "B". Farmer "B" verbally assured Farmer "A" that he ("B") has no objection to the flooding.

By applying the foregoing rules of law to the above-stater:! hypothetical ques

tion, I am of the opinion that if "A" expended money in constructing the dam and

if the license was executed then "A" would have obtained an easement which would

run with the land and his right to overflow the land of "B" could not be interfered

with by "B".



Let me add, however, that as a matter of sound practice, it would be advisable in all cases where another's land is flooded to obtain a written conveyance trans ferring an easement to flood the land in question.

557
PUBLIC"DEFENSE-Property Immunity of Owners of Property Use for Defense Purposes Immunity of owner of property being used to shelter persons during an actual or practice attack or raid discussed.
August 4, 1954
Honorable George J. Hearn, Director Department of Defense Civil Defense Division
Reference is made to your recent letter in which you inquire regarding the immunity of property owners from suit for personal injuries or .death of persons occupying the property as a Ground Observer Post.
An Act (Ga. Laws 1953, Jan.-Feb. Session, page 354) approved. March 2, 1953, provides in part:
"When any person, firm or corporation owning or controlling any real estate or other premises shall authorize and permit any civil defense agency, board or other authority of this State, or of any political sQ.bdivision of this State, to use such premises without charge ther(lfore .for the purpose of sheltering ,persons during an actual or practice attack or raid as c9ntemplated by the Georgia Civil Defense Act of 1951, such person, firm, or corporation, at such times and for such periods durhtg which said premises are SQ occupied and actually employed for purpose of civil defense, shall be clothed with the sovereign immunity of the State; and no civil action shall be brought m; maintained against any such person, firm, or corporation to recover damages for p~rsonal injuries or death of any person while on said premises during an actual or practice attack or raid, or for the loss or destruction of personal property brought upon said premises by any person seeking, shelter thereon duringan actual or practice attack or raid." (Emphasis added) The Act is very specific as to the purpose for which the property must be used in order for the owner to be. "clothed with the sovereign immunity of the State" and ;f do not think that we may safely' read into the Act any uses not specifically referred to therein.
PUBLIC DEFENSE-Regulation of (Unofficial) The General Assembly may constitutionally set up requirements for enlist-
ment in the. militia.
August 17, 1954
Honorable Leon G. McNeely, Jr. I am forwarding herewith the results of the study of the constitutionality of
the proposed law relative to enlistment in the militia. Paragraph I, Section I, Article X of the Constitution of Georgia of 1945 reads
as follows: "A well regulated militia being essential to the peace and security of
the State, the General Assembly shall have authority to provide by law how the militia of this State shall be organized, officered, trained, armed, and equipped; .and of whqm it shall consis.t." The above quoted constitutional provision delegates to the General Assembly

558
of Georgia the authority to pass laws regulating the militia. The General Assembly has the authority to regulate the enlistment in the militia and accordingly'may pass any law in this regard consistent with the Constitution. The proposed law would set up certain requirements for enlistment in the militia. The General Assembly would be competent to create such requirements. Therefore, the proposed amendment to the present law would not contravene the Constitution of Georgia of 1945.
PUBLIC DEFENSE--State Department of Defense-Disbursements State Department of Defense not authorized to pay prorata share of the
administrative expenses of the State Agency administering old age and survivors insurance.
January 14, 1954
Honorable Ernest Vandiver The Adjutant General Department of Defense
I am pleased to acknowledge your letter of December 18, 1953, in which you request that I give you an opinion as to whether or not the State Department of Defense would be authorized to pay from State funds appropriated by the General Assembly to the State Department of Defense its prorata share of the administrative expenses of the State agency administering old age and survivors insurance. You state that its contribution is at the present .15o/o of the salaries of the employees concerned.
Your attention is called to the opinion of May 28, 1953, to you, in which the State Department of Law held that the employees in question were employees of the United States Government and not of the State of Georgia.
Adhering to the above cited opinion, it is my firm conclusion that you would not be authorized to use State funds appropriated by the General Assembly of Georgia to your Department for the purpose of paying administrative expenses, for the administration of a Social Security program covering employees of the United States Government, or any other employee whose salary is not paid from funds appropriated by the General Assembly of Georgia.
PUBLIC DEFENSE--State Department of Defense-Regulations of the Adjutant General The Adjutant General may issue regulations under the Georgia Military Force Re-organization Act, which are superior to local laws o:l' the state, but only when the regulations pertain to the powers granted to the Adjutant General under the terms of the above cited act.
August 10, 1955
General Charlie F. Camp Assistant Adjutant General Department of Defense
You requested an official opm10n as to whether or not the Department of Defense may promulgate and issue regulations governing the use of armory

559
facilities throughout the State without regard to limitations imposed by any local ordinances.
Although your request is couched in general language calling for a ruling or opinion on a broad general issue, a perusal of your entire letter and the attached letter from Charles L. Cleveland, Jr. present a specific narrow issue which apparently precipitated your request. This narrow issue can be formulated as follows:
In view of the City ordinance of LaGrange prohibiting the holding of public dances, may public dances nevertheless be held in the Department of Defense Armory located within the corporate limits of LaGrange by virtue of the authority of Section 73 of the Georgia Military Forces Reorganization Act of 1955 (Ga. Laws 1955, p. 10).
The solution to this question turns upon the application of rules regulating the respective spheres of authority between local or special statutes and general statutes.
Paragraph IV, Section I, Article XII, Constitution of Georgia of 1945, reads asfollows:
"Local and private acts passed for the benefit of counties, cities, towns, corporations and private persons, not inconsistent with the Supreme Law, nor with this Constitution and which have not expired nor been repealed, shall have the force of Statute Law, subject to judicial decision as to their validity when passed, and to any limitations imposed by their own terms."
This Constitutional provision, therefore, gives to local Acts creating municipalities the force and effect of Statute .law provided, of course, such local laws do not conflict with the Constitutions of the United States and Georgia. It would follow then that the Act incorporating the City of LaGrange would have the force and effect of Statute law unless some other principle of law would destroy this effect. Thus it would appear that an ordinance promulgated pursuant to the terms of the LaGrange charter (Ga. L. 1901, p. 477, 1920, p. 1071, 1950, p. 2019) would have the strength of statute law of this state. Our inquiry then turns to the consideration of the effect of other principles of law involved.
Paragraph I, Section IV, Article I, of the Constitution of 1945 reads as follows: "Laws of a general nature shall have uniform operation throughout
the State, and no special law shall be enacted in any case for which provision has been made by an existing general law. No general law affecting private rights, shall be varied in any particular case, by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and no person under legal disability to contract, is capable of such consent."
In Glover v. State, 126 Ga. 594(4) (55 S. E. 592) it was held:
"Whenever the legislature passes an act and applies its provisioll!l to the entire territory of a county, inconsistent provisions in the chart~r. of an incorporated town located within that county are repealed by necessary implication."
Further, in Western and Atlantic Railroad Company v. Atlanta, 113 Ga. 537 (38 S. E. 996, 54 L. R. A. 294), it was said:
"We apprehend that the rule is, when a general law is enacted, making certain provisions in relation to all the towns of this State, and the provisions of the enactment clearly manifest that it was the purpose of the lawmakers to establish a given condition in all of such municipalities,

560
that the terms of such general law will supersede the rights and powers given to any particular municipality by its charter."
See, Saye arid Hilkey, The Constitutional Law 'of Georgia, p. 153. This is a direct and unambiguous statement of a rule of law which causes a subsequent ,general law to supersede the provisions of a municipal charter relating to the subject matter of that la:w. Thus, if there exists in this State a general law dealing with the subject matter embraced in the municipal charter, the general law must control and the c}).arter provision is nullified.
It remains then only to determine if there is a general law in Georgia dealing with the. subject matter of the city .ordinance .of LaGrange, that subject matter being regulation of public dancing.
Chapter 52-3, Georgia Code Annotated, 195.1 Cumulative Pocket. Part (Ga. L. 1945, p. 326) provides for the licensing and regulation of dance halls operated anywhere in this State outside of corporate limits of towns or cities. However, there is no general law covering the subject matter of private dance halls operated within the corporate limits of towns and Cities in Georgia. It is inevitaple then that the city ordinance of LaGrange prohibiting public dances is valid unless the subject matter of public daricing is embraced and inCluded by the terms of the Georgia Military Forces Reorganization Act of 1955. This Act undertook a comprehensive revision of the Military Department of the State government, including provision for the construction and operation of a system of Armories. Section 73 of the Georgia Military Forces Reorganization Act of 1955 reads in part as follows:
"All armories and other facilities, defined in this article, owned, leased or maintained by the State or by the United States for use of the organized militia and all activities conducted therein shall be under the general charge and control of the Adjutant General. , .." Section 74 of this Act provides in part as follows:
"(b) The use of Armories and other facilities shall be in accordance with regulations issued pursuant to this article."
Nowhere in the Georgia: Military Forces Reorganization Act of 1955 is there any mention of dancing or dance halls. The Act does not even by implication purport to cover or embrace the subject matter of public dancing. It is an Act for the control and regulation of the Military Forces of the State. Section 73 and Section 74 of the Act obviously refer to the control and use of the Armories.pursuant to the purpose for which they were created. The law can not be tortured to permit the Adjutant General to issue a regulation to authorize an activity prohibited by a city ordinance having the force of statute law, especially since the subject matter involved is not included or embraced within the terms of the Act defining the powers of the Adjutant General.
I am, therefore, of the opinion that the Georgia Military Forces Reorganization Act of 1955 is not a general act embracing the subject matter of public dancing and that, therefore, there is no general statute. on this subject matter in regard to municipalities in this State. The City ordinance of LaGrange, if properly quoted, prohibiting public dances in that city has the force and effect of Statute law and is not superseded by the Georgia Military Forces Reorganization Act of 1955. It necessarily follows that public dances cannot be held lawfully in the Armory in LaGrange.
As to the broad issue of whether or not regulations as to the use of Armories throughout the State without regard to limitations imposed by local ordinances may be promulgated;>it is clear that on any subject matter embraced within the

56'1,
terms of the Georgia Military Forces Reorganizaion Act of 1955 regulations ma:y be issued that will prevail over local ordinances.

PUBLIC HEALTH-Department of Public Health-Employees
Employee that contracts Tuberculosis while employed by State may be retained on payroll, notwithstanding fact that the diagnosis was not made until after he or she left the employ of the State.

February 1, 1954

Dr. T. F. Sellers, Director Department of Public Health

You inquire whether, in my opm10n, a person formerly employed by your

department at Battey Hospital arid charged with the care, treatment or diagnosis of persons with tuberculosis and who contract~d the disease while so employed

may be carried on the payroll at one-half his total compensation or $150.00 per

month; whichever is less, for the duration of his disability, not to exceed 350 weeks,

as provided in Section 1, House Bill 508 (Ga. Laws' 1953, January-February Ses-

sion, page 513) notwith~ta:ndii1g the fact. that the diagnosis was riot made until

after he or she left the employ of the institution.

In my opinion your question must be answered in. the affirmative. The very
object or purpose of the bill is described as "* * * to provide compensation to employees of institutions * * * charged with the care, treatment, or diagnosis of

persons infected with tuberculosis who contract tuberculosis while in the employ

of such institution * * *." (Emphasis added)

.

The real crux of the idea expressed in the bill is that the disease was contracted

by the person while he or she was an employee and as a result of exposure which
of is a calculated risk incident to "* * * the care, treatment or diagnosis * * *"

patients in the institution. I understand that it is admitted by competent authori-

ties on the subject that the disease thus contracted might not actually show up until

some time after the employee had resigned to go to other employment, had been

separated by reduction in force or had been 'retired under the Employees' Retire-

ment System.

It will be noted that the legislature specifically provided that an employee who

had retired, prior to the effective date of this act because of tuberculosis contracted
during the period of his employment, "* * * may elect the benefits of this act

provided he waives any further payments from the Employees' Retirement System.
* * *" It would, in my judgment, do violence to the manifest intention of the

General Assembly to hold that a former employee would be deprived of the rights

they would otherwise enjoy merely because (a) the infection was not discovered

until after the date of separation, or (b) they had not been so employed long
to enough to be. entitled retirement benefits under Employees' Retirement System

regulations.

You may, and should, prepare and have adopted by the State Board of Health

such rules and regulations as may be necessa;ry and proper to implement and give

efl:'e<:t to this legislation and such nlles and regulations should provide for an appli-

cation and supporting. evidence including case history, clinical data, x-ray photo-

graphs and the statement of one or more competent physicians or such other proof

as you deem proper. The evidence adduced in any particular case should be care-

fully reviewed by an Examiner or Board of Examiners named by you.and written

recommendations made to .and passed upon by the. Board or by you under authority

of the.Board.

562
PUBLIC HEALTH-Department of Public Health-Hill Burton Act (Unofficial) Department of Public Health is authorized to receive and administer
funds, and carry out programs provided for by the Hill-Burton Act (42 USCA 291 et seq.).
December 7, 1954
Mr. Earnest Davis You inquire whether the Department of Public Health of the State of Georgia
is authorized to receive and administer funds and carry out programs provided for by the Hill Burton Act as amended by the Medical Facilities Act of 1954 (42 U.S.C.A. 291, et seq.).
By a joint resolution adopted by the House, concurred in by the Senate, and approved by the Governor March 8, 1945, the Department of Public Health was
designated as the sole agency "* * * to become the channeling agent on behalf
of the State of Georgia for such health funds as may be made available by the Federal Government." (Acts of 1945, pp. 1218-1221.)
Joint resolutions, i.e. resolutions passed by both houses of the General Assembly, when signed by the Governor of the State, become the law of the State and remain such until and unless repealed. The resolution in question has not been so repealed and, therefore, remains in full force and effect. Moreover, I do not think that it is any less applicable to the Hill-Burton Act as amended than to the original Act. In this latter connection see Opinions of the Attorney General 1945-47, page 526, et seq.
I am, therefore, of the opinion that the Department of Public Health of this State is authorized to do and perform any and all acts necessary and proper to be done by the State to carry out the purposes of the Medical Facilities Act of 1954 referred to above and that its designation satisfies the requirements of Section 612(a) (1) ther.eof.
PUBLIC HEALTH-Department of Public Health-Hill-Burton Act Form of Labor and Material Payment Bond, PHS-148 (HF) 7-47, dis-
cussed.
July 22, 1954
Honorable T. F. Sellers, M.D. Director Georgia Department of Public Health
Reference is made to your recent letter regarding the sufficiency and propriety of the form of Labor and Material Payment Bond, PHS-148 (HF) 7~47, currently employed in connection with contracts for new hospital construction under the Hill-Burton Act.
Georgia Code Annotated, Section 23-1705, entitled "Bond for Public Contractors" provides that the contractor shall give bond," ... 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, ..". (Emphasis added.) The bond presently in use does not contain this language, although otherwise substantially complies with the act.
The Code and more specifically Section 23-1706 provides in part that "If such bond, ... not be taken in the,.manner and form as herein required, the corporation or body for which the work is done under the contract, shall be liable to all persons

563
furnishing labor, ... or materials to the contractor thereunder for any loss..." (Emphasis added.)
In the case of American Surety Co. vs. Small Quarries Co., 157 Ga. 33 at 35 the Supreme Court of Georgia held in part:
"We think that the omission of the language in bold above from the face of the bond constituted a variance from the 'manner and form' required under the Act of 1916."
The court concluded therefore that the bond in question was not a statutory bond in compliance with the act in question. The same language being omitted from the bond under discussion here the court would unquestionably hold that it was not a statutory bond under the act in question.
In view of the above and in view that certain liability might attach to the Hospital Authority by virtue of the omission, I suggest that the form be revised in accordance with the enclosed document. You will observe that it merely adds the statutory language and leaves the instrument otherwise intact for the sake of reasonable uniformity and substantial compliance with that recommended by the United States Public Health Service.

FORM OF PAYMENT BOND
KNOW ALL MEN by these presents, That we,------------------------------------------------------as Principal, and ------------------------------------------------------------ as Surety, are held and firmly bound unto --------------------------------- as obligee, hereinafter called the Owner, for the use and benefit of such obligee and of all persons doing work or furnishing skill, tools, machinery or materials under or for the purpose of the contract hereafter mentioned in the sum of ------------------------------ dollars, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents.
The condition of this obligation is such, that whereas the Principal entered into a certain contract, hereto attached, with the Owner, dated______________________, 19_____, for
Now, therefore, if the principal shall promptly make payment to all persons doing work or furnishing skill, tools, machinery or materials under or for the purpose of such contract and in the prosecution of the work provided for in said contract, and any and all duly authorized modifications of said contract that may hereafter be made, except that no change will be made which increases the total contract price more than twenty per cent in excess of the original contract price without notice to the surety, then this obligation to be void; otherwise to remain in full force and virtue.
In Witness Whereof, The above-bounden parties have executed this Instrument under their several seals this ___________ day of _________________ 19____, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body. In presence of
----------------------------------------------------------------------------- (Seal) (Individual Principal)

(Address)

(Business Address)
--------------------------------------.-------------------------------------- (Seal) (Individual Principal)

(Address)

(Business Address)

564 Attest:

_______________________________________________________________________________..::._______-'_
(Corporate Principal) _________________:_____________.________________________________________________________
, (Business Address) By_, ______,__c_____________, _________________ (Affix Corporate Seal)

Attest:
(Corporate Surety)
, (Business Address) BY"-------------------------------------------- (Affix Corporate Seal) .,.
. -------------- -----------------------~------------------------------------------------~
The rate of premium on this bond is _________________ per thousand. Total amount o:f premium charged, $-----------------------------------
(The above must be filled in by corporate surety.)

PU:QLIC HEALTH-Department of Public Health-Hill Burton Act
The Department of Public Health is authorized to receive and administe:r funds and carry out programs provided for by the Hill Burton Act, as amended.
December7, 1954
Honorable T. F. Sellers, M.D., Director Department of Public Health
You inquire whether the Department of Public Health of the State of Georgia is authorized to receive and administer funds a~d carry out programs provided for by the Hill Burton Act as amended by the Medical Facilities Act of 1954 (42 U. S. C. A. 291, et seq).
By a joint resolution adopted by the House, concurred in by the Senate, and approved by. the Governor March 8, 1945, the Department of Public Health was
designated as the sole agency "* * * to become the channeling agent on behalf of
the State ,()f Georgia for such health funds as may be made available by the Federal Governm(mt." (Acts of 1945, pp. 1218-l221.)
Joint resolutions, i.e., resolutions passed by both houses of the General Assembly, when signed by the. Governor of the State, become the law of the State and remain such until and unless repealed. The resolution in question has no~ been so repealed and, therefore, remains in full force and effect. Moreover, I do not think that it i1; any less applicable to the Hill-Burton Act as amended than to the original Act. In this latter connection see Opinions of the Attorney General 1945-47, page 526, et seq;
I am, therefore, of the opiriion that the Department of Public Health of this State is authorized to do and perform any and all acts necessary and proper to be done by the State to carry out the purposes of the Medical Facilities Act of 1954 referred to above and that its designation satisfies the requirements of Section 612 (a) (1) thereof.

565

PUBLIC HEALTH-Eugene Talmadge Memorial Hospital
The Eugene Talmadge Memorial Hospital does not have authority to retain mental patients who enter the hospital voluntarily, even though it is unsafe to release such patients.

June 8, 1956

Honorable Harmon Caldwell, Chancellor

University Systl)m. of Georgia

.

I am please<l to acknowledge receipt in which. you state that the question has

arisen as to whether mental patients requirjng psychiatric ,treatment who volun-

tarily enter the Eugene Talmadge M:emorial Hospital may be.kept in the custody

of hospital authorities when it appears that it 'would be dangerous to release them.

You ask the following specific questions:

1. Is the Act of the General Assembly set forth in Georgia Laws 1952, pp. 94-96, applicable to the Eugene Talmadge Memorial Hospital in Augusta?
2. If the Eugene Talmadge Memorial Hospital cannot take advantage of the provisions of the 1952 Act, is there any other way in which the Hospital may retain custody of mental patients when it appears that it would .be unsafe to release them?

Section 32-149 of the 1933 Ann. Code of Georgia, 1955 Cumulative Pocket Part, provides:
"32-149. Hospital for use by medical school; authority to build, buy, orlease; Eugene Talmadge Memorial HospitaL-The Board of Regents of the University System of Georgia in the exercise of its public and governmental functions shall have power and is hereby authorized to lease, buy, build, construct, establish, coiitract for the use of, maintain and operate a general nonprofit teaching hospital at Augusta, Georgia, which said hospital may be that hospital known as the Eugene Talmadge Memorial Hospital now under construction, to be operated in conjunction with the Medical College of Georgia for the be~efit of indigent, near indigent and pay patients, under such rules and regulations as to administration, maintenance, charges for services, and general operations as may be prescribed by said board not in conflict with the general laws of Georgia pertaining to fiscal' operations of departments and agencies of the State. The General Assembly may as a part of the General Appropriations Act make specific appropriations for the. operation and maintenance of said hospital .and any annex or addition thereto independent of and in addition to any appropriation made for the University System or any other division thereof."
It is my opinion that the provisions of the Act of the General Assembly set forth in Ga. Laws1952, pp. 94~96, is not applicable to the Eugene Talmadge Memorial Hospital in Augusta. It is only applicable to the Milledgeviiie State Hospital.
You will note that in the above cited Code Section 32-149, the Board of Regents of the University System of Georgia is authorized and empowered to maintain and operate a gener:H nonprofit teaching hospital for the benefit of indigent, near indigent and pay patients> under such rules and regulations as to administration, maintenance, charges for services, and general operations as may be prescribed by said Board not in conflict with general laws of Georgia pertaining to fiscaloperations of departments and agencies of the State. Nowhere in this statute do I find any authorization whereby the hospital :authorities may retain

566
custody of mental patients on any other basis than other patients received undel' the above statutory authority.
You will recall that special statutory authority was necessary and was granted to the Milledgeville State Hospital to retain custody of mental patients admitted to that institution upon a voluntary basis, and it may be that the Board of Regents may desire to seek such authority for the Eugene Talmadge Memorial Hospital at the next session of the General Assembly.
Of course there is always open the avenue of having a person com111itted to the Milledgeville State Hospital through the Court of Ordinary in the event that an unsafe mental patient should voluntarily desire to leave the Eugene Talmadge Memorial Hospital, and of course administrative consideration may be given to the relatives of such patients taking such action.
PUBLIC HEALTH-Food and Drugs-Sale of Medicine
An unlicensed person may lawfully sell aspirin and anacin in the original and unbroken container, but it would be unlawful for an unlicensed person to fill a prescription which calls for the dispensing of anacin, seconal, or nembutal, except under the direct supervision of a licensed pharmacist.
May 3, 1956
Honorable P. D. Horkan Chief Drug Inspector, Georgia State Board of Pharmacy
This is to acknowledge receipt of your letter of April 30, 1956, in which you ask four questions:
1. Would it be a violation of the law for an unlicensed person to sell aspirin to a customer in the original and unbroken container?
2. Would it be a violation of the law for an unlicensed. person to sell anacin to a customer in the original and unbroken container?
3. Would it be a violation of. the law for an unlicensed person to fill a prescription which calls for the dispensing of anacin?
4. Would it be a violation of the law for an unlicensed person to fill a prescription of a regularly licensed doctor which calls for seconal or nembutal?
Please allow me to call your attention to Section 84-1317 of the Annotated Code of Georgia, which provides as follows:
"84-1317. No person shall engage in the compounding or vending of medicines, drugs, or poisons without full compliance with this Chapter, except it is provided that none of the provisions of this section shall apply to: (1) such druggists as are exempted from the operation of the law by the statutes of the State, and.such druggists as have heretofore obtained a license and are legally authorized by existing laws to compound and vend drugs, poisons, and chemicals; (2) physicians, dentists and veterinarians prescribing or putting up their own prescriptions and dispensing medicines. This section shall be construed in the interest of the public health, and shall not be construed to prohibit the sale by merchants of home remedies, not poison, or the sale by merchants of preparations commonly known as patent or proprietary preparations when sold only in the original and unbroken packages, Paris green, arsenate of copper, arsenate of lead, or preparations containing any of these articles used for killing bugs, worms1 and insects, provided the labels, cartons, and packages con-

567
taining such preparations have the word 'poison' printed across the face, and conform to the United States Pure Food and Drug Act; and general merchants other than druggists shall not be required to register under the provisions of this Chapter. (Acts 1927, p. 296; 1947, pp. 1471, 1476.)"
Also, Section 42-709 of the Cumulative Pocket Part of the Annotated Code of Georgia, which provides as follows:
"42-709. It shall be unlawful for any person, firm, corporation or association to sell, give away, barter, exchange, distribute or possess in the State of Georgia amytal, luminal, verona!, barbital, acid diethyl barbituric, sulfanilimide, prentylin, neoprentosil, phenobarbital, sulfapyridine, sulfathiazol, pyramidon, aminopyrine, atophan, elora!, paraldehyde; abortifacient drugs such as ergot, cotton root, pennyroyal, salvin, apiol, cantharides; amphetamine (benzedrine) or any other preparation containing amphetamine (benzedrine) or compound thereof, .except that amphetamine (benzedrine) in inhalers may be sold without prescription provided the amphetamine (benzedrine) therein has been denatured so as to make it unfit for internal use; hormones synthetic or natural; anti-fat preparations to include thyroid, thyroxin; or such other drugs which are now or hereafter declared dangerous by the Federal Food and Drug Administration, and which are, in the discretion of the Georgia State Board of Pharmacy, classified as 'dangerous drugs' within the meaning of this law or any salts, derivatives or compound of the foregoing substances, of any preparation or compound containing any of the foregoing substances, in quantities dangerous when taken according to directions, or their salts, derivatives or compound; except on a prescription of a duly licensed physician as defined by this law and such prescription shall be compounded only by a registered phramacist in accordance with the laws of this State. No such prescription shall be refilled except upon the authorization of the physician who prescribed it. (Acts 1939, p. 288; 1947, pp. 1463, 1467.)" It is my opinion that the answer to question 1 would be in the negative-no. The answer to question 2 would necessarily be in the negative-no. In answering question 3, it is my opinion that under the above quoted Code Sections, it would be a violation of the law for an unlicensed person to fill a doctor's prescription for medicines, unless he did so under the direct supervision of a licensed pharmacist. The answer to question 4 is the same as the answer to question 3.
PUBLIC HEALTH-Food and Drugs-Vending Machines (Unofficial)
Distribution of "Aspirin, B. C. Powder, Alka-Seltzer, dry and in water, Turns, Vick's Cough Drops and Chlorophyll Mints" in original and unbroken packages through vending machines does not violate Georgia Drug Laws.
February 15, 1955
Honorable James M. Sibley This will acknowledge your letter of February 8, 1955, relative to distribution
on vending machines of certain package medicines, including "Aspirin, B. C. Powder, Alka-Seltzer, dry and in water, Turns, Vick's Cough Drops and Chlorophyll Mints."
You state that your client intends to distribute these packages in the original

568

and unbroken containers through vending machines, distrii;>Uted in various places

of business. You asked my opinion_ as to whether the selling of these products

would violate any drug laws of the State of Georgia.

Section 42-709 of the 1933 Code of Georgia, as amended, list a number of

"dangerous drugs" which shall be sold only by prescription of a duly licensed

physician. I find that none of the articles mentioned in your letter are included

in this list. Further Sectio~ 84-1317 of the 1933 Code provides that patented or

proprietary merchandise sold in the original and unbroken packages. shall not be

subject to the control of the State Board of Pharmacy and may be sold by mer-

chants of home remedies. This law is reiterated in Section 84-1324 of the 1933

Code.

In construing these sections and other sections enacted under our drug laws

in an opinion to the Honorable R. C. Coleman, Joint Secretary of the State Exam-

ining Boards, I held that iodine and Lysol may be sold by grocery stores and other merchants in their original and unbroken packages be~ause they fall in the cate-

gory as a patented or proprietary preparation.

It would be my feeling that in the light of my official opinion of September 15, 1948, the sale by your client of the drugs named i~ your letter of February 8, 1954,

would not be illegal, as they would fall in the category o:f a patent or proprietary

preparation or home remedy.

.

PUBLIC HEALTH-Hospital Authorities-Tort Liability (Unofficial)
A hospital authority, created under the Hospital Authorities Law (Ga. Laws 1941, page 241), is subject to governmental immunity from tort liability and is, therefore, unauthorized to procure insurance against that which is non-existent.
August 17, 1954
Honorable Graydon Reddick You request my opinion as to whether or not the Crisp County Hospital
may legally expend funds for the procurement of liability insurance. The Crisp County Hospital, according to records in the Department of
Health, was created under the Hospital Authorities Law (G!i. Laws 1941, p. 241; Code Ann. Supp., C.hap. 99-15) by the governing authorities of said county.
Inspection of this enabling act discloses that no express authority. has bec;ln granted for hospital authorities to expend money for such purposes; however, it is thought that this authorization may be implied, assuming that liability exists for the torts which are sought to be insured against. To state the premise differently,
if a hospital authority created under the Act of 1941 is an 1nstrumentality of the
county, it would not be liable for such torts (Code, Section 23-1502; Ware :County v. Cason, 189 Ga. 78), and so being, could not spend funds for procuring- insurance therefor. For analagous situations see Opinions Attorney General, 1952~53, -p. 350, 361. If the Authority be an agency of the State or county, expenditure of funds to insure against non-existent liabilities would constitute a gratuity, prohibited by the Constitution, Article VII, Section I, Paragraph II (Code Annotated, Section 2-5402) as well as an unauthorized appropriation to individuals. Constitution, Article VII, Section V, Paragraph I (Code Annotated, Section 2-5801). In addition there would exist no constitutional authority for the levying o:l;:state taxes (Art. VII, Section II, Paragraph I; Code Annotated, Section 2-5501) or county taxes (Article VII, Section V, Paragraph I; CodeAnnotated, Section 2-5801) for such

569
purposes. For a similar situation, see opinion rendered by me on June 1, 1954, to Honorable Jordye Bacon, relative to the procurement of school bus liability insurance, with which I am sure you are familiar.
Before considering the principal question, it would be wise to state several allied propositions: Firstly, any hospital, be it public or private, which is operated as a charity, is exempt from tort liability, except as to the negligent selection of incompetent and careless servants. Mitchell v. Executive Committee of The Baptist Convention, 49 Ga. App. 615. See also Community Hospital Incorporated v. Latimer, 83 Ga. App. 6. Secondly, if the hospital authority be an instrumentality of the county, there is no liability for tort without regard to whether the operation of the hospital be deemed governmental or ministerial in character, since this distinction is one that exists only as to municipalities by virtue of express statutory authority (Code, Section 69-301). Ware County v. Cason, supra.
The instant case concerns a type of public corporation known as an authority, which has become to be quite popular in the administration of public affairs. The Supreme Court has uniformly recognized the separate identity of such public corporations from the State and its counties and cities. See State of Georgia v. Board of Regents of University System of Georgia, 179 Ga. 210; Williamson v. Housing Authority of Augusta, 186 Ga. 673; DeJarnette v. Hospital Authority of Albany, 195 Ga. 189. Sheffield v. State Sclwol Building Authority, 208 Ga. 575; McLucas v. State Bridge Building Authority et al, 210 Ga. 1; State of Georgia et al v. State Toll Bridge Authority, 210 Ga. 690. While this corporate "distinctiveness" was very strongly put in the McLucas case, supra, at page 6, careful study of all these cases discloses that the holding was in effect that the particular authority was only separate and distinct from the State or any county or municipality thereof, insofar as the debt limitation provisions of the Constitution were concerned.
The same result could have been reached in most all these cases by a mere holding that no debt was created against the state, since in the majority of the instances, the bonds issued by the Authority were payable only from a special fund. This type of financing has always been held not to create a debt in the constitutional sense. City of Valdosta v. Harris et al, 156 Ga. 490, and citations. In this respect it is to be noted that even in the McLucas case, it was specifically stated that "the authority is an instrumentality of the State."
In the DeJarnette ease, supra, it was clearly shown that the hospital authorities created under the Act of 1941 involved here, were public corporations created for the performance of governmental functions. See also Love v. City of Atlanta, 95 Ga. 129; Watson v. City of Atlanta, 136 Ga. 370.
While apparently no decision has been rendered deciding whether or not a hospital authority is an instrumentality or agency of the city (or county), the Court of Appeals having expressly declined to pass thereon (Marietta Hospital Authority v. Redwine, 67 Ga. App. 629), I conclude that the Crisp County Hospital Authority is subject to governmental immunity from tort liability and is, therefore, unauthorized to procure insurance against that which is non-existent. My reasons for this conclusion follow below.
The Act of 1941 (Ga. Laws 1941, p. 241) creating hospital authorities both in its caption and body repeatedly refers to these authorities as public corporations; Section 3 (Code Annotated Supplement, Section 99-1503) declares that the trustees thereof shall be elected by the governing authorities of the county or municipalities; Section 5 (Code Annotated, Supplement, Section 99-1505) declares that every authority "shall be deemed to exercise public and essential governmental functions ..;" Section 6 (Code Annotated Supplement, Section 99-1506) declares that the hospital is not to be operated for profit and throughout all of the act's provisions,

570
there is implicit the concept that a purely public and governmental undertaking is envisioned. The DeJarnette case, supra, at page 6, expressly recognized that matters pertaining to public health are governmental functions, and concluded with the following language:
"The purpose of the constitutional provision (Ga. Laws 1941, p. 50) and the statute based thereon (Ga. Laws 1941, p. 241) was to authorize counties and municipalities to create an organization which would carry out and make more workable the duty which the State owed to its indigent sick . . ."
Although governmental immunity from tort liability usually arises in cases involving cities and counties, it seems logical that this immunity exists solely because these are but political subdivisions of the state, entrusted with the care of certain delegated governmental functions. So being, the immunity would apply to any political subdivision of the State, whether it be referred to as a city, county, or by any other name. In Scales v. Ordinary of Chattahoochee County, 41 Ga. 225, the court seems to be in agreement with the foregoing statement, where it was declared,
"... The State is never suable except by express enactment, and this is also true of subdivisions of the State ..."
In 26 Am. Jur. 594, Section 13, after stating the general principle of tort immunity as applied to public hospitals, this authority concludes with the following statement:
"This seems to be the rule whether the action is against the state, a county, a municipal corporation, or a hospital corporation created by the state to act as its agent in the case of those physically or mentally unwell." (Emphasis supplied.) See also 41 C. J. S. 341, Section 8 (b).
One New York case, however, has refused to apply the rule of governmental immunity to a public corporation created by a city. See Bush v. Binghampton City Hospital (1937), 251 App. Div. 601,297 N.Y. S. 991. See also the case of Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 N. E. 2d 541, 14 ALR 2d 133, Cert. Dell. 339 U. S. 981, holding action of a public housing authority in discriminating against negroes not to constitute state action within the contemplation of the Fourteenth Amendment.
In 25 ALR 2d 205-249, the cases relating to tort immunity as applied to public hospitals are exhaustively reviewed. Many of these cases involved public corporations similar to the instant authority, yet the rule seems almost unanimous that no liability exists. Emphasis is put on the nature of the undertaking rather than the legal entity performing the services. It is also noted that no different result ensues in those cases where charges for services are made. Id., p. 229, especially Watson v. Atlanta, 136 Ga. 370, and Brunswick v. Barrett, 58 Ga. App. 792.
As I have stated before, a county is not liable whether a function be deemed governmental or proprietory. The foregoing discussion dealing with the governmental nature of hospitals was made necessary by the fact that the very question was whether action of'the authority constituted action of the county or state.
I, therefore, conclude that the Crisp County Hospital Authority is an agency or instrumentality of Crisp County, and so being, is not liable for the torts of its servants. It, therefore, follows that the expenditure of funds for liability insurance would be unauthorized under the constitutional inhibitions previously alluded to.
Even however, if it be assumed that money could legally be spent for the

571
procurement of insurance notwithstanding the non-liability of the Authority, such insurance would be of dubious value, in view of the decisions of Ayers v. Hartford Accident and Indemnity Co., 106 F. 2d 958; Ware County v. Cason, 61 Ga. App. 15; Arnold v. Walton et al, 205 Ga. 606. In this respect, it should be noted that the recent case of Krasner v. Harper, 90 Ga. App. 128, permitting the insurance company to be sued directly where the insured, a county, was not liable, was based on a specific statute, and is for that reason inapplicable here.
Since the Legislature failed to provide for suit against a hospital authority for negligence, the general principle of immunity must apply. Arnold v. Walton, supra. Such liability cannot be voluntarily assumed. Almon v. Terrell County, 89 Ga. App. 403.
PUBLIC HEALTH-Milk Laws (Unofficial) Rules and regulations of County Boards of Health prevail over municipal
regulations.
September 22, 1954
Mr. William J. Neville The General Assembly provided by appropriate legislative act (Acts 1901,
page 61; 1914, pages 124, 125; 1943, pages 371-385) codified as Section 88-203 of the Georgia Code Annotated that "The county boards of health of the several counties shall have full power and authority to adopt, enact, establish and maintain all such rules and regulations not inconsistent with the laws and Constitution of this State and of the United States, as they may deem necessary and proper for protecting the health of their respective counties, and preventing the introduction, generation, and spread of infectious and contagious diseases therein ..." (Emphasis added.)
By legislative act approved February 15, 1950 and codified as 42-522.5 the General Assembly, after vesting wide authority over the control of fluid milk and milk products in the Commissioner of Agriculture, provided that: "All municipalities, cities, towns and counties shall have the power and authority by ordinance or otherwise to set up standards concerning all milk and milk products sold within
their limits higher than the standards prescribed heretofore in this law * * *."
(Emphasis added.) While Moore v. City of Tifton (84 Ga. App. 280) is a somewhat different and
much more involved case, it appears to me to hold in substance that where the Ellis Health Law (Ga. Code Annotated, Section 88-101 et seq) has been brought into operation in a given county and the Board of Health of that county has made and promulgated rules and regulations pursuant thereto, such law (including the rules and regulations) prevail over any city ordinances on the same subject.
It has been my view and my position, therefore, that the Board of Health in any county where the Ellis Health Law has been implemented may make rules and regulations governing the production, processing, handling, marketing and service of fluid milk and milk products provided only that such rules and regulations are not inconsistent with or violative of the constitution and laws of the State or the United States. Specifically such rules and regulations and the standards set thereby should not be less stringent than those adopted by the State and United States.

572
PUBLIC HEALTH-Sterilization Operations (Unofficial) There is no state law authorizing sterilization operations to be performed
on persons not covered under the Act creating the Board of Eugenics; i.e., citizens and residents of the State of Georgia not in State institutions.
March 22, 1955
Dr. G. Lombard Kelly I am pleased to acknowledge your letter of March 9, 1955, forwarded to this
office by Governor Griffin under date of March 11, 1955, in which you request this Department to give you an opinion upon the following statement of facts:
"The fact has transpired that many physicians in Georgia feel that under the present law doctors are not completely protected when performing sterilization operations on patients outside of State institutions, even though the patients are adults and have given written consent, and such operations are in the public interest." The State Board of Eugenics was created in Georgia for the purpose of allowing certain specified type of sterilization operations to be performed under the provisions contained in the law creating this Board on persons in the State institutions named in said Act. I believe that the problem to which you refer is one which is brought about due to the fact that there is no general state legislation authorizing such operations to be performed on persons not covered under the Act creating the State Board of Eugenics, i.e., citizens and residents of the State of Georgia not in State Institutions. Therefore, the practical approach in solving this problem would be to the General Assembly of Georgia, for the enactment of legislation to cover the problem confronting you and other members of your profession. Of course you understand that any damage suit brought against a member of your profession by a person upon whom an operation had been performed would be in the nature of a private suit, in no way connected with the State of Georgia. The State Department of Law is authorized only to give official opinions upon questions in which the State is an interested party. It is not authorized to advise upon private matters, such as raised in your letter. Each individual physician should consult his own attorney for advice in each individual matter that he has under consideration, insofar as performing such operations.
PUBLIC PROPERTY-Easements Act of General Assembly necessary to authorize the grant of an easement
over State Property.
June 21, 1954
Brig. Gen. George J. Hearn The Adjutant General, Department of Defense, Military Division
This will acknowledge receipt of the letter dated June 9, 1954 from Colonel Charlie F. Camp, Assistant Adjutant General, relative to the matter of granting easement over State real property to utility companies supplying services to National Guard Armories.
An easement is an interest in land of such a nature, at least insofar as alienation is concerned, as to be controlled by the same rules as other interests in property such as fee simple, leasehold, etc. That is to say, the granting of an

573
easement by the State is controlled by the same laws governing the sale of the fee simple absolute interest. Therefore, the granting of an easement is disposing of or alienating State property.
Generally the legislature of a state has the power to dispose of the unappropriated lands within the state. 73 Corpus Juris Secundum, 236.
This office has made several rulings to the effect that state property cannot be leased, sold, or otherwise disposed of without legislative authority. Opinions of the Attorney General, 1945-47, page 543.
This office has ruled that an easement held by the State is public property and may not be conveyed away without the authorization of the General Assembly. Opinions of the Attorney General, 1945-47, page 545.
There is an exception to this general rule in situations where the public property involved is unserviceable. In that event the proper authority, i.e., Governor where state property is involved, may dispose of the unserviceable property. Georgia Code Annotated, 9-804, 805.
Obviously this exception does not apply to the facts set forth in your letter. The powers of public officers are defined by law. Section 89-903, Georgia Code .Annotated, reads as follows:
"Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of a power not conferred." An inquiry of the powers of the Adjutant General reveals that the General Assembly has not seen fit to grant him the authority to dispose of state property. In view of the foregoing, I am of the opinion that it will require an Act of the General Assembly in order to authorize the granting of easements to utility companies under the circumstances outlined in your letter. Although the Adjutant General does not have authority to grant easements over state property, he may consistent with his authority, grant permission in the nature of a revocable license to enter upon state property to utility companies for designated purposes. In view of the posture of the law in this regard, practicality suggests that temporary permission be given to the utility company to enter upon state property as required and that legislation be introduced in the next session of the General Assembly authorizing the granting of the necessary easements.
PUBLIC PROPERTY-Expenditure of State Funds (Unofficial)
State funds cannot be spent to build an Armory on property transferred to the State with a reversionary clause "if not used for military purposes"; State must have fee simple absolute title.
February 9, 1955
Honorable J. W. McDonald
This will acknowledge receipt of your letter of January 31, 1955 relative to the question of whether or not an Armory can be built on property transferred to the State under a deed containing a reversionary clause providing for the property to revert to the grantor in the event it is not used for military purposes.
Section 91-117, Georgia Code Annotated, relating to the improvement of real estate reads as follows:
"Any real estate owned or acquired by the State of Georgia may be improved with funds appropriated for a State Department provided the

574
head of the Department affected and the Budget Bureau, consisting of the Governor and the State Auditor, consent to such use of such funds." It has been the uniform practice in the last few years for the Budget Bureau to interpret the word "owned" in the above quoted Code Section to mean the fee simple absolute title. Therefore, the Budget Bureau has refused to appropriate funds to place improvements on land deeded to the State with a reversionary clause. Although it is possible that should this Code Section be construed by a court of competent jurisdiction a different result might be obtained. Nevertheless, the State Auditor, who is a member of the Budget Bureau, is of the opinion that the interpretation they have placed on this word in the past will be continued. I am, therefore, constrained to state that no funds can be expended to place any permanent improvements on the property in question as long as the reversionary clause is in the deed of conveyance.
PUBLIC PROPERTY-Expenditure of State Funds State must have title to land before permanent improvements niay be
made thereon.
April 19, 1954
Honorable Fulton Lovell, Director State Game and Fish Commission
Your request for an opinion concerning the sufficiency of the instrument under which you acquired property used by you in Bryan County for Richmond Hill Fish Hatchery is hereby acknowledged.
I have examined this instrument, a copy of which is herewith attached, and find the following provision in said instrument very objectionable, to-wit:
"The party of the first part, and his heirs and assigns, may re-enter and resume possession and ownership of said land, without proceeding at law, or otherwise, and without accountability to the State for any articles, appliances, or improvements placed by it upon said land of which possession is resumed...." Due to the type of instrument under which you hold this property, it is my opinion that the budgetary rules prohibit your expending funds for the purpose of placing permanent improvements on said property. It is, therefore, suggested that if the property is necessary and it is your intention to place permanent improvements thereon, that you secure title thereto under an instrument to be approved as required by law.
PUBLIC PROPERTY-Expenditure of State Funds Sufficiency of deed to State discussed.
February 18, 1954
Honorable Alan Kemper, Director State Department of Public Welfore
I am pleased to acknowledge Warranty Deed from Griffin Industrial Development Commission, Inc., to the State of Georgia, which is recorded in Deed Book 129, Folio 575, under date of February 12, 1954, Clerk's office, Superior Court, Spalding

575
County, with the accompanying title insurance policy No. 0-GAT-1117, issued by the Kansas City Title Insurance Company, Kansas City, Missouri, in the amount of $500.00 covering the property conveyed by said Warranty Deed.
You ask that I give you an opinion as to whether the deed conveys sufficient title to the State for the State Department of Public Welfare to erect a state building on this property.
The Warranty Deed has a reversionary clause which would extinguish itself upon the commencement of the construction of a building on said property to be operated as a factory for blind colored workers. If the construction is to begin within the period of time as provided in said reversionary clause, this department would have no objection to the form of the deed; however, the policy of title insurance contains in Schedule B the following exceptions which should be eliminated prior to the obligation of State funds for the construction of any building on said property:
1. All taxes for the year 1954 and subsequent years. 3. Laborers' and materialmen's liens, if any, not shown of record. 4. Rights of parties in actual possession of all or any part of the premises other than the owner.
The Kansas City Title Insurance Company, through its Atlanta office, has advised me that they will be pleased to remove these exceptions in their policy if the firm of Owens and Bolton, who examined the title, will furnish them with the necessary documents to eliminate said three items.
If the property is unimproved, and no recent improvements have been made, an affidavit from the grantor would be sufficient to satisfy the insurer. If there are no parties in actual possession of the property or any part thereof, except the owners, this item should be easy to eliminate through certificate to the insuror. As to Item No. 1, a certificate from the firm running the title that there are no taxes to be paid on said property should satisfy the insurer and eliminate this item.
It is my view that the State Department of Public Welfare would not be authorized to expend State funds on the property in question until and after the Title Insurance Company issues a rider to said policy eliminating Items 1, 3 and 4 of Schedule B of Policy No. 0-GAT-1117, issued by the Kansas City Title Insurance Company.
I am returning to you herewith said Warranty Deed and said policy of title insurance. When the Title Insurance Company issues their rider to said policy covering the above items, I will be pleased to again review the title policy and give you my further advice.
PUBLIC REVENUE-County Funds (Unofficial) A County is not authorized to levy a tax to repair a building used by
the public, but owned by private individuals.
April 22, 1955
Honorable John F. Ricketson County Commisisoner, Warrenton, Georgia
This letter is in response to your verbal request made at the time of your recent visit to this office in which you ask the question whether or not a county can legally levy a tax and contribute the money raised by taxation as a gift to an adjoining county or officials thereof for the purpose of repairing a building used for a public purpose but owned by private individuals.

576
The taxing power of a county is limited by the Constitution to public uses. Article VII, Section IV, Paragraph I, Constitution of the State of Georgia, 1945 ( 2-5701, Georgia Code Annotated), provides as follows:
"The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except:
"1. To pay the expenses of administration of the county government. "2. To pay the principal and interest of any debt of the county and to provide a sinking fund therefor. "3. For education purposes upon property located outside of independent school systems, as provided in Article VIII of this Constitution.
"4. To build and repair the public buildings and bridges. "5. To pay the expenses of courts, the maintenance and support of prisoners and to pay sheriffs and coroners and for litigation. "6. To build and maintain a system of county roads.
"7. For public health purposes in said county, and for the collection and preservation of records of vital statistics.
"8. To pay county police.
"9. To support paupers.
"10. To pay county agricultural and home demonstration agents. "11. To provide for payment of old age assistance to aged persons in need, and for the payment of assistance to needy blind, and to dependent children and other welfare benefits, provided that no person shall be entitled to the assistance herein authorized who does not qualify for such assistance in every respect, in accordance with enactments of the General Assembly which may be in force and effect prescribing the qualifications for benefiiciaries hereunder; provided no indebtedness or liability against the county shall ever be created for the purpose herein stated, in excess of the taxes lawfully levied each fiscal year under acts of the General Assembly authorized hereunder for such purposes. "12. To provide for fire protection of forest lands and for the further conservation of natural resources.
"13. To provide medical or other care, and hospitalization, for the indigent sick people of the county.
"14. To acquire, improve and maintain airports, public parks, and public libraries.
"15. To provide for workmen's compensation and retirement or pension funds for officers and employees.
"16. To provide reasonable reserves for public improvements as may be fixed by law."
The power to levy a tax is apparently limited to building and repairing public buildings and bridges and, therefore, a county would not be authorized under the law to levy a tax for the purpose of repairing a building owned by a private citizen.

577
PUBLIC REVENUE-Disposition of Penalties Penalty collected under Code Section 92-6913 should be paid into the
County Treasury, and remain the property of the county, notwithstanding the provisions of Code Section 92-8439.
April 19, 1954
Honorable W. Vaughn Rice Deputy State Revenue Commissioner
This will acknowledge receipt of your letter of April1, 1954 in which you asked my opinion as to whether the County Tax Collector or the County Tax Commissioner shall pay the whole amount collected as penalty under Section 92-6913 of the Code of Georgia to the County Treasurer, or whether the amount so collected should be divided with the County, the County Board of Education and the State on the same percentage as the division is made for taxes collected.
Section 92-6913 of the Code provides in part: "In all cases where unreturned property is assessed by the board after
the time provided by law for making tax returns has expired, the board shall add to the amount of State and county taxes due a penalty of 10 per cent., except that if the principal sum of the tax so assessed is less than $10 in amount, the board shall add to the amount of State and county taxes, a penalty of $1. The penalty herein provided shall be collected by the county tax collector or the county tax commissioner and in all cases paid into the county treasury and remain the property of the county." It is my opinion that this section specifically provides that penalty should be paid into the County Treasury and remain the property of the county, and that no amount so collected could be paid to the Board of Education or to the State of Georgia. Although I am mindful that Section 92-8439 of the Code (Supplemental Pocket Part) provides that the penalty shall become a part of the tax, it is my opinion that the provisions of Section 92-6913 make it mandatory that penalty be paid into the County Treasury, and no other division of this money may be made.
PUBLIC REVENUE-Distribution-Intangible Tax Distribution of funds remitted to Commissioner of Revenue.
October 21, 1954
Honorable Charles D. Redwine Commissioner of Revenue
You request me to advise you by what legal means a proper distribution could be made of funds remitted to you under the Intangible Tax Act as approved December 15, 1953 (Georgia Laws 1953, Nov.-Dec. Session, p. 378-390). As I understand it, these funds were remitted to you by the clerks for distribution under this act, as amended, and that you in turn deposited said sums so collected in the State Treasury.
Section 11 of the Intangible Tax Act, as approved December 27, 1937 (Ga. Laws, 1937-38, p. 156-170), provides that:
"The County Tax Collector, on the basis of his records and of certificates, hereby required to be supplied by each school district, municipality and other taxing district in the conuty, at least monthly shall dis-

578
tribute the revenue collected from each owner of intangible property between the State and the various local taxing districts in the manner hereinafter set out. This plan of distribution is designed in some substantial measure to compensate taxing districts !or the loss of revenues incident to the operation of the Homestead exemptions amendment to the Constitution of Georgia, adopted in June, 1937, as well as to supply revenue which the said Constitution contemplates shall be available to municipalities, counties, and other taxing districts.
"(a) Revenue derived from taxes on intangible personal property the taxable situs of which is not within any incorporated municipality which maintains its own school system, any tax levying school district, or other special taxing district shall be divided between the State, the County General Funds and the County School Funds in the proportion that the aggregate millage rate for school purposes and the aggregate millage rate for State purposes respectively bear to the grand total millage rate for all purposes applicable to real and tangible personal property similarly located, in each county.
"(b) Revenue derived from taxes on intangible personal property the taxable situs of which is not within any incorporated municipality or other special taxing district but within a tax levying school district shall be divided between the State, the County General Funds, the County School Fund, and the School Fund of the School District in which said property has a taxable situs in the proportion that the millage rate for State purposes, for county purposes, for county school purposes and for local school district purposes respectively bear to the grand total millage rate for all purposes applicable to real and tangible personal property similarly located.
" (c) Revenue derived from taxes on intangible personal property the taxable situs of which is within an incorporated municipality but not within any other special taxing district shall be divided between the State, the County General Fund and the Municipal General Fund in the proportion that the aggregate millage rate for State purposes, the aggregate millage rate for county purposes and the aggregate millage rate for municipal purposes respectively bear to the grand total millage rate for all purposes applicable to real and tangible personal property similarly located; provided, however, that if the school district in which the said intangible property has a taxable situs shall make a levy separate from the municipal levy, the revenue shall be divided between the State, the County General Fund, the Municipal General Fund and the School Fund in the proportion represented by the respective millage rates.
" (d) Revenue derived from taxes on intangible personal property the taxable situs of which is within an incorporated municipality but not within any other special taxing district, and within a county having a county-wide school system, shall be divided between the State, County General Fund, County School Fund, and the Municipal General Fund in the proportion that the millage rate for State purposes, for county purposes, for County School purposes, and for municipal purposes respectively bear to the grand total millage rate for all purposes applicable to real and tangible personal property similarly located.
" (e) In the event the said intangible personal property has a taxable situs in some other special taxing district or districts, the division between State, County, School, Municipal and other special taxing districts shall be

579
in the proportion represented by the respective aggregate millage rates applicable to real and tangible personal property similarly situated. The tax levied in Section 3 hereof 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 of the participating taxing authorities. Provided that, in the event any distribution or part thereof as herein provided shall, for any reason be adjudged to be invalid, such distribution or part thereof, so invalidated, shall be paid into the State Treasury in the same manner and for the same purposes as hereinafter provided in Section 12 as to the State's share of the revenues derived from the tax imposed by this Act.
"Provided further that, in the event any distribution or part thereof, as provided herein to be made to municipalities or counties, shall be adjudged to be invalid, the political subdivisions affected and all other subdivisions of the same class throughout the State shall be entitled and empowered to impose taxes upon the classes of property, included within this bill, as now provided by law. Provided, however, that in no event shall any political subdivision or taxing authority, levy a tax on intangible property classified and taxed as now provided by law, at a rate in excess of twenty per cent of the rate levied by such political subdivision or taxing authority on tangible property."
This Act was amended by an Act approved December 22, 1953, heretofore referred to, and Section 8 of the amended provision is as follows:
"Each clerk of the superior court in this State shall make a report to the State Revenue Commissioner, on forms prescribed by him, on the first and fifteenth of each month, of all sums collected under this Act, and shall at the same time remit to the State Revenue Commisisoner all sums so collected, less two per centum thereof, which the clerk shall retain as compensation for his services in collecting said tax. All such taxes shall be deemed to have been collected by the clerk of the superior court collecting them in his official capacity and a failure to remit, as herein required, shall constitute a breach of official duty, and of the official bond of such clerk. In each county in which the clerk of the superior court is on a salary, the two per centum allowed the clerk by this section as compensation shall be paid into the county treasury and become county property." (Emphasis ours.)
Section 17 of the amendment provides that:
"All revenues derived from the tax imposed by Sections 1 and 2 of Part I of this Act shall be distributed as now provided by law for the distribution of revenue collected under the Act of the General Assembly of Georgia, enacted at the extraordinary session of 1937-1938, approved December 27, 1937, entitled 'An Act to classify property for taxation,' as amended."
This section is in direct conflict with a portion of Section 8, to-wit:
".. and shall at the same time remit to the State Revenue Commissioner all sums so collected, ..."
Section 17 by its terms provides for the distribution in accordance with Section 11 of the original act.
I am of the opinion that that portion of Section 8, to-wit, "And shall at the same time remit to the State Revenue Commissioner all sums so collected" is superseded by the subsequent Section 17, which provides that the revenue shall be

580

distributed according to the Act approved December 27, 1937. In the case of Tyler v. Huit, 199 Ga. 845, at p. 850 it was said:

"It is a well-settled rule of construction that if there is a conflict between two parts of a single act, the latest in position will be declared to be the law, since it is presumed to be the last expression of the legislative will. Gilbert v. Georgia R. & Bkg. Co., 104 Ga. 412 (30 S. E. 673); Lamar v. Allen, 108 Ga. 158 (5), 164 (33 S. E. 958); Darby v. Deloach, 190 Ga. 499, 501 (9 S. E. 2d, 626)."

It is therefore my opinion that the clerk of the court collecting the taxes levied under the amendment approved December 22, 1953, should remit to the tax collector or tax commissioner of his county for distribution the sums collected on the tax levied in the amendment.

As stated, you have informed me that the clerks of the courts of this State have remitted to you taxes collected under the provisions of the amendment in accordance with Section 8 and that you, in accordance with Article VII, Section II, Paragraph III, have placed the taxes so remitted to you in the State Treasury.

It is my opinion that the State Treasurer should make refund to the Clerk of

the Superior Court of each of the several counties in this State for the amounts

remitted to you and placed by you in the State Treasury for the reasons previously

stated in this opinion.



The Intangible Tax was levied to be distributed in accordance with Section 11 of the original act. You as Revenue Commissioner could not make this distribution because in order to do so it would be necessary for you to have an appropriation for this purpose and no such appropriation was passed. Therefore, you would be without authority to make a distribution.

In addition to this fact, if an appropriation had been passed, you do not have the records of the county tax collectors which would be essential to make distribution in accordance with the terms of the Act.

The Legislature would not have the power under the Constitution to appropriate the proceeds of the intangible tax for distribution as such. Under the provisions of Article VII, Section IX, Paragraph IV, the Legislature would be required to appropriate a definite sum and it would be impossible for the Legislature to appropriate a correct sum since it could not be determined until after the taxes were collected. Article VII, Section IX, Paragraph IV is as follows:

"The appropriation for each department, officer, bureau, board, commission, agency or institution for which an appropriation is made, shall be for a specific sum of money, and no appropriation shall allocate to any object, the proceeds of any particular tax or fund or a part or percentage thereof."

The construction herein placed upon the statute in question is the only construction which could be placed thereon so as to provide that the taxes collected under the Intangible Tax Act, as amended, be paid to the instrumentalities of the State as provided in the original act. It is inconceivable to think that the Legislature intended that the taxes collected under the Act as amended should remain in the hands of the Treasurer.

!)81
PUBLIC REVENUE-Distribution-Intangible Tax Distribution of Intangible Tax based on location of the property.
December 2, 1954
Mr. James L. Bentley, Jr. Director, Property Tax Unit
I wish to acknowledge receipt of your request for an official opmwn on the following question propounded to you by Mr. Dan D. Dunwody, Tax Commissioner, Bibb County, in his letter of November 30, 1954. Mr. Dunwody's question is as follows:
"The question now arises as to the distribution of this new tax. For example, Macon Federal Savings and Loan Association of Macon, Georgia, whose principal office is in the City of Macon. The loans held by them, will they be considered all to be distributed between the City of Macon, Bibb County and the State of Georgia, or only the loans which are in the city limits of Macon be participated in by the City and those loans held by them outside the corporate limits be divided between the State and County? The question is whether distribution will be at the location of the property solely, or by the owner of said mortgage?" Section 17 of the Intangible Tax Act approved December 22, 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379-390) contains the following provision:
"Section 17. All revenues derived from the tax imposed by Sections 1 and 2 of Part I of this Act shall be distributed as now provided by law for the distribution of revenue collected under the Act of the General Assembly of Georgia, enacted by the extraordinary session of 1937-1938, approved December 27, 1937, entitled 'An Act to classify property for taxation,' as amended.
"All revenues derived from the tax imposed by Sections 3 through 16 of Part I of this Act, including revenues from any imposition of such tax upon intangible trust protperty, shall be distributed among the State and municipality in which the real estate is situated and the county in which such real estate is situated in the same proportion that revenues derived from the tax imposed by the Act of the General Assembly of Georgia, enacted at the extraordinary session of 1937-1938, approved December 27, 1937, entitled 'An Act to classify property for taxation,' as amended, are divided." You will note that the above section provides that the distribution o:f the tax shall be among the State and municipality in which the real estate is situated The residence of the maker or the holder of the recorded instrument has nothing whatever to do with the distribution of the tax. One of the reasons urged for the passage of the Intangible Tax Act was that the tax could be collected against holders of long-term notes who are not residents of Georgia and who before the passage of this Act could not be taxed because they had no business situs in the State of Georgia. I am therefore of the opinion that distribution of the intangible tax levied under the provisions of the Act approved December 22, 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379-390) will be based solely on the location of the property.

582
PUBLIC REVENUE-Distribution-Intangible Tax Sums collected by the Clerk of the Superior Court, under the Intangible
Tax Law, should be remitted to the County Tax Collector for the distribution provided by law.
October 21, 1954
Honorable Charles D. Redwine Commissioner of Revenue
You request me to advise you by what legal means a proper distribution could be made of funds remitted to you under the Intangible Tax Act as approved December 15, 1953 (Georgia Laws 1953, Nov.-Dec. Session, p. 378-390). As I understand it, these funds were remitted to you by the clerks for distribution under this act, as amended, and that you in turn deposited said sums so collected in the State Treasury.
Section 11 of the Intangible Tax Act, as approved December 27, 1937 (Ga. Laws 1937-38, p. 156-170), provides that:
"The County Tax Collector, on the basis of his records and of certificates, hereby required to be supplied by each school district, municipality and other taxing district in the county, at least monthly shall distribute the revenue collected from each owner of intangible property between the State and the various local taxing districts in the manner hereinafter set out. This plan of distribution is designed in some substantial measure to compensate taxing districts for the loss of revenues incident to the operation of the Homestead exemptions amendment to the Constitution of Georgia, adopted in June, 1937, as well as to supply revenue which the said Constitution contemplates shall be available to municipalities, counties, and other taxing districts.
"(a) Revenue derived from taxes on intangible personal property the taxable situs of which is not within any incorporated municipality which maintains its own school system, any tax levying school district, or other special taxing district shall be divided between the State, the County General Funds and the County School Funds in the proportion that the aggregate millage rate for school purposes and the aggregate millagb rate for State purposes respectively bear to the grand total millage rate for all purposes applicable to real and tangible personal property similarly located, in each county.
"(b) Revenue derived from taxes on intangible personal property the taxable situs of which is not within any incorporated municipality or other special taxing district but within a tax levying school district shall be divided between the State, the County General Funds, the County School Fund, and the School Fund of the School District in which said property has a taxable situs in the proportion that the millage rate for State purposes, for county purposes, for county school purposes and for local school district purposes respectively bear to the grand total millage rate for all purposes applicable to real and tangible personal property similarly located
"(c) Revenue derived from taxes on intangible personal property the taxable situs of which is within an incorporated municipality but not within any other special taxing district shall be divided between the State, the County General Fund and the Municipal General Fund in the proportion that the aggregate millage rate for State purposes, the aggregate millage rate for county purposes and the aggregate millage rate for

583
municipal purposes respectively bear to the grand total millage rate for all purposes applicable to real and tangible personal property similarly located; provided, however, that if the school district in which the said intangible property has a taxable situs shall make a levy separate from the municipal levy, the revenue shall be divided between the State, the County General Fund in the proportion represented by the respective millage rates.
"(d) Revenue derived from taxes on intangible personal property the taxable situs of which is within an incorporated municipality but not within any other special taxing district, and within a county having a county-wide school system, shall be divided between the State, County General Fund, County School Fund, and the Municipal General Fund in the proportion that the millage rate for State purposes, for county purposes, for County School purposes, and for municipal purposes respectively bear to the grand total millage rate for all purposes applicable to real and tangible personal property similarly located.
" (e) In the event the said intangible personal property has a taxable situs in some other special taxing district or districts, the division between State, County, School, Municipal and other special taxing districts shall be in the proportion represented by the respective aggregate millage rates applicable to real and tangible personal property similarly situated. The tax levied in Section 3 hereof 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 of the participating taxing authorities. Provided that, in the event any distribution or part thereof as herein provided shall, for any reason be adjudged to be invalid, such distribution or part thereof, so invalidated, shall be paid into the State Treasury in the same manner and for the same purposes as hereinafter provided in section 12 as to the State's share of the revenues derived from the tax imposed by this Act.
"Provided further that, in the event any distribution or part thereof, as provided herein to be made to municipalities or counties, shall be adjudged to be invalid, the political sub-divisions affected and all other subdivisions of the same class throughout the State shall be entitled and empowered to impose taxes upon the classes of property, included within this bill, as now provided by law. Provided, however, that in no event shall any political subdivision or taxing authority, levy a tax on intangible property classified and taxed as now provided by law, at a rate in excess of 20% of the rate levied by such political subdivision or taxing authority on tangible property."
This Act was amended by an Act approved December 22, 1953, heretofore referred to, and Section 8 of the amended provision is as follows:
"Each clerk of the superior court in this State shall make a report to the State Revenue Commissioner, on forms prescribed by him, on the first and fifteenth of each month, of all sums collected under this Act, and shall at the same time remit to the State Revenue Commissioner all sums so collected, less two per centum thereof, which the clerk shall retain as compensation for his services in collecting said tax. All such taxes shall be deemed to have been collected by the clerk of the superior court collecting them in his official capacity and a failure to remit, as herein required, shall constitute a breach of official duty, and of the official bond of such clerk. In each county in which the clerk

584
of the superior court is on a salary, the two per centum allowed the clerk by this section as compensation shall be paid into the country treat;mry and become county property." (Emphasis ours.)
Section 17 of the amendment provides that:
"All revenues derived from the tax imposed by Sections 1 and 2 of Part I of this Act shall be distributed as now provided by law for the distribution of revenue collected under the Act of the General Assembly of Georgia, enacted at the extraordinary session of 1937-1938, approved December 27, 1937, entitled 'An Act to classify property for taxation,' as amended." This section is in direct conflict with a portion of Section 8, to-wit:
"... and shall at the same time remit to the State Revenue Commissioner all sums so collected, ..."
Section 17 by its terms provides for the distribution in accordance with Section 11 of the original Act.
I am of the opinion that that portion of Section 8, to-wit, "And shall at the same time remit to the State Revenue Commissioner all sums so collected" is superseded by the subsequent Section 17, which provides that the revenue shall be distributed according to the Act approved December 27, 1937. In the case of Tyler v. Huit, 199 Ga. 845, at p. 850 it was said:
"It is a well-settled rule of construction that if there is a conflict between two parts of a single act, the latest in position will be declared to be the law, since it is presumed to be the last expression of the legislative will. Gilbert v. Georgia R. & Bkg. Co., 104 Ga. 412 (30 S. E. 673); Lamar v. Allen, 108 Ga.158 (5), 164 (33 S. E. 958); Darby v. Deloach, 190 Ga. 499, 501 (9 S. E. 2d, 626)."
It is therefore my opinion that the Clerk of the Court collecting the taxes levied under the amendment approved December 22, 1953, should remit to the tax collector or tax commissioner of his county for distribution the sums collected on the tax levied in the amendment.
As stated, you have informed me that the clerks of the courts of this State have remitted to you taxes collected under the provisions of the Amendment in accordance with Section 8 and that you, in accordance with Article VII, Section II, Paragraph III, have placed the taxes so remitted to you in the State Treasury.
It is my opinion that the State Treasurer should make refunds to the Clerk of the Superior Court of each of the several counties in this State for the amounts remitted to you and placed by you in the State Treasury for the reasons previously stated in this opinion.
The Intangible Tax was levied to be distributed in accordance with Section 11 of the original act. You as Revenue Commissioner could not make this distribution because in order to do so it would be necessary for you to have an appropriation for this purpose and no such appropriation was passed. Therefore, you would be without authority to make a distribution.
In addition to this fact, if an appropriation had been passed, you do not have the records of the county tax collectors which would be essential to make distribution in accordance with the terms of the Act.
The Legislature would not have the power under the Constitution to appropriate the proceeds of the intangible tax for distribution as such. Under the provisions of Article VII, Section IX, Paragraph IV, the Legislature would be required to appropriate a definite sum and it would be impossible for the Legislature

585
to appropriate a correct sum since it could not be determined until after the taxes were collected. Article VII, Section IX, Paragraph IV is as follows:
"The appropriation for each department, officer, bureau, board, commission, agency or institution for which an appropriation is made, shall be for a specific sum of money, and no appropriation shall allocate to any object, the proceeds of any particular tax or fund or a part or percentage thereof." The construction herein placed upon the statute in question is the only construction which could be placed thereon so as to provide that the taxes collected under the Intangible Tax Act, as amended, be paid to the instrumentalities of the State as provided in the original act. It is inconceivable to think that the Legislature intended that the taxes collected under the Act as amended should remain in the hands of the Treasurer.
PUBLIC REVENUE-Municipal Funds (Unofficial) In order for a county or a municipality to levy a tax for industrial devel-
opments, there must be an amendement to the constitution.
November 12, 1954
Honorable John R. Rogers You requested any opinion I may have written upon the legality of a munici-
pality or county having the right to levy a special tax for the promotion of industry.
I fail to find where I have written any official opinion on the question, however, Article VII, Section IV, Paragraph I of our State Constitution, which enumerates the purposes for which counties may levy taxes, does not include a provision for the levying of taxes for this purpose. I am therefore of the opinion that in order for a county or municipality to levy a tax for this purpose it would be necessary to pass a constitutional amendment as was proposed in the acts referred to in your letter, to-wit, an act entitled "Nahunta Tax for Promotion of Industires" (Ga. Laws, 1953, Nov.-Dec. Sess., p. 189) and also an act entitled, "Brantley County Tax for Promotion of Industries and Agriculture." (Ga. Laws, 1953, Nov.Dec. Sess., p. 217). Both of these were constitutional amendments.
PUBLIC REVENUE-State Funds-Appropriations A State Agency may submit an annual budget containing details of
proposed expenditures, and then submit quarterly requests without details.
September 27, 1956
Honorable Harmon Caldwell, Chancellor University System of Georgia
In your letter you submit in substance the following proposal respecting the processing of the budgets for the various institutions under the University System, and you request me to advise you "whether or not the procedure proposed would meet the requirements of Code Section 40-407."
"That the responsible authorities of the University System be permitted to submit to the Budget Bureau a copy of your annual budget for

586
approval and have this become the detail of proposed expenditures as are now required to be included with the quarterly request," and that "at the beginning of each quarter a summary request of the State Appropriation needed in the subsequent quarter will be submitted but without the detail, as now required," with the understanding that ''during the year as formal amendments are made to the annual budget, these would also be presented to the Budget Bureau to cover changes to be made in the original budget." Code Section 40-407 provides, in part, that:
"Before an appropriation to any expending agency shall become available such agency shall submit to the Governor not less than 20 days before the beginning of each quarter a requisition for an allotment of the amount estimated to be required to carry on the work of the agency during the ensuing quarter, and such requisition shall contain such details of the proposed expenditure as may be required by the Governor." (Emphasis supplied.)
The foregoing statute clearly provides the Governor with discretion as to the nature of the details which may be included in the budgets, and if such details are included in the annual budget to detail them in a quarterly requisition would be a duplication, except in those cases in which amendments or changes are necessary. Therefote, with this discretion placed in the Governor under the statute, under the foregoing circumstances and conditions such a proposal has my approval as to legal form and procedure, subject, as I stated, to the approval of the Governor.
PUBLIC SAFETY-Driver's Licenses (Unofficial)
Ordinary has no authority to issue driver's license "for business purposes only" or otherwise to person whose license has been suspended for violation of traffic laws.
February 14, 1955
Honorable J. I. Holland Ordinary Gordon County
Reference is made to your letter of February 8, 1955, regarding the authority of an Ordinary to issue a driver's license "for business purposes only" to one whose license has been suspended by the Department of Public Safety following the driver's conviction for some violation of the law. The nature of the violation is not specified nor is reference made to the Court in which the conviction was had or the circumstances surrounding the suspension.
Drivers' licenses are issued in the first instance by the Department of Public Safety under rules and regulations prescribed by the Director of the Department (Georgia Code Annotated, Section 92A-401 et seq.). While licenses may be suspended by or on the recommendation of the judge of a court of competent jurisdiction upon the conviction of a driver for violation of the state's traffic laws or municipal ordinances (Georgia Code Annotated, Section 92A-9908) and may reinstated upon the recommendation of such judge (Georgia Code Annotated, Section 92A-427.1). I do not know of any instance in which an Ordinary can actually issue a license "for business purposes" or otherwise.
The case that you probably have in mind is one in which the Director of the Department of Public Safety has suspended an operator's license for 30 or 60 days following a conviction for speeding or some other offense under and in accordance with rules and regulations adopted and promulgated pursuant to Section

587
92A-421 of the Georgia Code Annotated. If this be correct and the person whose license was so suspended wishes a hearing on the matter, he should apply to the Director of Public Safety (Georgia Code Annotated, Section 92A-422).
PUBLIC SAFETY-Driver's License-Effect of Discharge in Bankruptcy On Discharge in bankruptcy has no effect on order of Director of Public
Safety suspending a driver-owner's license and registration.
April 13, 1954
Honorable W. C. Dominy, Director Department of Public Safety
You inquire what effect, if any, a discharge in bankruptcy has upon an order duly issued by your suspending a driver's license to operate a motor vehicle and/or his motor vehicle registrations under and in accordance with the provisions of Section 92(A)-605, Georgia Code Annotated (Cumulative Pocket Part to Book 27).
The facts, as I understand them, are that the driver-owner of a certain vehicle was involved in a motor vehicle accident six miles northeast of Rome, Floyd County, Georgia on June 15, 1952. In due course a report or reports were filed with you as required by Section 92A-604. Such report or reports disclosed that the accident resulted in bodily injury or death or damage to the property of some one person in excess of $50.00. Twenty days having passed and there being no satisfactory evidence on file in your office that said driver-owner had insurance coverage in force and effect that he had been released from liability or had executed a duly acknowledged written agreement providing for the payment of an agreed amount in installments with respect to all claims resulting from such accident, you determined and notified the driver-owner of the amount of security which would be sufficient, in your judgment, to satisfy any judgment or judgments for damages resulting from said accident. Sixty days having passed and the driver-owner not having deposited security with you in the sum so determined, you issued or caused to be issued, an order suspending the driver's license and all registrations of motor vehicles belonging to him.
Subsequently a suit was filed against the driver-owner in the Floyd Superior Court on a claim for damages growing out of the accident in question and a judgment for approximately $4,000.00 was rendered against him. Thereupon the judgment debtor instituted bankruptcy proceedings listing the $4,000.00 judgment and a few other items. He received his discharge in due course. The question is whether this judgment and discharge vitiates, or requires that you by appropriate order nullify and set aside, your own order suspending the driver-owner's license and automobile registrations. I think not, for reasons that will be hereinafter more fully set out.
A license to operate an automobile upon the highways is a privilege and not a right (Commonwealth vs. Croning, 336 Pa. 469, 9 A. 408, 410, 125 A. L. R. 1455.) It is a privilege granted under certain specific conditions, subject to all laws pertaining thereto at the time it was issued or later enacted, if otherwise valid. That is the established rule. 60 C. J. S. Motor Vehicles, 109, 119, 120, 159; 108 A. L. R. (Ann.) 1156; 125 A. L. R. (Ann.) 1455; Larr vs. Dignan, 317 Mich. 121 26 N. W. 2d 872; Hedrick vs. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385; Ballow vs. Reeves, (Ky.) 238 S. E. 2d 141; Hadden vs. Aitken (Neb.) 55 N. W. 2d 620 and State vs. Stehlek (Wis.) 56 N. W. 2d 514. It is a reasonable incident of the general welffll"P. and police regulation that financially irresponsible persons be denied the

588
use of the highways with their cars regardless of their competency as drivers. Rosenblum vs. Griffin, 89 N.H. 314, 197 A. 701, 704, 115 A. L. R. 1367; Ballow vs. Reeves, Larr vs. Dignan and Doyle vs. Kohl, 242 Iowa 153, 46 N. W. 2d 52. It seems clear that the legislature may require, as a condition to the right to operate an automobile, the procurement of insurance or the furnishing of other proof of financial responsibility, 251 Mass. 569, 147 N. E. 681. If the legislature may require proof of financial responsibility in advance of the issuance of a license, there appears to be no valid reason why it could not require the same thing of an operator who had been involved in an accident as the condition upon which he will be permitted to retain his license. Ballow vs. Reeves, supra. See also Gillespie vs. Department of Public Safety (Tex.) 259 S. W. 2d 177. This latter case is the most recent (July 15, 1953) and is based on a statute identical in all material respects with our own.
Has the driver-owner in the instant case met the conditions of Section 7 of the Act? This section provides that the license and registration, or registrations, shall not be renewed until the Director is provided with satisfactory evidence of "a release from liability", a final adjudication of, non-liability or an agreement for payment in installments. Admittedly he has not met these conditions unless a discharge in bankruptcy can be regarded as a "release from liability". Surely he has demonstrated no "safety responsibility."
We must consider then the nature, character and effect of a discharge in bankruptcy in relation to this statute. A discharge in bankruptcy is neither payment nor extinguishment of a debt. It is merely a bar to enforcement of the debt by legal proceedings. It is a complete defense, if pleaded, but neither destroys the debt nor the moral obligation to pay. The debt remains in existence after a discharge in bankruptcy although divested of its character as a personal obligation which may be enforced through legal proceedings. This remaining obligation is sufficient consideration for a new promise to pay. It will support the rendition of a judgment if discharge is not pleaded and a creditor's act in bringing suit on a debt of the bankrupt is not a contempt of court unless suits against the discharged bankrupt have been stayed or enjoined. Strictly speaking, a discharge in bankruptcy is not a satisfaction of a judgment against the bankrupt but goes only to the matter of civil remedies. 6 Am. Jur. (Rev. Ed.) Bankruptcy, 750 and 753. Clearly then a discharge is not a "release from liability" in the sense that the words were used in the act in question.
A New York statute provides for the suspension of a driver's license and registration certificate for three years if a judgment against him for personal or property damages sustained as a result of an automobile accident has not been "satisfied or discharged except by a discharge in bankruptcy". In Reitz vs. Mealey, 314 U. S. 33, 86 L. Ed. 21, the act violates the due process clause of the Fourteenth Amendment and is rendered void by 17 of the Bankruptcy Act (11 U.S.C.A. 35). Mr. Justice Roberts in delivering the opinion of the Court said in part:
"The purpose of the statute is clear. It is not a condition of the grant of license that the applicant shall have insurance. Instead the policy of the State is that if a driver has an accident in respect of which a judgment convicts him of negligence his license will be suspended and so remain unless he furnishes proof of his ability to respond for damage thereafter caused; and that in any event, it will be suspended for three years unless in the meantime the judgment is satisfied or the creditor consents that the license be reinstated and remain in force.
* * * *
"If the statute went no further, we are clear that it would constitute

589
a valid exercise of the state's police power not inconsistent with 17 of the bankruptcy act. The penalty which 94-b imposes for injury due to careless driving is not for the protection of the creditor merely but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety." (Emphasis added)
I think it clear, therefore, that a discharge in bankruptcy has no effect whatsoever on an order by the Director suspending a driver-owner's license and registrations under and in accordance with Section 92A-605, Georgia Code Annotated (Cumulative Pocket Part to Book 27).
PUBLIC SAFETY-Crime Laboratory Status of employees of the Crime Laboratory of the Georgia Bureau of
Investigation.
May 7, 1956
Colonel W. C. Dominy, Director Department of Public Safety
Reference is made to your letter regarding the status of the civilian employees of the Crime Laboratory, including the Director and other members of the scientific and technical staff, with particular regard to their eligibility for increases in salary provided for by H. B. No. 560, Act No. 414.
Act No. 414, Ga. Laws 1956 Session, p. 687, provides an increase in compensation of $365.00 per year for " . . . each officer, non-commissioned officer and trooper of the Uniformed Division of the Department of Public Safety, and each member of the Georgia Bureau of Investigation of the Department of Public Safety . . . (Emphasis added.) The word "member" used in context must be construed to mean "special agent".
As to whether the members of the Crime Laboratory staff or any of them may be sworn is an "special agents" so as to qualify for this increase or for any other purpose, we must look to their qualifications and to the nature of the work they actually perform. We turn then to the qualifications as set out in the Code and to the job specifications as adopted by the agency and the State Personnel Board.
Georgia Code Annotated, Sec. 92A-305, provides as follows: "No person shall be eligible for appointment by the Director of the
Department of Public Safety as an agent for the Bureau of Investigation of the Department of Public -Safety until he shall have served for a minimum period of 12 months in the Uniform Division of the Department of Public Safety or a minimum of three years as a law enforcement officer. (Acts 1949, p. 1177)." Moreover, the Director of the Department of Public Safety is specifically prohibited from appointing anyone who does not meet these requirements. See Ga. Code Ann., Sec. 92A-306, which reads as follows:
"The Director of the Department of Public Safety, and the Department of Public Safety are hereby prohibited from appointing or approving

690
any applicant as an agent for the Bureau of Investigation unless he shall have met the requirements set out in Sec. 92-A-305. (Acts 1949, pp. 1177, 1178)". Unless the employees of the Crime Laboratory meet the qualifications set out in Code Sec. 92A-305 supra, and unless they are actually performing the duties set out in the attached job specifications established by the agency and the State Personnel Board, they cannot be legally appointed or retained as SpeciaJ Agents for the purpose of securing the increase in salary provided for in the Act in question or for any other purpose.
PUBLIC SAFETY-Uniform Act Regulating Traffic on Highways Uniform Act Regulating Traffic on Highways does not supersede or revoke
the Motor Vehicle Safety Responsibility Act.
July 19, 1954
Col. W. C. Dominy, Director Department of Public Safety
The question has been raised as to whether the Uniform Act Regulating Traffic on Highways, approved January 11, 1954 (Acts of 1953, November-December Session, page 556) does not supersede and revoke the Motor Vehicle Safety Responsibility Act, approved February 22, 1951 (Acts of 1951, page 565), and more particularly Section 7A thereof. I am of the opinion that it does not, for while I recognize certain apparent conflicts, I think that they are more apparent than real and that the acts are thoroughly reconcilable.
The two acts have distinctly different purposes and objectives. The Motor Vehicle Safety Responsibility Act passed in 1951 is described as "An Act to provide
for the giving of security by owners and operators of Motor Vehicles * * *",while the latter is described as "An Act to regulate traffic on streets and highways; * * *
to define certain crimes in the use and operation of vehicles; to provide for the
punishment for a violation of the provisions of this Act; * * * and for other
purposes." Thus it must be recognized that while Section 7A of the Motor Vehicle Respon-
sibility Act and Section 47(d) of the Uniform Act Regulating Traffic on Highways both provide for the revocation of drivers' licenses the former is a "revocation" or suspension by the Director of Public Safety as a means of compelling a person convicted of drunken driving to give security for the protection of his potential victims and his license "shall" be reinstated after 60 days upon his applying and giving security.
The Uniform Act Regulating Traffic on Highways not only does not expressly repeal the Motor Vehicle Safety Responsibility Act, but provides in so .many words that:
"It is declared as the legislative intent of this Act that among the
laws of Georgia not repealed or affected hereby * * * are those providing
for:
* * * *
"(u) Motor Vehicle safety responsibility, except to the extent that accident reporting provisions are modified herein." There are, moreover, no such conflicts or inconsistencies between provisions as, in my judgment, would justify me in concluding that the latter repealed the

591
former in whole or in part by necessary implication. As has been stated the one provides for punishment for crime, the other for revocation for three years or until the convicted driver provides insurance or other protection for the protection of the public.
I construe the second paragraph of Section 7A of the Motor Vehicle Safety Responsibility Act to mean that the Director may at any time after the mandatory revocation of a license reinstate the same upon proof of responsibilty and that he must do so at the expiration of the 60 day period. In other words, the Director has 60 days from the date of the conviction to process the application for reinstatement. I do not regard it as a minimum suspension for to do so would be to construe the provision as penal and would be at variance with the clear purpose and intent of the act as stated in the title and reflected in the other sections thereof.
So construed, Section 7A of the Motor Vehicle Safety Responsibility Act is reconcilable with Section 47 of the Uniform Act Regulating Traffic on Highways, and each complements the other and forms a part of a wise legislative plan to punish law violators through the criminal court and at the same time to require them to give security as a condition to the continued enjoyment of the privilege granted by the license. That such requirement is reasonable and prudent can hardly be questioned. That it is constitutional must be assumed until and unless the Supreme Court of the State holds otherwise.
PUBLIC SAFETY-Injuries to Troopers of Department of Public Safety Department of Public Safety is authorized to pay medical bills of members
of Georgia State Patrol or Georgia Bureau of Investigation, in addition to any award made by Workmen's Compensation Board, as a result of injuries received in line of duty.
April 19, 1954
Captain E. D. Mink Georgia State Patrol Treasurer & Disbursing Officer
You state that Trooper "A" was injured in an accident while on duty with the State Patrol. He incurred medical expense in addition to that which was covered by an award of the Workmen's Compensation Board. You ask whether the Department of Public Safety has authority to pay for this additional medical expense.
Section 1 of an Act of the General Assembly of Georgia, approved December 22, 1953 (Ga. Laws 1953, November-December Session, p. 392), reads as follows:
"The Department of Public Safety is hereby authorized to pay all medical, surgical, hospital, nursing and other similar expenses incurred by any member of the Georgia State Patrol or any member of the Georgia Bureau of Investigation, as a result of injuries received in line of duty. The department is authorized to make such payments in addition to any award made by the Workmen's Compensation Board based on such injuries. Such payments shall only be made upon proper presentation of bills to the Treasurer and Disbursing Officer of the Department of Public Safety. The treasurer and the injured party shall together ascertain the correctness of all bills presented. No payments shall be made without the approval of the Director of the Department of Public Safety." (Emphasis supplied.)

592
I am of the opinion that the above gives the Department authority to pay the additional medical expenses. I wish to point out, however, that the procedure provided in this Act should be followed when making such payments.
PUBLIC SERVICE COMMISSION-Jurisdiction Effect of Ruling of United States Comptroller General on jurisdiction of
Georgia Public Service Commission over rates, charges and services of motor carriers performing for-hire transportation service for United States Government between points within Georgia.
March 8, 1954
Mr. Dave 0. Benson, Director Transportation Rates Division Georgia Public Service Commission
You request a formal interpretation of the effect of the ruling of the Comptroller General of the United States, contained in Volume 15, Page 425 of the Decisions of the Comptroller General of the United States, on the jurisdiction of the Georgia Public Service Commission over the rates, charges and services of motor carriers performing for-hire transportation service for the United States Government between points within the State of Georgia.
The opinion of the Comptroller General rendered in November, 1935, is to the effect that a State may not by the imposition of licenses on truck lines, interfere with the right of the United States to operate over the public roads either by means of a Government truck or a contractor engaged by the Government for the exclusive purpose of transporting Federal supplies, and a contractor may not be excused from performance on the grounds that the State Commission has refused to grant him a license.
It was therein stated that the United States has a right to transport its supplies over the public roads in Arizona and particularly over the roads which the Federal Government assisted in constructing, either by means of a Governmentowned truck or by the employment of such trucking concern as may be satisfactory to the United States. The State of Arizona may not interfere therewith by denying to the United States the right to operate over the public roads by means of a Government truck or a contractor engaged by the Government for the exclusive purpose of transporting Federal supplies.
In the opinion of the Comptroller General, there was cited the case of Johnson v. State of Ohio, 254 U.S. 251, and the case of Western Union Telegraph Company v. Pendleton, 122 U.S. 347.
In the Johnson case, it was held that a law of a State penalizing those who operate motor trucks on highways without having obtained licenses based on examinations of competency and payment of a fee, cannot constitutionally apply to an employee of the Post Office Department while engaged in driving a Government motor truck over a post road in the performance of his official duty. (Citing Ohio v. Thomas, 173 U.S. 276, 283)
In the case of Ohio v. Thomas, 173 U.S. 276, 283, it was held that the police power of the State does not extend to the United States, its property or transactions and that Federal property and transactions are immune from State regulations and conflicting State statutes are invalid under the Supremacy Clause of the Constitution of the United States.
The Supremacy Clause of the Constitution of the United States, same being

593
Article 6, Clause 2, provides: "This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any States to the Contrary notwithstanding."
Clearly, the opinion of the Comptroller General of the United States is correct insofar as the immunity of the Federal Government is concerned. However, there is considerable doubt as to whether that part of the opinion relating to contractors transporting Government goods under contracts with the Government is correct. The Supreme Court opinions cited by the Comptroller General do not support this conclusion. I do not locate any Georgia decisions which deal specifically with this point. There was a subsequent opinion of the Supreme Court of the United States, that of Pennsylvania Dairies v. Milk Control Board, 318 U.S. 261, that supports the view that the immunity under the Supremacy Clause would not be extended to those furnishing supplies to the Government.
It would be our opinion that the Georgia Public Service Commission would have complete authority over contractors performing services for the Government, that is to regulate their rates, charges, services, etc., but that they would have no authority over Government-owned carriers engaged in work for the United States Government.
PUBLIC SERVICE COMMISSION-Leasing of Motor Equipment The Public Service Commission has authority to prohibit the leasing by
a licensed motor carrier of ,equipment to a person not possessing a certificate of public convenience and necessity.
May 30, 1955
Honorable A. 0. Randall Georgia Public Service Commission
You have requested my opinion on the question as to whether or not there have beeu any rulings or decisions made subsequent to an opinion rendered by the Attorney General on November 7, 1940 (Op. Atty. Gen., 1939-41, Part II, P. A-15) which would change the effect of that opinion so as to deprive the Commission of power and authority to promulgate an amendment to Rule 25(c) of the Rules of the Commission relating to Motor Carriers, both private and Common.
The proposed amendment is to be designated as 25 (c-1) and reads as follows: "RULE 25(c-1)-The leasing of motor vehicle equipment owned or
operated by any motor contract carrier or motor common carrier to any person, firm, or corporation, other than a duly authorized motor contract carrier or motor common carrier for hire is prohibited." In the opinion referred to, i.e., Op. Atty. Gen. 1939-41, Part II, p. A-15, my predecessor, Honorable Ellis Arnall, rules that the leasing by a licensed motor carrier of equipment to a person not possessing a certificate of public convenience and necessity was not authorized under existing law. It was recommended, however, that the Commission adopt an express rule prohibiting such practice. As authority for that holding, a decision of the Colorado Public Utilities Commission rendered in 1938 (23 PUR, NS, p. 527) was cited for the proposition that such leases should not be permitted on the ground that the practice "has a tendency to develop and permit unlawful operations, break down rate regulations,

594
and constitutes a discrimination against a large portion of the shipping public and is generally misleading."
No subsequent opinions have been rendered by this office which in anywise modify this holding, and I am presently of the opinion that it represents a sound exposition of the law, at least insofar as it stands for the proposition that the Commission may promulgate such a rule as the proposed 25 (c-1). I find it unnecessary to determine whether that opinion is correct insofar as it holds that leases are illegal under existing laws and regulations, although I might add that Rule 25 (c) would appear to require this conclusion.
In view of the pendency of the proposed amendment to 25 (c), I deem it advisable to discuss somewhat further the reason for my agreement with the opinion of my predecessor.
The Motor Carrier Act of 1931, codified in the 1933 Code as Chapter 68-5, which governs the operation of contract and private carriers for hire, is very similar in its general seheme to the Motor Common Carrier Act of 1931, codified in the 1933 Code as Chapter 68-6, which relates to motor common carriers for hire.
Section 68-503 authorizes the Commission to regulate the business of persons engaged in the transportation of persons or property. 68-603 makes similar provisions for motor common carriers. Sections 68-506 and 68-604, respectively, require that all motor carriers are defined in the respective acts first procure a certificate of public convenience and necessity before operating upon the highways; sections 68-510 and 68-613 authorize the Commission to fix rates, and prohibit the carrier from charging other than according to the rates so established; sections 68-511 and 68-614 prohibit any carrier from discriminating in its rates; sections 68-518 and 68-623 require registration (upon payment of fee) of each motor vehicle operated by the carrier under his certificate of public convenience and necessity; sections 68-519 and 68-624 require the carriers to keep records which are open to inspection by the Commission; sections 68-521 and 68-627 authorize the Commission to promulgate rules to insure safe operation of the vehicles; sections 68-523 and 68-629 authorize the Commission to establish rules and regulations to provide "enforcement" of the respective chapters; sections 68-526 and 68-632 authorize the Commission to enjoin, in court, carriers from operating without certificates or otherwise contrary to law; sections 68-9909 and 68-9911 declare it a misdemeanor for any person to fail to comply with the applicable chapter; and lastly, sections 68-9910 and 68-9912 prescribe misdemeanor punishment for the making or taking of rebates.
Firstly, we begin with the proposition that the rule making powers of the Commission to regulate motor carriers have been upheld in one instance as against the attack that they constituted an unlawful delegation of legislative authority. Maner v. Dykes, 55 Ga. App. 436, 438. See also Georgia Public Service Commission v. Saye & Davis Transfer Co., 170 Ga. 873. Therefore, it would appear that the principal questions is whether the proposed rule is authorized by the statutes. Of course, we must refer to the constitutional issue to determine whether the specific rule, if authorized by the statute, would constitute an unlawful delegation. Since the statutes relating to contract or private carriers are almost identical to those relating to common carriers, the same result must follow in either case.
While legislative powers may not be delegrated (Constitution, Article II, Section I, Paragraph 1; Code Ann., 2-1301; Phillips v. Atlanta, 210 Ga. 72, 74) the General Assembly may confer upon administrative bodies "power to make regulations and to deal in a somewhat legislative way with matters which are quasilegislative, but which are predominantly administrative in their nature," (Zuber v. Sou. Ry. Co., 9 Ga. App. 539 [3]; Abbott v. Commrs. of Fulton County, 160 Ga.

595
657, 666); the administrative agency may make rules and regulations to carry into effect a law already enacted (Glustrom v. State, 206 Ga. 734, 736), where the legislature lays down the policy and prescribes standards for the rule making body to follow (Schecter v. United States [1935] 295 U. S. 495, 530, 79 L. Ed. 1570, 1580, 55 S. Ct. 837); the power to make rules for carrying out the expressed legislative will is administrative and not legislative (United States v. Grimand [1910] 220 U.S. 506, 517, 55 L. Ed. 563, 568, 31 S. Ct. 480) in construing a grant of powers, it is a general principle "that where the end is required, the appropriate means are given" (United States v. Bailey, [1835] 9 Pet. 238, 255, 9 L. Ed. 113, 120); the filling in of "details" for any legislative scheme may always be delegated (United States v. Rock Royal Co-Operative [1939] 307 U. S. 533, 574, 83 L. Ed. 1446, 1470, 50S. Ct. 993; United States v. Shreveport Grain & Elevator Co. [1932] 287 U.S. 77, 85, 77 L. Ed. 175, 179, 53 S. Ct. 42; McKinley v. United States [1919] 249 U.S. 397, 399, 63 L. Ed. 668, 669, 39 S. Ct. 324; Maner v. Dykes, supra), and in this respect, it must be kept in mind that the legislature "can only legislate so far as is reasonable and practicable, and must leave to executive officers the authority to accomplish its purpose", nor is it required to make specific standards for each subsidiary executive action in carrying out a policy (Carlson v. Landon [1952] 342 U.S. 524, 542, 96 L. Ed. 547, 561, 77 S. Ct. 525); and lastly, any rule or regulation promulgated must be in harmony with the statute and not undertake to amend it. Miller v. United States [1935] 294 U. S. 435, 440, 79 L. Ed. 977, 981, 55 S. Ct. 440.
Applying these principles to the applicable statutes, I think it obviously follows that the proposed amendment is clearly authorized as a means of "enforcement of the provisions" of the law, as provided in Sections 68-423 and 68-629.
It should be apparent that a leasing transaction by a licensed carrier lends itself to abuse that would be difficult to detect or prevent in a direct sense, and that the only feasible way to prevent the prohibited practice is to prohibit the conditions from ever coming into being which are peculiarly likely to result in abuse.
From the review of the Georgia statutes hereinbefore set out, it is seen that the policy of the law is to protect the public in its relations with carriers by providing uniformity of rates and prohibiting discrimination in the charging thereof; to prescribe safety regulations; to require insurance coverage by carriers; to insure continuity of service, and generally, to provide close supervision and regulation which the public interest requires.
When transportation services are furnished outright by a carrier, the law by its own terms makes him subject to its provisions. However, if the same person is permitted to disguise a service through the subterfuge of a lease, the policy of the act would be frustrated none the less, and all of the protection required by law would be withheld. Experience has shown that such leasing arrangements have in many cases been made in bad faith, and the mere fact that some leases may have been bona fide does not deprive the Commission of adopting the only effective means of enforcement. Compare Williamson v. Lee Optical of Oklahoma (March 28, 1955) 99 L. Ed. (Advance, p. 395.
Conversely, it has several times been held that an unlicensed lessor of vehicles would be treated as a carrier, and required to obtain certificates of public convenience and necessity, where the leasing transaction was colorable. Entremont v. Whitehall [1938] 13 J)al. 2d 290, 89 P 2d 290, 89 P 2d 392; Ga. Truck System v. I. C. C. [1941] 123 F 2d 210; United States v. La Tuff Transfer Service, Inc., 95 F Supp. 375; Hoppe v. Redlands Orange Growers Assn. [1925] PUR 1925B, 69; Hodge Transp. System v. Tebo [1924] 25 Cal. RCR 383.
While in these cases it was necessary to show that the specific lease was made in bad faith for evasion purposes, an entirely different situation exists where the

596
purported lessor is itself a certificate holder. A non-certificate holder normally does not engage in the furnishing of services, but a certificate holder does, and the opportunity to promiscuously intermingle leases with services may reasonably be expected to require all lessors to procure certificates does not require a like conclusion as to a regulation requiring that all lessees from certificate holders be certificate holders themselves.
The proposed regulation has been many times approved in other jurisdictions. See Re Houtz [1938] 74 PUR N. S. 226; Re Taxicab Fares [1931] PUR 1932A, pp. 152, 156 (c); Re Kennicott-Patterson Warehouse Corp., case no. 953, Decision no. 4639, Oct. 4, 1932.
I therefore conclude that promulgation of Rule 25 (c-1) is within the legal authority of the Commission.
REAL ESTATE-Sale of Interment Rights A contract for the sale and purchase of an interest in land is an agreement
for the sale of real property.
March 25, 1954
Honorable Leo F. Griffin, Chairman Georgia Real Estate Commission
This will acknowledge receipt of your letter of March 24, 1954. In your letter you state in part as follows:
"Certain companies are selling interment rights as per attached contract in a plot of land and they contend that they are not selling or renting real property...." I have considered the agreement or contract attached as above referred to. The contract itself refers to the parties as purchaser and seller. The contract provides for the sale of interest in land (real estate). It is my opinion that such contract or agreement is for the sale of real estate.
RETIREMENT-Clerk of Superior Court (Unofficial) (a) A Clerk of Superior Court, to be eligible for retirement under the
Superior Court Clerks' Retirement Fund, must make payments continuously. (b) If a clerk withdraws any payments, he would not be eligible at any
time to become a member of the fund or receive any benefits.
Honorable R. L. Williams You request that I give you my unofficial views relative to the following
questions: 1. If a Clerk of the Superior Court who is a member of the Superior Court
Clerks' Retirement Fund stops her payments now without withdrawing the payments heretofore made, would that make her eligible to begin the payments at a later date?
2. If she stops her payments now, without withdrawing her payments already made, could she begin four years before her retirement against making payments and be eligible for the retirement fund?

597
Section 24-2740 of the 1933 Annotated Code of Georgia provides:
"In order to be eligible to receive the retirement benefits provided for in this law, a clerk of the superior court must have served 20 years, and at least 12 years of such service must have been as clerk of the superior court, and four years must have been served continuously as clerk of a superior court immediately preceding retirement. Subject to the restrictions set out herein, a clerk, in computing such service, may include service as a deputy clerk of the superior court or the period of service as member of the armed forces of the United States of America, in event the tenure of office as clerk was broken by said military service or service as an elective county officer. No person shall be eligible for the retirement benefits provided herein unless he has paid into the fund the amount provided for in th1s law for the four years' service immediately preceding his retirement. Any clerk who is approved for the purpose of receiving retirement benefits shall be paid a monthly amount equal to the two-thirds of his salary based upon his last four years of service as clerk immediately preceding his retirement, or the sum of $200 per month, whichever is the smaller sum. No person shall receive credit for any service performed after the effective date of this law unless payment for the period covered by such service has been made to the board as provided for in this law. No person shall be eligible for benefits provided herein until his official duties shall have terminated, and unless he shall file application for benefits within 90 days, or as soon thereafter as possible from the time of the termination of his official duties."
Section 24-2741 of the 1933 Annotated Code provides:
"Any clerk may withdraw the total sum without interest which he has paid into the fund, but he shall not be eligible at any time after such withdrawal to become a member of fund or to receive any benefits as provided in this law. If any clerk dies before being retired, the total amount, without interest, which has been paid by him into the fund shall be paid to his estate. If after retirement, any clerk should die without having received the amount in benefits equal to the amount which he had paid into said fund, the difference, without interest, shall be paid to his estate."
You will note that the above cited Code Section 24-2740 provides: '' . No person shall be eligible for the retirement benefits provided herein unless he has paid into the fund the amount provided for in this law for the four years' service immediately preceding his retirement ...", and "... No person shall receive credit for any service performed after the effective date of this law unless payment for the period covered by such service has been made to the board as provided for in this law...."
Your attention is also directed to the provision of Section 24-2741 which provides: "... Any clerk may withdraw the total sum without interest which he has paid into the fund, but he shall not be eligible at any time after such withdrawal to become a member of fund or to receive any benefits as provided in this law...." It is my personal and unofficial view that a person must have the period of service enumerated in the act and made contributions continuously from the effective date of the act for making contributions, and would not be authorized to stop making payments after becoming a member and then later on renewing contributions four years prior to acquiring the twenty years' service.
As to the question of withdrawing of contributions, it is my personal and

598
unofficial view that it is covered by the provisions of Section 24-2741, above cited, which provides that if a clerk withdraws contributiions which had been paid into the funds, he would not be eligible at any time to become a member of fund or to receive any benefits as provided in this law.
RETIREMENT-Employees' Retirement System-Credit for Prior Serv-ice An individual is entitled to credit in the Employees' Retirement System
for service as a City Court Judge, but not for service as a Municipal Court Judge or ex-officio City Court Judge.
April 4, 1956
Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System of Georgia
I am pleased to acknowledge your request to review Part ll of the Application for Membership in the Employees' Retirement System of Georgia of "A" of Savannah, Georgia, and advise you whether this member is entitled to prior service credit as claimed on lines 1, 2, and 3 thereof.
The prior service on line 1 of Part II of the Application enumerating service as Judge of the City Court of Savannah, from August 1951 to July 1, 1953 (one year and eleven months service), should be allowed as a prior service credit under the provisions of the Employees' Retirement System of Georgia, as provided in Section 5 of the City Court Amendment to the System.
Items 2 and 3 of Part II of the Application for Membership setting forth services as Chief Judge of the Municipal Court and Associate Judge of the Municipal Court are not City Courts in contemplation of the Act allowing City Court Judges to become members of the Employees' Retirement System of Georgia.
Item 2 states that the member was Chief Judge of the Municipal Court of Savannah from 1935 through 1951 and Ex-Offcio Judge of the City Court. The City Court Amendment to the Employees' Retirement System approved December 21, 1953, refers only to Judges of City Courts and not Judges of other courts who may be Ex-Officio and perform certain duties of a City Court occasionally. Therefore, it is my view that "A" was actually Chief Judge of the Municipal Court during the period 1935-1951, and therefore would not be entitled to prior service as a City Court Judge as a member of the Employment Retirement System of Georgia.
RETIREMENT-Employees' Retirement System-Members Employees .of Georgia Commission on Alcoholism eligible for membership
in Employees' Retirement System of Georgia.
October 7, 1954
Mr. Paul H. Fraser, Executive Director Georgia Commission on Alcoholism
This is to advise that under the Acts of 1952, pages 221-224, it is clear that the Georgia Commission on Alcoholism may avail itself of the procedure provided in said Act and bring the employees of your Commission under the Merit System and the provisions of the Employees' Retirement System of Georgia.

599
At your convenience, if you will call by the department, I will be glad to prepare the necessary resolution to be adopted by your Commission, and the Executive Order of. the Governor which would effectuate the resolution of your Commission.
RETIREMENT-Employees' Retirement System-Systems of The General Assembly has provided for separate retirement systems for
each political subdivision, and not a retirement system for each position.
June 25, 1956
Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System
I am pleased to acknowledge your request for an opinion relating to the meaning of certain wording in paragraph 5 (c) of Section 3 of Act No. 82, Ga. Laws 1956, (Ga. Laws 1956, p. 75).
You state there appears to be some confusion in relation to the words "be deemed to constitute separate retirement systems with respect to each political subdivision and positions covered thereby." You specifically asked my opinion if this provision of the Act can be construed to mean that a separate retirement system could be established for each position in each political subdivision.
I have examined paragraph 5 (c) of Section 3 of said Act, the other provisions of the Act and the caption thereof and I cannot find anywhere therein any legislative intent to provide for a separate retirement system for each position within any of the political subdivisions. The caption of the Act clearly provides only for the establishment of separate retirement systems with respect to political subdivisions.
Article 3, Section 7, paragraph 8, of the Constitution of Georgia, provides that no law shall contain matter different from that which is expressed in the title or caption thereof.
The words "each political subdivision and positions covered thereby" could only mean when considered in the light of the other provisions of the Act and the caption, to provide that the positions referred to were covered as a part of such political subdivisions and not separate and distinct therefrom.
It is out of the question to even consider that there could be a separate retirement system for each position. This is certainly not in keeping with the provisions of the Social Security Act, nor the intent of the State Enabling Act, and could not in any way be construed that it was permissible to consider a separate retirement system for each position.
From an analysis of the Act as a whole, it is my opinion that it was the intent of the General Assembly to provide separate retirement systems with respect to each political subdivision and not for a retirement system for each position; therefore, you would not be authorized to contract or enter into any agreements to cover separate positions within a political subdivision, but would be authorized to enter into agreements. with the Social Security Administration to extend OASI coverage to various political subdivisions on the basis of being covered by a separate retirement system for each political subdivision. [Ed. Note: See Ga. Laws, 1957, p. 586.]

600
RETIREMENT-Firemen's Pension Fund-Investments (Unofficial)
The Firemen's Pension Fund can invest in any investment legal for an insurance company, and this includes a loan to a private owner of a water works system.
June 27, 1956
Mr. Eugene W. Holcombe
I have your letter inquiring if the Georgia Firemen's Pension Fund can legally make a loan to a private owner of a water works system, operating under 99 year franchise from the City of Irwinton granted on December 6, 1939. It is noted that the water works system is mortgaged for $50,400, payable over the next fourteen years at $300.00 per month, without interest.
The purpose of the proposed loan is to change from a fiat rate to a meter system, to put in larger water mains, to extend the lines so as to serve approximately fifty additional customers and to make certain other needed improvements to the system.
The Firemen's Retirement System Act (Ga. Laws 1955, p. 339 et seq.) in Section 4 provides that the Board of Trustees of the Firemen's Retirement System shall have authority:
"to invest any of the funds so received in any investments which are legal investments for insurance companies under the laws of Georgia; and to generally exercise all the powers necessary for the administration of the fund created by this Act."
Section 56-224 of the Code of Georgia, as amended by the 1955 Session of the General Assembly, provides in sub-section (g) that insurance companies are authorized to invest in:
"Investment securities, that is, marketable bonds, notes and/or debentures, evidencing indebtedness of solvent persons or corporations, which under the regulations of the Comptroller of Currency of the United States, national banks may buy and in which they may deal."
The regulation of the Comptroller of Currency, promulgated June 27, 1938, dealing with investment securities (Revised Statutes, Section 5136) provides in Section 1(c):
"In the case of investment securities for which a public distribution as set forth in (a) or (b) above can not be so provided, or so made, and which are issued by established commercial or industrial businesses or enterprises, that can demonstrate the ability to service such securities, the debt evidenced thereby must mature not later than ten years after the date of issuance of the security and must be of such sound value or so secured as reasonably to assure its payment; and such securities must, by their terms, provide for the amortization of the debt evidenced thereby so that at least 75% of the principal will be extinguished by the maturity date by substantial periodic payments; Provided, that no amortization need be required for the period of the first year after the date of issuance of such securities."
As I construe the above regulation, a national bank would be authorized to invest in the securities of the applicant provided such securities mature not later than 10 years after date of issuance of such securities, and provided further that 75% of the principal of the debt evidenced by such securities will be extinguished by the maturity date by substantial periodic payments.

601
I am therefore of the opinion that the Board of Trustees may legally make the proposed loan.
RETIREMENT-Judge of Superior Court (Unofficial)
Discusses qualifications for appointment as Judge of the Superior Court Emeritus.
February 14, 1956
Honorable J. C. Murphy
Thank you for your letter concerning the possible retirement of a judge of the Superior Court.
As you state in your letter, the statute in regard to the retirement of judges of superior court has been amended somewhat since its original enactment. I think, however, that we must construe the amended statute as a whole rather than two sections of it in isolation from the rest of the statute.
In State et al., v. Cherokee Brick and Tile Company, 89 Ga. App. 235, 79 S. E. 2d 322, the court said:
"2. Intention of the Legislature in enacting statute is to be gathered from the statute as a whole so as to give effect to each of its parts, and at the same time harmonize, if possible, component parts." To the same effect is the decision of the Georgia Supreme Court in Bibb County v. Hancock 211 Ga. 429, 86 S. E. 2d 511, in which the court stated:
"11. Words of a statute must be construed in connection with their context, and Legislature's intention must be gathered from a statute as a whole so as to give effect to all its parts, if possible." Hence, while as you state, Sec. 24-2602a provides that ". . . any judge of superior court of the State of Georgia who shall have attained the age of 70 years and shall be in at least his 11th year of service as a judge of the superior court of this State ... shall be eligible to appointment to Judge of the Superior Court Emeritus ...", and Sec. 24-2604a provides generally for payment to a judge of the superior court emeritus of a salary equal to two-thirds of his salary last received from the State as a superior court judge, and two-thirds of any additional amounts which he received from the counties he served at retirement, Sections 24-26lla and 24-2612a of the Code must be considered as particularizing and implementing the matters stated generally in the previous sections you mention. Section 24-2611a specifically requires that the judge be in his 19th year of service before he is eligible to retire by appointment as judge emeritus at twothirds of his previous salary as judge. Sub-section (b) provides that any superior court judge who has attained 70 years of age and is in at least his 11th year of service shall be eligible to retire on a salary of one-half his previous salary as judge. Section 24-2612a provides that no judge shall be eligible for the benefits under this Chapter unless he shall have qualified under one of the provisions of the Section. It is then stated that to qualify for retirement at two-thirds of the salary paid to superior court judges, he must be in at least his 19th year of service, and to qualify for retirement at one-half his salary as superior court judge, he shall have attained 70 years of age and be in at least his 11th year of service. Both Section 24-2611a and Section 24-2612a provide for retirement for disability at onehalf the former salary upon completion of 10 years of service and attaining the age of 62 years. If it should be considered that these sections are in conflict

602
with Sec. 24-2604a, to which you refer, then these sections would prevail because they were enacted later and are presumed to be the latest expression of the will of the Legislature. See Tyler v. Huiet, 199 Ga. 845, 36 S. E. 2d 358.
RETIREMENT-Ordinaries' Retirement System-Fees for (Unofficial) Ordinary can be mandamused to pay fee of $1.00 for each marriage license
sold to Ordinaries' Retirement System Board, fee to be paid Ordinary by purchaser of license in addition to other fees.
May 3, 1955
Honorable W. L. Williams You propound the following questions: " (1) Is any penalty or liability provided for against ordinaries who do not
remit $1.00 for each marriage license sold other than that 'the Board shall have the authority to declare such ordinary ineligible for participation in the retirement fund created herein'?
"(2) Does the proviso at the end of Section 1 mean that the sum of $1.00 is to be added to the ordinary's fees for marriage licenses whereas it is first provided that amount shall be deducted from the cost of marriage license? If so, what provision controls?"
Section 1 of the Ordinaries' Retirement System amending Act, approved March 9, 1955 (Ga. Laws 1955, p. 645) provides:
"Section 1. An Act which provided for retirement benefits for the ordinaries of Georgia, approved December 22, 1953 (Ga. Laws 1953, Nov.Dec. Sess., p. 362), is hereby amended by striking from Section 8 the words 'in which said ordinary has elected to come under the provisions of this Act, so that when so amended Section 8 shall read as follows: 'Section 8. The sum of one dollar for each marriage license sold in each county of this State shall be paid to the board. This amount shall be deducted from the cost of marriage licenses by each ordinary and retained by him. Then, by the tenth day of each succeeding month each ordinary shall remit the amount so collected and retained to the board. It shall be the duty of each ordinary to keep accurate records of the number of marriage licenses sold and such records may be audited by the board at any time. If any ordinary should fail to accurately report the amounts retained by him and fail to remit the proper amount to the board as provided herein, the board shall have the authority to declare such ordinary ineligible for participation in the retirement fund created herein. The sums remitted to the board under this paragraph shall be used for the purpose of paying retirement benefits herein provided for and the cost of administration incurred by the board, provided, however, the sum of $1.00 as provided herein shall be in addition to the fees now prescribed for such services.' " From an analysis of this amending Act, it would be my view that the above Section is clear in providing that the sum of $1.00 as provided therein shall be in addition to the fees prescribed for the services of issuing a marriage license at the time of the approval of this amendatory Act. It would be my further view that this amendatory Act makes it the duty of the ordinary to deduct such sum and by the tenth day of each successive month remit the amount so collected to the Ordinaries' Retirement System Board, and

603
that it is the duty of the ordinary to keep accurate records of the number of marriage licenses sold so that such records may be audited by the Ordinaries' Retirement System Board at any time. It is further clear that if an ordinary should fail to report the amounts retained by him and fail to remit the proper amount to the board as provided in said section, that the board shall have the authority to declare such ordinary ineligible to participate in the retirement fund.
It is my further view that under the general law an ordinary could be mandamused to perform a duty such as prescribed in this Act.
RETIREMENT-Ordinaries' Retirement System-Fees for (Unofficial) An Ordinary must collect a fee of one dollar ($1.00) for each marriage
license sold, which should be remitted to the Ordinaries' Retirement Fund, whether the individual Ordinary participate in the fund or not.
July 18, 1956
Honorable R. H. Griffeth This will acknowledge receipt of your letter which reads as follows: "I would like for you to clear up the matter of Ordinaries having to contribute $1.00 for each marriage license that they issue. I have not joined the Ordinary's Organization, I have not collected the $1.00 from the parties buying the license, consequently, I have not sent the fee in. If I must go back and contribute $1.00 for each license that I have sold, it will work a hardship on me for I would have to pay it out of my own money." The Act which created the Ordinaries' Retirement System, and the amend-
ments thereto, is codified as Chapter 24-17A of the Annotated Code of Georgia. Section 24-1708a reads as follows:
"24-1708a. Portion of marriage license fees added to retirement fund; reports; remittance of funds.-The sum of $1 for each marriage license sold in each county of this State shall be paid to the board. This amount shall be deducted from the cost of marriage licenses by each ordinary and retained by him. Then, by the 10th day of each succeeding month each ordinary shall remit the amount so collected and retained to the board. It shall be the duty of each ordinary to keep accurate records of the number of marriage licenses sold and such records may be audited by the board at any time. If any ordinary should fail to accurately report the amounts retained by him and fail to remit the proper amount to the board as provided herein, the board shall have authority to declare such ordinary ineligible for participation in the retirement fund herein created. The sums remitted to the board under this section shall be used for the purpose of paying retirement benefits herein provided for and the cost of administration incurred by the board: Provided, however, the sum of $1 as provided herein shall be in addition to the fees now prescribed for such services." You will note that this section is mandatory in nature, and I am of the view that one dollar ($1.00) for each marriage license sold should be remitted to the Ordinaries' Retirement Fund.

604
RETIREMENT-Ordinaries' Retirement System-Participation (Unofficial) If an Ordinary is defeated in an election, this fact alone could not prevent
him from receiving retirement benefits.
August 10, 1956
Honorable J. W. Dooly You request information relative to the Ordinaries Retirement System. The provision you quoted in your letter has been amended, and is codified as
Section 24-1711a of the Annotated Code of Georgia. It reads as follows: "24-1711a.. If for any reason any ordinary who has paid money
into the fund should desire to withdraw the amount which he has paid into the fund, he shall be allowed to do so upon application therefor to the board and he shall be refunded the entire amount which he has paid into the fund. In the event any ordinary who has paid money into the fund dies prior to receiving any retirement benefits from the fund, his estate shall be paid the entire amount which he has paid into the fund. In the event any ordinary who has begun to receive retirement benefits from the fund dies before he has been paid retirement benefits in an amount equal to the money which he has paid into the fund, his estate shall be paid an amount which shall be equal to the difference between the amount he had received as retirement benefits and the amount which he has paid into the fund. The money provided for in this section means the percentage of the money received by the ordinary for his official services as ordinary which he has paid into the fund." Consequently, I am of the view that if an ordinary is defeated at the general election in November, this fact alone would not prevent him from receiving retirement benefits.
RETIREMENT-Social Security (Unofficial) City policemen may not be covered under Social Security.
July 20, 1955
Honorable Frank S. Twitty You state that the City of Camilla has recently signed a contract with a State
agency providing for the coverage of city employees under Social Security. You ask whether city policemen may be covered under Social Security.
Based on the following language contained in the Federal Social Security Act, I am of the opinion that city policemen may not be covered:
"Nothing in paragraph (3) of this subsection shall authorize the extension of the insurance system established by this Title to service in any policeman's or fireman's position." 42 USCA 418 (d) (5) (a).

605
RETIREMENT-Teachers' Retirement System-Benefits
Subsequent employment of a retired teacher by another State Agency, whose employees are under a different retirement program, does not authorize the stoppage of retirement payments under the Teachers' Retirement Program.
January 19, 1956
Honorable J. L. Yaden Executive Secretary-Treasurer, Teachers' Retirement System
You state that a person who was a member of the Teachers' Retirement System retired as a teacher on August 1, 1950, and thereafter accepted as of July 1, 1951, a position with the Georgia Training School for Mental Defectives at Gracewood, Georgia. I understand from your subsequent statement that this was a nonteaching position, and that employees of this school are generally members of the Employees Retirement System of Georgia which covers retirement benefits for other employees of the State. You further state that at the request of the officials of the Employees Retirement System, the Board of Trustees of the Teachers' Retirement System stopped this former teacher's retirement payments from your System and asked the former teacher to refund the retirement payments previously made to him so that they could be transferred to the Employees Retirement System as per the request of the Board of that System. The former teacher, I understand, has never requested the transfer of any retirement credits or funds from his retirement account as a teacher to the Employees Retirement System.
You state that the former teacher now requests the Board of the Teachers' Retirement System to restore his retirement benefits (payments) from December, 1951, when they were stopped, to the present time. You are informed by the Employees Retirement System that this person is still carried upon the payroll as a non-teaching employee. You ask whether the Teachers' Retirement System is liable for these retroactive payments arising from the stoppage of his teacher retirement payments. I understand that no irregularity was involved in the retirement of this person in August, 1950, and the question now is as to the application of the appropriate statutes.
It is admitted that the only provision in the Act for the establishment of a teachers' retirement system, Georgia Code Ann., Sec. 32-2901 to 32-2929, inclusive, which sets forth authority to suspend or stop payment of the retirement allowance duly granted to a member of the Teachers' Retirement System is Sub-paragraph (6) of Sec. 32-2905 of the Code of Georgia Annotated. This section provides that if a beneficiary presently receiving a retirement allowance is again employed as a teacher in a position under this System, 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.
It is said to be claimed by the Employees Retirement System of Georgia that Section 40-2515 of the Georgia Code Annotated amends the Teachers' Retirement Act so as to authorize the Trustees of the Teachers' Retirement System to stop payment of the teacher's retirement allowance when he became an employee of the Georgia Training School for Mental Defectives at Gracewood, Georgia, in a non-teaching capacity. This section provides as follows:
"40-2515. Limitation upon membership.-Except as specifically provided in this Chapter, no other provision of law under any other statute which provides wholly or partly at the expense of the State of Georgia for

606
pensions or retirement benefits for employees in the State or their dependents, shall apply to members or beneficiaries of this retirement system, their widows or their dependents."
Georgia Code Sec. 32-2926 contains the same provisions with respect to any other provision of law under any other statute which provides wholly or partly at the expense of the State of Georgia for pensions or retirement benefits for teachers in the State, with the exception, not material in the present circumstances, that the governing boards or authorities of the school system are not prevented from making provision for supplementing retirement allowances. Hence, these sections of the respective Acts make them mutually exclusive.
The amendment of the Teachers' Retirement Act by implication is not favored in our law. In Brikley v. Dixie Construction Co., 205 Ga. 415, 54 S. E. 2d 267 (Ga. Supreme Ct., June 15, 1949) the Court said:
"4. The legislature has the right to amend an existing law by impli- cation, but such an amendment is not favored and never occurs except where the later Act is clearly and indubitably contrary to existing law."
"5. The intention of the legislature to amend an existing law by implication must be clearly and unquestionably shown by the provisions of the amending Act, since an implied amendment to an existing law can not arise out of a supposed legislative intent in no way expressed, however proper it may seem to be."
It is abundantly clear that Sec. 40-2515 of the Georgia Code Annotated does not meet these requirements and hence could not amend the Teachers' Retirement Act so as to authorize stopping payment of this retired teacher's allowance from the Teachers' Retirement System. Likewise, any other conclusion would nullify the principle of mutual exclusiveness provided in both Acts.
Further than this, even if it is assumed contrary to the fact that Code Section 40-2515 does amend the Teachers' Retirement Act, the section makes no mention of the subject of suspending or stopping payment of the teacher's retirement allowance and it can not be said to amend it in this respect. All that Code Section 40-2515 provides is that the provisions of other Acts shall not be imported into the Employees Retirement Act for the purpose of altering the provisions of that Act relating to the retirement benefits of non-teaching State employees. If the Board of Trustees is permitted to stop payment of the teacher's retirement allowance without specific authority from the General Assembly, the question would arise as to how far such power might be exercised. In Bullock v. Spencer, 112 F. Supp. 147, U. S. Dist. Ct. for the District of Columbia, May 4, 1953), the Court said:
"The mere fact that a Board is established to pass on applications does not give rise to an inference that the Board has discretion to grant or deny applications for reasons not specified by the statute. Its function is to determine whether the applicant for retirement is within the pertinent statutory provisions. If the Board had broad powers not conferred by statute, a question would arise as to how far its discretion could be carried. For example-could it deny an application for retirement for longevity because of a shortage of policemen? Could it deny an application for retirement because the police officer was guilty of some minor infraction of discipline? If the argument of the defendant's counsel is correct, then the Board would have a right to deny any application for any reason whatsoever so long as it did not act arbitrarily and capriciously. To endow the Board with such authority requires express statutory pro-

607
VISIOns. None, however, exist. The Congress has not seen fit to include in the statute the terms that the defendant's counsel would read into it by implication."
Similarly, in the instant case, if the Board can stop payment of the teacher's retirement allowance for reasons not stated in the Act, there is no restraint upon its action to be arbitrary and capricious. Thus far the General Assembly has not seen fit to vest such authority in the Board.
In City of Atlanta v. Anglin, 209 Ga. 170, 71 S. E. 2d 419 (Supreme Court of Georgia, June 10, 1952) (Appeal dismissed by U. S. Supreme Court, 344 U. S. 870, 97 L. Ed. 675), the Georgia Supreme Court held that the similar system of firemen for the City of Atlanta is one in which the employee contributes to the retirement fund through salary deductions which results in a contract between the firemen and the City, and even the General Assembly could not reduce the amount of the annuity without the consent of the firemen since to do so would impair the obligation of the contract in violation of the State and Federal Constitutions.
Concerning such contributory contracts, the Court in Bullick v. Spencer, supra, went on to say at page 150:
"It is important to bear in mind that the retirement annuities involved in this case are not pensions or gratuities. They are paid out of a fund to which each officer makes a considerable contribution. The payments are in the nature of old age insurance, rather than old age pensions. The system is a contributory one. It is in the public interest that the integrity of old age retirement plans be maintained. Contributory plans of this nature have developed both in Government and in private industry very rapidly during the past generation. Their creation and growth are due to an enhanced social consciousness, which recognizes that the average person who works for a sala~;y or wages is generally unable to save enough to provide for his old age. Retirement systems have been introduced for the purpose of alleviating hardship and distress that had existed on a large scale for centuries, and also for the purpose of protecting the public treasury from large payments for relief to indigent old people. The statutory construction for which defendants' counsel contend might adversely affect not only the policemen's and firemen's retirement plan, but also the much larger contributory schemes for employees of the Federal Government. Wrath aroused by an individual case, no matter how wellfounded and wholesome, must not be permitted to sway our judgment to the extent of leading us to cut loose from our moorings and devise a new rule for the occasion, which may plague us in the future and possibly impair a well-organized, beneficent system."
Hence, in this case I conclude that the stoppage of the teacher retirement payments was not authorized in this case, and such payments are due the former teacher to the same extent as though he had not been employed at the Training School. While it was unnecessary to a consideration of the questions raised by you, I am also aware of the fact that if a different conclusion were reached in this case, its application would under present conditions endanger the continued operation of a number of public schools in which the teaching staffs consist largely of teachers who have previously retired from another system, a very large part of whose retirement payments is contributed by the State. Code Section 32-2924 provides for the correction of errors in the administration for the Teachers' Retirement System.

608

RETIREMENT-Teachers' Retirement System-Investments
The Teacher's Retirement System has authority to make loans secured by leases, provided the prior approval of the State Insurance Commissioner is obtained.

June 8, 1954

Honorable J. L. Yaden Teachers' Retirement System of Georgia

You requested an opinion as to whether or not the Investment Committee of the Teachers' Retirement System of Georgia has the authority to make loans secured by leases.
The legal authority of the Board of Trustees of the Teachers' Retirement System of Georgia to invest the funds of said Retirement System is set forth in the Georgia Code Annotated, 32-2917 (1952 Revision) in the following language:

"The members of the Board of Trustees shall be the trustees of the retirement system, and shall have full power to invest and reinvest such assets subject to all the terms, conditions, limitations and restrictions imposed by the laws of the State of Georgia upon domestic life insurance companies in the making and disposing of their investments; ..."

An analysis of the foregoing language reveals that the Board of Trustees has "full power" to invest funds of the System subject to the limitations and restrictions imposed by law upon domestic life insurance companies. The limitations and restrictions applicable to the factual situation here presented are set forth in two Code Sections:
(1) Georgia Code Annotated, 56-224 (1952 Revision) contains, inter alia, the following provisions:

"Every insurance company organized and doing business by virtue of the laws of this state shall have authority to invest its money and assets in the following securities, to-wit:
"(a) Any and all bonds or securities issued by the United States of America, the District of Columbia, or any State ...
"(b) Loans secured by any of the classes of securities specified in (a) hereof.
" (c) Loans secured by first liens on improved real estate in any of the States, not exceeding 66% per cent of the value of said property.
"(d) Loans on policies issued by the insurance company, not exceeding the reserve on such policies.

"(e)

"

(2) Georgia State Annotated, 56-225 (1952 Revision) reads as follows:

"Investments in the classes of securities defined in the preceding

section, ... may be made by insurance companies without the approval of

the Insurance Commissioner, and all other investments of funds by insur-

ance companies in classes of securities other than those specified in the

preceding section shall be made only when the approval of the Insurance

Commisisoner shall have been obtained."

Thus, the law authorizes the investment of funds of insurance companies in certain specified classes of securities without the prior approval of the Insurance Commissioner as well as investment in classes of securities other than those specified with the approval of the Insurance Commissioner.
There is no specific prohibition against the investment of funds in loans generally. As a matter of fact, three types of loans may be made without the

609
approval of the Insurance Commissioner. Since, by the express language of the statute loans are listed as securities, there is a clear implication that the words "classes of securities other than those specified in the preceding section" found in Code Section 56-225 embrace all loans other than those listed in Code Section 56-224.
Therefore, it appears that a loan secured by a lease would be authorized under Code Section 56-225. Of course, the prior approval of the Insurance Commissioner would be required.
I, therefore, conclude that the Board of Trustees of the Teachers' Retirement System of Georgia does have authority to make loans secured by leases of Retirement System funds provided the prior approval of the Insurance Commisisoner is obtained.
RETIREMENT-Teachers' Retirement System-Investments Investment of retirement funds in F. H. A. mortgage loans at 100 per cent
of the value of the property legal, provided the Insurance Commissioner approves such loans.
December 17, 1954
Honorable J. L. Yaden, Executive Secretary Teachers' Retirement System of Georgia
This will acknowledge receipt of your requests for an official opm10n as to the legality of investment of Teacher Retirement funds in loans secured by F. H. A. mortgages on real property where the loan is for an amount equal to 100 per cent of the value of the mortgaged property.
The legal authority of the Board of Trustees of the Teachers' Retirement System of Georgia to invest the funds of said Retirement System is set forth in the Georgia Code Annotated, Section 32-2917 (1952 Revision) in the following language:
"The members of the Board of Trustees shall be the trustees of the retirement system, and shall have full power to invest and reinvest such assets subject to all the terms, conditions, limitations and restrictions imposed by the laws of the State of Georgia upon domestic life insurance companies in the making and disposing of their investments.... " An analysis of the foregoing language reveals that the Board of Trustees has "full power" to invest funds of the System subject to the limitations and restrictions imposed by law upon domestic life insurance companies. The limitations and restrictions applicable to the instant problem are set forth in the following Code Section: (1) Georgia Code Annotated, Section 56-224 (1952 Revision) contains inter alia, the following provisions:
"Every insurance company organized and doing business by virtue of the laws of this State shall have authority to invest its money and asests in the following securities, to-wit: ...
"(c) Loans secured by first liens and improved real estate in any of the States, not exceeding 66% per cent of the value of said property." (2) Georgia Code Annotated, Section 56-225 (1952 Revision) reads as follows:
"Investments in the classes of securities defined in the preceding section ... may be made by insurance companies without the approval of the Insurance Commissioner, and all other investments of funds by

610
insurance companies in classes of securities other than those specified in the preceding section shall be made only when the approval of the Insurance Commissioner shall have been obtained." Thus, the law authorizes the Board of Trustees of the Retirement System on their own initiative to invest Retirement funds in loans secured by first liens on improved real estate provided the loan does not exceed 66% per cent of the value of said property. Since there is no specific prohibition against the investment of Retirement funds in loans secured by mortgages generally, funds of the Retirement System may be invested in loans secured by mortgages on real property even though the loan is up to 100 per cent of the value of the property, provided, of course, the prior approval of the Insurance Commissioner shall have been obtained. Georgia Code Annotated, Section 56-225. I am, therefore, of the opinion that the investment of Retirement funds in F. H. A. mortgage loans at 100 per cent of the value of the property is legal provided the Insurance Commissioner approves such loans.
RETIREMENT-Teachers' Retirement System-Investments Upon the assent of the Insurance Commissioner, the Teachers' Retire-
ment System may legally make loans secured by mortgages on real estate up to 100 per cent of the value of the property.
January 3, 1955
Mr. J. L. Yedan, Executive Secretary-Treasurer Teachers' Retirement System of Georgia
This will acknowledge receipt of your letter of December 16, 1954, relative to the legality of the investment of Teachers' Retirement Funds on loans secured by real property.
The question raised by the letter from Mr. J. S. Budd to you and which you attached as an enclosure to your letter relates to a proposal whereby Phillips Petroleum Company leases service stations built by individuals. In other words, as I understand it the individual would borrow funds from the Teachers' Retirement System, construct a service station then lease said station to the Phillips Petroleum Company. The loan from the Teachers' Retirement System would be secured by assignment of the lease as well as a mortgage on the property. Since the loan from the Teachers' Retirement Fund would be 100 per cent of the value of the property the only question is whether or not under the law funds of the Teachers' Retirement System may be invested in loans secured by real property where the loan is 100 per cent the value of the property.
Please be advised that under an opinion dated June 8, 1954, addressed to you, I held that there is no specific prohibition against the investment of loans generally and that although the Trustees of the Teachers' Retirement System under the present law cannot invest in loans secured by mortgages on real property except where the amount of the loan does not exceed 66% per cent of the value of the property, i.e., the value of the property must be at least one-third more than the amount of the loan. However, with the prior approval of the Insurance Commissioner the Board of Trustees of the Teachers' Retirement System may legally make loans secured by mortgages on real estate up to 100 per cent of the value of the property.

611
RETIREMENT-Teachers' Retirement System-Investments
Timber lands, held for use in the manufacture of newsprint, are not "'improved real estate" so as to be an authorized investment for the Teachers' Retirement System, under Code Section 56-224, dealing with authorized insurance investments without prior approval of the Insurance Commissioner.
March 2, 1956
Mr. J. L. Yaden, Executive Secretary-Treasurer Teachers' Retirement System
I have your letter of February 14, 1956, in which you ask my opinion (1) as to whether timber lands held for use in the manufacture of newsprint and other paper products are "improved real estate" on which the Teachers' Retirement System of Georgia may make a loan. under Sections 32-1917 and 56-224 of the Georgia Annotated Code, and (2) whether it may make a loan on such property, with the approval of the Insurance Commissioner of Georgia, if it should be determined that this timber land is not "improved real estate" within the meaning of these sections.
Section 32-2917 provides in part:
"The members of the Board of Trustees shall be the trustees of the retirement system, and shall have full power to invest and reinvest such assets, subject to all the terms, conditions and limitations and restrictions imposed by the laws of the State of Georgia upon domestic life insurance companies in the making and disposing of their investments; ..."
Subsection (c) of Code Section 56-224 authorizes the making of loans by domestic insurance companies secured by first liens on improved real estate in any of the States, not exceeding 66% per cent of the value of said property.
I find no decisions of the Georgia courts defining the words "improved real estate" in this context for investment purposes. However, in Feist v. Fifth Avenue Bank of N. Y., 280 N. Y. 189, 20 N. E. 2d 388, 389, the Court of Appeals of New York, which is the highest appellate court in that State said:
"We think the phrase 'improved real estate' must be taken in the sense in which the words are usu<tlly employed in respect to similar investment situations, i.e., land which at the given time is substantially enhanced in value by some probably durable structural improvement."
Hence, in order to qualify for a loan under Subsection (c) of Code Section 56-224, there must have been made a part of the property a structure that appears to be durable and that structure must enhance substantially the value of the land. In the above case, the court went on to say that it was appropriate to determine the enhancement in value by appraisals with and without the structure located upon the land. With these principles in mind you may determine whether the property is "improved real estate" as required by Subsection (c) of Code Section 56-224. As provided by the Subsection the security must be a first lien upon the real estate. Your letter does not disclose whether these requirements will be met.
The following Code Section 56-225 provides:
"Investments in the classes of securities defined in the preceding section, except as to a building for home office purposes, may be made by insurance companies without the approval of the Insurance Commissioner, and all other investments of funds by insurance companies in classes of securities other than those specified in the preceding section

(H2
shall be made only when the approval of the Insurance Commissioner shall have been obtained." Since Code Section 32-2917 makes the authority of the Board of Trustees of the Teachers' Retirement System to invest its funds subject to all of the terms, conditions and limitations and restrictions imposed upon such insurance companies by Code Sections 56-224 and 56-25, it will be necessary to secure prior approval of the Insurance Commissioner if the Trustees of the Teachers' Retirement System propose to accept security for the loan not authorized by Code Section 56-224.
RETIREMENT-Teachers' Retirement System-Local Retirement Funds Legal right to receive pension payment from Teachers' Retirement
System of Georgia does not vest in the local retirement fund until such time as information needed to establish the prospective benefit is furnished by the employers operating the local retirement system.
September 28, 1954
Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia
This will acknowledge receipt of your letter relative to the question of pension payments from the Teachers' Retirement System of Georgia to local retirement funds.
The precise question raised by the above mentioned correspondence appears to be this:
By virtue of the retirement of a member from a local retirement system, when does the right to receive payment of a pension from the Teachers' Retirement System vest in the local retirement fund? Does the right to receive payment vest (as distinguished from contingent or conditional) at the time the member retires from the local system, or does the right to receive payment vest at the time the local system makes application for such payment to the Teachers' Retirement System of Georgia?
This question is controlled by Section 32-2922, Georgia Code Annotated (1952 Revision) which reads in part as follows:
"Teachers in the service of an employer operating a local retirement fund shall not be members of the retirement system established in this Chapter and such teachers shall make no contributions to this retirement system and shall be eligible for pension benefits under this retirement system only as provided in this section. If such a teacher retires under the provisions of his local retirement fund and if at the time of his retirement he would have been eligible for service retirement under the provisions of this retirement system had he been a member, the Board of Trustees shall pay from this system to the managing board of the local retirement fund a pension equal to the pension for membership service which would have been payable under this system in respect of the part of his earnable compensation payable from State funds if such member had been classified as a member of this system immediately prior to the time of his retirement; and, if, as hereafter provided, he has a prior service certificate in full force and effect, the Board shall also pay the pension that would have been payable on account of the prior service accumulations certified thereon; provided that the excess of any such

613
pension payable under this system over the retirement income provided by the local retirement fund by contributions of the employer, shall be payable to the retired teacher, and not to the local retirement fund. It shall be the duty of the employers ope:rating local retirement funds to report to the Board of Trustees annually or at such other intervals as shall be set by the Board, the earnable compensation paid from State funds of each teacher in their employ paid from State funds and such other information as may be needed for establishing the prospective benefit of the member." (Emphasis added)
The plain unambiguous language of Section 32-2922 places a duty upon the employers operating local retirement funds to report to the Board of Trustees of the T~achers' Retirement System ". . . information as may be needed for establishing the prospective benefit of the member." This is clearly a condition precedent that must be complied with in order to be entitled to the right to receive payment under the terms of the statute.
In Allen et al v. Stephens, 102 Ga. 596, the Supreme Court held: As a general rule where a right depends upon some condition or contingency, the cause of action accrues and the statute runs only from the fulfillment of the condition or contingency. Generally a condition prescribed by statutory law must be met before a right of action arises. 1 Am. Jur. Actions, 34.
A cause of action accrues when a legal right which invested (as distinguished from contingent or conditional) in the plaintiff is violated. Section 4, Davis and Shulman, Georgia Practice and Procedure, page 5.
The authorities clearly hold that statutory conditions must be complied with in order for a legal right to vest.
It would, therefore, appear that the legal right to receive the pension payment from the Teachers' Retirement System of Georgia does not vest in the local retirement fund until such time as information needed to establish the prospective benefit is furnished by the employers operating the local retirement system. As a corollary to this rule, since the right to receive payment of the pension vests at the time information is furnished by the employers operating the local retirement funds and consequently payments are due only from such date as the said information is received, it necessarily follows that no right to receive payments accrues prior to the receipt of the said information and accordingly no retroactive payments could be legally made.
To hold that the right to receive payment from the Teachers' Retirement System vested at the time the teacher retired from the local system, without complying with the statute as to furnishing information, would place an almost intolerable burden upon the Teachers' Retirement System.
Facts to show the right to receive payment must be in possession of the Teachers' Retirement System in order to authorize pension payments to local funds. In the absence of some kind of notice or application, absurd consequences would result.
In Carroll v. Ragsdale, 192 Ga. 118, 15 S. E. 2d 210, it was held that a statute must be examined as a whole and its different provisions reconciled if possible, as the general scheme and purpose of legislation is the proper criterion for its construction. A statute should not be given apparent literal meaning leading to unreasonable, extraordinary, unjust, or absurd consequences. In re Blalock, 31 F. 2d 612.
In this case previous administrative practice is in conformity with the opinion here expressed. Interpretation of a law made by those who are admin-

614.
istering it, while not conducive, are to be given great efl'e.ct, and sometimes have force at law. Green v. Page, 9 F. Supp. 844.
The construction given to a statute by the officers appointed to execute it, and acted upon for a long term of years, though not conclusive, is entitled to great consideration by the Court. Howell v. State, 71 Georgia 224.
As to the procedure or method to be employed in making application or furnishing necessary information in connection with pension payment from the Teachers' Retirement System, the law is silent. Of course, members of the Teachers' Retirement System must make application in accordance with Section 32-2905, Georgia Code Annotated (1952 Revision). This section does not apply in cases where members of the local retirement system (who are not members of the Teachers' Retirement System) retire thereby entitling the local fund to receive payment from the Teachers' Retirement System, provided of course the condition as to notice is met.
In view of this, it would appear that any sort of notice or application or other method whereby the Teachers' Retirement System "receives information necessary for establishing the prospective benefit of the member," would comply with the statute.
RETIREMENT-Teachers' Retirement System-Members (Unofficial) Code Ann. 32"2905 (6) applies to all teachers who retired after the age of
fifty, and who are subsequently restored to service, regardless of whether they have been retired on a disability or a service pension.
August 23, 1954
Mr. R. D. Thomas The question presented is stated as follows: Does Section 32-2905 (6), Georgia
Code Annotated (1952 Revision) apply to a member of the Teachers' Retirement System of Georgia who retired after the age of fifty and was subsequently restored to service, regardless of whether they have been retired on a disability or on a service pension. [Editor's Note: See Ops. Atty. Gen. 1952-53, p. 347.]
After re-examination of this question, I am of the opinion that the conclusions reached in the above mentioned opinion (Opinions of the Attorney General1952-54) were correct and it is therefore quite clear that Section 32-2905 (6), Georgia Code Annotated (1952 Revision) applies to anyone restored to service after reaching the age of fifty.
Section 32-2905 (6) deals with the restoration of beneficiaries to membership. A beneficiary under the Teachers' Retirement System is defined in Section 32-2901 (19), Georgia Code Annotated (1952 Revision) as any person in receipt of a pension, annuity, retirement allowance or other benefit provided by that Chapter. Obviously the word "beneficiary" includes both those retired on disability as well as on service. Therefore, it necessarily follows that the legislature intended that the provisions of 32-2905 (6) would apply to all previously retired members and not solely to those retired for physical disability.

615
RETIREMENT-Teachers' Retirement System-Members When a teacher retires, she withdraws from the Teachers' Retirement
System.
January 27, 1955
Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia
This will acknowledge receipt of your letter requesting an official opinion on whether or not "A" was a member in service or was a retired teacher of the Teachers' Retirement System at the time of her death.
The records of the Teachers' Retirement System of Georgia shows that "A" made application for retirement on May 26, 1954. In her application she requested service retirement effective the first day of June, 1954. This application was sworn to before a Notary Public. The application was received by the Teachers' Retirement System on May 27, 1954.
The procedure for retirement from the Teachers' Retirement System of Georgia is set forth in Section 32-2905, Georgia Code Annotated (1954 Supplement) which provides, inter alia, the following:
"Any member in service may retire on a service retirement allowance upon written application to the Board of Trustees setting forth at which time, not less than 30 days nor more than 90 days subsequent to the execution and filing thereof, he desires to be retired...." (Emphasis added.) The plain unambiguous language of the statute provides that the member requests the time retirement is to become effective. Of course, it must be not less than thirty days from the date of the filing of the application. Applying this rule of law to the factual situation it follows without question that "A" retired on June 27, 1954. Therefore, since she died on September 27, 1954, it is clear that at the time of her death she was retired from the Teachers' Retirement System of Georgia.
RETIREMENT-Teachers' Retirement System-Options Unless an option is exercised under the retirement plan, it never comes
into being as a contract, regardless of the probable reason for failing to exercise it; therefore, a daughter of a deceased member of the retirement system has no claim based on the allegation that her retired parent failed to exercise the option that would ha-ve been to her benefit as beneficiary, because said parent was insane at the time the parent elected to retire.
April 25, 1956
Honorable J. L. Yaden, Executive Secretary-Treasurer Georgia Teachers' Retirement System
You have asked me to comment informally upon the letter of J. B. Harris, Jr., attorney of Macon, Georgia, to you under date of April 18, 1956. In his letter Mr. Harris states that "A" elected to retire upon a full annuity and actually retired on the full annuity on July 1, 1955. She received four monthly payments of her annuity on the first days of July, August, September and October respectively, before she died on October 27, 1955.
Mr. Harris states that in August, 1955, she was adjudged insane, and some

616
persons he believed were acquainted with her mental condition on May 11, 1955, when she applied for retirement and elected to receive the full retirement allowance, and believed she was mentally incompetent at that time. He urges that the daughter is entitled to reduced retirement allowance for life (presumably under Option No.2 of Code Section 32-2905 (8) ), upon the ground that her mother lacked the capacity to make an election to receive the full retirement allowance when she applied for retirement on May 11, 1955. He requests information as to the procedure by which he can present to your Board evidence of facts in support of this position.
Before Mr. Harris prepares for such a presentation, I think it might be well for him to consider some further aspects of the situation. Code Section 32-2905 (8) provides that until the first payment of any member's retirement allowance becomes normally due, he may elect to convert the retirement allowance otherwise payable to him into a modified retirement allowance of equivalent actuarial value in accordance with one of the optional forms named below; provided, however, that if he dies within 30 days after retirement, his optional election shall not be effective, and he shall be considered to be a member in actual service at the time of his death. Option 2 of the options that follow is apparen~ly the option to which Mr. Harris refers.
There can be no doubt that the mother did retire and that she did not elect to convert the retirement allowance before the first payment became due to any of the optional allowances named. If she so failed to convert her existing retirement allowance, it seems to me that it remained as it was, whatever may have been the reasons for the failure to convert it. Without affirmative action on her part, there could be no option created in favor of anyone. To accomplish the result which Mr. Harris sugests we would have to assume that the mother exercised the right to convert her allowance, that she did it within the time limit, that of all the options she would have selected she actually selected option 2, and that the beneficiary was her daughter rather than someone else she might have made beneficiary. To say the least, it would be most difficult to make all of these assumptions.
Subsection (8) provides in the first paragraph that the election to convert must be made before the first payment of the annuity becomes due and even if the retired member so elected to convert, it would not be effective if she died within 30 days of retirement. In this connection, Mr. Harris would also run into considerable difficulty arising from such decisions of the Georgia Supreme Court as was made in the case of Tyson v. Equitable Life Assurance Society, 144 Ga. 729, 731, in which the Court said:
"2. If in life, the insured, upon surrender of his policy within 30 days was entitled to a paid-up term policy for the full amount of his policy for the time stated in the table, subject to reduction for indebtedness. This option was not exercisable after 30 days, notwithstanding the insanity of the insured during such time."
The basis of the above decision obviously is that unless the option is exercised it never comes into being as a contract, regardless of the probable reason for failing to exercise it.
Not only would Mr. Harris find it necessary to establish the exercise of an election to convert under Subsection (8), which does not appear to exist, but he would also have to show the invalidity of the election she did make to receive the full annuity. That may be a more difficult task than he now anticipates. In Jones v. Smith, 206 Ga. 162, 165, the Court said:
"8. The law presumes every man to be sane until there is evidence to the contrary, and the burden is on the party attacking a contract to

617
show the incompetency of the signer at the time of the execution thereof, and proof of a temporary lapse of sanity, or insanity of a temporary character, at a previous time would create no presumption that it continued up to the time of the execution of the contract.
(a) In order to void a contract on the ground of mental incapacity of the maker he must have been non compos mentis, that is, entirely without understanding, at the time the contract was executed.
(b) In the instant case, taking the evidence most favorable to the contentions of the plaintiffs, it shows that the maker of the option was 83 years of age, and in very feeble health, that he was childish, forgetful, unable to remember events and persons, generally afflicted with the infirmities that accompany old age, and at times suffered with uremic poisoning, and that during such times his mental condition was bad, but, when this uremic poisoning was cleared up, his mental condition improved. The only direct and positive testimony as to the mental condition of the optionor at the time of the execution of the last extension of the option was that of the attorney who prepared and witnessed it, which was that the maker was as clear that day as he ever was in my office. He told me exactly what he wanted done and I had no doubt that he knew what he was doing."
I am sure that your Board will be glad to have Mr. Harris present to it any evidence he may wish to present which would tend to give valid support to any right claimed for the daughter. However, I would suggest that he first consider the matters I have here outlined and then advise you as to whether he wishes to proceed further with the matter.
SAFETY FIRE REGULATIONS-Transportation of Explosives
A company transporting explosives which complies with the safety regulations of the Interstate Commerce Commission is not subject to the license fee provided for in the Georgia Safety Fire Regulations.
January 21, 1955
Honorable Zack D. Cravey Georgia Safety Fire Commissioner
I have your letter in which you enclosed correspondence between the office of the State Fire Marshal and the Trojan Powder Company relative to the application of Section 3.3 of the Georgia Safety Fire Regulations for Explosives. It is noted that the company complies with all of the safety regulations of the Interstate Commerce Commission, but being a private carrier, is not required by the Interstate Commerce Commission to have a "permit."
Section 3.3 provides:
"The fee chargeable for a license to transport explosives, except small arms ammunition, shall be $50.00 provided that no fee to transport explosives shall be required of any person, firm or corporation licensed under these regulations to manufacture, possess, store, keep or sell explosives in the State of Georgia, provided further that any person, firm or corporation transporting explosives under Interstate Commerce Commission permit for interstate shipments shall be exempt from obtaining a license or permit required by these regulations and the payment of this fee, but shall be subject to all other requirements."

618
The Interstate Commerce Commission regulations govern private, as well as common carriers, who transport explosives in interstate commerce. (See Part 177, Vol. 49, Code of Federal Regulations.) There is no distinction in the safety requirements of common carriers and private carriers, the only difference being that private carriers are not required to obtain an Interstate Commerce Commision permit.
An examination of the Georgia Fire Safety Regulation for Explosives leads me to believe that the purpose and intent of Section 3.3 is to exempt interstate carriers who comply with the safety requirements of the Interstate Commerce Commission, whether they be private or public carriers. I, therefore, construe the language in the section: "... under Interstate Commerce Commission permit ..." to mean: "under Interstate Commerce Commission permit or authority," and recommend that the language of Section 3.3 be so amended.
It is, therefore, my opinion that the Trojan Powder Company, so long as it complies with the safety regulations of the Interstate Commerce Commission is not subject to the $50.00 annual license fee provided for in the Georgia Safety Fire Regulations.
SECURITIES-Sale in State
An insurance company which is licensed to sell insurance in Georgia is not under such "supervision" as to make its stock an exempt security under the Securities Act.
December 18, 1956
Honorable Ben W. Fortson, Jr. Secertary of State, Commissioner of Securities
Reference is made to your letter in which you inquire whether Lehman Bros. of Los Angeles, California, dealers in securities, may legally sell or offer for sale in this State common stock in the Beneficial Standard Life Insurance Company, a foreign corporation, without first registering with you as Commissioner of Securities, as required by Section 4 of the Securities Act of 1953, and then filing a notice of intention to sell such securities in accordance with the provisions of Section 3 thereof. [Editor's Note: See Ga. Laws, 1957, p. 137, for a complete revision of the Georgia "blue-sky" law.]
There is nothing in your letter to indicate that the sale or sale contemplated by Lehman Bros. would be limited to those types of transactions set out in Section 6 (a) to (i), inclusive, which are specifically excluded from provisions of Sections 3 and 4 referred to above. The sales would not therefore be "exempt transactions" and Lehman Bros. would be required to register with you as provided in Section 4 of the Act before selling or offering such stock for sale.
Furthermore, it appearing from the records of the Insurance Commissioner that the Beneficial Standard Life Insurance Company has completed its organization and is licensed to sell insurance in the State of Georgia, I do not think that it is subject to such "supervision" as is contemplated by Section 5 and, more specifically, Subsection (c) thereof so as to make its common stock "exempt securities." (See my opinion addressed to the Honorable Zack D. Cravey under date of December 8, 1955, and specifically that portion thereof dealing with the United Insurance Company of America.) Lehman Bros. would, therefore, also be required to file with you a notice of intention to sell securities as provided in Section 3 of the Act before selling or offering to sell the same in this State.
No opinion is here expressed as to what the law would be if the company

619
was in the process of organization and not licensed to sell insurance in this State since such are not the facts of the case under consideration. Any such case as may come up in the future involving this or any other variations from those of the instant case should be made the subject of a separate inquiry and opinion.
SUBVERSIVE ACTIVITIES-Employees of Common School System Public educational institutions supported in whole or in part by State
funds are subject to the provisions of the Act.
March 18, 1954
Dr. M. D. Collins State Superintendent of Schools
By your letter dated March 12, 1954 you have requested of me an official opinion on the legality of the Governor's Executive Order of February 1, 1954 and in particular that provision which requires the original of the State Security Questionnaire to be forwarded to the Special Services Agency in Atlanta, Ga,
By way of preface, the Special Services Agency is a joint activity of the Law Department and the Executive Department and is physically housed in the Law Department. The Sedition and Subversive Activities Act of 1953 imposes certain responsibilities and duties upon the Governor and Attorney General. In order to effectuate the purposes of the Act these activities are coordinated through the Special Services Agency under the joint management of the Governor and the Attorney General.
The following provisions of the Sedition and Subversive Activities Act applicable to your question are set out below.
Section 11 of that Act provides: "Every person and every board, commission, council, department, or
other agency of the State of Georgia, or any political subdivision thereof, who, or which appoints or employs or supervises in any manner the appointment, or employment, of public officials, or employees, shall establish by rules, regulations, or otherwise, procedures designated to ascertain before any person, including teachers and other employees of any public educational institution in this State, is appointed or employed, that he, or she, as the case may be, is not a subversive person, ..." Section 12 provides:
"Every person who on January 1, 1954, shall be in the employ of the State of Georgia, or any agency thereof, including public educational institutions supported in whole or in part by State funds, shall execute a written questionnaire to determine facts concerning his or her personal history, qualifications, and loyalty, ..." The above sections have the effect of requiring all personnel who receive in whole or in part State funds for their compensation and who are appointed, employed, or supervised by any agency of the State of Georgia to execute the questionnaire. Section 11 also provides:
"The Governor is authorized to make appropriate orders, rules and regulations to effectuate the purposes of Sections 10, 11, 12 and 13 of this Act."

620
Section 7 of the Act provides:
"The Governor by executive order is authorized to establish within existing departments such special enforcement agencies, designate such personnel and fix such duties as may from time to time be required to perform any of the functions and duties required by this Act." The Constitution of the State, Article V, Section I, Paragraph XVII (Code
Section 2-3017) provides:
"The Governor may require information in writing from Constitutional officers, department heads, and all State employees, on any subject relating to the duties of their respective offices or employment ..."
I am of the opinion that the Governor, from the foregoing provisions of law, has ample legal authority to issue the Executive Order of February 1, 1954.
The remaining question is whether or not teachers and employees in the common school system may be required to comply with the provisions of the Executive Order. Teachers in the public school system are paid in the most part by funds received from the State under the Minimum Foundation Program and in part from counties and municipalities. 53 per cent of the State's expenditures are for the purpose of maintaining a common school system, or approximately $115,000,000.00. Under the Minimum Foundation Law, the State Board of Education fixes a schedule of minimum salaries (Ga. Code Ann. 32-606), and issues certificates as a condition to the employment of teachers (Ga. Code Ann. 32-605). The budgets for the various school systems are required to be submitted and approved by the State Board of Education (Ga. Code Ann. 32-620). The State Board of Education is charged with the administration of the Minimum Foundation law (Ga. Code Ann. 32-631), and, finally, the State Board of Education supervises and regulates the entire common school system of this State. The State Auditor is required by law to audit and check the books and accounts of all school systems in which the State provides funds. (Ga. Code Ann. 40-1812.)
I am of the opinion that it is not necessary to reach the question of whether employees of the common school systems are State employees or county employees, because under the terms of the Sedition and Subversive Activities Act of 1953, they are specifically included, since that Act states in terms that "public educational institutions supported in whole or in part by State funds" are subject to the provisions of the Act as well as any department or agency, both State and county, which "appoints, employs or supervises" public officials or employees. As was held in the case of McNeill v. Wood, 198 Ga. 150, 156, in dealing with the joint State and county participation in the welfare programs, such employees "of county department are neither county nor State employees, but are employees of both the State and the County Departments."
I think this decision is conclusive upon the subject, and for the purpose of this Act I entertain no doubt but that employees of the common school systems are employees of the State as well as of the county with whom they contract, because whatever contract the county may ener into with teachers, it is subject to the rules and regulations and supervision of the State Boards of Education.

621
SPECIFIC PERFORMANCE-Burden of Loss
Where the vendee has entered upon land pursuant to a contract of sale, he bears the burden of loss for any property or fixtures destroyed upon the land.
April 17, 1956
Mr. Guyton DeLoach, Director Georgia Forestry Commission
This is in reply to your request for my opinion on the question as to whether or not you would be legally authorized to consummate the acquisition of certain property near Macon, Georgia, contiguous to the state property presently known as the Georgia Forestry Center.
The State Properties Commission has already approved the acquisition of such property at an appraised price of $36,000, an interim binder of title insurance obtained, and the transaction made ready for closing, when, several days ago, one of the four houses located on said property was destroyed by fire.
The vendor, the Trio Company, claims that the loss thus incurred is that of the State of Georgia, and that no deduction can be made from the pUrchase price above referred to.
It is to be also noted that no written contract of sale was ever executed for this transaction, and that the value of the house destroyed was relatively insignificant, due to deterioration, damage by termites, and the general size and character of its construction. I am further informed that you had already determined to dismantle the house so as to utilize the land for other purposes, and that the value of the materials salvaged therefrom would be almost, if not completely, offset by the costs of dismantling.
While the appraisal did not attribute a specific value to the house, the lot on which the house is located was described in the appraisal and approved by the Properties Commission as "a lot with a four-room house."
Unless otherwise specifically provided, the owner of the land owns all buildings thereon, as the deed conveys title to all things permanently attached to the land (Sawyer Coal & Ice Co. v. Kinnett-Odom Co., 192 Ga. 166, 170 (5); Code Ann., Sec. 85-201), and a writing is necessary to pass title to real estate (Doe ex dem Williams v. Rowe and Cowart, 27 Ga. 187), which writing must have the formalities of a deed (Code Ann. Sec. 29-101), but where the vendee enters into possession under an executory contract of sale, and permanent improvements, such as buildings, are destroyed by fire before transfer of legal title, the loss will fall upon the vendee, who is considered the "equitable owner." Bruce v. Jennings, 190 Ga. 618, 620 (1). A "Contract of Sale" as above referred to, must, under the Statute of Frauds (Code Ann., Sec. 20-401 (4) ), itself be in writing, but here again, equity relieves from the hard rule of law by providing that specific performance will be decreed of an oral contract to convey land "if the defendant admits the contract," or if the vendee has entered into possel!sion and made valuable improvements thereon. Code Ann., Sec. 37-802; Vickers v. Robinson et al, 157 Ga. 731 (6); White v. Mitchell, 69 Ga. 759; Higdon v. Dixon, 203 Ga. 67.
"Equitable title" to realty is merely the right of the vendee to have legal title conveyed to him (State ex rei City of St. Louis v. Bauman, 348 Mo. 164, 153 S. W. 2d 31; Citizens National Bank v. Comr. of Internal Revenue (CCA 8th) 122 Frd. 1011, 1014; Barker v. Klingler, 302 Mich. 282, 4 N. W. 2d 596, 599), and as will be seen from the beforegoing, may be acquired by either a contract of sale in writing, or by relinquishment of possession to the vendee and the making of

622
permanent improvements by the latter. Since the holder of equitable title under a valid contract of sale in writing must bear the loss caused by fire, etc., it necessarily follows that the holder of equitable title by virtue of taking possession and the making of improvements, must also bear such loss.
I am informed that in the instant case, the vendor, Trio Company, has permitted the Commission to take possession of the land and that several rather expensive buildings have already been constructed thereon by the State.
Under these circumstances, I am of the opinion that the State is the equitable owner of the property and just as the state would have a right to require specific performance by the vendor, the loss must likewise fall on the State.
You are hereby authorized and obligated to consumate the acquisition of said property.
STATE BOUNDARIES-Alabama Discusses proposed compact with the State of Alabama concerning the
western boundary of the State.
August 3, 1956
Honorable Marvin Griffin, Governor This letter is written pursuant to your recent request for my opinion as to
whether or not a proposed interstate compact with the State of Alabama, prepared by the Alabama Legislative Reference Service, can be ratified by the State of Georgia.
This compact, if ratified, would provide that the State of Alabama, and its citizens, would have free access to a deep-water channel in the Chattahoochee River, over which the State of Georgia would not exercise either its taxing power or its police jurisdiction, although Article II states that the Georgia boundary remains the same.
In its present form, I do not believe this compact could legally be ratified by legislative act.
It is to be specifically noted that it does not propose to change the boundary between Alabama and Georgia by having Georgia cede that part of the river out to a deep-water channel. Instead, the proposed compact would expressly retain Georgia's boundaries (Articles I and II), but then undertakes to confer on the State of Alabama the right of access to a deep-water channel free from police and tax jurisdiction of the State of Georgia.
The Code, Section 15-101, defines the boundaries of Georgia to be, inter alia, "... thence in a direct line to the great bend of the Chattahoochee River, called Miller's Bend-it being the line run and marked by said survey; and thence along and down the western bank of said Chattahoochee River, along the line or limit of high-water mark, to its junction with the Flint River . . ." This boundary was expressly recognized and upheld by the United States Supreme Court in the case of Alabama v. Georgia (1860), 23 How. 505, 16 L. Ed. 556. The Code, Section 15-201, pro~ides:
"The sovereignty and jurisdiction of this state extend to all places within the limits of her boundaries, except so far as she has voluntarily

623
ceded the same to the United States or adjacent States over particular localities."
The above statute is an act of general application. The proposed compact necessarily deals with a specific geographical area-that along the Chattahoochee River, and hence would unquestionably be in conflict with the Constitution, Art. I, Sec. IV, Par. I (Code, Section 2-401), which provides, in part,
"... Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law...."
The conflict comes about in that the proposed compact, which must be first adopted by the Georgia Legislature and hence would be a "law," does not, by its express terms, change the boundary of the State of Georgia, but undertakes to declare, contrary to Section 15-201, that the "sovereignty and jurisdiction of the State" shall not "extend to all places within the limits of her boundaries ..."
Probably the most basic elements of "sovereignty" and "jurisdiction" are found in the power of taxation and the police power. The Constitution, Art. VII, Sec. I, Par. I (Code, Section 2-5401) declares that "The right of taxation is a sovereign right-inalienable-indestructible ...", and as to the police powers of states, it was said in Rhode Island v. Massachusetts (1838), 12 Pet. 656, 733, 9 L. Ed. 1233, 1264,
"It follows then that when a place is within the boundary, it is a part of the territory of a state; title, jurisdiction, and sovereignty, are inseparable incidents, and remain so till the State makes some cession ... the jurisdiction of a state is co-extensive with its territory, co-extensive with its legislative power ..."
Just prior to the above quotation, the Court had stated that "neither state can have any right beyond its territorial boundary."
See also, in accord with the above, Pennoyer v. Neff (1878), 95 U. S. 714, 722, 24 L. Ed. 565; Hoyt v. Sprague (1881), 103 U. S. 613, 630, 26 L. Ed. 585, 592; Presser v. Illinois (1886), 116 U. S. 252, 268, 29 L. Ed. 615, 620, 6 S. Ct. 580.
On the other hand, even assuming the proposed compact to be good in other respects, it is difficult to see how Alabama could exercise the powers of taxation over the affected area, since "no principle is better settled than that the power of a State, even its power of taxation, in respect to property, is limited to such as is within its jurisdiction." Miller Bros. v. Maryland (1954), 347 U. S. 340, 342, 98 L. Ed. 744, 74 S. Ct. 535:
Thus, there would be created a "no man's land" so far as taxation is concerned.
By far the most patent defect in the proposed plan lies in the Georgia Constitution, Art. VII, Sec. I, Par. I (Code, Section 2-5401), which provides:
"The right of taxation is a sovereign right-inalienable, indestructible-is the life of State, and rightfully belongs to the people in all Republican governments, and neither the General Assembly, nor any, nor all other departments of the Government established by this Constitution, shall ever have the authority to irrevocably give, grant, limit, or restrain this right; and all laws, grants, contracts and all other acts, whatsoever, by said government, or any department thereof, to affect any of these purposes, shall be, and are hereby, declared to be null and void, for every purpose whatsoever; and said right of taxation shall always be under the complete control of, and revocable by, the State, notwithstanding any gift, grant or contract, whatsoever, by the General Assembly."

624
Obviously, under the above provision, the Legislature could not relinquish the State's right of taxation over a part of the State's territory.
Moreover, Art. VII, Sec. I, Par. III (Code Section 2-4505) provides, inter alia,
"All taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax ..."
In Fulton County et al v. Lockhart et al, 202 Ga. 878 (2), it was held that a county could not levy an occupational tax limited only to unincorporated areas of the county.
In the instant case, the counties bordering on the Chattahoochee River and which would be affected by the compact, would ostensibly be prohibited from levying their ad valorem taxes on a part of their territories.
For the foregoing reason, it is clear that the proposed compact can not legally be ratified by Georgia legislative act. Unquestionably, the compact is somewhat of a contradiction. It declares that the territorial limits of Georgia are not being affected thereby, while at the same time relinquishes practically the only attributes by which sovereignty and territorial limits are differentiated. Of course, police jurisdiction can be separated by compact from the power to tax, as was done in the compact between New Jersey and New York governing New York Bay, which was before the Supreme Court in Central R. Co. of New Jersey v. Mayor & Aldermen of Jersey City (1908), 209 U.S. 473, 52 L. Ed. 896,28 S. Ct. 592, but where both these powers are divested by a state it is difficult to see what would be left, except possibly the State of Georgia's proprietary interest in the river bed. Code, Section 85-1304.. As to the Chattahoochee, however, in some instances. grants were made prior to the Code Section just cited (Section 85-1304), in which case the grantee acquired fee simple title out to the center of the river. Apparently, these grants only related to lands bordering on the river where it constitutes the boundary between Georgia and Florida. See Florida Gravel Co. v. Capital City Sand & Gravel Co., 170 Ga. 855.
However, should we assume the compact to be upheld, it is clear beyond question that the only possible ground on which it could be so upheld is that, in effect, it amounts to a complete cession of jurisdiction which will operate to change the existing state boundaries. Conceding this result, it would be far more desirable to accomplish it by a compact which directly states that territorial boundaries are being altered, rather than to undertake to enumerate all the incidents and attributes which in their sum total amount to territorial boundary and sovereignty.
In other words, the compact could only be upheld by reading out of it the provision declaring that the State boundaries are not being changed.
This same consideration excludes the possibility of undertaking to amend the Georgia Constitution to obviate the constitutional objection previously discussed herein, since the State of Georgia can make an outright cession of jurisdiction and territory without the necessity of a constitutional amendment. See United States v. Battle (C. C. 1907), 154, aff. 209 U.S. 36, 52 L. Ed. 670,28 S. Ct. 422.
Should the proposed compact be adopted by constitutional amendment, perhaps there might exist other incidents of sovereignty which the unique phraseology of the compact's language would reserve to Georgia in the affected area, but it is difficult to see of what the residuum would consist.
It might well require a century of litigation to so ascertain, and on this consideration alone I feel constrained to advise against such a course.
Therefore, in my opinion, the only way in which Alabama can acquire a deepwater channel in the Chattahoochee River, free from the tax and police jurisdiction of the State of Georgia, would be by a revision of our boundary lines, whereby

625
Georgia would cede part of her territory in the river to Alabama. This raises the question as to whether a cession of jurisdiction by one state to another can legally be a unilateral transaction. In Virginia v. West Virginia (1871), 11 Wall. 39, 55, 20 L. Ed. 67, 71, it was recognized that such a cession of jurisdiction could be accomplished only by an agreement between the two states, consented to by Congress.
It would seem, on general principles of sovereignty that Georgia could not cede territory to Alabama without the latter's consent, which would then elevate the transaction to the level of a compact or agreement, requiring the consent of Congress.
I therefore conclude that the only method by which the desired object can be accomplished is by (1) a .cession of territory by the State of Georgia, (2) in the form of a compact between the State of Georgia and Alabama, (3) consented to by Congress. I also suggest that if this course be pursued, a Commission be appointed to run a new line based on a survey. This Commission could also determine whether or not the State's proprietary interest in the river bed should be conveyed, or what the effect might be on facilities, if any, now erected in the river.
STATE BOUNDARIES-Coastal Areas (Unofficial) The boundaries of Georgia extend three miles from the low water mark
along the Atlantic coast.
October 6, 1954
Mr. Paul D. Page, Jr. I acknowledge receipt of your letter requesting information concerning the
establishment of state boundaries along the Gulf of Mexico, under the Submerged Tidelands Act.
The only reference to the sea coast found in the laws of Georgia is Code Section 15-101, which declares that the boundary of Georgia along the Atlantic Ocean extends three miles from the low water mark, and includes all the islands within 20 marine leagues of the sea coast. This Section was originally passed in 1788 (Watkins Digest, P. 713-762), but the three miles provision was not added until 1919 (Ga. Laws 1919, P. 29).
The boundaries of Georgia have never touched the Gulf of Mexico-even at the time when the state embraced what are now the states of Alabama and Mississippi, the section of these states now bordering on the Gulf was then a part of Florida, under the control of Spain.
However, even as to our Atlantic boundaries, I am unable to find either any court decision relating thereto, or any opinion rendered by this office.
STATE BOUNDARIES-South Carolina Boundary between Georgia and South Carolina is midway between the
banks of the Northern branch of the Savannah River.
May 5, 1954
Honorable Fulton Lovell, Director State Game and Fish Commission
By your letter of April 29, 1954, you request information concerning the boundary along the Savannah River between Georgia and South Carolina.

626
It is stated that a South Carolina Patrolman has arrested a resident of Georgia while fishing for bait in the Savannah River.
The question for determination is, therefore, whether or not Georgia or South Carolina has jurisdiction over the particular place in the Savannah River where the arrest was made, which in effect depends upon the location of the boundary between these two States.
The Code, Section 15-201 defines the jurisdiction of this State as follows: "The sovereignty and jurisdiction of this State extend to all places
within the limits of her boundaries, except so far as she has voluntarialy ceded the same to the United States or adjacent States over particular localities."
The line between Georgia and South Carolina is defined by Section 15-102 as follows:
"The boundary between Georgia and South Carolina shall be the line described as running from the mouth of the River Savannah, up said river and the River Tugalo and Chattooga, to the point where the last-named river intersects with the 35th parallel of north latitude, conforming as much as possible to the line agreed on by the commissioners of said States at Beaufort on the 28th of April, 1787."
The Beaufort compact found in Watkins Digest, page 752 insofar as is material here prescribes the line between Georgia and South Carolina as follows:
"Art 1. The most northern branch or stream of the River Savannah, from the sea or mouth of such stream to the work or confluence of the rivers, now called Tugalo and Keowee; and from thence, the most northern branch or stream of the said River Tugalo, till it intersects the northern boundary line of South Carolina, if the said branch or stream of Tugalo extends so far north, reserving all the islands in the said rivers Savannah and Tugalo to Georgia; but if the head spring or source of any branch or stream of the said river Tugalo does not extend to the north boundary line of South Carolina, then a west line to the Mississippi, to be drawn from the head spring or source of the said branch or stream of Tugalo river, which extends to the highest northern latitude, shall forever hereafter form the separation limits and boundary between the states of South Carolina and Georgia."
In the case of Georgia v. South Carolina, 257 U. S. 516, 66 L. Ed. 347, this compact was construed and the following decree entered.
"It is ordered, adjudged, and decreed that the boundary between the States of Georgia and South Carolina is and shall be the Rivers Savannah, Tugalo and Chattooga to the point where the latter river touches the North Carolina line at the thirty-fifth parallel of North latitude; and the location of the boundary line between said States is hereby established and declared to be as set forth in the opinion of the court, as follows:
"1st. Where there are no islands in the boundary rivers the location of the line between the two States is on the water midway between the main banks of the river when water is at ordinary stage;
"2nd. Where there are islands, the line is midway between the island bank and the South Carolina short when the water is at ordinary stage;
"3rd. That all islands formed by nature in the Chattooga river are reserved to Georgia as completely as are those in the Savannah and Tugalo rivers.

627
"4th. That the parties to this suit may at any time by mutual consent, locate and monument the boundary line in any part of the boundary rivers in accordance with the provisions of this decree.
"It is further ordered, adjudged, and decreed that the costs of this suit shall be equally divided between the said two States, and that the Clerk of this court shall forthwith transmit to the Chief Magistrates of the States of Georgia and South Carolina copies of this decree, duly authenticated under the seal of the court."
I am enclosing a map prepared by the Army Corps of Engineers which will show the boundary line between Georgia and South Carolina to be midway between the banks of the northern branch of the Savannah River. You will notice that Wright's River is in no way a part of the Savannah River and is found considerably north of the latter; in fact Wright's River enters the ocean at a point separate from the point of entry of the Savannah River, these two points being separated by Jones Island and Horseshoe Shoal.
Although Article II of the Beaufort compact provided that both States would have equal rights of navigation in any portion of the Savannah River, I do not construe this as including fishing rights.
The Georgia Courts are very reluctant to include fishing rights as one incident of the grant of other privileges. In.Thompson v. Tennyson, 148 Ga. 701 (1b), the court held that the grant of mill privileges would :not be construed to include the grant of fishing privileges. The specific question as to navigation rights has never been passed upon in this State, the general rule being divided as to this question in other States. See 36 C. J. S. 6 at page 838.
Even assuming that Georgia and South Carolina had equal jurisdiction over the northern branch of the Savannah River, the courts have held that one State could not penalize the doing of acts outside its boundaries (where the boundary was a river) where the act was permitted under the laws of an adjoining State. See Miller v. McLaughlin, 281 U. S. 261, and the annotation thereto found in 74 L. Ed. 840.
I, therefore, conclude that the boundary between Georgia and South Carolina is midway between the banks of the northern branch of the Savannah River. The question as to the legality of the arrest by the South Carolina Patrolman depends upon whether or not the Georgia fisherman was fishing on the South Carolina side of the Savannah River or on the Georgia side of the Savannah River, as above defined.
STATE EMPLOYEES-Aliens (Unofficial)
An alien may be employed by any department of the State if it is ascertained that there is no qualified American citizen available to perform the duty desired.
April 3, 1956
Honorable M. Gordon Brown
I am pleased to acknowledge your request of March 27, 1956, regarding the employment of an alien by the Georgia Institute of Technology.
Ga. Laws 1955, p. 382, provides as follows:
" 'Section 1. Be it enacted by the General Assembly of the State of Georgia and it is hereby enacted by authority of the same that from and after the passage of this Act that no department of the State Govern-

628
ment or any political subdivision thereof shall employ any alien for any purpose until a thorough investigation has been made and it is ascertained that there is no qualified American citizen available to perform the duty desired by the State of Georgia, any department thereof or any political subdivision thereof. Provided, however, that any institution of the University System of Georgia may employ any alien who is attending such institution as a student, and any such institution may employ an alien for a period of time not to exceed one year, or enter into exchange professorship agreements with institutions, foreign or otherwise, where aliens are invol~ed, for a period of time not to exceed one year, all subject to the restrictions of this proviso but without regard to the remainder of this section.' " Your letter states that the gentleman in question is a native of China who has obtained the right of permanent residence in the United States and has filed a declaration of intent to become a citizen of the United States. While all of the preliminary steps have been taken by the gentleman, he is and will continue to be an alien until he is naturalized by a United States District Court. Under the above law an alien may be employed by any department of State Government, political subdivision or University System, if it is ascertained that there is .no qualified American citizen available to perform the duty desired. In addition, the University System may employ an alien under the following conditions without the above limitation: 1. One who is attending such institution as a student. 2. One for a period of time not to exceed one year. 3. One who is part of an exchange professorship agreement with other institutions-for a period not to exceed one year.
STATE EMPLOYEES-Commission on Alcoholism Employees of the Georgia Commission on Alcoholism are employees of
the State, and are eligible to come under the provisions of the State Merit System of Personnel Administration.
September 28, 1956
Honorable Paul H. Fraser Executive Director Georgia Commission on Alcoholism
I am pleased to acknowledge your letter in which you request that I advise you if the employees of the Georgia Commission on Alcoholism are prohibited by law from coming under the State Merit System of Personnel Administration.
The Georgia Commission on Alcoholism was created by the Acts of 1951, pages 806-814, and from a study of the provisions of this Act, it is crystal clear that the Georgia Commission on Alcoholism is an agency of the State of Georgia and subject to the laws relating to departments and agencies of the State.
The Act specifically provides that the Commission may appoint and remove an Executive Director and such other officers, agents and employees as to them shall seem necessary and expedient; such officers, agents or employees may be removed by the Commission at any time with or without cause. The fact that the statute authorizes the hiring and removal of employees, agents and officers of

629
the Commission in no wise changes their status as being employees, agents and officials of the State.
Code Section 40-2242 of the 1933 Annotated Code of Georgia, 1955 Cumulative Pocket Part, provides the procedure for bringing employees of any department or agency of the State under the provisions of the State Merit System of Personnel Administration where they have not heretofore been brought under said Act by special legislative Act.
It is my opinion that the Georgia Commission on Alcoholism is an agency of the State of Georgia and that the officials and employees thereof are employees of the State of Georgia and that they are eligible to come under the provisions of the State Merit System of Personnel Administration by following the procedure outlined in Section 40-2242 of the Code as codified from the Acts of 1952, pages 221-224.
STATE EMPLOYEES-Federal and State. Cooperative Inspection Service The Federal and State Cooperative Inspection Service is an instrumen-
tality of the State for the purpose of covering its employees for OASI.
June 8, 1956
Honorable Frank DeLamar, Director Employees Retirement System of Georgia
You request that I give you an opinion as to whether or not the Federal and State Cooperative Inspection Service is deemed an instrumentality of the State upon consideration of factors other than the simple designation of such inspection service as an instrumentality in the Act approved February 13, 1956 (Ga. Laws 1956, p. 75).
The Federal and State Cooperative Inspection Service in this State is an instrumentality created under an agreement pursuant to Section 205 of the Agricultural Marketing Act of 1946 (7 U.S.C. 1624) and Section 14 of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499n), between the State of Georgia through its Department of Agriculture and the United States Department of Agriculture to perform governmental functions.
Section 218(b) of the Social Security Act provides in part: "For the purposes of this Section, individuals employed pursuant to
an agreement, entered into pursuant to Section 205 of the Agricultural Marketing Act of 1946 (7 U.S.C. 1624) or Section 14 of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499n), between a State and the United States Department of Agriculture to perform services as inspectors of ,agricultural products may be deemed, at the option of the State, to be employees of the State, and (notwithstanding the preceding provisions of this paragraph) shall be deemed to be a separate cove;rage group." Section 219 of the Handbook for State OASI Administrators, compiled by the Department of Health, Education and Welfare, states in part:
"An instrumentality is an entity organized to carry on some function of government for the State or political subdivision. It is an independent legal entity, vested with power to hire, supervise and discharge its own employees .." Section 2, paragraph 3, sub-paragraph (f), of the Act approved February 13,

630
1956 (Ga. Laws 1956, p. 75), relating to the coverage of certain officers and employees of political subdivisions of the State under the Old-Age and Survivors Insurance provisions of Title 2 of the Federal Social Security Act, provides:
"The term 'political subdivision' within the terms of this Act means counties and incorporated towns and cities and includes an instrumentality of (A) the State, (B) one or more political subdivisions of the State, or (C) the State and one or more of its political subdivisions; the Board of Regents of the University System of Georgia, and the Federal and State Cooperative Inspection Service of the State of Georgia." It is my opinion that the Federal and State Cooperative Inspection Service as referred to in the Act approved February 13, 1956 (Ga. Laws 1956, p. 75), fully complies with the provisions of Section 219 of the above quoted Handbook in that said service was created and organized to carry on a function of the State government of Georgia in cooperation with the United States Department of Agriculture. Aspresently constituted, it has the power to hire and supervise its own employees and to coordinate and maintain a cooperative inspection service of agricultural products for the State and Federal government in keeping with the above cited Agricultural Marketing Act of 1946 and of the Perishable Agricultural Commodities Act of 1930. It is my further opinion that the General Assembly of Georgia in the enactment of the Act approved February 13, 1956, above cited, recognized that the employees of the Federal and State Co,operative Inspection Service, being neither Federal nor State employees, and further recognizing that this inspection service was carrying on governmental functions of the State relative to the inspection of agricultural products designated this inspection service in the Act approved February 13, 1956, as an instrumentality of the State of Georgia for the purpose of said Act. It is my further opinion that the Employees Retirement System of Georgia as a State agency administering the Federal-State agreement for the extension of OASI coverage has been duly authorized by the General Assembly under the 1956 Act above cited to include the Federal and State Cooperative inspection Service as an instrumentality of the State of Georgia, and to cover the employees of this instrumentality for OASI.
STATE GOVERNMENT-Merit System State Personnel Board does not have the power in the absence of statutory
authority to subpoena witnesses.
July 7, 1956
Honorable Ralph C. Moor Executive Secretary State Merit System of Personnel Administration
By letter of July 1, 1955 you request on behalf of the State Personnel Board my opinion as to whether the Board has power to issue subpoenas to compel the attendance of witnesses to appear before it when considering appeals made under the provisions of the Merit System Act (Ga. Laws 1943, p. 171, as amended.)
The State Personnel Board is an administrative agency of the State of Georgia and is clothed only with such powers as are given it by the General Assembly at the time of its creation, or afterwards by amendment.
It is fundamental that a public administrative agency can have no powers

631
other than those conferred upon it by statute. The Constitution of Georgia, which authorized the creation of a State Merit System, and the enabling Act and amendments adopted pursuant thereto do not give to the State Personnel Board any power to subpoena witnesses to appear before it.
The enabling Act creating the State Merit System authorizes dismissed employees under certain specified circumstances to file an appeal from his or her dismissal by a department or agency head, and empowers the State Personnel Board to hold a hearing after due notice to all parties at interest. Each party, i.e., the dismissed employee and the department involved, is afforded an opportunity to appear before the Board or its hearing officer and present such evidence as will sustain the contentions of both sides to the controversy.
In 42 Am. Jur., Sec. 33, at page 326, it is stated: "Although administrative officers have not inherent power to require
the attendance of witnesses before them and to put them under oath and require them to testify once they are before them, they are frequently given this power by statute." In 42 Am. Jur., Sec. 138, p. 482, it is stated:
"Lack of power to issue process to compel attendance of witnesses does not render proceedings invalid as denying due process of law." This latter principle of law is based upon the authority of the case of Low Wah Suey v. Backus, 225 U. S. 460, 56 L. Ed. 1165, 37 S. Ct. 734. It is my opinion that the State Personnel Board, being an administrative agency of the State of Georgia, and the General Assembly not having granted this Board power to compel by subpoena the attendance of witnesses before it, does not have any inherent power to issue subpoenas to compel the attendance of witnesses before it when considering matters of appeal.
STATE EMPLOYEES-State Museum Curator of the Museum in the State Capitol is an employee of the Depart-
ment of Mines, Mining, and Geology.
February 1, 1954
Honorable Garland Peyton, Director Department of Mines, Mining and Geology
I am pleased to acknowledge your letter of January 14, 1954, in which you request that I advise you whether or not Miss Annette McLean, Curator of the Museum in the State Capitol, is an employee of the Department of Mines, Mining and Geology. You state that this information is desired in order to clarify Miss McLean's status under the Employees' Retirement Act and the Merit System.
Beginning with the Act approved November 12, 1889, which revived the office of State Geologist, and provided as a part of his duties, to cause to be preserved in a Museum specimens illustrating the geology, mineralogy, soils, plants, valuable woods, and whatever else that may be discovered in Georgia of scientific or economic value, I have reviewed the numerous legislative Acts changing and reestablishing the status of, and the functions of the State Geologist and the Department of Mines, Mining and Geology, and without enumerating them in specific detail, I reach the conclusion that the Museum was during this long period of time, and still is under management of the Department of Mines, Mining and Geology,
The position of "Curator" first appeared as a position in the Department of Mines, Mining and Geology on January 1, 1938, as shown by the report of the State Auditor for the period ending June 30, 1938.

632
At the time that the State Department of Mines, Mining and Geology was brought under the provisions of the State Merit System (Ga. Laws 1950, p. 322), the position of Curator was still in the Department of Mines, Mining and Geology, as shown by the State Auditor's report of this department ending June 30, 1950.
All of the annual audits since January 1, 1938, up to and including June 30, 1953, and the department records as of February 1, 1954, disclose that the position of Curator was held by Miss Annette McLean as an employee of the State Department of Mines, Mining and Geology, and she received her salary from said department.
Although at different times other departments have contributed various exhibits and made contributions of funds to the Department of Mines, Mining and Geology for the operation of the Museum, these activities did not change the status of the Museum's Manager.
From a review of all of the Acts of the General Assembly pertinent to the questions, and the historical background of your department and the records of the State Department of Audits, I reach the firm conclusion and opinion that the position of Curator of the Museum, in the State Capitol, is a position created by and within the Department of Mines, Mining and Geology, and that the present occupant, Miss Annette McLean, is an employee of the Department of Mines, Minning and Geology. [Ed. Note: See Ga. Laws, 1955, p. 350 which transfers State Museum to office of Secretary of State.]
STATE EMPLOYEES-Who May Be The Department of Public Health may not employ on its staff a person
whose major activity and purpose is the development of interest and support for the Better Health Council.
April 18, 1956
Dr. T. F. Sellers Director State Department of Public Health
You propound the following question: "Can the Georgia Department of Public Health employ on its staff a
person whose major activity and purpose is the development of interest and support for the Better Health Council and who acts in the capacity of Executive Secretary for the Council?" The Council, as I understand it, is a purely private and unofficial association. Since the Constitution of 1945 clearly provides that no grant, donation or gratuity may be made to any person, corporation or association (Ga. Code Ann., Sec. 2-5402), that the State's credit may not be loaned to any individual, company, association or corporation and that the State may not become a joint owner with any such person, company, association or corporation (Ga. Code Ann., Sec. 2-5604), it is my opinion that you may not employ a person: whose major activity is the development of the Better Health Council and who acts as Executive Secretary for such organization. Quite obviously, if the functions and program are such that they might legally be carried out by and as a part and parcel of the activities of the State Department of Public Health under the provisions of the Ellis Health Law (Ga. Code Ann., Sec. 88-10, et seq.), the program could be taken over bodily by the ,Board

633
and directed by you as its Director. In this case, however, the Better Health Council would cease to have any connection with the program in question.
STATE GOVERNMENT-Bids on State Contracts The Adjutant General is not bound by his invitation to bid on a state
contract, but can accept any bid which he considers best for the state.
June 17, 1955
Brig. Gen. Charlie F. Camp Assistant Adjutant General Department of Defense, Military Division
The precise question raised by your letter is whether or not the telegram received from "A" should be accepted. The operative facts are briefly these:
The State Department of Defense advertised for bids for the construction of an Armory at Toccoa, Georgia. Such bids were to be received at office of Adjutant General at 2:00 P. M. on June 7, 1955. The bids were opened promptly at 2:00 P. M. on June 7, 1955. At approximately 2:15 P. M. a telephone call advised Major Bodron, who opened the bids, that a telegram was received from "A" revising a bid previously submitted. By accepting the substitute bid "A" would be he lowest bidder on the project. At the present time none of the bids have been accepted, that is none of the offers contained in the bids have been accepted.
The State is only a corporate name for all the people embraced within a specified geographical or territorial area. The whole people acting as a public corporation have a right to enter into contracts. 49 Am. Jur., States, Territories and Dependencies, 63 p. 276. In so acting the State must act through some agency. They may choose to act through any agency, officers, or other legal entity, including the legislature. Re. Gemmill, 20 Idaho 732, 119 P. 298, 41 L. R. A. (NS) 711.
In so far as the building of Armories is concerned, the State of Georgia, acting through the instrumentality of the State Legislature has in its wisdom seen fit to confer upon the Adjutant General of Georgia, with the approval of the Governor, the right to enter into contracts for the construction of said Armories. This power is authorized by Section 72, Ga. L. 1955, p. 94, which reads in part as follows:
"The Adjutant General, subject to the approval of the Governor, is hereby authorized and empowered to negotiate for, accept, and approve projects, proposals, contracts, and agreements for the construction, reconstruction, expansion, conversion, purchase, lease, repair, rehabilitation, improvement, equipping, furnishing, maintenance and operation in whole or in part with Federal funds, of armories, camps, ranges, bases or any building structure, or facility for the organized militia."
The general rule is that in so far as contracts are concerned, the State is held to the same rules and principles of construction and application of contract provisions as govern private persons and corporations. Davis v. Gray, 16 Wall. (U.S.) 203, 21 L. ed. 447; lluidekoper v. Douglass, 3 Cranch (U.S.) 1, 2 L. ed. 347; Carr v. State, 127 Ind. 204, 26 N. E. 77, 11 L. R. A. 370, 22 Am. St. Rep. 624; Newton v. Allen, 106 Kan. 526, 188 P. 248. This is also the Georgia rule. In Regents of the University System of Georgia v. Blanton, 49 Ga. App. 602, the rule is set forth in headnote 1 in the following language:
"A State, or any of its departments entering into contracts, lays aside its attributes of sovereignty, and binds itself substantially as one of

634
its citizens does when he enters into a contract, and, in general, its contracts are interpreted as the contracts of individuals are and are controlled by the same laws."
This rule is confirmed and applied in State of Georgia, et al. v. Davison, Tax Collector, 198 Ga. 27, 36.
Accordingly it is clear and well established that the Adjutant General has the authority to negotiate for contracts as well as enter lnto contracts for the construction of Armories and that such contracts are governed by the same rules as contracts between private individuals.
The fundamental legal question inherent in the operative facts of this matter is the legal effect of the telegram amending his previous bid sent by Mr. Bracewell to the Adjutant General on June 7, 1955.
A contract may be entered into by a variety of methods. It is so fundamental and well settled as to require no citations of precedent or authority that the parties to a contract must mutually assent to its provisions. Mutual assent can be manifested in several ways. Mutual assent is usually manifested by the acceptance of an offer. In Georgia the offer and acceptance may be by correspondence through the mail or by telegram. Penn. Fire Insurance Co. v. Sorrells, 23 Ga. App. 398.
Of course, the offeror may require the acceptance to be in a prescribed manner. Naturally the offeror may attach such conditions to his offer as he sees fit.
The next point of inquiry relates to the nature and legal effect of the advertisement of the invitation for bids. An invitation for bids or advertisement for bids has been universally held to constitute a request for an offer and not an offer. Restatement, Contracts, 25 (1932). An invitation to enter into negotiations is not an offer which can be converted into a contract by acceptance. Newton v. Coe-Mortimer Company, 20 Ga. App. 736.
An examination of the invitation for bids in this matter reveals that it was a request for offers and not an offer itself. From the circumstances existing at the time it is clear that further expression of mutual assent was intended. There is no need to labor this point. Each bid received was an offer on the part of the respective bidder which would mature into a contract when accepted by the Adjutant General.
Of course, this offer could be made by letter, telegram, or otherwise. Equally the Adjutant General was free to reject or accept any of the offers, provided of course he acts as a responsible public officer. There is no law requiring the Adjutant General to accept the lowest bid. He is under a legal duty to perform the duties of his office in a lawful manner and in his discretion may accept the particular bid (offer) which he believes is the best to accomplish the result desired.
The fact that the invitation for bids stated that bids would be accepted until 2:00 P. M. June 7, 1955 is immaterial. In State Highway Depart. of Ga. v. McDougald Const. Co., 54 Ga. App. 310 it was held:
"A mere proposal to contract, not based on a consideration, and not amounting to an option, may be withdrawn at any time before acceptance. This is true although the offer states it is open for a stated time for acceptance or rejection."
This rule would apply a fortiori to invitation for offers in view of the fact that such invitations are merely preliminary negoitiations.
A contract would not be formed by a bidder complying to the letter with every provision of the invitation to bid. And conversely, the Adjutant General can with impunity disregard the provisions of such invitation to bid.
I, therefore, am of the opinion that the telegram from "A" can be received

635
and his offer accepted or the Adjutant General is free to accept other offers, if in his discretion such other bids (offers) would be more satisfactory in accomplishing the result sought.

STATE GOVERNMENT-Compensation of Officials Compensation of the Veterans Service Board must be determined by the
General Assembly.
August 22, 1955
Honorable Pete Wheeler, Director Department of Veterans Service
You ask an official opinion on the question of whether or not the Governor is authorized to issue an executive order to pay $20.00 per day, per diem, for members of the State Boards of Veterans Service, or whether it would take an act of the Legislature to authorize such payment.
The Veterans Service Board is created under authority of Paragraph I, Section VI, Article V of the Georgia Constitution of 1945 (Sec. 2-3501, Ga. Code Ann.) This Section reads in part as follows:
"There shall be a State Department of Veterans Service and Veterans Service Board composed of seven members, who shall have such control, duties, powers and jurisdiction of the State Department of Veterans Service as shall be provided by law...."
Section 78-403, Georgia Code Annotated, 1951 Cumulative Pocket Part (Ga. Laws 1945, pages 319-321) contained the following:
"Members of the Board shall receive no per diem or other payment except actual traveling expenses and actual expenses incurred when upon attendance upon meetings of the Board."
Although the Veterans Service Board is created by authority of the Constitution, all of its powers are determined by acts of the Legislature. The Legislature has seen fit to expressly provide that no per diem shall be allowed the State Board of Veterans Service. It, therefore, follows axiomatically that it will take an act of the General Assembly to authorize any per diem payment to the State Board of Veterans Service.

STATE GOVERNMENT-Co-operative Membership
The state may not participate in a co-operative, since it would in effect be pledging the aid of the state to a private company.

July 25, 1956

Honorable C. L. Shaw

Supervisor of Purchases

I am pleased to acknowledge your letter relative to agencies of the State

utilizing the service of the Educational and Institutional Cooperative Service,

Incorporated, Garden City, New York, a cooperative corporation under the laws

of the State of New York.



I have reviewed the by-laws of this corporation, and you will note that a

member of this service must be a stockholder in the corporation and is issued

636
certificates of stock. The by-laws further provide that each member may be required to pay additional charges over and above the cost of any supplies, equipment, or services turned over to the member or rendered the member by the corporation in order to provide the necessary operating expenses of the corporation.
Article 7, Section 3, Paragraph 4 (Code Section 2-5604) provides: "State aid forbidden.-The credit of the State shall not be pledged or
loaned to any individual, company, corporation or association and the State shall not become a joint owner or stockholder in or with; any individual, company, association or corporation." It is my opinion that the State of Georgia and its various departments, agencies, boards, and commissions, would be prohibited by the above cited constitutional provision from becoming stockholders in the corporation in question, and would also be forbidden to pledge the credit of the State to the payment of undetermined operating expenses of said corporation.
STATE GOVERNMENT-Georgia Ports Authority (Unofficial) The Georgian Ports Authority is an agency of the state, and hence is not
an "employee" under the provision of the National Labor Relations Act.
July 26, 1954
Honorable James W. Smith, Secretary-Treasurer The Georgia Ports Authority
You ask whether the Georgia Ports Authority is an "employer" within the meaning of that language used in the National Labor Relations Act and hence required to recognize and bargain, collectively, with the C. I. 0. or such other labor organization as has been or may be selected by your employees as their bargaining agent.
Section 152 (2) of the National Labor Relations Act (Title 29, Sec..2 (2) (U.S.C.A.) defines the word "employer" in part as follows:
"The term employer includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government Corporation, or any Federal Reserve
Bank, or any state or political subdivision thereof * * *." (Emphasis added.)
The question arises, then, as to whether the Georgia Ports Authority is a
"* * * state or political subdivision thereof * * *," within the meaning of that
language as employed. Section 2 of the Georgia Ports Authority Act (Section 98-202, Georgia Code
Annotated) provides in part as follows: "There is hereby created a body corporate and politic to be known
as the State Ports Authority which shall be deemed to be an instrumen-
tality of the State of Georgia and a public corporation * * *" (Emphasis
added.) The State of Alabama by appropriate legislative act (Code of Ala. 1941, Title 38, Section 1(1)) provided for a "department" of state docks as an "agency" through which the state might engage in "internal improvement and promoting, developing, constructing, maintaining and operating all harbors and seaports
within the state * * *". This agency was earlier called a "Commission" and later

637
a "board" but it is clear that it was an "agency" of the State of Alabama. The purpose and functions are similar to those given the Georgia Ports Authority. The National Labor Relations Board has held that this "agency" of the State of Alabama was not an "employer" within the meaning of Title 29, Section 152(2) of the U. S. C. A., being National Labor Relations Act. (Mobile Steamship Assn., et al., Vol. 8, Decisions of NLRB 1297).
Likewise the Board has held that the Oxnard Harbor District organized under California law providing for the formation and administration of districts for the improvement or development of harbors is a political subdivision and not an "employer" District, et al. Vol. 34, Decisions of NLRB 1285). Similar District (No. 21-RC-1698), the Board of Education of the City of Owensboro (87 Decisions of NLRB 99) and the University of Michigan Board of Regents (7-RC-1208).
From the foregoing, it is obvious that the National Labor Relations Board construing its own act has taken the position that Section 2(2) defining the word "employer" and more particularly the phrase "State and political subdivisions thereof" should be given no narrow or technical interpretation. In the International Brotherhood of Electrical Workers, Local 5, A.F.L., et al., the Board said in part:
"* * * the Board is convinced * * * that Congress has excluded Government agencies and instrumentalities both state and Federal * * *"
As has been pointed out, the General Assembly of Georgia in passing the Ports Authority Act specifically provided that the Authority:
"* * * shall be deemed to be an instrumentality of the State of Georgia * * *."
Since the National Labor Relations Board has given a broad interpretation to the language used in Section 2(2) of the National Labor Relations Act, I am not inclined to be less liberal in my interpretation of it. It is my view, therefore, that the National Labor Relations Board would hold that the Authority is not an "employer" within the meaning of the language used and that it would not be required to recognize or deal with any Union or Unions as the bargaining agent of its employees.
STATE GOVERNMENT-Department of Public Welfare-Gifts Department of Public Welfare is authorized to accept gifts.
February 26, 1954
Honorable Alan Kemper, Director I have reviewed the documents enclosed with your letter of January 28, 1954,
relating to a giff to the State of Georgia of an addition to a sanitary sewer on the property of the State under your Department's jurisdiction at Milledgeville, Georgia.
Under the statute creating the State Department of Public Welfare (Ga. Laws 1937, pp. 355-362), you are authorized to accept gifts, and under this authority it is my view that you would be authorized to accept the gift of the addition to the sanitary sewer on the property in question, under the agreement submitted with your letter of January 28, 1954.

638
STATE GOVERNMENT-Great Seal The Great Seal of Georgia may not be used upon the cover of a textbook privately published and offered for sale.
July 24, 1956
The Honorable Marvin Griffin Governor of the State of Georgia
Reference is made to your letter of July 20th, in which you ask my opinion regarding the legality of the use of a pictorial reproduction of the face or front of the Great Seal of Georgia on a textbook to be privately published and sold by Dr. Albert B. Saye, Professor of Political Science at the University of Georgia.
The right to use the seal in this manner could only be desired by the author and publisher on one of two bases, i.e., (1) that it served as an effective advertising device, or, (2) that it imparted some suggestion that this document was an official publication of the State or some department, agency or instrumentality thereof.
The use of the "Coat of Arms" or seal of the State for advertising purposes is strictly prohibited by Section 86-1207 of the Georgia Code Ann., 1955 pocket supplement, and is made a misdemeanor by Section 86-9905. Forging or counterfeiting the Great Seal of this State, causing it to be impressed on any instrument, or uttering or publishing any instrument impressed with a forged or counterfeited seal is made a felony by and under the terms of Section 26-3915.
I am of the opinion that the use of the Coat of Arms or Great Seal of the State of Georgia upon the cover of a textbook privately published and offered for sale by the editor and publisher would constitute its use for advertising purposes within the meaning of Section 86-1207 and Section 86-9905 and that it would, therefore, be improper for you to authorize such use.
STATE GOVERNMENT-Fair Trade Law State of Georgia is exempt from the Fair Trade Act, and may purchase
trade-mark items at a discount from Georgia vendors the same as it could from out of State vendors.
March 24, 1954
Honorable S. F. Skrine Purchasing Agent
I am pleased to acknowledge your request of March 5, 1954, as to whether or not the State of Georgia is exempt from the Fair Trade Act in purchasing trademark items at a discount.
Georgia Code Annotated, 102-109 provides as follows: "The State is not bound by the passage of a law unless named therein,
or unless the words of the Act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the legislature." In case there is any doubt as to whether or not the State of Georgia is bound, this doubt will be resolved in favor of the State. Lingo v. Harris, 73 Ga. 28. The Fair Trade Act, Georgia Laws 1953 (Nov.-Dec. Session), p. 549, [Ed. Note: Fair Trade Act declared unconstitutional in Cox v. General Electric Company 211 Ga. 286 (1955)] does not name the State of Georgia nor does it indicate in any way that purchases by the State would come within the said act. It is my opinion that the State of Georgia is exempt from the act and may purchase trademark items at a discount from Georgia vendors the same as it could from out of State vendors.

639
STATE GOVERNMENT-Library-Court Reports, Laws, and Journals Discusses law relative to the distribution of court reports, laws, and jour-
nals of the State.
April 24, 1956
Miss Vera Jameson Associate State Librarian Georgia State Library
This will acknowledge receipt of your letter in which you request information relative to the distribution of court reports, laws and journals.
Two Acts were passed at the 1956 Session, Act No. 438 and Act. No. 480. Act No. 438 amended Code Section 101-205, so that it now reads as follows:
"101-205. The distribution of the laws and journals, reports of the Supreme Court and Court of Appeals decisions, and all other books required to be distributed to the several counties of the State or to be sent to other States, shall be made by the Librarian, under the direction of the Governor, in pursuance of the provisions of the law in respect thereto. He shall mail the reports of the Supreme Court and of the Court of Appeals, as follows: One copy of each to the Justices of the Supreme Court, Judges of the Court of Appeal;, and judges of the superior courts, the clerk of the Supreme Court, clerk of the Court of Appeals, the clerks of the Superior Courts, and the ordinaries. The remaining copies he shall keep in the State library for use and exchange, as is required in this Code. Reports of the Supreme Court and the Court of Appeals decisions furnished to counties under the provisions of this section shall remain the property of the State of Georgia, and each officer to whom such reports are furnished shall account to his successor in office for those volumes missing. No volumes of such reports shall be replaced unless proof of destruction by fire, or other cause beyond the control of the county, shall be submitted with the request for replacement."
The last two sentences of this section were added by the Act.
Act No. 480 struck Code Section 101-207 and substituted in lieu thereof the following:
"101-207. Each county shall be entitled to one copy of the Acts of the General Assembly for the Ordinary, one copy for the county or city court judge, one copy for the Clerk of the Superior Court, and one copy for the use of the county attorney, to be distributed by the Ordinary. Each member of the General Assembly shall also be entitled to one copy, to be mailed to such member."
Those two particular sections are, of course, changed in the manner set out above. No other sections were specifically changed by these two Acts, but if there is any conflict in what is contained in these two Acts and any prior Code Section or statute, these Acts will control, under the theory of repeal by implication, since they are the latest expression of the General Assembly.
You ask a specific question as to the number of copies of the reports of the Supreme Court and the Court of Appeals which should be issued to the Justices of the Supreme Court and the Judges of the Court of Appeals. The two Acts listed above made no change in the law relative to this matter, and I refer you to Code Section 101-205, which contains the information you desire.

640
STATE GOVERNMENT-Literature Commission-Powers (a) The State Literature Commision can determine only that a particu-
lar issue of a publication is obscene, and not that the entire publication is obscene.
(b) 1. The Literature Commission has no power to order the removal of obscene literature, but may recommend prosecution thirty days after determining literature is obscene.
2. Persons having obscene literature may be prosecuted without any action on the part of the Literature Commission.
September 24, 1956
Dr. James P. Wesberry, Chairman Georgia State Literature Commission
Re: Literature Commission
I am pleased to acknowledge your request concerning two questions now before the State Literature Commission. The questions are as follows:
"1. Under the Georgia State Literature Commission Act (Georgia Laws 1953, page 133 et seq.) in the finding by the Commission that a particular publication is obscene a finding against the particular issue of the publication under review, or is it a finding and determination with respect to the title of the publication and all subsequent issues thereof?
"2. If the Commission makes a finding that literature is obscene, does the distributor have thirty days within which to remove the offensive literature from the stands? (Georgia Code Section 26-6305a)."
Ga. Code Ann., 26-6305a provides as follows:
"The Commission shall hold hearings and make findings on literature they have found to be obscene through their investigations or from evidence furnished to them by any citizens of this State. The person, partnership, company, corporation, or other agency selling, distributing, or otherwise providing the citizens of this State with the alleged obscene literature may appear and give evidence at the hearing of said Commission. The Commission shall make findings upon all hearings and shall have the power to prohibit the distribution of any literature they find to be obscene, by first notifying the offending party, or parties, 30 days prior to recommending prosecution as hereinafter provided."
In my opinion this provision authorizes the Commission to make findings on literature "in being" at that time, i.e., as to a copy of a magazine actually before the Commission. If the Commission finds such magazine to be obscene, they have authority to prohibit the distribution of that particular issue, by first notifying the offending party, or parties, 30 days prior to recommending prosecution. This prohibition could not apply to any future issue of the magazine for the reason that there would be no basis for determining the possible content of any such future issue.
As to the second question, the law requires the Commission to give the offending party 30 days notice prior to recommending prosecution.
Ga. Code Ann., 26-6306a provides as follows:
"The Commission shall recommend the prosecution, under the criminal laws of this State (section 26-6301), of any person, corporation, company, partnership, or any other agency that this Commission finds to be selling or otherwise distributing obscene literature. The Commission shall notify the solicitor general of the circuit in which said literature has been sold,

641
or otherwise distributed, of its findings and recommendations. The Commission shall also provide the solicitor with any evidence it might have obtained during its hearings and the proceedings of said hearings." What is the purpose of the above "30 day" notice provision? The statute does not say that the offending party has 30 days within which to remove the obscene literature. On the contrary, the statute requires the Commission to recommend prosecution at the expiration of the 30 day period, if the Commission is of the opinion that the literature is obscene. In my opinion the General Assembly intended that the "30 day" provision was to provide sufficient time for the offending party to prepare his defense to the impending prosecution by the appropriate Solicitor General. While this opinion is in reference to the jurisdiction of the State Literature Commission, it should be kept in mind that Ga. Laws 1956, p. 801, provides for criminal prosecution without any action on the part of the Commission. Ga. Code Ann., 26-6301 (as amended, Ga. Laws 1956, p. 801) provides as follows:
"Any person who shall bring, or cause to be brought, into this State for sale, exhibition, or shall sell or offer to sell, or shall lend or give away or offer to lend or give away, or who shall possess or having possession thereof, shall knowingly exhibit or transmit to another any indecent, immoral or obscene pictorial newspaper, book, pamphlet, magazine, newspaper, film, picture, recording or other printed paper or obscene matter principally made up of pictures, stories or sounds of deeds of lust tending to debauch the morals, or shall advertise any of said articles or things for sale, by any form of notice, printed, written, or verbal, or shall manufacture, draw, or print any of said articles, with intent to sell or expose or to circulate the same, shall upon conviction, be punished by confinement and labor in the penitentiary for not less than one nor more than five years but, however, upon the recommendation of the jury, said offense may be punished as for a misdemeanor. Provided, that any legitimate or licensed radio station, television station, moving picture theater, or newspaper, published primarily for the distribution of public news, shall be exempt from the provisions of this Act." In my opinion a person may be prosecuted for a violation of the provisions of this law without any action on the part of the Commission, i.e., the Solicitor General may proceed, with or without the recommendation of the State Literature Commission, against any violation of this law in the same manner as would be true of any other criminal violation.
STATE GOVERNMENT-Purchase of Motor Vehicles The state may not purchase a motor vehicle for use for transportation of
passengers, with certain exceptions.
April 14, 1955
Honorable C. L. Shaw Supervisor of Purchases
This will acknowledge receipt of your request of April 6, 1955 for an opinion, in which you state:
"In the past the State of Georgia has purchased from the Chevrolet Division Dealers of General Motors, Model 3107 Canopy Express. This

642
unit has been discontinued from their production schedule as of the first of this year. These units were used by the State to carry passengers, after the installation of seats in the rear compartment of these trucks.
"The above company is in production of another truck unit, their Model 3106 or 3116, which we believe would be more than adequate to replace the Canopy Express. This is a Suburban Carryall and the only difference is the type of rear door installation.
"These Suburban Carryalls are mounted on truck frames, truck axles and are powered by truck engines, also having truck transmissions. In fact, the basic unit is exactly the same as their lh Ton Panel with additional glass and seats installed.
"Please give us your opinion as to whether or not we may be within the Rules and Regulations of the State Purchasing Department and the law, to purchase the above described unit."
The history of the legislation limiting the purchase of automobiles by the State for State purposes is fully discussed in an opinion given by this Department on November 15, 1948 to the Honorable Harmon W. Caldwell, President of the University of Georgia, and found in the Opinions of the Attomey General, 19481949 volume, beginning at page 146.
You will note that in this opinion is is pointed out that it was the object and purpose of Chapter 40-20 of the 1933 Annotated Code of Georgia, Acts 1933, pages 106-110, to prohibit any Department, institution, board, bureau or agency of the State from purchasing passenger automobiles to be used by officials and employees in the performance of their duties for the State government, and that Section 1 of the Act definitely prohibits the expenditure of State funds for the purchase of passenger-carrying automobiles, except for the Governor and the Department of Public Safety and the Department of Veterans Service purchasing an ambulance for transportation of veterans to hospitals.
Section 5 of the 1933 Act, codified as Section 40-2004 of the 1933 Annotated Code of Georgia, provides:
"The State Supervisor of Purchases, assisted by the heads of the departments, agencies, bureaus or institutions shall be charged with the duty of the enforcement of this law; . . ."
Pursuant to this specific duty placed upon the Supervisor of Purchases and the heads of the various departments, agencies, bureaus or institutions of the State jointly, a procedure was heretofore established under which the State Supervisor of Purchases required an affidavit to be filed with the Purchasing Department by the responsible official of the department requesting the purchase of an automobile for State purposes other than for the use of State officials and employees in the performance of their duties. This affidavit required that the responsible head of the department affirm in writing under oath that the automobile proposed to be purchased upon the requisition before the Purchasing Department is not to be used by officials and employees of such State agency in the performance of their official duties in contravention of Chapter 40-20 of the 1933 Code of Georgia. In this connection, your attention is called to an opinion to Honorable B. B. George, Supervisor of Purchases, dated April 9, 1953, and found in the Opinions of the Attorney General, 1952-1953 volume, beginning at page 499.
In considering the question of a department, institution, board, bureau or agency purchasing a motor vehicle, first consideration must be given to the purposes for which the vehicle is proposed to be used. If it is to be used by an official or employee of a department, institution, board, bureau or agency for use in the

643
performance of their duties for the State government, such purchase would be unauthorized and the expenditure illegal under the present laws, which require such persons to furnish their own automobile for personal transportation, and reimbursement of the expenses of upkeep to be made by the payment of mileage actually travelled in the performance of their duties for the State.
It was not the intent of the General Assembly to allow the purchase of an automobile, regardless of the shape of its body or by what name it may be called, for the use of State officials' and employees' transportation in the performance of their official duties.
The two opinions above referred to involve the purchase of a so-called panel truck and a sedan delivery for the purposes of transporting students to and from clinical experiments on farms and transporting of equipment to various parts of the State, and it is pointed out in these two opinions that the purchase of these two vehicles, one termed a sedan delivery and other a panel truck, was for such specific purposes and could not be used for the transportation of officials and employees in carrying on their ordinary duties.
The 1933 Act above cited, having placed upon the Supervisor of Purchases and the various agencies enumerated in the Act the responsibility of carrying out the intent of the 1933 Act in question, it would be your responsibility to take such steps and enforce existing rules and regulations or adopt new rules and regulations which would satisfy you that any department, institution, board, bureau or agency making a requisition for the purchase of a so-called sedan delivery or by whatever name used would not be a passenger-carrying automobile, and would not be used by the officials or employees of the department in question as a mode of transportation for themselves in performing their official State duties.
The certificate which has heretofore been filed along with the requisition to the State Supervisor of Purchases by the department head requesting the purchase of a vehicle, is substantially as follows:
"1, the ,undersigned State official, do hereby certify that the motor vehicle requisition for purchase by the Supervisor of Purchases' Office does not call for the expenditure of State funds 'for the purchase of any passenger-carrying automobile what"soever', and will not be used for purposes which violate Georgia Laws, Code Section 40-2003, which reads as follows: 'All officers, officials or employees of the State and of the various departments, institutions, boards, bureaus and agencies of the State required to travel by automobile in the performance of their official duties shall themselves furnish out of their own personal funds such automobiles as may be necessary for their official use.'
"This is to further certify that the undersigned does execute this certificate with full knowledge of the contents of Code Section 40-9902, which reads as follows: 'Any person or persons, violating any provision of Chapter 40-20 relating to the purchase of automobiles with State funds or the use of automobiles by State officers or employees shall be guilty of a misdemeanor and shall be removed from office.' "
Code Section 40-2001 is specific in providing that no funds appropriated to any department, institution, board, bureau or agency shall be used for the purchase of any passenger-carrying automobile whatsoever, except the agencies exempted therein, and that it shall be unlawful to expend any funds appropriated to any department, institution, board, bureau or agency or any State funds otherwise coming into the possession of any such department, institution, board, bureau or agency for the purchase of any passenger-carrying automobile, except one passenger automobile and motorcycles for use of the Governor and the exceptions exempt-

644
ing the State Department of Public Safety and allowing the State Department of Veterans Service to .purchase an ambulance, and the further exemption excluding trucks, tractors or trailers from the provisions of the Act.
You state that certain types of motor vehicles are under consideration for purchase and that "these units were used by the State to carry passengers after the installation of seats in the rear compartment ...". It is my firm opinion. that when a truck is built for the purpose of transporting passengers, or when it is converted to such use by the installation of seats, it is not a truck within the meaning of Chapter 40-20 in question, but is clearly a passenger-carrying automobile within the purview of said cited Chapter. A truck is considered to be a motor vehicle for the transportation of heavy articles and not for the transportation of passengers.
If any agency or department of the State government is inconvenienced by the provisions of Chapter 40-20 of the Code, the relief should be from the General Assembly by amending the present law to cover the particular problem they may have. This has been done in several instances, since its original adoption.
STATE GOVERNMENT-Purchases Subject to Federal Excise Tax Purchases of Franklin D. Roosevelt Warm Springs Memorial Commission
would be exempt from Federal Excise Tax if purchased through the office of the Supervisor of Purchases.
Mr. B. B. George, Supervisor of Purchases Under Section 316.24 of Title 26, United States Treasury Department regu-
lations (Excise Taxes) the State of Georgia is exempt from paying an excise tax on any purchase provided the purchase is made by the authorized officer of the State-Supervisor of Purchases. In addition, the purchase must be from the manufacturer.
The Section provides in part as follows: "To establish the right to exemption from tax where the sale of an
article is made by the manufacturer direct to the United States, any State, Territory of the United States, or any political subdivision of the foregoing, or the District of Columbia, for its exclusive use, it is necessary that (1) the manufacturer have definite knowledge prior to or at the time of sale, that the article is purchased for such use, and (2) he obtainfrom an authorized officer of the United States, the State, Territory of the United States, political subdivision, or District of Columbia, as the case may be, and retain in his possession a properly executed exemption certificate in the form prescribed by this section." The Franklin D. Roosevelt Warm Springs Memorial Commission is a Department of the State Government. If they purchase through your department, such purchase would be exempt under the above Treasury regulation.
STATE GOVERNMENT-Surety Bonds Required by the State (Unofficial) General laws dealing with the form and content of surety bonds required
by the various State Departments. December 7, 1954
Mr. R. Z. Kinard You request .information regarding the surety bond forms required by the
various departments of the State Government.

645
The various departments of the State Government do not have exact prescribed forms for surety bonds of their officials and employees. The requirements as to form and content of such bonds are set forth in the various Acts of the State Legislature relating to each particular office or department. In addition to the provisions of the particular Acts, the provisions of Chapter 89-4 of the Georgia Code of 1933, as amended by the Acts of 1947, page 1543; of 1949, page 1190, 1191, and of 1951, page 741 are applicable to all public official bonds in Georgia. The code sections referred to above, as amended, may be found in the Georgia Code Annotated and the pocket supplement thereto, which should be found in your State Library or in any good university law library.
Inasmuch as )t becomes the duty of this Department to pass upon the legal sufficiency of particular bonds after they have been executed and submitted to the official obligee for approval, we would be unwilling to make a ruling on a particular form in advance of its execution by the obligor and the surety when such form could be considered in its application to a particular office.
STATE GOVERNMENT~Soil Conservation District A Soil Conservation District is an agency and instrumentality of the state.
April 12, 1955
Honorable W. Frank DeLamar You ask the following question: "The Department of Health, Education and
Welfare Regional Office has requested that our office furnish them with an opinion from our Attorney General to the effect as to whether or not the Piedmont and Upper Ocmulgee River Soil Conservation District Supervisors are instrumentalities of the State of Georgia". I am pleased to give you the following authorities relative to this question.
Section 5-1806 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, codified from the "Soil Conservation Districts Law", Georgia Laws 1937, page 377, provides:
"1. 'District' or 'Soil Conservation District' means an agency of this State organized in accordance with the provisions of part 8 of Title 5, for the purposes, with the powers, and subject to the restrictions hereinafter set forth."
"2. 'Supervisor' means one of the members of a governing body of a District, elected or appointed in accordance with the provisions of part 8." Section 5-1919 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, codified from the Acts of 1937, pp. 377-387, provides:
"Such District shall be an agency of this State, upon the taking of the following proceedings: ..." Section 5-2012 of the 1933 Annotated Code of Georgia, 1951 Cumulative Pocket Part, provides:
"A Soil Conservation District organized under the provisions of part 8 of Title 5 shall be an agency of this State ..." Under the authorities cited above, there is no question but that a Soil Conservation District, properly organized as shown by the records of the Secretary of State's office, would be an agency and an instrumentality of the State.

646
STATE GOVERNMENT-Surveyor General
The Secretary of State, as Surveyor-General, does not have power to appoint and designate a Deputy Surveyor-General.
August 1, 1956
The Honorable Ben W. Fortson, Jr. Secretary of State and Surveyor-General
You request my opinion as to whether you, as Surveyor-General, have the authority to appoint and designate a Deputy Surveyor-General with power to sign certificates and certified copies of matters of record in the Surveyor-General's Department.
I have carefully considered the early records of the Colony under the Trustee and the Royal Province as well as the various Constitutions, and statutes of the State, and it is my opinion, somewhat reluctantly arrived at and expressed in view of the exigencies of the matter, that you do not.
It is true that the early records of the Colony refer to Henry Yonge who was appointed Surveyor-General of the Royal Province by King George III in 1764 and to Thomas Chisholm and other appointed by him as Deputy Surveyor-General. Moreover, the English Fees Act of 1773 provides for the fees of the Deputy Surveyor-General.
Notwithstanding these facts, neither the Constitution of 1777 nor that of 1789 made any reference to the Surveyor-General as a public officer nor did the General Assemblies pass any legislation expressly defining his duties or authorizing the appointment of a Deputy Surveyor-General. It is true, however, that the General Assembly did pass a number of Revival of Laws Acts which continued in force certain Colonial Acts and that it passed certain other Acts which, by necessary implication, recognized the existence of the position.
The fact remains, however, that nowhere do we find any Act creating the position of Deputy Surveyor-General or specifically authorizing the appointment of a Deputy Surveyor-General by the Surveyor-General. Moreover any such authority as the Surveyor-General may have had to make such appointments under a "lost statute" or by necessary implication would appear to have been repealed or nullified by the adoption of the 1861 and subsequent Constitutions and the passage of consolidation statutes thereunder.
While the courts do not favor revocation of statut\'s by implication (Montgomery v. Board of Education, 74 Ga. 41), such revocation is recognized where the later Act is dearly and indutiably contrary to the existing law. (Head v. Wilkinson, 186 Ga. 739). Here, it appears to me that the Act consolidating the offices of Secretary of State and Surveyor-General with the provision that the former (the Secretary of State)
"... shall perform all and singular the duties of the SurveyorGeneral, retaining his title as Secretary of State", and, that
"The Secretary of State shall be the le~al and proper custodian of all records ... connected with the office of the Surveyor-General ...",
is clearly and indubitably contrary to and inconsistent with any ancient law authorizing the Surveyor-General to appoint a Deputy Surveyor-General. (See Acts of 1861, p. 72.).
Were this not the case, however, I entertain serious question that such deputy-, by whatever name called, could sign certificates and certified copies of matters of record in the Surveyor-General's Department. The Act of 1861, supra,

647
provides further that "His (the Surveyor-General's) testimony ... shall be entitled to full faith and credit . . . as legal custodian aforesaid; and his official signature to any plat or duplicate, certificate, or other paper heretofore issuing from the office of the Surveyor-General ... shall entitle said paper to the same credit and validity as if the offices had not been consolidated."
It appears to me, therefore, that the Secretary of State and Surveyor-General does not have the authority to appoint and designate a Deputy Surveyor-General to do and perform the official Acts required of him by the provisions of Section 40-604 of the Georgia Code Annotated, especially to " ... certify under his official seal ..."
STATE GOVERNMENT-Tax Liability
State property is not subject to special street assessments.
May 19, 1955
Honorable Phil Campbell Commissioner of Agriculture
The principal issue raised by the facts set forth in your letter is as follows: Does a municipality under Georgia law have the power to levy a special assess~ ment against state property? There is inherent in this problem a subsidiary issue, namely: Is a special assessment for street improvements a tax within the meaning of the Constitution of Georgia of 1945? By virtue of the present Constitution, the General Assembly may by statute exempt from taxation all public property. Paragraph IV, Section I, Article VII, Constitution of Georgia of 1945. This constitutional provision was effectuated by the General Assembly in 1946. Section 92-201, Georgia Code Annotated, 1951 Cumulative Pocket Part, Georgia Laws 1946, page 12. It is, therefore, established beyond cavil that all public property in Georgia is exempt from taxation. Thus, if an assessment for street improvement is a tax within the meaning of the word as used in the Constitution, then the conclusion is axiomatic. The word "assessment" comes from the Latin words "ad" meaning "to" and "sedere" meaning "sit" through the Middle Latin "assessare" to fix a note or impose a tax. Thus with limitations, the words "assessment" and "tax" can be employed synonymously. Illinois C. R. Co. v. Decatur, 147 U. S. 190, 37 L. ed. 132, 13 S. Ct. 293. At least a special asl:lessment is in a sense, or broadly speaking, a tax, or it bears a likeness to a tax. 48 Am Jur., Special and Local Assessments 3, p. 565. It is clear that a special or local assessment is not a tax in the sense of a tax to raise revenue for general governmental purposes. Taxes for revenue, or "general taxes" as they are called, are for the support of the government, paid to the State as a State, the consideration of which is protection or public service by the State, whereas, special or local assessments, sometimes called "special taxes," are imposed upon property within a limited area for _the payment for a local improvement supposed to enhance the value of all property within that area. Atlanta v. First Presby. Church, 86 Ga. 730, 13 S. E. 252, Speer v. Athens, 85 Ga. 49, 11 S. E. 802. By general and now almost unanimous concurrence throughout the jurispru- dence of the American States there is an essential difference between the two species of taxation and many rules, whether constitutional or statutory, which govern one are without application to the other. The Supreme Court of Georgia in Hayden v. Atlanta, 70 Ga. 817, pointed up the distinction in the following language:

648
"... the taxation to which that power relates is taxation for revenue, and not local assessments for the improvement of streets which latter are in the nature of an interchange of equivalents between the public and the owners of property locally benefited by the improvements."
The better view and the majority rule is that an assessment for street improvements is not a tax in the constitutional sense. Spring Street Co. v. Los Angeles, 170 Cal. 24, 148 F. 218, L. R. A. 1918 E. 197. This rule obtains in Georgia. Speer et al v. The City of Decatur, 181 Ga. 187.
The Speer case closes this branch of the discussion and inexorably brings into bold relief the main issue. Since a special assesment is not a tax within the constitutional sense and therefore not exempted by force of the statutory exemption granted state property, does a statute authorizing municipalities to assess abutting property owners, for improvements, apply equally to private individuals as well as the State of Georgia or to formulate the issue more concretely-does the City of Augusta, a municipality organized and existing under Georgia law, have the power and authority under Section 69-401, et seq Georgia Code Annotated, to impose an assessment against the State of Georgia as an abutting property owner for street improvements.
A pertinent part of Section 69-404 is in the following language:
"Each lot or. parcel of land abutting upon said improvement shall be charged on a basis of lineal-foot frontage at an equal rate per foot of such frontage with its just pro rata of the entire cost of said improvement, ..." (Emphasis supplied.)
There is no reference made to state property. There is no express provision that state property shall be subject to assessment nor is there any provision exempting state property. However, provision is made for County property. Section 69-425, Georgia Code Annotated, reads as follows:
"Whenever the abutting landowners of any street of said municipality shall petition the governing body as herein set out, or said governing body shall pass the resolution provided for in Section 69-403 for the improvement of any street where the county is owner of property on said street, and the governing body of such county has assented to the proposed improvement and has provided funds to pay in cash its proportionate part of the cost of said improvement, the frontage so owned shall be counted as if owned by an individual for all the purposes of this Chapter and the chairman of the board of commissioners of such county is authorized to sign the aforesaid petition or file objections in behalf of the county."
In the absence of state constitutional restriction, a state legislature may subject state property to liability to special or local assessments, whether or not it does so is entirely a\ question of policy. 48 Am. Jur., Special or Local Assessment, 87, p. 641. A constitutional exemption of the property of the state from "taxation" does not prevent such action by the legislature.
The majority rule is that in the absence of legislative permission, state property is not subject to special assessment. State v. Kilburn, 81 Conn. 9, 69 A. 1023. A municipality has no power without legislative permission to levy a special assessment against state property. State v. Hartford, 50 Conn. 89, 47 Am. Rep. 622, 90 A. L. R. 1143. A grant of the power to levy special assessments on state property is not to be implied from a statute giving a general power to make assessments to meet the cost of local improvements. The intent that the property of the state shall be subject to assessment must be clearly expressed. Hunsville v. Madison County, 166 Ala. 389, 52 So. 326. It is a general rule in the interpretation

649
of statutes to construe them so as not to embrace the sovereign power of government, unless the same is expressly named therein or. intended by necessary implication. State v. Hartford, 50 Conn. 89, 47 Am. Rep. 622. Thus if the statute authorizing the special assessment is in general terms neither excluding nor including specifically the property of the State, such statute is to be so construed as to exclude property of the State. A Georgia statute is of the same purport. Section 102-109, Georgia Code Annotated, is as follows:
"The State is not bound by the passage of a law unless named therein, or unless the words of the act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the legislature."
This section was codified from The Mayor and Council of Brunswick v. King et al, 91 Ga. 522, which declared the common law rule. It is a maxim of the common law that "the King is not bound by any statute if he be not expressly named to be so bound."
This rule is reinforced, if indeed it needs any reinforcement, by the general rule that statutes providing for special or local assessments are to be strictly construed and strictly applied in favor of the owners of the property assessed and against the assessing authority. 48 Am. Jur., Special and Local Asessment, 4, page 567.
Alongside the rule that the sovereign is not bound by a statute unless expressly named to be bound, there has developed a rule of "implied exemption" of public property from local assessment. This approach was set afoot by Judge Bleckley in the celebrated case of City of Atlanta v. First Presbyterian Church, 86 Ga. 731. This was an action by the church to recover from the City of Atlanta the amount of an assessment imposed for street improvements and paid under protest. Although this case is not authority for the proposition of law that a municipality cannot assess the state, nevertheless, Judge Bleckley by way of obiter made the statement that there is an "implied" exception that all public property is exempt from assessment by a municipality in the absence of express authority to so subject the state property. This obiter dictum matured into a full blown rule of law in the case of City of LaGrange v. Troup County, 132 Ga. 384. The City of LaGrange sued the County of Troup for assessment imposed by virtue of paving a street on which the county was the abutting property owner and on which the Courthouse was situated. In affirming the order of the Superior Court sustaining a general demurrer and dismissing the petition the Supreme Court held:
"Where an act of the General Assembly gives a general power to municipal authorities to assess against the property abutting on streets improved a specified percentage of the cost of such improvements, providing for the collection of such assessment by a levy and sale of the property assessed, and there is no provision clearly authorizing such assessment against public property, there is an implied exemption of the property of the county from such assessment."
This rule exempting public property from assessment has been extended to include certain types of regulations by the city. See Newton v. City of Atlanta, 189 Ga. 441.
Although there are no reported cases involving the precise point now under consideration arising under Section 69-401, et seq, Georgia Code Annotated, all of the eases discussed arose under similar statutes.
On the question of the authority of the State of Georgia to contract with the City of Augusta to provide services, broad contractual power is granted by Paragraph I, Section VI, Article VII, Constitution of 1945, Section 2-5901, Ga. Code

650
Ann. However, no opinion is expressed on the specific problem at hand in this regard as there is no evidence of any contractual relationship.
In view of the foregoing, I, therefore, hold that the Department of Agriculture is not liable to pay the assessment attempted to be imposed by the City of Augusta for street improvement.
STATE GOVERNMENT-Tort Liability (Unofficial) Georgia law does not permit a suit against the State for damages suffered
as a result of the negligence of a State employee. Such a claim may be granted by the General Assembly, however.
January 6, 1955
Mr. Nat L. Williams This acknowledges receipt of your letter of December 22, 1954, in which you
seek information as to the form and procedure in filing negligence cases in Georgia. In view .of the facts which you relate, !presume that you are referring to filing a claim against the State of Georgia based on negligence of the driver of the State-owned truck.
There is no provision in the Georgia law permitting a suit against the State in this kind of a case. The only way that you can get your client's claim approved is to get a member of the General Assembly to introduce a bill or resolution before the particular branch of the General Assembly of which he is a member and have the Legislature approve such bill as are other appropriation bills. I am enclosing a copy of the Act of 1952 (Ga. Laws 1952, pp. 169-171) which sets forth the procedure followed after such a bill or resolution has been introduced.
STATE GOVERNMENT-Use of State Funds for Private Individual The state does not have the authority to contribute or donate state funds
for the establishment of museums on private property.
July 25, 1956
Honorable C. E._ Gregory, Director Georgia Historical Commission
I am pleased to acknowledge your request for my opinion relative to the following request made to your Commission:
(1) The Columbus Museum of Arts & Crafts, Inc. has asked the Georgia Historical Commission to make a $3,000.00 contribution for use in opening up several Indian Mounds on the Rood Plantation near Omaha before the mounds are inundated by the Fort Gaines dam, and any relics recovered would become the property of Columbus Museum, a corporation;
(2) The State 4-H Clubs have asked this Commission to contribute $500.00 towards the construction of an Indian Museum at the 4-H Club in Rock Eagle Park, Putnam County, on the property owned by this Club. You ask that I advise as to the legality of complying with either of these two requests. Both of these requests are asking an agency of the State of Georgia to contribute State funds, i.e., one to a private corporation for exploring the property

651
of said corporation for the recovery of relics which would become, if any recovered, the property of the same corporation; the other to a club to construct a museum on the property owned by said club.
Article VII, Section I, Paragraph II (Code Section 2-5402), provides:
"1. The General Assembly shall not by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation or association."
In the case of Atlanta Chamber of Commerce et al v. McRae, 174 Ga. 590, the Supreme Court of Georgia held that the above cited constitutional provision prohibited the Commissioners of Fulton County to donate County funds, derived from taxation or other sources to the Atlanta Chamber of Commerce or the Atlanta Freight Bureau or the Atlanta Convention and Tourist Bureau for the worthy causes and beneficial purposes of those organizations.
Article VII, Section III, Paragraph IV (Code Section 2-5604) provides:
"State aid forbidden.-The credit of the State shall not be pledged or loaned to any individual, company, corporation or association. State shall not become a joint owner or stockholder in or with, any individual, company, association or corporation."
The 1951 Act creating the Georgia Historical Commission as a part of the Department of the Secretary of State, provides that the Commission shall have the duties and powers hereinafter set out:
"(a) To promote and increase knowledge and understanding of the history of this State from the earliest times to the present, including the archaeological, Indian, Spanish, Colonial and American eras by adopting and executing general plans, methods and policies for permanently preserving and marking objects, sites, areas, structures and ruins of historic or legendary significance, such as trails, post-roads, highways or railroads, inns or taverns; rivers, inlets, mill-ponds, bridges, plantations, harbors or wharves; mountains, valleys, coves, swamps, forests or everglades; churches, missions, campgrounds and places of worship, schools, colleges and universities; courthouses and seats of government; places of treaties, councils, assemblies and conventions; factories, foundries, industries, mills, stores and banks; cemeteries and burial mounds; battlefields, fortifications and arsenals, by erecting signs, pointers, markers, monuments, temples and museums with tablets, inscriptions, pictures, paintings and sculptures, maps, diagrams, leaflets and publications explaining their significance.
"(b) To promote and assist in the publicising of the historical resources of the State by preparing and furnishing the necessary historical material to agencies charged with such publicity; to promote and assist in making accessible and attractive to travelers, visitors and tourists the historical features of the State by advising and cooperating with agencies, State, Federal and local charged with the construction of roads, highways and bridges leading to such historical points.
"(c) To coordinate any of its objectives, efforts or functions with those of any agency or agencies of the Federal Government, this State, other States and local governments having duties, powers or objectives similar or related to those of the commission and to cooperate, counsel and advise with them.
"(d) To cooperate, counsel and advise with local societies, organizations or groups staging celebrations, festivals or pageants of historical purpose."

652
Construing the statute establishing the Georgia Historical Commission in connection with the constitutional provisions cited, it is my opinion that the Georgia Historical Commission does not have the authority to contribute or donate State funds to the purposes requested of it by the Columbus Museum of Arts and Crafts, Inc., and the State 4-H Clubs.
STATE GOVERNMENT-Workmen's Compensation The various state departments are not authorized to purchase Workmen's
Compensation Insurance, but must continue their status of being a selfinsurer.
July 18, 1956
Honorable Richard W. Best, Chairman State Board of Workmen's Compensation
I am pleased to acknowledge your letter in which you request an official opinion as to whether or not Senate Bill No. 81, Ga. Laws, 1956, Volume I, page 625, is applicable to proceedings in administering the Workmen's Compensation Act in this State, and if you are authorized to secure Workmen's Compensation insurance coverage of employees and officials .of your department and abandon the present self-insurer status.
Senate Bill No. 81 specifically applies to any verdict, decision, judgment, decree, order, ruling or other judicial action by any court in this State in any matter in which the State of Georgia, or an official of the State of Georgia in his official capacity, is a party defendant, intervenor, respondent, appellee, or plaintiff in fi. fa.
In most of the Workmen's Compensation Acts of the various States, provision is made for the administration or the provisions thereof by a Comimssion, or Board, or other special agency established for such purpose. In some jurisdictions, the provisions of the statute are administered by a body designated as a Compensation Court.
In 58 Am. Jur., Sec. 370, p. 824, the general rule is stated: "A workmen's compensation commission, as ordinarily constituted,
is an administrative body . . . and is not regarded as a court in the ordinary or technical sense of the term, although the performance of its duties and functions may involve the exercise of powers of a judicial nature." In 71 Corpus Juris, Section 655, pp. 917-918, the general rule is stated:
"... as a general rule it has been held that such a board is an administrative body, belonging to the executive department of the state ... and, that although some of its powers are quasi judicial or judicial in their nature, and although it may perform some incidental judicial functions, it has no judicial power within the general acceptation of that term or in the sense in which the term is used in constitutions, and the members are not considered as judicial officers, nor as a judicial body, nor as a court of general nor even of limited common-law jurisdiction." Georgia, in a number of cases, has followed the general rule as above stated. See Aetna Life Ins. Co. v. Davis, 172 Ga. 258; Gravitt v. Georgia Casualty Co., 158 Ga. 613; and United States Casualty Co. v. Smith, 42 Ga. App. 774. It is my opinion, under the above cited authorities, that the State Board of

653
Workmen's Compensation of Georgia is an administrative board for the administration of the Georgia Workmen's Compensation Act and is not a court or a part of the judiciary of this State, and therefore Senate Bill No. 81 is not applicable to the State Board of Workmen's Compensation.
For your information, it is an e::;tablished rule of the State Department of Law that each agency of the State shall be represented before the State Board of Workmen's Compensation by the Assistant Attorney General assigned to the agency or department against whom 11- claim may be filed under the Workmen's Compensation Act. I am attaching a copy of the present assignments in order that you may provide your docket clerk with the names of the Assistants so that they may be advised when a claim is assigned for a hearing.
The General Assembly has not as yet made an appropriation for the payment of Workmen's Compensation claims against the State of Georgia, although the employees and officials of the State were brought under the provisions of the Workmen's Compensation Act several years ago. The only method of paying compensation claims is under the State Budget Bureau's rules and regulations, which require that all Workmen's Compensation claims against departments and agencies of the State must go to a hearing before the State Board of Workmen's Compensation and if the Board, after hearing the evidence in the matter, determines that the employee or official is entitled to compensation under the provisions of the Workmen's Compensation Act and issues its award giving its findings, the Budget Bureau, upon application of the department head of the department against whom the award is issued will make available funds upon a quarterly basis for the payment of such award if the Budget Bureau has funds available at the time that such budget request is made by the department head.
It is my opinion that in the absence of specific legislative authority you would not be authorized to change from the status of a self-insurer and purchase Workmen's Compensation insurance covering the officials and employees of your department.
STATE PARKS-County Advisory Committees (a) It is necessary to appoint a county advisory committee from the
county or counties in which each state park is located. (b) The State Parks Department has police powers over State Parks.
March 8, 1955
Honorable John M. Mann, Assistant Director Department of State Parks, Historic Sites and Monuments
It is a pleasure to furnish you the information requested on the two questions propounded, as follows:
1. Is it required that a County Advisory Committee from a county in which each State park is located and operated be appointed and, if so, for what term and what are their duties?
2. Who has police powers in areas comprising the various State Parks? In answer to Question 1, I refer you first to Section 43-122 of the Code of Georgia Annotated (Supplement) which in part .reads as follows:
"'Park,' 'recreational area,' 'land' defined.-As used in this Chapter, the terms 'park' or 'recreational area' shall signify and embrace any land which, by reason of natural features, scenic beauty, with or without histor-

654
ical, archaeological, or scientific buildings or other objects thereon, possesses distinctive, innate, or potential physical, intellectual, creative, social, or other recreational or educational value or interest. . . ."
Also, Section 43-124, Georgia Code Annotated (Supplement) reads in part, as follows:
"Powers and duties.-In addition to the other powers herein granted,
the Department is empowered and directed: * * *
"(i) Regional councils. To appoint, at the discretion of the Commissioner, local and regional councils to consider, study, and advise in the work of the Department for the extension, development, use and maintenance of any area or property for which appointed. The Commisisoner of Conservation and the Director shall be ex-officio members of all councils so appointed."
You will note that the above quoted Code Section is purely discretionary on the part of the Commisisoner who is in fact the Governor.
Section 43-129, Georgia Code Annotated (Supplement) would be controlling as to the question propounded by you and as you will note is mandatory upon the Governor. This Section reads, as follows:
"County advisory committees; appointment, duties.-The Governor is hereby authorized and directed to appoint an advisory committee of five substantial citizens residing in each county in which is located and operated a State park. Said committee shall be appointed for a term of four years and shall keep in close touch with the operation of the State park or parks in the commitee's county and report to the Governor and the Director of t]<e Department of State Parks, Historic Sites, and Monuments as to the efficiency and desirability of the operation of the park. Any complaint in reference to the operation or conduct of the park may be made to the local committee, which said local advisory committee shall submit the same to the Governor and said Director."
This question, although a general one, was specifically made in connection with the Stephen Collins Foster State Park, and as to whether the Committee might be appointed from Clinch County since the citizens of Clinch County are the ones primarily intertested in this park. The major portion of this park apparently lies in Charlton County but from my best information a portion of the property leased from the Federal Government consisting of easements, boat ways, etc., may lie in Clinch County, in which event, under the above quoted Code Section, it will be necessary to appoint committees from both counties of Charlton and Clinch.
In answering your second question above set out, I call your attention to that portion of Section 43-124, Georgia Code Annotated (Supplement) being a part of the Act creating the Department of State Parks, Historic Sites and Monuments, and reads as follows:
"Powers and duties.-In addition to the other powers herein granted,
the Department is empowered and directed: * * *
"(j) Rules and regulations; peace officers.-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 and to preserve the peace therein. The Commissioner is hereby empowered to confer on the Director and such other employees as he may designate the full authority of peace officers for all land and property under its control."

655
The language above set out, contained in said Code Section 43-124, appears to be so clear that I do not believe it is necessary to further comment thereon.
STATE PARKS-Necessity of Title The State can make permanent improvements on State parks which it
owns in fee simple.
October 6, 1955
Honorable John M. Mann, Assistant Director Department of State Parks, Historic Sites and Monuments
In reply to your letter concerning certain lands on the Chatuge Reservoir which have been offered by TVA to the State of Georgia for parks, roadside parks, and public access purposes, it is a pleasure to give you my opinion concerning the acquisition of the property and the establishment of a park in Towns County.
I have examined the lease between Tennessee Valley Authority and Towns County which you state would be transferred by Towns County to the Parks Department and find that said lease, dated January 30, 1946 expires on June 30, 1956, subject to renewal for nine years from that date, but which, however, may be terminated by either party thereto upon that date. Even if Towns County did transfer this lease to the Parks Department you would only have an assurance of any estate in said property until June 30, 1956.
You further stated in your letter that TVA plans to convey title to this property to the State, but you will not receive this deed for several months. It is my opinion that since you would be assured only the short time of any estate in this property that such short estate would not meet the laws and budgetary rules as to expenditure of funds for permanent improvements on such property.
I refer you to a resolution of the General Assembly passed at its JanuaryFebruary Session of 1953 (Ga. Laws 1953, Jan.-Feb. Sess., p. 131) in which the General Assembly authorized the Governor and Director of State Parks to negotiate with the proper TVA authorities in securing title or lease in the name of State of Georgia and that the said State Parks Director, upon obtaining said title or lease and the same being approved by the Attorney General shall be authorized to erect permanent improvements and facilities for a State park on said land. I do not believe this contemplates such short tenure and that until a proper deed conveying fee simple title to said property is secured you would be unauthorized to expend funds for permanent improvements on this property.
STATE PROPERTY-Acquisition of Lease of Land The State may accept a lease on property where, (a) no valuable
perman.ent improvements are to be placed on the land, and (b) a policy of title insurance is procured.
June 17, 1955
Honorable Guyton DeLoach Director, State Forestry Commission
You have requested my opinion on questions relative to a proposed conveyance by tlie Interstate Land Company at Macon, Georgia, to the Georgia Forestry

656
Commission for a period of twenty (20) years, with a right of renewal for a like period, of a tract of land in Pulaski and Bleckley Counties.
It is stated that this property is first class farm lands, having a value in excess of one hundred dollars per acre, and that the Interstate Land Company is willing to convey it to the Forestry Commission for twenty (20) years with an option to renew for a like period, for no monetary consideration other than the general public benefit to be derived from the scientific data which the Commission will derive from the project and make available to the forest land owners of this State. In this respect, it is understood that the Commission will conduct a tree genetics project on the land devoted to the culture and development of improved seeds, and that the Commission by accepting the conveyance will be saved enormous expense which otherwise would be incurred in paying the purchase price for such valuable lands.
In the past, I have consistently refused to approve conveyances of land to the State containing reversionary clauses where it was anticipated that permanent improvements would be placed on the land at state expense, and which the State would thereby stand to lose in the event the property was ever abandoned as to the uses prescribed in the respective deed. See Op. Atty. Gen., 1952-53, pp. 109, 170, 357, 359 and 502.
One exception to this rule has been where the improvements, though considered "permanent" in the sense that under general principles of law they would become a part of the realty, were of such a nature as to be easily removable without material damage thereto, and the deed or other instrument of conveyance contained a clause giving the State the right to remove these improvements either before or within a. reasonable time after abandonment by the State. One such example arose with references to forest fire lookout towers which from their physical size and character may be easily moved about. See Op. Atty. Gen., 19521953, p. 359. Large permanent structures, however, which can not be transported about feasibly, could not come under this rule.
Similarly, I have withheld approval of leases to the State, on the basis that the same problem would arise as in the case of reversionary clauses, since after termination of the leasehold, the permanent improvements placed on the property at State expense, having become a part of the realty, would revert to the fee simple owner, thereby representing a loss to the State. Where, however, no valuable permanent improvements are to be placed upon the property, this rule would not apply.
The comprehensive act revising the laws relating to the Forestry Commission (Ga. Laws 1955, p. 309; Code Ann. Supp., 1955, 43-207; Compilation, p. 9, 2), provides that,
"The Commission shall have the right to acquire, in the name of the State, by purchase, lease, agreement, or condemnation, such land within the State as may be deemed necessary and proper ..."
It is thus clear that the Commission is authorized to accept, in the name of the State, leases of property.
Where, however, it is anticipated that permanent improvements are to be placed thereon at State expense, the Code Ann., Supp., 91-117, provides:
"Any real estate owned or acquired by the State of Georgia may be improved with funds appropriated for a State Department provided the head of the Department affected and the Budget Bureau, consisting of the Governor and the State Auditor, consent to such use of such funds." The budget bureau has interpreted this section administratively to mean that

657
the State must have absolute fee simple title before conveyances are acceptable where permanent improvements are to be placed on the conveyed property.
However, I have consulted with the responsible officials and it has been determined that this interpretation should not apply in its entirety in this instance, subject to the conditions hereafter stated.
First, no valuable permanent improvements are to be placed upon the property. In this respect, I am informed that the trees which you anticipate planting on the conveyed property will, because of the function which they are to serve, never reach maturity so as to have any value as timber or otherwise, and that the sole value of the trees will be expended in the operation of the scientific project.
Second, a policy of title insurance should be procured. The budget bureau has, as an administrative matter, always required such policies of insurance as to fee simple conveyances upon which permanent improvements were to be placed at State expense. In this instance, no permanent improvements will be placed on the property, but it is anticipated that considerable expense will be incurred with respect to the property in the planting and cultivation of trees, and if the title should fail, the State might stand to lose this investment at a time when the seed trees had not progressed to the point where their utility and value had been recognized by the State.
Also, as a matter of practice, it would probably be advisable to procure a survey and plat of the property to be conveyed.
After the deed has been executed and recorded, the plat prepared, and the title insurance procured, a letter should be sent to the State Properties Commission, c/o the Auditor's Department, setting forth the foregoing, and requesting approval. After this approval has been obtained, you will be authorized to go ahead and spend available funds held by you for this project.
STATE PROPERTY-Authority to Encumber
State Department of Public Welfare does not have the legal authority to grant an easement to private parties to allow them use of State sewerage facilities and to encumber State property.
January 12, 1954
Honorable Alan Kemper, Director State Department of Public Welfare
Replying to your letter of December 29, 1953, in which you transmitted to me engineering sketches and copies of a proposed easement in connection with a proposed sewer line across the property of the Milledgeville State Hospital, I am pleased to advise that I have examined these documents which appear to be a request by a private housing development for an easement for use of a fifty-foot wide strip of land owned by the State in Baldwin County, Georgia, for the purpose of running an eight-inch sewer line and erecting on the surface of such strip of land pillars and vents, and to be attached to and emptying into an existing sewer owned by the State Department of Public Welfare. This proposed easement would allow such private development to go across, under, along, over, through and within this strip of land for a considerable distance, as shown on the plan attached to said documents, and use State property for private use.
I do not find where the State Department of Public Welfare has any legal authority to grant such an easement which would encumber State property and

658
allow the use of State sewerage facilities by private parties. It is my view that a proper procedure would be for this matter to be passed upon by the General Assembly of Georgia, and that the State Department of Public Welfare does not have authority to enter into such encumbrance and use of State property by private enterprise.

STATE PROPERTY-Insurable Interest
State has insurable interest in permanent improvements placed on property leased by the State from the Department of the Army, and sub-leased to a private individual who intends to construct the improvements.

May 9, 1956

Honorable John M. Mann Assistant Director Department of State Parks

This is in reply to your letter of May 2nd in regard to property under license from the United States Corps of Engineers, Department of the Army, known as Red Top Mountain State Park Area, for a period of 25 years beginning November 13, 1950, a portion of said area having been sub-leased to Mr. John King, on which he intends at his own expense to place certain permanent improvements, and in which you propounded the following questions:

1. Does the State have an insurable interest in those improvements attached

to the realty?



2. Should this Department (or the Executive Department) carry any insurance on these buildings ?
3. If so, in what amounts should this insurance be carried?
Under Code Sections 91-403 and 91-404, 1933 Code of Georgia, the following provisions are made:
"91-403. The Governor shall keep insured, at one-half their value, all of the public buildings of the State and the State Library. (Acts 1882-3, p. 26)."
"91-404. The Governor is authorized to draw his warrant upon the treasury annually for the sum of $5,000, or for so much as may be necessary to carry into effect the foregoing section. (Acts 1882-3, p. 26.)"
In answer to your question No. 1, since the sub-lease to Mr. King contains certain cancellation clauses, should the same be cancelled at any time prior to the expiration of the sub-lease, then in that event all permanent improvements attached to the realty, which are classified as realty according to the law, would become the property of the State. The State therefore does have an insurable interest therein.
I believe the sections of the Code set out above would answer questions 2 and 3, in that they impose upon the Executive Department the obligation to carry insurance amounting to 50% of the value of all public buildings of the State.

659
STATE PROPERTY-Sale of Livestock on
(a) Livestock on State property belonging to the State can be sold only through the Purchasing Department, or slaughtered only for the use and benefit of State institutions.
(b) Livestock on State property belonging to some entity other than the State shall be disposed of as provided in Code Sections 62-1605 and 62-1606.
November 28, 1956
Honorable Fulton Lovell, Director State Game and Fish Commission
In reply to your letter in regard to disposal of hogs that are located on property belonging to the State of Georgia in Mcintosh County, I refer you to the following provisions and sections of the Code of Georgia:
" 91-506. Sale of livestock and swine belonging to state.-No livestock and/or swine belonging to the State of Georgia, or any agency, board or department of this State, shall be sold or otherwise disposed of, except as defined in Sections 91-507 and 91-508. (Acts 1945, p. 339.)"
" 91-507.-Same; advertisement; limitation to public auction to farmers.-Livestock and swine belonging to the State of Georgia, or any agency, board or department of this State, whenever sold, shall be advertised for sale in a newspaper of general circulation including the State Market Bulletin for 10 days and all livestock and swine shall be sold at public auction only to farmers of the State of Georgia. (Acts 1945, p. 339.)"
" 91-508. Same; limitation of other disposition to State institutions. -All livestock and/or swine belonging to the State of Georgia, any agency, or department of this State, whenever disposed of, other than sale, shall be slaughtered for the use and benefit of State institutions. (Acts 1945, p. 339.)"
Assuming that the hogs you refer to are property of the State of Georgia, the above provisions may be followed, but if sold, they should be sold through the Purchasing Department in compliance with these code sections. If they are to be slaughtered, then, in that event, they can be slaughtered only for the use and benefit of State institutions as set out in Code Section 91-508 above cited.
Assuming the hogs you refer to are not the property of the State but are the property of some other entity and are running at large or straying upon the property of the State, then the following code sections would be applicable:
" 62-1605. Duty of officers to impound; impounding by others.It shall be the duty of the sheriff or his deputies or any other law enforcement officer of the county where livestock is found to be running at large or straying, to take up, confine, hold and impound any such livestock, to be disposed of as hereinafter provided. Owners of farms or persons operating farms for such owners may likewise impound such livestock the same as the sheriff, provided such livestock is kept in a suitable place and cared for properly, and shall receive the same fee for feed and care as is provided for the sheriff under this Chapter. If such person impounds livestock, it shall be his dhty immediately thereafter to notify the owner thereof if known, but if the owner is not known or determined within three days it shall then be his duty to notify the sheriff of such impoundment, and it shall then be the duty of the sheriff to pick up such livestock

660
as soon as possible and he shall then follow the procedure set out herein just as if he had originally impounded such livestock. (Acts 1953, pp. 380, 381; 1953 Nov. Sess., pp. 395, 396.)"
" 62-1606. Notice to owner of impounding and sale.-Upon the impounding of any livestock by the sheriff or his deputies or any other law enforcement officers of the county, the sheriff shall forthwith serve written notice upon the owner, advising such owner of the location of place where the livestock is being held and impounded, the amount due by reason of such impounding, and that unless such livestock be redeemed within three days from date thereof that the same shall be offered for sale. In the event the owner of such livestock is unknown or cannot be found, service upon the owner shall be obtained by once publishing a notice in a newspaper of general circulation where the livestock is impounded (Sundays and holidays excluded). If there be no such newspaper then service shall be obtained by posting of the notice at the courthouse door and at two other conspicuous places within said county."
The above provisions for the disposal of hogs by the State appear to be the only two legal courses which you may follow.

STATE PROPERTY-Sale of Surplus
Discusses procedure for the sale of supplies, materials, and equipment which are surplus, obsolete, or unused.

May 28, 1956

Honorable. C. L. Shaw Supervisor of Purchases

I am pleased to acknowledge your letter requesting an official opinion as to

your authority to sell supplies, materials and equipme)lt which are surplus,

obsolete or unused.

-

.

You also asked to be advised if you have authority to sell to the fourth highest bidder when the first three highest bidders refuse to accept junk tires and batteries upon which they bid.
Your first question is controlled by Section 40-1902 of the 1933 Annotated Code of Georgia, 1955 Cumulative Pocket Part, which prescribes the duties, power, and authority of the Supervisor of Purchases and which provides:

"40-1902. The Supervisor of Purchases shall have power and authority and it shall be his duty subject to the provisions of this Chapter:

* * *
"E. To have general supervision of all storerooms and stores operated by the State Government, or any of its departments, institutions, or agencies; to provide for transfer and/or exchange to or between all State departments, institutions, and agencies, or. to sell all supplies, materials and equipment which are surplus, obsolete or unused; ..."

Under the above quoted provision of the Code, you are clearly authorized to sell all supplies, materials and equipment, which are surplus, obsolete or unused when requested to do so by any department, institution or agency of the State Government.

You will specifically note that your authority is restricted to supplies, materials and equipment and would not extend to other properties which under Code

661
Section 91-804, et seq. must be disposed of by the Governor as provided in said secti.on.
While the purchasing act does not specifically require it, I would suggest as an administrative procedure that competitive bids in writing be received on all surplus, obsolete or unused supplies, materials and equipment which you may be called upon to sell, in the event that you are not able to provide for transfer and/or exchange to or between State departments, institutions, and agencies.
Your second questions, as I understand it, is predicated upon a request by the State Highway Department to dispose of a quantity of junk tires and batteries upon which there were received six competitive bids, and after receiving the bids the highest bidder was notified and he refused to accept, then the second highest bidder was notified and he refused to accept, and the third highest bidder was notified and he refused to accept, and that you have now notified the fourth highest bidder that he may purchase the items at the fourth highest bid price.
There are two administrative alternatives available to you. First, you may reject all bids and call for new bids, in the event that you feel that it would be to the best advantage of the State. Or, taking into consideration whether or not you would receive a bid equal to the present fourth highest bidder or suffer a loss by receiving lower bids, and also the continuing deterioration of the items under consideration or any other factor which would make you conscientiously feel that the present fourth highest bid would be advantageous to the State, such bid may be accepted.
As a precautionary measure, you would be authorized to require the deposit of a certified or cashier's check in an amount of at least ten percent of the bid of any person bidding on the sale of the items under consideration.
STATE PROPERTY-Sale of Surplus Property It is illegal for items to be purchased by a trooper of the State Depart-
ment of Public Safety through the Supervisor of Purchases.
July 25, 1956
Honorable C. L. Shaw I am pleased to acknowledge your request as to your authority to dispose of
surplus boots, breeches, Sam Brown belts, and blouses, which may have become surplus property due to a change in the uniform of the members of the Uniform Division of the Department of Public Safety.
This department has heretofore given you its opinion relative to your authority to dispose of surplus and nonusable personal property of the various departments of the State Government, with which you are familiar. However, the question propounded by you does not come within the purview of that opinion for the reason that you ask if it is permissible to sell the articles to the individual troopers who now have these articles in their possession after a per-each bid has been received.
Section 40-1936 of the 1955 Cumulative Pocket Part of the 1933 Annotated Code of Georgia, provides:
"It shall be unlawful for any employee or official of the State of Georgia to purchase directly or indirectly, through the Supervisor of Purchases, or through any agency, department,- board or bureau of the State, any article, material, merchandise, ware, commodity, or other thing

662
of value for the personal or individual ownership of himself or other person or persons ..." It is my opinion that it would be illegal for the items in question to be purchased by a trooper of the State Department of Public Safety through the Supervisor of Purchases. All surplus non-usable personal property of the State should be disposed of by sealed bids to the highest bidder after proper notice to interested parties according to the opinion previously given to you, and any bid received by an employee or official of the State should not be considered by you in determining the highest bidder at such sale.
SURETYSHIP-Right of Surety (Unofficial) A surety who completes a contract when his principal defaults is. entitled
to monies due to the principal, only to the extent of the actual expenses of the surety.
February 29, 1956
Finance Officer Headquarters, Third Army
Major Earl Bodron, CE, has referred to the State Law Department the matter of final payments of joint, state, local and federal funds due under the above contract.
On June 1, 1954, Andru Construction Company of Atlanta, Georgia, entered into the contract with the State of Georgia for the construction of a one unit armory at Americus, Georgia, for the contract price of $87,182.00. The work was almost completed when Andru Construction Company dissolved, disappeared, and their whereabouts have now become unknown.
Pacific National Fire Insurance Company, the surety on the contract, completed the job, my information being that the principal work performed by the surety consisted mainly of completing and replacing some guttering, the cost of which to the surety did not exceed much above $2,000.00.
In addition, the surety was required to pay several materialmen's bills owing by Andru Construction Company on the job, and I am informed by Mr. Leslie F. Wells, Associate Counsel for Pacific National Fire Insurance Company, that the surety has been required to spend something in excess of Eight thousand dollars in completing the contract and satisfying bills, the exact amounts of which can be supplied by Mr. Wells.
Of the contract price of $87,182.00, the sum of $74,251.26 has been paid, representing $18,562.82 in state and local funds, and $55,688.44 in Federal funds, leaving a balance of $12,930.74 due on the contract which is now claimed by the surety. I assume that part of this balance is represented by the 10o/o required to be retained until final completion and acceptance under Section 7(b) of the contract.
The question now remains as to whether or not the surety is entitled to receive any or all of the remaining sums due the contractor, and if so, how much thereof; also, what procedure is to be followed in making the disbursement.
While, as previously herein stated, I construe the surety's position to be that it is entitled to the entire sum remaining unpaid on the contract, I am of the opinion, based on considerable study, that the surety is only entitled to receive reimbursement for the actual amounts spent by it completing the contract and

663
in satisfying all materialmen and laborer's bills as expressly required of it under the contract of suretyship. (NGB Form 12, May 1, 1952).
In 9 Am. .lur. 72, 114, it is said:
"The general rule with respect to the right of a surety of a building contractor who completes the contract upon default by the contractor, to moneys in the hands of the contractee, earned by the contractor before default, is that upon the completion of the contract the surety is entitled to be subrogated to the rights which the obligee had to, or could assert against, such funds upon the principal contractor's default to the extent necessary to reimburse himself for the outlay made to complete the contract." (Emphasis supplied.)
Of course, the right of the surety to subrogation is dependent upon his making full satisfaction for the contractor's default (43 Am. Jur. 939, 197) which in this instance, would include execution of the necessary affidavits guaranteeing payment of all materialmen and laborer's liens, required to be executed by the contract terms.
The crux of the problem is answered by the legal principle that upon completion of the job done by the surety, the latter is subrogated not to the rights of the contractor, but rather to the rights which the state would have had in the funds remaining unpaid after default. This principle was fully stated in the land-mark and much-cited case of Prairie State National Bank v. United States (1896), 164 U. S. 227, 232, 41 L. Ed. 412, 416, 17 S. Ct. 142:
"Hitchcock's right of subrogation, when it became capable of enforcement, was a right to resort to the securities and remedies which the creditor, the United States, was capable of asserting against its debtor, Sundberg & Company, had the security not satisfied the obligation of the contractors, and one of such remedies was the right based upon the original contract to appropriate the 10 per cent retained in its hands.
* * *
"The right of Hitchcock to subrogation, therefore, would clearly entitle him when, as surety, he fulfilled the obligation of Sundberg & Company to the government, to be substituted to the rights which the United States might have asserted against the fund. It would hardly be claimed that if the sureties had failed to avail themselves of the privilege of completing work, they would not be entitled to a credit of the 10 per cent reserved in reduction of the excess of cost to the government in completing the work beyond the sum actually paid to the contractor, irrespective of the source from which the contrator had obtained the material and labor which went into the building."
In Lacy v. Maryland Casualty Co. v. Murchison Natl. Bank (CCA 4th 1929) 32 F2d 48, 53(5) holding the surety entitled to prior rights to both the retained percentage as well as funds currently due the contractor, it was said:
"The surety's right of subrogation extends only so far as may be necessary for its reimbursement, and any funds remaining thereafter should be applied to claims of assignees or other persons entitled thereto. . . . The casualty company, therefore, was not entitled under the principles of subrogation to the profit derived from this contract...." So far as the writer has been able to ascertain, the only case on point ever to arise in the courts of this State is the case of Fulton National Bank v. Fulton County (1915) 144 Ga. 691, 693 (2), 87 S. E. 1023, where the Supreme Court cited the Prairie case, supra, in upholding the right of the surety by way of subrogation

664
to the funds remammg unpaid in order to partially reimburse itself for the expenses of completing the work after default of the contractor. Although in that case the surety was held entitled to the entire funds remaining unpaid, due to the fact that the cost of completion exceeded those unpaid funds (whereas in the instant case it appears that the remaining funds will exceed the costs to the surety), it is very clear that the Georgia Court was adopting the general rule as hereinbefore referred to, for it was stated:
"2. Under the contract the county might have completed the work itself; and had it done so, the contractor would not have been entitled to receive any further payments until the work was wholly finished, and then only if the balance to be paid under the contract should exceed the expense incurred by the county for finishing the work. If the expense should be more than such unpaid balance, the contractor would be liable to the county for the difference." (Emphasis supplied.)
In other words, the surety completing the contract is subrogated to the rights the state would have had in the funds remaining unpaid had the state elected to finish the job rather than to call upon the surety; this right of the state would have been to withhold all payments, complete the contract at its own expense and deduct from the contract payments due the contractor, the amount required by the state to complete the job, with the added right of calling upon the contractor or surety to pay any amounts by which the cost of completion exceeded the payments due; since the surety is subrogated to the rights of the state against the fund, rather than to the rights of the contractor, the surety is entitled only to be reimbursed for its actual expense; and lastly, if any funds remain thereafter, they must be held by the state subject to demand of the contractor should he ever reappear and make claim therefor.
The beforgoing discussion represents apparently the uniform holding: See the many cases annotated in 45 ALR 379; 134 ALR 737; and 164 ALR 613; also, 43 Am. Jur. 943, 200.
The Georgia Code, 103-308, expressly provides that a surety discharging the obligation of the principal is thereby subrogated to the rights of the obligee against the principal.
It is believed that the only way the surety could be entitled to the funds above and beyond the amount required to reimburse it, would be by an actual or legal assignment, which would be subject to the Federal Anti-Assignment Statutes, 31 U.S.C.A. 202 et seq.
Incidentally, it might be well to note here that the Anti-Assignment Statute has been held not applicable to "equitable assignments" or assignments by operation of law. United States V. Aetna Casualty & Surety Co. (1949), 338 U. S. 366, 94 L. Ed. 171, 70 S. Ct. 207, 12 ALR 2d 444; United States v. Shannon (1952) 342 U.S. 288, 96 L. Ed. 321, 72 S. Ct. 281, and the many cases annotated in 12 ALR 2d 461,480.
Therefore, based upon the foregoing, I am of the opinion that upon presentation of vouchers in due and proper form from the surety, stating the amounts expended by the latter in completing the contract and paying all outstanding bills therefore, and the execution by the surety of the required affidavits as to payment of all bills, subject to approval of the Department of Defense, it would be the obligation of the State of Georgia to reimburse the surety to the extent of its actual expenditures; if any funds then remain, it would be incumbent upon the state, as as to the federal funds, the United States, to retain said funds on account for the contractor, should he ever assert his rights thereto. Of course, the state could agree with the surety to reimburse the latter out of this fund for any addi-

665
tiona! amounts which the surety mig}lt have to pay in the future in satisfying materialmen's and laborers' bills which might be presented hereafter. Should the contractor fail to ever claim these funds, I presume they would escheat to the state and to the United States, in the proportion of their respective contributions, although no attempt has been made to resolve this contingency.
TAX ASSESSORS-Duties and Responsibilities (Unofficial) Law quoted relating to the time the tax returns are to be presented to
the county tax assessors and .the time they are to be returned to the county tax receiver.
May 17, 1955
Honorable C. Edwin Hall Tax Receiver Baker County
This is in response to your letter of May 11, 1955 in which you state: "I would greatly appreciate it if you would .give me the law on
.what date County Equalizers are supposed to get the Tax Digest from the Tax Receiver and what date they are supposed to return same to Tax Receiv~r." I believe the following Code Sections will answer the questions propounded in your letter:
"92-6902. When tax receiver shall present returns to county assessors.~Within 10 days after the first day of April of each year the tax receiver of each county shall present the tax returns of the county for the current year to the county board of tax assessors created by this Chapter for the purpose hereinafter contemplated and provided."
"92-6917. Revision and assessment to be completed when. Digest sent to State Revenue Commissioner.-The county boards of tax assessors shall complete their revision and assessment of the returns of taxpayers in their respective counties by June 1 of each year. The tax receiver shall then immediately forward one copy of the completed digest to the State Revenue Commissioner for examination and approval." It trust that the above-quoted information will be of assistance to you in the discharge of your duties as Tax Receiver of Baker County.
TAX ASSESSORS-Government Employment (Unofficial) A Tax Assessor may not hold any state, county, or municipal office, but
he can be an employee of any of the branches of government.
May 23, 1956
Mr. W. D. Hammack I am pleased to acknowledge your letter stating that you had been appointed
as Tax Assessor of your county, and that you had been advised if you accept this position you would be ineligible to hold any other State, county or municipal office during the time that you serve as Tax Assessor and for one year thereafter.
You asked to be advised if this limitation would prevent you from becoming an employee of. the State, county or municipal government during that period.

666
Section 92-6907 of the 1933 Annotated Code relating to Tax Assessors 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. But they may be reappointed to succeed themselves as members of said board." The Court of Appeals of Georgia in the case of Andrews et al. v. Butts County et al., 28 Ga. App. p. 302, held:
"The office of a country registrar is not 'a county office' within the meaning of the statute which provides that a member of the board of county tax-assessors shall be ineligible to hold any other State, county, or municipal offices and not employees of either. Under the reasoning of this decision, it would appear that the Court of Appeals interpreted the statute in question to apply only to State, county, or municipal offices and not employees of either.
TAXATION-Ad Valorem Tax-Liability (Unofficial) A person resident in the state on January first is liable for ad-valorem
taxation for the entire year, as there is no provision for prorating of taxes.
August 20, 1954
Mr. Willard T. Johnson You state that you were a resident of the State of Georgia on January 1, 1954
and moved from the State of Georgia on July 10, 1954. You ask the question as to whether or not you are required to pay taxes on the property owned and returned by you for taxation January 1, 1954, or whether or not you can pay for that portion of the year you lived in Georgia.
Code Section 92-6202 of the 1933 Code of Georgia is as follows: "What property returnable.-The individual returns made by tax~
payers to the tax receiver shall be for property held and subject to taxation on the first day of January, next preceding." As a matter of law, you are liable for taxes for the entire year, although you moved from the State on July 10. There is no provision under the Georgia Law by which a taxpayer is allowed to prorate the taxes on his property according to the length of his residence in the State. The question as to the procedure in the collection of the tax is a matter which addresses itself to the [local] Tax Collector.
TAXATION-Ad-Valorem Tax-Liability (Unofficial) Owner must return and pay tax on automobile owned on January first
and subsequently sold, and is not required to return or pay tax on automobile bought after January first.
February 24, 1955
Mr. J. E. Lovett Tax Commissioner Cook County
In your letter of February 15, 1955, you request a ruling from the Law Department on the following state of facts: On January 1, 1955, an individual

667

owns a 1950 automobile. He trades this automobile sometime after that date and

makes a tax return on the 1950 automobile.

Title 92-6202 of the Georgia Code provides that taxpayers shall return all

property held and subject to taxation on January 1 of the year in which the tax

return is required. Under the facts set out by you above, for the year 1955 the

taxpayer would be liable for property tax on his 1950 automobile since he owned

that automobile on January 1, 1955. He would not be liable during 1955 :for the

tax on the automobile for which he traded. The owner of the automobile for which

this taxpayer traded the 1950 automobile would be liable for the tax on that

automobile if he owned it January 1, 1955. In any event, the owners of both

vehicles on January 1, 1955, are liable for the tax.

You ask a further question, whether an individual who does not own a car on

January 1, 1955, but buys one in January or February or later must make a

return and pay the tax on that automobile.

.

The answer to the first question also answers this question. If an individual

does not own an automobile on January 1, 1955, he. would not be liable for the

tax on that automobile where he purchases it subsequent to January 1.

TAXATION-Ad-Valorem Tax-Liability (Unofficial) Tax Commissioner is not responsible to handle an account in a manner
so as to permit a firm owning property on January first to require subsequent purchasers of lots to pay the ad-valorem taxes due thereon.
March 10, 1955
Honorable John W. Winkle, Jr. Tax Commissioner, Floyd County
This will acknowledge receipt of your letter of February 28, 1955 in which you request our opinion as to the following set of facts:
"A firm sub-divided a piece of land into a number of lots, a tax return was made for the year 1954 on these lots. After the rate was set and the tax receipts were made they asked for partial payments on some of these lots which were given, then at the close of the taxable year they wanted to pay the balance due on all of the lots with the exception of some ten or tw(!lve and leave these for us to collect from the individuals. Now is it the place of the Tax Commissioner to handle this account in this manner?" Section 92-6202 of the Georgia Code Annotated provides as follows:
"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."
The lien for taxes due the State is against not only the owner but also his property, regardless of judgments, mortgages, sales, transfers or encumbrances of any kind. Armour Fertilizer Works v. Durrence, 176 Ga. 519. The owner of said property, as provided by the above Code Section,. shall return it on the first day of January. After it is returned, not only does the property but the individual becomes liable for the taxes due thereon. It matters not whether the individual returning the property for taxation later disposes of certain portions of it; that individual and the land so returned are liable for the ad valorem taxes.
It therefore can be seen that the tax commissioner is not responsible to

668
handle the account as stated in the facts above in the manner as indicated, but the responsibility of paying the tax is on the owner of the land who was such as of the first day of January.
TAXATION-Ad Valorem Tax-Loan Companies (Unofficial) The paid in capital stock of a loan company is not subject to ad-valorem
tax.
September 24, 1954 Mr. Hugh McGukin
You request my unofficial opinion as to whether the paid in capital stock of a corporation engaged in a general loan business is subject to ad valorem property tax. You indicate that you were advised that the capital stock of such a corporation is subject to ad valorem taxation in the same manner that the capital stock
of a bank is subject to ad valorem taxation.
National and State banks are taxed differently than ordinary corporations in that the capital stock of a bank is subject to ad valorem taxation, wherein the capital stock of a corporation engaged in a general loan business is taxed by assessment upon the stock certificates in the hands of the owner for intangible tax purposes.
TAXATION-Ad Valorem Tax-Military Personnel (Unofficial) (a) Military personnel who are residents of Georgia are required to pay
personal property tax, even though they are not physically present in the state.
(b) An automobile license tag cannot be purchased unless the application is accompanied by an affidavit that ad valorem taxes have been paid on the vehicle.
June 26, 1956 A/1C Edward Hayth
I understand from your letter that you are a citizen of Cedartown, Georgia, but have not resided in that city since 1947, at which time you entered the Armed Services of the United States. You further state that your home address is Cedartown, Georgia, and that it has been your practice to purchase Georgia automobile license plates for your automobile during the period you have been in service. You request my opinion as to whether or not you are due [to pay] personal property taxes on your automobile in the State of Georgia, and you also ask my opinion as to whether or not you will be permitted to purchase automobile license plates in 1957 unless you pay personal property taxes on your automobile in Cedartown, 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 taxaticm, 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, ..." (Emphasis ours.) The Supreme Court of the United States recently rendered a decision in the

669
case of Claiborne Cameron 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, or to have acquired a residence or domicile in, or. to have become resident in or a resident of, any other State, territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being so absent."
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.
You would not be permitted to purchase a 1957 automobile license plate unless you comply with Georgia Code Section 68-235 (Ga. Code Ann., 1955 Pocket Part) which is as follows:
"Section 2. The State Revenue Commissioner or other officer who now or who may hereafter be charged with the responsibility of selling and delivering license tags for motor vehicles, shall require the applicant when applying for any such license tag to present affidavit or affidavits, as a part of said application, showing payment of all ad valorem taxes due the State and any city, county or school district thereof for the previous year, on such vehicles for which an application for license tag is made. Separate affidavits shall be given for each vehicle upon which taxes are paid."
TAXATION-Ad Valorem Tax-Military Personnel (Unofficial)
Military personnel who are residents of Georgia must pay ad valorem tax on personal property owned by them, even though they are not physically present in the State and own no property in the~ State.
November 14, 1956
Captain A. W. Ripley, III
You ask the following question:
"Being born and raised in Georgia I naturally prefer to remain a voting citizen. However, in the past I have been required to pay State

670
and Atlanta City taxes even though I have not lived there nor owned property (excepting an automobile) since 1948. Being a nonresident with no income from the State I feel it is unfair for me to be taxed approximately $60.00 annually, merely because I buy an auto license from the State.
"In July of next year I plan to return to Georgia and buy an automobile. My question is: Will I be required to pay State and City taxes even though I do not own real estate, reside there, or derive any income from sources within the State, if I license the ear there?
"Your assistance in furnishing an answer to this question will be greatly appreciated."
Under the facts stated by you, you are a legal bona fide resident of the State of Georgia, and more particularly, in the city and county in which you held residence prior to entry into the Armed Forces. All citizens of the United States are legal residents of some State and some city and county, it is presumed, and the fact of temporary absence from this place of permanent abode being in the Armed Services of the United States does not change this status of legal residence. Of course, a person may change his legal residence and domicile (Georgia Code Section 79-406) by an actual change of residence "with the avowed intention of remaining" permanently in such changed place. Of course, this change of legal residence may be accomplished many times, but "a declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention."
Apparently, your domicile prior to the entry into the Armed Service was the City of Atlanta, Georgia, and your complaint is that you have been required by the City of Atlanta to pay a tax "approximately $60.00 annually" to the City of Atlanta merely because, as you put it, you "buy an auto license from the State." The fact of purchase of an automobile license plate is, of course, an indication that such State is the residence of such individual, unless the laws of that State require persons "temporarily" using the highways of that State to obtain a license in the State of temporary location. The fact of ownership of real estate has no bearing upon the legal residence of a person. Personal property under the laws of the State of Georgia and under the laws of at least the vast majority of the States in the United States follows the legal residence of the owner of such personal property irrespective of the fact that neither the property nor the owner of such personal property may be located within the jurisdiction of the place of legal residence during the year, or even for several years prior to said taxable year. Therefore, it is proper for the city and county of your legal resid,ence to collect the personal property ad valorem taxes from you even though you are not located in this State and are in the Armed Services. Of course, the Soldiers' and Sailors' Civil Relief Act provides that you will not be taxed on said property in any State other than that of your legal residence. This was clearly established by the Supreme Court of the United States in Dameron v. Broadhead, 345 U. S. 322.

671
TAXATION-Ad Valorem Tax-Military Personnel (Unofficial) _ , ,...._. Military=personnel wh;)~'a~;,;'~residents'" of other ~statei;c~;itd-wh~"'';re=in
Georgia solely by virtue of military orders, are not subject to Georgia ad valorem taxes, even though they purchase an automobile license tag in Georgia.
October 31, 1956
Daniel H. Framm You state that you are serving in the United States Air Force at Dobbins Air
Force Base, Marietta, Georgia and you enclose an affidavit to the effect that you are a legal resident of Maryland, that you are now located at Marietta, Georgia solely by reason of military orders and you enclose a photostatic copy of a check covering payment of income taxes to the State of Maryland for the year 1955.
You state that you obtained an automobile license plate in the State of Georgia and that you have now received a notice that your State and County personal property taxes are due in Cobb County, Georgia.
The Attorney General has repeatedly stated in cases of this sort that a person does not lose his legal residence merely by being absent from the State while in the military service, nor does the mere purchase of an automobile license piace in the State of Georgia change or establish such residence of such person to this State. (0. A. G. 1952-53, p. 425, p. 427, and p. 465.) The situs of personal property for taxing purposes follows the legal residence of the owner thereof, as was stated in the opinion cited, and in numerous other opinions rendered by this office.
TAXATION-Ad Valorem Tax-Military Personnel (Unofficial) Personal property of a citizen of Georgia in the military service is subject
to taxation, whether located within the State or outside the State because of such service.
April 14, 1955
Honorable Marvin P. Heery, Jr. Receiver of Tax Returns, Chatham County
I wish to acknowledge receipt of your letter of April 4 in which you state: "A local attorney has questioned my actions in requiring a member
of the Armed Forces who is a legal resident of this State and County to file a tax return on his personal property which is not located in this State. This personal property is located in Portugal and he is presently there because of military orders.
"This attorney has requested that I obtain your unofficial opinion in this matter and it will be greatly appreciated if you will advise me accordingly." All property is subject to taxation in the State of Georgia except as otherwise provided by law. Section 92-101 of the Georgia Code Annotated is as follows:
"All real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided by law." Section 92-102 of the Georgia Code Annotated states what shall be included in personal property for taxation. A portion of that section is as follows:

672
"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 ..." The United States Supreme Court, in the cose of Dameron v. Brodhead, 345 U. S. 322, 21 L. W. 4294, held that a member of the United States Air Force who was a citizen and resident of the State of Louisiana and who was stationed in Denver, Colorado in connection with his services in the Armed Forces could not be forced to pay taxes on his personal property in Denver for the reason that the situs of his personal property was in the State of his residence. A member of the Armed Forces of the United States who is a citizen of the State of Georgia would, in my opinion, be liable for taxation in Georgia on his personal property regardless of where he was stationed as a result of his military service.
TAXATION-Ad Valorem Tax-Military Personnel (Unofficial) Personal property of member of military service temporarily stationed
in Georgia is not subject to taxation.
October 28, 1955
Honorable J. C. Faith This is in response to your letter of October 22, 1955 concerning the taxation
of vehicles owned by servicemen residing in Georgia while on military duty. You also ask whether persons establishing residence in Georgia after the first of the year are subject to a property tax on property brought with them.
The Supreme Court of the United States has held in the case of Dameron v. Brodhead, 345 U. S. 322 (1953) that the Soldiers' and Sailor's Relief Act (50) U. S. C. Ann., Sec. 501 et seq) provides that personal property of a serviceman is not subject to taxation in the State where he is temporarily residing on military duty.
The Attorney General, in an official opinion dated October 27, 1953, has ruled that the mere purchase of a Georgia vehicle license tag by a serviceman does not necessarily render such person liable for Georgia property tax. However, the opinion held that if such person is a legal resident of Georgia, aside from his military duties, the fact that he is a member of the Armed Forces and is even absent from this State during the year, does not relieve him of Georgia property taxes.
The Georgia Code provides in Section 92-6202 that all property held on January 1 of each year is subject to taxation. The result is that a person who becomes a resident of this State after January 1 is not subject to a property tax for the year in which he arrives in this State. The following year such a person would be subject to a property tax on all property owned on January 1 of that year.

673
TAXATION-Ad Valorem Tax-Military Personnel (Unofficial) Resident military personnel are subject to all state, county, and municipal
taxes on their personal property, but military personnel who are residents of another state and stationed in Georgia are not subject to such taxes.
March 15, 1954
Mr. J. E. Harris You state: "We have a number of soldiers who live in Harlem and Grovetown and own their homes and automobiles and go to Camp Gordon each day. They tell me they do not have to list them for taxation. I wish you would give me a ruling on this. We have always listed their cars along with other property and collected the taxes. It seems their Post Commander told them soldiers were exempt." You are correct in assessing the automobiles owned by resident soldiers for
taxation. The automobile of a resident soldier stands in the same category as other personal property.
Evidently the advisor of the soldiers who claim their automobiles to be exempt is confused by the ruling of the Supreme Court in the case of Dameron v. Brodhead, 73 S. Ct. R., 721. In this case the court held that:
"... although the officer's tangible personal property was actually located in Colorado thr01~hout the tax year, it was not subject to taxation therein, in view of Soldiers' and Sailors' Civil Relief Act provision that taxable domicile of servicemen should not be changed by military assignments." The court in this decision further stated:
"Soldiers' and Sailors' Civil Relief Act provision that taxable domicile .of servicemen shall not be changed by military assignments is constitutional. Soldiers'and Sailors' Civil Relief Act of 1940." It will be observed from the above decision that a soldier who is a legal resident of the State of Georgia is subject to all State, county and municipal taxes on his personal property. However, a soldier who is a legal resident of another State. and is assigned by the Army to active duty in the State of Georgia would not be liable to pay tax on his personal property in this State for the reason that his military assignment in Georgia would not make him a citizen of this State and he would be exempt from personal property taxes under the Soldiers' and Sailors' Civil Relief Act.
TAXATION-Ad Valorem Tax-Mineral Rights (Unofficial) Where land is sold and mineral rights retained, the buyer pays taxes on
the entire value of the land while the seller returns the mineral rights for tax purposes.
April 19, 1956
Mr. Stanley Fussell You state that there are some landowners in your county who have bought
farms from the Union Centr:ll Life Insurance Company, the insurance company reservingone-half of the mineral rights. You inquire concerning the liability for ad valorem property tax.

674
The owners of the farms described in your letter should return and pay taxes on the full value of their farms without regard to the fact that the Union Central Life Insurance Company reserved one-half of the mineral rights in said property.
However, under Code Section 92-104, which 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 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." The Union Central Life Insurance Company should return and pay taxes on the mineral rights they hold in the property.
TAXATION-Ad Valorem Tax-Motor Vehicles (Unofficial) Discusses laws regarding the taxation of motor vehicles, with particular
regard to municipal and county taxes.
November 26, 1954
Mr. Norman Register You inquire as to our State's collection of taxes on automobiles and other
motor vehicles. All personal property in the State of Georgia is taxed on an ad valorem basis,
including automobiles and motor vehicles. The valuation of automobiles is suggested by the State Revenue Commissioner but the counties and municipalities of this State may assess them at the value set by the board of appraisers of these various governments. The State receives one-fourth of one mill as taxes on this personal property. It might be stated that we have a homestead exemption as to personal property of $300 but this does not include motor vehicles. The ad valorem tax on motor vehicles and automobiles is collected at the local level; i.e., county or city, and the. State's portion is paid by the county treasurer to the State.
Automobiles and motor vehicles are required to be licensed in the State of Georgia and these license fees are paid directly to the State and the municipalities and counties receive no portion of this tax. This is a license tax and not an ad valorem tax and the fee on automobiles is extremely low, being $3.50 on the average size automobile, whereas on trucks, trailers, etc., the license taxes run quite high, especially on all motor vehicles for hire.
Tax resulting from the sale of gasoline in the State of Georgia is six cents per gallon and is paid into the hands of the Revenue Commissioner who in turn pays it to the State Treasurer and the State Treasurer pays each county a certain sum as fixed by law (Section 92-1404 of the 1933 Code of Georgia) which is taken out of a fund created by the payment of two cents on each gallon out of the total tax collected by the State. There is no payment of this tax to the municipality but only to the county for road purposes, although the counties keep up various roads within municipalities, as does the State.
There is a sales tax collected at the rate of three per cent on the sale of automobiles and also on the sale of gasoline but no payment or part payment of this tax is paid over to the counties or the municipalities.
This is a brief review of our taxes on automobiles and motor vehicles, and, as you can see, municipalities only collect an ad valorem tax on automobiles and motor vehicles. I might further state that all automobiles are registered with the

675
State and the State cooperates with the local taxing authorities in order that they may determine what automobiles or motor vehicles are operating in their respective governmental territory in order to assess an ad valorem tax against them.
TAXATION-Ad Valorem Tax-Motor Vehicles (Unofficial) Municipal and County Tax Assessors have a legal right to place a higher
valuation on automobiles than on other property.
September 29, 1954
Mr. Max L. Kingery You request my opinion on the following questions: "(1) Have the municipal assessors a legal right to place a higher vall:!ation on automobiles and trucks than on other personal property in proportion to actual value? "(2) Have the county assessors the legal right to place a higher valuation on automobiles and trucks than on other personal property in proportion to actual value?" Municipal tax assessors and county tax assessors have a legal right to place
a higher valuation on automobiles and trucks than on other personal property. Section 92-6911, of the 1933 Code of Georgia, Annotated, relating to the duties
of the board of tax assessors, contains the following provision: "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."
TAXATION-Ad Valorem Tax-Motor Vehicles (Unofficial) New and used motor vehicles, owned by an automobile dealer on Jan-
uary first, are subject to ad valorem tax.
April 9, 1954
Mr. John R. Dinkins In your letter you asked the liability for ad valorem taxes for automobile deal-
ers owning new and used vehicles on January 1 of a taxable year. It is provided in Section 92-101 of the 1933 Code of Georgia that:
"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." Further, it is provided under Section 92-110 of the Code that:
"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."

676
It is not the duty of the Government's Tax Assessors to be experts in title law so as to assess taxes upon their correct title, but it is rather the duty of the Government's Tax Assessors to see that all taxes are paid upon property which is within their taxable jurisdiction, provided there are no exceptions in existence. The Government's taxing authorities are not restricted to assessing taxes upon property where the ownership is unobtainable or unknown, but they may treat the person in possession as liable for taxes because possession is a mark of ownership. For a complete discussion of taxation upon property where ownership is not ascertainable, see the case of Townsend v. Mcintosh, 205 Ga. Reports 643, 644-645.
TAXATION-Ad Valorem Tax-Penalties (Unofficial) Law relating to assessment of penalties that may be imposed for failure
to file tax returns construed.
April 28, 1955
Honorable Marvin P. Heery, Jr. Receiver of Tax Returns, Chatham County
I wish to acknowledge receipt of your letter of April 25 in which you request my unofficial opinion as to the proper construction of Code Section 92-6913, relating to the assessment of penalties which may be imposed by the Board of Tax Assessors for failure to file tax returns.
Code Section 92-6913, among other things, deals with the duties of county boards of tax assesors and the assessment of penalties in cases where property is not returned for taxation and is assessed by the board. This section contain the following provisions:
"... In all cases where unreturned property is assessed by the board after the time provided by law for making tax returns has expired, the board shall add to the amount of State and county taxes due a penalty of 10 per cent, except that if the principal sum of the tax so assessed is less than $10 in amount, the board shall add to the amount of State and county taxes a penalty of $1." The appellate courts of our State have not construed this Code Section, however, it appears to me that it was the intention of the Legislature to provide that the Board of Tax Assessors should add to the entire amount of taxes due a penalty of 10 per cent and in the cases where the tax assessed is less than $10 the penalty should be $1. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
TAXATION-Ad Valorem Tax-Penalties (Unofficial) The penalty for failure to file a tax return is 10 per cent of the taxes due;
i.e., the taxes computed after deducting the homestead exemptions.
November 9, 1954
Honorable Charles G. O'Hara You asked that I inform you what penalty should be charged a person who
failed to make a tax return and was later allowed the homestead exemption; i.e.,

677
should a 10 per cent penalty be added to the gross tax or to the tax due after homestead exemption is allowed.
Section 92-6913 of the Georgia Code, Annotated, is as follows:
"It shall be the duty of the board to diligently investigate arid inquire into the property owned in the county for the purpose of ascertaining what property, real and personal, is subject to taxation in the county and to require its proper returns for taxation. The board shall make such investigation as .may be necessary to determine the value of any property upon which for any reason all taxes due to the State or to the county have not been paid in full as required by law, and, in all cases where the full amount of taxes due the State or county have not been paid, it shall be the duty of the tax assessors to assess against the owner, if known, and the property, if the owner is not known, the full amount of taxes which hfl,ve been paid at any time within the statute of limitations. Inall.cases where taxes are assessed against the. owner of property, the tax assessors may proceed .to assess the same against the owner thereof according to the best information obtainable and such assessment, if otherwise lawful,. shall constitute a valid lien against the property so assessed. In all cases ~h~re 'unreturned property is assessed by the board after the time provided by law for making taX return has expired, th~ board shall add to the amount of State and county taxes due a pe~alty of 10 per cent, except that if the principal sum of the tax so assessed is less than $10 in amount, the board shalladd to the amount of State and county taxes a penalty of $1. The penalty herein provided shall be collected by the county tax collectDr or the county tax comr.-issioner and in all cases paid into the county treasury and remain the property of the county."
The 1952 amendment to the Homestead Exemption Act did not relieve the taxpayer from filing a tax return. The above-quoted Code Section which imposes a penalty of 10 per cent upon the failure to file a tax return, applies to all taxpayers who come within its provisions. However, you will note that the language of this section states that, "the board shall add to the amount of State and county taxes due a .penalty of 10 per cent." It therefore follows that if there were no taxes due because of the homestead exemption, the penalty could not be imposed on any taxes except taxes on property in excess of the homestead exemption.

TAXATION-Ad Valorem Tax-Penalties (Unoffici:a1'

Ten per cent penalty on property ,~-~"'sed that was n~t returned applies,

whether assessed by tax a!l!'lp~J's or returned after Apr1l first by taxpayer

himself. Penalty ;~ ""'a mto county treasury.

.

Home~t~~-" exemption on personal property is not automati~ally renewed.

May 9, 1955

Mrs. Mildred Nix Tax Commissioner, White County
I wish to acknowledge receipt of your letter of April 19, 1955 in which you state:
"I know there is a 10 per cent penalty if the Board of Tax Assessors assess property that has not been returned, however, is there also a 10 per cent penalty if the taxpayer returns the property himself but returns it

678'
after April 1st? Who do I pay this penalty to? Is it prorated between the state, county and schools?
"Since the homestead exemption is automatic, is it also automatic on personal property now, not including motor vehicles of course?" Code Section 92-6913 contains the following provision:
"In all cases where unreturned property is assessed by the board after the time provided by law for making returns has expired, the board shall add to the amount of State and county tax due a penalty of 10 per cent, except that if the principal sum of the tax so assessed is less than $10 in amount, the Board shall add to the amount of State and county taxes a penalty of $1. ." Code Section 92-6201 (1951 Supplement) is as follows:
"The several tax receivers shall open their books for returns of taxes on the first day of January and shall close the same on the first day of April of each year except that in counties of over 200,000 or more according to the 1940 or any future census, the time of closing the books for the return of taxes shall be May 1st of each year."
It will be observed that Code Section 92-6913 provides for a penalty in all cases where unreturned property is assessed by the board after the time provided for making returns has expired and under Code Section92-6201 (1951 Supplement) the expiration date for the filing of tax returns is on the first day of April of each year except in counties of more than 200,000 population where the expiration date is May 1st.
It therefore follows that all tax returns must be filed before the closing date in order to avoid the imposition of the 10 per cent penalty. A return filed after the closing date could be accepted as information by the tax receiver but it could not be treated as if filed prior to the expiration date for the filing of returns.
In answer to your question as to whom the penalty should be paid, Code Section 92-6913 contains the following provision:
"... The penalty herein provided shall be collected by the county tax collector or the county commissioner and in all cases paid into the county treasury and remain the property of the county."
G ~~ rnswer to yoUr question relative to homestead exemption, the Act of the f ~~er~ b.~ ~>uply, approved February 15, 1952 (Ga. Laws 1952, p. 317) made the 0 owmg provis,.__ i'or the automatic renewal of homestead exemption.
. "Provided ~hat t 1"-. ~v{ler of a homestead of each resident of Georgia which actually IS occupied by "-- "aid owner as a residence and homestead shall not have to apply for the exen'l'"'~n but one time so long as such owner remains i~ continuous occup.ation of suet. --ddence as a homestead, but such exemptiOn shall automatically be renewed fro~> ..-~,.r to year so long as such owner continuously occupies such residence as a hon,,..~c~.,d."
This Act does not contain any provision for the automatic renewal of homesteaa exemption on personal property.

679
TAXATION-Ad Valorem Tax-Property Valuation (Unofficial) County tax assessors are charged with responsibility of placing a valua-
tion upon all of the property in the county and in doing so, to consider all things that would add to or diminish from the value of the property.
February 11, 1955
Mr. Harold E. Ward
I wish to acknowledge receipt of your letter of February 9, 1955, in which you state:
"I would appreciate your giving me an opinion as to whether or not County Tax Assessors shall tax lands on which timber is growing at a higher valuation than they place upon vacant lands or cultivated lands." Code Section 92-6911 contains the following provision:
"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."
Code Section 92c6913 contains the following provision:
"It shall be the duty of the board to diligently investigate and inquire into the property owned in the county for the purpose of ascertaining what property, real and personal, is subject to taxation in the county and to require its proper returns for taxation. The board shall make such investigation as may be necessary to determine the value of any property upon which for any reason all taxes due to the State or to the county...." Code Section 92-6915 is as follows:
"The county board of tax assessors may, by rules or regulations consistent with the provisions of this Chapter, provide the manner of ascertaining the value for taxation of any property, real or personal, not appearing in the digest of any year within the period of the statute of limitations; it being the purpose and intent of this law to confer upon the said board full power and authority necessary to have placed upon the digest an assessment or a valuation of all property in the county of every character which is subject to taxation and for which either State or county taxes may not have been paid in full: Provided, that nothing in this section shall apply to those persons, firms and corporations who are required to make their returns to the Comptroller General."
It will be observed from the above quoted Code Sections that the County Tax Assessors are charged with the responsibility of placing a valuation upon all of the property of the county, both real and personal, and to see that all property in the county is placed upon the tax digest. The Board of Tax Assessors in any county certainly have a right to classify timber lands for taxation. The question as to the value of the timber lands is the question which addresses itself to the discretion of the Tax Assessor. In fact, Tax Assessors have the right to take into consideration any factor which would tend either to diminish or increase the value of land assessed for taxation.

680
TAXATION-Ad Valorem Tax-Property Valuation (Unofficial)
There is a joint responsibility upon the Tax Receiver and upon the County Board of Tax Assessors in placing the correct valuations of property on the County Tax Digest.
July 5, 1955
Honorable J. 0. Parker You propound the following question: "If a taxpayer, in giving in his property for taxation, values it too low, is it my duty, as Tax Receiver to raise the value of his property, or is it the duty of the Tax Assessors?" There is a joint responsibility upon the tax receiver and upon the county
board of tax assessors in placing the correct valuations of property on the county tax digest. Code Sections 92-6701, 92-6702 and 92-6703 prescribe the duties of tax receivers in cases of unreturned or under-valuation of property. Code Section 92-6705 (1951 Supplement) contains the following provision:
"In all cases where additional or deficiency assessments are made, or have heretofore been made, by county tax receivers or tax commissioners as provided in this Chapter, such assessments or additional assessments shall be presented to the board of tax assessors of the county wherein such assessment is made, and such board of tax assessors shall by majority thereof determine, amend or disapprove such assessments in writing. All provisions of the law as to giving notice of assessments,. arbitration and subsequent procedure, applicable to other assessments of valuationby the board of tax assessors shall apply to the assessments by the board of tax assessors herein provided for." The board of county tax assessors under Code Section 92-6911 is charged with the responsibility of examining the returns of both real and personal property of each taxpayer, and if in the opinion of the board a taxpayer has omitted from his return 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 his return and shall assess and fix the fair valuation to be placed on the property and shall make a note thereof and attach the same to the return.

TAXATION-Ad Valorem Tax-Public Property (Unofficial)
Property returned for taxation on January 1st and later sold to a municipality is not subject to be levied on for taxes in the hands of the municipality.

March 11, 1955

Honorable Peter J. Rice Tax Collector, Putnam County

This will acknowledge receipt of your letters of December 22 and 23, 1954, in

which you request my opinion on the following facts:

.

Where an individual returns certain property for taxation on the first of January, and later sells that property to a municipality, is the property in the hands of the municipality subject to levy to satisfy the taxes?

All public property is exempt from taxation. Section 2-5404 of the 1945 Constitution of the State of Georgia, Section 92-201 of the Georgia Code of 1933

681
(Annotated Supplement). Inasmuch as public property is exempt from taxation, property in the hands of the municipality is not subject to levy and sale under an execution. Walden v; Town of Whigham, 120 Ga. 646. Moreover, in any event, since the municipality was not the owner of the property on January 1, it would not be liable for the taxes. In Rayle Electric Membership Corporation v. Cook, 195 Ga. 734, the court held that property subject to taxation as of January 1, but coming within the exemption provision prior to the actual levy and assessment of the ad valorem taxes ott the property for the year, comes within the exemption rule and is exempt. The lien for taxes due the State attaches both against the owner and his 'property from the time fixed by law for the valuation of same in each year until paid, and attaches regardless of judgments, mortgages, sales, or transfers of any kind. Armour Fertilizer Works v. Durrence, 176 Ga. 519 and Decatur County Bldg. and Loan Association v. Thigpen, 173 Ga. 363. Harrell v. Burch, 195 Ga. 96, 99. City of Leesburg v. Forester, 59 Ga. App. 503, 504 (4).
It doesnot appear from your question that a tax execution had been issued and recorded prior to the sale. It is, therefore, my opinion that the property could not be levied on in the hands of the municipality.

TAXATION~Ad Valorem Tax---'-Situs of Property (Unofficial) Discusses taxable situs for various types of personal property.

July 2, 1956

Hon. James A. Williamson

You request my opinion on several questions involving the taxable situs of

personal property. The first two questions on which you request my opinion are

as follows:

"(1) Are shrimp boats, owned by residents of the City of Darien,

taxable [if] said boats are not docked at the City but are not paying city taxes elsewhere? If boats are docked in the City of Darien three months

of the year and are paying city taxes elsewhere?" "(2) If boats, owned by residents, are registered in the Custom
House with the home port other than Darien, but are not paying city taxes elsewhere, are they taxable?"

The Supreme Court of our State in the case of Collins, tax collector et al v.

Mills et al, 198 Ga. 18 (2) held:

"Personal propertyis ordinarily taxed in the county where the owner resides, and in order for it to acquire a situs for taxation in some other

county under the Code, 92-6208, it must be connected with some business enterprise that is situated more or less permanently in a different county as distinguished from an enterprisewhose location is merely transitory or

temporary."

The Supreme Court of our State also held in the case of Wright v. Mayor and Council of Brunswick, 140 Ga. 231:

"Vessels and other water-craft are personal property and are taxable

like all other such property within the jurisdiction of a municipality wherein their situs for taxation is located."

This Court also held in the case of St. Simons Transit Co. v. Mayor & C. of

Brunswick et al, 141 Ga. 477:



682
"2. The Mayor and Council of the City of Brunswick 'have the authority and power to levy and collect a tax upon all taxable propertywithin the limits of said city, upon real and personal property, . not expressly prohibited or exempt by the laws of. the State.' Charter of the City of Brunswick, Acts 1872, p. 151, 12; Acts 1889, pp.1010, 1022.
"3. Where a navigation corporation is chartered under the laws of this State, and it appears that its principal office and place of doing business (that is, its domicile) is fixed in a named municipality, the taxable situs of a vessel owned by the corporation is in such municipality.
"4. The Saint Simons Transit Company is a navigation corporation, incorporated in 1895, under the provisions of the Civil Code, 2565 et seq. The home office and place of doing business is fixed by the charter in the City of Brunswick, this State. The corporation owns two vessels which are operated from the City of Brunswick to St. Simons Island and return, the distance between the two points being about eight miles, both places being within the County of Glynn, but St. Simons being beyond the city limits of Brunswick. The vessels remained at St. Simons on an average of about a half hour each trip, and for the balance of the time, except that taken up in making the trip, they were tied up at their docks in the City of Brunswick. Held: The vessels are subject to ad valorem tax levied by the Mayor and Council of the City of Brunswick; and the municipal authorities, under the charter of the city; had the power to issue executions against the corporation for taxes due on such vessels for the years in which they were not returned for taxation, and in which no taxes were paid on them, and in which they were operated as above stated.
"(a) The municipal authorities have no power, however, to issue separate executions against the corporation for any one year for taxes due on each vessel.''
The facts in the case of Wright v. Mayor and Council of Brunswick, 140 Ga. 231, were as follows:
"During 1905 Wright was the part owner of a vessel registered under the acts of Congress, at the port of the City of Brunswick, Glynn County. She made daily trips, except on Sundays, from Brunswick to St. Simons Island, also in Glynn County, and to the City of Darien in Mcintosh County; leaving Brunswick about 8:30 o''clock a.m., arriving at St. Simons Island about 9:30a.m., arriving at Darien about 1:00 p.m. Returning by St. Simons Island, she reached Brunswick about 6:30 p. m., where she remained during the night and until the next start to Darien. Wright did not reside within the city limits of Brunswick at any time during 1905, but during all of that year resided at St. Simons Island."
In this case the Court held that Wright's interest in the vessel was not subject to ad valorem municipal taxation during the year 1905 for the City of Brunswick. The effect of this decision was to hold that the vessel was subject to be taxed at the residence of the owner which was St. Simons Island.
It will be observed from the cases herein cited that the taxable situs of a vessel is not determined by the place where the owner may have paid, taxes or by the place where the vessel is registered, but is determined by the domicile of the owner.
The third question upon which you request my opinion is as follows:
"(8) If residents own trucks which are used for business purposes elsewhere, and never enter the city limits but do not.pay municipal taxes elsewhere, are they taxable'?"

683
The trucks discussed in question number three would be taxed at the residence of the owner unless they had acquired a taxable situs in some other county in connection with some business enterprise that is situated more or less permanently in the different counties.
The Supreme Court of our State in the case of Joiner, Tax Collector v. Pennington, 143 Ga. 438, held:
"A portable sawmill is not subject to taxation in a county where it is temporarily located on the land of another, the owner of the sawmill living in a different county and returning the same for taxation as personal property together with other property in the county of his residence."
You also request my opinion on question four which is as follows:
"(4) If a resident, owning farm property outside of the city limits, owns livestock and motorized equipment used on the farm, is this taxable as personal property ?"
Farm equipment owned by a resident of a municipality and located on a farm outside of the municipality is taxable as personal property, however, this personal property located on a farm would not be subject to municipal taxation. My opinion on this question is based on the authorities herein cited.
Question five in your letter is as follows: "(5) Define 'Personal Property' as taxable by city whether located
within or without the city limits."
This question is answered in Georgia Code Section 92-102 which is as follows:
"What included in 'personal property.'-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, and capital invested therein; bonds and other securities of corporations of this or of other States; stock of corporations of other States; bonds, notes or other obligations of other States, and of the counties, municipalities or other subdivisions thereof; money due on open account or evidenced by notes, contracts, bonds, or other obligations, secured or unsecured.''
TAXATION-Ad Valorem Tax-Situs of Property (Unofficial) Personal property is subject to taxation where the owner thereof resides,
unless it has acquired a taxable situs in some other locality, due to its being situated more or less permanently therein.
September 5, 1956
Honorable Ernest J. Williams You request my unofficial opinion on the taxability of equipment owned by
contractors who reside in Snellville and use their equipment in the conduct of their busi~ess throughout the. State. You also request my opinion as. to the taxability of equipment stationed in Snellville and owned by non-residents.
In the case of Collins, Tax Collector et al v. Mills et al, 198 ~a. is, the Su-
preme Court held: "Personal property is ordinarily taxed in the county where the owner
resides, and in order for it to acquire a situs for taxation in some other

684
county under the Code, 92'"6208, it must be connected with some. business enterprise that is situated more or less permanently in a different county as distinguished from an enterprise whose location is merely transitory or temporary."
In my opinion, the decision: of the Supreme Court in the case of O'Neal, Mayor et al v. Whitley, 177 Ga. 491, is directly in point with the question propounded in your letter. In this case the Supreme Court held:
"The charter of the City of LaGrange authorized. the mayor and council to provide. by ordinance for the assessment and collection of an ad valorem tax 'on real and personal property within the corporate limits of said city, which is subject to be taxed by the State.' Where an owner of property having his legal residence and domicile in such municipality was engaged in the business of a paving contractor, and cpnducted such business in different. parts of the State from only one office and place of business which was located in the City of LaGrange; and in connection with such business owned and operated machinery and equipment which was never actually situated within the limits of that city but was kept and used in other parts of the State and was subject to removal at any time according to the exigencies of the owner's business, the sites of such property for taxation was at the residence and 'domicile of the owner in the City of LaGrange, Under the provisions of the charter the property was subject to ad valorem taxation by the city, and it was error to enjoin an assessment for that purpose."
From my study of the two opinions herein named and other opinions of the Supreme Court on the question propounded in your letter, 1 am of the opinion that machinery and other equipment owned by contractors is subject to tax in the municipality wherein the contractor .resides, unless the machinery has acquired a taxable situs in some other locality due to its being situated more or less permanently therein.
T AXATION-Assessrnent-Adjustrnents
The State Revenue Commisisoner may cancel or adjust an assessment after a formal assessment has been made.
February 18, 1955
Mr. W. Vaughn Rice Deputy State Revenue Commissioner
You request my opinion on the following question:
"Does the Commisisoner and/or Deputy Commissioner have the authority to cancel or adjust an assessment after formal assessment has been made ?" Section 92-3302 of the Code of 1933, dealing with assessments, cpllection of deficiencies, etc., provides that the Commission, now Commissioner, shall defermine any deficiency and is ,authorized to send notice thereof to the taxpayer. It further provides that the taxpayer niay file within 30 days after receipt of such notice a petition with the Commissioner for redetermination of the tax, and the Section next provides for the assessment of the tax after the time for filing a petition for redetermination has expired. This Section further provides in paragraph (b) that if the taxpayer files a petition for redetermination, the Commissioner may redetermine the entire amount of the deficiency and assess the same, and in paragraph (c) that if the taxpayer does not file a petition within the 30

685

day period,, the tax shall be assessed,, and in paragraph (d) that the Commissioner shall have the right to redetermine the correct amount of the deficiency and assess the same, even if such redetermination results in a greater amount of tax than the amount shown on the original notice to the taxpayer. All of these references to "assessment" in Section 92-3302 are references to "formal assessment" to which you refer in your question. Section 92-3308 makes provision for. the taxpayer to file a claim for a refund and for the determination by the. Commissioner of such claim for a refund and for the payment of any refund determined to be due, together with interest on the amount refunded.
It would seem that the whole scheme of the law is to enable the Commissioner to arrive at the correct amount of tax due and to collect it. While I find no express authorization in the law permitting the "cancellation or adjustment" of an assessment after formal assessment has been made, except where the taxpayer files a claim for a refund and proceedings are had under Section 92-3308, and there referred to 0nly by necessary implication from the wording and provisions of the code se~tion, reason ant;l logic would seem to indicate that the Commissioner should have authority at any time to correct mistakes. Where an assessment has been made which, if enforced, .would result in the exaction of sums from the taxpayer illegally, the Commissioner has the inherent right to correct such an error. This is flO for the reason that it is to the State's interest not to have to pay interest o:ri sums collected and l~ter .found to have been illegally collected and which have to be repaid to the taxpayer on a claim for a refund or a:(ter suit for a refund.
In this connection, I call your attention to my ruling to your department made on June 21, 1949, appearing at page 673 o:f the published volume of my opinions for the years 1948-49, in which I ruled that where an assessment appeared to have been improperly made it should be "quashed," or if you prefer, cancelled.
This is not to say, however, that once a formal assessment has been made upon a determination by the Commissioner of a deficiency that such assessment can be reopened so as to increase the amount thereof after the statute of limita~ tions has run. I think it is clear that if you mean by your question, "can you cancel an assessment completely or adjust it so as to reduce the amount thereof," then the answer is "yes" even after the statute of limitations has run.
I think it well to call to your attention at this time the fact that I have con:sidered,this question in the light of the enactment of the Legislature contained in the Acts of 1953, pp. 185-186 (Ga. Code Ann. 1954 Supp., Sec. 92-8411.1) which establishes a board of compromises and settlements of tax cases. It does not appear that this code section has any relation to this question. The act o:f assessing the tax is one of determination of the amount due, and basically the Commissioner in issuing an assessment of income taxes has no discretion and must determinefrom the :facts available the amount of the tax due. The authority to settle and com~ promise, as referred to in the last mentioned code section, involves the exercise of discretion based on the insolvency of. the taxpayer arid the legal position of the State and does not arise until after there has been some detenp.ination of the amount of the tax due.

TAXATION-Assessment-Equalization The assessing authorities must assess all types of property, real or personal, at the same percentage of value.

Honorable M. D. Collins State Superintendent of Schools

November 21, 1955

You request my official opinion on the following questions propounded by the

686
Fulton County Board of Education in their letter of October 4, 1955 to you: "1. Is it lawful for the assessing authorities of a county to assess
real property at a certain percentage of fair market value, and personal property at a different percentage of fair market value, within the same territory for purposes of the same tax?
"2. Is it lawful for the assessing authorities of a county to value certain types of personal property, such as equipment and machinery, at one percentage of fair market value, and other types of personal property, such as inventory or automobiles, at different percentages of fair market value, within the same territory for purposes of the same tax?" These questions are presented in view of the decision of the Supreme Court of our State in the case of Hutchins et al v. Howard et al, decided September 16, 1955 [211 Ga. 830, 921]. In answer to the first question, the Supreme Court in the Hutchins case stated: "Realty and tangible personal property are of the same class and the constitutional rlile of uniformity in taxation requires that both be taxed alike." The Court also stated in this opinion: "Taxation on all real and tangible personal property subject to be taxed is required to be ad valorem-that is according to value, and the requirement in the Constitution that the rule of taxation shall be uniform, means that all kinds of property of the same class not absolutely exempt must be taxed alike, by the same standard ofvaluation, equally with other taxable property of the same class, and co-extensively with the territory to which it applies; meaning the territory from which the given tax, as a whole, is to be drawn." The answer to the second question in the letter of the Fulton County Board of Education is found in the above-quoted portions of the decision in the case of Hutchins v. Howard. It will be observed that the Supreme Court in this case held that real and personal property are of the same class and should both be taxed alike; It should be further noted that all personal property should be taxed alike.
TAXATION-Assessment-Equalization (Unofficial) The Department of Revenue is responsible to maintain a reasonable
equalization of assessed valuation of classes of property throughout the State and is authorized to disapprove the tax digest of a county in order to obtain reasonable equalization,
August 11, 1955
Mr. Randall Evans, Jr. This is in response to your yetter. It is true that each year the Depar_tment
of Revenue Property Tax Division prepares for the 159 tax receivers and tax collectors mimeographed sheets containing the automobile valuations to be used by the counties in assessing the property tax on automobiles. The authority for the Commissioner of Revenue in doing so is contained in Code Section 92-7002, which provides that the Commissioner of Revenue shall examine the tax digest of the various counties and ascertain whether the tax valuation of the various classes of property is reasonably uniform as between the respective counties.
Complying with this duty to equalize, so far as possible, the valuation of the various classes of property, the Property Tax Unit of the Department of Revenue began this procedure a number of years ago. If, upon inspection of the tax digest, the Commisisoner of Revenue discovers that a county's tax assessment with respect

687
to a certain class of property is not reasonably in equalization with the assessed valuation of that class of property throughout the State, it is the duty of the Commissioner of Revenue to disapprove such tax digest in order to obtain reasonable equalization of tax valuations throughout the State.
As a matter of information, I cite you to another unofficial opinion of the Attorney General, dated May 7, 1953, contained in the Opinions of the Attorney General 1952-1953, p. 436.
TAXATION-Banks-Ad Valorem Tax (Unofficial) Banks must pay tax on surplus and undivided profits.
May 20, 1955
Honorable George Z. Young Chairman, Board of Tax Assessors Taylor County
This is in response to your letter of May 10, 1955 in which you state: "I would like to have your opinion as to whether or not the Board of
Tax Assessors should assess for taxable purposes the surplus and undivided profits in the banks. If so, what percent would we assess for taxable purposes ?" Section 92-2406 of the Georgia Code, Annotated requires that banks shall pay a tax for and on behalf of their shareholders on the shares of the stockholders of the banks or banking associations, whether such stockholders are resident or nonresident owners, and that such tax is imposed in the county where the banks or banking associations are located. It is provided that the tax shall be in the amount of the "full market value" of the shares and that such valuation shall also include "surplus and undivided profits," the valuation being taxed "at the same rate provided by law for the taxation of other property in the hands of private individuals." This Code Section also provides that "nothing in this section shall be construed to relieve such banks or banking associations from the tax on real estate held or owned by them, but they shall return said real estate at its true market value in the county where located." The statute provides further that the valuation at which said real estate is returned "may be deducted from the market value of their shares." Other than this deduction, however, the banks must return the shares at "their full market value, including surplus and undivided profits, at the same rate provided by law for the taxation of other property in the hands of private individuals."
TAXATION-Banks-Federal Intermediate Credit Bank Debentures (Unofficial) Debentures of the Federal Intermediate Credit Bank are exempt from the
intangible property tax of Georgia.
December 15, 1954
Mr. J. S. Budd, Jr. Your letter requests our views upon the following question: "Are Federal
Intermediate Credit Bank Debentures subject to an intangible tax in the hands of an individual residing in this State?"
Section 1111 of Title 12, United States Code, Annotated provides as follows:

688
"The privileges of tax exemption accorded under Section 931 of this title shall apply also to each Federal intermediate credit bank, including its capital, reserve or surplus, and the income derived therefrom, and the debentures issued under this sub-chapter shall be deemed and held to be instrumentalities of the Government and shall enjoy the same tax exemptions as are accorded farm-loan bonds in said section."
The above-quoted section gives to the debentures of the Federal Intermediate Credit Bank the same tax exemption accorded farm loan bonds of a Federal Land Bank as provided in Section 931 of Title 12, United States Code Annotated, which reads as follows:
"Every Federal land bank and every national farm loan association, including the capital and reserve or surplus therein and the income derived therefrom, shall be exempt from Federal, State, municipal, and local taxation, except taxes upon real estate held, purchased, or taken by said bank or association under the provisions of Sections 761 and 781 of this title. First mortgages executed to Federal land banks, or to joint stock land banks, and farm loan bonds issued under the provisions of this chapter, shall be deemed and held to be instrumentalities of the Government of the United States, and as such they and the income derived therefrom shall be exempt from Federal, State, municipal, and local taxation." It is therefore my opinion that the debentures of the Federal Intermediate Credit Bank are exempt from the intangible property tax of the State of Georgia.

TAXATION-Banks-National Banks (Unofficial) A municipality cannot impose an occupational tax on national banks.
February 11, 1954
Dr. J. C. Verner You propound the following question: "Can a town legally have an ordinance requrrmg 'National Banks' taxed as occupational to do business in a city or town?" A city has no authority to pass a municipal ordinance imposing an occupational
tax on national banks. The State has elected to tax national banks on their capital stock and this is the only way to which they can be taxed.

TAXATION-Banks-National Banks (Unofficial) National banks are not subject to intangible tax.

December 27, 1955

Mr. Broughton C. Hays

I wish to acknowledge receipt of your letter of December 6, 1955, in which

you state:

,

a "Will you please let me know, unofficially, if, in your opinion, secu-

ritydeed from a Miller County resident as grantor; to a National bank of

the State of Alabama, would be subject to the Georgia intangible tax law."

As you know, the question propounded in your letter has not been decided by

689
the Georgia courts. However, I am of the opinion .that a national bank located in Georgia or any other State could not be required to pay the recording tax on long-term notes as provided in the Georgia Intangible Tax Act--assuming, of course, that this is in fact a tax and not a "recording fee" as referred to by the Supreme Court in the recent case of Washington Loan and Banking Company v. Golucke, decided November 14, 1955.
I base this opinion upon Section 548 of the U. S. Code Annotated, Title 12, which is as follows:
"The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net' income, or (4) according to or measured by their net income, provided the following conditions are complied with:
"1. (a) The imposition by any State of any one of the above four forms of taxation shall be in lieu of the others, except as hereinafter provided in subdivision (c) of this clause.
"(b) In the case of a tax on said shares the tax imposed shall not .be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State ~oming into competition with the business of national banks: Provided, That bonds, notes, or other evidences of indebtedness in the hands of individual citizens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section.
"(c) In case of a tax on or according to o:r; measured by the net income of an association, the taxing State may, except in case of a tax on net income, include the entire net income received from all sources, but the rate shall not be higher than the rate a.ssessed upon other financial corporations nor higher than the highest of the rates assessed by the taxing State upon mercant;ile, manufacturing, and business corporations doing business within its limits: Provided, however, That a State which imposes a tax on or according to or measured by the net income of, or a franchise or excise tax on, financial, mercantile, manufacturing, and business corporations organized under its own laws or laws of other States and also imposes a tax upon the income of individuals, may include in such individual income dividends from national banking associations located within the State on condition that it also includes dividends from domestic corporations and may likewise include dividends from national banking associations located without the State on condition that it also includes dividends from foreign corporations, but at no higher rate than is imposed on dividends from such other corporations.
. "(d) In case the dividends derived from the said shares are taxed, the tax shall not be at a greater rate than is assessed upon the net income from qther moneyed capitaL"
You will observe that this section provides the four ways in which national banks may be taxed and since the recording tax levied under the Georgia Intangible Tax Act does not come within the provisions of the four ways enumerated, I cannot see how they can be made subject to the recording tax provided in the IntangiblE). Tax Act.

690
TAXATION-Banks-Private Banks
Discusses the rules governing taxation of private banks.
July 22, 1955
Honorable Clarence G. Campbell Director, Property Tax Division Department of Revenue
You request my opinion as to the proper method of taxing the property of private banks.
Private banks, by definition, are not "banks or banking associations organized under the authority of this State or the United States" and, therefore, do not come within Code Section .92-2406 which prescribes the usual method of taxing the property of banking corporations. On the other hand, private banks do employ "moneyed capital" in competition with State and National banks and, therefore, are not exactly in the same position as any other private individual or business.
Under Section 92-2406, the real property of banking corporations is returnable and taxable where located in the same manner and at the same rate as other tangible property in the locality in the hands of private individuals. It follows easily that the. real property of a private bank should be treated in like manner. The State millage rate applicable to this property, under the usual annual executive order, is ":14 of 1 mill on the full market value." (See, for example, Executive Order dated June 24, 1955.)
How the other assets of a private bank are to be treated depends on the definition of the term "moneyed capital ... coming into competition with national banks." This expression originated in the Federal Statute which now appears as 12 U. S. C. 548, and accordingly, the decisions of the United States Supreme Court are controlling in its definition. In Mercantile National Bank v. City of New York, 121 U. S. 138, 30 L. Ed. 895, 7 S. Ct. 826, the United States Supreme Court had this to say:
"The business of banking, as defined by law and custom, consists in the issue of notes payable on demand, intended to circulate as money where the banks are banks of issue; in receiving deposits payable on de- mand; in discounting commercial paper; making loans of money on collateral security; buying and selling bills of exchange; negotiating loans, and dealing in negotiable securities issued by the government, state and national, and municipal and other corporations.... The terms of the act of Congress, therefore, include shares of stock or other interest owned by individuals in all enterprises in which the capital employed in carrying on its business is money, where the object of the business is the making of profit by its use as money. The moneyed capital thus employed is invested for that purpose in securities by way of loan, discount, or otherwise, which are, from time to time, according to .the rules of the business, reduced again to money, and reinvested. It includes money in the hands of individuals employed in a similar way, invested in loans, or in securities for the payment of money, either as an investment of a permanent character, or temporarily, with a view to sale or repayment and reinvestment. In this way the moneyed capital in the hands of individuals is distinguished from what is known generally as personal property" (Emphasis supplied.)
In the light of the concept of "moneyed capital ... in competition with national banks" as expressed in the above opinion and as reiterated by the U. S. Supreme

691
Court in many cases since, I am of the opinion that assets of private banks in the form of furniture, fixtures and equipment used in carrying on such private banking business do not constitute "moneyed capital . . . in competition with national banks." Accordingly, this property, too, is returnable and taxable where located in the same manner and at the same rate as other tangible property in the locality in the hands of private individuals, and the State's millage rate applicable to this property, under the usual annual executive order, is "1,4 of 1 mill on the full market value."
From the same concept, I conclude, further, that assets of a private bank of an intangible nature, such as cash, receivables, stocks and bonds not otherwise exempt from property taxation, and the like, are "money capital ... in competition with national banks."
Code Section 92-115 provides:
"Certain intangibles taxed as heretofore-Franchises and all shares of building and loan associations and all shares of banks or banking associations, including Federal Land Banks, together with all money capital in the hands of individual citizens of Georgia coming into competition with the business of national banks, are hereby classified to be taxed as heretofore provided by law and shall not be subject to the provisions of the following sections of this law (Sections 92-116 to 92-159, 92-9946)." (Emphasis supplied.)
It appears clear, therefore, that these intangible assets of a private bank are not to be taxed according to the classifications adopted by the Act of 1937-38 (1937-38 Ga. Laws, 156). Moreover, Code Section 92-120 goes on to provide that such moneyed capital shall be subject to tax at the same rate which is applicable to national banks. Referring back to Code Section 92-2406, it is clear that this means "at their full market value ... at the same rate provided by 'law for the taxation of other property in the hands of private individuals."
As far as local property taxation is concerned, therefore, such property is returnable and taxable in the place where such business is conducted in the same manner and at the same rate as tangible property in the hands of private indi-
viduals. However, by virtue of the Constitutional Amendment of 1952 (1952 Ga.
Laws 469) as supplemented by the usual annual executive order fixing the State's millage rate, the State's millage rate of this property is "5 mills on the full market value."
It is to be noted that the taxation of bank shares, in effect, is based on the net worth of the banking corporation, which is to say that an adjustment is allowed against asset value for outstanding indebtedness. The amount of intangible assets of a private bank should, therefore, be adjusted for the amount of deposit liabilities outstanding. In other words, the term "moneyed capital ... coming into competition with national banks" is the amount of intangibles of a private bank less the amount of deposit liabilities outstanding, and it is this amount which should be returned as described in the preceding paragraph.
Code Section 92-120 provides further:
".. and it shall be the duty of the Revenue Commission, or such authority as may succeed the present Revenue Commission, to designate any intangible property reported to it under the provisions of this law which constitutes moneyed capital in the hands of individual citizens of Georgia in competition with the business of national banks at the time the assessed valuation is certified under the provisions of this law to be subjected to the State and local tax rates provided for real and tangible

692
personal property and for bank shares. The Revenue Commission shall certify to the respective county tax commissioner or receiver the assessed valuations of intangible property subject to local tax in each county and the said commissioner or receiver shall place the said intangibles which are in the hands of individual citizens of Georgia coming into competition with the business of national banks, on the local tax digest as heretofore provided by law."
This means that when the State Revenue Commissioner, in the process of auditing intangibles tax returns, finds "moneyed capital ... in competition with national banks" reported thereon, he has the duty of designating or pointing out such property as property subject to State and local taxation applicable to tangible property and bank shares, and the additionnal duty of certifying to county tax officials the assessed valuations at which such property is to be placed on the local tax digests. The effect of this is simply to have such property transferred from the intangible property tax digests administered by the State Revenue Commissione:r to the tangible property tax digest administered by the local tax officials.
The property tax on "moneyed capital ... in competition with national banks," as described above, does not preclude the tax on long-term real estate notes prescribed in Section 4 of the 1953 Intangible Property Tax Act (1953 Ga. Laws 379, 383). The latter imposition is a tax on a specific intangible; the tax on "moneyed capital" is not a tax on any _specific intangible but on a net figure equivalent to net worth. The Supreme Court has held that building and loan associations are subject to the tax on long-term real estate notes. Fulton County Federal Savings & Loan Association v. Simmons, 210 Ga. 621: Part II of the 1953 Act (1953 Ga. Laws 379, 388) makes it clear that such associations are also taxable on their net worth. It is, therefore, my further opinion that private banks are also subject to the tax on long-term real estate notes in addition to the property taxation described above.
TAXATION-Banks-Private Banks. (Unofficial) Monied capital of private unchartered banks is subject to five mill tax
levied by executive order of June 9, 1954.
January 14, 1955
Honorable N. H. Harper Tax Commissioner, Berrien County
I wish to acknowledge receipt of your letter of December 28, 1954 in which you state that there is a private bank operating in your county which insists .that it is not subject to any tax except intangible taxes, due to the fact that it is not incorporated as a bank.
The Governor's executive order of June 9, 1954, copy of which I enclose, levied a tax of five mills on all monied capital in the hands of individual associations coming into competition with national banks, banking associations or corporations.
In my opinion, the monied capital used by a private bank comes into competition with national banks, banking associations and corporations and therefore would be subject to the five mills tax.

693
TAXATION---Banks-Private Banks (Unofficial)
Private banks may not avail themselves of an exemption granted national and State banks under income tax provisions.
Octobet 4, 1955
Mr. John B. Spivey
,This is in reply to your lett.er of September 20, 195S, in which, referring to our official opinion of July 22, 1955, dealing with the taxation of the property of private banks, you ask, if the income tax exemption provided in Code Section 92-3105 (1) for banks a~d trust companies doing a general banking business or the income tax exemption provided in Code Section 92-3107 (b) (7) for dividends received on stock of banks and trust companies incorporated under the banking laws of this State or of the United State!'!, might not also be applied to the income of a private bank or the income of the individual proprietors of a private bank.
It was noted in the opinion to which you refer that private banks are of a hybrid nature; they are like private individuals in some respects and like banks in other respects. The question which you raise is whether private banks are by statute dealt with for income tax purposes like private individuals or like banks.
It is clear that Code Section 92-3107 (b) (7) cannot apply to the shares of income received by individual proprietors of a private bank because it expressly applies only to dividends received on stock of banks and trust companies incorporated under the banking laws of this State or of the United States.
Statutes granting exemptions are to be construed strictly against exemption. You will note that Code Section 92-115 expressly grants an exemption to private banks from the intangibles tax. It is my opinion that any statute purporting to grant any sort of exemption to private banks must do so expressly. Accordingly, when Code Section 92-3105 0) exempts "banks and trust companies doing a general banking business," it is my opinion that this must be applied narrowly to only s,tate or federally chartered companies doing a general banking business and is not to be applied broadly to every enterprise engaged in the banking business. In .other words, under present law, it seems that the General Assembly intends to. treat private banks in the same manner as private individuals for income tax purposes and not like chartered banks.

TAXATION-Banks-Real Estate (Unofficial) Quotes law on taxation of real estate owned by banks.

May 13, 1955

Mr. Render Terrell

Pursuant to our telephone conversation of this afternoon, I am writing this letter to give you the unofficial ruling of the Attorney General with request to the following questions:

"How is the real estate held or owned by banks or banking associa-

tions taxed in Georgia?"



As you know, the Federal law permits the States to tax national banks in one of four ways. Pursuant to this permission granted, our Legislature has chosen to tax. the shares of national banks and, I presume in order to equalize taxation on State banks, has also provided for the taxation of State banks in the same manner. Our law in this regard is found in Code Section 92-2406. This Section

provides in part that:

694
"Provided, that nothing in this section shall be construed to relieve such banks or banking associations from the tax on real estate held or owned by them, but they shall return said real estate at its true market value in the county where located: Provided further, That when real estate is fully paid for, the value at which it is returned for taxation may be deducted from the market value of their shares; and if said real estate is not fully paid for, only the value at which the equity owned by them therein is returned for taxation shall be deducted from the market value of their shares." This means that such banks shall return their real property at its full market value. But, since to tax the shares of the bank at their full value without any allowance for the amount of real estate returned by the taxpayer would result in double taxation of the real estate, the second proviso above quoted was included in the law. That proviso, however, does not limit taxation of real estate owned by banks, but really operates as a limitation on the taxation of a bank's shares.
TAXATION-Banks-Sales and Use Tax (Unofficial) State and National Banks are not subject to the Georgia sales and use tax.
AprilS, 191>5
Honorable J. B. Fulghum I wish to acknowledge receipt of your letter of March 28, 1955, in which you
state that during 1953 you purchased an air conditioning system from Conditioned Air Inc., Macon, Georgia, and you were charged no sales tax by Conditioned Air, Inc., nor did you pay any sales tax for the unit. You further state that it is your understanding that State banks are exempt from the Georgia sales tax. However, you have received a letter from Conditioned Air, Inc., stating that they have been called upon to pay tax on sales to certain users and they are billing you with sales tax relative to your purchase.
I assume that Conditioned Air, Inc., has been billed for certain taxes by the Sales Tax Unit on the basis that they are subcontractors and as such are the ultimate consumers of materials purchased by them from York Equipment Company. In another case involving an air conditioning unit sold by Air Conditioning, Inc., to a bank, Air Conditioning, Inc., contended that they were not subject to the payment of the sales tax on the ground that the air conditioning unit was sold by them to a bank. I held in that case that Air Conditioning, Inc., was liable for the sales tax as a subcontractor and as such was the consumer of the unit which was installed in the building. I did not hold and do not now hold that a State or national bank is subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act. In fact, I have consistently held that State banks are not subject to the Georgia sales tax.
TAXATION-Banks-Savings and Loan Associations (Unofficial) A municipality cannot require a business license for a Federal Savings
and Loan Association.
May 26, 1954
Honorable Thomas C. Burton You request my opinion as to whether or not it is legal for the City of

695
Toccoa to require a federal savings and loan association to pay a business license to the City of Toccoa.
The Intangible Tax Act, approved December 22, 1953 (Ga. Laws 1953., Nov.~ Dec. Sess., p. 379) contains the following provision in Part III, Section 1:
"All banks, banking associations, trust companies doing a banking business, and savings banks created and incorporated under the laws of this State, and all building and loan associations incorporated under the Building and Loan Act, approved December 24, 1937, and all building and loan associations incorporated under Ch. 16-2 of the Code of Georgia of 1933, and all Federal savings and loan associations having their principal offices or places of business in this State, shall have the same immunities and exemptions as national banks and banking associations created and incorporated under the laws of the United States and located in this State." The effect of the above provision is to place federal savings and loan associations in the same status as state banks and national banks for taxation purposes. It therefore follows that if national banks and state banks are not required to pay a business license, federal savings and loan associations cannot be required to do so.
TAXATION-Banks-Savings and Loan Associations (Unofficial)
A Savings and Loan Association cannot be taxed upon its "shares" outstanding.
April 30, 1954
Honorable Aaron Kravitch This will acknowledge receipt of your letter relative to the application
of the Intangible Property Tax Act of 1953 to taxation of savings and loan associations.
In your letter you state that the City of Savannah has been taxing banks under Code Section 92-2406 upon their capital stock and now undertakes to tax savings and loan associations thereunder. Banks and banking associations are not taxable but a tax may be levied only upon the capital stock of stockholders of banks. Goodwin v. Citizens & Southern National Bank, 209 Ga. 908. Part II, Section I of the new Intangible Property Tax Act provides that Federal savings and loan associations and building and loan associations shall be taxed on their net worth and this section defines net worth as "all surplus, undivided profits and reserves . . ." It is my opinion that this definition would be strictly limited to surplus, undivided profits and reserves and could not be applicable to shares of the building and loan associations or federal savings and loan associations. These shares are not capital stock in the associations but in the case of local building and loan associations and interstate building and loan associations it is provided by Georgia law that there shall be no capital stock but only shares. This is also the case of the Federal savings and loan associations, 12 U. S. C. A. 1464.
Further, it is a general proposition that where a definition is provided in an act, for the purpose of that act, the definition must be used and it may not be the subject of construction. Therefore, it is my opinion that shares cannot be considered in the net worth of a building and loan association or a Federal savings and loan association for the purpose of taxation.

696
I would like to point out that this construction of .taxation of savings and loan associations may raise a serious question as to conflict between this ta.xa~ tion of savings and loan associations and the taxation of shares of national banks as provided under Title 12 U. A. C. A., .Section 584. As here, it may be that the Legislature has taxed a competitor of national banks at a different rate or at least by a different method than the taxation of shares of national banks. I do not mean to imply that building and loan associations may not be taxed in a different manner but I do suggest questions may be propounded as to whether a tax upon a competitor of a national bank is an unfair tax as to national banks. I rather think that Section 12, U. S. C. A., 1464, which provides that a State, county or municipality may tax a Federal savings and loan association, when it is taxed in the same manner as similar associations are taxed, may answer my question. By this declaration of Congress it seems that the Federal savings and loan association may be taxed in an altogether different manner than a national bank without any relationship as to the proportion of taxes assessed upon the two entities.
TAXATION-Banks-Shares (Unofficial) Banks are required to pay ad valorem tax on the "true market value"
of the outstanding shares of stock of the bank, including, in ascertaining the value of such stock, the surplus and undivided profits of such bank.
April 29, 1955
Honorable L. P. Beddingfield County Attorney, Dooly County
In your letter of April 27, 1955 you, on behalf of the Board of Equalizers of Dooly County, ask the question as to whether or not the undivided profits in your local banks in Dooly County are liable for ad valorem property taxes.
Code Section 92-2406 provides that " ... the shares of the stockholders of the banks or banking associations, whether resident or nonresident owners, shall be taxed in the county where the banks or associations are located, and not elsewhere, at their full market value, including surplus and undivided profits, at the same rate provided by law for the taxation of other property in the hands of private individuals: Provided, that nothing in this sectiori shall be construed to relieve such banks or banking associations from the tax on real estate held or owned by them, but they shall return said real estate at its true market value in the county where located: Provided further, that when real estate is fully paid for, the value at which it is returned for taxation may be. deducted from the market value of their shares; and if said real estate is not fully paid for, only the value at which the equity owned by them therein is returned for taxation shall be deducted from the market value of their shares. The banks or banking associations themselves shall make the returns of the property and the shares herein mentioned and pay the taxes herein provided. . ."
The statute requires, therefore, that the banks themselves shall pay a tax based on the "true market value" of the outstanding shares of stock of th~ bank, .including, in ascertaining the value of such stock, the surplus and undivided profits of such bank.

697
TAXATION-Banks-Shares (Unofficial) The shares of shareholders of banks are taxed at the rate of five mills
on the full market value, but banks are permitted to deduct from the market value of real estate owned by them, which is taxed at the rate of one-quarter mill.

May 4, 1956

Mr. E. M. Davis, Jr.

You request my opinion on county tax returns made on banks of this State.

Section 92-2406 of the Georgia Code, Annotated, provides the method by which banks and banking associations shall be taxed. This section is as follows:

"No tax shall be assessed upon the capital of banks or banking associations organized under the authority of this State or the United States located within this State, but the shares of the stockholders of the banks or banking associations, whether resident or nonresident owners, shall be taxed in the county where the banks or banking associations are located, and not elsewhere, at their full market value, including surplus and undivided profits, at the same rate provided by law for the taxation of other property in the hands of private individuals: Provided, That nothing in this section shall be construed to relieve such banks or banking associations from the tax on real estate held or owned by them, but they shall return said real estate at its true market value in the county where located: Provided further, That when real estate is fully paid for, the value at which it is returned for taxation may be deducted from the market value of their shares; and if said real estate is not fully paid for, only the value at which the equity owned by them therein is returned for taxation shall be deducted from the market value of their shares. The banks or banking associations themselves shall make the returns of the property and the shares herein mentioned and pay the taxes herein provided . . ."

Th amendment to the Constitution, effective January 1, 1953, limited the ad valorem tax to be paid to the State of Georgia to one-quarter mill on all property except bank shares. The rate to be paid on bank shares is limited to five mills.

By executive order, Governor Talmadge for the year 1953 fixed the rate to be charged by county tax collectors on behalf of the State at the maximum limit allowed by the Constitution. Governor Talmadge and Governor Griffin have passed similar executive orders since that date.

It is my personal opinion that under Section 92-2406 of the Georgia Code,

Annotated, the shares of stockholders of banks are taxed for State ad valorem

purposes at the rate of five mills on the full market value, including surplus

and undivided profits, but the banks are permitted to deduct from the market

value of their shares the market value of real estate which is fully paid for or

the value of the equity owned by them in case of real estate not fully paid for,

the real estate to be taxed for State ad valorem purposes at the rate of one-quar-

ter of one mill.



698
TAXATION-Banks-State and National Banks (Unofficial)
National and State banks acting as trustees are liable for the payment of the intangible tax.
December 19, 1955
Mr. Lee S. Purdom
This is in reply to your letter of December 3, 1955, in which you raise certain questions regarding the application of the intangibles tax under Section 4, Part I, of the 1953 Intangible Property Tax Act (Ga. Laws, 1953, Nov.-Dec. Sess., pp. 379, 383), (popularly known as the recording tax on long-term real estate notes) to such notes held by national and state banks on their own accounts and as trustee.
In an official opinion dated February 1, 1954, I held that long-term real estate notes held by State banks in their own account were not subject to this tax. This was based on Section 1, Part III, of that Act which extended to State banks, trust companies, building and loan associations and Federal savings and loan associations "the same immunities and exemptions as national banks." National banks are exempt from all property taxation in this State beyond that prescribed in Code Section 92-2406 by reason of Federal law (12 USCA 548).
However, the Fulton County authorities saw fit to litigate the question in Fulton County S. & L. Association v. Simmons, 210 Ga. 621, and were successful in getting the Supreme Court to say that Section I, Part III, had no relation to the tax imposed by Section 4, Part I. On the basis of this decision I held in an official opinion of December 15, 1954, that State banks were subject to this tax.
The Georgia Bankers Association, however, proceeded to litigate the question again in Washington Loan and Banking Company v. Golucke, Clerk of the Court, and in a decision handed down November 14, 1955, the Supreme Court held that State banks were not subject to the tax. The motion for rehearing has been denied and this is the present status of the matter. I enclose a copy of the decision in this case for your convenience.
In the course of the argument in the Washington case the point was made that the General Assembly does not have constitutional authority to grant any such exemption because of the limitation found in Article VII, Section I, Paragraph IV of the Georgia Constitution. (Ga. Code Ann., Section 2-5404.) Counsel for the bank countered that the point had not been raised in the trial court and, hence, should not be considered on appeal. The Court apparently agreed, and the point was not decided.
Needless to say, these two considerations leave the matter in a confused state, and I understand there is feeling in some counties that further litigation should develop to get the matter cleared up. You understand, of course, that the counties have an interest in the matter and can proceed to litigation independently of the Department of Revenue or this office, as was done in the Simmons case. I am frank to say that this office has not had a chance to fully consider the implications of the Washington decision, and, perhaps, in view of the prospect of further litigation, an opinion of this office is of only secondary importance. I will be glad to keep you informed of our further thinking in the matter.
In regard to your additional question as to the applicability of this tax to banks holding long-term real estate notes as trustee, it is my opinion that even Section I, Part III, extends an exemption only to notes held by banks, both

699
national and State, for their own accounts and does not extend to notes held by them in a fiduciary capacity. Accordingly, both national and State banks, as trustee, are liable for this tax.
TAXATION-Banks-State Banks (Unofficial) A municipality cannot collect a business license tax from a state bank.
December 13, 1956
Mr. J. L. Summerlin You request my opm10n as to whether or not municipalities can levy a
business license tax on State banks. I am of the opinion that the Act approved February 7, 1952 (Ga. Laws 1952,
p. 46), on taxation of banks, prohibits municipalities in the State of Georgia from collecting a business license tax on State banks.
Section 1 of the Act, approved February 7, 1952, states: "It is the policy of this State that all taxation shall be equalized as
between State and National banks." Section 2 of the Act is as follows:
"All banks, banking associations, trust companies doing a banking business, and savings banks, created and incorporated under the laws of this State, shall be subject to taxation on the same basis, in the same manner, to the same extent, and with the same immunities and exemptions as National banks and banking associations created and incorporated under the laws of the United States, and located in this State." Since municipalities cannot levy a business license tax on National banks, they are prohibited under the provisions of the Act in question from levying such a tax on State banks. This is true regardless of any provision in a city charter giving the city the right to levy such a tax. The general law on the subject would take precedence over any special act of the Legislature.
TAXATION-Banks-State Banks (Unofficial) Sales to state banks of goods for use for banking purposes are exempt
from the Georgia Sales Tax.
March 18, 1954
Mr. R. M. Davidson You ask that I furnish you with information concerning the exemption of
State banks from the Georgia Retailers' and Consumers' Sales and Use Tax Act. It is provided by Section 3 (c) 2 of the Sales Tax Act that "Sales to state
banks in Georgia where it is determined that national banks enjoy an immunity from such taxes," shall not be subject to payment of taxes upon purchases which are made for banking purposes.
In my opinion to Honorable Charles D. Redwine, State Revenue Commissioner, on May 10, 1951, it was provided that national banks, as government instrumentalities, were immune to the Georgia Sales Tax Act in the case of purchases made by the bank for its operation. Let me caution you that this immunity does not cover national banks or State banks where the purchase is

700
for a non-banking operation. For example, the buying by a bank of a drink dispensing machine would not be for banking purposes and therefore said sale would be subject to the sales tax.
In resume, a national bank, when making purchases for banking operations, is immune from the imposition of the sales tax and under Section 3 (c) 2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act a State bank is clothed with this same immunity.
TAXATION-Corporations-Cooperative Manufacturing Associations (Unofficial) Cooperative manufacturing associations are exempt from all franchise or license taxes except an annual license fee of $10.00.
March 8, 1955
Mr. R. L. O'Kelley Veterinary Division, Department of Agriculture
This will acknowledge receipt of your letter of February 26, 1955, relative to the question of whether or not the South Georgia Dairy Co-op is subject to the dairy manufacturing plant license and ice cream manufacturing license.
Please be advised that the Supreme Court of Georgia held in the case of Forrester v. Georgia Milk Producers Confederation, 66 Ga. App. 696, that a cooperative manufacturing association is exempt from the payment of occupation taxes levied upon the manufacturers of ice cream, by the Act of 1935, page 36, Section 57, codified as Section 92-1002, Georgia Code Annotated.
Section 65-225, Georgia Code Annotated, reads as follows: "Each association organized hereunder shall pay an annual license
fee of $10.00, but shall be exempt from all franchise or license taxes." It is, therefore, clear that a cooperative marketing association is subject to pay an annual license fee of $10.00, but is exempt from the payment of franchise or license tax under Section 92-2401.
TAXATION-Corporations-Foreign Corporations (Unofficial) (a) Any manufacturer who sells and delivers tangible personal property
in Georgia is required to be licensed and to collect the Georgia sales tax. (b) Manufacturer "doing business" in Georgia is liable for state income
tax.
December 21, 1954
Mr. Jack Edward Dwork This will acknowledge your letter of December 17, 1954 in which you ask the
following questions: "Is an Illinois manufacturer, engaged in interstate commerce, but not
'doing business' in your State, who sells and delivers its products to customers within your State, required to collect a sales tax on such goods and remit the same to your State Department of Revenue?
"Is such manufacturer required to pay a State income tax, use tax, or any similar form of tax in your State, under the above circumstances?"

701
I am enclosing a copy of our Sales and Use Tax Act and I call your attention especially to Sections 4 and 20 of this Act in reference to your first question. This Act has been amended since 1951 but I believe the only amendment which would be of interest in reference to your first question would be an amendment to Section 4 which defines a "dealer" as meaning and including "every person who solicits business either by representatives or by the distribution of catalogs or other advertising matter and by reason thereof receives and accepts orders from consumers in the State of Georgia, and such dealer shall collect the tax imposed by this Chapter from the purchaser and no action either in law or in equity on a sale or transaction as provided by the terms of this Chapter may be had in this State by any such dealer unless it be affirmatively shown that the provisions of this Chapter have been fully complied with."
From your study of the Sales. and Use Tax Act, I believe you will find that any manufacturer, etc., who sells and delivers tangible personal property into Georgia is required to be licensed and to collect our sales tax and to remit it to the Department of Revenue, State of Georgia.
In answer to your second question, Section 92-3113 of the 1933 Code of Georgia provides that every corporation owning property or doing business in this State is subject to our income tax. "Doing business" is defined as any activity or transaction engaged in for the purpose of profit or gain, whether or not the corporation maintains an office or a place of doing business within this State or whether or not any such activity or transaction is within interstate or foreign commerce. From your question it would be my personal opinion that the manufacturer you have in mind would be subject to our income tax on an apportionment basis.
TAXATION-Corporation-Foreign Corporations (Unofficial) Discusses tax liability of a foreign corporation doing business in Georgia.
November 9, 1956
Lord Manufacturing Company You state that you, a foreign corporation, have rented an office in Atlanta,
Georgia, and are interested in knowing what taxes, if any, are applicable to your operation in Georgia and what registration papers it will be necessary to file.
You described your operations in Georgia as follows: You will have one field representative and one secretary in your Atlanta office. The field representative will travel throughout Georgia and other States and his duties will be to contact manufacturers and others to recommend to them the installation of your products. You will carry no inventories in the State of Georgia, and the field representative will not take orders from customers. All orders will be mailed to Erie by the buyers, will be subject to acceptance at Erie, and will be shipped f.o.b. Erie. There will be no bank accounts in Georgia, although your field representative will have a small petty cash fund in the Atlanta office. The maximum number of employees in the Atlanta office will be one field representative arid an office secretary and the representative will cover not only the State of Georgia, but also other Southeastern States.
Now, as you have stated, the main question is whether the operation contemplated in Georgia, as described above, constitute "doing business" in Georgia?
Our statute (Georgia Code Ann., 1955 Com. Pocket Part, 93-3113) defines "doing business" as follows:
"Every ... corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions

702
for the purpose of financial profit or gain, whether or not such corporation qualifies to do business in this State, and whether or not it maintains an office or place of doing business within this State, and whether or not any such activity or transaction is connected with interstate or foreign commerce."
It appears to me that the operations which you contemplate in Georgia fall within the scope of the above statute and would constitute "doing business" in this State.
Now, what does this entail in the way of taxation in the State of Georgia? Quite obviously, your income would be multistate, that is, income earned within and without this State. Our statute undertakes to tax only that portion of this income attributable to the business done within this State. This apportionment is worked out by the use of a three factor formula:
(1) Ratio of average monthly inventory maintained within this State to total average monthly inventory of entire business.
(2) Ratio of compensation and commissions paid for services in this State to total compensation and commissions paid by entire business.
(3) Ratio of gross receipts from business done within Georgia to total gross receipts from all business.
The above are not stated in the statutory language but do state the substance of the matter. The three ratios are added together and divided by three and the resultant is the apportionment factor.
Referring now to your contemplated operations in this State, since you would maintain no inventory in Georgia, but would maintain inventories elsewhere, the inventory ratio would be zero. The numerator of the payroll ratio would be the wages and salaries paid to your Georgia representative and the secretary in the Atlanta office and the denominator would be the total wages, salaries and commissions paid in the operation of your entire business. The numerator of the gross receipts ratio would be the total gross receipts realized from shipments to Georgia customers and the denominator would be the total gross receipts from the operation of your entire business. As stated, these three ratios would be added together and divided by three and the resultant would be the apportionment factor to be used in arriving at income attributable to activities in this State. This ratio will obviously be small since your activities within the State are small.
We also have in this State (Georgia Code Ann.; 1955 Cum. Pocket Part, 92-2403) a corporate franchise tax based on net worth (i.e., issued capital stock, paid-in surplus and earned surplus). The total net worth of a foreign corporation doing business within and without this State is apportioned by the application of a two-factor formula: (1) Its property and assets employed in this State to the total of property and assets employed in the business as a whole, and (2) the volume of business done in this State to the total volume of business done by the corporation (i.e., the gross receipts factor of the income tax law). The resultant ratio determined by adding the above ratios and dividing by two is then applied to net worth. The tax rate runs from $10.00 up to $5,000.00, depending on the amount of this apportioned net worth.
A foreign corporation doing business in Georgia also has an obligation under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Code Ann., 1955 Cum. Pocket Part, 92-3404a). It appears from your letter that your products are not bought by customers in Georgia for resale, but are bought for industrial use. Under these circumstances, our use tax would apply and our statute makes the seller, that is, your corporation, a "dealer" for the purposes of collecting

'703
our three per cent tax on such transactions. In so doing, however, you merely act as agent of the State in collecting this tax because the statute specifically requires that the tax is a liability of the consumer and that it must be passed on by the dealer to the consumer.
Of course, to the extent that your company would own tangible property in this State, this property would be subject to State, county and municipal ad valorem taxation.
With regard to the unemployment compensation tax, although you would have only two employees in this State, for purposes of your coverage under the Georgia law our statute (Georgia Code Ann., 1955 Cum. Pocket Part, 54-657 (g) (7) makes the total number covered of employees covered by the Federal unemployment compensation laws determinative. This means, undoubtedly, that the salaries and wages paid to your two Georgia employees up to $3,000.00 each would be subject to the Georgia unemployment tax. However, as you know, this does not entail an additional burden because the Georgia tax would be a credit against the Federal tax.
TAXATION-Corporations-Liability (Unofficial) A branch manufacturing shop in Georgia, shipping all its completed goods
to a main plant located outside the State, which in turn makes all sales, is taxable under Georgia laws to the extent that the Georgia operation produced income to the main corporation.
December 7, 1954
Miss A. Barbato You have requested my opinion as to whether a foreign corporation operating
a branch manufacturing shop in Georgia and shipping all its completed goods to the main plant located outside Georgia (which in turn makes all sales of such products) would be considered as doing business for Georgia income tax purposes. You state that no income will be received by the Georgia plant for its part in the manufacture of the product.
It would seem that if an ultimate profit is made by the main corporation, the services performed by the Georgia operation certainly played some part in producing that profit. To the extent the Georgia operation produced income to the corporation, the corporation would, therefore, be taxed under Georgia Code Section 92-3113 as doing business in Georgia.
TAXATION-Corporations-Liability (Unofficial) A Georgia corporation is taxable, even though it is not "doing business."
September 28, 1956
Mr. John W. Bennett You inquire about the applicability of the tax imposed by Code Section 92-2401
to a Georgia corporation which does no more than hold title to certain property, collect rents therefrom, and disburse the rents to the shareholders. Particularly, you cite the case of Harrison v. Forsyth Hunter Company, 170 Ga. 640,.for the proposition that such a corporation would not be subject to the tax under Code Section 92-2401, and ask if we know of anything to the contrary.

704
The Forsyth Hunter Company case arose under the Act of 1929 which applied to "all corporations incorporated under the laws of Georgia and doing business therein...." (Emphasis supplied.) The Supreme Court held that the activity of this corporation was not sufficient to constitute "doing business" and therefore, the corporation was not subject to the tax. The Act of 1931 (Ga. Laws 1931, Ex. Sess., p. 76) appears to have eliminated the "doing business" requirement for the application of the tax. The present Code Section 92-2401, likewise, contains no requirement of "doing business." It is, therefore, my conclusion that the Forsyth Hunter Company case is not applicable to the present statute and that your corporation would be subject to the tax.
TAXATION-Corporations-:-Liability (Unolficial) Discusses concept of "doing business" in Georgia, and ensuing tax liability.
October 18, 1956
Mr. Lauch M. Magruder, Jr. You request an unofficial opinion concerning the concept of "doing business"
under the tax laws of this State. Code Section 92-3113, with respect to the Georgia income tax, provides in part: "Every ... corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, whether or not such corporation qualifies to do business in this State, and whether or not it maintains an office or place of doing business within this State, and whether or not any such activity or transaction is connected with interstate or foreign commerce." In your letter you suggest a hypothetical situation of a non-resident manu-
facturing company with nation-wide distribution and advertising but which does nothing in Georgia except sell through an independent manufacturer's representative who submits orders to the company's principal office under a standard commission arrangement, which orders are accepted and shipped from outside this State.
In our opinion, what you call a manufacturer's representative constitutes a selling agency of this non-resident corporation which, by means of this agency, is engaging within this State in activities or transactions for the purpose of financial gain or profit. Income-producing activities are none the less activities whether done by employees or by agents or representatives. If the local representative were a jobber or distributor and actually buys and takes title from your nonresident manufacturer and resells the goods for his own account, and no other activity on the part of the non-resident manufacturer, except the delivery of goods previously ordered, takes place within this State, we would have to concede that this does not constitute "doing business" in this State. However, it is our opinion that under the hypothetical situation you suggested, such activity does constitute "doing business" in this State within the meaning of the above statute.
Since your hypothetical nonresident corporation is doing business within and without this State an apportioned part of its net income would be subject to the Georgia income tax. This apportionment is worked out by the use of a three factor formula:

705
(1) Ratio of average monthly inventory maintained within this State to total average monthly inventory of entire business.
(2) Ratio of compensation and commissions paid for services in this State to total compensation and commissions paid by entire business.
(3) Ratio of gross receipts from business done within Georgia to total gross receipts from all business. The above are not stated in the statutory language but do state the substance of the matter. The three ratios are added together and divided by three and the resultant is the apportionment factor. Referring again to your hypothetical situation, since you maintain no inventory in Georgia but do maintain inventories elsewhere the inventory ratio would be zero. The numerator of the payroll ratio would be the total commissions paid to the Georgia representative and the denominator would be the total wages, salaries and commissions paid by the entire business. The numerator of the gross receipts ratio would be the total gross receipts realized from shipments to Georgia customers and the denominator would be the total gross receipts of the entire business. In your letter you state that your hypothetical nonresident corporation is considering establishing a warehouse in this State and ask the effect of this. It would mean that the inventory factor would change from zero to a ratio, the numerator of which would be the average monthly inventory maintained at this Georgia warehouse and the denominator would be the average monthly inventory of the total business. The above, I think, answers your inquiry as far as the Georgia income tax is concerned. Code Section 92-2403 imposes a franchise tax based on net worth (i.e., issued capital stock, paid-in surplus and earned surplus). The total net worth of the company is to be apportioned by the application of a two-factor formula: (1) Its property and assets employed in this State to the total of property and assets employed in the business as a whole, and (2) the volume of business done in this State to the total volume of business done by the corporation (i.e., the gross receipts factor of the income tax law). The resultant ratio determined by adding the above ratios and dividing by two is then applied to net worth. The rate runs from $10 up to $5,000 depending on the amount of this apportioned net worth.
.TAXATION-Corporations-R. E. A. (Unofficial) R. E. A. is not subject to a business license tax imposed by a municip~lity.
July 6, 1954
Mr. William E. Spence You state: "Is the R. E. A. subject to a business tax when they are dispensing electricity within the corporate limits of a town and otherwise transacting a business comparable to the Georgia Power Company 'I" Article VII, Section I, Paragraph IV of the Constitution of Georgia of 1945
(Code Section 2-5404) contains the following provision: "The General Assembly may, by law, exempt from taxation all public
property; places of religious worship or burial; all institutions of purely public charity; all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of, religious, educational and charit-

706
able institutions, no part of the net profit from the operation of which can inure to the benefit of any private person; all buildings erected for and used as a college, incorporated academy or other seminary of learning, and also all funds or property held or used as endowment by such colleges, incorporated academies or seminaries of learning, provided the same is not invested in real estate; ..
. . "All cooperative, non-profit, membership corporations organized under the laws of this State for the purpose of engaging in rural electrification, as defined in subsection I of Section 3 of the Act approved March 30, 1937, providing for their incorporation, and all of the real and personal property owned or held by such corporations for such purpose, are hereby exempted from all taxation, state, county, municipal, school district and political or territorial subdivisions of the State having the authority to levy taxes. The exemption herein provides for shall expire December 31, 1961." In accordance with the above provision of the Constitution, the General Assembly in 1946 enacted the following law:
Code Section 34A-130.1. "Exemption from all Taxation.-All cooperative, nonprofit, membership corporations organized under the laws of this State for the purpose of engaging in rural electrification, as defined in Section 34A-103, and all of the real and personal property owned or held by such corporations for such purpose, are hereby exempted from all taxation, state, county, municipal, school district and political or territorial subdivisions of the State having the authority to levy taxes. The exemption herein provided for shall expire December 31, 1961." Prior to the enactment of the above-quoted section, in 1937 the General Assembly enacted Code Section 34A-130, which is as follows:
"License fees; exemption from excise taxes.-Corporations found under this Chapter shall pay annually, on or before July 1, to the Comptroller General of the State, a fee of five dollars for each 100 members or fraction thereof, but shall be exempt from all other excise taxes of whatsoever kind or nature." In view of the above-quoted provisions of the Constitution and Code Sections, I am of the opinion that the Town of Alpharetta would not be authorized to levy a business tax upon the R. E. A. for business done in the Town of Alpharetta.
TAXATION-Corporations-State License Tax (Unofficial) A corporation must pay a minimum tax of $10.00, even though it has a
negative net worth.
October 19, 1956
Mr. Ray B. Patrick, Jr. You ask the question whether a corporation must pay the license tax imposed
by Georgia Code Section 92-2401 when the corporation shows a capital deficit, or a negative net worth.
Such corporation would be obligated to pay the minimum tax of $10.00, since there is no question that the corporation has a "net worth not exceeding $10,000.00." The statute imposes a franchise tax for the privilege of doing business in corporate form. The statute imposes a minimum tax of $10.00 which is accellerated, however, in accordance with net worth, including capital stock, paid-in surplus, and earned surplus.

707
TAXATION-Counties-County Tax Digest Form Commissioner of Revenue has discretion in authorizing use of tax digest
forms.
December 30, 1954
Honorable Charles D. Redwine Commissioner of Revenue
Pursuant to your request I have discussed with Standish Thompson, Assistant Tax Commissioner of Fulton County, certain changes in their tax digest forms for 1955.
Fulton County would like to break their digest forms into two parts-the first to provide for the listing of the owner's name in full, the location of the property, its description, whether real or personal, its gross and net value, and the tax due. The second would provide for the listing by alphabetical arrangement of the consolidated totals of each of the classes of property, as provided in Section 92-6503 of the Georgia Code.
It is my opinion that the forms suggested comply with the requirements of the law, and it is within your administrative discretion to authorize their use. You may, of course, require the furnishing of additional information if the occasion should arise.
TAXATION-Counties-Erroneous Publication of Levy (Unollicial) Since failure to publish the county tax levy, as required by Code Section
92-3802, does not invalidate the levy, where a mistake is made in the publication it is not void.
September 17, 1956
Mr. Maxwell A. Hines You point out that an error was made in advertising the county tax levy of
Tift County. You request my opinion as to what effect on the tax levy this error might have.
Code Section 92-3802 of the Georgia Code Annotated provides for the advertising for the county tax levy. This section is as follows:
"The ordinary or other county authority empowered to levy taxes shall advertise immediately a copy of such order for 30 days at the door of the courthouse and in a public newspaper, if one is published within the limits of the county, and furnish the tax collector with another copy." The Supreme Court of our State in the case of McMillan et al v. Tucker, Commissioner, et al, 154 Ga. 154, held that this code section is directory and not mandatory, and that a failure to comply with the provision does not render the tax levy void. Headnote 8 of this decision is as follows:
"The provision of the Civil Code (1910), 515, in reference to advertising the order levying county taxes 'is directory and not mandatory', and a failure to comply with such provision does not render the tax levy void." The Supreme Court also held in the case of Garrison et al v. Perkins et al, 137 Ga. 744, at page 758:
"Where the ordinary has advertised a copy of the order containing the tax levy at the door of the court-house for the time prescribed by the statute (Code, 515), failure to publish the same will not render the levy

708
void. We think that the provisiOn for advertising may be treated a::; directory; but in our opinion ordinaries and other county authorities having charge of the revenues of the county should comply not only with the mandatory requirements of a statute, but, as far as practicable, with those provisions of the statute which can be construed to be only directory, in all cases where measures for raising taxes are concerned. This objection applies also to the failure of the tax levy to show the per cent upon the amount of the State tax for the year. Sufficient data is given in the levy in the present case to clearly show the per cent upon the amount of the State tax, but it would have been better to express that per cent in words and figures." Since the failure to publish the county tax levy as required by Section 92-3802 would not invalidate the levy, it is obvious that in a case where a mistake is made in the publication of the tax levy that it would not be void.
TAXATION-Estate Tax-Filing Copy of Federal Return with State (Unofficial) Where an estate does not show a gross valuation of $100,000.00, there is
no necessity for filing a copy of the Federal return with the State.
September 7, 1954
Mr. J. J. Willingham You state that it is your understanding that where an estate does not show
a gross valuation of $100,000 there is no necessity for filing a copy of the Federal estate tax return with the proper authorities of the State of Georgia.
Your impression is correct. It is not necessary to file a copy of the Federal estate tax return with the State of Georgia where the gross valuation of the estate is less than $100,000.
TAXATION-Exemptions-Agricultural Products (Unofficial) Agricultural products in the hands of a processor are not exempt from
ad valorem taxation.
November 26, 1954
Honorable AI S. Hill, Secreary, Board of Griffin-Spalding County Tax Assessors
You ask whether cotton and other agricultural products, in the hands of an industry or processor, would be exempt under Code Section 5-606 from ad valorem taxes.
Article VII, Section I, Paragraph IV of the Georgia Constitution provides the exemptions from ad valorem taxation in this State. This provision of the Constitution is exclusive in the matter and would supersede Section 5-606. This section applies to sales of agricultural products (City of Atlanta v. Georgia Milk Producers' Confederation, 187 Ga. 117) and does not exempt from ad valorem taxation agricultural products held by a processor.
In an official opinion of February 14, 1949 (Opinions of the Attorney General, 1948-1949, p. 658) it was held that only agricultural products in the hands of the producer or the farmer are exempted from taxation under the above-quoted section o:f the Constitution.

709
TAXATION-Exemptions-Businesses and Industries (Unofficial) County may not exempt property from taxation to induce new industries
to move in. Use of revenue derived from taxation for advertisement to induce new
industries to move in requires constitutional amendment.
May 2, 1955
Honorable Jack Murr Representative, Sumter County
This will acknowledge receipt of your letter of April 22, 1955, in which you ask several questions relative to the granting of free taxes and water to new industries and businesses to induce them to locate in your area.
On the question of granting exemption from taxes, Code Section 2-5404, 1954 Supplement, deals with exemptions from taxation. The last sentence of that section reads as follows:
"All laws exempting property from taxation, other than the property herein enumerated, shall be void." Code Section 2-5801 deals with the taxing power and contributions of counties, cities and political divisions. These two Code Sections, construed together, would seem to prohibit the granting of free taxes for any time. On the question of advertising by using revenue derived from taxation, some cities have adopted constitutional amendments to authorize the levying of a tax for the purpose of encouraging the location of new industries within the city. You will find some of those listed under Code Section 2-5801 in the 1954 Supplement.
TAXATION-Exemptions-Businesses and Industries (Unofficial) Neither the state, county, or municipal authorities have authority to
grant tax exemptions to incoming industries.
August 17, 1954
Mr. Don Channell You state: "We have had a number of inquiries from time to time regarding the legality of allowing county or municipal tax exemptions to incoming industries. It has been our opinion that the Georgia Constitution prohibits such exemptions." Neither the State, county or municipal authorities have authority to grant
tax exemptions to incoming industries. The exemption of industries from taxation is prohibited under the Constitution
of the State of Georgia. Article VII, Section I, as codified in Code Section 2-5401 is as follows:
"2-5401. Taxation, a sovereign right; tax on corporations.-The right of taxation is a sovereign right-inalienable, indestructible-is the life of the State, and rightfully belongs to the people in all Republican governments, and neither the General Assembly, nor any, nor all other departments of the Government established by this Constitution, shall ever have the authority to irrevocably give, grant, limit, or restrain this right; and all laws, grants, contracts, and all other acts, whatsoever, by said gov-

710
ernment, or any department thereof, to affect any of these purposes, shall be, and are hereby, declared to be null and void, for every purpose whatsoever; and said right of taxation shall always be under the complete control of, and revocable by, the State, notwithstanding any gift, grant or contract, whatsoever, by the General Assembly.
"The power to tax. corporations and corporate property, shall not be surrendered or suspended by any contract, or grant to which the State shall be a party."
The only tax exemptions which may be granted in the State of Georgia are contained in Article VII, Paragraph IV as codified in Code Section 2-5404. This section is as follows:
"2-5404. Exemptions from taxation.-The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of, religious, educational and charitable institutions, no part of the net profit from the operation of which can inure to the benefit of any private person; all buildings erected for and used as a college, incorpo:ooted academy or other seminary of learning, and also all funds or property held or used as endowment by such colleges, incorporated academies or seminaries of learning, provided the same is not invested in real estate; and provided, further, that said exemptions shall only apply to such colleges, incorporated academies or other seminaries of learning as are open to the general public; provided further, that all endowments to institutions established for white people, shall be limited to white people, and all endowments to institutions established for colored people, shall be limited to colored people; 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 statuary 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 the purpose of private or corporate profit and income, distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such property is used exclusively for religious, educational and charitable purposes, or for either one or more of such purposes and for the purpose of maintaining and operating such institution; this exemption shall not apply to real estate or buildings other than those used for the operation of such institutions and which is rented, leased or otherwise used for the primary purpose of securing an income thereon; and also provided that such donations of property shall not be predicated upon an agreement, contract or otherwise that the donor or donors shall receive or retain any part of the net or gross income of the property. 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.
"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 $300.00 in actual value.
"The Homestead of each resident of Georgia actually occupied by the

711
owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such, but not to exceed $2,000.00 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness, provided, however, should the owner of a dwelling house on a farm, who is already entitled to homestead exemption, participate in the program of rural housing and obtain a new house under contract with the local housing authority, he shall be entitled to receive the same homestead exemption as allowed before making such contract. The General Assembly may from time to time lower said exemption to not less than $1,250.00. The value of all property in excess of the foregoing exemptions shall remain subject to taxation. Said exemptions shall be returned and claimed in such manner as prescribed by the General Assembly.__ The exemption herein provided for shall not apply to taxes levied by municipalities.
"All cooperative, non-profit, membership corporations organized under the laws of this State for the purpose of engaging in rural electrification, as defined in subsection I of Section 3 of the Act approved March 30, 1937, providing for their incorporation, and all of the real and personal property owned or held by such corporations for such purpose, are hereby exempted from all taxation, state, county, municipal, scho.ol district and political or territorial subdivisions of the State having the authority to levy taxes. The exemption herein provided for shall expire December 31, 1961.
"There shall be exempt from all ad valorem intangible taxes in this State, the common voting stock of a subsidiary corporation not doing business in this State, if at least ninety per cent of such common voting stock is owned by a Georgia corporation with its principal place of business. located in this State and was acquired or is held for the purpose of enabling the parent company to carry on some part of its established line of business through such subsidiary.
"All laws exempting property from taxation, other than the property herein enumerated, shall be void." (Emphasis supplied.)
TAXATION-Exemptions-Education (Unofficial) Land leased from a private individual by a school on a long term lease
with option to buy is taxable.
August 16, 1956
Dr. George M. Sparks Receipt is acknowledged of your letter of August 14th requesting our opinion
as to whether or not city taxes will have to be paid on the property at 11-19 Gilmer Street, S. E., under lease by the Board of Regents from one Scott Hudson.
The lease provides for a term of twenty-five (25) years with an option to purchase exercisable in the event of either of two contingencies:
(1) At any time after two years subsequent to death of the lessor, and (2) in any event at any time after January 1, 1964, up to and including January 31, 1964. The lease provides that the Regents agree to pay all taxes but nothing

712
in the lease is to be construed as an admission of liability therefor, and that the Regents may contest the taxability of the leased premises.
Although this lease vests the State of Georgia with certain incidents of title, at best, it is a long term lease with an option to purchase. The Code, Section 92-110, provides that taxes shall be charged against the owner of the property, if known, and against the property itself if not known.
In Culbreth v. Southwest Ga. Housing Authority, 199 Ga. 183, 189, it was said:
"Public property, within the meaning of that clause of the Constitution which authorizes the General Assembly to exempt from taxation all public property, embraces only such property as is owned by the State, or some political division thereof, and title to which is vested directly in the State, or one of its subordinate political divisions, or in some person holding exclusively for the benefit of the State, or a subordinate public corporation."
In the instant situation title to the property is still in Mr. Hudson. Therefore, I am inclined to the view that this property is. taxable by the City of Atlanta.
Under Code, Section 92-104, interests in property less than a fee simple interest are declared to be taxable by the owner thereof, and in some instances the Supreme Court has upheld taxation of leasehold interests under the particular facts of those cases. See Wright v. Central of Georgia Railway Co., 146 Ga. 406 upholding taxation of a leasehold held by the railroad for a period of one hundred years, renewable forever, reversed on other grounds, 247 U. S. 527; Henry Gra.dy Hotel Co. v. City of Atlanta, 162 Ga. 118, upholding taxation of a leasehold interest in the Henry Grady Hotel for a period of fifty years; Penick et al v. Atkinson, 139 Ga. 649, holding that a lease of land to "A" for as long as he and his heirs shall pay a stipulated ground rent constitutes the lessee the taxable owner.
If it were possible to legally establish that the leasehold constituted a separate taxable interest, this would result in the property being taxable only as to the remainder or reversionary interest held by Mr. Hudson. In other words, it would be necessary to evaluate the leasehold interest held by Georgia and subtract this amount from the total value of the fee simple. However, I am nevertheless of the opinion that the courts would probably hold the entire value of the property taxable against Mr. Hudson. This is just my opinion, as I do not believe that the question is capable of any final determination except by a court decision. The cases dealing with similar problems always turn on the facts of that particular situation, and it is difficult, if not impossible, to apply the precedents established in one case to another case having a different factual situation. I will state that if the Regents had constructed a valuable building or other structures on the property, I would then be inclined to the view that taxes could be levied only against the value of the land and not the combined value of the land and building. See 51 Am. Jur., Section 435 (Pocket Parts Supp.).
In conclusion, my educated guess again is that the courts would hold the property taxable. The fact that the State by contract is required to pay the taxes is immaterial, since the State in this case is paying these taxes not as taxes but as rent. See Opinions of the Attorney General, p. 187. (1952-53)

713
TAXATION-Exemptions-Electric Membership Corporations (Unofficial) Electric Membership Corporations, chartered under Chapter 34-A-1
Georgia Code Anno., are not subject to ad valorem taxation on automobiles owned by them.
February 23, 1956
Mr. H. J. Clifton You inquire whether or not a corporation incorporated under the Electric
Membership Corporation Act is required to pay personal property tax on the automobiles owned and operated by them in the State of Georgia.
Code Sections 34A-130 and 34A-130.1 of Title 34A, under which Electric Membership Corporations are chal'tered, are as follows:
"34A-130. License fees; exemption from excise taxes.- Corporations formed under this Chapter shall pay annually, on or before July 1, to the Comptroller General of the State, a iee, of five dollars for each 100 members or fraction thereof, but shall be exempt from all other excise taxes of whatsoever kind or nature. (Acts 1937, pp. 644, 657.)"
"34A-130.1. Exemption from all taxation.-All cooperative, nonprofit, membership corporations organized under the laws of this State for the purpose of engaging in rural electrification, as defined in Section 34A-103, and all of the real and personal property owned or held by such corporations for such purpose, are hereby exempted from all taxation, state, county, municipal, school district and political or territorial subdivisions of the State having the authority to levy taxes. The exemption herein provided for shall expire December 31, 1961. (Acts 1946, pp. 12-14.)" The Act approved March 9, 1955 (Ga. Laws 1955, pp. 639-643), requiring an affidavit to be filed showing payment of all ad valorem taxes due the State does not change the exemption from taxation granted to Electric Membership Corporations. I am, therefore, of the opinion that Electric Membership Corporations chartered under the provisions of Chapter 34A of the Code of Georgia are not subject to personal property taxes on the automobiles owned and operated by them.
TAXATION-Exemptions-Exemption Certificate (Unofficial) Employees of a person holding an exemption certificate are also exempt
from tax.
January 12, 1956
Honorable H. Lee Moore You request my opinion as to whether or not a blind person who holds a
certificate issued by the State Revenue Commissioner providing that he may peddle or conduct business in any town, city or muniCipality in this State without paying a license fee for the privilege of so doing, may employ agents to assist him in his business. You ask if such employees of the blind person holding an exemption certificate would also be exempt from payment of taxes or would the exemption be limited to the blind person designated in the certificate.
Under the Acts of 1935, as set forth in Code Section 92-306, persons holding an exemption certificate were limited to one employee. However, in 1939 this

714
limitation was removed by the General Assembly, as set forth in Code Section 92~806 of the Supplement to the Code.
The Court of Appeals, in the case of Anglin v. The State, 12 Ga. App. 159, and also the Supreme Court, in the case of Hartfield v. Colu~bus, 109 Ga. 112, in construing a similar statute with reference to the exemption granting Confederate soldiers license to peddle, held: "We infer that it was the intention of the Legislature to allow Confederate veterans to employ agents, servants, or other employees in the conduct of their peddling, where it appears that the alleged agents and employees do in fact and in good faith sustain that relation to the holder of the certificate."
No case construing the question you propound with reference to Code Section 84-2011 has been decided since the Acts of 1953, at which time Code Section 84-2011 was enacted into law. However, in my opinion, should the question arise, the courts would follow the decision rendered in cases arising under similar statutes, which would mean that the exemption would extend to bona fide employees of the person holding the tax exemption certificate.
TAXATION-Exemptions-Federal Government (Unofficial) (a) Georgia cannot levy a tax upon the Federal Government. (b) However, a tax may be levied on an instrument guaranteed by
the Veteran's Administration.
September 29, 1954
Honorable E. M. Brewton You inquire as to whether or not an agency of the Federal Government is
required to pay intangible taxes to the State of Georgia. The State of Georgia cannot levy a tax upon the Federal Government. You
ask whether or not the Administrator of Veterans' Affairs is subject to the payment of taxes under the Intangible Tax Act; My information is that the Veterans' Administration does not make loans to veterans; they only guarantee the payment thereof to banks or other lending agencies who actually make the loans. The fact that a loan is guaranteed by the Veterans' Administration or any other agency of the Government would not relieve the holder of the loan instrument from paying intangible taxes due thereon.

TAXATION-Exemptions-Fraternal Organizations (Unofficial)
Fraternal organizations, such as Elks, Moose, V. F. W., are not exempt from state and county ad valorem taxations.

December 21, 1954

Mr. Frank N. Wansley

You ask: "If fraternal organizations such as Odd Fellows, Elks, Moose, V. F.

W., country clubs, possessing land lots with appurtenances thereon, are exempt

from State and comity taxes, also exactly what is exempt."



Code Section 92-201 of the State of Georgia which was enacted in accordance

with Section 2-5002 of the Constitution of the State of Georgia, contains the

following provision:

715
"The following described property shall be exempt from taxation, to-wit: all public property, places of religious worship and places of burial, all institutions of purely public charity ..." The question as to whether or not the organizations named in your letter and other organizations would be exempt from taxation would depend upon whether they come within any of the above exemptions as provided in Code Section 92-201. On October 5, 1950, the Attorney General rendered an official opinion to the late Harvey Atkinson, Director of the Property and License Tax Unit of the Department of Revenue, on whether or not the property of the American Legion Posts were exempt from taxation. [See 1950 Ops. of Atty. Gen., p. 154, where it was stated American Legion clubs are not institutions of purely public charity as contemplated by our statutes, and therefore, are not exempt from taxation.]
TAXATION-Exemptions-Public Charities (Unotlicial) Masonic Hall is exempt from state and county taxation.
November 9, 1954
Honorable Allen Pannell You request my opinion as to whether a dwelling house converted into a meet~
ing hall for Masons is subject to State and county taxation. Under Paragraph II, Section I, Article VII of the Constitution of this State,
the General Assembly is authorized to exempt from taxation all institutions of purely public charity. In pursuance of this power, the Legislature has exempted from taxation all institutions of purely public charity (Code Section 92-201). The Supreme Court of our State, in the case of Massenburg et al v. The Grand Lodge, F. & A. M. of the State of Georgia, 81 Ga. 212, where the Masonic Lodge owned a building and occupied a portion of it for the purpose of carrying on the activities of the lodge and rented a portion for stores and collected rent therefrom, held: "The most the grand lodge could rightfully claim was to have the rule of apportionment which we have indicated recognized and applied in making returns for taxation." However, as I understand your letter; the dwelling which has been converted into a lodge hall will be used exclusively by the lodge in its fraternal and charitable work and no part of it will be used for any commercial enterprise. If this is true, the building so used would be exempt from taxation.
TAXATION-Exemptions-Religious Institutions (Unofficial) A trailer owned by a church, situated on church land, and used as a
parsonage, is exempt from taxation.
October 30, 1956
Rev. William F. Chappell You state: "I am writing you in regards to my tax statement, and our trailer,
which is on church property and is being used as a parsonage, as our
understanding is, that anything used in church work is exempted." The Legislature passed an Act approved February 23, 1955 (Ga. Laws 1955, p. 262), providing tax exemption for "all public property; places of religious wor-

716
ship or burial, and all property owned by religious groups used only for single family residences and from which no income is derived ..."
Under this Act of the Legislature the trailer described in your letter if it is owned by the church, located on church property and being used as a residence for the pastor, and the church deriving no income therefrom, the trailer would not be subject to taxation, however, if the trailer is owned by you individually, it would be subject to taxation.
TAXATION-Exemptions-Religious Institutions (Unofficial) (a) Land owned by a religious organization is exempt from taxation, so
long as it is used for religious worship or as a recreational park for purely public charity.
(b) Land owned by an organization, which is normally tax exempt, is subject to taxation when leased for commercial purposes.
September 6, 1956
Honorable Robert E. Coleman You state: "The Atlanta Presbytery, Inc., purchased 548.2 acres of land in Clayton County for a park or recreation center. Please give me your opinion as to the tax status. Is it subject to taxation or is it exempt under churches and charitable institutions? "Also, Forest Park Lodge No. 399, F. & A.M. leased a small lot adjacent to the Masonic Building to Gulf Oil Corp. for a service station. In the lease Gulf Oil stipulated that the lodge would pay all taxes on the lot and the company would pay taxes on all improvements. The members would like to know your opinion as to whether this property under lease is sub~ ject to taxation or not." Section 2-5404 of the Constitution of the State of Georgia contains the follow-
ing provision providing for the exemption of places of worship and purely public charity. This provision is as follows:
"The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of, religious, educational and charitable institutions, no part of the net profit from the operation of which can inure to the benefit of any private person; all buildings erected for and used as a college, incorporated academy or other seminary of learning, and also all funds or property held or used as endowment by such colleges, incorporated academies or seminaries of learning, provided the same is not invested in real estate; and provided, further, that said exemptions shall apply to such colleges, incorporated academies or other seminaries of learning as are open to the general public; provided further, that all endowments to institutions established for white people, shall be limited to white people, and all endowments to institutions established for colored people, shall be limited to colored people; 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 philsophical apparatus and all paintings and statuary of any company or association, kept in a public

717
hall and not held as merchandise or for purpose of sale or gain; provided the property so exempted be not used for the purpose of private or. corporate profit and income, distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such property is used exclusively for religious, educational and charitable purposes, or for either one or more of such purposes and for the purpose of maintaining and operating such institution; this exemption shall not apply to real estate or buildings other than those used for the operation of such institution and which is rented, leased or otherwise used for the primary purpose of securing an income thereon; and also provided that such donations of property shall not be predicated upon an agreement, contract or otherwise that the donor or donors shall receive or retain any part of the net or gross income of the property...."
In accordance with the above provision of the Constitution, the General Assembly enacted Code Section 92-201 which follows the language of the constitutional provision.
I am of the opinion, under the constitutional provision and the Code Section herein mentioned and quoted in part, that the property owned by the Atlanta Presbytery, Inc., would be exempt from taxation so iong as it is used for religious worship or as a recreational park for purely public charity.
The Supreme Court of the State of Georgia in the case of Tharpe, Tax Collector, et al v. Central Georgia Council of Boy Scouts of America, 185 Ga. 810, held that land used by the Boy Scout Council as a place for recreation and instruction of boys who were members of the organization of Boy Scouts was exempt from taxation in that that organization was a charitable institution within the meaning of the law exempting such institutions from taxation.
In answer to the second question propounded in your letter as to whether or not property owned by a Masonic Lodge is subject to taxation, the case of Massenburg, et al v. The Grand Lodge, F. & A. M., of the State of Georgia, 81 Ga. 212, appears to answer your question. In this case the Courtheld in headnote one:
"Conceding that the Grand Lodge of Georgia is an institution of purely public charity, within the meaning of the Constitution, its temple or lodge building, when used :for corporate profit or income, is not exempt from taxation." This was a case in which the Masonic Lodge rented out a portion of the property they used for Masonic meetings. The Court held in this case that that portion of the property used for commercial purposes was subject to taxation. Applying this decision to the facts in the case presented in your letter, the lot owned by the Masonic Lodge and leased to the Gulf Oil Company for commercial purposes would be subject to taxation.
TAXATION-Exemptions-Seed Corn (Unofficial) Seed corn, grown in the State and held in the hands of the producers, is
exempt from State, county, and municipal taxation.
October 1, 1954
Mr. C. M. Sims You stated: "We are farmers and specialize in growing corn for the purpose of selling for seed; and we sell only the corn we produce on our lands. For

718
convenience we pack in small sacks, or in sacks up to one bushel and have been storing the seed corn in a building located within the city limits of Pembroke. The City of Pembroke has classified our products as taxable, but we are contending that since we grow this corn and do not keep it over the next year we do not believe it would be taxable. Will you please give me your thoughts on whether our corn seed is taxable under the provisions of Code Section 92-201." Section 92-201 of the Code of Georgia, Annotated (1951 Cumulative Pocket Part) contains the following provision:
"The following described property shall be exempt from taxation, to-wit: ... 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." I understand from your letter that the seed corn in question is produced by you and that this property remains in your hands until it is sold. In my opinion, seed corn is a farm product and as such would not be taxable for the year next after its production, provided it remained in the hands of the producer. If the producer held it for a longer period than one year after its production, it would be subject to taxation. The exemption from taxation applies to State, county and municipal taxation.
TAXATION-Franchise Tax-Farm Credit Associations Farm Credit Associations are liable for Georgia franchise tax after they
become wholly owned by the farmer members.
December 10, 1954
Honorable Charles D. Redwine Commisisoner of Revenue
This is to acknowledge your request for an official opinion relative to the liability for the Georgia franchise tax of the Georgia Farm Credit Associations after such associations become wholly owned by the farmer members.
There are twenty-nine Production Credit Associations in Georgia. They, like Production Credit Associations in the other forty-eight states, are organized, chartered and operated under the provisions of the Act of Congress known as the Farm Credit Act of 1933 as amended (12 USC 1131). The associatio:ns are subject to the supervision of the Production Credit Association of Columbia and the Governor of the Farm Credit Administration. The Production Farm Credit Association of Columbia generally supervises and partially capitalizes and regulates the associations. Borrowers from the association become members thereof and must own stock in their association in an amount not less than 5 per cent of their loans. This is known as Class B stock. Each Class B stockholder is entitled to one vote at the stockholders' meetings. The stock owned by the Production Credit Corporation in the Association is known as voting Class A stock and shares equally with Class B stock in dividends that might be paid, and is preferred to Class B stock in liquidation of the association. At present, nine of the twenty-nine Georgia Production Credit Associations are owned entirely by their farmer members. The remaining twenty Qeorgia Production Credit Associations contemplate retiring as of the close of business on December 31, 1954, all of the capital stock owned in them by

7l9
the Production Credit Corporation of Columbia and when that is done they will thereby become wholly owned by their farmer members.
The Production Credit Associations were provided for by the Act of Congress to enable their farmer members to seek short term or intermediate credit for their general agricultural needs~
Section 63 of the Farm Credit Act of 1933 (12 USC 1138 (C)) provides among other things, that Production Credit Associations "and their obligations shall be deemed to be instrumentalities of the United States" and that such associations, "their property, their franchises, capital, reserves, surplus, and other funds, and other income shall be exempt from all taxation now or hereafter imposed by the United States or by any State, Territorial, or local taxing authority; except that any real property and any tangible personal property of such ... associations .. shall be subject to Federal, State, Territorial, and local taxation to the same extent as other similar property is taxed." The last sentence of this Section of the Act above quoted provides that, "The exemption provided herein shall not apply with respect to any Production Credit Association or its property or income after the stock held in it by the Production Credit Corporation has been retired, .."
The Farm Credit District of Columbia requests a ruling that Production Credit Associations in Qeorgia are not subject to the Georgia annual license, occupation, or franchise taxes for the privilege of carrying on their business within the State of Georgia, regardless of whether or not the capital stock in such associations is owned by the United States or wholly owned by the associations' farmer members.
Section 92-2401 of the 1933 Annotated Code of Georgia states that: "All corporations incorporated under the laws of Georgia, except those not organized for pecuniary gain or profit and domesticated foreign corporations .." are required to pay an annual license or occupation tax according to the scale provided in the code section.
Section 92-2403 of the 1933 Code of Georgia provides that: "All corporations incorporated or organized under the laws of any other State, Territory or Nation, doing business or owning property in this State except those not operated for pecuniary gain or profit ..." shall pay an "annual license or occupation tax for the privilege of carrying on their business within this State," according to the scale provided in the code section.
There is no contention made that the Production Credit Associations are not organized for pecuniary gain or profit and hence exempt from the tax. It is contended, however, that the Production Credit Associations are not incorporated under the laws of Georgia and therefore are not subject to the tax under Code Section 92-2401. Moreover, it is contended that the Production Credit Associations are not organized under the laws of any other "State, Territory or Nation" (Sec. 92-2403), since they are, so Mr. McGowan argues, Federal corporations "chartered and operated under the laws of the United States pursuant to the Constitution of the United States ... and pursuant to an Act of Congress," they are therefore "neither foreign nor domestic corporations insofar as the Georgia statutes relating to franchise or occupational or license taxes for the privilege of doing business are concerned."
It is the position of the Farm Credit District of Columbia that even after the retirement of the stock owned by the Production Credit Corporation the specified exemption from taxation afforded the association in Section 63 (11 USC 1138 (C)) quoted above will continue to apply insofar as the tax on the franchise, capital, reserves or surplus of the associations is concerned for the reason that the last sentence of that Section, in stating the extent to which the associations may be taxed after retirement of the Production Credit Corporation stock, does not repeat

720
the terms "their franchise, their capital, and reserves and surplus," but only subjects to taxation the property and income of the association.
It is noted, however, that though these precise terms are not repeated. in the last sentence of Section 63 (12 USC 1138 (C)), the last sentence does provide that the exemption will not apply to "any Production Credit Association" after the stock held in it by the Production Credit Corporation has been retired. Following the term, "any Production Credit Association," the sentence .adds the words, "or its property or income" to likewise permit taxation of these items after all the stock becomes wholly owned by the farmer members. A verbatum repetition of the terms previously used in Section 63 stating the scope of the exemption from taxation is not required, in view of the language used in the last sentence of Section 63, to remove the' exemption from taxation when the members assume full ownership of the association stock.
The word "property" in the last sentence of Section 63 cannot refer to real property or intangible personal property of the associations, since Section 63 previously provides that real property and tangible personal property of such associations "shall be subject to Federal, State, Territorial and local taxation to the same extent as other similar property is taxed." The term "property" as used in the last sentence of Section 63 must, therefore, refer to association property other than real or tangible personal property, that is, to intangible property of the association. The association is therefore taxable under Chapter 24 of Title 92 of the Georgia Code.
In any event, it appears that the last sentence of Section 63 providing that "the exemption provided herein shall not apply with respect to any Production Credit Association" (emphasis supplied), means that after the Production Credit Corporation retires its stock and the association stock becomes wholly owned by its members, the exemption from taxation is also retired or removed as to such association, and any such association thenceforth becomes liable for the Georgia annual license or occupation tax under Code Section 92-2403. The term "any Production Credit Association" as used in the last sentence of Section 63 certainly means that the Association, itself, as a business organization, may be taxed and the Association includes the franchise, its capital stock, and reserve and surplus. Being organized pursuant to an Act of Congress, it seems clear that the Georgia associations are corporations organized under the laws of a "Nation" within the contemplation of Code Section 92-2403. See Fed. Land Bank of St. Louis, Mo. v. Priddy, 74 S. W. 2d 222, 223, 189 Ark. 438, affd. 55 S. Ct. 705, 706; 295 U. S. 229, 2in, holding that where the state statute defined a foreign corporation as one organized under the laws of any other state, government or country, the federal corporation was a foreign corporation with respect to the state.
TAXATION-Garnishment of Defaulting Taxpayer (Unofficial) A Tax Collector may garnish property of a defaulting taxpayer, where
there is no property upon which execution can be levied.
June 15, 1954
Honorable Homer Grogan You request information as to whether or not a garnishment can be issued
against a defaulting taxpayer where there is no property upon which a tax execution can be levied.
Section 92-7501 of the Georgia Code, Annotated, makes specific provision for

'721
tax collectors to issue garnishments when no property of the defendant can be found upon which to levy the tax execution. This section is as follows:
"When any tax collector can find no property of the defendant on which to levy any tax execution in his hands, he shall make an entry to that effect on the execution; and he may then issue summons of garnishment against any person whom he may believe to be indebted to the defendant, or who may have property, money, or effects in his hands belonging to the defendant; which said summons of garnishment shall be served by the tax collector, the sheriff, his deputy, or any constable of the county in which the garnishee may reside, at least 15 days before the sitting of the court to which the same is made returnable, and returned tothe superior court of the county for which he is tax collector."
Section 92-7502 of the Georgia Code, Annotated, reads as follows: "The tax collector shall enter on the execution the names of the
persons garnished, and return the execution to the superior court, and all the subsequent proceedings shall be the same as provided by law in relation to garnishments in other cases where judgment has been obtained or execution issued."
TAXATION-Homestead Exemption-Apartment House (Unofficial) An apartment house may be claimed as a homestead exemption if the
owner lives in the property as his home.
April 13, 1954
Honorable Joe F. McCluney, Jr. You requested my opinion as to whether or not apartment houses with sepa-
rate entrances can be claimed as exempt under the Homestead Exemption Law. The amendment to the Homestead Exemption Law (Ga. Laws, 1952, p. 317),
approved February 15, 1952, repealed the following provisions of the Homestead Exemption Law:
"(1) Whenever used in this subsection, the phrase "occupied primarily as a dwelling' shall mean: (1) That the applicant and members of his family occupy the property solely as a home; or
"(2) The applicant and his family occupy a portion, 50 per cent, or more, as a dwelling and the remainder, 50 per cent or less, is occupied by a tenant as a dwelling; or
"(3) Property used for commercial purposes or the conduct of a business shall not be classified for the purposes of this subsection as a homestead unless the business conducted or the commercial enterprise carried on is of such nature that same is customarily conducted at a place of residence. In no event shall property be exempt from taxation hereunder when a commercial enterprise requiring the services of employees is carried on on said property or when the nature of the business and the enterprise requires physical changes in the property to render same suitable for such business or enterprise.
"(4) Apartment houses shall not be exempt from taxation hereunder even though one or more apartments are occupied by the owner as a dwelling.
"(5) For the purpose of this subsection, an apartment house is

722
defined to be a building designed or altered for occupancy as residences by three or more separate families or units.
"(6) Division of property so as to render a portion eligible for exemption and a portion ineligible for exemption will be allowed when the division follows a bona fide plan in which both the land and the improvements are capable of division.
"(7) The physical structure of any improvement shall not prevent the applicant from being eligible for a homestead exemption when the use of said property as a dwelling by the applicant and members of his family actually extends to the whole of the improvements.", and substituted in lieu thereof the following:
"(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." You will observe that under this amendment the eligibility of property which can be claimed as exempt as a homestead has been liberalized. Under the law as amended, any property now owned and occupied by the applicant as a home can be claimed as exempt up to the value of $2,000.00. This applies to apartment houses or any other type of structure or building. The only thing necessary to establish eligibility is for the owner or his family to live in the property as a home.
TAXATION-Homestead Exemption-Application For (Unofficial) Law relating to last day homestead exemption may be filed quoted.
April 22, 1955
Honorable H. L. Seckinger Chairman, Board of Tax Assessors, Effingham County
In your letter of April 18, 1955 you request information concerning the last day a person may apply for homestead exemption.
Section 92-220 of the 1954 Supplement to the Georgia Code, Annotated, 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 waiver upon the part of such person failing to make said application for exemption for said year, except that in counties of over 200,000 or more according to the 1940 or any future census, the time of filing written application and schedule for exemption shall be on or before May 1 of the year in which exemption from taxation is sought; 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

723
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." From the abovequoted Code Section, it appears that April 1 is the last date upon which an applicant can file an application for homestead exemption for the preceding year in Effingham County.
TAXATION-Homestead Exemption-Assessment (Unofficial) Only one homestead exemption may be claimed by brothers who are joint
owners and tenants of a farm. Automobile should be revalued each year by assessors and last year's
valuation should not be carried over where taxpayer fails to file a return. Tax assessors are required to complete their revision and assessment of
the returns of taxpayers in their respective counties by June first of each year.
May 16, 1955
Mrs. Norma Travillian I wish to acknowledge receipt of your letter received in this office on April
25, 1955 in which you request my opinion on several questions. The first inquiry you propound is as follows:
"I would like to know your opinion as to whether or not two exemp tions of $2,000 each can be claimed on a farm consisting of 383 acres and valued at $5,800, owned jointly and farmed by two brothers." The homestead exemption is granted to persons eligible to claim the same on the home and the land immediately surrounding it. Our courts have held that farm lands immediately surrounding the home and used in connection with its occupancy can be claimed as exempt under the Homestead Exemption Law along with the home. The amendment to the Homestead Exemption Law, approved February 15, 1952, contains the following language:
"... 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." It will be observed that under this amendment to the Homestead Exemption Law the total homestead exemption which could be. granted in the case you describe is $2,000. Code Section 92-219.1 is additional authority for this opinion. This section is as follows:
"Where the property on which a homestead exemption is claimed is jointly owned by the occupant and others, the occupant or occupants shall be entitled to claim a proportionate exemption of the amount allowed by law in proportion to which the interest of the occupant bears to the total interest of the property." You also state in your letter:
"I would like to know if when a person (not filing a tax return by April 1st) and owning the same automobile in 1955 as he did in 1954-

724
would the board of assessors value the car (by the list) as the State has it listed for this year, or because the taxpayer failed to make a return, could the board be allowed to copy it at the same figure as it was in 1954 ?" The Board should follow the list of valuations set for 1955. The taxpayer should not be penalized as to the value of his car because of the failure to file a tax return as required by law. However, the taxpayer would be subject to a penalty of 10 per cent as is provided in Code Section 92-6193 for failure to file a tax return as required by law. You ask the additional question:
"Could you advise me as to the length of stay our board of assessors have in checking our returns?" Section 92-6917 of the Georgia Code Annotated (1951 Supplement) provides the date when tax assessors are required to complete their revision and assessment of tax returns. That section is as follows:
"The county boards of tax assessors shall complete their revision and assessment of the returns of taxpayers in their respective counties by June 1 of each year. The tax receiver shall then immediately forward one copy of the completed digest to the State Revenue Commissioner for examination and approval."
TAXATION-Homestead Exemption-Assessment (Unofficial) Whether or not taxpayer is entitled to a homestead exemption should
not be considered in assessing value of property.
November 18, 1955
Honorable Gordon C. Carson This is in response to your letter of November 3, 1955 in which you refer to
an item you read in the Department of law publication, "Opinions of Attorney General Eugene Cook," dated October 15, 1955, concerning the assessment of property for taxation in connection with Homestead exemption. You also point out in your letter the existing method in your community of granting homestead exemptions and the valuations of property. You state that property which has a market value of from six to eight thousand dollars in many instances is assessed at the value of $21000 against which a Homestead exemption is applied.
County tax officials, in fixing the valuation of property within the county, have no authority to take into consideration the fact that the owner may or may not have a homestead exemption on the property which is to be valued. The Supreme Court in the case of Hutchins et al v. Howard et al, decided September 16, 1955, stated: "Realty and tangible personal property are of the same class and the constitutional rule of uniformity in taxation requires that both be taxed alike." The decision further holds: "Taxation on all real and tangible personal property subject to be taxed is required to be ad valorem-that is according to value, and the requirement in the Constitution that the rule of taxation shall be uniform, means that all kinds of property of the same class not absolutely exempt must be taxed alike, by the same standard of valuation, equally with other taxable property of the same class, and co-extensively with the territory to which it applies; meaning the territory from which the given tax, as a whole, is to be drawn." The decision also says: "The law requires that all real and tangible

725
personal property be assessed at its fair market value. Ga. Code, Sections 92-5701, 92-5702."
It appears to me that the problem outlined in your letter could be at least partially solved if the tax authorities of your county would follow the decision in the case of Hutchins et al v. Howard et al.
TAXATION-Homestead Exemption-Automatic Renewal (Unofficial)
After taxpayer has once filed for homestead exemption on real property it is automatically renewed; therefore, 10 per cent penalty for filing late return is on tax due on property over and above homestead exemption.
Homestead exemption on personal property is not automatically renewed.
April 13, 1955
Honorable E. D. Gilliard Tax Commissioner, Coffee County
I wish to acknowledge receipt of your letter of April 7, 1955 in which you refer to a copy of a bulletin issued by the Department of Law containing excerpts from opinions of the Attorney General. You particularly mention an item relating to the 10 per cent penalty against a taxpayer who fails to make his return.
I have rendered several opinions on the question involving the 10 per cent penalty which can be charged against taxpayers for failure to make a tax return, Section 92-6913 of the Code of Georgia makes provision for the imposition of this penalty. Section 92-6913 is as follows:
"92-6913. It shall be the duty of the board to diligently investigate and inquire into the property owned in the county for the purpose of ascertaining what property, real and personal, is subject to taxation in the county and to require its proper returns for taxation. The board shall make such investigation as may be necessary to determine the value of any property upon which for any reason all taxes due to the State or to the county have not been paid in full as required ,by law, and, in all cases where the full amount of taxes due the State or county have not been paid, it shall be the duty of the tax assessors to assess against the owner, if known, and the property, if the owner is not known, the full amount of taxes which have accrued and which may not have been paid at any time within the statute of limitations. In all cases where taxes are assessed against the owner of property, the tax assessors may proceed to assess the same against the owner thereof according to the best information obtainable and such assessment, if otherwise lawful, shall constitute a valid lien against the property so assessed. In all cases where unreturned property is assessed by the board after the time provided by law for making tax returns has expired, the board shall add to the amount of State and county taxes due a penalty of 10 per cent, except that if the principal sum of the tax so assessed is less than $10 in amount, the board shall add to the amount of State and county taxes a penalty of $1. The penalty herein provided shall be collected by the county tax collector or the county tax commissioner and in all cases paid into the county treasury and remain the property of the county."
However, I wish to call your attention to an amendment to the Homestead Exemption Law, approved February 15, 1952 (Ga. Laws 1952, p. 318, Sec. 1). This amendment contains the following provision:

'126
"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 effect of this amendment is to grant an automatic homestead to a taxpayer once the homestead has been granted and so long as the taxpayer continues to occupy the homestead property as a residence. The 1952 amendment to the Homestead Exemption Act did not relieve the taxpayer from filing a tax return. However, Section 92-6913 of the Georgia Code quoted herein, which authorizes the imposition of a penalty of 10 per cent for the failure to file a tax return, contains the following language with reference to the amount of the penalty:
"... the board shall add to the amount of State and county taxes due a penalty of 10 per cent...." No taxes are due on property exempted as a homestead. Therefore, any penalty assessed cannot include the property exempted as a homestead. The penalty can only be imposed on all property over and above the homestead exemption. The Homestead Exemption Law as amended in 1952 made no reference to the homestead exemption on personal property. Therefore, the law with regard to the exemption of personal property was not affected by the 1952 Act. In order to obtain a homestead exemption on personal property an application must be filed claiming the exemption on or before the first day of April of each year. Should a taxpayer fail to file an application for homestead exemption on his personal property, he would be subject to taxes thereon and in addition thereto a penalty for failure to file a tax return, in case no return was filed by the taxpayer.
.TAXATION-Homestead Exemption-Automatic Renewal (Unolficial) A person is entitled to have homestead exemption on real property
continued from year to year, even though no tax return is filed.
May 26, 1954
Honorable J. E. Lovett You request my opinion as to whether or not a person will be entitled to a
homesetead exemption although he failed to file a tax return. The General Assembly amended the Homestead Exemption Law in an Act
approved February 15, 1952 (Ga. Laws, 1952, pp. 317-320). This Act amended Code Section 92-220, which section provided that an application must be filed by a person seeking homestead exemption on or before April 1 of each year in which the exemption is claimed, by adding thereto the following proviso:
"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 effect of this amendment is to continue the homestead once it has been granted so long as the applicant continues to occupy the residence as a homestead.

727
Therefore, a person would not automatically be entitled to a homestead exemption on his real property unless a homestead had been previously granted to him and he continued to reside thereon as a home.
The amendment of 1952 makes no reference to the exemption of personalty as is provided in Code Section 92-239 or for the filing of an application to obtain exemption of personal property as provided in Code Section 92-242. Therefore, the law with reference to exemption of personal property was not amended by the Act of 1952.
TAXATION-Homestead Exemption-Automatic Renewal (Unofficial) Where homestead exemption is established by virtue of the taxpayer being
in the armed services, there is no necessity for renewal.
April 13, 1954
Honorable Charles G. O'Hara You ask the following question: "We have a case where a man entered service on August 14, 1950. We gave him the homestead exemption in 1951 and 1952 for the reason that he was in service, however, he has never filled in a homestead exemption card. This man was released from service on May 13, 1952. He failed to make a tax return in 1953. Under the new law on homestead exemption, should we allow him the exemption for 1953, even though he has never filled in the homestead exemption card'?" The 1952 amendment to the Homestead Exemption Law (Ga. Laws 1952,
pp. 317, 318) contains the following provision: "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. This section provides that a person shall not be obligated to apply for the exemption but one time so long as such owner remains in continuous occupation of such residence as a homestead. This language would indicate that there must have been at least one application, however, in the present case a homestead was granted without an application due to the fact that the taxpayer was in the Armed Services. Since his eligibility was established by virtue of his being in the Armed Services, I think that under the foregoing amendment his eligibility would continue so long as he owns and occupies the property as a home.
TAXATION-Homestead Exemption-Entitlement (Unofficial) A person who owns .and occupies property as a home is entitled to a. home-
stead exemption, even though he votes in another county.
July 27, 1954
Honorable Frank S. Twitty You state that the county officials of Baker County have ruled that an appli-
cant for homestead exemption who lives on land owned by him in Baker County

728
is ineligible to claim the property as exempt under the homestead exemption law for the reason that the applicant is registered to vote in Mitchell County. You request my informal opinion on this question.
The Homestead Exemption Law in Code Section 92-232 defines a homestead to be as follows:
".. 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership." Subsection (a) of Code Section 92-233 further defines homestead as follows:
"(a) The actual permanent place of residence of a person who is the applicant and which constitutes the home of the family." Under the above-quoted Code Sections a person who owns and occupies property as a home on January 1 of the taxable year has the right to file an application on or before May 1 and claim this property as exempt under the Homestead Exemption Law up to the value of $2,000. Where the applicant votes or whether he votes at all has nothing whatever to do with the granting of the homestead. In the case you described, the eligibility of the person to vote in Mitchell County is a question which addresses itself to the authorities of Mitchell County.
TAXATION-Homestead Exemption-Extent (Unofficial) Even though property is exempt from taxation as a homestead, the
property is still subject to tax executions and other debts of the taxpayer.
April 13, 1954
Mr. Robert Culpepper, Jr. You propound the following question: "If one should return his home for $1,500 taxation, and get homestead exemption for that amount, and in addition return other property on which he would owe substantial taxes, could the tax execution be levied on the exempted residence to satisfy the balance of the taxes, although it had been exempted from any charge itself?" I agree with your opinion that the exemption is merely a credit against total
taxes and it does not relieve the property from being subject. to taxes or other debts of the taxpayer. It is my view that Section 92-5708 of the 1933 Georgia Code, Annotated, which is as follows, is authority for this opinion:
"Liens for taxes, whether ad valorem, specific, or occupational, due the State, any county thereof, or municipal corporation therein, shall cover the property of taxpayers liable to tax, from the time fixed by :law for valuation of the same in each year until such taxes are paid, and the property of tax collectors and their sureties from the time of giving bond until all the taxes for which they are responsible shall be paid. Such liens for taxes are hereby declared superior to all other liens, and shall rank among themselves as follows: First, taxes due the State; second, taxes due the. counties of the State; third, taxes due to municipal corporations of the State."

'129
TAXATION-Homestead Exemption-Farms Owner of farm who works :farm, but resides elsewhere, cannot claim
homestead exemption on farm.
January 28, 1955
Honorable Tom H. Gatewood Tax Collector, Sumter County
I wish to acknowledge receipt of your letter of January 24 in which you propound the following questions:
1. If a person lives in his own house and is separated from the farm he owns by about a mile, can exemption be claimed on both?
2. If a person lives in a rented house and is separated by about a mile from 100 acres he owns, can he claim exemption on the farm he works? In answer to the first question, the applicant would be entitled to claim homestead exemption on the house and the land immediately surrounding the house in which he lives. He would not be entitled to claim as exemption a farm located at a distance of one mile from his residence. Code Section 92-232 defines homestead as follows:
"'Homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership." You will observe from the above definition that to be eligible for the homestead exemption, the owner must reside on the property to be eligible to claim exemption thereon. In answer to the second question propounded in your letter, an applicant who lives in a rented house a mile from one hundred acres of land he owns cannot claim a homestead exemption on the one hundred acres for the reasons above stated in that he does not live on the property.
TAXATION-Homestead Exemption-House Trailers (Unofficial) A person who owns a trailer and the land on which it is located and occu-
pies the trailer as a home, is entitled to a homestead exemption on the trailer and the land immediately surrounding it.
October 23,__1956
Mrs. Lottie C. Burns You state: "I am writing to ask if I am not entitled to get Homestead Exemption in Grady County because of the following facts: "I live in a house trailer, which is permanently located on a lot which I own. This trailer has a permanent shelter built over it and a five foot porch built on the front because it is the only home I have and my permanent home. I am a widow and my son who is the only one that could drive is now in the service and I do not even have a car or truck that could be attached to the trailer. Because of the permanent type additions I

'130
have made on this trailer it could hardly be moved, at least not any easier than tearing down a house would be." Under the facts stated in your letter I am of the opinion that you are entitled to claim a homestead exemption on the house trailer and the land immediately surrounding it provided you own and occupy this property as your permanent place of residence on January 1. I base this opinion on the following provisions of the Homestead Exemption Law. Georgia Code Section 92-232 is as follows:
" 'Homestead' defined.-As used in. this law ( 92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership." Georgia Code Section 92-233 is as follows:
"'Homestead' further defined.-The word 'homestead' whenever used in this law ( 92-219 to 92-238, 92-9947), shall mean and is defined to be the following:
"(a) The actual permanent place of residence of a person who is the applicant and which constitutes the home of the family....
"(c) Where the building is occupied primarily as a dwelling." In a case where a person owns a trailer and the land on which it is located and occupies the trailer as a home he would be entitled to claim homestead exemption on the trailer and the land immediately surrounding it.
TAXATION-Homestead Exemption-House Trailers (Unofficial) Owner and resident of house trailer entitled to homestead exemption if
located on his property, not if located on rented property.
May 6, 1955
Honorable Bill Westbrook Tax Commissioner, Stewart County
I wish to acknowledge receipt of your letter of May 2, 1955 in which you reuqest my opinion on the following question:
"I would like for you to give me an opinion as to whether it is proper to grant homestead tax exemption on house trailers which are used solely as residences and remain in the same location all the time. If this is permissible, is it true on rented land as well as that owned by the occupant of the house trailer?" A person living in a trailer, who does not own the land on which the trailer is stationed, cannot claim the trailer as a homestead exemption. "Homestead" is defined in Section 92-232 of the Supplement to the Georgia Code as follows:
"As used in this law (Sections 92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership." You will observe that this section states that "homestead" means real property. A house trailer is not real property.

731

In a case where a person owns a trailer and the land on which it is located

and occupies the trailer as a home, he would be entitled to claim the trailer and

the lanP, immediately sur:rounding the same as a homestead.

'

TAXATION-Homestead Exemption-In General
Applicability under stated conditions discussed.
April 20, 1954
Honoraple W. Harvey Atkinson Director, Property Tax Division, Department of Revenue
I have rendered a great many opinions, both official and unofficial, construing the homestead exemption statutes of this State. The Homestead Exemption Law has been amended a number of times. and some opinions heretofore rendered by me are not applicable to the present law. You have suggested that I answer certain questions which are frequently propounded to you with reference to the construction of the law as it now stands.
I might state in the beginning that the General Assembly of the State of Georgia in 1952 (Ga. Laws 1952, p. 317-320) amended Section 92-233 of the Homestead Exemption Law. This amendment repealed the following sections of the Homestead Exemption Law:
"(1) Whenever used in this subsection, the phrase 'occupied primarily as a dwelling' shall mean: (1) That the applicant and members of his family occupy the property solely as a home; or
"(2) The applicant and his family occupy a portion, 50 per cent, or more, as a dwelling. and the remainder, '50 per cent or less, is occupied by a tenant as a dwelling; or
"(3) Property used for commercial purposes or the conduct of a business shall not be classified for the purposes o:f this subsection as a homestead unless the .business conducted or the commercial enterprise carried on is of such nature that same is customarily conducted at a place of residence. In no event shall property be exempt from taxation hereunder when a commercial enterprise requiring the services of employees is carried on on said property or when the nature of the business and the enterprise requires physical changes in the property to render same suitable :for such business or enterprise.
"(4) Apartment houses shall not be exempt from taxation hereunder even though one or more apartments are occupied by the owner as a dwelling.
"(5) For the purpose of this subsection, an apartment house is defined to be a building designed or altered :for occupancy as residences by three or more separate families or units.
"(6) Division of property so as to render a portion eligible for exemption and a portion ineligible for exemption will be allowed when the division follows a bona fide plan in which both the land and the improvements are capable of division.
"(7) The physical structure of any improvement shall not prevent the applicant from being eligible for a homestead exemption when the use of said property as a dwelling by the applicant and members of his family actually extends to the whole of the improvements."

732
and substituted in lieu thereof, the following:
"(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."
The foregoing amendment liberalized the eligibility o;f property which can be claimed as a homestead exemption. Under the amendment, any property which is owned and occupied by a person as a home can be claimed as a homestead, and is eligible for an exemption from taxes up to $2,000.00 as provided in the Act.
Question 1-A person owns a house and lot and occupies same as a home, and the property is not assessed for more than $2,000.00; can the party rent a portion of the house to another party and still be entitled to the full $2,000.00 exemption? If the party can rent any portion, what portion can be rented without affecting the full amount of the exemption?
Answer-Under the provision of the foregoing amendment, the house and lot can be claimed as a homestead exemption. The fact that any portion of the house was rented would not deprive the owner from claiming the homestead exemption on the whole property so long as the person owned and lived in the house as a home.
Question 2-A married couple owns a house and lot or a farm home, the title of which is in the wife's name. The wife dies and leaves no will. Their three children are all past 21 years of age and not at the home. The father remains at the home alone. Would the father be entitled to the full $2,000.00 exemption or only on $500.00 or one-fourth of a homestead exemption?
Answer-Section 92-219.1 of the Georgia Code, Annotated (1951 Cumulative Pocket Part provides as follows: "Where the property on which a homestead exemption is claimed is jointly owned by the occupant and others, the occupant or occupants shall be entitled to claim a proportionate exemption of the amount allowed by law in proportion to which the interest of the occupant bears to the total interest of the property." The father would be entitled to claim as exempt his one-fourth interest up to the value of $2,000.00.
Question 3-A party owns a 250-acre farm home of which the assessed valuation does not exceed $2,000.00. The party rents the farm to a neighbor farmer but reserves the farmhouse and occupies same as his home. Would this party be entitled to the homestead exemption on the farm lands, or only on a fair valuation of the house which the party occupies?
Answer-The Court of Appeals, in the case of Jones v. Johnson, 80 Ga. App., 340, stated: "The owner of a farm located in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tract of land upon which the dwelling house is situated, to a value of $2,000.00, notwithstanding the fact that he devotes the land to agricultural purposes, as this is not such a use of the land as to amount to a commercial or business enterprise within the meaning of subsection 3 of Code (Ann. Supp.) Sec. 92-233 relating to

733
homestead exemption." Therefore, under this decision, I am of the opinion that the owner would be entitled to claim homestead exemption on the farm.
Question 4-A party owns a 225-acre farm home of which the assessed valuation does not exceed $2,000.00 and the owner occupies same as a home. He farms a part of his lands. Is the owner entitled to the homestead exemption on all his lands, or would he be liable for taxes on the portion rented?
Answer-Under the foregoing opinion, the owner would be entitled to exemption on his land up to the value of $2,000.00.
Question 5-A married couple living on a farm home has six children, four of whom are past 21 years of age and have left the farm. The title to the property is in the husband's name; he dies and leaves no will. The mother and two younger children remain on the farm. Would the mother and the two children be entitled to the exemption as a homestead of $2,000.00 or only on three-sevenths of the $2,000.00?
Answer-1 am of the opinion that this property could be claimed as a homestead exemption under Section 92-233 of the Georgia Code, Annotated, subsection (d), which is as follows: "Where the children of deceased or incapacitated parents occupy the homestead of their said parents, and one of them stands in the relation of applicant, whether the estate is distributed or not."
Question 6-A married couple owns a farm home or a city house and lot. The couple has six children, all of whom are over 21 years old. The father and mother both pass away and leave no will. The estate has not been divided but one of the heirs, by consent of the others, occupies the property as a home. Would the entire estate be liable for taxes or would the one occupying the property be entitled to the homestead exemption on his one-sixth interest?
Answer-The applicant, under Section 92-219.1 of the Georgia Code, Annotated (1951 Cumulative Pocket Part) would be entitled to an exemption on his one-sixth interest up to $2,000.00.
Question 7-Three parties own a piece of property equally. One of the parties occupies the same as a home. Even though there is no way of making a division of the property, would the party occupying be entitled to the homestead exemption on his one-third interest in the property?
Answer-Under Section 92-219.1 of the Georgia Code, Annotated (1951 Cumulative Pocket Part) he would be entitled to an exemption on his one-third interest up to the value of $2,000.00.
Question 8-What homestead exemption would be granted on a duplex apartment with separate entrances '1
Answer-The owner who occupies a duplex will be entitled to claim a homestead exemption of $2,000.00 on the entire property regardless of the number of entrances thereto under the provisions of the 1952 amendment heretofore quoted. Under this amendment it would be possible for two people to each claim an exemption of $2,000.00 on a duplex 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.
Question 9-What homestead exemption would be granted on tourist courts where the owner occupies a certain portion as a home?

734

Answer-The owner, under the 1952 amendment, is entitled to claim a home-

stead exemption up to the value of $2,000.00.



Question H)-What homestead exemption would be granted on a house where the owner occupies a portion as a home .and rents the balance for some form of business?

Answer-The owner would be entitled to claim homestead exemption up to the value of $2,000.00 on the property under the 1952 amendment.

Question 11-What homestead exemption would be granted on a hotel if the owner of the hotel built an apartment attached to the hotel and occupied the apartment as a home?

Answer-The apartment attached to the hotel would become a part of the hotel; therefore, the applicant who owns and occupies a portion of the hotel would, under the 1952 amendment, be entitled to a homestead exemption up to the value of $2,000.00.

Question 12-What homestead exemption would be granted a home owner if he rents three apartments in his home and occupies one?

Answer-The owner would be entitled to a homestead exemption up to the value of $2,000.00 regardless of the number of apartments rented, so long as he continues to own and occupy a portion of the apartment house as his home.

Question 13-Does the Homestead Exemption Law require that an applicant actually live on the premises claimed as exempt for any definite period during the year ?

Answer-No. The fact that an applicant may spend his time away from home due to business or illness or any other cause would not deprive him of the exemption so long as the home was owned and maintained by him as a home for himself or his family.

In the preparation of the foregoing questions and answers, I have reviewed my previous opinions and the Homestead Exemption Law as amended. This opinion supersedes all others heretofore rendered by me on the questions propounded.

TAXATION-Homestead Exemption-In General (Unofficial) Discusses property exempt from taxation on a homestead.
November 26, 1954
Mr. Robert S. Kinney You ask if Georgia has Homestead Laws. I assume that you are interested in homestead exemption for the purpose of
ad valorem taxation. In this connection your attention is directed to Section 92-219 of the 1933 Code of Georgia, Supplement Pocket Part, which provides a homestead exemption of $2,000 for real property. This provision was enacted in Georgia Laws, 1946, p. 12, 14.
As to personalty, it is provided in Section 92-239 of the 1933 Code of Georgia that all personal property, not including motor vehicles, is exempt up to the amount of $300 in actual value. These exemptions are provided in our Constitution of 1945, Article VII, Section I, Paragraph IV.

735
TAXATION-Homestead Exemption-Joint Resident Owners (UnQfficial) Joint owners and occupants of property may claim only one exemption
for the property, except in the case of a duplex dwelling "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.
April 14, 1955
Honorable Marvin F. Heery, Jr. Receiver of Tax Returns, Chatham County
I wish to acknowledge receipt of your letter of April 6 in which you request my construction of the Homestead Exemption Law under the following set of facts:
The property is owned jointly and consists. of a two-story duplex apartment building, one owner occupying the lower unit and the other the upper. These owners are claiming a total of $4,000 as homestead exemption on this property. The amendment to the Homestead Exemption Law, approved February 15, 1952 (Ga. Laws 1952, p. 317-320) contains the following provision:
"(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." It will be observed from the above-quoted amendment to the Homestead Exemption Law that only one exemption can 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. In my opinion you are correct in holding that only one homestead exemption can be granted on the property in question.
TAXATION-Homestead Exemption-Joint Ownership (Unofficial) Joint owner of property which he alone occupies is entitled to a homestead
exemption proportionate to his share in the property.
March 1, 1955
Honorable Marvin P. Heery, Jr. Receiver of Tax Returns, Chatham County
I wish to acknowledge receipt of your letter of February 19, 1955 in which you request my opinion as to what homestead can be claimed under the following set of facts:
A mother died and the family home was included as part of her estate.. This real property is still returned as the "Estate" of the mother with no administration having been accomplished. There are three children who are her heirs. One child occupies his real property as his home and the

736
others do not. One of the others owns another piece of property and claims the homestead on this in his own name. The homestead has been claimed and granted in the past on the home in the mother's estate. Attached to your letter is a memorandum in which it is contended that the child occupying the property is entitled to claim the entire property as exempt under our homestead exemption law. It is urged in this memorandum that Code Section 92-110 fixes the tax on the person or persons who enjoy the property. Code Section 92-110 states that the taxes shall be charged against the owner of the property if known and against the specific property if the owner is not known. It contains a further provision that life tenants who enjoy the property shall be chargeable with the taxes thereon. The homestead exemption law makes special provision for the granting of homestead exemption to a person who owns a life estate in property. I do not see that Section 92-110 is applicable in determining the extent of the homestead which should be granted to the occupant who owns a joint interest in the property, nor do I think the case of National Bank of Athens v. Danforth, 80 Ga. 55, is applicable. A person might be liable for taxes on property and still not be entitled to homestead exemption as an owner who rents his property and does not occupy it as a home. The homestead act as originally written, as I construe it, failed to provide for any homestead to be granted to an owner of an undivided interest occupying the property. However, the Act was amended (Ga. Laws 1945, p. 435), which amendment appears in the Supplement to the Code as Section 92-219.1 and is as follows:
"Where property on which a homestead exemption is claimed is jointly owned by the occupant and others, the occupant or occupants shall be entitled to claim a proportionate exemption of the amount allowed by law in proportion to which the interest of the occupant bears to the total interest of the property." In this case, assuming the value to be $1,500, and the applicant owned a one-third interest, he would be entitled to a $500 exemption. This opinion is in accordance with an official opinion written by me on April 20, 1954 to the late W. Harvey Atkinson, then Director of the Property Tax Division of the Department of Revenue, copy of which I enclose and direct your attention to Question No. 7 and answer thereto on page 4 of the opinion.
TAXATION-Homestead Exemption-Military Personnel (Unofficial) A member of the Armed Services can continue to claim homestead exemp-
tion on his property during the time he has the property rented, and is stationed elsewhere because of his service in the Armed Forces.
October 11, 1956
YN, 1st Cl. Bobby G. Windom You inquire as to whether or not a citizen of the State of Georgia in the
Armed Services of the United States Government can claim homestead exemption on his home located in Georgia although the home may be rented during the period in which the applicant, because of his military service, is stationed elsewhere in the United States.
I am of the opinion that a member of the Armed Services can continue to claim homestead exemption on his property during the time he has the property

737
rented and is stationed elsewhere because of his service in the Armed Forces. I base this opinion upon the following Code Section:
"92-233. 'Homestead' further defined.-The word 'homestead' whenever used in this law (Sections 92-219 to 92-238, 92-9947), shall mean and is defined to be the following:
... "(k) The permanent place of residence of a person in the military, naval, marine, or other Armed Forces of the United States, and said residence shall be construed to be actually occupied as the place of abode of such person, where the family of such person resides thereat, or where the family because of such service is forced to live elsewhere.
"Absence of a person from his residence because of duty in the Armed Forces of the United States will not be considered as a waiver upon the part of such person in applying for a homestead exemption. Any member of his immediate family or a friend may notify the tax receiver or the tax commissioner of his absence. This notice will require the tax receiver or tax commissioner to grant the homestead exemption to the person so absent in the Armed Forces of the United States."
TAXATION-Homestead Exemption-Military Personnel (Unofficial) (a) A member of the Armed Services, who is a domicile of another state
and who is stationed in Georgia, is not entitled to a homestead exemption. (b) A service man who establishes his domicile in Georgia is entitled
to claim homestead exemption, and is liable to ad valorem taxation on his personal property.
March 9, 1956
Mr. Edward B. Liles You state: "The Tax Commissioner of Glynn County is desirous of knowing whether a serviceman stationed at Glynco, in Glynn County, owning and occupying a home or residence on the first day of January, but whose permanent residence and legal domicile is in another State, can claim and receive the benefit of a homestead exemption in Georgia. "Another question which relates to the same subject is-In the event a homestead exemption is claimed and allowed by a serviceman residing in Georgia by virtue of his military service therein, is the particular serviceman required to return or declare all of his personal property, such as furniture and automobile upon the tax digest of Glynn County?" A member of the Armed Services stationed in Glynn County, who has a per-
manent residence and legal domicile in another State, is not eligible to claim the benefit of a homestead exemption in Georgia. Code Section 92-233 (h) answers this question:
"(h) In all the classes above defined, the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemption, and such homestead shall be the legal residence and domicile of such person for all purposes whatsoever." Under the above-quoted Code Section no person, whether a member of the Armed Services or not, who maintains a legal residence and votes in another State

738
is eligible to claim a homestead exemption in the State of Georgia since our homestead exemption law specifically states that the homestead shall be the legal residence and domicile of such person for all purposes whatsoever.
In reply to your second question, a citizen of another State who is transferred to Georgia as a result of his military service may, if he so desires, establish his residence in the State of Georgia and in the event he does establish his residence in the State of Georgia he would be eligible to claim a homestead exemption the same as any other Georgia citizen. He would also be liable for ad valorem taxes on his real and personal property and subject to State income taxes and any other taxes imposed by Georgia upon its residents.
Further answering the questions propounded in your letter, a non-resident serviceman stationed in the State of Georgia who did not claim and was ineligible to claim homestead exemption as a result of his citizenship and domicile in a foreign state would not be subject to personal property taxes in the State of Georgia under the case of Dameron v. Brodhead, 345 U. S. 322.
TAXATION-Homestead Exemption-Military Personnel (Unofficial) Career members of the military service, as well as drafted members, are
entitled to a homestead exemption on property owned by them, but not occupied by them due to such service.
April 22, 1955
Honorable R. L. Beasley, Chairman Board of Tax Assessors, Franklin County
Your letter dated April 13, 1955, addressed to Mr. Pete Wheeler, Department of Veterans Service, has been forwarded to this office for reply.
In an unofficial opinion dated December 5, 1952, reported at page 211, Opinions of the Attorney General, 1952-53, the Attorney General of Georgia held that: "A serviceman is entitled to a homestead exemption on property owned by him, notwithstanding that said property is being rented to other persons. . . ." This ruling was confirmed by a recent official opinion of the Attorney .General dated March 31, 1955, in which the following language was used:
"I, therefore, am of the opinion that if the serviceman is otherwise otherwise eligible and makes timely application, he is entitled to homestead exemption even though he is in actual service of the military, naval, marine, or other Armed Forces of the United States and absent from his residence by virtue of such service." The original Homestead Exemption From Taxes Act, enacted prior to World War II did not mention members of the Armed Forces nor make any special provision for them. See Ga. Laws, 1937-38 Extra Session, pp. 145, 150. However, in 1943, Ga. Laws 1943, pp. 103, 105, an amendment was enacted which provided, inter alia, that the word "homestead" is defined as follows:
"The permanent place of residence of a person in the military, naval, marine, or other Armed Forces of the United States, and said residence shall be construed to be actually occupied as the place of abode of such person for the duration of the war in which the United States is now engaged, where the family of such person resides thereat, or where the family because of such service is forced to live elsewhere." (Emphasis supplied.)

739
This amendment was obviously enacted to give special concessions to persons in the Armed Forces during World War II. The words, "for the duration of the war in which the United States is now engaged," were stricken in 1952. See Ga. Laws 1952, p. 265, 92-233, Ga. Code Ann., 1954 Supplement.
An analysis and comparison of this legislation, reveals a plan and design to grant to members of the Armed Forces benefit of the Homestead exemption even though they are. away from their permanent place of residence. This right was first extended to persons in service during World War II, now that limitation has been removed.
Nowhere in the law is there any distinction between members who are making a career of military service, and those who are not. The 1952 Amendment was enacted with full knowledge that the Armed Forces were composed of members who 'Yere making a career of military service as well as those who were drafted or who intended to serve a designated period of time. If the Legislature had intended to make a distinction based on these types of military service, it surely would have done so. Therefore, in the absence of such provision, and since the words of the present statute must be given their ordinary signification, Sec. 102-102, Ga. Code Ann., the present law applies to all members of the Armed Forces who qualify for exemption under the Homestead Exemption From Taxes Act without regard as to whether they are career members or not.
TAXATION-Homestead Exemption-Military Personnel (Unofficial) Failure of person in military service to return his personal property in
a county does not deprive him of homestead exemption.
September 17, 1956
Miss Florine C. Rainey You request my unofficial opinion on the following question. If a resident
of Houston County who has a home in Houston County and has been granted a homestead exemption and this resident is in the Armed Services of the United States, and because of his military service he is stationed in another State or overseas, is it necessary for him to return his automobile in Houston County to receive homestead exemption on his home?
The Homestead Exemption Law was amended February 15, 1952 (Ga. Laws, 1952, p. 318). This amendment provided for the automatic renewal of homestead exemption. It contains the following language:
"Provided that the owner of a homestead of each resident of Georgia which actm1lly 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." There is another provision of the Homestead Exemption Law which should be construed in connection with this provision with reference to any person in the Armed Forces of the United States. This provision (Ga. Code, Section 92-233) is as follows:
"'Homestead' further defined.-The word 'homestead' whenever used . in this law (Sections 92-219 to 92-238, 92-9947), shall mean and is defined
to be the following:

740
"... (k) The permanent place of residence of a person in the military, naval, marine, or other Armed Forces of the United States, and said residence shall be construed to be actually occupied as the place of abode of such person, where the family of such person resides thereat, or where the family because of such service is forced to live elsewhere.
"Absence of a person from his residence because of duty in the Armed Forces of the United States will not be considered as a waiver upon the part of such person in applying for a homestead exemption. Any member of his immediate family or a friend may notify the tax receiver or the tax commissioner of his absence. This notice will require the tax receiver or tax commissioner to grant the homestead exemption to the person so absent in the Armed Forces of the United States." You will observe from the statutes herein quoted that the failure to file a tax return will not deprive a taxpayer of his homestead exemption if he otherwise is qualified.
TAXATION-Homestead Exemption-Military Personnel Military personnel absent from the State by virtue of military service
are entitled to a homestead exemption.
March 31, 1955
Honorable Peter Wheeler, Director Department of Veterans Service
This will acknowledge receipt of your letter in which an official opm10n is requested as to whether or not a person serving in the Armed Forces of the United States is entitled to homestead exemption under the Homestead Exemption Law of Georgia.
This question is answered by the application of Subsection "K" of Section 92-233, Georgia Code Annotated, which provides that:
"The word 'homestead' whenever used in this law( 92-219 to 92-238, 92-9947), shall mean and is defined to be the following:
* * * "(k) The permanent place of residence of a person in the mili-
tary, naval, marine, or other Armed Forces of the United States, and said residence shall be construed to be actuaJly occupied as the place of abode of such person, where the family of such person resides thereat, or where the family because of such service is forced to live elsewhere.
"Absence of a person from his residence because of duty in the Armed Forces of the United States will not be considered as a waiver upon the part of such person in applying for a homestead exemption. Any member of his immediate family or a friend may notify the tax receiver or the tax commissioner of his absence. This notice will require the tax receiver or tax commissioner to grant the homestead exemption to the person so absent in the Armed Forces of the United States."
The Attorney General of Georgia held in an unofficial opinion dated December 5, 1952, reported at page 211, Opinions of the Attorney General, 1952-53, that:
"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...."
As can be readily seen, the clear unambiguous language of the statute provides that on notice the tax receiver or tax commissioner will be required to grant

741
the homestead exemption to the person so absent in the Armed. Forces of the United States.
I, therefore, am of the opipion that if the serviceman is otherwise eligible and makes timely application, he is entitled to homestead exemption even though he is in actual service of the military, naval, marine, or other Armed Forces of the United States and absent from his residence by virtue of such service.
TAXATION-Homestead Exemption-Military Personnel (Unofficial) Military personnel who claim a homestead exemption on real property
owned in Georgia, are declaring their intentions to become residents of Georgia and then are subject to personal property tax.
October 28, 1954
Captain John W. Marshall You request my opinion on the following question: "May the State of Georgia assess a personal property tax: Against military personnel who, having purchased real property in the State of Georgia, have claimed Georgia as their State of permanent residence through mistake, intending to return to their permanent out-ofstate residency upon completion of their term of military service?" I cannot conceive of a person claiming residence in Georgia through a mistake,
due to the fact that legal residence is determined by the action of the person as well as his expressed intention and an expression that he intended to make Georgia his residence, together with residence in Georgia, would certainly make the person a legal resident at the time.
I assume that the holders of real estate referred to in your letter desire to claim homestead exemption on their property. I wish to call your atention to sub-section (h) of Code Section 92-233, defining homestead:
"(h) In all the classes above defined, the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemption, and such homestead shall be the legal residence and domicile of such person for all purposes whatsoever."
TAXATION-Homestead Exemption-Penalties (Unofficial) Taxpayer is entitled to homestead exemption granted previous year, even
upon his failure to file return subsequent year due to automatic renewal. Penalty of 10 per cent for failure to file return is on taxes due and is
therefore on taxes after deduction of homestead exemption.
November 14, 1955
Honorable J. A. Gilmore This is in reply to your letter of November 2, 1955 in which you request my
opinion as to whether or not a taxpayer who failed to make a tax return on his property for the year 1953 is entitled to a homestead exemption which was granted to him prior to the year 1953.
Under the amendment to the Homestead Exemptiqn Law, approved February 15, 1952 (Ga. Laws 1952, p. 317-318), provision was made for the automatic

742
renewal of homestead exemption so long as the owner continued to occupy the residence as a home. The applicable provision of this amendment is as follows:
"Provided that the owner of a homestead of each resident of Georgia which actually is occupied by the said owner at 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."
You also request my opinion as to what penalty could be charged against. a person who fails to make a tax return and where a portion of the taxpayer's property is covered by homestead exemption.
Section 92-6913 of the Georgia Code, Annotated is as follows:
"It shall be the duty of the board to diligently investigate and inquire into the property owned in the county for the purpose of ascertaining what property, real and personal, is subject to taxation in the county and to require its proper returns for taxation. The board shall make such investigation as may.be necessary to determine the value of any property upon which for any reason all taxes due to the State or to the county have not been paid in full as required by law, and, in all cases where the full amount of taxes due the State or county have not been paid, it shall be the duty of the tax assessors to assess against the owner, if known, and the property, if the owner is not known, the full amount of taxes which have accrued and which may not have been paid at any time within the statute of limitations. In all cases where taxes are assessed against the owner of property, the tax assessors may proceed to assess the same againt the owner thereof according to the best information obtainable and such assessment, if otherwise lawful, shall constitute a valid lien against the property so assessed. In all cases where unreturned property is assessed by the board after the time provided by law for making tax returns has expired; the board shall add to the amount of State and county taxes due a penalty of 10 per cent, except that if the principal sum of the tax so assessed is less than $10 in amount, the board shall add to the amount of State and county taxes a penalty of $1. The penalty herein provided shall be collected by the county tax collector or the county tax commissioner and in all cases paid into the county treasury and remain the property of the county."
The 1952 amendment to the Homestead Exemption Act did not relieve the taxpayer from filing a tax return. The above-quoted Code Section, which imposes a penalty of 10 per cent upon the failure to file a tax return, applies to all taxpayers who come within its provisions. However, you will note that the language of this section states that, "the board shall add to the amount of State and county taxes due a penalty of 10 per cent." It therefore follows that if there were no taxes due because of the homestead exemption, the penalty could not be imposed on any taxes except taxes on property in excess of the homestead exemption.

TAXATION-Homestead Exemption-Personal Property (Unofficial)

Homestead exemption on personal property is not renewed automatically;

it must be applied for.



743
June 2, 1955
M:r. L. W. Keith, Sr., Chairman Coweta County Board of Tax Equalizers
I wish to acknowledge receipt of your letter of May 30, 1955. The Homestead Exemption Law was amended February 15, 1952, and the following provision was added to the law:
"'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 occupancy 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.' " (Ga. Laws 1952, p. 318.) This amendment made no provision for the automatic renewal of Homestead Exemption on personal property. It is; therefore, necessary, in order to obtain Homestead Exemption on personal property, to make a tax return and file application therefor as provided by law.
TAXATION-Homestead Exemption-Personal Property (Unofficial) It is necessary to file annually to obtain a homestead exemption on per-
sonal property.
August 19, 1954
Mr. J. F. Sellars You ask whether or not it is necessary for you to file an application in order
to obtain homestead exemption on your personal property. The Homestead Exemption Law was amended in 1952. This amendment pro-
vided for the automatic renewal of homestead exemption on real estate so long as the owner occupied the premises on which the homestead exemption was granted. This amendment made no reference to the homestead exemption on personal property. Therefore, the law with reference to the exemption of personal property was not amended by the 1952 Act. In order to obtain a homestead exemption on personal property, an application must be filed claiming the homestead on or before the first day of April of each year.
TAXATION-Homestead .Exemption-Property Division (Unofficial) A homestead exemption can be claimed on land lying in two counties, by
filing an application in each county in proportion to the percentage of the land lying in such county.
April 13, 1954
Honorable Harry C. Hubbard You ask the following question: "I would like to know, can a person. get $1;500 exemption in Calhoun County and $500 in Clay County, when the farm is located in two counties, being divided by a public road.'' .The Homestead Exemption Law makes no specific provision as to the manner

744
in which a homestead exemption may be claimed where the property lies in more than one county. However, the Homestead Exemption Law does provide that .an applicant who owns and occupies his home is entitled to a homestead exemption up to $2,000.00. The Court of Appeals of our State in the case of Jones v. Johnson, 80 Ga. App. 340, stated:
"The owner of a farm located in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tract of land upon which the dwelling house is situated, to a value of $2,000, notwithstanding the fact that he devotes the land to agricultural purposes, as this is not such a use of the land as to amount to a commercial or business enterprise within the meaning of subsection 3 of Code (Ann. Supp.), Sec. 92-233 relating to homestead exemption." It is clearly apparent from the Homestead Exemption Law and the devision of our Court of Appeals in construing this law that the owner of a farm is entitled to claim exemption on the entire farm and in my opinion if the farm lies in two counties the applicant would have a right to file application in each of the counties in proportion to the acreage or value located therein and claim as exempt the property located in each county so long as the total exemption did not exceed the sum of $2,000.00.
TAXATION-Homestead Exemption-Property Division (Unofficial) An island separated from a farm by a natural navigable tidewater river
cannot be included as part of a homestead exemption.
May 11, 1954
Honorable R. A. Young, Jr. You state that there is a taxpayer in your county who has made application
for homestead exemption on his farm and also included in his application an island which is separated from the farm by a natural, navigable tidewater river. You request my opinion as to whether or not the island can be included in the homestead exemption of the applicant.
Section 92-232 of the 1933 Code of Georgia, Annotated defines "homestead" as follows:
"As used in this law (Sections 92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof, and upon which said applicant resides and the land immediately surounding said residence and to which he or she has a right to said possession under bona fide claim of ownership."
The Court of Appeals of Georgia in the case of Jones v. Johnson, 80 Ga. App., 340, in construing the homestead exemption law with reference to farm lands, held:
"The owner of a farm located in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tract of land upon which the dwelling house is situated, to a value of $2,000.00, notwithstanding the fact that he devotes the land to agricultural purposes, as this is not such a use of the land -as to amount to a commercial or business enterprise within the meaning of subsection 3 of Code (Ann. Supp.) Sec. 92-233 relating to homestead exemption." Under the Code Section quoted above and the case herein cited, I doubt

745
very seriously that the courts would hold that an island separated from the farm of the applicant by a navigable stream would be considered as a part of the lands upon which the applicant resides. I am of the opinion that the position which you have taken in holding that the island could not be included in the homestead exemption is the correct interpretation of the law.
TAXATION-Homestead Exemption-Property Division (Unofficial) E,ven though a portion of a tract of land is separated from the remainder
by a railroad track, the owner is entitled to claim homestead exemption on the entire tract.
December 10, 1956
Mr. George M. Brice You ask if the homestead exemption would apply to that part of a farm
which is separated by a railroad track from the part on which the home is located. Ga. Code Section Ann. 92-232 defines the homestead as including that area immediately surrounding the house. This section was interpreted in the case of Jones v. Johnson, 80 Ga. App. 340, in which the court states:
"The owner of a farm located in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tract of land upon which the dwelling house is situated, to a value of $2,000, notwithstanding the fact that he devotes the land to agricultural purposes, as this is not such a use of the land as to amount to a commercial or business enterprise within the meaning of subsection 3 of Code (Ann. Supp.) Section 92-233 relating to homestead exemption." Applying the court's interpretation to your question, it is the opinion of the writer that the entire farm land consisting of one tract of land is entitled to the benefit of the homestead exemption. The mere fact that the tract is divided in some way by a road or railroad track would not change this. I conclude therefore, that the 26 acres across the track should be included in that part of your farm which is subject to the homestead exemption.
TAXATION-Homestead Exemption-Property Division (Unofficial) Homestead exemption may be claimed on land lying in two counties.
January 13, 1956
Honorable Walton Usher You request an opinion of the Law Department as to the proper construction
of the Homestead Exemption Law in a case where the homestead consists of one tract of land located in two counties.
The Homestead Exemption Law makes no specific provision as to the manner in which a homestead exemption may be claimed where the property lies in more than one county. However, the Homestead Exemption Law does provide that an applicant who owns and occupies his home is entitled to a homestead exemption up to $2,000.00. The Court of Appeals of our State in the case of Jones v. Johnson, 80 Ga. App. 340, stated:

746
"The owner of a farm Jocated in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tract of land upon which the dwelling house is situated, to a value of $2,000, notwithstanding the fact that he devotes the land to agricultural purposes, as this is not such a use of the land as to amount to a commercial or business enterprise within the meaning of subsection 3 of Code (Ann. Supp.) Sec. 92-233 relating to homestead exemption."
It is clearly apparent from the Homestead Exemption Law and the decision of our Court of Appeals in construing this law that the owner of a farm is entitled to claim exemption on the entire farm and in my opinion if the farm lies in two counties, the applicant would have a right to file application in each of the counties in proprortion to the acreage or value located therein and claim as exempt the property located in each county so long as the total exemption did not exceed the sum of $2,000.
TAXATION-Homestead Exemption-Property Division (Unofficial) If land lies in two counties, the applicant for homestead exemptions
would have the right to file an application in each county in proportion to the value of the land located in such county, so long as the exemption does not exceed the total amount allowable by law.
October 21, 1954
Honorable T. A. Hutcheson You request my opinion as to the proper construction of the Homestead
Exemption Law in a case where the homestead consists of one tract of land located in two counties.
The Homestead Exemption Law makes no specific provision as to the manner in which a homestead exemption may be claimed where the property lies in more than one county. However, the Homestead Exemption Law does provide that an applicant who owns and occupies his home is entitled to a homesetead e~emption up to $2,000.00. The Court of Appeals of our State in the case of Jones v. Johnson, 80 Ga. App. 340, stated:
"The owner of a farm located in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tr~ct of land upon which the dwelling house is situated, to a value of $2,000, notwithstanding the fact that he devotes the land to agricultural purposes, as this is not such a use of the land as to amount to a commercial or business enterprise within the meaning of subsection 3 of Code (Ann. Supp.) Sec. 92-233 relating to homestead exemption."
It is clearly apparent from the Homestead Exemption Law and the decision of our Court of Appeals in construing this law that the owner of a farm is entitled to claim exemption on the entire farm and in my opiriion if the farm lies in two counties, the applicant would have a right to file application in each of the counties in proportion to the acreage or value located therein and claim as exempt the property located in each county so long as the total exemption did not exceed the sum of $2,000.

747

TAXATION-Homestead,.Exemption-Property Division (Unofficial)
Taxpayer is entitled to homestead .exemption on residence and land immediately surrounding it, whether such land is divided into one or more lots.

March 22, 1955

Mr: Hubert P. Hester

I wish to acknowledge receipt of your letter of March Hi, 1955, in which you

state:

.

.

"I shall deeply and sincerely appreciate same if you will please give me your. opinion on whether or not. a resident of East Point, Fulton County, Georgia, is entitled to a homestead exemption on his house and lot if his lot is 100x120 feet, and his house is located on the edge of one side of the lot. In other words can the county tax assessor split up a taxpayer's lot and give a homestead exemption only for the house and 50 feet of the lot and not give an exemption for the other 50 feet even though the whole 100 feet is used exclusively for his homestead and no part of the 100x120 foot lot is rented, leased, or loaned in any way whatsoever with the owner and taxpayer Inaking use of the entire 1QOx120 foot lot as his home?

"Under the set of facts described above your opinion is respectfully

requested as to whether or not the county tax assessor can legally split

up two joining 50 foot lots where the entire 100 feet is used as your

home and give you a homestead exemption on.only 50 feet and deny you an

exemption on the other 50 feet.



"My contention is that taxpayer is entitled to a homestead exemption on his house and entire lot of 100x120 feet. Am I correct?" Ga. Code Ann. (Supp.) Section 92-323 defines "homestead" as follows:

"As used in this law (Sections 92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership."

Under this section, I am of the opinion that the applicant would be entitled to a homestead exemption on the home and the land immediately surrounding said residence. It is immaterial that the residence is located on one corner of the lot, and it is. immaterial whether. or not the lot is capable of being divided into two separate lots. The applicant is entitled to include in his homestead exemption all the property immediately surrounding said residence.

I find no Georgia.case directly on the point on city property, however, the Court of Appeals of Georgia in the case of Jones et al, Tax Assessors v. Johnson, 80 Ga. App., p. 340, stated:

"The owner of a farm located in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tract of land upon which the dwelling house is situated, to a value of $2,000, ."

748

TAXATION-Homestead Exemption-Residences (Unofficial)

Homestead exemption may not be claimed where Aunt deeds property to

Nephew who lives with her and Nephew moves, but Aunt remains to

occupy property.

March 2, 1955

Mrs. F. P. Allen

Your letter of February 24, 1955, addressed to Judge T. Grady Head, has been referred to me for a reply. I understand from your letter that you made a deed to your house and lot to your nephew; your nephew is married and has a family, and because of his inability to secure suitable employment in Barwick, he moved

from his home to another place with his wife and child. I also understand that you

have continued to occupy the property which you deeded to your nephew. You

further state that the Board of Tax Equalizers of Thomas County has denied the

claim for homestead exemption on the property which you occupy because your

nephew and his family do not live in the home.

In my opinion, this ruling of the Board of Tax Equalizers of Thomas County is correct. Code Section 92-232 is as follows:

"... 'homestead' means real property owned by the applicant on

January 1st of the taxable year and who is in possession thereof and upon

which said applicant resides and the land immediately surrounding said

residence and to which he or she has a right to said possession under bona fide claim of ownership."

Under the above section, in order to obtain the homestead exemption, it is

necessary for the applicant to own and occupy the property claimed to be exempt. Since your nephew and his family do not occupy the property, he could not under

the Homestead Exemption Law claim it to be exempt. There is a provision of law whereby a person can claim an exemption on

property where he maintains a home for persons dependent. upon him. This

section is as follows:

"92-234. The word 'applicant' ... is defined to be the following: ... (b) A person who is unmarried but permanently maintains a

home for the benefit of one or more persons who are morally or through relation to him or her dependent wholly or in part upon him or her for

support."

It is obvious that your nephew could not come within this provision of law

because he is married and has a family.

I understand from your letter that you will continue to occupy this property

during your lifetime. Now, in the event your nephew should make you a deed to a life interest in this property, you could claim it as a homestead exemption.

TAXATION-Homestead Exemption-Residences (Unofficial)
Homestead exemption on a residence having once been applied for is renewed automatically, so long as the owner continuously occupies such residence as a homestead. Removal of owner from residence subsequent to January first does notmake him ineligible to claim homestead exemption.

Honorable T. F. Proctor Tax Commissioner, Grady County

May 16, 1955

I wish to acknowledge receipt of your letter of May 10 in which you inquire

749
concerning the eligibility of a person to homestead exemption who has failed to make a tax return.
The amendment to the Homestead Exemption Act, approved February 15, 1952, contains the following provisions:
"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." This section provides for automatic renewal of homestead exemption of the taxpayer so long as he continues to occupy the previously exempted property as a home. Should the applicant sell his home and occupy a new home, it would be necessary for him to file a new application for homestead exemption. The auto"matic renewal is limited to the property actually exempted in the original instance so long as the owner continues to occupy it as a home. A person who owns and occupies the property as of January 1st is liable for the taxes thereon and is entitled to claim a homestead exemption on this property. The fact that the owner might vacate the property several months after January 1 would not make the owner ineligible to claim his homestead exemption on the property he owned and occupied as a home on January 1.
TAXATION-Homestead Exemption-Residences (Unofficial) Taxpayer living with neighbor and renting own property, but retaining
portion for storage and visiting it several times weekly, is. not entitled to homestead exemption on property.
September 7, 1955
Honorable J. B. Pow()ll In your letter of August 31, 1955 you request my opinion relative. to home-
stead exemption in the following case: A widow and lifetime citizen of Lanier County owns and operates a
nice farm. Up until the death of her husband several years ago, they occupied this farm home together. For several months after the death of her husband she continued to live there alone, but about two years ago, due to her advanced age and the nearest neighbor being a considerable distance away, her children persuaded her to move about five miles away to one of their cottages which is situated a very short distance from them. She now rents the farm and home but retains a portion of the dwelling to store her furniture, and she visits the old home several times each week. I am of the opinion that under the facts stated in your letter, the party named therein would not be entitled to a homestead exemption, since it appears that she does not occupy the farm in question as a home. Section 92-233 of the Georgia Code, Annotated, as amended (Ga. Laws 1952, p. 317-320) is as follows:
"(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

'150
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."
TAXATION-Homestead Exemption-Reside~ces Taxpayer who owns a residence and land surrounding it, but because of
duties in. occupation is required to be in another county except on weekends when he occupies such residence, is nevertheless entitled to homestead exemption on property.
December 14, 1955
Mrs. Ruth A. Chitty This is in response to your letter of November 6, 1955 in which you state that
you own a dwelling and forty acres of land iri the 321st Militia District of Baldwin County, Georgia, and that you have owned this property for the past ten years. You further state that the dwelling on this property is maintained as your home and residence; that you are a citizen of Baldwin County and vote in Baldwin County. Because of the fact that you are employed by the State Highway Board in Atlanta, Georgia, you say that you are unable to be at home except on week-ends. You request my unofficial opinion as to whether or not under these facts you are eligible to claim this property as a home'stead exemption.
Under the Homestead Exemption Laws of this State, "homestead" is defined in Code Section 92-232 (1951 Supplement) as follows:
"As used in this law (Sections 92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possesison thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership." I am of the opinion that under the facts outlined in your letter, you are entitled to claim this property a:s exempt under the laws of this State. 'The fact that you are absent from home during the week in the performance of your duties would not deprive you of your right to claim this property as a homestead exemption.
TAXATION-Homestead Exemption-Time of Entitlement (Unofficial) Taxpayer entitled to homestead exemption on residence, even though he
ceases to occupy property after January first.
March 22, 1955
Honorable George T. Smith l wish to acknowledge receipt of your letter of March 18, 1955, in which you
propound the following question:

751
"If a person owns and is living in his own home January 1st of a given year, how long does he have to continue to live in his home before moving therefrom in order to claim his homestead exemption for that year?"
The Homestead Exemption Law does not require the applicant for homestead to continue to live on the property claimed as homestead for any definite period after January 1 of the taxable year. Ga. Code Ann., Section 92-232 (Supp.) defines ''homestead" as follows:
"As used in this law (Sections 92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership."
I am of the opinion that an applicant who owned and occupied real property as a home on January 1 of the taxable year and otherwise qualified for homestead exemption would be entitled to claim the property as exempt under the Homestead Laws even though the applicant ceased to occupy the property at any time after January 1 of the taxable year.
TAXATION-Income Tax""-Capital Gains Income realized :from a sale or exchange of property occurring prior
to February 15, 1951 (effective date of Act allowing 50% deduction for net long-term capital gains), but reportable under the installment method of accounting in installments as collected after that date, takes its nature from the law as it existed at the time of the transaction, and the Act does not have retroactive effect to make such installments capital gains.
February 17, 1956
Mr. K. A. Campbell, Director Income Tax Unit
This is in reply to your letter in which you request an official opinion on the following question:
"Is a taxpayer who sells property prior to the enactment of Section 92-3119 (d), effective for taxable years ending on or after February 15, 1952, on the installment basis, as provided in Section 92-3107 (a) (2), and reports income in 1952 and subsequent years, entitled to claim a deduction of 50% of the profits derived from said sale as provided in Section 92-3119 (d) (2) ?" Code Section 3119 (d) introduced into the Georgia income tax law for the first time the Federal income tax concept for capital gains and losses (Ga. Laws, 1952, p. 405, 409-422). This Act became effective for all tax years ending on or after February 15, 1952. The Act fails to specifically relate its effective date to transactions consummated on or after February 16, 1951 (for fiscal years ending on February 15, 1952) and it is this hiatus in the express wording of the statute that evokes the question you have raised. It is accepted doctrine, as I understand it, that the concept of capital gains and losses is a legislative fabrication; this is to say that, absent statutory definition, there is no differentiation between capital assets and non-capital assets.

'752
Prior, then, to the Act of 1952, the Georgia income tax law recognized only property transactions, and the gain or loss therefrom was no different from any other gain or loss. It follows that a transaction occurring prior to February 15, 1951, the effective date of this Act, though it may have been a sale or exchange so as to produce taxable gain, could not have been, at that time, a sale or exchange of a "capital asset" because no such definition existed in the law at that time. Accordingly, it must be concluded that as of the time of the transaction it was just a property transaction giving rise to ordinary gain or loss. I don't suppose that anyone would contend that a transaction occurring prior to February 15, 1951, could be a "capital" transaction and be entitled to any treatment different from any other property transaction.
I do not think that the nature of income, as determined from the transaction out of which it was realized, is affected by the use of the installment method of accounting authorized in Code Section 92-3107 (a) (1) (2), as this method of accounting spreads the gain from a transaction over a period of years. following the transaction. It is my opinion that the installment method of accounting is basically a provision for relief against the rigor of annual accounting on a strict cash or strict accrual basis when applied to the more hazardous transactions involved in installment sales. Such a provision has no effect on the realization of income nor on its nature as determined from the transaction of realization; rather it affects only the time of recognition or reporting of income. Income is realized upon a sale or exchange and its nature attached at that time; while it is usually recognized or reportable at that time, its recognition may be postponed to a later transaction or its taking into account deferred to a later time. I think the installment method of accounting does no more than defer income realized on a sale or exchange, and does not contemplate that the nature of that income is in any way changed by the deferment.
In order to give capital gains treatment to a sale occurring prior to February 16, 1951, it is necessary to give a retroactive effect to the Act of 1952. It is elementary that a statute is never construed to operate retroactively, but retroactive operation must be specifically authorized by the statue. The Act of 1952 does not specifically authorize retroactive application, and I must conclude that none was intended.
It is, therefore, my conclusion that income realized from a sale or exchange of property occurring prior to February 15, 1951, but reportable under the installment method of accounting in installments as collected after that date takes its nature from the law as it existed at the time of the transaction and that the Act of 1952 has no retroactive effect to make such installments of income capital gains. Accordingly, the 50% deduction authorized for a net long term capital gain is not applicable to such installments of income.
TAXATION-Income Tax-Constitutionality (Unofficial)
An income tax law based on a percentage of Federal income tax law which adopts each change of the Congress in maintaining the percentage, is an unlawful delegation of legislative power and is unconstitutional.
July 22, 1955
Honorable J. Douglas Carlisle You refer to an opinion of the Attorney General to the effect that the General
Assembly does not have constitutional authority to fix the Georgia income tax at

753
a certain percentage of the :federal income tax, for the reason that this would constitute a delegation of the legislative function. You state that such a proposal has been made by a Macon Certified Public Accountant before a mass meeting of the citizens of Bibb County.
An opinion such as the one to which you refer has not been rendered by this office. The Honorable Carl Sanders, Representative of Richmond County, did, however, request such a bill to be drawn by the undersigned during the Jan.-Feb. Session, 1955. At that time the undersigned did express to Representative Sanders certain reservations and doubts as to the constitutionality of such a bill.
The Income Tax Act of 1929 was based on the net income taxable by the United States. In that Act the net income taxable by the State was the same as that taxable by the United States, and the tax payable to the State was one-third of that payable to the United States. There were exceptions, however, in that the net income taxable by the United States was to be increased by the income received by public officials or employees of the State and such Federal net income was to be reduced by any salary paid to the taxpayer by the United States and any interest paid to him on any bonds or obligations of the United States.
In Featherstone v. Norman, 170 Ga. 370, the Court held (p. 393 ff.) that this method of computing State tax was not a delegation of the legislative power to Congress. The Court, however, pointed out that: (p. 394)
"This act in no way undertakes to make future Federal legislation a part of the law of this State upon that subject. When a statute adopts a part or all of another statute, domestic or foreign, general or local, by specific and descriptive reference thereto, the adoption takes the statute as it exists at that time. The subsequent amendment or repeal of the adopted statute or any part thereof has no effect upon the adopting statute.... The adoption of a general law does not carry with it the adoption of the changes afterwards made in such law."
Therefore, this type of a tax computation, based on the Federal net income computation, was upheld by our Georgia courts, though I believe the Court clearly pointed out that the General Assembly could not adopt the net income as computed under the Internal Revenue Code and therewith also adopt the almost annual changes made in the Internal Revenue Code by the Congress. Each change made by the Congress would have to be adopted by the General Assembly of Georgia in order to permit the Georgia tax liability to be computed from the net income as determined under the Internal Revenue Code. As you know, of course, the General Assembly rejected this method of determining our income tax in 1931 when it repealed the 1929 Act and enacted our present basic income tax act.
Another interesting discussion of this problem of States adopting the Federal net income definition may be found in the opinion of the United States Court of Appeals for the Ninth Circuit in Alaska Steamship Co. v. Mullaney, 180 F. 2d 805.
As you realize, of course, such a basis for determining the tax might be worked out for individuals if the General Assembly of Georgia wished to return to something similar to the 1929 Act, but such a basis for State taxation could not apply to corporations doing business in more than one State because such income should be apportioned on the basis of the business conducted in Georgia.

'154
TAXATION-Income Tax-Corporations (Unofficial) A foreign corporation, which ships goods into the state to a broker or on
assignment basis, is subject to Georgia income tax.
January 26, 1956
Mr. H. H. Perry, Jr. In your letter you inquire about the liability of a foreign corporation for
income taxes where the foreign corporation does no more than ship goods into this State to a broker on a consignment basis.
I do not recall any recent litigation or official opinion which has involved this question, however, it is my opinion that, unless there are other facts, such a foreign corporation would be liable for income tax to the State of Georgia.
Code Section (Ga. Code Ann.) 92-3113, as amended in 1950 (Ga. Laws 1950, pp. 299, 300) provides:
"... Every such corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, whether or not such corporation qualifies to do business in this State, and whether or not it maintains an office or place of doing business within this State, and whether or not any such activity or transaction is connected with interstate or foreign commerce." Under the common understanding about consignment shipments, title to the goods remains in the shipper until sold. It is obvious then that the foreign shipper owns property in this State. being held for sale and that sales thereof take place within this State for his account.
TAXATION-'-lncome Tax-Deductions
Korean conflict still exists, and will continue to do so as far as this Nation
is concerned, as long as troops of the United States remain in Korea under their present assignment. All persons serving in the armed forces of the United States between January 1, 1950 and the termination of the Korean conflict are allowed a deduction from gross income.
May 26, 1954
Honorable Kenneth A. Campbell Direc;tor, Income Tax Unit State Department of Revenue
This is in response to your request for my official opinion as to whether or not the Korean conflict has ceased, in order that you may be able to determine the eligibility of members of the armed forces to receive $1500.00 exemption as provided in the Act approved February 24, 1953 (Ga. Laws, 1953, Jan.-Feb. Sess., p. 187, 188). Section 1 contains the following provision:
"That the income tax returns of all persons serving in the armed forces of the United States between January 1, 1950 and the termination of the Korean conflict shall be computed or recomputed so as to allow a deduction from gross income for any year of so much of their compensation for such services as does not and did not exceed fifteen hundred ($1500) dollars in addition to all other deductions allowed by law, and to

755
exempt such compensation from income taxes where 'SUCh deduction was not made either before or after the passage of this Act." It will be noted that this section provides for the continuation of exemption until the termination of the Korean conflict. I rendered an opinion March 2, 1948 to the Honorable James S. Peters, Chairman, State Democratic Executive Committee, with reference to the expiration of the Soldiers Vote Law (Op. Atty. Gen., 1948-1949, p. 184). The question presented in this opinion was the meaning of the language "termination of the present war." This opinion pointed out that a war may be terminated: (1) by actual cessation of hostilities; (2) by the conquest and subjugation of one of the contending parties by the other so that the former is reduced to impotence and submission; and (3) by a mutual arrangement embodied in a treaty of peace. Numerous authorities were cited in this opinion to substantiate the conclusions reached. The language upon which the present question turns is not "termination of the present war" but "termination of the Korean conflict." In the present case we have the word "conflict" whereas in the former case we had the term "war." Webster defines the word "conflict" as meaning: to maintain a conflict; to contend; to engage in strife or opposition; to stumble; to fight; to strive; to be in opposition or at variance; to be contradictory or incompatible. "War" is defined as: state or fact of exerting violence or force against another, now only against a state or other politically organized body; "War is said to be that state in which a nation prosecutes its right by force...." It will be observed from these definitions that the words "war" and "conflict" have entirely different meanings. The participation of the United States in the Korean conflict arose from the action of the United Nations in going to the assistance of South Korea to repel an invasion of that country by North Korea. An armistice has been declared, however, no treaty of peace has been entered into between South Korea and North Korea and at the present time United States troops are still stationed in South Korea as a part of the armed forces furnished by the United Na.tions to the South Koreans. No peace treaty has been signed and United States soldiers are still in Korea for the purpose of preserving peace and preventing aggression, in accordance with the action of the United Nations. I am of the opinion that the Korean conflict still exists and will continue to do so as far as this Nation is concerned as long as troops of the United States remain in Korea under their present assignment.
TAXATION-Income Tax-Exemptions Code Section 92-3106 (f) construed.
February 15, 1954
Mr. Kenneth A. Campbell Director, Income Tax Unit Department of Revenue
I wish to acknowledge receipt of your request for my opinion as to the proper construction of Section 92-3106 (f) of the Code of Georgia.
Subsection (f) of Section 92-3106 is as follows:
"The status of the taxpayer on the last day of the taxable year shall determine the right to the exemptions allowed by this section: Provided,

756
that a taxpayer shall be entitled to such exemption for husband and wife or dependents who have died during the taxable year." In your letter you give the following examples:
"(a) Income of John Jones and .wife :was $10,000; and wife, Mary Jones, had income of $1,200 from dividends. Mary Jones died November 15, having incurred medical expenses of $3,000 (of which she paid $1,275) in addition to other living expenses. It was determined that the husband spent at least $3,800 for her support in the year of her death.
"(b) Income of Mary Smith was $3,600; and husband, John, had income of $900 from salary. The w'ife furnished his chief support, spending $1,575 for this purpose. John died May 2.
"(c) Income of John White was $3,400; and wife, Alice, had income of $300 from an estate. The husband furnished her chief support, spending $1,350 for this purpose. Alice died June 2."
My construction of subparagraph (f) is that the surviving wife or husband can claim the $2500 exemption granted to married persons in the event either the husband or the wife dies during the taxable year. Therefore, the exemption allowable to the surviving spouse in examples (a), (b) and (c) would be $2500.
I am of the opinion that the surviving spouse could file a joint return and include in the return the income of the deceased spouse, however, there is no provision of law requiring the surviving spouse to follow this procedure. It would therefore be proper for a separate return to be filed in behalf of the decedent spouse.
The surviving spouse would of course in addition to the $2,500 exemption also have the right to claim any children or other dependents as exemptions.
TAXATION-Income Tax-Exemptions (Unofficial) Pensions received from the Government of the United States or any State
of the United States are not subject to Georgia income tax unless they are merely retirement income.
April 5, 1955
Dr. W. F. Tanner This will acknowledge receipt of your letter of March 19, 1955, requesting
advice as to whether your "pension" is taxable under the Georgia Income Tax Laws.
While Section 92-3107 (b) (6) of the Georgia Code exempts amounts received as pensions from the Government of the United States or any State of the United States from the definition of gross income, the Attorney General has ruled, in effect, that amounts received merely as retirement income are not pensions within the meaning of this exemption. On the other hand, compensation received by an officer of the Army or Navy for a disability received while on active duty and payments made to such officer as a gift or gratuity are classified as pensions and are not subject to the State income tax.
I am unable to ascertain from the facts set forth in your letter to which of these classifications your "pension" belongs. As you can see, if your "pension" is merely retirement income, it is subject to taxation under the Georgia Income Tax Laws.

757
TAXATION-Income Tax-'-Fi. Fa.
The Commissioner of Revenue cannot issue a ft. fa. in cases where he makes and files an income tax return for the taxpayer, without making a formal assessment.
November 15, 1955
Honorable W. V. Rice Deputy Commissioner of Revenue
You request my official opinion on the following question:
"Code Section 92-3212 provides that the State Revenue Commissioner or his agents shall make the return from such information as it can obtain for persons who fail or refuse to make and file a return.
"Code Section 92-8437 provides that the Commissioner, in any case in which any return, report, or other information is not filed or made available to the Commissioner as required by law, may proceed to ascertain such information in any way which he considers proper or appropriate, at the expense of the delinquent; and the Commissioner is authorized to prepare, execute, and file such returns.
"I would like to know whether, under the provisions of these two Code Sections the Commissioner or his Deputy Commissioner has authority to file a return for a taxpayer based upon the best information available where the taxpayer fails or refuses to file a return and whether such return is the equivalent of an assessment by the Commissioner and whether the Commissioner or Deputy Commissioner can issue a ft. fa. based upon such return without formal assessment."
The first section of the Code, referred to by you, providing that the Commissioner may make a return for a delinquent person, provides merely that any return so made by the Commissioner or made by his agent and approved by him shall be prima facie good and sufficient for all legal purposes. The wording of Section 92-8437, the other Code Section to which you refer, does not seem to broaden the powers of the Commissioner with respect to his authority to make and file income tax returns on behalf of delinquent taxpayers beyond those powers conferred by Section 92-3212.
Construing these two Code Sections together in their context with the Income Tax Act as a whole, I do not think the General Assembly intended more than that the return prepared by the Commissioner should take the place of a return prepared by the taxpayer. It is my opinion, therefore, that the Commissioner has authority to make and file a return on behalf of a delinquent taxpayer under the provisions of Code Section 92-3212 where no return has been filed; and that such return may be based upon the best information available to the Commissioner.
Code Section 92-3302, which relates to the assessment and collection of deficiencies under the Income Tax Act, defines in paragraph (f) thereof the word "deficiency" as meaning the amount by which the tax imposed by this law exceeds the amount shown as the tax by the taxpayer on his return, or if no return is made then it means the amount of the tax as determined by the Commissioner. Paragraph (a) of this section reads as follows:
"As soon as practicable after the return is filed, the State Revenue Commission shall examine it and shall determine the correct amount of tax. If the Commission determines that there is a deficiency in respect of the tax imposed by this law or any prior law, the Commission is author-

'158
ized to send notice of such deficiency to the taxpayer by registered mail. Within 30 days after such notice is mailed, the taxpayer may file a petition with the Commission for a re-determination of the deficiency. No assessment of a deficiency in respect to the tax imposed by this or any prior law, and no proceeding in court for its collection, shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 30 day period nor, if a petition has been filed with the Commission, until the decision of the Commission shall have been made known to the taxpayer. Notwithstanding the provisions of Section 92-3307, the making of such assessment or the beginning of such proceeding during the time such prohibition is in force may be enjoined by a proceeding in the proper court."
The language set forth in the last sentence of the above-quoted .paragraph makes it plain that the procedure for assessing and collecting deficiencies is mandatory in all cases whether a return has been filed or not. Furthermore, these chapters of the Code seem to treat the making and filing of a return liy the taxpayer as a separate and distinct act from the assessment of the tax by the Commissioner. For this reason it is my opinion that it was the intent of the General Assembly that the procedure provided in Section 92-3302 should be followed regardless of whether a return is filed by the taxpayer himself or the Commissioner in his behalf. Therefore, the Commissioner or his deputy cannot issue a fi. fa. in cases where a return is made and filed under the provisions of Section 92-3212 without making a formal assessment under the procedure provided for in Section 92-3302.
TAXATION~Income Tax-Insurance Proceeds
1. Proceeds on life of one of officers of corporation includible in gross income for the purpose of adjusting net income loss to net operating loss.
2. Life insurance proceeds includible in gross income for the purpose of computing a net operating loss carry-over or carry-back. All premiums paid on such insurance are deductible expenses incurred in earning such income.
December 14, 1954
Honorable Kenneth A. Campbell Director, Income Tax Unit
This is in response to your request for my opinion on the following questions: 1. Where a corporation files a return for a fiscal year, which reflects
a net income loss, are proceeds from insurance on the life of one of its officers includible in gross income for the purpose of adjusting net income loss to net operating loss?
2. If such proceeds are to be considered, which expenses incurred are attributable to such receipts to be deducted from the proceeds; (a) amounts paid by the corporation during the entire time such policies were in force and effect, or (b) only the premiums paid during the year of the net income loss? Gross income is defined in Code Section 92-3107 (b) in the negative as:
"The words 'gross income' do not include the following items which shall be exempt from taxation under this law:

759
"(1) The proceeds of life insurance policies and contracts paid upon the death of the insured."
But, in computing a net operating loss for purposes of carry-over and carryback against the income in other years, Section 92-3109 (m) (3) (A) provides an exception:
"There shall be added to gross income all non-taxable income not required to be reported as gross income under the provisions of this law, less any expenses properly and reasonably incurred in earning such nontaxable income, which expenses would otherwise be non-deductible under this law." (Emphasis supplied.)
Therefore, in order to arrive at net operating loss, subsection (3) (A) of Section 92-3109 (m) must be complied with. It appears from an examination of Section 92-3107 (b) (1) and Section 92-3109 (m) (3) (A) that proceeds received from a life insurance policy upon the death of an insured, though excluded in arriving at normal "gross income," are added to gross income in arriving at the net operating loss for the purpose of carrying forward and carrying back losses. The answer to question (1) therefore is, yes.
In considering what expenses are properly attributable to the earning of the principal sum of the life insurance policy, it is at once seen that in computing net income life insurance premiums are not permitted to be deducted in the year during which such premiums are paid, since Section 92-3110 (d) provides:
"In computing the net income no deductions shall in any case be allowed in respect of:-Premiums paid on any life insurance policy."
However, as shown by the underscored clause of Section 92-3109 (m) (3) (A), quoted above, in determining the net operating loss the ordinarily non-deductible annual life insurance premiums may be deducted as "expenses properly and reasonably incurred in earning ... (the) ... non-taxable income" represented by the receipt of the principal sum paid under the policy. The annual premium payments are expenses in the earning and production of the non-taxable income and as such should be deductible pursuant to Section 92-3109 (m) (3) (A) when the principal sum of the insurance policy is paid. Such premiums are properly deductible from the gross proc~eds prior to the inclusion of such gross proceeds in the gross income in determining the net operating loss.
Since the annual premiums are expenses properly and reasonably incurred in earning the non-taxable income, this expense should not be confined merely to the amount of the premiums paid in the year of the payment of the gross proceeds under the policy. The total annual premiums paid under the policy should be permitted as a deduction in this situation.
It is therefore my official opinion that life insurance proceeds are includible in gross income for the purpose of computing a net operating loss carry-over or carry-back, and, further, that all premiums paid on such insurance are deductible expenses incurred in earning such income.
TAXATION-Income Tax-Net Operating Loss (Unofficial)
Federal income taxes cannot be included in a net operating loss carryover under Georgia Income Tax Law.
July 30, 1954
Honorable Bernard Houston
You state that the revenue agent is proposing to disallow for 1952 the inclusion of Federal income taxes in computing the net-operating loss subject to the

'160
carry-over provisions of Georgia Code 92-3109 (m) as amended. It appears that the revenue agent is proceeding properly.
The act of the General Assembly which amended Section 92-3109 of the Georgia Code of 1933, as amended, by adding subsection (m) (Ga. Laws 1952, p. 428 ff.), never intended or contemplated that Federal income taxes should be included to increase the amount of the net-operating loss. Federal income taxes have no place in computing the net-operating loss of a business. Any doubts that this is the proper interpretation to be placed on this act was dispelled by the General Assembly in Georgia Laws 1953, November-December Session, p. 316 ff., where by amendment the legislature clearly expressed the original intent of the Act of 1952 with respect to the treatment of Federal taxes in computing net-operating losses. The Revenue Commissioner is not attempting to change a return which was legal and proper when filed, as stated in your first question, since it appears that the 1952 Act never intended that income taxes should be allowed as a deduction in computing a net-operating loss.
TAXATION-Income Tax-Non-Residents
1. A nonresident individual not liable for Georgia income tax on his distributive share of the income of a Georgia partnership or sole proprietorship engaged in the rendition of professional services.
2. Nonresident individual not liable for Georgia income tax on income derived from a sole proprietorship or partnership business carried on in Georgia, the nature of which is the rendition of personal services.
December 28, 1954
Honorable Kenneth A. Campbell Director, Income Tax Unit
You request my official opinion on the following questions: (1) Is a nonresident individual liable for income tax to the State
of Georgia on his distributive share of the income of a Georgia partnership or sole proprietorship engaged in the rendition of professional services?
(2) Is a nonresident individual liable for income tax to the State of Georgia on income derived from a sole proprietorship or partnership business carried on within this State, the nature of which is the rendition of personal services ? My answer to both question (1) and question (2) is no. Code Section 92-3112 (a) provides:
"The tax imposed by this law shall apply to the entire net income received from all property owned or from business carried on in this State by natural persons not residents of this State ..." The next following clause in that sentence of the Code Section provides as a condition to such taxation of nonresident Georgia income that income from the sale of real or personal property and income from "... a mercantile or manufacturing business, rentals, royalties, or operations of any farm, mine, or quarry" shall follow the situs of such property or "business," such income being therefore taxable in Georgia. But this clause is followed by an exception which provides:

'761
"... and all other income, including .that derived from personal services, professions, and vocations, ... shall follow the residence of the nonresident recipient." The question is whether the income received by a nonresident individual from a "professional" or "personal service" partnership located in Georgia follows the
nonresident recipient so as to be excluded from taxation by the State of Georgia.
We must consider whether the phrase, "... the tax ... shall apply to the entire net income ... from business carried on in this State" by nonresidents, means that a professional or personal service sole proprietorship or partnership is a "business" so that the income derived therefrom is taxable at its Georgia situs. In this connection, it is observed that the statute provides that "all other income," that is, all income other than the "business" income of the class enumerated in the previous clause, including personal and professional service income, shall be taxable at the residence of the nonresident recipient.
The Regulations (p. 80, 1953 Income Tax Laws and Regulations) under this statute state that it is the purpose of the statute merely to tax the nonresident's income derived from "the operations" of sole-proprietorship business, distributive share of a partnership" and other unincorporated organizations carrying on "any business" in Georgia. The Regulations add that a beneficiary of an estate is likewise taxable on any income derived from rentals "or from business conducted within" Georgia.
From a consideration of the word "business" as used and associated in the statute and the Regulations, it does not appear that it was intended by the Legislature that its meaning should include sole proprietorships or partnerships whose entire income is from professional or personal services.
However, it should be pointed out that in ascertaining in any given case whether the taxpayer is rendering "personal services" or "professional services," a factual determination must be made as to the correct status of each taxpayer claiming the exemption.
TAXATION-Income Tax-Out-of-State Businesses
Code Section 92-3113 (1) and 92-3113 (3) are not applicable to income of
taxpayer from business in other states operating under separate trade names with actual and tax situs in other states, and where taxpayer reports and pays income and other taxes in the respective state where the business income arises.
June 28, 1954
Honorable Kenneth Campbell Director, Income Tax Unit State Revenue Department
A careful review of the facts involving this particular taxpayer shows that taxpayer carries on its business in other states through separate offices operating in said states under separate trade names with actual and tax situs in said states; that taxpayer reports and pays income and other taxes called for in the respective states where its business income arises; and that taxpayer's Georgia business is conducted through a wholly owned Georgia subsidiary which reports and pays taxes to Georgia on its entire income.
I have reviewed the statutes and decisions.

'162
It is my opinion that Section 92-3113 (l) is not applicable to the business operations of this particular taxpayer inasmuch as the aforesaid section deals with investment property.
It is my opinion that Section 92-3113 (3) likewise has no application to the business operations of this particular taxpayer. Taxpayer's business income under the facts disclosed does not arise from the "holding and/or sale" of intangible property. To tax or to attempt to tax such income under this section would be contra to the statutory intent and would raise grave constitutional questions.
TAXATION-Income Tax-Out-of-State Wages (Unofficial)
No credit on state income tax is allowable to a resident of Georgia for income tax paid to another state on salary or wages earned in the other state.
June 15, 1955
Mr. Nesbit Baker
In your letter of June 6, 1955, you ask: "Under the State Income Tax Law of Georgia, a man who makes a
salary or wages from a job as a carpenter at the Atom Plant, Aiken, S. C. in 1953, but was living-had his home in Georgia that year-and paid the Income Tax to the State of South Carolina for the money he made that year in that State, is he not entitled to a credit for this South Carolina Tax amount on any Income report that he makes out the same year here in Georgia'? Please advise.
"Also quote Georgia Code, Section 92-3111 in your reply." Code Section 92-3111 provides:
"Credits Against Taxes.-Resident individuals having an established business in another State, or investment in property in another State, may deduct from the tax due upon the entire net income of such resident individual the tax paid upon the net income of such business or investment in another State, if such business or investment is in a State that levies a tax upon net income, but in no case shall the credit permitted under this section exceed the tax which would be payable to this State upon a like amount of taxable income.
"As used herein, 'taxable income' means the amount upon which the tax is computed after deducting the personal exemption and credit for dependents. The deduction authorized in this section shall in no way relate to income or tax paid thereon received by resident individuals from personal services or income from mortgages, stocks, bonds, securities, and deposits.
"A resident individual having income from property owned or business done in other States and who pays income tax in more than one other State, in computing tax resulting from such established business or investments, may not be allowed to combine into a single item the total of such taxable income in other States to determine the allowable credit. A separate tax computation must be made for each State on the net taxable income in each separate State and the total amount of tax thus de-

763
termined may be allowed as a credit, subject to the limitation provided in the law.
"The amount of income, amount of personal exemption, not taxable income, computation of tax, and total tax shown as due and paid to other States must in each instance be in accordance with actual returns filed in such other states." Code Section 92-3111 allows a resident of this State a credit for income tax paid to another state only if it is on income earned from a business or property. No credit is allowable if a resident of this State pays an income tax on salary or wages earned in another state.
TAXATION-Income Tax-Out-of-State Wages (Unofficial) Residents of Georgia, who are employed in a foreign country, are liable
for Georgia income taxes.
September 1, 1954
Mr. E. J. Jolly This is in response to your letter in regard to the liability for payment of
State income taxes by United States citizens and residents of the State of Georgia temporarily employed and residing in Mexico as a result of the employment. You state that some of these persons are permanent career employees of the United States Department of Agriculture and are temporarily assigned in Mexico, usually for a period of one year, but perhaps as long as seven years.
Section 92-3002 of the Georgia Income Tax Act, in subparagraph (i), in defining the word "resident," states: Any natural person who is or shall become a resident of this State, shall continue to be a resident even though temporarily absent from the State, until he legally qualifies to become a resident of another State." Therefore, if a citizen is a resident of the State of Georgia, he will remain a resident of this. State and subject to the income tax laws, even though absent and temporarily living in another jurisdiction, until he legally qualifies himself to become a resident of another State.
TAXATION-Income Tax-Returns-Payment (Unofficial) Closing date for filing income tax return extended to April 15th by 1955
Act of General Assembly. Tax of $30.00, or less, must be paid with return and may not be paid in
installments.
March 3, 1955
Honorable B. L. Corane This is in response to your letter of March 1, 1955 in which you asked to be
informed of the closing date for filing income tax returns. The General Assembly of 1955 changed the date for filing income tax returns
from March 15 to April 15 and this Act was approved by Governor Griffin on February 16, 1955.
The Act changing the date for filing also changed the provision with respect

764
to installment payments of the income tax due the State of Georgia. Henceforth, if the income tax due the State is $30.00 or less, the taxpayer may not pay such tax in installments but must pay the tax when he files the return.
TAXATION-Income Tax-Penalties Commissioner or Deputy Commissioner of Revenue may compromise pen-
alty for filing late income ta;x return, or waive penalty for filing late income tax return when such waiver, in their judgment, amounts to a compromise of the penalty or penalty and tax.
February 28, 1955
Mr. W. Vaughn Rice Deputy State Revenue Commissioner
This will acknowledge receipt of your letter of January 14, 1955, in which you request my opinion on the following question:
"Code Section 92-3211 provides for penalties for late filing of income tax returns; for failure to file a return; and for false or fraudulent returns. This Section provides that such penalties shall he collected or shall he added to the tax, and each of the subsections provides that there shall he collected or added to the tax a minimum penalty of $5. Code Section 92-3007 provides that any penalty arising under the Income Tax Laws may be compromised. We would like to know whether, under the provisions of these two Code Sections, the Commissioner or Deputy Commissioner has authority to compromise or waive the penalties provided for in Section 92-3211 ?" 'rhe two Code Sections to which you refer read as follows:
"92-3211. Penalties; late filing of, and failure to file, return; false or fraudulent return.-(a) Penalty for late filing. In the case of any taxpayer who voluntarily discloses and files an income tax return after such return has become delinquent, there shall be collected as a part of the tax a penalty of $5; or where no tax is shown to be due, there shall be collected a penalty of $5.
(h) Penalty for failure to file return. In the case of any person, firm or corporation who fails or refuses to file a return required by this law within the time prescribed by law, there shall be added to the tax a penalty equivalent to 25 per cent. of the tax, but in no case shall the penalty so added be less than $5; or in the case of failure to file a return where no tax is due, there shall be collected a penalty of $5.
" (c) False or fraudulent return. In the case of any person, firm or corporation who files a false or fraudulent return, there shall be added to the tax a penalty equivalent to 50 per cent. of the tax, but in no case shall the penalty so added be less than $5.
"The amounts so added as penalties shall be collected as a part of the tax."
"92-3007. Compromise of penalty cases.-The Commission may compromise any penalty arising under the provisions of this law, instead of commencing suit thereon, and may compromise any such case with the consent of the Attorney General after suit thereon has been commenced.

765
Where any penalty case is compromised, the Commission shall keep on file in its office the reasons for settlement of such." Code Section 92-3007 was codified from Section 58 of the Income Tax Act of 1931 (Ga. Laws 1931, Ex. Sess., pp. 24, 59). Code Section 92-3211 as it now exists is a revision of the original Section 92-3211 which was codified from Section 34 of that Act. The original Section 92-3211 provided for the exaction of penalties substantially as the present Section 92-3211, except that the matter now included in Paragraph (a) was not a part of the original. The section as enacted by the Legislature in 1931 further provided that where it was shown under the conditions set forth in Paragraph (b) of the present law that the failure to file was due to reasonable cause and not to wilful neglect, no such addition would be made to the tax and "no such penalty shall be collected." This provision was deleted when the Legislature amended the law in 1937. Since the original Section 92-3211 was codified from the same Act as was Section 92-3007, these sections were in pari materia, and it is manifest th'lt it was the intention of the Legislature that the penalties provided for in the original Section 92-3211 could be compromised. The present Section 92-3211 was enacted as Section 15 of the Act of 1937 (Ga. Laws 1937, pp. 109, 139). Unless it is apparent from the provisions of this latter act that it was the intention of the Legislature to repeal or supersede Section 92-3007 as respects the matter referred to in Section 92-3211, or unless such result follows by necessary implication from the wording and language of the law, Section 92-3007 remains in force and the Commissioner or Deputy Commissioner still have the right to compromise the penalties provided for in Section 92-3211. The 1937 Act undertook a rather extensive revision of the Income Tax Laws as codified in Title 92, Div. I, Part IX of the Code of 1933, but did not in any wise purport or expressly undertake to amend, revise, modify or repeal the provisions of Section 92-3007. Therefore, unless it arises by necessary implication from the wording of that Act that it was the intention of the Legislature to amend, revise, modify or repeal the provisions of Section 92-3007 in so far as they affect the imposition of penalties under Section 92-3211, then there was no modiftcation of such provisions. But, repeals by implication are not favored (Cornwell v. The Atlanta Trust Company, 177 Ga., 303 (1)), and in order for a law to be repealed by implication, the existing Act must be irreconcilable with the later enacted law. Murray v. State, 112 Ga., 7, 10; Moore v. State, 150 Ga., p. 679 (1).
Section 15 of the Act of 1937 is the only Section of that Act that has any reference to penalties, and this Section is not, in my view, necessarily repugnant to or in conflict with provisions of Code Section 92-3007. The latter Code Section deals with the compromise of penalties and Section 15 of the Act deals with the fixing of penalties. Fixing a penalty and compromising it after it is fixed are two different things, and the two acts may be carried on by the Commissioner quite separately and independently of one another. The fact that a penalty may be fixed or assessed is not at all inconsistent with the later negotiation looking toward compromising or waiving it entirely. I, therefore, conclude that Section 92-3211 providing for penalties in case the taxpayer fails to file a return is not by necessary implication or otherwise inconsistent with or repugnant to the provisions of Section 92-3007, and that penalties fixed under the provisions of Section 92-3211 may be compromised under the provisions of Section 92-3007.
I now come to consider whether the word "compromise" as used in Section 92-3007 is broad enough to embody the waiver of or abandonment of the penalty entirely. In Hale v. Lipham, 61 Ga. App., pp. 191, 193, the Court of Appeals defined compromise as follows:

766
"Compromise may be defined as any agreement or arrangement by which, in consideration of mutual concessions, a controversy is terminated. The word applies equally to controversies in court or out of court. Mere abandonment of one's claims is not a compromise, but abandonment may constitute the consideration for which the other party either concedes some right, parts with something, or sustains some loss or inconvenience, in which event a compromise results." Section 92-3211 provides that the penalties therein provided for shall be collected as a part of the tax. Under the above quoted ruling of the Court of Appeals, I think it is clear that the word "compromise" means that where a penalty has been fixed in accordance with the provisions of Section 92-3211 and added to the tax, it may be collected in whole or in part or not at all according to the circumstances of the particular case. Where, in the judgment of the Commissioner, after the penalty has been duly and legally assessed, concessions of value to the State from the taxpayer can be secured by waiving the penalty, then in my opinion, a compromise within the meaning of Section 92-3007 has been effected. This view of the matter is further strengthened by the fact that this is the interpretation placed on the law by the Commissioner of Revenue for many years (Yearty v. General Wholesale Co., 88 Ga. App., pp. 399, 401) and acquiesced in by the Legislature, in that the Legislature, with presumptive knowledge of this interpretation and practice on the part of the Commissioner, has apparently not seen fit to change or modify the provisions of the law as they now exist and have existed since 1937. It is, therefore, my ruling in response to your question that the Commissioner or Deputy Commissioner may waive the penalty provided for in Section 92-3211, when in their judgment such waiver amounts to a compromise of the penalty or the penalty and the tax.
TAXATION-Income Tax Returns (Unofficial) Relates law as to requirements for filing income tax.
September 7, 1955
Mr. Fred G. Beckmann In your letter of September 3, 1955 you ask whether a man and wife are
required to file a Georgia income tax return where their combined net income for the year in question is less than $2,500.00.
Code Section 92-3201 requires that every resident individual, married and living with spouse and having a net income for the taxable year of $2,500.00 or over file a Georgia income tax return, stating specifically the items of his gross income and the deductions and credits allowed by law.
For example, a married person living with spouse during the taxable year with a salary of $2,550 is required to file a Georgia income tax return even though he may be entitled to deduct contributions, interest, and taxes in a sum which would reduce his taxable income to less than $2,500.00.
A married person having a net income in excess of $2,500 is also required, under Georgia Code Section 92-3201, to file an income tax return, even though his personal exemptions and credit for dependents provided for in Code Section 92-3106, when subtracted from the net income, would reduce said net income to a figure below $2,500.00, and said taxpayer would owe no tax. For example, a mar-

767
ried person having two dependents, giving him a total credit of $3,500.00, pursuant to Code Section 92-3106, is required, under Code Section 92-3201, to file a :return if his income is, for example, $2,600.00, or the amount of $2,500.00 or more, notwithstanding the fact that he will owe no tax. However, if a married person and his spouse have a total net income, before exemptions, credits and deductions, of less than $2,500.00, no income tax return is required under Georgia law.
Code Section 92-3201 states further that a resident individual having a gross income for the taxable year of $5,000.00 or over must file a Georgia income tax return whether the net income would be less than $2,500.00 or not.
TAXATION-Income Tax-Returns The State Revenue Commissioner is authorized to furnish County Tax
Assessors with information from state income tax returns.
November 2, 1955
Honorable C. G. Campbell Director, Property Tax Division
You requested an official ruling as to whether or not you are authorized under the laws of this State to furnish to the County Tax Assessors, upon request, information from the income tax files as to the inventories, land, buildings, machinery and equipment, furniture and fixtures, delivery equipment, leasehold improvements and other assets of taxpayers when this information is to be used by the tax assessors of the several counties of the State in the discharge of their duties in determining the proper assessment to be placed upon the property of the taxpayer.
Code Section 92-8406, in enumerating the duties of the State Revenue Commissioner, states in subsection (c): "Supervision of tax administration throughout the State, subject, however, to the sovereign rights of the counties to regulate their own affairs." Also in subsection (g), "Assist local tax officials in every feasible manner when so requested by such officials."
It will be observed from the foregoing Code Sections that it is the duty of the Commissioner of Revenue to supervise tax administration throughout the State and to assist local tax officials in every possible manner in the discharge of their duties.
There are two Code Sections relating to the secrecy of income tax :returns which place limitations upon the State Revenue Commissioner in giving out any information as to the contents of the return. The first Code Section is 92-3216 (codified from the Acts of 1931, Ex. Sess., p. 57; 1931, pp. 7, 35) which is as follows:
"Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the State Revenue Commission, any agent, clerk, or other officer or employee, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this law. Nothing herein shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General or other legal representative of the State of the report or return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted to recover any tax or any

768
penalty imposed by this law. Reports and returns shall be preserved for five years, and thereafter until the Commission orders them to be destroyed...." (Emphasis ours.)
The next Code Section appears in the Supplement to the Code and is taken from the Acts of 1937-38, Extra Session, p. 77, 85; 1945, p. 160 and designated in the Supplement to the Code as Section 92-8414. It reads as follows:
"The information secured by the Commissioner incident to the admin~ istration of any tax shall be confidential and privileged and neither the Commissioner nor any member or members of his staff shall divulge or disclose any such confidential information obtained from the department's records or from an examination of the business of any taxpayer to any person other than the Commissioner or members of his staff, or to an officer of the State or local government entitled in his official capacity to have access thereto; or to the taxpayer; provided that the Revenue Commissioner may fumish such confidential information to the appropriate tax or legal official of another state, territory or country or of the United States Government if the office or officer of said state, territory, or country makes its own records available to the Revenue Commissioner of Georgia; provided, further, that furnishing such information to any other state, terirtory, country or the Federal Government shall not be deemed to change the confidential character of such information; and provided, further, that nothing herein contained shall be construed to prevent the use of confidential information as evidence before any state or federal court in the event of litigation involving tax liability of any taxpayer...." (Emphasis ours.)
Code Sections 92-3216 and 92-8414 must be construed together. It will be observed that Code Section 92-3216 prohibits the Commissioner of Revenue from giving information as to the contents of income tax returns except in accordance with a proper judicial order or as otherwise provided by law. Code Section 92-8414, contained in the General Administrative section of the title, was the last expression of the Legislature relative to the giving of information from tax returns on file with the Commissioner of Revenue. It provides a method of giving information other than by judicial order. However, the information which the Commissioner may give under Section 92-8414 insofar as the question herein dealt with is limited to giving information to an officer of the State or local government entitled in his official capacity to have access thereto. The question is whether the chairman of a Board of Tax Assessors is such an officer of the State or local government entitled in his official capacity to have such information.
The duties of the Board of County Tax Assessors are defined in Code Section 92-6911. Under this section the Board of Tax Assessors is charged with the duty of examination of 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 return 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 return.
The county boards of tax assessors of the several counties of this State are charged with the responsibility of seeing that no taxpayer has omitted from his return any property that should be returned or has failed to return any of his property at a fair valuation and also charged with the responsibility to correct taxpayers' returns and assess and fix a fair and just valuation to be placed on his

769
property. Therefore, I am of the opinion that county boards of tax assessors in the discharge of their official duties are officers of the county, entitled in their official capacity to have access to the files of the Commissioner of Revenue and secure information from the income tax returns as to inventories, land, buildings, machinery and equipment, furniture and fixtures, delivery equipment, leasehold improvements and other assets of the taxpayers.
It is my further opinion under Code Section 92-8414 that in order to assist the county tax assessors in the discharge of their duties as prescribed by law, the Commissioner of Revenue has the authority to furnish this information to the county boards of tax assessors when a request to do so is made in their official capacity.
TAXATION-Intangible Tax-Applicability (Unofficial) A long term lease agreement secured by a mortgage is subject to intan-
gible tax, since it contains all the elements necessary in the making and executing of a note.
December 7, 1956
Mr. Hiram K. Undercofier You request my opinion on the following question: "Jones, an owner of certain real estate, leased it to "X" corporation for a period of 15 years at a stipulated rental sum each month together with other provisions. "X" corporation in turn sub-leased the property back to Jones for a similar period at a stipulated monthly rental and other provisions. To secure compliance with this sub-lease "X" corporation has taken a blanket mortgage from Jones covering this same real estate. The question is whether intangible tax must be paid on the mortgage prior to recording." I am of the opinion that the recording tax on long term notes should be paid
at the time of filing of the mortgage executed to secure the sub-lease agreement described in your letter.
The sub-lease agreement, in addition to containing the conditions of the lease, is a written promise to pay certain amounts on specific dates over a period of 15 years. This in my opinion, makes the sub-lease not only a lease but also a long term note since it contains all the elements necessary in the making and executing of a note.
The Director of the Property Tax Division has taken this position on instruments similar to the one described in your letter.
TAXATION-Intangible Tax-Applicability (a) Discusses difference between bonds and long-term notes for the pur-
pose of the Intangible Tax. (b) Bonds owned by a non-resident do not have to be returned for Geor-
gia Intangible Tax.

770
May 19, 1955
Honorable Clarence G. Campbell
Director, Property Tax Division, Dept. of Revenue
I wish to acknowledge receipt of your request for an official opinion, together with a copy of the "Indenture of Mortgage and Deed of Trust" between Bowaters Southern Paper Corporation and J. P. Morgan & Company, Inc., Trustee, dated March 1, 1953; also copy of the purchase agreement under which Bowaters Southern Paper Corporation proposed to sell bonds issued in accordance with the "Indenture of Mortgage and Deed of Trust" between that Corporation and J. P. Morgan & Company, Inc., Trustee. You asked my official opinion as to whether or not the instruments designated in the "Indenture of Mortgage and Deed of Trust" as 4%, per cent coupon bonds and 4%, per cent registered bonds without coupons, payable in the principal amount at the end of twenty years, are bonds within the meaning of Georgia Code, Annotated, Section 92-162 (1954 Supplement) or long term notes secured by real estate within the meaning of Georgia Code, Annotated, Section 92-163 (1954 Supplement). You further request my opinion as to whether or not, in the event these instruments are bonds, they would be taxable by the State of Georgia if purchased and owned by nonresidents not deriving them from property owned or business done in the State of Georgia.
It appears from the file in this matter that a group of nonresident insurance companies purchased in 1954 and 1955 a total of $37,500,000 of 4%, per cent bonds issued by Bowaters Southern Paper Corporation. Under Article 4 of the purchase agreement, these same companies are entitled to purchase certain additional bonds. All of the bonds are either registered or have coupons attached. They are executed under seal, signed by the company's president or vice-president, attested by its secretary or assistant secretary, formally delivered to a trustee under the terms of the "Indenture of Mortgage and Deed of Trust" and specifically authenticated by the trustee. They are secured by assets of the company, including realty, both in Tennessee and in Georgia.
The agreements included in the "Indenture of Mortgage and Deed of Trust" provide for the payment of the bonds subject to penalty payments varying in amounts according to the length of time expiring after the original issuance of the bonds. In addition, there are restrictions concerning the financial and corporate operations of the issuing company designed for the protection of the purchasers of the bonds, and also provisions adding property subsequently acquired by the company as further security for the instruments.
I am of the opinion that the bonds issued in accordance with the "Indenture of Mortgage and Deed of Trust" between Bowaters Southern Paper Corporation and J. P. Morgan & Company, Inc., as trustee, are bonds within the meaning of Georgia Code, Annotated, Section 92-162 (1954 Supplement) and are not long term notes secured by real estate within the meaning of Georgia Code, Annotated, Section 92-163 (1954 Supplement).
The 1953 Intangible Property Tax Act, Section 2 (a), designated in the 1954 Supplement to the Georgia Code, Annotated as Section 92-161, imposes an annual property tax of $1.00 on each $1,000 of the fair market value of all bonds and debentures of all corporations. This same Act, Section 4, Part I, designated as Code Section 92-164 (1954 Supplement) provides:
"Every holder of long term notes secured by real estate shall, within 90 days from the date of the instrument executed to secure the same, record such instrument in the county in which is situated the real estate

771
conveyed or encumbered or upon which a lien is created to secure such note or notes, and shall, at the time of filing such instrument for record pay to the clerk of the superior court of such county, a tax measured by the amount of the debt as evidenced in the instrument filed for record at the rate of $1.50 for each $500 or fraction thereof of the face amount of the note or notes secured by such instrument: Provided, however, that the maximum amount of any such intangible property tax payable with respect to any instrument when so recorded shall be $10,000."
This Act also in Section 3, Part I (codified as Section 92-163 of the 1954 Supplement to the Georgia Code, Annotated) defines "long term notes secured by real estate" as follows:
"For the purposes of this law (Sections 92-161 through 92-184), the words 'long term notes secured by real estate' shall mean any note or notes representing credits secured by real estate by means of mortgages, deeds to secure debt, purchase money deeds to secure debt, bonds for title or by any other form of security instrument by whatever name called, any part of the principal of which note or notes falls due more than three years from the date thereof or from the date of any instrument executed to secure such note or notes and conveying or creating a lien or encumbrance on real estate for such purpose. The words 'short term notes secured by real estate' shall mean any such note or notes the whole of the principal of which falls due within three years from the date thereof or from the date of any such instrument executed to secure the same."
It was clearly the legislative intent in the Act of 1953 to tax bonds at an annual rate as is provided therein, while on the other hand, the holders of long term notes secured by real estate were taxed on an entirely different basis. The definition of "long term notes" is possibly broad enough to include bonds and would possibly include bonds were it not for the fact that this Act imposes an annual tax on bonds as is herein pointed out.
In arriving at the conclusion that the instruments described in the "Indenture of Mortgage and Deed of Trust" under consideration are bonds rather than notes, I have taken into consideration the following provisions of the "Indenture of Mortgage and Deed of Trust:"
(1) The instruments under consideration are defined to be bonds by the "Indenture of Mortgage and Deed of Trust."
(2) The indentures under consideration are executed according to the manner and method of executing bonds in that they are either registered or have coupons attached; they are executed under seal, signed by the company's president or vice-president, attested by its secretary or assistant secretary, and delivered to the trustee under the terms of the "Indenture of Mortgage and Deed of Trust," and authenticated by the trustee.
(3) The corporation issuing the instrument has followed the usual practice in the issuance of bonds in that there are certain restrictions as to the financial and corporate operations of the company for the protection of the holders of the instruments and provision for the adding of property subsequently acquired by the company as further security for the instrument.
Bonds and notes are contrasted as follows in Fletcher's Cyclopedia on Corporations (Vol. 6A 1950), Section 2638:

772
"Bonds are always under seal; notes may be sealed or unsealed. Bonds generally run for a term exceeding five years; notes for lesser periods. Bonds or notes may be secured or unsecured." In the Atlanta Metallic Casket Co. v. Allen case, 197 F. 2d 460 (5th Cir. 1952), the court said that whether an instrument is a bond or a note is to be "determined primarily from its form and face." In arriving at the conclusion that the instruments are bonds rather than long term notes, I have also considered the opinion of the court in the cases of Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807; Niles-Bement-Pond Co. v. Fitzpatrick, 213 F. 2d 304 (2nd Cir. 1954); U.S. v. Ely and Walker Dry Goods Co., 201 F. 2d 584 (8th Cir. 1953); and Commercial Credit Co. v. Hotferbert, 188 F. 2d 574 (4th Cir. 1951). You also request my opinion, if I should conclude that these instruments are bonds, as to whether nonresident purchasers not deriving them from property owned or business done here must return them in this State for intangible tax purposes. Nonresident purchasers of these bonds not deriving them from property owned or business done in the State of Georgia would not be required to return for taxation the bonds owned by them. A nonresident of the State of Georgia is not required to make intangible tax returns to the State of Georgia unless said nonresident has acquired a business situs in the State of Georgia or unless the intangibles were acquired from property owned in Georgia or business done here by the nonresident or his agent. This principle of law has been clearly established by the courts of this State in the following cases: Suttles v. Associated Mortgage Companies, 193 Ga. 78, 17 S. E. 2d 272 (1941); National Mortgage Corporation v. Suttles, 194 Ga. 768, 22 S. E. 2d 386 (1942); Davis, et al v. Penn. Mutual Life Insurance Company, 198 Ga. 550, 32 S. E. 2d 180 (1944), 201 Ga. 821, 41 S. E. 2d 406 (1947); Suttles v. Owens-Illinois Glass Co., 206 Ga. 848 (1950), 59 S. E. 2d 392.
TAXATION-Intangible Tax-Applicability (Unofficial) It is a question of fact to determine whether an instrument is a bond
or a long-term loan secured by real estate in order to determine what section of the Intangible Tax Act shall apply.
November 29, 1955
Mr. J. C. McDonald This is in response to your letter of November 22, 1955 with regard to a
deed of trust executed by the Fitzgerald Civic Corporation to two banks, designating the banks as trustees to act on behalf of bondholders. The deed of trust apparently conveys certain real property as security for all the outstanding bonds. The bonds belong to the individual bondholders and are due ten years from date, with interest payable semi-annually.
You ask whether or not these bonds are taxable under Section 4 of the Intangible Property Tax Act of 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379-390), which imposes a property tax upon long-term notes secured by real estate prior to the recordation of the security instrument securing such note, or whether the tax should be paid by the individual bondholder under Section 2, Part I of the Act above referred to.
Although there has been some question in the minds of many attorneys

773
throughout the State as to whether all instruments which are secured by real estate must not be taxed under Section 4, Part I of the Act, the Attorney General has ruled that if such instrument secured by a trust indenture and certain real estate is in fact a true bond, the tax liability on such bonds accrues under Section 2, Part I of the Act rather than the so-called recording tax imposed under Section 4. It is, however, a question of fact in each case whether the instrument executed is in fact a bond or a long term note secured by real estate. As stated, if the instrument is in fact a bond, the tax liability arises out of Section 2 rather than Section 4, Part I of the Act.
TAXATION-Intangible Tax Applicability (Unofficial) No intangible tax is due upon the recording of a note, since it is a short-
term note, but becomes subject to the intangible tax when it is three years old.
March 21, 1956
Mr. Ted Bruce You state that a deed to secure debt, executed to secure a promissory note
payable on demand, has been presented to you for recording, and that you desire my advice as to whether or not the intangible tax (so-called recording tax on long-term notes secured by real estate) imposed by Section 4, Part 1 of the Intangible Property Tax Act of 1953, as amended, should be collected on such instrument prior to recording. Specifically, you ask whether a demand note should be construed as a "Long Term" or "Short Term" note.
On December 21, 1953, I ruled that demand notes should be returned for taxation as promissory short-term notes, and, therefore, are not subject to the recording tax imposed by Section 4, Part 1 of the Act. (Opinions of the Attorney General 1952-53, p. 423) (See also rulings in Opinions of the Attorney General, December 15, 1954.) However, we have also ruled that although a demand note is a short-term note at the time such note is made and filed for recording, such a note will become a long-term note when such note runs for a period in excess of three years and becomes subject to the tax imposed by Section 4, Part 1 of the Act when such note is three years old.
TAXATION-Intangible Tax-Applicability The Intangible Tax is due on the entire amount of a loan, whether it is
evidenced by one note or a series of notes, some of which mature within a three year period.
March 4, 1955
Honorable Clarence G. Campbell Director, Intangible Tax Unit Department of Revenue
I wish to acknowledge receipt of your letter in which you request my opinion

?'74
as to the proper construction of the Intangible Property Tax Act of 1953. In your letter you state:
On December 15, 1954 you rendered an official opinion to the Honorable Charles D. Redwine, who was at that time Commissioner of Revenue of the State of Georgia, on a number of questions involving the construction of the Intangible Tax Act. In answer to question number 8 in that opinion you stated that where a note running for eight years and in the amount of $40,000 was payable in eight annual installments of $5,000 each, that the first three payments cannot be considered as short term notes and therefore exempt from the intangible tax upon long term notes. You stated that the entire amount of the debt was subject to the intangible tax.
A similar question has arisen wherein, instead of installment payments of a single note, the loan is split up into a series of notes maturing annually over a period of years. Your official opinion is therefore respectfully requested on the following facts:
A loan for the sum of $40,000 is made. This loan is evidenced by a series of four notes of $10,000 each, due one year from date, two years from date, three years from date, and four years from date. A loan deed is executed by the borrower to secure the payment of the loan of $40,000 as evidenced by the four notes of $10,000 each. Is the holder of this loan deed required to pay a recording tax on the entire $40,000 or is he required only to pay a recording tax on the note of $10,000 which falls due more than three years after the execution of the note or from the date of the instrument executed to secure the payment of the same?
As pointed out in your request, I rendered an opinion on December 15, 1954 to the Honorable Charles D. Redwine, who was then Commissioner of Revenue, which opinion dealt with this same question in a case where the loan deed was exP.~uted to secure one note of $40,000, payable in annual installments. In question 9 of that opinion I held that the payments becoming due within three years after the execution of the note and the deed to secure the same should be included with the payments maturing after the three years in computing the tax to be paid upon the filing of the loan deed for record.
I am of the opinion that the tax would be due on the entire loan whether it is evidenced by one note or a series of notes.
The Intangible Tax Act approved December 22, 1953 (Ga. Laws 1953, Nov.Dec. Sess., p. 379) Part I, Section 3, defines the words "long term note secured by real estate." This section is as follows:
"For the purposes of this Act, the words 'long term notes secured by real estate' shall mean any note or notes representing credits secured by real estate by means of mortgages, deeds to secure debt, purchase money deeds to secure debt, bonds for title or by any other form of security instrument by whatever name called, any part of the principal of which note or notes falls due more than three (3) years from the date thereof or from the date of any instrument executed to secure such note or notes and conveying or creating a lien or encumbrance on real estate for such purpose. The words 'short term notes secured by real estate' shall mean any such note or notes the whole of the principal of which falls due within three (3) years from the date thereof or from the date of any such instrument executed to secure the same." (Emphasis ours.)
Code Section 102-102, in prescribing the rules which shall govern the con-

775
struction of all statutory enactments, subsection 9, contains the following provision:
"In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy."
The cardinal rule of construction is to ascertain the true intention of the Legislature in the passage of a law. Gazan v. Heery, 183 Ga. 30; Thacker v. Morris, 196 Ga. 167, 173; Cook v. Cobb, 72 Ga. App. 150, 154. The cardinal rule is to carry into effect the legislative intent and purpose if that is within constitutional limits. Ford Motor Co. v. Abercrombie, et al., 207 Ga. 464.
Another important factor in the construction of a statute is the history of the legislation. "History of legislation in the State in reference to subject-matter of particular statute, looked to in construing the statute." The Mayor and Council of Savannah v. Charles Hartridge, 8 Ga. 23; Bacon & Sons v. Jones, 116 Ga. 136; Barker v. The State, 117 Ga. 428; Acree v. The State, 122 Ga. 144.
Another rule in the construction of statutes is that, "All words of a statute are to be given due weight aqd meaning." Falligant v. Barrow, 133 Ga. 87, 92.
Still another rule of construction of statutes is that the construction must be reasonable. "Construction should be, equally removed from that extreme strictness which would make the statute unpopular or ridiculous or difficult to enforce, and from that latitude which would render it ineffective." Roberts v. The State, 4 Ga. App. 207 (2).
Applying the above-quoted definition contained in Section 3 of the Act and the rules of construction of statutes herein enumerated, I am of the opinion that in computing the tax to be paid on the filing for record of the real estate security instrument described in your question that the tax should be computed on the entire loan of $40,000 as evidenced by the four notes.
The definition of long term notes as herein quoted defines them to be any note or notes secured by real estate and includes in this definition any part of the principal of which note or notes fall due more than three years from the date thereof or from the date of the instrument executed to secure such note or notes. This definition applies whether the notes were executed on the same or on different dates.
The legislative history of this Act dates back to the time when the original Intangible Tax Act was first passed (Ga. Laws 1937-38, Ex. Sess., p. 156), at which time the State endeavored to collect taxes on notes secured by real estate located within the State of Georgia. The Courts of our State held that nonresident insurance companies that did not have a business situs in the State of Georgia could not be taxed on the loans they made in the State. Columbus Mutual Life Ins. Co. v. Gullatt, Guardian Life Insurance Co. of America v. Gullatt, 189 Ga. 747. This decision of the Supreme Court brought about a situation whereby residents of the State of Georgia who had a business situs in the State were paying taxes on their loans made on real estate in Georgia, whereas nonresident companies engaged in the same type of business of making loans in Georgia were escaping taxation. This situation brought about an obvious discrimination against residents of the State of Georgia. It was clearly the legislative intent of the Intangible Property Tax Act of 1953 to remedy this situation by enacting a law whereby all long term notes secured by real estate were taxable in the State of Georgia regardless of the business situs of the lender.
The construction herein placed on the statute in question is the only construe-

'176
tion which can be placed upon it so as to give a meaning to the entire section and to give it a reasonable construction which would render it effective and at the same time construe it according to its legislative history and the clear intent of the General Assembly.
It was the intent of the legislature to impose the tax upon the entire long term debt secured by real estate. It, of course, is not a tax upon the mortgage, but is a tax upon the principal amount of the long term debt as evidenced by the notes. If the debt, secured by the real estate and evidenced by the loan deed, was in the form of a series of notes payable in staggered annual dates over a long term period rather than one note payable in a series of annual installments, the holder of such series of notes maturing at staggered terms cannot, by this separation of the single debt into several notes, escape the intangible tax imposed by Section 4 of the Act on those notes falling due in less than three (3) years. To permit lenders to thus escape the tax by the device of splitting the debt into installment notes rather than one note containing provisions for installment payment, would defeat the intention of the General Assembly in enacting the Intangible Property Tax Act of 1953, and, as stated previously, an act must be read so as to carry out the obvious intent of the Legislature as evidenced by the Act itself and the legislative history.
TAXATION-Intangible Tax-Applicability (Unofficial) The Intangible Tax Act taxes notes given for the purchase of land where
the vendor executes a bond for title to the vendee.
September 7, 1954
Mr. W. S. Reid The Intangible Tax Act does tax notes given for the purchase of land where
the vendor executes a bond for title to the vendee. Section 7 of the Intangible Tax Act, as amended (approved December 22, 1953, Ga. Laws 1953, Nov.-Dec. Sess., p. 379) contains the following provision:
"Any vendor of real estate who shall retain title thereto as security for the purchase price and who does not convey title to the vendee and take back a deed to secure debt shall execute and deliver to the vendee a bond for title which shall correctly set forth the unpaid portion of the purchase price and the maturity of such indebtedness. If any part of the purchase price falls due more than three (3) years from the date of such instrument, such vendor shall, before delivery of the bond for title, have the same recorded in the county where the land is situated and pay the tax required by this Act on account thereof."
TAXATION-Intangible Tax-Banks Banks, banking associations, trust companies doing banking business and
savings banks, State Building and Loan Associations, and Federal Savings and Loan Associations, are not liable, with National Banking Associations, for the payment of the Intangible Property Tax upon long-term notes secured by real estate.

'177
February 1, 1954*
Honorable Charles D. Redwine Commissioner of Revenue
You request my official opinion in regard to the application of the Intangible Property Tax Act enacted at the November-December, 1953 Session, of the General Assembly (Act No. 811, H. B. No. 354), to the following two situations:
(1) Are national banks required to pay the recording tax levied by the Act? (a) In the event they are not, does Section 1 of Part III of the Act grant a valid exemption to the enumerated banks, associations and companies as to the recording tax levied by the Act?
(2) Is the recording tax imposed upon extentions, transfers, assignments, modifications or renewals of long term notes secured by real estate when the original security instrument by whatever name called was executed and recorded prior to January 1, 1954? (a) Will the answer to the above question be different in the event the paper was executed but not recorded prior to January 1, 1954?
As to Question 1 and sub-question (a), generally, governmental instrumentalities are exempt from taxation in the absence of expressed legislative intent to tax. Newton v. City of Atlanta, 189 Ga. 441, 445. National banking associations, created under the laws of the Congress of the United States are instrumentalities of the federal government (Owensboro National Bank v. City of Owensboro, 173 U.S. 664; 19 S. Ct. 534) and may not be taxed by the States except as provided in Chapter 12, Section 548 of the U. S.C. A. First National Bank v. Anderson, 269 U. S. 341, 46 S. Ct. 135. Section 548 provides that National Banking Association shares may be taxed in one of four ways and no other tax may be imposed except upon the real property of the bank. It was held in Linton v. Childs, 105 Ga. 567, that a tax upon each president of banks in the State of Georgia was inapplicable to national banking associations because of the immunities for a federal instrumentality.
There can be no doubt that Part I, Section IV of the 1953 November-December Session of the General Assembly of Georgia levies. a tax upon each holding of long-term notes secured by real estate, as defined by the Act. Such an imposition upon national banking associations as holders is without authority and such associations are immune from this tax. It is of no difference by what name the tax is designated. Federal Land Bank of New Orleans v. Crosland, 261 U. S. 374, 41 S. Ct. 385.
Thereby, in conformity with my opinion of May 10, 1951, which held that national banking associations were not subject to the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act, it is now my opinion that national banking associations, when holders of long-term notes secured by real estate, are not liable to pay tax at the rate of $1.50 per $500.00 on the instrument securing the indebtedness.
A fortiori then exists as to the inapplicability of this tax to banks incorporated to the laws of this State, State chartered building and loan associations and federal suvings and loan associations, as it is specifically provided both in the caption of the Intangible Property Tax Act and in Section I, Part III, that these institutions shall have the same immunities and exemptions as national banking associations. Section I, Part III of this Act seems to be a restatement of an Act approved Febru-
*As amended by a clarifying opinion dated February 11, 1954.

778
uary 7, 1952 (Ga. Laws 1952, p. 46) which provided that it was the intention and declared policy of the State of Georgia to tax these institutions in the same manner and with the same immunities and exemptions as national banking associations.
Thereby, it is my opinion that banks, banking associations, trust companies doing banking business and savings banks, State building and loan associations and federal savings and loan associations are not liable, with national banking associations, for the payment of this tax upon long-term notes secured by real estate.
As to Question 2 and sub-question (a), it is my opinion that under Act No. 811 the incident of taxation is upon the recording of the instrument in all cases, regardless of the time of execution thereof. Section 14 of the Act, in my opinion, plainly means that long-term instruments securing antecedent debts shall be taxable under the 1936 Intangible Tax Act, as amended, to the extent that such taxes had accrued on the effective date of the 1953 Act No. 811 and shall be subject to no further intangible taxation. This conclusion is borne out by the manifested intent of the Legislature in making the proviso at the latter part of Section 11 of said Act to the effect that the bar to collections there created shall not apply to instruments acquired prior to the effective date of the Act.
It therefore follows that Section 15 can only be considered to be applicable in respect to transfers, extensions, etc., of long-term instruments executed subsequent to the effective dat.e of this Act.
However, Sections 14, 15 and 18 taken together provide that no additional tax shall be required on any instrument extending, transferring, assigning, modifying or renewing an instrunient provided that the intangibles tax has been paid on the original instrument under the 1927 Act or under the 1953 Act, as the case may be.
Inasmuch as the requirement of recordation and taxation under Section 4 are dependent one upon the other, the fact that Section 14 exempts antecedent long term instruments from taxation under the Act, it follows that any long term instrument executed prior to the effective date of the act would not necessarily have to be recorded. But if the same were recorded, the tax levied under Section 4 of the Act of 1953 would attach thereon unless previously accrued intangible taxes under the 1937 Act had been paid.
It is my further opinion that by virtue of Section 14 of the Act payment of taxes under the 1937 Intangible Tax Act, as amended, or under the 1953 Act No. 811, as the case may be, would by virtue of Section 13 of the present act exclude the payment of any other taxes on such long-term instruments. It is my view that this interpretation is demanded by the plain language of the Act; however, if it is not, then it is demanded by the rules of statutory construction that ambiguous tax statutes shall be strictly construed and will not be given a retroactive effect unless clearly required. Such interpretation further appears to accord with that placed on similar statutes by courts of other States. See Union Pacific Railroad Company v. Stratemeyer, 119 Kan. 8, 237, P. 873; State Tax Commissioner v. Potomac Electric Power Company, "32A 2d 382 (Md.)."
Therefore, in answer to your questions (2) and (2) (a), it is my opinion that the recording tax, under the 1953 Intangible Tax Act No. 811, is not imposed upon the extensions, transfers, assignments, modifications or renewals of long-term notes secured by real estate when the original security instrument by whatever name called was executed and recorded prior to January 1, 1954, nor does it apply to such instruments executed but not recorded prior to January 1, 1954. Provided the intangibles taxes under the 1937 Act had been paid on the original instrument.
Of course, whenever the terms, extension, transfer, assignment, modification

779
or renewal are used in this opinion their meaning should be limited to that given them under Section 15 of the Act, which reads as follows:
"No additional tax hereunder shall be required on account of any instrument which is an extension, transfer, assignment, modification or renewal of, or which only adds additional security for, any original indebtedness or part thereof, secured by an instrument subject to the tax imposed by Section 4 hereof, and upon which the clerk has made the entry showing payment of the tax under this Act."
TAXATION...:..-Intangible Tax-Credit Unions State Credit Unions are immune from the State Intangible Tax.
September 11, 1956
Mr. C. G. Campbell, Director Property Tax Unit, Department of Revenue
You request my official opinion as to the application of the tax imposed by Section 4, Part I, of the Intangible Property Tax Act of 1953 (Ga. Laws 1953, Nov.Dec. Sess., pp. 379, 382), popularly known as the "recording tax" on long term real estate notes, to such notes held by credit unions.
In an official opinion, dated June 12, 1952, to your predecessor in office, Honorable W. Harvey Atkinson, I expressed the opinion that credit unions, for intangible tax purposes, are, in effect, banking associations. [See Ops. Atty. Gen. 1952-53. p, 46.]
Section 1, Part III, of the Intangible Property Tax Act of 1953 provides: "All banks, banking associations ... shall have the same immunities
and exemptions as national banks and banking associations created and incorporated under the laws of the United States and located in this State." (Emphases added.) In Washington Loan and Trust Co. v. Golucke, 212 Ga. 98, the above was held to apply against the imposition of the tax under Section 4, Part I, and to. grant an immunity to State banks from this tax so long as National banks enjoyed an immunity from the tax. The Federal law, 12 U.S. C. A. 1768, provides:
"The Federal credit unions organized hereunder, their property, their franchises, capital reserves, surpluses, and other funds, and their income shall be exempt from all taxation now or hereafter imposed by the United States, or by any State, Territorial, or local taxing authority; except that any real property and any tangible personal property of such Federal credit union shall be subject to Federal, State, Territorial, and local taxation to the same extent as other similar property is taxed...." The tax imposed by Section 4, Part I of the 1953 Act is an intangible property tax. Since, under the above-quoted Federal law, Federal credit unions are immunized from State and local intangible taxation, it would follow, in my opinion, under Section 1, Part III, of the 1953 Act quoted above, that State credit unions are also immunized from this tax.

'180
TAXATION-Intangible Tax-Cancellation of Note When the intangible tax is paid upon the recording of a long-term note,
the fact that the note is cancelled within a period of three years does not entitle the taxpayer to a refund.
January 11, 1955
Honorable Charles D. Redwine State Revenue Commissioner
You request an opinion as to whether a tax paid pursuant to the Intangible Tax Act of 1953 upon the recording of a real estate instrument securing a long term note is subject to be refunded to the taxpayer where the security deed was cancelled upon the payment of the note shortly after the note was made; i.e., paid within three years from the time the note was made. In your letter you state:
"In the case now before me a security deed securing a long term note was recorded with the clerk of the court on May 12, 1954 and the intangible tax was duly paid. On July 15, 1954 this long term note was paid and the security deed was cancelled of record. The taxpayer has requested refund of the tax paid by contending that since the note did not run to its maturity, June 15, 1974, but was paid off within approximately two months, that the tax is subject to be refunded." As to the "recording tax," that is, the intangible tax imposed by Section 4, Part I of the Intangible Property Tax Act of 1953 (Ga. Laws 1953, Nov.-Dec. Session, p. 379-390) upon the recording of real estate instruments securing long term notes, there is no provision in the Act for a refund to the taxpayer once a collection has been made by the Clerk of the Court. The Act provides that the clerk of the court shall remit all sums collected by him under this Act but makes no provision for refunds. In any event, the tax is upon long term notes, said tax to be collected at the time the realty instrument securing the long term note is recorded in the office of the clerk of the superior court. If the note is a valid subsisting long term note at the time the security instrument is presented for recording and the tax paid thereon, it is no less a long term note by virtue of the fact that it is paid and cancelled prior to its maturity date and prior to three years from the time said note was made or recorded. The fact of accelerated payment of a long term note does not change the character of such note. It is my opinion, therefore, that if an instrument presented for recording secures a note which is a long term note within the definition of Section 3, Part I of this Act, the tax collected thereon at the time of the recording is a valid collection of the tax and no refund could be due under the argument presented by the taxpayer. The tax collector and taxpayer should be advised, therefore, that the taxpayer is not entitled to a refund and none can be made.
TAXATION-Intangible Tax-Contracts (Unofficial) A contract which provides for the transfer of a tract of land upon the
payment of a certain sum each year for five years, is subject to the State Intangible Tax, even though it is not recorded.
August 18, 1954
Mr. A. J. Herrington In your letter you state the following facts: "Brown contracts with Jones to give him a deed to a certain tract of

781
land after he, Jones, has complied with certain stipulated conditions which include the payment of funds each year for five years.
"No notes are executed and no bond for title is given-Just a simple contract, or agreement, is all the document which has been executed.
"The question is: Are these deferred payments subject to the State Intangible Tax the same as a note or real estate mortgage would be.
"Would it effect the situation any if the document was, or was not, recorded in the official county records?" The deferred payments named in the contract are subject to State intangible tax. This would be true whether the contract of purchase was recorded or not. Code Section 92-117 is as follows:
"92-117. Certain secured notes, rate.-A property tax is levied for the year 1938 and annually thereafter at the rate of $1.50 on each $1,000 of the fair market value of all notes or other obligations insured by the Federal Housing Administration (except those owned by banks) and of all notes or other obligations representing loans, secured by real estate, made by State building and loan associations and Federal savings and loan associations for the purpose of financing of homes, as of the first day of January, up to the value of $5,000 each. Any fair market value thereof in excess of $5,000 shall be taxed as provided in Section 92-118." You will note that the above section provides for the taxation of notes or other obligations. The contract described in your letter is an obligation to pay and as such is taxable.
TAXATION-Intangible Tax-Demand Notes A "demand note" is normally a short-term note for purposes of intangible
tax, but, when it runs for a period longer than three years, it becomes a "long-term" note.
August 25, 1955
Honorable Clarence G. Campbell Director, Property Tax Division
You request my opinion as to whether a "demand note" secured by real estate is a short-term note or a long-term note within the provisions of the Intangible Property Tax Act of 1953 (Ga. Laws, 1953, Nov.-Dec. Sess., p. 389), as amended (Ga. Laws, 1955, p. 288).
The Act, in Section 3, Part I, defines a long-term note as one with a maturity date greater than three years from the date such note was executed. A short-term note is defined as one maturing in three years or less.
A demand note is one which states it is payable on demand, or at sight, or on presentation, or one in which no definite due date or time for payment is stated, such notes being due immediately. (See Ga. Code, Sec. 14-207.) Hence, for instance, payment of the amount of the note may be demanded the day or moment following the execution of such note or the note might run for several months or years before payment is demanded.
Clearly, therefore, a demand note may be a short-term note within the definition of that term in Section 3, Part I of the Intangible Property Tax Act of 1953 if demand is made at any time within three years from the date of execution; It is my opinion that once a demand note runs for a period longer than three years

782
from the date of its execution, or from the date of execution of the real estate loan deed securing said note, without having been paid, its character changes and it becomes in fact a long-term note as defined in the Act, and subject to the tax imposed by Section 4 upon long-term notes secured by real estate. Therefore, it is seen that a demand note may be either a short-term or a long-term note, depending upon when demand is made. But the character or classification of a demand note is not determined until the due date is ascertained by demand for payment being made.
When a demand note runs longer than three years from the date of execution or from the date of the instrument securing same, it is the duty and responsibility of the holder of such a note to pay the tax imposed upon long-term reai estate notes by Section 4. Failure to pay said tax would, of course, render the holder of such a note liable to the penalties contained in Section 5 and Section 11, with respect to notice and the inability of the holder of such a note to foreclose and sue to enforce payment thereof, as well as the provisions of Section 18 wherein the holder would be liable for an annual tax of $3.00 per $1,000.
In conclusion, it should be pointed out that a demand note, in any event, may not meet the requirements of Sections 5 and 6 for filing, in that no definite due date appears on the face of such a note.
TAXATION-Intangible Tax-Extensions
Intangible Tax is due on a modification and extension of a loan which was recorded prior to the Inta-ngible Tax Property Tax Act of 1953, since no intangible tax has been paid on the initial recording.
September 29, 1955
Mr. C. G. Campbell, Director Property and License Tax Unit
You request my opinion as to whether a nonresident holder of a note executed 15 years ago and in which a real estate loan deed was recorded at that time is liable for the intangible tax, imposed by Section 4, Part I of the Intangible Property Tax Act of 1953, on a modification and extension agreement executed to extend the loan in the amount of $140,000.00 for an additional period of 15 years. You state that since the holder of the original note was an out of state insurance company, no intangible tax was paid under the 1937 Act.
Section 15 of the Intangible Property Tax Act of 1953 provides:
"No additional tax hereunder shall be required on account of any instrument which is an extension, transfer, assignment, modification or renewal of, or which only adds additional security for, any original indebtedness or part thereof, secured by an instrument subject to the tax imposed by Section 4 hereof, where it is made to affirmatively appear that the tax as provided by this Act has been paid on the original security instrument heretofore recorded."
Under the facts stated in your letter and the letters from Mr. J. Archie Johnson, Tax Collector of Chatham County and Mr. Bernstein, the extended or modified or renewed note in the amount of $140,000.00 is taxable to the holder thereof, regardless of residence, in the face amount of the extension agreement. Since no tax under this Act has been paid with respect to the amount of the old indebtedness now being extended, the tax imposed by Section 4, Part I of this Act must be paid on the entire amount to the tax collector prior to the security instrument securing said extension being presented to the clerk of the court for recording.

783
TAXATION-Intangible Tax-Extensions (Unofficial) No intangible tax is due on a note which is merely the unpaid balance of
an old note on which the tax was paid.
March 21, 1955
Mr. B. R. Ramsey, Sr. This is in response to your letter of March 10, 1955 with reference to the above
matter. You present the question as to whether the Intangible Property Tax Act of
1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379) imposes the intangible tax upon the recording of a security deed securing a new note which new note represents the unpaid balance of an old note in a greater amount where the intangible tax had been paid at the time the security deed securing the old note in the larger amount was recorded. As I understand the facts stated in your letter, the note in the lesser amount of $30,625 represents the unpaid balance of an old note in the amount of $60,625. You state that the intangible tax was paid upon the note in the amount of $60,625 at the time the deed securing said note was recorded. In other words, the $30,625 note represents no new money, but is merely the unpaid balance of the old debt.
You will note from the provisions of Section 15 of the Intangible Property Tax Act of 1953 that no additional tax is due on account of any security instrument which is merely an "extension, transfer, assignment, modification or renewal of, or which only adds additional security for, any original indebtedness or parts thereof" where intangible tax imposed by Section 4 of the Act has been paid on the original indebtedness. If the new note is merely an extension or modification and renewal of a part of an old debt upon which the tax has already been paid, no new tax is imposed under this act upon the new note representing the old debt.
TAXATION-Intangible Tax-Federal Housing Authority Security deeds and/or notes, executed and endorsed to the Public Housing
Authority prior to the time they are offered for recording, are not subject to the Intangible Tax.
July 27, 1954
Honorable W. V. Rice Deputy State Revenue Commissioner, Dept. of Revenue
You request an official opinion on the following question: "Will you please give me your opinion as to whether the Public Hous-
ing Administration is subject to the intangible tax upon security deeds and/or notes executed or endorsed to the Public Housing Administration." It appears that the notes in question are secured by real estate and are notes which would be classified as "long term notes secured by real etsate" under the Georgia Intangible Tax Act. It also appears that the notes offered for recording are the property of the Public Housing Administration. The Intangible Property Tax Act, approved December 22, 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379) does not exempt this type of instrument from the payment of the tax imposed by the Act. However, under the Constitution of the

784
United States, the Federal statute takes precedence over our State statute. The United States Housing Act of 1937, as amended, Section 5, Subsection (e) is as follows:
"(e) The Authority (i.e., the United States Housing Authority), including but not limited to its franchise, capital, reserves, surplus, loans, income, assets, and property of any kind, shall be exempt from all taxation now or hereafter imposed by the United States, or by any State, county, municipality, or local taxing authority...." Under this section of the Act creating the Housing Authority, the State of Georgia could not tax the property of the United States Housing Authority or the Public Housing Administration, successor to the Authority. Article VI, Clause 2 of the Constitution of the United States contains the following provision:
"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." In addition to the above provision of the Constitution the courts have many times held that the State may not tax operations of instrument employed by Federal government to carry its powers into operation. Trinityfarm Const. Co. v. Grosjean, La. 1934, 54 S. Ct. 469, 201 U. S. 466, 78 L. Ed. 918, affirming 3 F. Supp. 785. See, also, Ward v. Maryland, Md. 1870, 12 Wall. 426, 20 L. Ed. 449; United States v. Mcintosh County, D. C., Okl. 1921, 271 F. 747, affirmed, 1922, 284 F. 103, and, 1922, 284 F . 108. In view of the foregoing authorities, I am of the opinion that security deeds and/or notes executed and endorsed to the Public Housing Authority prior to the time they are offered for recording are not subject to the payment of the recording tax provided in the Intangible Property Tax Act approved December 22, 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379).
TAXATION-Intangible Tax-Federal Land Bank (Unofficial) A Federal Land Bank is not liable to pay intangible tax at the time of
recording of notes held by it.
July 29, 1954
Honorable Folks Huxford
You asked whether a tax: should be collected under the new Intangible Tax Act, enacted at the November-December, 1953 Session of the General Assembly of Georgia, on Federal Land Bank notes.
I am enclosing a copy of a letter of January 13, 1954 to the Honorable Frank P. McGowan, General Counsel of the Farm Credit Administration of Columbia and the Federal Land Bank of Columbia. It is my opinion that under the case of Federal Land Bank of New Orleans v. Crosland, 261 U. S. 374, 43 S. Ct. 385, cited in that letter, a Federal Land Bank is not liable to pay .the new intangible tax at the time of the recording of the notes held by this bank.

785
TAXATION-Intangible Tax-Foreign Corporations (Unofficial) Accounts receivable of branch office of foreign corporation are subject
to intangible tax.
November 15, 1955
Mr. Robert D. Hedrick This is in reply to your letter of November 7, 1955 in which you ask for an
unofficial opinion concerning intangible tax in Georgia under the :following state of facts:
"A foreign corporation incorporated in a foreign state and having its home office in said foreign state approves all orders and credit on purchases of its manufactured products which might be received by any of its branch offices or branch plants. A branch plant of this corporation is located within the State of Georgia. This branch plant fills all the orders which it receives after the prior approval of order and credit from the home office. The question is-whether or not this branch plant is required to pay the Georgia State Intangible Tax on its accounts receivable." Under the decision of the Georgia Supreme Court in Colgate-Palmolive-Peet Co. v. Davis, 196 Ga. 681, it is my opinion that these accounts receivable would be taxable in Georgia.
TAXATION-Intangible Tax Foreign Corporations The establishment of an office in Georgia by a nonresident corporation
does not cause the company to incur intangible tax liability on loans made prior to January 1, 1954.
June 13, 1956
Honorable T. V. Williams Commissioner of Revenue
This is in reply to your request for an official opinion on the following situations: A nonresident insurance company is contemplating the re-establishment of an office and place of business in the State of Georgia. This office would negotiate and close loans for the company, thereby establishing a business situs in Georgia. The nonresident insurance company now holds long-term notes secured by real estate located in the State of Georgia, security deed thereof being dated and recorded prior to January 1, 1954. An opinion is requested on whether upon reopening of the loan office in Atlanta any intangible tax obligations would arise on loans made prior to January 1, 1954.
I am of the opinion that the establishment of an office in the State of Georgia by a nonresident insurance company at this or any future time would not cause the company to incur any intangible tax liability on loans made prior to January 1, 1954. Section 14 of the Intangible Property Tax Act (Ga. Laws 1953, Nov.Dec. Sess., p. 379), approved December 22, 1953, which became effective January 1, 1954, provides as follows:
"No further tax or recordation as evidence of the payment thereof shall be necessary with respect to any instrument held as security for such long term notes acquired before the effective date of this Act, but the above entitled Act, approved December 27, 1937, as amended, shall apply to such property to the extent that taxes have accrued thereunder

'186
prior to the effective date of this Act, and the payment of such taxes shall be deemed compliance with this Act within the meaning of Section 13." In my opinion of February 1, 1954 to Honorable Charles D. Redwine, Commissioner of Revenue of the State of Georgia, I stated:
"Section 14 of the Act, in my opinion, plainly means that long-term instruments securing antecedent debts shall be taxable under the 1936 Intangible Tax Act, as amended, to the extent that such taxes had accrued on the effective date of the 1953 Act No. 811 and shall be subject to no further intangible taxation. This conclusion is borne out by the manifested intent of the Legislature in making the proviso at the latter part of the Section 11 of said act to the effect that the bar to collections there created shall not apply to instruments acquired prior to the effective date of the Act." Section 18 of the Intangible Tax Act, approved December 22, 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379), which is as follows:
"Notwithstanding any other provision of this Act to the contrary, it is the intention of the General Assembly of Georgia that long term notes secured by real estate shall be taxed. If for any reason any such obligation does not have placed thereon the stamp provided by this Act and the tax paid as provided by this Act, then such obligation shall be taxed per annum at the rate of $3.00 on each $1,000 of the fair market value thereof." is not in conflict with Section 14 of the Act. In my opinion, Section 18 means that long-term notes executed o;n or after January 1, 1954 are subject to taxation at the rate of $3.00 on each $1,000 of the fair market value thereof if the holder thereof has not paid the "recording tax" of $1.50 for each $500 or fraction thereof of the face amount of the note or notes when they are filed for record as is provided in Section 4 of the Act approved December 22, 1953.
TAXATION-Intangible Tax-Future Interest (Unofficial) Intangible tax is imposed only on the face amount of an instrument, and
not upon future interest which is stated in the instrument.
September 7, 1954
Mr. Henry W. Davis You request my opinion on the following question: "If a note and security deed be given on real estate on long term notes and the interest for said period is figured into the face of the note, would the Intangible Tax thereon be for the full face of the note, or the amount of the loan? In other words, the security deed filed with him for record showed indebtedness of $3,696.00, when the lender was loaning only $3,000.00, the $696.00 being unaccrued interest, and the note reading interest from maturity." The new Intangible Tax Act imposes a tax upon the face amount of the
instrument. While we find no Georgia case in point, we find that Words and Phrases defines the term as follows:
" 'Face amount' of instrument is that shown by mere language employed, and excludes any accrued interest; .."

787
It is therefore my opinion that the tax imposed at the rate of $1.50 for each $500 or fraction thereof of the face amount of an instrument which evidences a debt should be construed as meaning the principal indebtedness, and in computing the tax due on the instrument the interest added into the principal should be eliminated. The tax is measured by the amount of the debt and the debt is the principal amount. Interest is an item which accrues in the future.
TAXATION-Intangible Tax-In General Intangible Property Tax Act discussed.
December 15, 1954
Honorable Charles D. Redwine Commissioner of Revenue
You request an official opinion upon several stated questions requiring interpretations of the Intangible Property Tax Act of 1953, approved December 22, 1953 (Act No. 811, Ga. Laws 1953, Nov.-Dec. Sess., p. 379-390) and more specifi-
cally of the provisions and sections of the Act relative to the "recording tax"
imposed by Section 4, Part I upon long-term notes. As you state, the Act created many problems in the administration and coUection of the "recording"* tax by the clerks of the courts, upon whom the General Assembly placed the burden of collecting the tax at the time of recording real estate instruments securing longterm notes. It is, therefore, with pleasure that the following questions are restated as propounded by you, each question being followed by my interpretation and opinion of the Act.
Question 1.
Under the Act, who is required to pay the tax upon the recording of the instruments securing long-term notes? Answer to 1: Section 4 of Part I of the Act clearly places the burden of paying the "recording" tax, at the time of recording the instrument securing the long-term note, upon the "holder" of the notes. Therefore, it is the holder of the long-term note rather than the borrower or maker who is required to pay the tax.
Question 2.
Whose responsibility is it for the collection of this "recording" tax imposed by Section 4, Part I of this Act of 1953? Answer to 2: The clerk of the superior court of the county in which is situated the real estate conveyed or encumbered, or upon which a lien is created to secure such note.
*Perhaps it should be noted, that though for convenience in this opinion I have referred to the tax imposed by Section 4, Part I of this Act as a "recording tax," it is not truly a recording tax, in the sense that it is a fee or tax upon the privilege of recording, but is merely an intangible property tax upon the holder of long term notes secured by real estate payable, or due, at the time of recording the instrument. It is a tax upon the note, not a tax upon the security. Neither is it a "stamp tax" in the sense that the holder must purchase revenue stamps to be affixed thereon. The instrument is, at the time of recording and payment of the tax, merely stamped "Georgia Intangible Tax Paid (amount)" by the Clerk of the Court with a stamp furnished by the State Revenue Department pursuant to Section 5 of the Act.

788
Question 3.
If a note is executed on July 1, 1954 and falls due on July 1, 1957, is this a long-term or a short-term note? Answer to 3: It is a long-term note. From July 1, 1954 to July 1, 1957 is three years and one day. Three years from July 1, 1954, would end on June 30, 1957 and a new year would begin on July 1, 1957. For instance, from January 1 through December 31 is 365 days, or one year. The next day begins a new year and would be the 366th day. Since the note above falls due three years and one day from the date it was made, it is "more than three years" and therefore a long-term note as defined in Section 3 of Part I of the Act.
Question 4.
Where a note has been accepted and recorded by the clerk of the court and the clerk failed to collect the tax on the proper amount of the tax due thereon at the time of filing, what provisions of law are made for the collection of this tax?
Answer to 4: (a) Section 18 of Part I of the Act provides that in lieu of the payment of the "recording tax" the obligation shall be taxed annually at the rate of $3.00 on each $1,000 of the fair market value thereof, where the instrument does not show the "recording taxes" paid thereon. This tax of $3.00 per thousand accrues annually.
(b) In addition to the taxes imposed as set forth in the above paragraph, Section 11 imposes an additional liability upon the holder. Section 11 of Part I of the Act states:
"Failure to pay the tax levied by this Act shall constitute a bar to the collection of the indebtedness secured by any instrument required by this Act to be recorded, by suit, foreclosure, the exercise of any power of sale, or otherwise, whether such instrument be held by an original party thereto or a transferee. Such bar may be removed by the payment of the tax required hereunder, plus interest at six (6o/o) per cent per annum from the time said tax was due, and plus a penalty of twenty-five (25%) per cent of the amount of the tax...."
Question 5.
(a) Is the Clerk of the Court required under this Act to accept for filing an instrument which fails to disclose on its face the due date; or where the instrument sets out a principal amount but fails to disclose any terms or maturity date?
(b) In the event the note reads: "$10 and other valuable considerations," is this sufficient to show the amount of the note and the due date? Is the clerk required to record this instrument; or should he refuse to record the instrument; or should the holder be required to add to this instrument the face amount of the riote and due date?
Answer to 5 (a): Section 6 of this Act requires that every instrument presented for recording under this Act "shall set forth in words and figures the correct amount of the note or notes secured by such instrument, and the dates upon which such notes fall due." The reason for this requirement for stating the terms of the note is to enable the clerk of the court and the Commissioner of Revenue to determine whether the note secured by the instrument presented to the clerk for filing is a long-term or a short-term note, and thus enable the clerk to ascertain and collect the tax. If the instrument presented to the clerk for filing and recording fails to show on its face the principal amount or due date and does

789
not disclose the terms of the note in such a manner as to enable the clerk to easily determine the principal amount of the note and due date and whether it is a longterm note, the clerk is not permitted under this Act to accept such instrument for filing.
If the instrument sets out a principal amount, but fails to disclose any terms or information sufficient to determine whether the maturity date is greater than 3 years such instrument is insufficient for filing by the clerk of the court.
Answer to 5 (b): "Ten dollars and other valuable considerations" without more information is insufficient to show the amount of the note and the due date. Consequently, such a note would be insufficient under Section 6 to enable the clerk and the Commissioner to ascertain the tax due thereon and cannot, therefore, be filed under this Act by the clerk. If the holder of the note added to the instrument in writing the face amount of the note and the definite due date so as to comply with Section 6, the instrument would then be subject to filing with the clerk. Oral information as to due date and amount of the note would be insufficient.
It should be remembered that though the provisions of this Act do not supersede prior provisions pertaining to clerks of the courts in the administration of their offices, the provisions of this Act attaching certain duties and responsibilities to the clerks are additional provisions imposed by the General Assembly, and must be complied with. If the requirements imposed upon the clerks by this Act conflict with requirements heretofore imposed by other Acts, the latter provisions of this Act will prevail. This is the last expression of the Legislature, and it requires that the tax shall be paid and that the clerk shall collect. These additional provisions pertaining to the filing of instruments with the clerk of the court must be complied with before such instruments are entitled to be filed and recorded.
Moreover, it should be noted that Section 16, Part I of this Act imposes a penalty of a possible misdemeanor against anyone wilfully violating Section 6.
Question 6.
In the event a long-term instrument secured by real estate is presented for filing by the holder and such instrument does not show on its face a principal amount but recites that monthly payments in a stated amount (including interest) are to be paid for a stated series of months: that is, payments of $100 per month including interest for 48 months; how do we determine the amount to be taxed?
Answer to 6: Of course, such an instrument shows on its face that the note runs for over 3 years and is a long-term note. As stated in the answer to the preceding question, Section 6 of Part I of the Act requires that every instrument subject to the tax shall set forth in "words and figures the correct amount of the note ... secured by such instrument." Where the instrument does not disclose clearly the amount of the debt by virtue of a failure to separate the payments into principal and interest, the "recording" tax must be applied to the amount obtained by multiplying the stated payments by the number of monthly installments due. In the illustration stated in your question the tax would be applied to the principal amount obtained by multiplying $100 by 48 months which equals $4800.
Question 7.
If an instrument is presented for recording in an amount stated in dollars and cents (say, $6,000) but no due date is shown and no monthly payments specified, is this considered a short-term or a long-term note? Answer to 7: Such a note would not, pursuant to Section 6 of Part I of this Act, satisfy the requirements for filing since no maturity date of the note is speci-

790
fied. Without a maturity date it cannot be determined under the illustration given whether this is a short-term or a long-term note. Such a note would not be subject to recording under this Act.
It cannot be "assumed" by the clerk or the Commissioner of Revenue that any note secured by the security instrument presented for recording is either a longterm or short-term note and proceed to record and treat it accordingly. Each instrument presented for filing must comply with and furnish the information required by Section 6 in order to be filed.
Question 8.
What entries relative to the payment of the "recording" tax, should the clerk make upon his records upon the recording of an instrument securing a long-term note?
Answer to 8: Section 5 of Part I of the Act requires the clerk of the county in which such instrument is recorded to enter upon such instrument and upon the record, the fact of the payment of the tax required under this Act, and the amount so paid and affix his signature to this entry.
Question 9.
Suppose a long-term note secured by real estate is recorded on January 1, 1954 in the amount of $40,000 showing due dates of annual payments of $5,000 until fully paid:
(a) The first two payments being due in less tha,n three years, are these two notes or payments subject to the "recording tax" as long-term notes or are they to be reported on Form 159 as short-term notes?
(b) In the event the principal amount of the debt is to be paid in equal installments over a period of years as in the facts stated, is the recording tax due only on the principal amount?
Answer to 9 (a): The note under the facts stated being in the amount of $40,000 and the annual payments being $5,000, the note is a long-term note running eight years. It cannot be considered to be a series of eight short-term notes of $5,000 each. Nor can it be considered that since the first two payments are due in less than three years, that these two payments are divisible or separate short-term notes and subject, therefore, to taxation as short-term notes. The "recording" tax is due upon the entire $40,000 at the same time of the recording of the instrument securing the long-term note in that amount.
Answer to 9 (b) : In case the principal amount of the debt .is to be paid in equal installments of a period greater than three years as stated in the above question, the "recording" tax is due on the principal amount, the total amount of the note.
Question 10.
Can a tax commissioner or tax collector issue a tax fi. fa. against the holder of a long-term note where the clerk has failed to collect the proper amount of the "recording" tax when the instrument securing the same was filed for record? Answer to 10: Yes.
Question 11.
(a) Is the tax levied under Section 4, Part I of this Act imposed upon the real estate instrument securing the debt or is it upon the note which is the subject of the debt?
(b) In the event the note is secured by personal property and real estate with no provision in the note prescribing the value to be attached

791

to each (that is, what is the value of the chattels and what is the value of the realty), is the "recording" tax to be collected on the entire amount of the note or on the valuation of the real estate?
(c) Or in the event the specific amount of personal property and the amount of real estate is given separately in the note, is the "recording tax collected on the amount of the real estate only?
Answer to 11 (a) : The "recording" tax levied by Section 4 of this Act is imposed upon the amount of the indebtedness, the total amount of the note. It is not upon the instrument securing the note. The tax is not upon the value of the real estate security. The tax is upon long-term notes which are the subject of the debt secured by real estate, and is not a tax upon the security instrument evidencing the debt on the clerk's records.
Answer to 11 (b): The "recording" tax must be collected on the entire face amount of the note. The value of the real estate securing the note is of no concern in determining the correct tax upon the note. The tax is upon long-term notes-secured by real estate. Section 4 requires that the tax shall be measured by the amount of the debt, as evidenced in the instrument filed for record, and is a tax upon the face amount of the note secured by such instrument. If the instrument recites that the note is secured by real estate and certain personal property, the addition of the personal property as security is mere surplusage so far as the tax under this Act is concerned and the tax should be collected upon the principal amount of the note.
Answer to 11 (c): The Act does not look to the real estate security in computing the tax. The tax is upon the note, the total amount of the debt, not upon the specific amount of the real estate securing the debt.

Question 12.

When a security deed or other instrument is recorded under this Act, that is, after Jan. 1, 1954, and the tax duly paid upon the note by the holder thereof, and subsequently the note is transferred to another holder, is it necessary for the new owner to pay the "recording" tax again when making the transfer on the clerk's records? Answer to 12: No. If the intangible tax has already been duly paid on that note, no additional tax is due upon recording the transfer. Section 15 of Part I of the Act states:
"No additional tax hereunder shall be required on account of any instrument which is an extension, transfer, assignment, modification or renewal of or which only adds additional security for any original indebtedness or part thereof, secured by any instrument subject to the tax imposed by Section 4 hereof, and upon which the clerk has made the entry showing payment of the tax under this Act."

Question 13.

If no new "recording" tax is necessary as in the question above, what should be noted on the recorded transfer to show that the tax has already been paid? Answer to 13: The clerk should note upon his recording of the transfer, extension, assignment, etc., of the instrument, a statement along with his signature, that the tax has already been paid on that note, stating the amount and date paid

upon the initial recording.

Question 14.

Where organizations, such as educational and charitable institutions and national banks which, by other statutes, are exempt from the pay-

'192

ment of this "recording" tax, transfer s:uch long-term'notes held by them

to an individual or organization which is liable for the payment of the

tax under this Act, must the "recording" tax be paid upon such a transfer,

and if so, by whom?

Answer to 14: The transferee must pay the "recording" tax upon such a

transfer. The Act (Section 4, Part I) imposes the tax upon the "holder" of the

long-term notes secured by real estate. Hence, if an individual or organization

not exempt from the payment of this tax becomes the holder of a long-term note

previously recorded and held by an exempt organization and upon which the "re-

cording" tax had not been paid by such exempt organization, the subsequent non-

exempt holder of the note is liable for the payment of the tax. The subsequent

non-exempt holder of the instrument must pay the tax upon transferring the

instrument on the clerk's record.

Question 15.

Are state banks liable for payment of this "recording" tax imposed

by Section 4, Part I of this Act?

Answer to 15: Yes.*

In my opinion of February 1, 1954 to Ron. Charles D. Redwine, Commissioner

of Revenue, it was my opinion that the Intangible Property Tax Act approved

December 22, 1953 in Section 1, Part III providing that: "All banks, banking asso-

ciations, trust companies doing a banking business and savings banks ... , and

all building and loan associations ... and all Federal savings and loan associa-

tions ... , shall have the same immunities and exemptions as national banks ."

exempted such instit)ltions from the payment of this "recording" tax imposed by

Section 4, Part I upon long-term notes secured by real estate.

However, under the decision of the Supreme Court of Georgia in Fulton

County Savings and Loan Assn. v. Simmons, 210 Ga. 621, it must be concluded

that State banks are liable for this "recording" tax. The Court held that Section

1, Part III containing the exemption and immunity proviso quoted above does not

apply to the "recording" tax and therefore, does not exempt any of the lending

institutions enumerated therein from such tax. And since State banks do not

appear to be exempt or immune from the payment of the "recording" tax by

virtue of any other section or provision of the Act, it is my opinion that, under

this decision of the Supreme Court, State banks are liable for the payment of the

"recording" tax imposed by Section 4, Part I of this Act. This does not mean to

infer or hold, however, that national banks are liable for the payment of the

"recording" tax on such notes held by them. National banks are exempt from the

payment of this tax by federal authority as stated in my opinion to you dated

February 1, 1954.

Question 16.

Are churches and charitable and educational public institutions liable

for the "recording" tax?

Answer to 16: Georgia ()ode Section 92-130 provides the following exemp-

tions to the intangible tax:

"There shall be exempt from taxation all intangible personal prop-

erty owned by or irrevocably held in trust for the exclusive benefit of,

religious, educational and charitable institutions no part of the net pro-

ceeds from the operation of which can inure to the ,benefit of any private

person."

'

Such organizations, therefore, are not required to pay the "recording" tax on such

intangible long-term notes held by them.

*The opinion rendered in answer to this question has been superseded. See official opinion rendered February 27, 1956, on page 797.

793
Question 17.
(a) Where a security deed or other instrument is made in 1953 pursuant to a long-term note executed in that year but the instrument is not recorded until 1954, is the "recording" tax due?
(b) Or if executed in 1953 and recorded in 1953-would the holder of such a long-term note be liable under this 1953 Act for the "recording" tax in 1954, or any other intangible tax in 1954? Or is such a note executed in 1953 and recorded in 1953 relieved of all intangible taxes? Answer to 17 (a): Yes, the tax ("recording" tax imposed by Sec. 4, Part I of 1953 Act) would be due at the time such instrument is presented for recording.
Answer to 17 (b): Under Section 14 of Part I of this Act, instruments held as security, for long-term notes executed and acquired before the effective date of this Act (January 1, 1954) are not subject to "any further taxes," although it should be noted that Section 14 includes an exception when it states that the holder of such notes on January 1, 1954 are not relieved of any taxes that have "accrued" on such intangible property under the Intangible Tax Act of 1937, as amended. Therefore, long-term notes made and held prior to January 1, 1954 are not subject to the "recording" tax imposed by Section 4, Part I of this Act if and when the instrument securing such note is recorded after January 1, 1954, provided the intangible taxes under the 1937 Act have been paid on the original instrument.
However, it might be pointed out, as I also am aware, that taxes under the 1937 Act would not "accrue" on such a note made in 1953 unless and until held on January 1, 1954. It might be argued, therefore, that no taxes under the 1937 Act could "accrue" on such a note for the reason that this Act of December 22, 1953 became effective January 1, 1954, and since no taxes "accrued" under the 1937 Act, the holder of such a note would not be liable for any tax under the 1937 Act. And, further, that the holder of such notes made in 1953 would not be liable for this "recording" tax either.
However, any such argument designed to completely relieve the holder from payment of any and all intangible taxes on such a long-term note must be disregarded upon a reading of Section 18, Part I of this Act which states: "Not~ withstanding any other provision of this Act to the contrary, it is the intention of the General Assembly of Georgia that long-term notes secured by real estate shall be taxed." No limitations or exceptions are contained in this emphatic statement of legislative intention. Moreover, Section 18 continues by stating that if for any reason any such instrument is not taxed under the "recording" tax imposed by Section 4, Part I, then such instrument shall be taxed annually at the rate of $3 on each $1,000 of the fair market value thereof.
Moreover, the use of the phrase "no further tax" in Section 14, Part I as well as the other provisions of that section implies that the "recording" tax is to be paid if the intangible taxes otherwise accruing are not paid.
In my opinion, it was not the intent of the Legislature to relieve the January 1, 1954 "holders" of previously executed long-term notes, from the payment of all intangible taxes. Despite the fact that the "recording" tax imposed by Section 4, Part I became effective January 1, 1954, no provision of the Act can be interpreted as expressly or impliedly revealing, tolling or waivering the provisions of the Intangible Tax Act of 1937 which imposed a tax upon such notes held on January 1 of each year. This fact plus the statements of the legislative intent contained in Section 18, Part I of the 1953 Act cement the conclusion that the Legislature did not intend in this Act to relieve the January 1, 1954 holder of recorded long-term notes of both the "recording" tax imposed by the 1953 Act and the 1937 intangible tax which would normally have accrued.

794
We must, therefore, conclude that the holder of a long-term note executed and recorded prior to January 1, 1954, is liable for intangible taxes thereon on provided by the Acts of 1937-38.
We conclude further that the holder of a long-term note executed prior to January 1, 1954 and not offered for record until1954 is liable for the recording tax as provided in Section 4, Part I of the Act of 1953-unless all intangible taxes accruable thereon up through January 1, 1954 has been paid.
Question 18. Suppose an original long-term note and deed evidencing the real estate security was made in 1952 in the amount of $7,500 and all intangible taxes due under the 1937 Act have been paid. In 1954, another note was made by the same parties in the amount of $10,000 secured by the same real estate and same security instrument. On the face of the new deed presented for recording there is a clause stating that it covers an additional loan of $2,500. Is the "recording" tax due on the $10,000 or on the $2,500?
Answer to 18: The facts disclose, and we will assume, that the intangible tax was paid on the $7,500 note pursuant to the 1937 Intangible Tax Act, as amended. As stated in Question 17, the Intangible Tax Act of December 22, 1953, was not intended to relieve the holder of the intangible tax, and likewise neither is it intended to retroactively impose an additional tax upon long-term notes, nor to place a double tax upon such intangibles. If this $10,000 note is merely an "extension" or "renewal" of the $7,500 debt and an increase thereof to the extent of $2,500, the "recording" tax imposed by Section 4, Part I of the Act of 1953 does not attach to the $7,500 portion of the debt. Section 4 attaches only to the additional obligation, the $2,500. It appears that under these facts the $7,500 would be an "extension" or "renewal" of an "origin;;tl indebtedness or part thereof" pursuant to the intention of Section 15 of Part I of the Act of 1953, and as such would not be subject to an additional tax. Therefore, the tax would apply only to the $2,500 additional indebtedness.
Question 19. Assume the same situation as in Question 18, except that the original note and deed securing same was made in 1952 and duly recorded. No intangible tax was paid on the original $7,500. Is the "recording" tax due on the $10,000 or on the $2,500?
Answer to 19: Pursuant to my opinion expressed in the answer to question 17, it is clear that the $7,500 note is liable for the intangible taxes levied under the 1937-38 Intangible Tax Act up through January 1, 1954. The $2,500 additional loan would be subject to the "recording" tax as levied under the 1953 Act.
Question 20. With reference to the facts in Questions 18 and 19, upon what amount would the tax be imposed if both instruments were made in 1954 and the "recording" tax has been paid upon the original $7,500?
Answer to 20: If the $10,000 note is merely an "extension" or "renewal" of the $7,500 "original" long-term note, plus an addition of $2,500 to the obligation, no additional tax would be due on the extension or renewal of the "original indebtedness," that is, the $7,500; and the tax, pursuant to Section 15, Part I of the Act, would be due only on the $2,500 at the time of recording the alteration or change of the indebtedness.
It is hoped that the opinions expressed herein will be of benefit to your office and to the clerks of the courts in administering this Act.

795
TAXATION-Intangible Tax-Inter-Company Receivables
(a) There is no provision in the Intangible Tax Act for excluding or deducting inter-company receivables, and this class of intangibles is fully taxable.
(b) The State Revenue Commissioner is not estopped by the actions of his predecessor in office.
(c) The State Revenue Commisisoner may make additional assessment for a period of two years from the date of filing of a return.
August 22, 1955
Honorable Clarence G. Campbell, Director Property Tax Division, Department of Revenue
You request an official opinion on the following questions:
(1) Is there any authority in the Intangible Property Tax Act of 1937-38, (Ga. Laws 1937-38, p. 156-170) as amended by the Act of 1949 (Ga. Laws 1949, p. 1050) for excluding or deducting accounts receivable and notes not secured by real estate owed to a private corporation taxpayer by another private corporation, the latter being a wholly owned subsidiary of the taxpayer, that is, so-called "inter-company receivables"?
(2) On the Intangibles Tax Return Form (Form 159, Schedule C-1), promulgated by the State Revenue Commissioner for the year 1953, space was provided for a deduction from all accounts receivible and notes not secured by real estate of "Inter-Company Receivables of 100 per cent Owned Subsidiaries." Also for the years 1954 and 1955, on this same form, space was provided for a deduction denominated "Inter-Company Receivables of Georgia Subsidiaries-100 per cent Owned." Having accepted returns on these forms, on which was taken deductions for intercompany receivables, is the State Revenue Comimssioner estopped from asserting a deficiency assessment for the tax otherwise required by law, if your answer to the above question (1) is in the negative?
(3) If the answer to the preceding question (2) is in the negative, what is the period of limitations for making additional assessments in these cases ?
In answer to your first question, it is clear under Section 2 of the original Intangible Property Tax Act of 1937-38 (Ga. Laws 1937-38, p. 156) that "accounts receivable and all notes except those representing credits secured by real estate" were classified "to be taxed as heretofore provided by law" and specifically excluded from the tax imposed by that Act. By the Act of 1949 (Ga. Laws 1949, p. 1050), effective for the calendar year 1950 and thereafter, this situation was changed, and this type of intangible property was made subject to the Act at the rate of $3 per $1,000 of fair market value. The inclusion of this type of intangible property was carried forward in the Act of 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379). In none of these Acts is any provision made for any deduction or exemption of any sort with respect to this class of intangibles.
Code Section 92-139 authorizes the State Revenue Commissioner to fix the value of intangibles returned for taxation. Under this authority, as to accounts receivable and notes not secured by real estate, the State Revenue Commissioner can make adjustments for bad debts and uncollectibles included in the face amount of such intangibles reported on the return. In doing this he may adopt the actual charge-off for bad debts (less recoveries) used for Federal income tax purposes for the preceding year as the measure of the reduction in value of these intangibles.

'796
This, however, is not a deduction or exemption, but is an adjustment in arriving at a true market value.
It has been suggested that an exemption or deduction for inter-company receivables can be derived from Code Section 92-130. However, the exemption accorded by this section is clearly limited to "common voting stock" of a foreign subsidiary corporation in the hands of a parent Georgia corporation, and even this exemption is on a restricted basis. This provision can have no application whatsoever to accounts receivable and notes not secured by real estate so as to authorize the deduction or exemption by a parent Georgia corporation of accounts receivable and notes not secured by real estate owed to it by its wholly owned subsidiaries.
As stated, there is no provision in the Act for excluding or deducting intercompany receivables, and it is my opinion that this class of intangibles is fully taxable.
In answer to your second question, it is my opinion that the State Revenue Commissioner is not estopped by the acts of his predecessor in office. Code Section 92-903 provides:
"Powers of all public officers are defined by law, and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of a power not conferred." In Standard Oil Co. v. State Revenue Commissioner, 179 Ga. 371, the Supreme Court held:
"That the State tax-commissioner may have annulled a prior rule of his predecessor will not estop the successor tax-commissioner from making a reassessment of the , .. tax upon one subject thereto, or from enforcing payment of the tax so demanded, especially where the required tax payment has not been made." In answer to your third question it is my opinion that Section 32 of the Administration of Taxing Laws Act of 1937-38 (Ga. Laws 1937-38, p. 77, 94; Ga. Code Ann. 92-8435), fixes the period within which the State Revenue Commissioner may make additional assessments. This section provides that additional assessment must be made "within two years from the last date upon which the return could be filed by the taxpayer under the law without delinquency. Accordingly, additional assessments for the year 1953, where a return has been filed, are barred, and additional assessments can be made for the year 1954 up to April 15, 1956.
TAXATION-Intangible Tax Act-Liability (Unofficial) Lender may not transfer the imposition or burden of the intangible tax
to the bororwer.
February 24, 1955
Mr. D. Warner Wells In your letter of February 18, 1955, you state that the Prudential Insurance
Company of America is increasing the amount of a long term note secured by real estate upon which the intangible tax has been paid at the time of the recording of the loan deed securing the original note. You state that the Prudential Company will not accept a second paper in the increased amount but is rewriting the loan to include the increased amount in one note and security instrument. You state one condition of approval of loans of this nature is that the borrower pay any taxes

797
imposed by the State. You ask whether there is any provision in the intangible tax laws whereby the borrower can pay the tax on the increased amount.
As you no doubt are aware, the Intangible Property Tax Act of 1953, approved December 22, 1953, provides in Section 4, Part I, that the tax imposed upon long term notes secured by real estate is imposed upon the "holder" of the note. Section 4 provides that every "holder" shall record the mortgages securing such notes and shall "pay ... a tax measured by the amount of the debt," etc. There is no provision in the Act permitting the lender to transfer the imposition or burden of this tax to the borrower, nor is there any provision in the Act which permits the borrower to pay the amount of this tax in lieu of the lender. The Act in Section 4 merely provides as stated, that the "holder" shall pay the tax.
TAXATION-Intangible Tax-Money (Unofficial) Money is subject to an intangible tax of only ten cents (10c) on each
One Thousand ($1,000.00) Dollars.
May 3, 1954
Honorable J. A. Drake You ask: "Are the monies of an individual on deposit in a bank or on hand taxable (other than the 10c per thousand dollars under the Intangible Tax Law of 1937 and subsequent acts of the Legislature)?" Part I, Section 1 (a) of the 1953 Intangible Property Tax Act (Ga. Laws,
Nov.-Dec. Sess., 1953, p. 379) provides as follows: "A property tax is hereby levied for the year 1954, and annually
thereafter, as of the first day of January of each year at the rate of ten (10c) cents on each One Thousand ($1,000.00) Dollars of the fair market value of all personal property classified for taxation as intangible property by the Act of the General Assembly of Georgia, enacted at the extraordinary session of 1937-1938, approved December 27, 1937, entitled 'An Act to classify property for taxation,' as amended. Such property shall be taxed without deduction of any indebtedness or liability of the taxpayer." This is the only intangible tax upon cash money and although I am mindful of the comparison of the tax on real property as compared to the intangible property tax on money, this rate of 10c on each $1,000.00 is the only rate applicable to cash money.
TAXATION-Intangible Tax-Non-Profit Organizations Long-term real estate notes, owned by educational, religious, hospital and
pension organizations, described in Code Sections 92-123 and 92-130, are not subject to the tax, imposed on the recording of long-term real estate notes.
February 27, 1956
Honorable Clarence G. Campbell Director, Property Tax Division
This is in reply to your letter of February 10, 1956 in which you request an official opinion as to the application of the tax imposed by Section 4, Part I, of the

'798
Intangible Property Tax Act of 1953 (Ga. Laws, 1953, Nov.-Dec. Sess., p. 379, 383), popularly called the recording tax on long-term real estate notes to long-term real estate notes held by educational, religious, hospital and pension organizations, whose exemption from intangible property taxation is authorized by Article VII, Section I, Paragraph IV of the Georgia Constitution as amende(! (Ga. Code Ann. 2-5404), and prescribed by statute in the Intangibles Classification Act of 1937 (Ga. Laws 1937-38, Ex. Sess., p. 156, 161) and in Acts of 1946 (Ga. Laws 1946, p. 12, 14) and of 1947 (Ga. Laws 1947, j. 1183), codified in Georgia Code Annotated as Code Sections 92-123 and 130.
The latter portion of Section 92-123 provides:
"... Provided, that ... intangible personal property belonging to any religious, educational or charitable organization; intangible personal property belonging to any trust exempt from Federal income taxes under Section 165 (a) of the Internal Revenue Code; ... shall be excluded from such sworn statement and shall not be taxable." Code Section 92-130 provides:
"There shall be exempt from taxation all intangible personal property owned by ... religious, educational and charitable institutions, no part of the net profit from the operation of which can inure to the benefit of any private person."
In an official opinion to Honorable Charles D. Redwine, dated December 15, 1954, it was ruled that such organizations were not subject to this tax.
Subsequently, in litigating the case of Washington Loan and Banking Company v. Golucke, we took the position that intangible tax exemptions prescribed by the General Assembly in acts prior to the 1953 Act were not carried forward in Section 4, Part I, of the 1953 Act, and since no exemptions were expressly authorized in that section, none were to be implied. This position was sustained by the trial court in that case, and, on that basis, this office issued several unofficial opinions to the effect that these organizations were not exempt from this tax. However, on appeal to the Supreme Court, the trial court's decision was reversed. Washington Loan and Banking Company v. Golucke, 212 Ga. 98. In its opinion the Court said that the Act of 1953 did not expressly, nor by implication, repeal prior statutes granting exemption from intangible taxation to state banks to the same extent as national banks.
On the basis of this decision it must be taken as the law of this State that Section 4, of Part I, of the Intangible Property Tax Act of 1953 is not complete and exhaustive within its own terms of the law relative to this tax on long-term real estate notes, but that it must be read along with, and be subject to, exemptions theretofore prescribed by statutes such as those codified as Code Sections 92-123 and 92-130. Accordingly, in my opinion, iong-term real estate notes owned by educational, religious, hospital and pension organizations described in these Code Sections are not subject to the tax imposed by Section 4 on the recording of long-term real estate notes.
TAXATION-Intangible Tax-Non-Rresidents (Unofficial) Intangibles coming out of sales and deliveries in Georgia are taxable in
Georgia, although owned by a nonresident and held at the nonresident's domicile outside of Georgia.
December 31, 1954 Mr. H. N. Mitchell
It appears from your letter that two divisions of The Murray Company of Texas, Inc., namely, the Boston Gear Works and the Carver Cotton Gin Company,

799
each maintain a sales office in Georgia as well as a stock of goods .here. You request a ruling as to the taxability of those sales where delivery is made to customers at the Georgia warehouse.
The settled law in this State appears to be that intangibles arising out of such sales and delivery in Georgia as well as all such sales and deliveries out of the Georgia inventory accrue out of or are incident to business conducted in Georgia and, therefore, would be taxable in Georgia although owned by a nonresident and perhaps held at the nonresident's domicile outside Georgia. Suttles v. Owens-Illinois Glass Co., 206 Ga. 849.
TAXATION-Intangible Tax-"Open-End Note" (Unofficial) Execution of a new note for an additional amount of money secured by
a loan deed recorded several years ago under so-called "open-end note" is subject to intangible tax.
Proper procedure for recording and paying intangible tax quoted.
October 11, 1955
Mr. Herbert Johnson You have presented the question as to the propert treatment under the Intan-
gible Tax Act of 1953 of an additional advance under a so-called "open-end note" (or the execution of a new note in an additional amount) secured by a loan deed which was recorded several years ago at the time the original note was executed. It is my understanding that the loan deed in such cases usually recites that the real estate described in said loan deed secures a note executed on a certain date in a certain amount "and any additional amount" or "any additional amount up to" a stated amount. No new security deed is given when such original indebtedness is increased, renewed or modified.
You state that many lawyers do not believe that the so-called recording tax imposed by Section 4, Part I of the Intangible Property Tax Act of 1953 is required or such new advances of additional money. In this regard, however, the Attorney General, on December 15, 1954, ruled in answers to questions 17-20 of that opinion that the Act requires the tax on such additional advances, and we still adhere to that opinion.
Apparently, however, your primary concern and inquiry involves the fact that there is some difference of opinion between your client, the First Federal Savings and Loan Association of Atlanta, and the Tax Collector of Fulton County as to the proper procedure or mechanics which the Act requires with respect to the payment of the tax on such additional advances when no new security deed has been taken from said borrower.
Section 4 of the Act provides that the holder of a long-term note secured by real estate shall, prior to presenting the loan deed which secures said note to the clerk of the court for recording, present such loan deed to the tax collector who shall collect the tax upon such note.
Section 5 of the Act provides that upon payment of the correct amount of the tax as disclosed from the "face of the security instrument," the tax collector "shall enter upon or attach to such security instrument a certification of the fact that the intangible tax as provided by Section 4, Part I of this Act has been paid, the date and the amount thereof, and shall be signed by the tax collector ..." Section 5 goes on to provide that when such tax has been paid and the certificate of the tax collector has been attached or entered upon the security instrument, the holder of

800
the long-term note "may then present the security instrument, together with the certificate, to the clerk of the Superior Court of the county in which the real estate is situated who shall then be permitted to file the security instrument for record."
Though the Act does not require that a new secured instrument must be made upon each such furnishing of additional advances nor does it require that the security instrument heretofore recorded must be re-recorded upon the furnishing <?f such an additional advance, it is implicit in the Act that the certificate of the tax collector, stating that the tax has been paid on the particular long-term note described, must be entered upon or attached to something-that is, to or upon either the security instrument to be recorded or the security instrument theretofore recorded which secures said additional advance.
A mere statement by the holder to the tax collector that an additional tax is due on an additional advance or a new note, accompanied by a tender of the tax and a request by said holder for a receipt for such tax, would not comply with the requirement of the Act that the security instrument should set forth the terms of the note and should be presented to the tax collector, nor would it comply with the requirement that the tax collector's certificate shall be attached thereto, nor the requirement that the certificate shall accompany the security instrument at the time of recording such instrument.
It is my opinion, therefore, that the previously recorded security deed securing the original "open-end agreement" should be presented to the tax collector showing a recitation therein, via an addendum or additional provision or amendment to the security deed, that the security deed now covers the additional advance. In that manner the tax collector may determine from the loan deed the amount and duration of the additional indebtedness and can determine the correct tax and can enter upon or attach to the loan deed his certificate that the correct tax has been paid. There is no provision in the Act that the holder of the note must file for record the security instrument as modified, or the modification referring to the additional advance. The holder of the note may then present the loan deed to the clerk of the court who can then make a new recording of the addendum referring to the original recorded security instrument, or if the clerk prefers, he may make another entry upon the original recording of the loan deed noting the additional indebtedness; and in either case such entry on the deed book will show that the loan deed, theretofore previously recorded and referred to, now covers the additional amount of indebtedness.
The Act does not ever in fact require the holder to record the security instrument as originally executed or as amended. Section 4 merely states that the holder "shall," within 90 days after the execution of the security instrument securing a long-term note, record such security instrument in the office of the clerk of the court, and shall pay the tax prior to such recording. It, however, imposes no penalty for failure to record; the penalties contained in the Act are all with respect to the nonpayment of the tax.
TAXATION-Intangible Tax-Penalties Even though a taxpayer voluntarily files an intangible tax return, if he
does not file by the prescribed time he is subject to a 25 per cent penalty.
August 19, 1955 Honorable Clarence G. Campbell Director, Property Tax Division
You request my opinion as to whether the 25 per cent penalty provided in Georgia Code Section 92-129 (Acts 1937-38, Extra Sess., pp. 156, 162) applies with

801
respect to the tax liability of a taxpayer who files his intangible tax return voluntarily after the time provided by law.
Code Section 92-129 provides: "In addition to the penalties and interest elsewhere provided in the
law (Section 92-113, 92-159, 92-9946), every taxpayer failing to report for taxation all intangible property which it is his duty to report under the terms of this statute shall pay an additional penalty as part of the tax imposed hereunder an amount equal to 25 per cent of the original tax on property not listed." The duty imposed upon taxpayers to report intangibles is found in Code Section 92-123 as follows:
"Every person owning intangible personal property, classified for taxation under the terms of Sections 92-116 to 92-122 ... is required to file a return thereof, describing in detail each item (including exempt as well as taxable property except obligations of the United States), with the Commissioner at the same time and in the same manner that income tax returns are required by law to be filed." Under this section, the duty of the taxpayer with respect to the time of filing a return is of equal importance with the duty relating to its substance and form. Any failure to comply with the total duty imposed by this section, in my opinion, incurs the penalty provided in Code Section 92-129. The fact that a late return may be filed voluntarily, while indicative of the good faith of the taxpayer, does not mitigate the mandate of the statute that returns be filed at the time designated or be subject to the prescribed penalty.
TAXATION-Intangible Tax-Realty in Two States (Unofficial) Where an instrument creating a lien on realty in more than one state is
recorded, there is an intangible tax due which shall be proportionate to the value which the land located in Georgia bears to the total value of all the realty involved in the instrument.
October 18, 1954
Honorable Vance Custer You stated that one of your clients has negotiated a loan from Connecticut
Mutual Life Insurance Company of Hartford, Connecticut, in the amount of $675,000, this being a fifteen-year loan and secured by property located partly within the State of Georgia and partly within the State of Florida.
You request my opinion as to whether or not Section 92-169 of the Amendment to the Intangible Tax Act would be applicable in the case described in your letter. This section is as follows:
"If any instrument required to be recorded hereunder shall convey, or encumber, or create a lien upon real estate situated in more than one county, the tax herein required shall be paid to the clerk of the county in which such instrument is first recorded. If any instrument conveying, encumbering or creating a lien on real estate located within and without Georgia as security for long term notes is held by a nonresident of the State when presented for recording under this law (Sections 92-161 through 92-184), the tax required hereunder shall be that proportion of the tax which would otherwise be required hereunder that the value of the real estate within Georgia bears to the total value of all the real estate within and without the State described in such instrument, ..."

802
I am of the opinion that the above section would be applicable in determining the amount of tax due by the holder of a long-term note. The statute provides that the value shall be certified under oath by the holder presenting the instrument for record. It is therefore my opinion that the affidavit should be signed by both trustees or by an officer of the Connecticut Mutual Life Insurance Company. This opinion is based upon the assumption that the bonds referred to in your letter are in fact long-term notes.
TAXATION-Intangible Tax-Realty Out of State Georgia corporation liable for intangible tax on real estate loans secured
by real estate located in a foreign state, not recorded in Georgia, as tax attaches when title vested in Georgia corporation.
December 2, 1954
Honorable Charles D. Redwine Commissioner of Revenue
This is in reply to your request for an official opm10n on the question propounded in a letter of Mr. Henry J. Heffernan addressed to you and dated November 9, 1954.
Mr. Heffernan in his letter gives the following statement of facts: "My client, a Georgia corporation with its principal place of doing
business located at Augusta, Georgia, makes a considerable volume of long-term real estate loans secured by real estate located in Aiken County, South Carolina. These documents are not recorded in Georgia, and at the time of recording the real estate mortgage in South Carolina, a transfer of the mortgage is executed to New York Life Insurance Company, a nonresident corporation with its principal place of business located without the State of Georgia." It is his contention that because the long-term notes in question are immediately transferred to the New York Life Insurance Company, Section 10 of Part I of the amendment to the Intangible Tax Act (Ga. Laws 1953, Nov.-Dec. Sess., p. 379-390) does not apply. I cannot agree with this conclusion. The notes in question are made payable to the Georgia corporation. The instrument given to secure the payment of the notes is made to the Georgia corporation. The Georgia corporation became the owner of the note and the instrument executed to secure the same after they were executed and delivered to the Georgia corporation. In fact, it was necessary for title to be vested in the Georgia corporation in order for them to be able to transfer it to the New York Life Insurance Company. I am of the opinion that once title in the instrument was lodged in the Georgia corporation, the corporation became subject to the payment of the tax, and it is immaterial whether they transferred the note on the same date of its execution or at any other time hereafter. Section 10 of the amendment to the Intangible Tax Act was written to cover this particular type of transaction. Section 10, Part I is as follows:
"Every resident owner of long term notes secured by real estate outside of this State, including domestic corporations and foreign corporations having their principal places of business in Georgia, shall, in lieu of recording the instrument securing any such note or notes, file at such periodic intervals as the State Revenue Commissioner shall by regulation designate, a memorandum thereof with the State Revenue Commissioner, on

803
forms prescribed by him, and, at the same time, pay to the State Revenue Commissioner the amount of the tax required by this Act with respect to such instrument. The revenue from such instrument shall be distributed to the State, counties and municipalities as if the real estate securing such instruments were located in the county of the domicile of the taxpayer, or in the county of the principal place of business of the taxpayer, if a corporation."
I am therefore of the opinion that Mr. Heffernan's client is subject to the payment of the intangible tax as is provided in Section 10 of Part I of the amendment to the Intangible Tax Act (Ga. Laws 1953, Nov.-Dec. Sess., p. 379-390).
TAXATION-Intangible Tax-Refinancing (Unofficial) Refinancing of loan by borrower with a different loan company where an
additional sum is added to the balance of the original loan would subject holder of instrument to intangible tax on entire amount of loan, and not just on additional sum.
Loan to pay existing indebtedness is subject to intangible tax.
April 6, 1955
Honorable Wade C. Hoyt, Jr. I wish to acknowledge receipt of your letter of March 28, 1955 in which you
request my opinion on the following questions: "(1) Suppose a loan of $10,000 evidenced by a note and security deed
on real estate was executed by a borrower to one loan association in 1954, that subsequently this loan was reduced by payments to a balance of $7,500, that then the original borrower went to another loan association who refinanced his indebtedness an additional $2,500 and had the borrower execute a note and security deed as evidence thereof. Is the intangible tax only due on this additional $2,500 or is it due on the entire $10,000 because the borrower has dealt with a different loan company?
"(2) We would also like to know whether the answer to the above question would be the same if the original borrower sold the property to another person for a cash consideration and the purchaser refinanced his loan at another loan company securing the additional $2,500 to pay to the original borrower or seller as a cash consideration. Would the intangible tax only be due on the $2,500 increase or would it be due by the new purchaser on the entire amount of the new loan of $10,000 ?"
I am of the opinion that the tax would be due upon the entire $10,000 under the facts stated in your question. The fact that the proceeds of the loan or a portion of the proceeds of the loan were used to repay an existing loan made by a different party would not relieve the holder of the instrument from paying the recording tax thereunder. A great majority of loans are made to pay existing indebtedness and such loans could not possibly come within the provision of Section 15 of the Act approved December 22, 1953, which section is as follows:
"Section 15. No additional tax hereunder shall be required on accou"t of any instrument which is an extension, transfer, assignment, modification or renewal of, or which only adds additional security for, any original indebtedness or part thereof, secured by an instrument subject to the tax imposed by Section 4 hereof, and upon which the clerk has made the entry showing payment of the tax under this Act."

804
The fact that the original borrower might have sold the property to another person for a cash consideration and the purchaser refinanced his loan at another loan company, securing an additional $2,500 to pay the original borrower or seller as a cash consideration, would also subject the holder of the instrument to the recording tax for the reasons outlined in my answer to your first question.
TAXATION-Intangible Tax-Refunds Where intangible tax is paid under protest upon the recording of a bond
issue, the payee is entitled to a refund.
November 29, 1956
Mr. C. G. Campbell, Director Property Tax Division, Dept. of Revenue
I wish to acknowledge receipt of your letter together with the "Indenture of Mortgage and Deed of Trust" executed by the Knox Corporation to Harris Trust and Savings Bank and R. H. Long, Trustees, and the claim for refund of intangible taxes paid by the Knox Corporation under protest.
You request my opinion as to whether or not the claim for refund of the taxes paid under this protest should be allowed.
It appears from the file submitted to me with your letter of November 27, 1956, that on October 24, 1956, at the time of the filing for record of the "Indenture of Mortgage and Deed of Trust" executed by the Knox Corporation to the Harris Trust and Savings Bank and R. H. Long, Trustees, that the Knox Corporation paid to Miss Myrtis McCorkle, Tax Collector of McDuffie County, Georgia, the sum of $2,100.00 intangible taxes on said instrument under protest, filing their written protest at the time of payment. The protest alleged:
"We protest the payment of said tax on said instrument on the ground that the said Indenture of Mortgage and Deed of Trust was not executed to secure long term notes as defined in the Intangible Tax Act of 1953, as amended, but was executed to secure a bond issue in the amount of $700,000.00." It further appearing that after said taxes had been paid under the protest, the claim for refund was filed as provided by law.
After a study of the "Indenture of Mortgage and Deed of Trust" in question, I am of the opinion that the entire bond issue of $700,000.00 provided for in the "Indenture of Mortgage and Deed of Trust" executed by the Knox Corporation to Harris Trust and Savings Bank and R. H. Long, Trustees, dated October 1, 1956, are bonds within the meaning of Georgia Code Annotated, Section 92-162 (1954 Supplement), and are not long term notes secured by real etsate within the meaning of Georgia Code Annotated, Section 92-163 (1954 Supplement).
For the reasons herein stated, I am of the opinion that a refund should be made as claimed by the Knox Corporation.

80ij
TAXATION-Intangible Tax'-Sales Tax The provisions of the Intangible Property Tax Act do not apply to the
State Sales Tax Act.
February 11, 1954
Honorable Albert Dozier Director, Sales and Use Tax Unit
You request my opinion as to whether or not savings and loan associations are exempt from the State sales tax under and by virtue of the provisions of H. B. No. 354, known as "The Intangible Property Tax Act."
The provisions of "The Intangible Property Tax Act" do not apply to the State Sales Tax Act. This Act could not and does not attempt to repeal, modify or amend any of the provisions of the Sales Tax Act.
TAXATION-Intangible Tax-Savings and Loan Association (Unofficial) A Savings and Loan Association is subject to the State Intangible Tax.
April 30, 1954
Mr. Jesse G. Bowles You ask my interpretation of the ruling of the Supreme Court of Georgia in
the case of Atlanta Federal Savings and Loan Association v. Simmons. The question presented in that case was whether the Atlanta Federal Savings and Loan As sociation was exempt from paying a tax based on the amount of the instrument securing a long-term note when that instrument was offered for recording with the Clerk of the Superior Court of Fulton County. The Court provided that the Association was liable for the tax and in this affirmed the ruling of the lower court.
Section 4 of the new Intangible Tax Act (Ga. Laws 1953, November-December Sess., p. 379) provides a tax at the rate of $1.50 per $500 of the amount of a long-term note secured by real estate, this tax to be paid by the holder of the instrument at the time the instrument is offered for record. Section 3 of this Act provides that a long-term note is defined as any note or notes secured by real estate which is made for a period longer than three years.
TAXATION-Intangible Tax-Savings and Loan Associations (Unofficial) "Net worth" of a Savings and Loan Association, which is subject to munic-
ipal taxation, is not subject to any discrimination at all by reason of the fact that long-term real estate notes owned by the association have been previously taxed.
April 19, 1956
Mr. William L. Slaughter You request an opinion concerning the "net worth" tax against savings and
loan associations under the provisions of Part II of the Intangible Tax Act of 1953, Ga. Laws, 1953, Nov.-Dec. Sess., pp. 379, 389; Ga. Code Ann. 92-179 to. 92-182. More specifically you ask if "net worth" as defined in 92-179 is to be reduced to any extent by reason of the fact that the assets of such associations consist in part of long-term real estate notes on which the "recording tax" prescribed by Section 4

806
(Ga. Code Ann. 92-164) has already been paid, particularly when 92-182 specifically authorizes city and county ad valorem taxation of "net worth," but 92-173 says that long-term real estate notes are not subject to any further taxation by the State, or any county or municipality.
The prohibition against further State, county and city taxation of long-term real estate notes in 92-173 appears merely to supplement a similar provision in 92-119 which applies to other classes of intangible property. These, of course, are general provisions of the intangibles tax law applicable to taxpayers generally. The history of intangibles taxation of savings and loan associations has been that they and their intangibles have always received special treatment different from taxpayers generally. This was true under the 1937-38 Act where under 92-158 they were relieved from taxation under that Act and taxed as "heretofore provided by law."
The 1953 Act continues this special treatment in 92-179 wherein they are no longer taxed as "heretofore provided by law" but are made subject to a special intangibles tax measured by "net worth" as defined therein. Then 92-180 goes on to specifically authorize that this "net worth" shall be returned for taxation in the municipality in which its principal office is situated to be taxed "as in the case of other property returned for such municipal taxation."
In view of this special treatment of savings and loan associations in the 1953 Act similar to a specific treatment accorded them in the 1937-38 Act, it is my opinion that the general prohibitions against further State, county and municipal taxation found in 92-173 and 92-119 give way to such special treatment and have no application in the taxation of savings and loan associations. In other words, irrespective of 92-173, it appears clear that under 92-179, a municipality can tax "as in the case of other property" the "net worth" of a savings and loan association.
Section 92-179 goes on to define "net worth":
"For purpose of this provision, net worth shall be defined as all surplus, undivided profit and reserves exclusive of the minimum statutory federal insurance reserve in the case of federal associations or the minimum State required reserve in the case of State chartered associations."
In the face of such a definition which, in particulars, lists the various factors to be included and other factors to be excluded, in my opinion, it must be take:r;t to be exhaustive of the matter.
I am aware that Mr. Justice Almand in his concurring opinion in Fulton County Federal S. & L. Assn. v. Simmons, 210 Ga. 621, 626, said that the long-term real estate notes of a savings and loan association would not be computed as a part of its net worth "because having paid the recording tax, such long-term notes would not be subject to further taxation." My answer to this is (1) that he has overlooked the statutory definition of net worth, and (2) he assumes that the item of long-term real etsate notes as it appears on the asset side of the balance sheet can be traced directly into net worth to the exclusion of every other item appearing in the other side of the balance sheet and to the exclusion of any other item on the asset side of the balance sheet being similarly traceable. Looking at it another way, who can say that what specific assets have been excluded from taxation by basing the tax on net worth instead of on net worth and liabilities? Who can say what specific assets have been excluded from taxation by excluding statutory reserves from net worth as defined by the statute? Similarly, why doesn't net worth represent "cash on hand and in banks," which is not otherwise taxed, just as much as it represents long-term real estate notes? The fact is that in any

8()7
ordinary situation there can be no correspondency between any particular asset and net worth. My conclusion, therefore, is that "net worth" as defined in 92-179 and made subject to municipal taxation in 92-180 is not subject to any diminution at all by reason of the fact that long-term real estate notes owned by the association have been previously taxed.

TAXATION-Intangible Tax-Transfers Liability under stated facts.

August 13, 1954

Honorable W. Vaughn Rice Deputy State Revenue Commissioner

You requested a ruling upon the following set of facts:

"A" executed to "B" a note on September 1, 1948 in the amount of

$16,000.00. On the same date a security deed was executed by "A" to "B." On the same date the note was endorsed by "B" and turned over to

a bank.

On the 8th day of September, 1948 "B" endorsed to the bank the

security deed with the following endorsement:

For Value Received, I the undersigned, "B," hereby sells, transfers,

assigns and conveys to the bank, its successors and assigns, the

within security deed, together with all powers therein contained,

thereby conferred and together with the land therein described and

conveyed and together with the debt which the same secures.

In Witness Whereof the undersigned, "B," has hereunto set his hand

and seal this the 8th day of September, 1948.

IS!

"B"

(L. S.)

The above secured deed was outstanding until sometime during the year 1950 and the question as to whether or not intangible tax would be due by "B" for the years 1949 and 1950 has been raised.

In my opinion neither "A" nor "B" is liable for intangible taxes for the years 1949 and 1950 on the note described. Under the facts as stated, the note was executed on September 1, 1948 and transferred to a bank on the same day. On the 8th day of September the security deed was transferred to the bank. The endorsement, together with the delivery of the note in question, transferred title from the grantee to the bank and since the bank owned title to the note during the years 1949 and 1950, under the provisions of the Intangible Tax Act the note would not be subject to intangible tax. This opinion is based upon the following provision of the Intangible Tax Act (Code Section 92-158):

"Notwithstanding any other provision of this law (Sections 92-113 to 92-159, 92-9946), banks chartered under the laws of this State or of the United States and savings and loan companies or associations organized under the laws of this State, which accept funds for deposit and submit to examination by the Superintendent of Banks of this State, shall be taxed as heretofore provided by law. Neither such banks nor such savings and loan companies or associations nor their assets shall be subject to the provisions of this law: Provided, nothing contained in this section shall be construed to exempt from the provisions of this law any person,

808
partnership, or corporation licensed under the provisions of Chapter 25-3 to carry on a small loan business. (Acts 1937-38, Ex. Sess., pp. 170, 172)."
TAXATION-Intangible Tax-Transfers (Unofficial) Where no intangible tax has been paid upon the initial recording of
a loan instrument, the assignee of such an instrument must pay the tax upon a recording of the transfer.
November 10, 1954
Mr. C. R. Edwards I wish to acknowledge receipt of your letter in which you state: "The Loan Guaranty Officer of the Veterans Administration has informed us that your office on January 12, 1954 issued a memorandum to the State Revenue Commissioner that the Veterans Administration when holding the loan instruments and in offering these for recording would not be subject to the provisions of Part I, Section 4 of Act No. 811 of the 1953 November-December Session of the Georgia Legislature. "The purpose of this letter therefore is to inquire whether or not if we should purchase these loans on which the three per cent intangible tax has not been paid would we then have to pay this tax at the time our transfers of the instruments are filed for record. We further contemplate subsequently reselling the loans to an out of state investor and of course must know if this tax will be required to be paid." Section 15 of the amendment to the Intangible Tax Act approved December
22, 1953, is as follows: "Section 15. No additional tax hereunder shall be required on account
of any instrument which is an extension, transfer, assignment, modification or renewal of, or which only adds additional security for, any original indebtedness or part thereof, secured by an instrument subject to the tax imposed by Section 4 hereof, and upon which the clerk has made the entry showing payment of the tax under this Act." This section is in effect an exemption from the payment of the taxes imposed under the amendment in that it exempts any extension, transfer, assignment, modification or renewal of an instrument subject to the tax imposed by the Act and upon which the Clerk has made an entry showing payment under the Act. It is a well-established rule of law that all exemptions from taxation are to be strictly construed. In order to come within the exemption, the taxpayer must fully measure up to the terms and conditions imposed by the exemption. The instruments referred to in your letter were subject to taxation, however, no taxes were paid thereon because they were filed for record by a government instrumentality. It appears now that this government instrumentality or agency is preparing to sell the instruments which have been recorded without the payment of the recording tax imposed under the Act. The assignee of the transferred instrument when he offers the assignment for. record would, in my opinion, be liable as the holder of the instrument offering it for record for the taxes due thereon, since it is an instrument subject to the tax imposed by Section 4 of the Act and because there is no entry made thereon by the Clerk showing that the tax has been paid. Now if the assignee of the instrument after filing the assignment for record and paying the tax thereon, should desire to sell the instrument to a third party

809
and :tnake a new assignment thereon, there would be no taxes due on the recording of the third assignment because the taxes would have been paid once on the instrument.
I wish to call your attention to the statement made in your letter in which you are of the opinion that there is a 3 per cent intangible tax on instruments of this character. You are in error as to the amount of tax which would be due for the recording of a long-term instrument. The amount of the tax is set forth in Section 4 of the Act which is as follows:
"Section 4. Every holder of long term notes secured by real estate shall, within ninety (90) days from the date of the instrument executed to secure the same, record such instrument in the county in which is situated the real estate conveyed or encumbered or upon which a lien is created to secure such note or notes, and shall, at the time of filing such instrument for record pay to the clerk of the superior court of such county, a tax measured by the amount of the debt as evidenced in the instrument filed for record at the rate of One Dollar and Fifty Cents ($1.50) for each Five Hundred ($500.00) Dollars or fraction thereof of the face amount of the note or notes secured by such instrument. Provided, however, that the maximum amount of any such intangible property tax payable with respect to any instrument when so recorded shall be Ten Thousand ($10,000.00) Dollars."
TAXATION-Intoxicating Liquors-Dealers (Unofficial) Counties and municipalities may not require a license or tax of a whole-
sale dealer in wine who is domiciled elsewhere and who solicits orders for wine in such county or municipality, when such wine to be delivered at a later date.
Counties and municipalities may not levy a gallonage or unit tax on wines sold by a wholesaler.
May 12, 1955
Mr. H. Grady Simmons This will acknowledge receipt of your letter in which you requested the Attor-
ney General's opinion on the following two questions: "1. Where a dealer in wine at wholesale solicits orders for wine to
be delivered at a later date in municipalities and counties other than where domiciled or having its place of business, is such dealer subject to a license or tax for such privilege of delivering wines to retail dealers located in such municipalities or counties?
"2. Does a city or county have power to levy a gallonage or unit tax on wines sold by a wholesaler in addition to State taxes on such wines?" The answer to the first of these questions is found in the provisions of Code Section 92-4105 which provides:
"Traveling salesmen, when exempt.-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." Apparently the most recent case of this nature was Fruit Company v. City of Dalton et al., 184 Ga. 277. The Supreme Court held in this case that:

810
"Where a dealer in beer at wholesale had its only office and place of business in the City of Rome, and sold and delivered beer. in. the City of Dalton only upon orders previously taken by its traveling agent or salesman, the business so conducted was not subject to an ordinance of the City of Dalton imposing a license fee or tax on dealers in beer at wholesale."
In view of the foregoing authorities, I do not think that a dealer in wine at wholesale who solicits orders for wine to be delivered at a later date is subject to a municipal license tax so long as he continues to operate in such a manner.
The answer to your second question is found in the ruling of the Court of Appeals in the case of Crumney v. The State, 83 Ga. App., pp. 459, 463. In that case, the Court of Appeals ruled with regard to county taxation that:
"A county has no right under legislative authority to engage in the liquor business on its own account, or to accept a share of the profit from any one so engaged. Nor has it any right to levy a tax on sales of liquor. There is no provision of law that the county license tax on retailers of alcoholic beverages may be levied on a percentage basis; but on the contrary, the Code (Ann. Supp.), 58-1032 (Ga. L. 1937-38, pp. 103-112), expressly provides for an annual license to be charged by a municipality or county, and Code (Ann. Supp.), 58-1038 (Ga. L. 1937-38, pp. 103-113) provides that such license fees shall be payable in advance. The method employed by the county in this instance was clearly illegal, and further would open up avenues of abuse for local governing authorities, if employed generally-which might well be construed to be contrary to public policy and entirely without the purview of the legislators as expressed by the act of 1937-38, to regulate and control the sale of alcoholic liquors and beverages."
Following the above quoted ruling of the Court of Appeals, I have written an unofficial ruling in which I expressed an opinion that a bottle top tax on beer was not legal because it was basically a tax on gross receipts or on sales which, under the ruling in the Crummey case, could not be imposed on dealers in alcoholic beverages. I personally believe that, consistent with the aforesaid ruling, the levy of a gallonage or unit tax on wines would come within the foregoing prohibition.
TAXATION-Intoxicating Liquors-Dealers (Unofficial) Counties may not tax or license liquor dealers on the basis of gross sales
or number of cases sold. February 26, 1955
Honorable Ellsworth Hall, Jr. You request me to advise you whether in my personal opinion the County
Commissioners of Bibb County have authority to prescribe license charged for liquor which would in some measure be based upon a tax graduated according to the number of cases of liquor sold.
I find no record in my office in which we have dealt with this particular question. It would seem that the ruling contained in Crummey v. State, 83 Ga. App. 459, to which you refer in your letter, is fairly conclusive that this method of licensing liquor dealers cannot be followed by the counties.
I note that Section 1 of the Act approved February 25, 1949 (Ga. Laws, Ex. Sess. 1948, Regular Sess., 1949, p. 2016), the Bibb County Board of Commissioners

811
are authorized and empowered to levy, assess, require, charge and collect license and occupation taxes for revenue and regulatory purposes. In paragraph (B) of that section numerous occupations and businesses on which licenses may be imposed are listed, among them, "liquors," and "establishments where liquor is permitted to be consumed." It is my personal opinion, in view of the ruling in the Crummey case, that if the provisions of the Act of 1949 above referred to could be construed as empowering the county to license liquor dealers on the basis of gross sales or number of cases sold, such authority would be held by the court to be invalid since it is inconsistent with the provisions of the general enactment of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors, approved February 3, 1938 (Ga. Laws, Ex. Sess., 1937-38, p. 103) and thus, if so construed, would contravene the provisions of Article I, Section IV, Paragraph I of the State Constitution (Ga. Code, Annotated, Sec. 2-401).
TAXATI0 N-Intoxicating Liquors-Dealers (Unofficial) Unlawful for counties to levy a tax on dealers in alcoholic beverages, beer
and wine based on gross sales.
March 14, 1955
Honorable J. E. Presley, Chairman Upson County Board of Commissioners of Roads and Revenue
You inquire whether or not it is legal for the Board of Commissioners to impose a bottle top tax on beer sold in Upson County.
From the facts recited in your letter, it is my impression that the tax about which you inquire is basically a tax based on sales or gross revenue, and under the ruling in Crummey v. State, 83 Ga. App., p. 459, I do not believe that such a tax is legal. In the Crummey case, the Court of Appeals had before it the question of whether a county could levy a tax on dealers in alcoholic beverages, beer and wine based on gross sales. The Court of Appeals at p. 463 of 83 Ga. App. stated:
"A county has no right under legislative authority to engage in the liquor business on its own account, or to accept a share of the profit from any one so engaged. Nor has it any right to levy a tax on sales of liquor. There is no provision of law that the county license tax on retailers of alcoholic beverages may be levied on a percentage basis; but on the contrary, the Code (Ann. Supp.), 58-1032 (Ga. L. 1937-38, pp. 103-112), expressly provides for an annual license to be charged by a municipality or county, and Code (Ann. Supp.), 58-1038 (Ga. L. 1937-38, pp. 103113) provides that such license fees shall be payable in advance. The method employed by the county in this instance was clearly illegal, and further would open up avenues of abuse for local governing authorities, if employed generally-which might well be construed to be contrary to public policy and entirely without the purview of the legislators as expressed by the act of 1937-38, to regulate and control the sale of alcoholic liquors and beverages." In that case, the Court of Appeals further stated that the powers of counties and municipalities to license dealers in whiskey, wine and beer arises under the police power of the State, and that, while it is very broad, it does not extend to licensing or taxing on a basis that amounts to the levy of a sales or gross receipts tax.

812

TAXATION-Intoxicating Liquors-In General (Unofficial) Law as to tax on alcoholic beverages quoted.

May 27, 1955

Honorable W. C. Parker I wish to acknowledge receipt of your letter of May 19, 1955, in which you
propound the following questions:

"(a) How much tax is now upon the wholesaling of whiskey, wine

and beer in Georgia and upon what units is same based?"

The excise tax on whiskey is $1.00 per wine gallon in units as follows:

1h pint -------- ____ ________ _______ _______

-------------- 61,4,

tenths _

______________ _________ _________ ____________ 10

pints ___________ _______

__ _____________________ .12%

fifths _____ _ ___________ __ ______________________ _ _____________________ 20

quarts _____ ------------------------------------------------------------------------- 25

In addition to the excise tax levied on whiskey, the State collects a warehouse charge of $1 per wine gallon. The excise tax of $1 per wine gallon, plus the warehouse charge of $1 per wine gallon, makes a total of $2 per wine gallon on whiskey sold in the State of Georgia. The total amount collected on whiskey for the past year was:
--------------------------------------------------------------------------------. --------------------- ----- $6,077,013.14 (this amount includes tax, warehouse fees, retail and wholesale licenses.) The tax on wine is as follows:
On domestic wines having an alcoholic strength of not more than 14 per cent by volume, 5 per gallon.
On foreign wines having an alcoholic strength of not more than 14 per cent by volume, 50 per gallon.
On foreign wines, whether fortified or not, having an alcoholic strength of more than 14 per cent alcohol by volume, $1 per gallon.
On domestic wines, whether fortified or not, having an alcoholic strength of more than 14 per cent alcohol by volume, 50 per gallon. Collected from the sale of wine in Georgia for the period July 1, 1953 through June 30, 1954 was:

- --- --- --- - ---- --- -- - ------ -- -------- - ------- --- $828,507.11

The total amount collected from wholesale licenses and retail licenses was:

----- ------------------------- --

----- - - - ---- $ 24,715.00

The total amount collected __

$853,222.11

The rate of taxation on malt beverages is as follows:

6 oz. container ____________ _______________ ___________________

.1

7 oz. container ___ ___ _______________ __ ___ -- ---------------------------1 ;{;

8 oz. container ---------------------------------------------------------------1:3 9 oz. container ---------------------------- ____________ -------------------1% 10 oz. container _______________________ ----------------------- ___________1%

12 oz. container -------------------------------------------------------------- _____ 2

32 oz. container _____ -----------------------------------------------------5 :3

1 barrel tax rate ____ ----------------------------------------------------$4.50 % barrel tax rate ----------------------------------------------------------- 2.25

14 barrel tax rate ---------------------------------------------------------- 1.12% 1fs barrel tax rate ---------------------------------------------------------- .56%

814
taxes of the State of Georgia. Further, this provision only moves to the official use of these goods.
Therefore, it is my opinion that you should not allow shipments of liquor to be made to foreign military personnel stationed on reservations within the State of Georgia in that this is in direct conflict with our law and is not superseded by Public Law 271. Even if Public Law 271 moved to State excise taxes it must be first shown that the articles purchased were to be used for official use and, therefore, I think sufficient evidence must be furnished by the applicant to satisfy you that these articles are to be used for official use.
TAXATION-Intoxicating Liquors-Wine Tax Wine sold in Georgia to food processors is subject to the State Tax on
wine.
January 22, 1954
Honorable J. B. Rhodes, Director, Wine Tax Unit, Department of Revenue
The question propounded is whether or not wine sold in Georgia to manufacturers who use the wine in the preparation of wine jellies and other foods (said wine not being used in any instance for a beverage) is subject to the payment of the tax provided under Georgia laws taxing wine sold in this State.
In my opinion, wine sold in Georgia to food processors would be subject to the State tax on wines. The wine tax is levied under Code Section 58-901, which provides:
"The following taxes shall be levied and collected on all wines manufactured, sold, possessed, or offered for sale within the State: ..." It will be noted that the tax is levied on all wines. The Act does not exempt wines used by food processors.
TAXATION-Liens-Extent (Unofficial) A tax lien covers all property of taxpayer, and not just that property for
which the tax is imposed.
April 12, 1954
Mr. J. C. Faith You state: "We understand anyone owning a car on January 1 of each year is
liable for the taxes for that year, however, we want to know if this particular car is sold or traded during the taxable year, can you levy on his property (home, etc.) or any other real estate he owns for the amount he owes?"
Under Section 92-6202 of the 1933 Georgia Code, Annotated, which is as follows:
"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." the owner of the automobile in question who owned it on January 1 of the tax year would be liable for the taxes on the automobile. Section 92-5708 of the 1933 Georgia Code, Annotated is as follows:

815
"Liens for taxes, whether ad valorem, specific, or occupation, due the State, any county thereof, or municipal corporation therein, shall cover the property of taxpayers liable to tax, from the time fixed by law for valuation of the same in each year until such taxes are paid, and the property of tax collectors and their sureties from the time of giving bond until all the taxes for which they are responsible shail be paid. Such liens for taxes are hereby declared superior to all other liens, and shall rank among themselves as follows: First, taxes due the State; second, taxes due the counties of the State; third, taxes due to municipal corporations of the State." You will observe that under this section a lien for taxes covers all the property of the taxpayer. The car in question could be levied upon or any other property of the taxpayer would be subject to the lien for taxes.
TAXATION-Liens-Extent (Unofficial) Taxes attach as a lien to any property held by the taxpayer, whether
acquired before or after the claim for taxes accrued.
October 9, 1956
Mr. L. E. Mallard You ask if property acquired after the accrual of taxes is subject to the claim
for taxes. The answer to your question is contained in Georgia Code Section 92-5707, as
interpreted in the case of Peoples Credit Clothing Company v. City of Atlanta, 173 Ga. 653, which holds that taxes attach as a lien to any property held by the taxpayer whether acquired before or after the claim for taxes arose.
Although the claim for taxes may exist against after acquired property, a levy cannot be made against that property where the title is in another person by virtue of a conditional sales contract. See Georgia Code Section 39-201, and Bank of LaGrange v. Rutland, 29 Ga. App. 478 (2). If you can find some property of the taxpayer which is not subject to a conditional sales contract, then, you can levy on it in satisfaction of previous years taxes on an automobile.
TAXATION-Liens-Priority (Unofficial) Sales tax liens take priority over a lien for a judgment creditor, although
accrual of sales tax is subsequent to the recording of the judgment lien.
August 18, 1955
Mr. S. B. Lippitt This letter is in further reply to your communication of July 18, 1955, in
which you pose a question with regard to the priority of liens for sales taxes. You state in your letter that you represent a creditor of a corporation; that your client reduced his claim against the corporation to judgment, and that an execution was issued thereon and recorded on the general execution docket of the county of the residence of the corporation. You further state that thereafter the State of Georgia recorded its sales tax execution against the corporation, and you desire to know whether the appellate courts of Georgia or the Attorney General has ruled upon the question of priorities in such a situation.

816
So far as I know, there has been no appellate court case involving exactly the situation outlined by you. However, I think that the provisions of the Code respecting priority of liens sufficiently answer this question.
Code Section 67-1701 established certain liens in this State. First on the list of liens under this Code Section are liens in favor of the State, counties and municipal corporations for taxes. Code Section 92-5708 states that liens for taxes due the State, any county thereof, or municipal corporation therein, shall cover the property of taxpayers liable to tax, from the time fixed by law for the valuation of the same. This section further states that such liens are declared to be superior to all other liens with one exception therein stated which obviously does not relate to sales taxes. Section 92-8444 of the Georgia Code Annotated Supplement, as amended by the November-December, 1953 Session of the General Assembly, declares that liens for taxes are superior to all other liens and that the lien of taxes due the State shall rank ahead of taxes due counties and municipal corporations. This last-mentioned Code Section refers to three kinds of taxes, ad valorem, specific or occupation. These categories are also referred to in Section 92-5708, and, reading these sections in their context, leads me to believe that it was the intent of the Legislature that these three categories should embrace all taxes of whatever kind or nature levied by the State or local governments. Obviously sales taxes are not ad valorem taxes nor are they occupation taxes, and I, therefore, take it that they must be specific taxes within the terminology used.
The last proviso of Section 92-8444, which was added by the 1953 Legislature, declares that the lien of a specific or occupation tax shall not be superior to the title and operation of a security deed title recorded prior to the time the execution for such tax shall have been entered on the general execution docket in the office of the Clerk of the Superior Court in the county in which the property affected is located. This is the only exception to the declaration contained in Section 92-5708, which declares that liens for taxes due the State shall be superior to all other liens. In view of this fact, it is my opinion that it was the intention of the Legislature to place liens for sales taxes ahead of all other liens save the title and operation of a security deed title recorded prior to the recordation of the sales tax fi. fa.
That there is a recognized difference between priorities and the rank of liens according to age is shown by the provisions of Section 67-1704 of the Code. This section provides that all liens not regulated or fixed as to their rank by the Code shall rank according to the date, the oldest having priority.
It is my conclusion from the foregoing that sales tax liens attach to the property of taxpayers from the date they become due and payable (State of Ga. v. Atlanta Provision Co., 90 Ga. 147, 150), which is the 20th day of the month following the month in which they accrue, and that such liens are prior to the lien of a judgment creditor even though such lien may have been recorded prior to the accrual of the sales taxes. If time of recordation alone were the only determining factor, all of the provisions of the Code relating to priorities of liens except Section 67-1704 would be avoided by such construction.
TAXATION-Mandamus to Compel Levy of Fi. Fas. (Unofficial) Mandamus will lie to compel sheriff to levy tax fi. fas. placed in his hands.
October 28, 1954 Honorable William T. Roberts
You requested ..my opinion as to whether or not a mandamus proceeding would lie against the Sheriff of your county to require him to levy tax fi. fas. placed in

817
his hands and could this proceeding include all tax fi. fas. placed in the hands of the Sheriff for levy.
Should you decide to institute a mandamus proceeding under Code Section 64-101 or proceed under Code Section 24-202, I see no reason why all the tax fi. fas. could not be included in one petition.
TAXATION-Military Personnel (Unofficial) Act providing for postponement of taxes owed by members of the Armed
Forces is no longer in effect.
November 26, 1954
Honorable Standish Thompson You ask my opinion as to whether the Act of 1945, p. 248, referring to the
postponement of payment of ad valorem property taxes owed by members of the Armed Forces, is still in effect.
It is my personal opinion that this Act is no longer in effect for Section 1 provides that no member of the Armed Forces of the United States shall be liable for penalties, costs, interests or other fees for failure to return real or personal property for the period beginning January 1, 1941 and ending six months after termination of present hostilities. I deem this to mean six months after the President of the United States proclaimed the end of hostilities at the end of World War II. I find no amendments or other enabling legislation that projects this provision up to the present time.
TAXATION-Motor Fuel-Refunds Gasoline used in clearing firebreaks, trails, food sites (for game) and
the planting of milo, rye, and rye grass not eligible for refund.
November 10, 1954
Mr. Jack A. Crackford Federal Aid Coordinator State Game and Fish Commission
This is in reply to your request for my opinion on the question as to the eligibility of your Department, which operates in connection with the U. S. Fish and Wildlife Service, to claim gasoline tax refund for gasoline used in clearing of firebreaks, trails, and food sites, and the planting of milo, rye, and rye grass in these areas for game birds and animals.
Code Section 92-1403, subsection (I) (1) contains the following provision: "Any person, who shall purchase gasoline in quantities of 25 gallons
or more at any time, and use said gasoline in operating tractors or other farm equipment used exclusively for agricultural purposes in farm operations, no part of which is used in any vehicle or equipment driven or operated upon the public roads, streets, or highways of this State, shall be entitled to a refund of all of the State tax on such gasoline except one cent per gallon, subject to the conditions set forth in this subsection. The right to receive any refund under the provisions of this subsection shall not be assignable and any assignment thereof shall be utterly void

818
and of no effect. Nor shall any payment thereof be made by the Treasurer of the State to any person other than the original person entitled thereto using motor fuel as hereinabove set forth in this subsection."
You will note that the above section provides for the refund of tax on gasoline used in the operation of tractors and other farm equipment used exclusively for agricultural purposes in farm operations. The Supreme Court of our State in the case of Collins v. Mills, 198 Ga. 18, quotes Bouvier's LAW DICTIONARY in defining "Farming" and "Agriculture."
"In Bouvier's Law Dictionary (1928), it is stated that agriculture, in a general sense, "is the cultivation of the ground for the purpose of procuring fruits and vegetables for the use of man and beast; or, the act of preparing the soil, sowing and planting seeds, dressing the plants, and removing crops. In this sense the word includes gardening or horticulture, and the raising or feeding of cattle and other stock.' The term 'agriculture' is at least as broad as that of 'farming,' even if not broader, as some courts have said.''
The Court, in the Collins case, also quoted from the case of Pridgen v. Murphy, 44 Ga. App. 147, wherein it was said:
" 'The word "farming,'' in its ordinary sense, signifies the cultivation of land for the production of agricultural crops, with incidental enterprises, and does not include the operation of a turpentine business, which is carried on by extracting the sap of pine trees and converting it into rosin and spirits of turpentine. Hence a person employed as a woods rider in the turpentine business is not a farm laborer within the meaning of the compensation act. See in this connection 2 C. J. 988; 25 C. J. 673; Kent v. Lane, 168 Ga. 133 (147 S.E. 61), and cit. This is true, notwithstanding the one engaged in this business is sometimes referred to as running a "turpentine farm" and the trees may be worked in groups described as "crops.'' ' See also Davis v. Macon, 64 Ga. 128 (4), 135.
"In common usage, do we not ordinarily regard farming and farm products as matters pertaining to the soil and to fields, and not to forests or timbered lands? Inquire of any farmer as to the quantity of land that he is cultivating or 'farming,' and he will probably answer solely in terms of 'cleared land.' "
"It is a cardinal rule in the construction of grants of exemptions from taxation, whether such grants be by statute or the constitution, that such exemptions should be strictly construed in favor of the public, and that nothing passes by implication." City of Columbus et al. v. Muscogee Mfg. Co., 165 Ga. 259.
Your attention is also invited to an opinion of the Attorney General of April 14, 1953, in which a question of like nature was involved. A turpentine company made application for a tax refund permit for vehicles used for plowing firebreaks. It was held that this operation was such that the equipment was not used exclusively for agricultural purposes in farm operations.
It is, therefore, my opinion that your operations, as set out in your letter, cannot possibly be construed as a "farming" operation or for agricultural purposes, so as to be eligible for the gasoline tax refund provided for as hereinabove set out.

819
TAXATION-Motor Fuel-Refunds
Gasoline used in equipment in planting, growing and cultivating pine trees not subject to refund of gasoline tax.
July 5, 1954 Mr. R. L. Boyett, Director Gasoline Tax Refund Unit Department of Revenue
This is to acknowledge receipt of your letter in which you pose the question, "whether or not Armstrong Cork Georgia Tree Farms, Inc. of Macon, Georgia would be entitled to refund on gasoline taxes under the law, when gasoline is used in equipment in planting, growing and cultivation of pine trees." This question can best be answered by an examination of some of the cases which help us to adequately interpret the phrase "agricultural purposes in farm operations" which is found in Section I (1) of Code Section 92-1403, this being a codification of the Gasoline Refund Tax Act of 1946.
In Collins, Tax Collector, et al. v. Mills, et al., 198 Ga. 18, where the petitioners sought an injunction to prevent enforcement of an execution for taxes on certain lumber on the basis that the lumber was a farm product exempt by amendment to the Constitution and Act of the Legislature putting said amendment in force and saying that the General Assembly shall "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 next year after their production.", it was said, in ruling that lumber was not a farm product:
"In common usage, do we not ordinarily regard farming and farm products as matters pertaining to the soil and to fields, and not to forests or timbered lands? Inquire of any farmer as to the quantity of land that he is cultivating or 'farming,' and he will probably answer solely in terms of 'cleared land.'
"While in recent years there may have developed a tendency among owners of land to plant and cultivate young saplings and to care for them as they grow, somewhat after the manner of agriculture, for the purpose of producing trees that may finally be suitable for timber, yet is this not an exception, and such a rare exception that it would not ordinarily be suggested to mind by the term farming?"
"In Pridgen v. Murphy, 44 Ga. App. 147 (160 S. E. 701), it was said: 'The word "farming,'' in its ordinary sense, signifies the cultivation of land for the production of agricultural crops, with incidental enterprises, and does not include the operation of a turpentine business, which is carried on by extracting the sap of pine trees and converting it into rosin and spirits of turpentine... .''
In interpreting Section 67-1107 of the Code of 1933, the court said in the case cited above:
"... The act of 1933, providing that the words 'crops' and 'growing crops,' as used in statutes relating to bills of sale, mortgages, and liens to secure debt, should include and embrace 'fruits and products of all plants, trees and shrubs, whether the same be annual or perennial plants, trees, and shrubs.' Ga. L. 1933, p. 128, Code, Sec. 67-1107. The act of 1939, declaring that 'the planting, growing, cultivation, harvesting, and marketing of trees and the fruits and products thereof shall be considered and treated under the laws of Georgia as an agricultural pursuit.' Ga. L. 1939, p. 240 (Ga. Code Ann., Sec. 67-1107).

820
"None of these statutes could enlarge the meaning of the phrase 'farm products' as it appeared in the constitutional amendment of 1912; nor did any of them deal or purport to deal with taxation, or exemption from taxation. Accordingly, none of them can be accepted as determining that lumber is a farm product, for the purposes of this case...." Able counsel for Armstrong Cork Georgia Tree Farms, Inc. in his attached letter tries to justify the above-cited decision on the bases that the court was dealing with the interest of a constitutional amendment, but if the court would not enlarge Section 67-1107 to include lumber as a "farm product" for taxation or exemption from taxation, I cannot see how that section can be enlarged to construe planting, growing and cultivating pine trees as an agricultural pursuit to entitle the above corporation to a refund under the Gasoline Tax Act. Your attention is also invited to an opinion of the Attorney General of April 14, 1953 in which a question of like nature was involved. A turpentine company made application for a tax refund permit for vehicles used for plowing fire breaks. It was held that this operation was such that the equipment was not used exclusively for agricultural purposes in farm operations. It is to be noted that "it is a cardinal rule in the construction of grants of exemptions from taxation, whether such grants be by statute or the constitution, that such exemptions should be strictly construed in favor of the public, and that nothing passes by implication." City of Columbus, et al. v. Muscogee Mfg. Co., 165 Ga. 259. It is therefore my opinion that the Armstrong Cork Georgia Tree Farms, Inc. would not be eligible for a refund of the gasoline taxes paid by them on gasoline consumed in the equipment used in their operation.
TAXATION-Motor Fuel-Refunds (Unofficial) Gasoline used to operate machinery for the purpose of extracting sand
or clay is not used for "agricultural purposes" and tax paid thereon not subject to refund under motor fuel tax refund provisions of Georgia Code.
June 9, 1955
Honorable Joseph B. Duke This is to respond to your letter of May 11, 1955 in which you request an
unofficial opinion from the office of the Attorney General representing the Department of Revenue as to whether your client, who has three power units which he uses for pumping jobs in connection with the operation of a sand pit, could by using gasoline in such units be entitled to a refund of the gasoline tax on such fuel. You further request our opinion as to whether another client who uses a shovel operated by gas at a clay hole in the extraction of clay would be entitled to a refund of the gasoline tax on the gasoline used in such operation.
In my opinion, neither taxpayer in the above two situations would be entitled to a refund. The Motor Fuel refund provisions are found in Georgia Code (1951 Supplement) Section 92-1403 (I) (Acts 1946, p. 19) and permit a refund to any person who purchases gasoline in quantities of twenty-five gallons or more if he uses "said gasoline in operating tractors or other farm equipment used exclusively for agricultural purposes in farm operations." Subsection (d) of Section (I) of Code Section 92-1403 (1951 Supplement) further provides that said refund of gasoline tax paid must be "used in farm machinery and equipment ... such rna-

821
chinery or equipment having been used exclusively by the applicant in plowing, planting or harvesting farm products or for grinding, pumping, and other farm uses and used on agricultural property owned, leased or operated by the person using such equipment."
Clearly the equipment above referred to by you in use by your clients does not appear to be operated exclusively in farming and agricultural purposes and used by the farmer on his own property.
TAXATION-Motor Fuel-Refunds Officers' Club on United States military reservation is one which is
strictly controlled and regulated by United States Government, and must be considered a governmental instrumentality and is exempt from the Georgia Motor Fuel Tax.
December 31, 1954
Mr. V. M. Womack, Director Motor Fuel Tax Unit Department of Revenue
You request an opinion concerning the applicability of the motor fuel tax upon Officers' Clubs and Messes, and if such tax is applicable, is there a provision for the refund of the tax to the Officers' Club or Mess which has been collected in error?
It appears to be well settled that the United States Government in exercising its constitutional powers, is immune from taxation. McCulloch v. Maryland, 4 Wheat. 316 at 427; Mayo v. United States, 317 U. S. 441; 63 Sup. Ct. 1137. A State may not by taxation burden or impede the United States in the exercise of its delegated powers, and as a general rule, it may be stated that activities of the Federal Government are free from regulations by any State. Spector Motor Service v. O'Connor, 340 U. S. 602; 71 S. Ct. 508. Mayo v. United States, supra.
Although the Officers' Club is a non-appropriated fund activity of the United State Army, it is still an organization which is strictly controlled and regulated by the United States Army, and as such must be considered as a governmental instrumentality exempt from paying this particular tax.
The problem of a refund to the Officers' Club is somewhat more complicated. Section 92-1418 (a) of the Georgia Code provides as follows:
"In the event it shall appear to the Comptroller General that any taxes, interest, or penalties imposed by this Chapter have been erroneously or illegally collected from any distributor, the Comptroller General shall certify the amount thereof to the Governor of the State, who shall, if he approves, draw his warrant for such certified amount on the Treasurer of the State in favor of such distributor. Such refund shall be paid by the Treasurer of the State to such distributor forthwith from funds collected by the State under this Chapter." It may be noted from the above-quoted section that a refund is only provided when taxes have been erroneously or illegally collected from a distributor, and this section makes no provision for a refund to the consumer. Section 92-8436 (a) provides:
"There is hereby appropriated from the proceeds of every tax and license imposed by law a sum sufficient to refund to taxpayers any and all

822
such taxes which may be determined to have been erroneously or illegally assessed and collected from such taxpayers under the laws of Georgia, whether paid voluntarily or involuntarily and interest thereon at the rate of six per cent per annum from the date of payment of same to the State Revenue Commissioner. Such refunds shall be drawn from the Treasury on warrants of the Governor issued upon itemized requisition showing in each instance the person to whom the refund is to be made, the amount thereof and the reason therefor." It would seem from the section above that the Officers' Club as a taxpayer would be entitled to a refund of the taxes paid, inasmuch as Section 92-1403 (c) of the Code (Annotated Supplement) specifically indicates that this tax is actually a levy on the consumer and the distributors and retailers are merely agents of the State for collection of this tax. It is, therefore, my opinion that the Officers' Club is entitled to a refund as a consumer-taxpayer under Section 92-8436 (a) since the payment of said gasoline tax by the Officers' Club was illegally assessed and collected from said taxpayer. It is suggested that the Officers' Club in question be notified that in future purchases of motor fuel, they should submit a federal exemption certificate when purchasing gasoline.
TAXATION-Motor Fuel-Refunds
Refunds of gasoline tax can be made only under the law presently in effect, no matter when rules upon which the refunds are based were made.
July 6, 1955
Honorable T. V. Williams Commissioner of Revenue
You request my official opinion whether, after July 1, 1955, you are restricted, in making refunds to motor fuel retailers and allowances to motor fuel distributors, to the limitation prescribed in the amendment to the "Motor Fuel Tax Act" approved June 24, 1955, irrespective of the fact that the sales at retail or collection of motor fuel taxes by the distributors took place prior to July 1, 1955, the effective date of this amendment.
It is my opinion that you are restricted in making these refunds and allowances to the limitation prescribed by this amendment irrespective of the fact that the sales at retail or collections of motor fuel taxes took place prior to July 1, 1955, the effective date of this amendment, for the following reasons:
These refunds and allowances are matters of legislative grace and the retailers and distributors have no vested right thereto. They involve expenditures of State funds and depend, in final analysis, on a specific appropriation of State funds for such a purpose at the time claims are made therefor. Maynard v. Thrasher, 77 Ga. App. 316. This is to say, that the State's obligation to make these payments arises not upon the rendition of the services to which they attach, but upon the existence, at the time claim is made, of an appropriation out of State funds for payment.
What is true with regard to an appropriation of State funds to make these payments would seem to apply equally to your authorization to determine the amount of these payments before certification to the State Auditor for payment. That is, that your authorization depends upon the law as it exists at the time these payments are claimed and not the law as it existed at the time the services were rendered to which they attach.

823
Moreover, statutes g1vmg effect to legislative grace are to be strictly construed in favor of the State and against the claims of beneficiaries.
Accordingly, it is my opinion that effective July 1, 1955, you are authorized by the General Assembly to grant claims for refunds to retailers of motor fuels only to the extent of "two per cent (2o/o) of the first five and one-half cents per gallon" and to allow to distributors only "one per cent (1%) of the first five and one-half cents per gallon," irrespective of the fact that sales at retail and collection of the motor fuel taxes may have taken place prior to July 1, 1955.
TAXATION-Municipal Corporations-Authority (Unofficial) A municipality has no right to levy an ad valorem tax on intangible
property covered by the Intangible Property Tax Act.
May 26, 1954
Honorable Whitfield R. Forrester You request my opinion as to whether or not the City of Cordele can levy an
ad valorem tax on intangible property located within the municipality for the year 1954.
The Intangible Property Tax Act, approved December 22, 1953 (Ga. Laws, 1953, Nov.-Dec. Sess., p. 379), provides in Part I, Section 13 as follows:
"The ta:lr required by this Act to be paid on account of such long term notes secured by real estate, and ad valorem upon short term notes secured by real estate, shall be exclusive of all other taxes thereon, and such intangible property shall not be taxed in any other manner by the State, or any county or municipality of the State, nor shall the owner or holder thereof be required to pay any other tax thereon: Provided, that nothing herein shall be construed to exempt any such owner or holder from income taxes otherwise due on account of income derived from such property." In view of the above provision of the Intangible Tax Act, I am of the opinion that no municipality in Georgia has a right to levy ad valorem tax on intangible property covered by the Intangible Property Tax Act.
TAXATION-Municipal Corporations-Authority (Unofficial) Town of Rocky Ford is bound by provisions of Code Section 92-4101 lim-
iting tax that may be levied by a municipality, provided its charter contains no provision to contrary.
February 28, 1955
Judge Pat H. Johnston Justice of the Peace, Rocky Ford, Ga.
I wish to acknowledge receipt of your letter of February 21, 1955, in which you request my opinion as to whether or not Code Section 92-4101 as Amended, which is as follows:
"Tax over one-half of one per cent prohibited-No municipal corporation shall levy or collect for the ordinary current expenses of said corporation, except as hereinafter provided, any ad valorem tax upon the property within said corporation, exceeding one-half of one per cent upon

824
the value of said property, any charter of said corporation to the contrary notwithstanding: Provided, that the provisions of Sections 92-4101 to 92-4104 shall not apply to the City of Savannah and the City of Augusta or the city council of Augusta and the Town of Bartow, Cities of Millen, Patterson, Blackshear, Warrenton, and Cedartown." applies to the town of Rocky Ford, Georgia. This Code Section applies to every incorporated municipality in the State of Georgia except those named therein and those municipalities which have changed the limitation imposed therein in their charters. The Supreme Court of our State decided this question in the case of the City of Waycross et al v. Tomberlin et al, 146 Ga., p. 504, and in the case of the City of Cochran v. Langfair, 139 Ga., p. 249. Under the above decisions, the limitations expressed in the preceding section would apply to Rocky Ford provided the Charter of Rocky Ford contains no provision to the contrary.
TAXATION-Municipal Corporations-Occupational Tax (Unofficial) A municipality cannot tax a county official in performance of his official
duties.
February 9, 1954
Honorable Marson G. Dunaway, Jr. You inquire if the City of Cedartown is authorized to impose a professional
license fee for the year 1954 upon the Polk County Surveyor, Mr. Warner Lowry. Generally speaking, the power to require a license and to impose license or
excise taxes is vested in the State and extends to any business, occupation or privilege. However, this power may be delegated by the Legislature to a political subdivision of the State.
In 1937 the Georgia Legislature granted a charter to the City of Cedartown (Ga. Laws 1937, p. 1595), Section 42 of which provides that the city commission "shall have full power and authority to require any person, firm, company or corporation, whether resident or nonresident, of said city, who may engage in, prosecute, or carry on, or who is engaged in prosecuting or carrying on any trade, business, calling, vocation or profession in the corporate limits of said city by themselves, or their agents, to register their names, business, calling, vocation or profession annually, ... and to require said person, company or corporation to pay for said registration and for license to prosecute, engage in or carry on any business, calling, or profession, such amount as the commission may provide by ordinance, not to exceed two thousand ($2,000.00) dollars."
A county surveyor is a duly elected official of a county and as such is charged by law with the performance of certain specified duties (See Ga. Code of 1933, Annotated, Sec. 23-1108). As such official his fees are fixed by law.
In most instances county surveyors do private work in addition to their official tasks. If such is the case with your county surveyor, it is believed that the City of Cedartown is within its authority in requiring a license fee. However, if Mr. Lowry performs only the work required of him by law as county surveyor, it is doubtful that the city is authorized to impose a license tax upon him.

TAXATION-Penalties-Disposition (Unofficial) The 10 per cent penalty placed on property which is not returned by a
taxpayer becomes the property of the county, and neither the State nor a Board of Education is entitled to a portion thereof.
September 22, 1954
Honorable Frank H. Pierce You state: "The County Board of Education and the County Board of Commis!iioners of Roads and Revenues of Richmond County have had a perennial problem presented to them each year when the audits are made of the County and of the County Board of Education. I h~ve discussed with both the Board of Education and the County Commissioners getting a ruling from you as to what disposition should be made of the monies which are received from the 10 per cent penalty for property which is put on the tax digest by the Board of Assessors which is unreturned by the taxpayer. "Code Section 92-6913 contains the following provision: " 'In all cases where unreturned property is assessed by the board after the time provided by law for making tax returns has expired, the board shall add to the amount of State and county taxes due a penalty of 10 per cent, except that if the principal sum of the tax so assessed is less than $10 in amount, the board shall add to the amount of State and county taxes a penalty of $1. The penalty herein provided shall be collected by the county tax collector or the county tax commissioner and in all cases paid into the county treasury and remain the property of the county.' "Does this mean what it says, that the county is entitled to these penalties without regard to the Board of Education or the State?" In my opinion the 10 per cent penalty provided in Code Section 92-6913 shall
be collected by the county tax collector and paid into the county treasury and remains the property of the county. No part of the penalties provided in this section go to the Board of Education or to the State.
TAXATION-Penalties-Disposition (Unofficial) The 10 per cent penalty received on taxes for failure to file a return is the
property of the county.
July 12, 1954
Mr. W. G. Howard You state: "Since I am new in the Tax Collector's office I would like to get a ruling from you on just how the 10 per cent penalty on taxes is paid out at the end of the month. It is my understanding that this is divided between the State, county and county school. Please advise me if this is correct. "I am paying out to the State, county and school the amounts I am due them up t~ this date and holding. the $14.16 penalty money until I receive this ruling from you."

826
Code Section 92-6913 contains the following provision: "In all cases where unreturned property is assessed by the board after
the time provided by law for making tax returns has expired, the board shall add to the amount of State and county taxes due a penalty of 10 per cent, except that if the principal sum of the tax so assessed is less than $10 in amount, the board shall add to the amount of State and county taxes a penalty of $1. The penalty herein provided shall be collected by the county tax collector or the county tax commissioner and in all cases paid into the county treasury and remain the property of the county." You will observe from the above-quoted Code Section that the 10 per cent penalty on tax fi. fas. is to be paid into the County Treasury and remain the property of the county.
TAXATION-Penalties-Extent (Unofficial) Ten per cent penalty imposed for failure to file tax return covers both
State and county taxes, including county-wide school tax.
August 15, 1955
Honorable W. G. Howard Tax Collector, Oglethorpe County
This is in response to your letter of August 8, 1955 in which you request my opinion as to wnether or not the penalty of 10 per cent for failure to file tax returns as provided for in Code Section 92-6913 shall be 10 per cent of the State and county taxes or shall include State, county and county-wide school tax.
The particular question propounded in your letter with reference to Code Section 92-6913 has not been decided by our appellate courts. This Code Section deals with the duties of county boards of tax assessors and provides that it shl:lll be their duty to diligently investigate and inquire into the property owned in the county for the purpose ofascertaining what property, real and personal, is subject to taxation and to require its return for taxation.
In my opinion it was the intention of the Legislature in enacting this Code Section to provide a penalty of 10 per cent which would cover all State and county taxes, including county-wide school tax. It is my information that this interpretation has been placed upon Code Section 92-6913 by the county officials of this State.
TAXATION-Railroads All. property owned or operated by a railroad is returned to the State
Revenue Commissioner for assessment, not local authorities, even though the property is leased for non-railroad purposes.
Apl'il 28, 1955
Honorable Clarence G. Campbell, Director Property Tax Division, Department of Revenue
You request an official opinion on the following question: "The Southern United Ice Company leased from the Atlantic Coast
Line Railroad Company certain lands and improvements located on Haynes Street, City of Atlanta, all of the property, both real and personal being owned by Atlantic Coast Line Railroad Company. The City-County

827
Board of Assessors has taken the position that this property is not railroad property and should be locally assessed by the City-County Board of Tax Assesors and not by the Commissioner of Revenue. I request your opinion as to whether or not this property should be assessed for taxation by the Commissioner of Revenue or by the City-County Board of Tax Assessors." Section 92-5902 of the Georgia Code Annotated is as follows:
''All persons or companies owning or operating railroads, street railroads, suburban railroads, or sleeping cars in this State; all persons or companies, including railroad companies, doing an express, telephone, or telegraph business (except small telephone companies, or persons doing a telephone business, whose capital stock or property is of less value than $5,000); all persons or companies doing a gas, water, electric light or power, hydro-electric power, steam heat, refrigerated air, dockage, cranage, canal, toll-road, toll-bridge, railroad-equipment, or navigation business, through their presidents, general managers, owners, or agents having control of the company's offices in this State, shall be required to make annual tax returns of all property located in this State to the Comptroller General; and.the laws now in force providing for the taxation of railroads in this State shall be applicable to the assessments of taxes on the businesses above stated."
It will be observed that the above Code Section provides that all persons or companies owning or operating railroads are required to make annual tax returns of all property located in this State to the Comptroller General.
The Supreme Court of our State, in the case of Georgia Railroad Company v. Wright, 125 Ga. 589, discusses in detail the legislative history relative to the assessment and collection of taxes on the property of railroad companies. The court in this case held that all railroad property, whether devoted to railroad purposes or not, should be returned by the railroad company to the Comptroller General and assessed by him for taxation. I am of the opinion that under the laws of this State a railroad must return for taxation all of its property (whether devoted to railroad purposes or not) to the State Revenue Commissioner, who makes the assessment, and that local political subdivisions have no authority to assess railroad property for taxation.
This opinion is based upon Code Section 92-5902, herein quoted, and the leading case on the subject, Georgia Railroad Company v. Wright, 125 Ga. 589, cited above, together with the provisions of Chapters 92-26, 92-27 and 92-28 of the Code of Georgia and also the cases of Staten v. Savannah, Florida & Western Railway Co., 111 Ga. 803, and Garrison v. Toccoa Electric Power Co., 177 Ga. 850.
TAXATION-Returns-Failure to File (Unofficial) Where no tax return is filed, the Board of Tax Assessors have the right
to place the property on the digest, and it is not necessary to give any notice to the taxpayer.
July 12, 1954
Mr. John R. Rogers You request my op1mon as to whether or not Code Section 92-6913, which
provides for the Board of Tax Assessors to place unreturned property on the digest and which also gives the Board the right to add to the amount of State

828
and county taxes due a penalty of 10 per cent, requires that the board give the taxpayer notice of their action.
This section does not provide for any notice to the taxpayer and, in my opinion, no notice is required where property has not been returned for taxation.
TAXATION-Returns-Information (Unofficial)
Tax returns filed with the State Revenue Commissioner are confidential, and he may not furnish the information therein to local tax officials, except where there is a specific provision of law so directing.
March 16, 1954
Honorable Joseph R. Cumming You ask for my opinion as to whether the city authorities are precluded by
law from having access to sales tax reports filed with the Department of Revenue under the Georgia Retailers' and Consumers' Sales and Use Tax Act.
It is provided by Section 92-8414 of the 1933 Code of Georgia (Supplemental Pocket Part) that:
"The information secured by the Commissioner incident to the administration of any tax shall be confidential and privileged and neither the Commissioner nor any member or members of his staff shall divulge or disclose any such confidential information obtained from the department's records or from an examination of the business of any taxpayer to any person other than the Commissioner or members of his staff, or to an officer of the State or local government entitled in his official capacity to have access thereto; or to the taxpayer; provided that the Revenue Commissioner may furnish such confidential information to the appropriate tax or legal official of another State, territory or country or of the United States Government if the office or officer of said State, territory, or country makes its own records available to the Revenue Commissioner of Georgia; provided, further, that furnishing such information to any other State, territory, country, or the Federal Government shall not be deemed to change the confidential character of such information; ..."
It is my opinion that the above-quoted section limits the Revenue Commissioner to furnishing the appropriate tax official of local governments with information which the local official is entitled to have access to by law, and that the Revenue Commissioner may only furnish other tax information to the tax or legal officer of another State, territory, country, or to the United States Government. It is my feeling that the giving of the information by the Revenue Department to local tax officials is limited to actual provisions in the law, such as Section 84-2021 which authorizes the State Revenue Commissioner to furnish municipalities with information as to the payment of income taxes by veterans who seek exemption from peddlers or business licenses.

829.
TAXATION-Returns-:-lnformation (Unofficial)
The Tax Receiver can ask a taxpayer only those questions which appear in the tax return, but if further information is desired to determine assessment, the return may be referred to the County Board of Tax Assessors.
May 10, 1954
Honorable Royace B. Hinson Tax Receiver
You ask the following questions:
"1. Can I demand that an applicant give me the purchase price of land and all improvements to date wheh making an application for homestead tax exemptions?"
"2. Can I. demand that an applicant give me the amount of lien against the property, and to whom this lien is due?"
The only questions that the taxpayer in making his return is required to answer are the questions in the tax return. However, it would be proper for you to request the taxpayer .to give you other information if you thought it would be helpful to you in the assessment of his property for taxation.. In the event you. question the taxpayer's return and desire to obtain additional information which the taxpayer failed to furnish, it would be proper for you to refer the return to the Board of Tax Assessors of your county. They have the authority to investigate the return and under Section 92-6914 of the 1933 Code of Georgia, Annotated they could obtain the information you outlined in Questions 1 and 2. Section 92-6914 of the 1933 Code of Georgia, Annotated, is as follows:
"The board shall have authority to issue subpoenas for the attendance of witnesses and to require by subpoena duces tecum the production by any person, firm or corporation of any books, papers or documents which may contain any information material upon any question relative to the existence or to the liability of property subject to taxation, or the question of the identity of the owner of property liable to taxation, or other matters necessary to the proper assessment of taxes lawfully due the State or county. Such subpoenas or subpoenas duces tecum may be issued in the name of the board, signed by any one or more members of the board, or by the secretary thereof, and served upon a taxpayer or witness or any party required to produce documents or records five days before the day upon which any hearing by the board of tax assessors is scheduled, at which the attendance of such party or witnesses, or the production of such documents is required. If any witness subpoenaed by any such board of county tax assessors, as authorized by this section, shall fail or refuse to appear, or shall fail or refuse to answer questions propounded, or shall fail or refuse to produce any books, papers or documents required to be produced by an order of such board, except upon a legal excuse which would relieve such witnesses of the obligation to attend as witnesses or to produce such documents before the superior court, if lawfully required to do so, such person shall be guilty of contempt and shall be cited by said board to appear before a judge of the superior court of such county, and such judge shall have the same power and jurisdiction to punish such person for contempt and to require and compel the giving of such testimony or the production of such books and records, as in cases of contempt committed in the presence of the court and as in cases pending in such court."

830
TAXATION-Sales and Use Tax-Admission Feea (Unofficial) Charges for admission to fishing rights in a private pond are subject
to sales tax and should be paid by purchaser.
October 21, 1955
Mr. G. L. Dickens, Sr. This will acknowledge receipt of your letter of September 13, 1955, in which
you request an opinion of the Attorney General as to whether charges made by you and Mr. B. H. Yarbrough for fishing rights in a fish pond, owned by you and Mr. Yarbrough, are subject to the 3 per cent sales tax.
The Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1931, p. 360 et seq), as amended by the Acts of 1953, imposes a tax at the rate of 3 per cent on the sale at retail of tangible personal property and services taxable under the Act. Section 3 (C) 1 (c) of that Act relating to the definition of the words "retail sale" or "sale at retail" defines, among other things, the sale of tickets, fees or charges made for admission to or voluntary contributions made to places of amusement, sports or entertainment. It is my opinion that this provision embraces the situation outlined in your letter where you make lump sum. charges for the right to fish for a period of six months or a year at a time. The imposition of these taxes, of course, is not against you except as collector of the taxes, but is really against the persons purchasing the fishing rights and should be added by you to the charges collected from them and remitted to the State.
TAXATION.....o-Sales and Use Tax-Admission Fees (Unofficial) Green fees or admission fees to golf course are subject to sales tax,
although no ticket or item of tangible personal property is issued. Equipment and fertilizer for maintenance of golf course is also subject to sales tax.
February 15, 1955
Mr. Adie N. Durden, Jr. This will acknowledge receipt of your letter of February 10, 1955, in which
you request my unofficial opinion upon the following questions: Is the 3 per cent sales tax applicable to greens fees paid by persons
playing golf at the municipal golf course in Dougherty County which is operated by the American Legion; in that the golfers receive no ticket or item of tangible personal property for the benefit of playing, but merely sign a register.
Are purchases of equipment, fertilizer and other items used in the maintenance of the golf course subject to .sales tax? Section 92-3403a, sub-section C (1) (c) of Code of Georgia Annotated 1954 Supplement defines a retail sale or a sale at retail as follows:
"Sales of tickets, fees or charges made for admission to or voluntary contributions made to places of amusement, sports, or entertainment, including billiard and pool rooms, bowling alleys, amusement devices, musical devices, theaters, opera houses, moving picture shows, vaudeville, amusement parks, athletic contests, including wrestling matches, prize fights, boxing and wrestling exhibitions, football and baseball games, skating rinks, race tracks, public bathing places, public dance halls or any other place at which any exhibition, display, amusement or entertainment

831
is offered to the public or place or places where an admission fee is charged, together with charges made for the operation of coin-operated musical devices and other such coin-operated amusement devices and charges made for participation in games and amusement activities." For the purpose of the tax imposed by this Act, these terms shall include but shall not be limited to the above quoted Section. The Sales. and Use Tax Act imposes a tax liability upon the sale fee or charge made for admission to or contribution to places of amusement, sports, or entertainment and does not contemplate the issuance of a ticket or an item of tangible personal property for the benefit of playing as a necessary element for the imposition of the tax. It, therefore, can only follow that the amount paid as greens fees by the golfers is subject to the 3 per cent sales tax. In answer to your second question, the items purchased in maintaining the golf course are tangible personal property which are not purchased for resale and not being exempt by any section in the Sales and Use Tax Act must naturally be considered subject to the 3 per cent sales tax.
TAXATION-Sales and Use Tax-Agriculture (Unofficial) A feed mill purchased out of state to do service work for farmers in
Georgia is subject to the use tax.
February 27, 1956
Mr. C. J. Faison You state that you have recently purchased a portable feed mill to do service
work for farmers, that this machine was purchased out of the State and that no sales tax was paid on the sale to the state wherein the machine was purchased, and ask if you are supposed to pay a tax to the State of Georgia on the purchase of this machine under the Georgia Retailers' and Consumers' Sales and Use Tax Act of 1951 (Ga. Laws 1951, p. 360) as amended.
Section 4 of this Act, codified as Code Section 92-3405a, provides: "On all tangible personal property imported, or caused to be imported
from other States or foreign country, and used by him, the 'dealer' as thus defined, shall pay the tax imposed by this Chapter on all articles of tangible personal property so imported and used, the same as if the said articles had been sold at retail for use or consumption in this State. For the purposes of this Chapter, the use, or consumption, or distribution, or storage to be used or consumed in this State of tangible personal property shall each be equivalent to a sale at retail, and the tax shall thereupon be immediately levied and collected in the manner provided herein: Provided, there shall be no duplication of the tax in any event. (Acts 1951, pp. 360, 369.)" It, therefore, appears that you are subject to this tax unless you fall within some other exemption prescribed by the Act. In this regard Section 3 (c) 2 (b), codified as Code Section 92-3403aC (2) (b) prescribes an exemption for "fertilizer which is applied to land for the growing of crops, seed or insecticides used for agricultural purposes, or feed for livestock and poultry." The portable feed mill, to which you refer, obviously does not fall within this exemption, and I know of no other exemption that would relieve you of this tax.

882
TAXATION-Sales and Use Tax-;-Agriculture (Unofficial) Farmer is subject to sales and use tax as purchaser of binder or baler
twine.
June 14, 1955
Mr. C. R. Mason In your letter of June 10, 1955 you ask the question whether a farmer is
subject to the sales and use tax as purchaser of "binder or baler twine." Of course the sale of all tangible personal property is taxable under the
Georgia Retailers' and Consumers' Sales and Use Tax Act unless specifically excluded in the Act. There does not appear to be an exemption in the Act which exempts or purports to exempt a farmer's purchase of binder or baler twine, whether purchased for his own use or whether included in the price of baling or harvesting done under contract. Moreover, in construing any taxing act, the claimant of an exemption from the tax has the burden of showing the clear application of an exemption to the claimant.
TAXATION-Sales and Use Tax-Application Georgia Sales and Use Tax imposed upon the consumer, and not upon
the retailer or dealer.
February 2, 1954
Mr. Charles D. Redwine, Commissioner State Revenue Department
Pursuant to your request of me for an official opmwn on the meaning and application of Section 12 (a) of the Georgia Sales and Use Tax which became effective April 1, 1951, the language of this section being as follows:
"The privilege tax herein levied, measured by retail sales shall be collected by the dealer from the purchaser or consumer. Notwithstanding any other provision, it is the purpose and intent of this Act that the tax imposed hereunder is, in fact, a levy on the purchaser or consumer of the tangible personal property or services described in this Act, and the levy on dealers as specified is merely as agent of the State for collection of said tax. Therefore, notwithstanding any exemptions from taxes which any dealer may now or hereafter enjoy under the constitution or. laws of this or any other State, or of the United States, such dealer shall collect the tax imposed hereunder from the purchaser or consumer and shall pay the same over to the State Revenue Commissioner as herein provided." It appears to me that the legislative intent is clearly stated and unambiguous and imposes the tax upon the consumer and not upon the retailer or dealer. This conclusion is even more forcibly substantiated by the following .language appearing in Sec. 92-3414 (a):
"Notwithstanding any other provision, .it is the purpose and intent of this Chapter that the tax imposed hereunder is, in fact, a levy on the purchaser or consumer of the tangible personal property or services described in this Chapter, and the levy on dealers as specified is merely as agent of the State for collection of said tax.". You are at liberty to transmit this opinion to any interested taxpayer.

833
TAXATION-Sales and Use Tax-Assessment
(a) Ten days notice must be given prior to the making of an assessment under the Sales Tax Law.
(b) No notice is necessary prior to the issuance of a ft. fa. under the Sales Tax Law.
November 10, 1955
Honorable Albert Dozier, Director Sales & Use Tax Unit, State Dept. of Revenue
This will acknowledge receipt of your request for an official ruling of the Attorney General on the procedure to be followed by your department in making assessments, issuing ft. fas. and levying them against delinquent taxpayers or dealers under the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act. Specifically you request instructions as to whether the law requires the rendition of any notice to the taxpayer or dealer prior to the making of an assessment and any notice prior to the issuance and levy of a fi. fa., and if so, what.number of days prior to acting in these respects should the notice be given.
Two pertinent provisions of the law are called to my attention. The first of these is Section 18 (a) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Code Ann. Suppl. Sec. 92-3432a). The second is Section 29 of the Act of January 3, 1938 (Ga. Laws 1937-38, Ex. Sess., p. 77, 93) as codified in Georgia Code Annotated Supplement, Sec. 92-8431, which reads as follows:
"In all cases in which the Commissioner is required by law to provide an opportunity for protest, the license fee shall become final if no written protest is filed by the taxpayer with the Commissioner within 30 days of the date of such notice. For the purpose of this section, said notice shall be deemed to have been given if written notice is deposited in the mails registered and addressed to the taxpayer at the last known address of such taxpayer. If no such record is on file said notice shall be by personal service."
The first question to be considered is whether the provisions of the abovequoted law are applicable to the Georgia Retailers' and Consumers' Sales and Use Tax Act, and whether the procedure set forth in the quoted Code Section must be followed in the assessment and collection of delinquent sales taxes. It will be noted that this section begins: "In all cases in which the Commissioner is required by law to provide an opportunity to protest, ..." It is thus manifest that the provisions of this law are applicable only to those cases where the law requires the Commissioner to give the taxpayer an opportunity to protest the assessment. The Georgia Retailers' and Consumers' Sales and Use Tax Act does not contain any requirement that the taxpayer be given an opportunity to protest. I, therefore, conclude that the General Assembly did not intend that the procedure embodied in this law should be applicable to sales taxes.
Section 18 (a) of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides that ten days notice in writing shall be given to the dealer requiring him to appear before the Commissioner or his assistant with such books, records, papers, etc., relating to the business as the Commissioner may require. It further provides that such notice shall be given in all cases where the dealer fails to make or file a return, or renders a false or fraudulent return or otherwise fails to comply with the provisions of the Act. Section 18 (b) authorizes the Commissioner to make an assessment if such dealer fails to make any return or refuses to permit an examination of his books, records or papers and fails to appear and answer ques-

834
tions relating to the sale, use or consumption of tangible personal property or services taxable under the Act. The wording of this Section is broad enough, and I so construe it, to require that in all cases where for any reason whatever the Commisisoner or the Department of Revenue shall determine that a dealer has failed to make or file a return or has rendered a false or fraudulent return or has otherwise failed to comply with the provisions of the Act, the dealer should be given ten days written notice to appear before the Commissioner or his assistant and to produce such books, records and papers relating to the amount of tax due as the Commissioner may deem pertinent and required to give testimony relating to such :failure to comply with the provisions of the Act and that only after such ten days notice may an assessment be made. The purpose of this notice and hearing is dual. First it is primarily to afford the taxpayer or dealer with an opportunity to be heard and give evidence relating to the amount of the tax due and his compliance with the law; and secondly to give the Commissioner an opportunity to acquire such additional information relating to the violation as may be made available to him in such hearing before finally assessing additional taxes.
Under the provisions of Section 18 (b) of the Act (Ga. Code Ann. Suppl. Sec. 92-3432a) the Commissioner is authorized to make an assessment based upon such information as may be available to him if the dealer fails to make a return or to permit an examination of his books, records, etc., or fails to appear and answer questions pursuant to the Commissioner's notice as provided for in Section 18 (a). Construing this section (18) in its entirety, I think it is manifest that the Legislature intended that in any case where the dealer fails to file a return or to appear in response to the ten days notice or, having appeared fails to produce records showing the true amount of the tax due, the Commissioner is authorized after the expiration of the ten days notice in the case where the dealer fails to appear or immediately after the hearing if the dealer does appear, to make an assessment of any tax found to be due based on the best information available to him.
It is interesting to note, and I think significant of the legislative intent that Section 18 (a) makes no reference to a mere failure to pay the tax. as constituting a basis for the notice and hearing provided for in that section. To my mind this omission, when read with the wording of Section 18 (b), (c) and (<Hand Section 19 of the Act (Ga. Code Ann. Suppl., Sec. 92-3432a-3434a) makes it plain that after assessment of additional tax by the Commissioner under the provisions of Section 18 (a) or after the failure of the taxpayer to pay the tax when due, the Commissioner may immediately issue a fi. fa. for its collection.
In its very nature, of course, the issuance and levy of a fi. fa. is a delinquency procedure. No fi. fa. is ever issued until a taxpayer or dealer has become delinquent in the payment of the tax due. Assessment must always precede the issuance and levy of a fi. fa., and when the fi. :fa. stage is reached in the proceedings to collect the tax it makes no difference how the assessment was made. A taxpayer or dealer is delinquent when he fails to remit the tax within the time provided by law (on or before the 20th day of the month next succeeding the taxable period, Sec. 19 of the Act, as amended) and after the amount of the tax due has been ascertained either by self-assessment of the dealer or as the result of an assessment by the Commissioner under the procedure provided for in Sections 18 (a) and (b), the issuance and levy of a fi. fa. becomes immediately in order. This. is shown by the wording of the first two sentences of Section 19 of the Act (Ga. Code Ann. Suppl. Sec. 92~3434a), as amended, which provide as follows:
"The tax imposed by this Chapter shall for each month become delinquept on the 20th day of each succeeding month. The State Revenue Com-

835
mission~r is empowered and it shall be his duty when any tax becomes delinquent under this Chapter, to issue a fi. fa. for the collection of the tax, interest and penalty from each delinquent taxpayer...." See in this connection the ruling made in the case of Georgia Railroad Co. v. Wright, 125 Ga. 589 (21) where it was said at the top of page 592 that, "A tax execution may be lawfully issued whenever the time fixed by law for the payment of the tax has expired." In the case of sales and use taxes the time fixed by law for the payment of the taxes is the 20th day each succeeding month. The taxes are delinquent on the 21st day of such succeeding month if they have not been paid and it is the duty of the Commissioner to issue a fi. fa. at that time or at any time thereafter when they have been assessed. I, therefore, conclude that after assessment of the tax by the Commissioner no notice need be given the taxpayer of intention to issue a fi. fa. nor does the law require any waiting period before issuing and levying the fi. fa., but the fi. fa. may be issued and levied immediately after such assessment.
TAXATION,_,.Sales and Use Tax-Barter Transaction (Unofficial) The Georgia Sales Tax applies to any transfer of title or possession,
including that accomplished by barter.
March 4, 1954
Mr. W. M. Sowell You ask if a merchant is entitled to charge sales tax against a farmer who
exchanges a bucket of eggs or a bushel of potatoes for bacon or a sack of flour, without any cash being involved.
The Georgia Retailers' and Consumers' Sales and Use Tax Act (Sec. 92-3402a, Ga. Code, Ann.) imposes the collection of a tax, at the rate of 3 per cent, upon every person who engages in the business of selling tangible personal property at retail. The tax is imposed upon the sales price of the item sold. The statute, Section 92-3403a, subsection B, Georgia Code, Annotated, in defining "sale," states:
" 'Sale' means any transfer of title or possession, or both, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever of tangible personal property for a consideration, ..." The transaction which you describe appears to be one of trade or barter on the part of the merchant and he should collect a sales tax on the transaction.
TAXATION-Sales and Use Tax-Cigars and Cigarettes (Unofficial) Sales tax is applicable only to that portion of the purchase price of
cigars and cigarettes which does not include the State excise tax.
February 21, 1956
Mr. James T. Smith You request the advice of the Attorney General regarding any ruling made on
the applicability of sales tax to the purchase price of cigars and cigarettes. You state that the applicability of sales tax to the purchase price would seem to violate the inhibition against double taxation.

836
You did not further specifically refer to the particular problem you have in mind, but I suppose you have reference to the applicability of the sales tax to the Federal manufacturers' excise tax and the Georgia retailers' excise tax. The .Georgia Retailers' and Consumers' Sales and Use Tax Act provides that the Federal retailers' excise tax shall not be included in the sales price for the purpose of computing the tax, provided such retailers' excise is separately billed to the cqnsumer. I do not believe that this exclusion would apply to the Federal manufacturers' excise tax, and, for this reason, I believe that the sales tax should apply to the purchase price or sales price of cigars and cigarettes including the Federal manufacturers' excise tax.
However, since the Georgia Retailers' excise tax is, in effect; separately billed .to the .purchaser, since it is included on each package in the form of a stamp affixed thereto, I believe Jhat it would probably be in order not to include this tax in the sales .price for the purpose of computation of the sales tax.
TAXATION-Sales and Use Tax-Civil Defense (Unofficial) Atlanta Civil Defense area organization is exempt from sales ta:lC.
April 2, 1954
Honorable E. R. Jackson You request a ruling regarding the payment of Georgia sales tax by the
Atlanta Metropolitan Area of Civil Defense. Section 86-1801 et seq. (Ga. Laws, 1951, p. 224) creates the Department of
Civil Defense within the Department of Public Defense of the State and provides for the establishing of local civil defense organizations. Section 86-1809 (b) (1) authorizes each political subdivision of the State .to appropriate funds for materials and supplies for local civil defense purposes. If the Atlanta Metropolitan Area of Civil Defense is created under the authority of the section above referred to and is. supported and maintained by local taxation as part of the city and/or county government, it is an integral part of a local political subdivision of the State and is exempt from the sales tax on all purchases for civil defense purposes .under the provisions of Section 92-3403aC (2) (d) which provides that the term "sale at retail" shall not include: "(d) Sales which a State would be without power to tax under the limitations of the Constitution of the State or the United States, together with sales to. the State of Georgia, any county or municipality of said State."
TAXATION-Sales and Use Tax-Coin-Operated Machines (Unofficial) The sales tax is imposed upon a person placing a coin into a coin-operated
machine, and also upon any supplies which the owner may buy for the machine.
November 9, 1954
Honorable Harold S. Willingham This will acknowledge receipt of your letter in regard to the amendment
passed at the January-February Session, 1953, of the General Assembly which placed salils tax on charges for using coin-operated amusement devices.
You state that it is your understanding that this section was on the gross

837
receipts of the coin-operated machine and therefore a tax should not be collected on supplies such as needles, records, etc., purchased by the owner. or operator of the machine.
The amendment (Ga. Laws 1953, Jan.-Feb. Sess., p. 192) is an amendment to Section 3 (c) of the Sales Tax Act wherein the term "retail sale" or "sale at retail" is defined. By including within the definition of these two terms the charges made for operating a coin amusement device, a tax is levied upon the person who places the coin in the machine. In other words, by this definition a retail sale is made at the time the coin is deposited in the machine. This is not a tax upon the owner of the machine but rather a tax upon the person who places the coin therein.
Therefore, in the case of supplies, etc., for the machine, there would be no exemption available under the Act to such supplies when purchased by the operator or owner of the machine.
In your letter you ask my views as to whether or not additional legislation is needed to clarify the taxation of these types of transactions. My feeling is that this is not double taxation and that many other enterprises similar to this are taxed in the same manner. It would be my personal view that the present law is 'lOt discriminatory toward one engaged in this type of business.
TAXATION-Sales and Use Tax-Collection (Unofficial) One who makes a casual and isolated sale and who is not engaged in the
business of selling tangible personal property is not responsible to collect the sales tax thereon.
August 25, 1954
Honorable R. S. Burns You state that you sold your private automobile some weeks ago, and desire
to know if you are liable to collect the Georgia Retailers' and Consumers' Sales Tax on this sale. The Court of Appeals of Georgia in the case of Novak v. Redwine, Commissioner, 89 Ga. App. 755, held that a casual and isolated sale made by one not engaged in the business of selling tangible personal property was not subject to this tax.
Thereby, if you were not in the business of selling automobiles there would be no liability for you to collect and make payment to the State a tax at the rate of 3 per cent on your automobile.
TAXATION-'-Sales and Use Tax-Contractors A contractor furnishing supplies to the Atomic Energy Commission is
liable for a sales or use tax on the supplies furnished to the Commission, as the contractor would be the consumer of the supplies.
March 26, 1954
Mr. Jason Weems, Assistant Director Sales and Use Tax Unit
This will acknowledge receipt of your letter of March 18, 1954 relative to the question of the liability under the Georgia Retailers' and Consumers' Sales

S38
and Use Tax Act of the Texas Company when acting as a contractor with the Atomic Energy Commission.
Under Section.9 (b) of the Atomic Energy Act of 1946 it was provided: "The Commission, and the property, activities, and income of the Commission, are hereby expressly exempted from taxation in any manner or form by any State, county, municipality, or any subdivision thereof." Under this provision of the Atomic Energy Act, the Supreme Court said in the case of Carson v. Roane-Anderson Co., et al, 342 U. S. 232 (1952) and the case of General Electric Co. v. State of Washington (decided February 8, 1954 without an opinion) that contractors furnishing supplies to the Atomic Energy Commission were not subject to payment of a sales tax on these supplies.
However, by amendment approved August 13, 1953, 67 Stat. 575, the abovequoted sentence of Section 9(b) of the Atomic Energy Act was deleted. The purpose of this amendment is best stated in the Summary of Senate Report No. 694 (Congressional and Administrative News of 1953, p. 4053) which provides:
"The purpose of this legislation is to amend the Atomic Energy Act of 1946, as amended, by striking the last sentence of Section 9 (b) thereof which, as interpreted by the courts, affords to the Commission, and its contractors, an exemption from State and local taxation broader in scope than that generally enjoyed by all other departments and agencies of the Federal Government, and to place the Atomic Energy Commission on a basis identical to that of the rest of the Federal Government with respect to such taxation."
Under this amendment it is now my opinion that a contractor furnishing supplies to the Atomic Energy Commission is liable for a sale or use tax on the supplies furnished to the Commission, as said contractor would be the consumer of said supplies. State of Alabama v. King and Boozer, 314 U. S. 1, 62 Sup. Ct. 43; J. W. Meadors & Co. et al v. State of Georgia (Court of Appeals No. 34944, decided January 30, 1954). The amendment to Section 9 (b) of the Atomic Energy Act makes my opinions of January 18, 1952 and April 22, 1952, relative to contractors furnishing supplies to the Atomic Energy Commission, inapplicable.
It may be pointed out that in the case of Kern-Limerick, Inc. v. Scurlock, decided February 8, 1954, 74 Sup. Ct. 403, the Supreme Court of the United States limited or modified its opinion in the King and Boozer case. In this case it was held that the Armed Services Procurement Act of 1947 allows the Armed Services to appoint an agent as a purchasing agent for the Federal Government and when this is done purchases by that agent are not subject to a gross receipts tax or a sales and use tax as enacted by the State of Georgia. However, it is my opinion that this case is rather limited to the fact that the Armed Services must specifically provide in the contract a purchasing agent and where this is not done a sales and use tax may be imposed on the contractor as the ultimate consumer.
I have no knowledge of the contents of the contractual or agency relationship between the Texas Company and the Federal Government, but unless the Texas Company operates as a procurement agent under contract, then the Texas Company would be liable where it acts as a contractor for goods and supplies furnished the Atomic Energy Commission.

839
TAXATION-Sales and Use Tax-Contractors (Unofficial) A contractor is liable for payment of sales tax on tangible personal prop-
erty purchased by and owned by a city, and merely furnished by it to the contractor for use in completing a contract for the city.
November 15, 1955
Honorable Carey C. Burnett You are correct in your letter of October 28, 1955 wherein you state that
House Bill No. 214, General Assembly, 1955 (Ga. Laws 1955, p. 389 at p. 399) appears to make it mandatory that the contractor pay a 3 per cent tax on tangible personal property purchased by and owned by a city and merely furnished by it to the contractor for use in completing a contract for the city.
The language of this statute amending the Georgia Retailers' and Consumers' Sales and Use Tax Act of 1951 states (Ga. Laws 1955, p. 390):
"Any person who contracts to perform services in this State and is furnished tangible personal property for use under the contract by the person, or his agent or representative, for whom the contract is performed and a sales or use tax has not been paid to this State by the person supplying the tangible personal property, shall be deemed to be the consumer of the tangible personal property so used and shall pay a use tax based on the fair market value of the tangible personal property so used and shall pay such use tax on the fair market value of the tangible personal property, irrespective of whether or not any right, title or interest in the tangible personal property becomes vested in the contractors."
TAXATION-Sales and Use Tax-Contractors (Unofficial) A contractor is liable for the sales tax on materials which he places in a
building, even though the building is erected for the State.
November 26, 1954
Mr. W. L. M. Knox This will acknowledge your letter regarding collection and payment of sales
tax on materials purchased by you in the performance of a construction contract on a National Guard Armory of the State of Georgia in Thomson. I am not familiar with this contract but I would imagine it is either a cost-plus-a-fixed-fee or a lump-sum contract.
Under our Sales Tax Act, where a contractor purchases materials and supplies for performance of a contract he is liable for a tax thereon as he is determined to be the consumer of these materials and there is no sale by the contractor to the one for whom he does work. Although the State of Georgia is exempt from payment of sales tax, a contractor doing work for the State must pay tax when he buys the supplies and even though this may indirectly result in the State paying the sales tax, no provision is made in the Sales Tax Act for relief of this type of contract.
I do not know of the directive from the Supervisor of Purchases which you speak of in your letter, but if you do contract with the State of Georgia you are Ji.,l-1... thereon for the payment of the 3 per cent sales tax.

840
TAXATION-Sales and Use Tax-Contractors (Unofficial)
Amendment to Georgia Retailers' and Consumers' Sales and Use Tax Act on March 3, 1955, being a collection statute and not a tax imposition statute, applies to sums held by a general contractor with respect to a subcontract completed prior to the amending act.
August 22, 1955
Mr. Mose Gordon Receipt of your letter dated July 23, 1955, to Attorney General Eugene Cook
is hereby acknowledged.
In your letter to the Charles R. Shepherd, Inc., for whom you were apparently a subcontractor during the year 1954, you state that, since the law, with respect to general contractors withholding 3 per cent of any payments due a subcontractor under any contract, became effective, pursuant to Rules and Regulations promulgated by the Commissioner of Revenue on May 1, 1955, you feel that Charles R. Shepherd, Inc., is not responsible under the Act to withhold the 3 per cent of the amounts due under the contract since your contract was completed on August 15, 1954.
The Act of the General Assembly, pursuant to which the regulations of the Department of Revenue, dated May 1, 1955, were promulgated, was enacted effective March 3, 1955 (Ga. Laws 1955, p. 389) and provides that in any contract "the general or prime contractor shall withhold up to 3 per cent of the payments due to the subcontractor ... to satisfy ... any sales or use taxes owed this State."
The statute does not state that the "up to 3 per cent"* shall be withheld only with respect to contracts entered into after the effective date of the Act and Regulations. It states that the "up to 3 percen" shall be withheld from the amounts due the subcontractor with respect to any contract and states that such "up to 3 per cent" shall be held by the general contractor for the benefit of the State to satisfy any sales or use taxes which may be owed the State by the subcontractor.
From your letter I gather that you apparently feel that to require the general contractor to withhold such payments, due you under a contract which was completed prior to the passage of the Act requiring such a withholding, is retroactive and perhaps contrary to law. However, the Act of March 3, 1955, amending the Sales and Use Tax Act of 1951, does not impose any new liability upon contractors for payment of the sales and use taxes. The liability of contractors for such taxes was already present. The original Sales and Use Tax Act of 1951 so provided. The Act of March 3, 1955 is merely a collection statute and simply requires the general contractor (or a subcontractor who sub-lets parts of his contract) shall be responsible for the payment of such taxes by said subcontractor in the event said subcontractor for any reason fails to pay such taxes. The said general contractor may escape this liability to the State for his subcontractor's sales and use taxes by retaining 2 per cent of any payments due the subcontractor; and the subcontractor may, in turn, relieve the general contractor of the duty to withhold this 2 per cent by furnishing to said general contractor a certificate from the Sales and Use Tax Unit of the State Revenue Department that said subcontractor has paid all said taxes due the State under the contract (S. & U. T. Reg. January 5, 1955); or said subcontractor may relieve the general contractor of such responsi~ bility and duty by furnishing to the general contractor evidence pursuant to the
*The Department of Revenue Regulations promulgated pursuant to this statute requires only 2 per cent to be withheld (See S. & U. T. Reg., January 2, 1955:)

841
Regulations that a good and sufficient "SaJes and Use Tax Subcontractor's Bond" has been furnished to the Sales and Use Tax office, or that the subcontractor has posted sufficient legal securities with the Sales and Use Tax office (S. & U. T. Reg. January 6, 1955). Fulfillment of any one of these alternative remedies will relieve the general contractor of the responsibility for the subcontractor's sales and use taxes and the duty to withhold.
Being a collection statute and not a tax imposition statute, its application to sums held by a general contractor with respect to a previously completed subcontract is not retroactive, but is valid under Georgia law.
The Charles R. Shepherd Company is, therefore, proceeding properly in stating that they must withhold the 2 per cent unless you wish to relieve them of this duty by (1) executing a bond or (2) posting legal securities, or (3) obtaining the release from the Sales and Use Tax office as provided by the Regulations issued May 1, 1955.
TAXATION-Sales and Use Tax-Contractors (Unofficial)
An independent contractor who receives a subcontract .from one who is doing work for the State, must pay sales taxes on materials purchased.
October 14, 1954
Mr. J. M. Latimer
You request an opinion on the following question:
Where Refrigeration-Appliances, Inc., submits sealed bids to the State of Georgia to obtain a contract for certain work to be done and materials furnished on a State project at Eatonton, Georgia, and after acceptance of the sealed bid by the State of Georgia, Refrigeration Appliances, Inc., subcontracted certain portions of the work to be done and materials furnished with the Armstrong Cork Company, does the subcontractor have to pay sales tax on items purchased to complete the contract even though the purchase orders of the State of Georgia have written on them, "That items herein are exempt from Georgia Sales and Use Tax?"
It has been and still is the opinion of this Department that an independent contractor who contracts for work done and materials furnished with an agency which is exempt from sales taxes under the Georgia Retailers' and Consumers' Sales and Use Tax Act is a consumer of the materials he purchases for the completion of the contract and as such a consumer must pay the sales tax on the items so purchased. The circumstances herein are of a synonymous nature with the facts and circumstances in the case of J. W. Meadors & Co. v. State of Georgia, 89 Ga. App. 583, wherein an independent contractor who had contracted with the City of Macon for the construction and improvement of the waterworks system was held to be a consumer of the materials he purchased and utilized in the performance of the contract with the exempt governmental entity, the City of Macon. Here the Court said: "Section 3 (c) 2 (d) of the Act of 1951 did not exempt the contractor from the tax because the contractor was the user and consumer for the purposes of the contract with the city and did not resell the tangible personal property to the city." The Court in the above case quotes several other cases from jurisdictions over the United States which in effect hold the same; that the independent contractor is the consumer of goods and must pay the sales tax thereon.
It is therefore my opinion that even though the purchase order contracts may state "that the items herein are exempt from Georgia Sales and Use Tax," the independent contractor purchasing the same is liable for the sales tax.

842
TAXATION-Sales and Use Tax-Contractms (Unofficial) A sub-contractor is liable for the sales tax on goods purchased and in-
stalled, where the sub-contractor i);l the ultimate consumer and is not buying for resale.
March 15, 1954
Honorable Benning M. Grice Conditioned Air, Inc. has contracted with The Georgia Gas and Appliance
Company, Inc., Dublin, Georgia, to furnish and install certain air conditioning equipment in the Citizens and Southern National Bank of Dublin. In this contract, Conditioned Air, Inc. agrees to provide all ducts, etc., plus the air conditioning unit itself, in the Bank.
It seems from these facts that the question to be here determined is whether
or not Conditioned Air sells for resale to The Georgia Gas and Appliance Company, Inc. under the contract or whether it is merely a sub-contractor for The Georgia Gas and Appliance Company, Inc.
Mr. George E. Sims, Jr. cited some five cases holding that a contractor was a consumer of goods which were installed in a building, etc. under contract with the owners of the property.- Since that time the Court of Appeals decided the case of J. W. Meadprs & Company, et al. v. State of Georgia, No. 34944, which has not yet been printed in the advance sheets. This case unquestionably holds that under the Georgia Retailers' and Consumers' Sales and Use Tax Act a contractor is the consumer of articles used in construction and does not sell for the purpose of resale. Cited in that opinion are some twenty cases, including the cases cited in the letter from Mr. Sims to you on the liability of a contractor. I am enclosing a copy of the Meadors opinion which I believe will be helpful to you in this matter.
Therefore, by construing this opinion, it seems that Conditioned Air, Inc. is the final consumer of the material installed in the Bank of Dublin and even though the contract is made with The Georgia Gas and Appliance Company, Inc., this furnishes no basis of selling for resale to the consignee. It is rather here that Conditioned Air, Inc. is an intermediate or sub-contractor who is the ultimate consumer of the materials purchased by it and is required under the Georgia Retailers' and Consumers' Sales and Use Tax Act to report monthly on such sales.
TAXATION-Sales and Use Tax-Contractors (Unofficial) Contractors deemed consumers of tangible personal property consumed
in the performance of a contract.
June 21, 1955
Dr. G. T. Hendry In your letter of May 28 you requested my legal opinion as to the tax liability
under the Georgia Retailers' and Consumers' Sales and Use Tax Act with respect to a contract entered into between you and Mr. John Henry Harris for the drilling by him of a deep water well on one of your farms, together with the installation by him of certain irrigation equipment. Mr. Harris apparently has completed the well and has furnished and installed the irrigation equipment pursuant to the contract and there now exists some question between you as to who should have paid the sales and use taxes due.
Under the Georgia Retailers' and Consumers Sales and Use Tax Act, the tax is imposed upon the consumer of the tangible personal property or services taxable under the Act. The Act as originally enacted and as specifically stated in the

843
amendment of the General Assembly of 1955 (Ga. Laws, 1955, Act No. 180, p. 289) provides that contractors are deemed consumers of the tangible personal property used in the performance of a contract, and as such must pay sales tax on all purchases of tangible personal property consumed in performing the contract. This rule has been inherent in the Georgia Retailers' and Consumers' Sales and Use Tax from its inception.
The Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended by the Act of 1955 (Ga. Laws 1955, p. 389), Section 4 (a), provides:
"Any person who contracts, either orally, in writing or by purchase order, to furnish tangible personal property and perform services thereunder within this State, shall be deemed to be the consumer of the tangible personal property, and shall pay the sales tax levied by this Act at the time of the purchase. Any per~on so contracting who fails to pay the sale~ tax thereon at the time of the purchase or the sale is consummated without the limits of this State, shall be liable for the payment of the sales or use tax; provided, however, this section does not relieve the dealer under this Act who made the sale from his liability. to collect and pay the tax on purchases by a contractor."
TAXATION-Sales and Use Tax-Contractors (Unofficial) General contractor is responsible for any sales and use tax that may
become owing by a subcontractor in the performance of a contract for the general contractor.
May 20, 1955
Mr. R. Q. West In response to your letter of May 10, 1955, a copy of the amendment to the
Georgia Retailers' and Consumers' Sales and Use Tax Act, pertaining to general contractors (H. B. No. 214, Act No. 180, Ga. Laws 1955, p. 389), is enclosed for your information. I am enclosing also a copy of the rules and regulations promulgated April 1, 1955 by the Commissioner of .Revenue, implementing the provisions of the Act.
As you will note from the Act, a general contractor is made responsible for the Georgia sales and use taxes which may become owing by a subcontractor in the performance of a contract for the general contractor. The general contractor is required by the Act to withhold, as may be required by the Commissioner, "up to 3 per cent" (and the regulations require that the amount withheld by the general contractor shall be 2 per cent) of the amounts due the subcontractor under the contract. If the general contractor does not withhold this amount, he may become liable for the payment of any taxes owing by the subcontractor under that contract. In lieu of withholding this "up to 3 per cent/' the act provides that the subcontractor may- post a good and sufficient legal bond, or legal securities, with the Commissioner of Revenue, and the general contractor will be relieved from withholding this "up to 3 per cent" when the Commissioner of Revenue shall furnish a certificate to the general contractor, disclosing that the subcontractor has posted said bond or legal securities.
A study of the enclosed regulations will, I believe, satisfy any questions 'Vhich may arise in your mind concerning the Act.

844
TAXATION-Sales and Use Tax-Contractors (Unofficial)
Subcontractor is liable for sales tax on material he provides in performance of his agreement with the general contractor.
January 17, 1955
Mr. Fred B. Davis
This will acknowledge receipt of your letter of December 16, 1954, which was forwarded to this office for reply. Your letter requested an opinion from this office concerning the liability of a subcontractor under the provisions of the Georgia Retailers and Consumers Sales and Use Tax Act, the facts of the situation being as follows:
A subcontractor from South Carolina fabricated, furnished, and erected certain structural steel which is the basic component of a warehouse building at Hunter Field Air Force Base in Savannah, pursuant to a contract with a general contractor, which was made with the Air Force by the general contractor. Upon completion of the warehouse and payment by the government to the general contractor, the general contractor withheld from the amount due the subcontractor the approximate sum of $2,000.00, on the contention that the subcontractor must pay the sales tax.
Question: Is the applicable tax payable by the general contractor or the subcontractor? As provided, a contractor is not a "de11ler," or one who habitually and constantly, as a business, deals in and sells any given commodity. State v. J. Watts Kearney & Sons, 181 La. 554, 160 So. 77. He is a consumer and user of the materials used in his labor. He never sells, resells or sells at retail, nor can he be considered a retailer. Duhame v. Sales Tax Commissioner, 65 Ariz. 268, 179 Pac. 2D 252. Contractors, whether prime contractors or sub-contractors, are consumers and users of the personal property used by them. Sub-contractors are equally subject to the tax as prime contractors. They are the user and consumer of material used on the job, and are not selling material to their prime contractors or to the owner of the building being built regardless of whether there is a lump sum or cost plus contract involved.
This point may be more clearly illustrated by the case of Volk v. Evatt (Ohio 1943), 52 N.E. 2D 338, in which the court said, "A sub-contractor engaged in the business of manufacturing, assembling, and installing heating units or furnaces in dwelling houses constructed by general contractors is liable for sales and use taxes on materials purchased and used by him in his business."
A comparison to the Volk case can be found in Riverview Housing Inc. v. Department of Revenue, (Paragraph 2350, Prentice-Hall State and Local Tax Services) where the court said, ''A prime contractor who makes advances on behalf of, and orders material for a sub-contractor is not liable for sales or use taxes on the purchases where title never vests in him (prime contractor)."
It is, therefore,. my opinion that the sub~contract.or is liable for taxes so im. posed by the Georgia Retailers and Consumers Sales and Use Tax.

845
TAXATION-Sales and Use Tax-Contracts A truck-lease contract is subject to the provisions of the Sales Tax Law.
August 8, 1955
Honorable Albert Dozier Director, Sales and Use Tax Unit
You have requested a ruling as to the applicability of the Georgia Retailers' and Consumers' Sales and Use Tax Act to a truck-lease contract.
Section 2 (c) of the Act imposes a tax at the rate of 3 per cent of the gross proceeds derived fromthe lease or rental of tangible personal property where the lease or rental of such property is an established business or part of an established business, or the same is incidental or germane to said business. This tax is collectible from the "dealer" as defined in the Act.
Section 4 includes within the definition of dealer both the lessor and the lessee of leased tangible personal property. The entire scheme of the Act, however, is that the obligation to collect and remit the tax rests, in the first instance, upon the lessor and he, in turn, is to pass the tax on to the lessee. The lessee, who is the user or consumer of the leased property, is, under Section 12, the ultimate party subject to the tax.
It is, therefore, our position that any person or company engaged in the business of leasing trucks in this State has an obligation under the Act to pay the 3 per cent tax on the gross proceeds to. the State Revenue Commissioner and to pass.the tax on to the lessee as an additional charge. The fact that a leased truck may be used outside the State of Georgia is immaterial so long as there is any use within this State.
If no use of the rented truck is contemplated within the .State of Georgia and it is not, in fact, used at all within this State, then no tax is applicable. This situation can be established prima facie by a lease agreement providing that the use of the leased truck will be entirely outside the State. Under such a lease provision, the lessor would have no obligation to collect and remit the 3 per cent tax unless at the time he knew, or reasonably should have known, that the truck would actually be used in Georgia notwithstanding the provision in the lease. If, under the above, the lessor is not obligated to collect and remit the tax, and the lessee, on his own and in violation of the lease provision, used the leased truck in Georgia, then the lessee, thereupon, would become liable for the tax at the rate of 3 per cent of the lease price and would be required to report and remit the tax directly to the State Revenue Commissioner.
TAXATION-Sales and Use Tax-Contracts 1. Sales Tax based upon the gross proceeds of rentals. 2. Sales Tax not imposed upon the payment of royalties.
August 10, 1954
Honorable Albert Dozier Director, Sales and Use Tax Unit
In your letter of May 27, 1954 you requested my official opinion as to liability for sales tax arising out of a contract entered into between the Veneer and Crate Corporation of Georgia and Stapling Machines Company. This contract provides that Veneer, hereinafter called lessee, agrees to pay a sum certain plus 4 per cent

846
of the gross sales or fair market value of all types of certain patented boxes made upon certain machines delivered by the lessor and 2 per cent of the gross sales of the fair market value of all other boxes made upon the machine, to the lessor. A study of this contract has been made and I have been unable to ascertain the value of the rental as opposed to the value of the royalty because Section 3 of the contract charges the 4 per cent and the 2 per cent payments as both rental and royalty. In order to determine the liability under this contract it is my opinion that the value of the rental must be determined and the value of the royalty must be determined.
In a Mississippi case decided by the Supreme Court of Mississippi on March 22, 1954, Stone v. Stapling Machines Co., a very similar contract with the same company was under scrutiny by this court for the purpose of liability as to sales tax. In that case the Mississippi Court said that the entire 2 per cent of the gross sales price was rental and 2 per cent of the 4 per cent for a certain classified patented box was rental and sales tax should be charged thereon. The court said:
"It is clear that the company rented its machines to the lessees in New Jersey with the understanding that they would be operated in Mississippi. Pursuant thereto, these machines were carried to Mississippi, but they remained the property of the company. The Lessees were required to pay two percent of the value of any box made on one of the machines. Clearly such two percent was an additional rental for the use of the patented machines. But, since four percent of the value had to be paid, if a patented box was made on the machines, in reason it follows that the difference between four percent on the patented boxes and two percent on any other box, that is, two percent, constituted royalty, that is, compensation for the use of the patent." I am unable to ascertain the basis of the Mississippi Supreme Court's decision and feel that they were taking the evidence produced in the lower court in this decision in arriving at this determination. I am of the present opinion that the Georgia sales tax is only based upon the gross proceeds from rentals as provided in Section 2 (c) and 3 (c) 2 (c) of the Sales Tax Act (Ga. Laws, 1951, p. 360) imd that the sales tax would not be imposed upon the payment of royalties on the manufacture of these boxes. Therefore, I suggest that you have one of your agents make a study of the rental value of these machines as opposed to the royalty value and if any question then exists as to the taxability under this contract I will be in a position to rule thereon.
TAXATION-Sales and Use Tax-Contracts (Unofficial) Use of machinery by a Georgia corporation, which machinery belongs to
a non-resident corporation and for which the Georgia corporation pays a royalty, is subject to use tax.
September 21, 1955
Honorable A. Leopold Alexander This is in reply to your letter of August 10, 1955 requesting an opinion of the
Attorney General regarding the applicability of the use tax to royalties paid by a Georgia company for the use of certain machinery.
You state in your letter that the machinery in question is owned by a corporation located in another state and is used by a Georgia corporation to fold paper

847
cartons in which the Georgia corporation places its products and sells them. You state that the Georgia corporation pays the out-of-state corporation an amount of money deemed a royalty for the use of the machinery and the amount of such payment is based on the number of cartons which it makes each month.
Paragraph (d) of Section 2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act imposes a use tax at the rate of 3 per cent of the monthly lease or rental price paid by a lessee or rentee or contracted or agreed to be paid by a lessee or rentee to the owner of tangible personal property (Ga. Code Ann. Suppl. Sec. 92-3402a (d). Section 3 (c) 3(c) of the Act defines lease or rental as used in the Act to mean the leasing or renting of tangible personal property and the possession or use thereof by the lessee or rentee for a consideration without transfer of the title of such property. Under the facts outlined in your letter, I am of the opinion that the transaction entered into between the Georgia corporation for the use of machinery owned by the out-of-state corporation is a leasing or rental of tangible personal property within the meaning of these provisions of the Act and that the payments made under the agreement between the two corporations are subject to the tax imposed by the Act.
Of course if payments were made to the lessor corporation or its agent located in Georgia, a primary duty would fall upon the lessor as a dealer under the provisions of Section 12 (a) of the Act (Ga. Code Ann. Supp., Sec. 92-3414a) to collect the tax from the lessee and remit the same to the State. However, where, as in this case, the payments are made by the lessee to a firm without the State of Georgia, the duty then falls upon the lessee under the provisions of Section 4 of the Act (Ga. Code Ann. Supp., Sec. 92-3404a (6) to remit the tax.
With regard to your suggestion that a question of double taxation might arise if the out-of-state corporation was required to pay a sales tax on this transaction in its home state, I believe that this question is settled by the provisions of Section 10 of the Act (Ga. Code Ann. Supp., Sec. 92-3412a), which provides for a credit for any like tax paid in another state. This section provides that if such like tax is equal to or greater than the tax imposed in Georgia, then there shall be no tax paid in Georgia, and that if the amount of tax paid in another state is less than that imposed in Georgia, then the amount paid in Georgia shall be reduced by the amount paid in the other state.
Section 4 of the Act provides in paragraphs 11 and 12 thereof (Ga. Code Ann. Supp., Sec. 92-3406a) as follows:
"It is not the intention of this Chapter to levy a tax upon articles of tangible personal property imported into this State or produced or manufactured in this State for export, the repairing or storage of such property in the State for use in another State, nor is it the intention of this Chapter to levy a tax on bona fide interstate commerce. It is, however, the intention of this Chapter to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this State of tangible personal property after it has come to rest in this State and has become a part of the mass of property in this State."
I do not believe that the imposition of the sales or use tax to the payments made under the facts outlined in your letter would constitute the taxing of interstate commerce within the inhibition of the commerce clause of the United States Constitution. As applied to the transactions in your case, the tax is merely a tax upon the use by the Georgia corporation of the machinery within Georgia after such. machinery has come to rest within Georgia.

848
TAXATION-Sales and Use Tax-Credit Unions Credit Unions are not subject, as consumers, to the State Tax.
June 22, 1956
Mr. Albert Dozier Director, Sales and Use Tax Unit Department of Revenue
You request my official opinion as to the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act of 1951, as amended, to credit unions.
With regard to Federal credit unions, the Federal Credit Union Act (12 U.S.C.A. 1768) provides:
"The Federal credit unions organized hereunder, their property, their franchises, capital, reserves, surpluses, and other funds, and their income shall be exempt from all taxation now or hereafter imposed by the United States or by any State, territorial, or local taxing authority; except that any real property and any tangible personal property of such Federal credit unions shall be subject to Federal, State, Territorial, and local taxation to the same extent as other similar property is taxed."
The Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Code Ann. 92-3403a C (2) (d) provides:
"The terms 'sale at retail,' 'use,' 'storage,' and 'consumption' shall not include ...
"Sales which a State would be without power to tax under the limitations of the Constitution of the ... United States ..."
Accordingly, it is my opinion that Federal credit unions are not subject, as consumers, to the Georgia Retailers' and Consumers' Sales and Use Tax Act.
With regard to state credit unions, that is, credit unions incorporated under Code Section 92-101, it seems to me that they stand in the same relationship to Federal credit unions as state banks stand to national banks. It must be noted that state banks did not enjoy an immunity similar to national banks until an amendment in 1953. (Ga. Laws 1953, Jan.-Feb. Sess., p. 182). In the absence of a similar amendment to the law it is by conclusion that state credit unions do not have an immunity similar to Federal credit unions.
In reaching this conclusion, I am not unmindful of Code Section 25-123 which provides:
"Credit unions shall not be subject to any tax except the ad valorem tax upon property imposed by the constitution of this state unless made subject thereto by express provision of law specifically naming credit unions and making them subject thereto. All ad valorem taxes against credit unions shall be assessed upon the full market value of their shares, including surplus and undivided profits, and not upon their assets, other than real estate, and the rate of such taxation shall not exceed the rate of taxation now imposed on banking corporations under provisions of Section 92-2406, Civil Code of 1933."
In State Board of Education v. Richmond County Board, 190 Ga. 588, the Supreme Court adopted the following statement:
"A legislature may prescribe rules for the construction of statutes that may be applied to statutes thereafter enacted, in the absence of a different intent expressed therein; but if a different intent appears in the subsequent statute, effect must be given to that intent, notwithstanding the statutory rule."

849
In view of the comprehensive coverage of the Georgia Retailers' and Consumers' Sales and Use Tax Act as expressed in its definition of the term "person" (Ga. Code Ann. Sec. 92-3403aA), its guarded exemption granted to Federal instrumentalities, and the apparent need for a specific provision in the law to give state banks a comparable treatment to national banks, I am of the opinion that the Act does express a different intent to that found in Code Section 25-123 and that this code section is superseded thereby.
TAXATION-Sales and Use Tax-Definitions (Unofficial) Decision defining words "consume," "consumer" and "consumption"
quoted.
January 26, 1955
Mr. Henry L. Beigel This will acknowledge receipt of your letter of January 24, 1955 in which you
request my interpretation and definition of the words "consumer," "consume" or "consumption," as used in the Georgia Retailers' and Consumers' Sales and Use Tax Act.
The above words were adequately defined in the case of J. W. Meadors & Co. v. State of Georgia, 89 Ga. App. 583 at 585, 586. The language of the court is as follows:
"As to the property bought within the State the contractor was the 'consumer,' and as to property bought without the State the contractor was the 'user,' within the meaning of the Act. In the context the words 'user' and 'consumer' are synonymous. To construe either word to mean that the sale of property which must be consumed or destroyed in the use to be taxable would virtually annihilate the Act and give it a strained and unthought-of meaning. Such construction would immediately exclude diamond rings, other luxuries, and other things not destroyed or consumed immediately in the use, from the realm of liability for sales and use taxes. It seems idle to belabor this question, but even under the narrow definition, the personal property used by the contractor was consumed and used up as personal property. In addition to defining 'consume' to mean 'to de:stroy,' 'to use up' and 'to expend,' Webster's New International Dictionary gives the following definitions: 'consumer. __1. One that consumes. 2. Economics. One who uses (economic) goods and so diminishes or destroys their utilities; opposed to producer.' 'Consumption ... 2. Economics. The use of (economic) goods resulting in the diminution or destruction of their utilities;-opposed to production. __Consumption may consist in the active use of g0ods in such a manner as to accomplish their direct and immediate destruction, as in eating food, wearing clothes, or burning fuel; or it may consist in the mere keeping, and enjoying the presence or prospect of, a thing which is destroyed only by the gradual processes of natural decay, as in the maintenance of a picture gallery.' 'Generally, it may be said that consumption means using things, and production means adapting them for use. . . .''

850
TAXATION-Sales and Use Tax-Exemption Sales to the University Hospital, Augusta, Georgia, exempt.
July 28, 1954
Honorable Albert Dozier Director, Sales and Use Tax Unit
You ask my official opinion as to whether the University Hospital at Augusta, Georgia, is liable for the sales tax on supplies consumed by the hospital.
In my opinion to you of May 4, 1951, I ruled that all hospital authorities were subject to the provisions of the Georgia Sales and Use Tax on supplies purchased by them for their use. My opinion was upheld by the Court of Appeals of Georgia in the case of City of Marietta Hospital Authority v. Redwine, 87 Ga. App. 629.
However, it is my information that the University Hospital at Augusta was not created under the State Hospital Authority (Chapter 99-11 of the 1933 Code of Georgia), but is supported by funds from the City of Augusta and managed in cooperation with the City of Augusta, by the faculty of the Medical Department of the University of Georgia. In the case of City Council of Augusta v. Butler, 50 Ga. App. 838, the question of whether an employee of the University Hospital was an employee of the City of Augusta for the purposes of the Workmen's Com~ pensation Act was raised. The Court of Appeals held that this hospital was owned, financed and generally controlled by the City of Augusta, and therefore an employee of<>the hospital was an employee of the City of Augusta.
It is my opinion that sales made to this hospital would be exempt under Section 3 (c) 2 (d) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360, 366) as being a sale to a municipality of this State.
TAXATION-Sales and Use Tax-Explosives Black powder used for blasting is subject to the sales tax.
July 5, 1955
Mr. Albert Dozier, Director Sales and Use Tax Unit
You request my official opmwn as to whether black powder, useq for the purpose of breaking stone loose in a quarry, is subject to the 8 per cent' Georgia Sales Tax.
Your question is answered, first of all, by the provisions of the Amendment to the Sales and Use Tax Act, approved February 25, 1953 (Ga. Laws 1953, Jan.-Feb. Sess., pp. 194, 195). In this Act, Section 3 (c) 2, relating to what the terms "sale at retail," "use," "storage" and "consumption" shall 'not include, and providing that these terms shall not include industrial materials for future processing, manufacture or conversion into articles of tangible personal property ,for resale where such industrial materials become a component part of the finished product, etc., was amended by adding at the end thereof the following proviso:
"Provided, however, the term 'industrial materials' shall not include natural or artificial gas, oil, gasoline, electricity, solid fuel, ice or other materials used for heat, light, power or refrigeration in any phase of the manufacturing, processing or converting process." The effect of this Amendment was to render taxable the use or consumption of fuel used in manufacturing processes, and while certain fuels were enumer-

851

ated, the proviso goes on to say "or other materials used for heat, light, power" ...

I do not thin:k there is any question in view of this amendment but that it was the

intention of the Legislature to tax all fuel used to provide power or consumed in

manufacturing processes.

'

Likewise, I do not think there is any question but that the use of black powder

or dynamite in breaking loose rock in quarries is a use of fuel within the meaning

and the intention of the Legislature in enacting this amendment. The use of

dynamite or black: powder is an application of power derived from chemical reaction

or burning of such powder or dynamite and within the meaning of the Legislature

in enacting this amendment.

There is n:o difference fundamentally in the application of black powder or

dynamite in the breaking loose of rock from the use of heat produced by gas,

coal, coke, or other means to fire brick or pottery. It all constitutes a use and

application of power for the purpose of changing or converting raw materials to a

state where they may be made more useful to potential consumers. In the case of

State of Georgia v. Cherokee Brick & Tile Co., 89 Ga. App. 235, it was held:

"Flaming natural 6r artificial gas used to produce heat, which pro duces physical and chemical changes in the raw materials used to produce brick and clay products, is not directly used in the fabri~ating, converting, or processing of those products within the meaning of Section 3 (c) 2 of the Act of 1951 (Ga. L. 1951, pp. 360, 365), so as to exempt from taxation the sale, use or consumption of such gas or gases."

Consistent with the above ruling, black powder is not directly used in converting or processing stone where it is used merely to break the stone loose. It seems to have been the intention of the Legislature, in enacting the industrial materials exemption, merely to exempt such materials as are incorporated in or become a component part of a finished manufactured product which is then itself sold, used or consumed in Georgia, which, upon the occasion of such sale, use or consumption would be taxable.
For the foregoing reasons, black powder, as referred to in your letter, is not exempt from the 3 per cent sales tax, but is subject thereto.

TAXATION-Sales and Use Tax-Federal Excise Tax Federal gallonage tax on intoxicating liquors is an excise tax, and, there-
fore, is excluded in computation of gross sales for sales tax purposes, provided that it is billed to the consumer separately from the selling price.
November 15, 1955
Honorable Albert Dozier, Director Sales and Use Tax Unit, Department of Revenue
You request my official opinion as to whether the Federal gallonage tax imposed under the provisions of the 1954 Internal Revenue Code, Section 5001, is an excise tax within the meaning of Section 22 (b) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Code Ann., Supp. Sec. 92-3441a).
Section 22 of the Act referred to in your letter provides: "Federal excise taxes shall be excluded by the Commissioner in col-
lecting the tax imposed on the sale price of any item or commodity or value admissions or services." Section 5001 of the 1954 Internal Revenue Code levies an internal revenue tax

852
~;tt the rate of $10.50 on each proof gallon or wine gallon, when .below proof, on all distilled spirits in bond, or produced in, or imported into the United States.
It will be noted that the exclusion provided for )n Section 22 of the Georgia Retailers' and Consumers' Sales and Use Tax Act merely refers in general terms to "Federal excise taxes." An excise tax is generally; held to be any indirect levy made upon the manufacture, sale or consumption of commodities. Vinup v. City of Seattle; 11 Wash..2d 630, 120 Pac. 2d 464, 465; St. Paul Fire and Marine Insurance Co.\". Reynolds, 44 F. Sup. 863, 866; Blaustein v. Levin, 176 Md. 423, 4 Atl. 2d 861, 862. An excise tax, in its original sense, was something cut off from the price paid on the sale of goods as a contribution to the support of the Government, but in its broader meaning it includes every form of taxation which is not a burden laid directly upon persons or property. Buckstalf Bath House Co. v. McKinley, 198 Ark. 91, 127 S. W. 2d 802, 806. Liquor taxes generally have been held to be excise taxes. See Scott v. State, 187 Ga. 702, 2 S. E. 2d 65, 66. Numerous other authorities to the same effect may be found in 154 Words and Phrases, Permanent Edition, 150 et seq.
It is my opinion, therefore, that the tax levied by Section 5001 of the Internal Revenue Code is an excise tax within the meaning and intention of Section 22 of the Georgia Retailers; and Consumers' Sales and Use Tax Act and would not be included in the computation of gross sales provided it is billed to the consumer separately from the selling price of the product as provided in Section 3 (c) 3 of the Act. (Ga. Code Ann. Supp., Sec. 92-3403a D(3).)
TAXATION-Sales and Use Tax-Federal Excise Tax (Unofficial)
Sales tax is not paid on Federal Excise Tax when purchasing a new car unless Federal Excise Tax is not listed separately, but simply included in gross price of car.
February 15, 1955
Mr. Frank P. Lamb This will acknowledge receipt of your letter of February 10, 1955, in which
you request our opinion of the following facts:
In purchasing a new automobile, does the 3 per cent sales tax apply to all of the difference between a trade-in and the price of the new car, including the $200.00 Federal Excise Tax? Section 2 (a) of the Georgia Retailers' and Consumers' Sales and Use Tax Act provides as follows:
"At the rate of three percent (3%) of the sales price of each item or article of tangible personal property when sold at retail in this State; the tax to be computed on gross sales for the purpose of remitting the amount of tax due the State, and to include each and every retail sale or amount of taxes collected whichever be the greater." Section 3 of the same Act provides:
"'Gross sales' shall not include the federal retailers excise tax if this excise tax is billed to the consumer separately from the selling price of the product."
Therefore, if the Federal Excise Tax is listed separately in the itemization of the price of the car, it should not be included in computing the 3 per cent sales tax; if the Federal Excise Tax is not separately indicated, the 3 per cent sales tax computation should be on the entire difference between the trade-in and price of the new car.

853
TAXATION-Sales and Use Tax-Fishing Boats The sales tax is applicable to fishing boats which do not touch at a port
outside of Georgia.
June 9, 1955
Honorable Albert Dozier Director, Sales and Use Tax Unit State Department of Revenue
You requested my official opm10n as to whether the exemption provided in Section 3 (c) 2 (c) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360, at 365-366) applies to commercial fishermen relative to the taxability of purchases such as equipment, materials and supplies used by
them on boats plying our coastal and ocean waters, leaving from a port in Georgia
a~d returning to a port in Georgia, without touching outside the State of Georgia in the interim.
Section 3 (c) 2 (c) above referred to is also contained in Georgia Code Annotated, Section 92-2402a.C (2) (c) (1951 Supp.) and reads as follows:
" (c) Gross proceeds from the sale or sales of fuel and supplies for use or consumption aboard ships plying the high seas, either in intercoastal trade between ports in the State of Georgia and ports in other States of the United States or its possessions, or in foreign commerce between ports in the State of Georgia and ports in foreign countries." It appears clear that this section is to relieve such ships as are engaged in "trade" between ports in the State of Georgia and ports in other States of the United States or its possessions and that even assuming that the fishing ships in question are "plying the high seas," such ships do not fall within the exemption provided in this section. Under the facts stated by you these ships clearly are not engaged in "trade between the ports in the State of Georgia and ports in other States of the United States or its possessions," nor are such ships "in foreign commerce between ports in the State of Georgia and ports in foreign countries." It is, therefore, my opinion that this exclusion from the Sales and Use Tax Act does not apply to the ships in question.
TAXATION-Sales and Use Tax-Hospitals (Unofficial) Hospital authorities are not exempt from the provisions of the sales
tax law.
September 20, 1956
Mr. John W. Maddox You request that I reconsider my opm10n holding that hospital authorities
created under the provisions of Code Chapter 99-15, Ga. Laws 1941, p. 241, et seq.; are not exempt from the payment of sales tax upon articles purchased by them.
You cited in your letter the case of Hall v. Hospital Authority of Floyd County, 93 Ga. App., 91 S.E. 2d 530, and also Ga. Laws 1956, p. 75, et seq., which provides for the extension of social security to instrumentalities and political subdivisions of the State. The authorities you cited in your letter, in my opinion, are not controlling on the question as to whether or not hospital authorities are subject to the provisions of the Sales Tax Act.

854
The case of the City of Marietta Hospital Authority v. Redwine, 87 Ga. App. 629, is directly in point. In this case the Court held:
"Hospital authorities created under the provisions of Georgia Laws 1941, p. 241, as amended (Code Ann. Supp., Sec. 99-1501, et seq.), are not exempt from taxation under the Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360, Code, Ann. Supp., Sec. 92-3401a, et seq.), and the court did not err in overruling the motion for a new trial."
TAXATION-Sales and Use Tax-Hospitals (Unofficial) Non-profit hospitals are subject to sales tax.
October 27, 1955
Mr. Robert F. Miller This will acknowledge receipt of your letter of October 6, 1955 in which you
request an opinion of the Attorney General as to the liability of Morrison's Food Service, Inc. for collecting sales taxes on food prepared and served by it to patients at the Pineview General Hospital, and on meals served to employees of the hospital and to outsiders.
From the facts stated in your letter, it is my understanding that Morrison's is a separate and distinct legal entity from the hospital; that it serves meals to the hospital patients on a fee basis (which I presume means at so much per meal or at so much per day, week, or month, irrespective of the number of meals prepared); that it serves regular restaurant meals to hospital employees and to the public who pay therefor as in any other restaurant or cafeteria. You further state that Morrison's has been paying the sales tax on raw food purchases. Your question is whether or not the hospital, which pays for the meals served the patients, and the employees and public generally, who pay for their own meals, should be charged the sales tax on the sales price of such meals.
It is my opinion, from the facts stated in your letter, that Morrison's is in reality purchasing food for re-sale and should not pay the sales tax on food purchases. Morrison's may obtain a certificate of exemption through the regional sales tax office, 108lh S. Jackson Street, Albany, Georgia.
Morrison's should collect the sales tax from the hospital on the sales price of meals served patients in the hospital and paid for by the hospital. The fact that Pineview General Hospital is a non-profit organization has no bearing upon its liability to pay the sales tax on its purchases. The tax is one paid by the purchaser for the consumption of the food and is collected at the time of the sale by the seller for the State.
The sales tax is collectible from the Hospital Authority for meals served patients since the food served patients is consumed by the Authority in providing the "hosPital service." See City of Marietta Hospital Authority v. Redwine, 87 Ga. App. 629.
The above-cited case holds that hospital authorities are subject to the payment of a sales tax on purchases to be used by the Hospital Authority when the authority is organized under the Act of 1941 (Ga. Laws 1941, p. 241).
So far as the sale of meals to hospital employees and the public generally is concerned, these are sales at retail within the meaning of that term as used in the Georgia Retailers' and Consumers' Sales and Use Tax Act and Morrison's Food

855
Service, Inc. should collect and remit the sales tax on the gross sales of such meals along with the sales tax collected from the hospital.
TAXATION-Sales and Use Tax-Judicial Sales (Unofficial) (a) Automobiles seized for illegal transportation of liquor are subject
to sales tax when sold. (b) When the holder of a title retention contract buys an automobile at
a judicial sale, he must pay sales tax on the "equity" purchased by him.
March 11, 1954
Honorable W. C. Huey You inquire whether or not automobiles seized 'in the illegal transportation of
liquor are subject to sales tax in cases where the automobile is purchased by a dealer who holds title to the automobile.
You state in your letter that you have beeri collecting sales tax on automobiles confiscated and sold at sheriff's sales. Automobiles so sold are subject to the tax and you are correct in collecting it.
You should also collect sales tax on the equity purchased by the holder of a title to the automobile where it is sold back to the holder of the title on order of the court in a condemnation proceeding. As an example, if the automobile is worth $1,500 and the dealer holds a retention title note for $1,000 and he pays $500 for the equity under order of court, the $500 so paid would be subject to the sales tax the same as if the property had been sold at public outcry.
TAXATION-Sales and Use Tax-Liability (Unofficial) Although a casual seller is exempt from collecting the sales tax, a buyer
from him is still liable for the tax.
September 19, 1956
Mr. Vickers Neugent You ask our unofficial opinion as to whether the following transactions are
subject to the Georgia Retailers' and Consumers' Sales and Use Tax: "A, the owner of Sleepytime Motel, sells by wilrranty deed to B the
motel real property, with the following proviso: 'ALSO: All of the furniture, furnishings, fixtures, appliances, linens, draperies, rugs, etc., used by the party of the first part in the operation of Sleepytime Motel. The road signs and advertising are included in the above description.' " You, no doubt, are familiar with a decision of the Court of Appeals in Novak v. Redwine, 89 Ga. App. 755, in which the Court held that the seller was not obligated to collect as "dealer" and remit the tax to the State where a casual or isO:lated sale occurs. It is the view of the Department of Revenue and Department of Law, however, that the purchaser, user or consumer of the tangible personal property purchased via a casual sale is not exempt from the tax. While the Court of Appeals, in the Novak case, held that a casual and isolated sale made by one engaged hi the business of selling tangible personal property at retail is not taxable under the Act and seems to exclude a casual sale in its total effect from application of the Act, it is our position that the decision

856
must, of course,, be limited to the facts of the.case. The action there was to recover a tax paid by a casual seller, that is, a seller who was not ,regularly engaged in the business of selling the tangible personal property involved in the transaction; the Court held that the Act was inapplicable to the casual seller, and he recovered the tax. The decision was not based on any statutory exclusions of isolated or casual sales from the tax, but upon the legal finding that the obligation to collect the tax at the time of sale was imposed only upon those who were regularly engaged in the business of selling the particular tangible personal property involved in the transaction. The decision, as we see it, is no adjudication whatever as to the liability of the purchaser or consumer for a use tax on the same tangible personal property.
A reading of the Georgia Sales Tax Act as a whole shows that the Act contemplates the imposition of two separate and distinct obligations:
(1) An obligation to collect the tax imposed upon sellers regul3.rly engaged in selling tangible personal property as an occupational or privilege tax, and
(2) an obligation upon the purchaser, user or consumer to pay the tax.
While Section 92-3402a speaks in terms of "a privilege or license tax upon every person who engages in the business of selling tangible personal property at retail in this State," and Section 92-3404a requires the collection of the tax, as of the moment of sale or purchase, from all persons engaged as "dealers," Section 92-3405a has the effect of reducing this obligation to merely that of collecting the tax from the purchaser or consumer, if the dealer is not himself the consumer, and Section 92-3414a confirms this in the following language:
"The privilege tax herein levied, measured by retail sales, shall be collected by the dealer from the purchaser or consumer. Notwithstanding any other provision, it is the purpose and intent of this chapter that the tax imposed hereunder is, in fact, a levy on the purchaser or consumer of the tangible personal property or services described in this c;hapter, and the levy on dealers, as specified, is merely as agent for the State for collection of said tax." (Emphasis added.)
Section 92-3415a makes the amount of the tax paid by a dealer on a sale a debt due him from the purchaser or consumer and recoverable at law in the same manner as oth~r debts, and, as amended, 1953 Ga. Laws (Jan.-Feb. Sess.), p. 197, in effect, makes the State a necessary party to any such action. Section 92-3416a requires the dealer to account to the State Revenue Commissioner for any sums collected as sales tax in excess of the prescribed rate. Section .92-3417a prohibits advertisement by the dealer, in any manner, directly or indirectly, that he will absorb all or any part of the tax or that he will relieve the purchaser of the payment of all or any part of the tax, and Section 92-9954 makes a violation of this prohibition a misdemeanor. Finally, Section 92-3425a compensates dealers for their services in making collection of the tax as agents for the State at a statutory rate of 3 per cent of such collections. The only logical conclusion to be drawn is that the Georgia sales tax is basically a tax t1POn the consumer.
In view of the duality of the obligations imposed by the Act, it becomes obvious that any determination of exemptions from the application of the tax to be complete must go on to determine whether the exemption is as to
(1) merely the obligation to collect, or
(2) merely the obligation to pay the tax, (3) or to both.

857
The Nov:ak case, confined to its facts as it must be, cannot be taken to do more than merely exempt a casual seller from the obligation to collect the tax. This leaves open the question whether the purchaser is not nevertheless still liable for the payment of the tax directly to the State as a user or consumer? Or, where the statute clearly reflects the legislative intention that the incidence or impact of the tax be upon the user or consumer, will the user or consumer be relieved by showing that his seller had no obligation under the Act to collect the tax?
TAXATION-Sales and Use Tax-Military Reservations (Unofficial) Gross receipts derived from operation of music machines located on a
military reservation are subject to sales tax.
July 1, 1955
Mr. Maurice Steinberg In your letter you ask whether the Georgia Sales Tax is applicable to the
gross receipts derived from the operation of music machines located on a military reservation.
An amendment to the Georgia Retailers' and Consumers' Sales and Use Tax Act in 1953 (1953 Georgia Laws, Jan.-Feb. Sess., p. 193), I think clearly imposes the tax upon "charges made for the operation of coin-operated musical devices." I feel sure that you are aware of this amendment, and that your question really is whether the fact that these machines are located on a military reservation takes their gross receipts out from under the Act.
Under Section 12 of the Act, it is clear that the tax is a levy on the purchaser or consumer of the entertainment vended by these machines. It appears, therefore, that the important question is not where these machines are located or the entertainment consumed but who purchases the entertainment.
I assume from the facts stated in your letter that the military personnel who purchase and enjoy this entertainment do so as private individuals. Military personnel as individuals enjoy no immunities from State taxation except such as are specifically enacted by Congress. I know of no such Federal legislation applicable to the situation under discussion. It is, therefore, my opinion that the gross receipts from these music machines are subject to this tax.
TAXATION-Sales and Use Tax-Military Reservations Taxicab fares and sales of tangible personal property on military reser-
vations are subject to Georgia sales tax.
March 4, 1955
Honorable T. V. Williams, Commissioner Department of Revenue
You ask the following questions: "1. Where a taxicab company operates taxicabs both in the City of
Augusta and in or on the reservation at Camp Gordon, Georgia, and where it operates such taxicabs on trips to and from Augusta and the Camp Gordon reservation, and where a large percentage of the trips operated by it originate on the Camp Gordon, Georgia, reservation and terminate on

858
said reservation, such trips being operated entirely on said reservation, are the charges for the trips beginning and ending on the reservation and operated entirely within the limits of the reservation subject to the 3 per cent Georgia Sales Tax?
"2. Are the trips which originate on the Camp Gordon reservation and terminate outside the reservation, and those which originate outside the reservation and terminate inside the reservation subject to the 3 per cent sales tax?
"3. Are sales of tangible personal property to individuals consummated within the boundaries of the Camp Gordon reservation subject to the 3 per cent Sales and Use Tax?
"4. Is the ruling you make with regard to the foregoing specific questions applicable in principle to taxicab fares charged and sales of tangible personal property consummated under similar circumstances on other Federal military reservations in the State?" The answer to all of the questions propounded by you is found in the wording and language of the so-called Buck Act, Public Law 819, signed by the President, October 9, 1940 (4 USCA, Sec. 105; 61 Stat. 641). That Act provided in Section 1, Paragraph (a) as follows:
"No person shall be relieved from liability for payment of, collection of, or accounting for any sales for use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area; and such State or taxing authority shall have full jurisdiction and power to levy and collect any such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area." From the foregoing it is obvious, of course, that taxicab fares charged under the circumstances outlined in your questions, and sale of tangible personal property to individuals consummated on Federal military reservations within the State of Georgia are subject to the 3 per cent sales and use tax, and I, therefore, answer each of your four questions in the affirmative. [Editor's Note: See Ops. Atty. Gen., 1950-51, p. 396, which held that Post Exchanges cannot be required to collect sales tax from their vendees.]
TAXATION-Sales and Use Tax-Municipal Corporations (Unofficial) Municipal corporations are not exempted from collecting sales tax as agent
of State when engaging in a business, charging admission and selling small items of tangible property.
July 14, 1955
Mr. James Maddox In your letter you inquire as to whether a public park, conveyed to the City of
Cave Spring by J. B. Rolater and known as Rolater Park, should be required to collect and remit the 3 per cent sales tax on admission fees to a cave located within the park, or admission fees to a swimming pool or lake located in the park and on sales Of tangible personal property made by concession stands located within the park.

859
The answer to your problem is found in the provisions of Section 12,a of the Retailers' and Consumers' Sales and Use Tax Act, which section as codified in the Georgia Code Annotated Supp., Section 92-3414a reads as follows:
"Dealer to collect tax as agent of State; tax exemptions of dealers not to apply.-The privilege tax herein levied, measured by retail sales shall be collected by the dealer from the purchaser or consumer. Notwithstanding any other provision, it is the purpose and intent of this Chapter that the tax imposed hereunder is, in fact, a levy on the purchaser or consumer of the tangible personal property or services described in this Chapter, and the levy on dealers as specified is merely' as agent of the State for collection of said tax. Therefore, notwithstanding any exemptions from taxes which any dealer may now or hereafter enjoy under the Constitution or laws o:f this or any other State, or of the United States, such dealer shall collect the tax imposed hereunder from the purchaser on consumer and shall pay the same over to the State Revenue Commissioner as herein provided." From the facts related in your letter, I do not feel that there .is any question but that the operators of the concessions located within the park should charge, collect and remit the 3 per cent sales tax on the sales price of tangible personal property and services sold by them. Insofar as the admission fees to the cave and swimming pool are concerned, the taxability of the sale of such charges is fixed by the provisions of Section 3 (c) 1 (c) of the Act as codified in Georgia Code Annotated Supp., Section 92-3403a. This section of the Act provides that sales of tickets, fees or charges made for admission to places of amusement, sports or entertainment, including, among others, amusement parks and bathing pools, shall be taxahte sales. Of course, I do not believe there is any serious contention with respect to sales of soft drinks, tobacco and watermelons.
TAXATION-Sales and Use Tax-Municipal Corporations (Unofficial) Municipal corporations are not exempted from collecting sales taxes when
they engage in business of operating a public swimming pool and charging admission.
July 18, 1955
Honorable Felix C. Williams You have pointed out that the City of Swainsboro operates a swimming pool
for the benefit of its citizens and charges an admission either on the basis of a season ticket or a, ticket for each admission, and you ask whether or not the city has an obligation to collect the sales tax on the admission price of these tickets.
You are, of course, familiar with the amendment to the Georgia Retailers' and Consumers' Sales and Use Tax Act of 1953 (Ga. Laws 1953, p. 192) which makes it clear that admissions to "public bathing places" are subject to the tax, and I take it that your question is whether this applies to city-owned and operated swimming pools.
The answer to this question, I think, is to be found in Section 12 (a) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (codified in the Georgia Code Annotated Supplement as Section 92-3414a), which reads as follows:
"Dealer to collect tax as agent of State; tax exemptions of dealers not to apply.-The privilege tax herein levied, measured by retail sales

860

shall be collected by the dealer from the purchaser or consumer. Notwithstanding any other provision, it, is the purpose and intent of this Chapter

that the tax imposed hereunder is, in fact, a levy on the purchaser or consumer of the tangible personal property or services described .in this Chapter, and the levy on dealers .as specified is merely as agent of .the State for collection of said tax. Therefore, notwithstanding any .exemp-

tions from taxes which any dealer may now or hereafter enjoy under the

Constitution or laws of this or any other State, or of the United States,

such dealer shall collect the tax imposed hereunder from the purchaser or

consumer and shall pay the same over to the State Revenue Commissioner

as herein provided." (Emphasis added.)

.

It. seems, therefore, that this is a tax upon the persons using the swimming

pool and that the city, by express provision in-the Act, is not released from any

obligation to collect this tax by reason of being a municipality.

TAXATION-Sale.s and Use-Municipal Corporations (Unofficial) Municipal corporation engaged in business of buying and distri1:mting
natural gas to customers in municipality is not exempt from paying sales and use tax.

September 16, 1955

Mr. Claude N~ Morris

Chairman, Utility Commission of Americus

In your letters of August 29 and September 14 you request the view of the

Attorney General's office as to whether the City of Americus, when the city itself

enters into the business of buying and distributing natural gas to consumers in Americus, will be required (1) to collect the Georgia sales and use tax from

each consumer of gas and remit the same to the State each month, and (2) will the City be required to pay the Georgia sales and use tax on items purchased in

connection with this function of selling natural gas?

.

Section 3 (c) 1 (a) of the Georgia Retailers' and Consumers' Sales and Use

Tax Act specifically requires the tax to be paid upon the sale of natural or artificial

gas "when made to any purchaser for purposes other than resale." (Section

92-3403a C (1) (a).) The tax is essentially a tax on the use and consumption

of the gas and falls upon the purchaser, user and consumer of such gas. The city

as the dealer and seller of such gas is merely the collecting agent of the State with respect to such taxes. Nowhere in the Act is there an exemption applying to the

sale and use of natural or artificial gas irrespective of whether the seller is a private corporation or a municipality. In this connection it should be noted that

the Legislature did provide an exemption from the tax with respect to the sale of

water by municipal corporations and other political subdivisions of the State (Sec. 3 (c) 2 (g)).

With respect to your second question, you state that the City of Americus,

in order to enter the business of selling gas, will be required to purchase a pick-up truck for the superintendent and certain office equipment, etc., in connection with

the natural gas office which will be maintained by the City. The business of

selling gas as will be conducted by the City of Americus is not a function which I

believe could be classed as a governmental function necessary to the operation of

the government of the City of Americus. As such, the purchases made by the City of Americus or used by the City in carrying on this business of selling gas

are not exempt from the sales and use tax.

861
TAXATION-Sales and Use Tax-Non-Profit Organizations (Unofficial) Non-profit making organizations are not exempt from the Georgia Sales
Tax.
October 25, 1954
Honorable Hiram A. Myhand
In your letter you pose the question: Whether a non-profit organization (such as the Lions Club) is exempt from the payment of sales taxes on items which they purchase.
Exemptions from taxation are to be strictly construed against the taxpayer, and unless the language clearly grants the exemption, it is the duty of the Courts of Georgia to rule in favor of the State. The Georgia Retailers' and Consumers' Sales and Use Tax Act makes no specific exemption for sales tax upon goods purchased by non-profit making organizations. It specifically levies a tax upon all consumers and purchasers except those who purchase for resale. Your letter indicates that your organization does not intend to resell the public address system it desires to purchase; therefore, it is my opinion that the purchase will be subject to the 3 per cent sales tax.
TAXATION-Sales and Use Tax-Non-Residents (Unofficial) Automobile purchased by non-resident from Georgia dealer is not subject
to sales tax when delivered to non-resident outside State.
November 16, 1955
Mr. Carl E. Sanders This is in reply to your letter of November 10, 1955, in which you ask whether
or not the Georgia sales tax applies to the sale of an automobile by a dealer within the State of Georgia to a person who resides outside the State of Georgia.
It has been stated in letters to private individuals as unofficial opinions, wherein specific and complete facts were given to us, that, if a dealer located in Georgia makes a sale of an automobile to a person located outside of Georgia and effects delivery outside of Georgia so that the purchaser makes no use of the automobile within Georgia except the casual or intermittent use characteristic of any nonresidents coming transiently into this State from time to time, the Georgia sales tax does not apply to such sales.
Whether this conclusion can be reached in other situations requires that the Department of Revenue, Sales Tax Unit, have before it a detailed statement of facts as to the method of doing business and to the extent of the use to be made outside this State of tangible personal property which 1is purchased in Georgia.
As to the general question, however, of purchases made in Georgia, we feel that the mere fact that some use of the property is contemplated outside this State will not justify the conclusion of non-tax liability. On the other hand, if no use of the property is ever made within this State, then the conclusion of nontaxability is, we think, correct under the law. We feel further that where tangible personal property is bought in Georgia, it is bought for some use in Georgia and this, without a clear rebuttal, is enough to justify the tax; only clear and unequivocal evidence that no use will be made of the property in Georgia calls for the conclusion that the tax is not applicable. Also, of course, it is the dealer who in the first instance is charged under the law to make this determination, and, if he fails to collect the tax when such was due from the purchaser, he is charged with the tax.

862
TAXATION-Sales and Use Tax-Out-of-State Purchases (Unofficial) Automobile purchased by taxpayer out of state and brought into Georgia
for use herein is subject to use tax.
August 15, 1955
Honorable W. H. Johnson You ask whether or not the State of Georgia has authority under the Georgia
Retailers' and Consumers' Sales and Use Tax Act to collect a use tax on automobiles purchased by Georgia residents in the State of Florida and brought by them into the State of Georgia for use therein.
The Georgia Retailers' and Consumers' Sales and Use Tax Act provides for the payment of a sales or use tax of 3 per cent. Section 4 of said Act is as follows:
"Be it further enacted, by the authority aforesaid, that the aforesaid tax at the rate of three percent (3%) of the retail sales price, as of the moment of sale, o:r three percent (3o/o) of the cost price, as of the moment of purchase, as the case may be, shall be collectible from all persons as defined herein engaged as dealers, as hereinafter defined, in the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this State, of tangible personal property...." The term "dealer," as used in this Act, is defined to mean every person "who sells at retail, or who offers for sale at retail, or who has in his possession for sale at retail, or for use, or consumption, or distribution, or storage to be used or consumed in this State, tangible personal property as defined herein." You will observe from the above-quoted sections of the Georgia Retailers' and Consumers' Sales and Use Tax Act that the Sales Tax Unit is acting within the law in collecting a use tax on automobiles purchased in Florida and used in the State of Georgia.
TAXATION-Sales and Use Tax-Penalties (Unofficial) For failure to pay full amount of sales tax, there is a penalty of 5 per cent
per month, up to an aggregate of 25 per cent.
November 1, 1954
Honorable Charles Walker You asked whether or not a penalty and interest were properly charged
against you by the Sales Tax Unit for an error made by you in your monthly report to that Unit.
It is provided in Section 16 (c) of the Georgia Retailers' and Consumers' Sales and Use Tax Act that if any dealer shall fail to pay the full amount of tax there shall be a penalty of 5 per cent per month up to an aggregate of 25 per cent. It is also provided in this section that there shall be 6 per cent interest per annum on the amount of unpaid taxes.
TAXATION-Sales and Use Tax-Personal Property (Unofficial) ArtiCles bought outside State prior to April 1, 1951 and imported into
State subsequently, but before December 22, 1953, amendment to Retailers' and Consumers' Sales and Use Tax are subject to tax.

863

May 9, 1955

Mr. Eugene A. Epting

Re: Georgia Use TaxDairypak Incorporated

This will asknowledge receipt of your letter of April 7, 1955, in which you request the Attorney General's opinion as to the applicability of the Georgia Use Tax to ten items of equipment or machinery imported or brought into the State of Georgia by the captioned taxpayer during the year 1951. In your letter you list the separate items of equipment, the date ordered on each item, the date of delivery of each item to Athens, Georgia, the month of book entry, and the cost of each item of equipment referred to. It further appears, from the information thus set forth, that the first importation into Georgia was on January 22, 1951, and the various other items of equipment were brought in during the succeeding months of 1951; the last importation being on October 17, 1951.
The Georgia Retailers' and Consumers' Sales and Use Tax Act was approved February 20, 1951, and by Section 29 of that Act, the taxes imposed thereby were made effective on and after April 1, 1951.
The answer to your particular question is found in Section 11 of the original Act which, as codified, read as follows:
"92-3413a. Use Tax not to apply to property owned, acquired, etc. prior to effective date of Chapter.-The 'use tax' shall not apply to tangible personal property owned or acquired in this State, or imported into this State, or held or stored in this State prior to the effective date of this Chapter. But, the 'use tax' will apply to all tangible personal property imported or caused to be imported into this State on or after the effective date of this Chapter, unless said property has previously borne a sales or use tax in another State equal to or greater than the tax imposed by this Chapter."
As you can see, under the provisions of this Section of the Act, the application of the use tax shall depend entirely upon the date tangible personal property was acquired in this State or imported into this State, and it was not exempt from the tax unless it was acquired in the State or imported infu this State prior to the effective date of the Act. Ownership of the property prior to the effective date of the Act was not material under the provisions of the quoted Code Section if the property was not imported into Georgia prior to the effective date of the Act. Therefore, all items of equipment listed in your letter which were delivered in Athens, Georgia, on or after April 1, 1951, were subject to the use tax.
You will note that the foregoing discussion, in all instances, is in the past tense. The reason for this is that the original Act, which was in force and effect at the time all the transactions listed by you were completed, has since been amended. This amendment added a further exemption where a taxpayer furnishes proof that the. tangible personal property imported or caused to be imported into this State was owned or acquired prior to the effective date of the Act. (See Georgia Laws 1953, pp. 378-379.) Had this later amendment been in effect as of the date of importation of the items listed in your letter, it perhaps would have given you some relief as to some of them anyway, but, since it was not, as I have said, all items imported after the effective date (April 1, 1951) were subject to the use tax.

SG4
TAXATION-Sales and Use Tax-Personal Property (Unofficial) Tangible personal property bought and used in another state prior to
enactment of Georgia Retailers' and Consumers' Sales and Use Tax Act is not subject to tax imposed by the act upon the property being brought into the state subsequent to its enactment.
June 9, 1955
Honorable W. H. Miller In your letter of April 30, 1955 which followed our telephone conversation of
the previous day, you requested an unofficial opinion from the Law Department representing the Department of Revenue as to whether your client, a Texas corporation which owned certain equipment and machinery held and used in Texas prior to 1951 (the date of the enactment of the Georgia Retailers' and Consumers' Sales and Use Tax Act) would be liable for a use tax under the Georgia Act when such equipment and machinery is moved into Georgia by the Texas corporation and installed in a branch plant in Georgia.
Section 92-3413a of the Georgia Code Annotated (1954 Supplement), which is Section 11 of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 372), as amended, states that "the 'use tax' shall not apply to tangible personal property" if said property has previously borne a sales or use tax in another State equal to or greater than the tax imposed by this Chapter or if "proof is furnished that the tangible personal property imported or caused to be imported into this State was owned or acquired prior to the effective date of this Chapter."
It is therefore my personal opinion that the use tax would not apply to property brought into this State for use by a taxpayer where such taxpayer had purchased, owned and used such property in another State prior to the inception of the Georgia Retailers' and Consumers' Sales and Use Tax Act.
TAXATION-Sales and Use Tax-Photographers (Unofficial) Discusses applicability of sales tax law to the business of a photographer.
November 14, 1956
Hon. James H. Floyd You request an opinion as to the proper manner of handling and paying the
sales tax by one engaged in general photography and portrait work. While I do not know exactly how your friend operates, it is my opinion that
he is the consumer of everything he uses in his business with the possible exception of the print paper from which finished photographs are made for sale, and that he should pay the sales tax on everything he purchases and uses with the exception of such print paper. My opinion in this regard is based primarily on the wording of Section 3 (c) (2) of the Act as amended (Georgia Code Annotated Supplement, Section 92-3403a C (2) (found on page 173 of the 1955 Cumulative Pocket Part to Book 26 of the Georgia Annotated Code). This Section provides in part:

865
"The terms 'sale at retail,' 'use,' 'storage,' and 'consumption shall not include the sale, use, storage or consumption of industrial materials for , future processing, manufacture or conversion into articles of tangible personal property for resale where such industrial materials become a component part of the finished product nor shall such terms include industrial materials, other than machinery and machinery repair parts, that are coated upon or impregnated into the product at any stage of its processing, manufacture or conversion, .."
It is my conclusion that film, developer, proof paper, and such other items of tangible personal porperty that are used by a photographer in the various stages of making a finished photograph (which is the thing sold) are not industrial materials that are "processed," "manufactured," or "converted" into another article of tangible personal property that is sold, and that such items do not become component parts of, nor are they coated upon or impregnated in the final product. However, it is also my conclusion that print paper, on which the finished photographs are made, does become a component part of the finished product within the meaning of the foregoing provision of the Act. This latter conclusion might also apply to tinting materials, if such materials are used in the business operated by your friend. It is my further conclusion that your friend should collect and remit the sales tax on the full amount of his charges for prints of photographs made and sold by him. This would include both the charge made for a single initial photograph and also any charges made for additional prints.
TAXATION-Sales and Use Tax-Religious Institutions (Unofficial) Religious institutions are not exempt from payment of sales tax. Tangible personal property purchased in Georgia to be used, consumed or
stored exclusively outside State is not subject to sales and use tax.
September 21, 1955
Mr. Harlan Houston
You have asked our unofficial opinion as to whether the substantial automobile sales made by you to Southern Missionary College, Collegedale, Tennessee, are subject to the Georgia Sales and Use Tax. You state that you receive orders periodically from the college for automobiles to be delivered to the various pastors, missionaries or other representatives of the college scattered throughout the country outside of Georgia and to some outside the United States, or to be picked up by the purchaser's representative at the factory in Michigan. You state that you collect the Georgia sales and use tax on all sales of such vehicles to representatives of the college living in this State.
The college, of course, would not be exempt from the provisions of the Georgia Sales and Use Tax Act by virtue of its being a religious institution. The Georgia Sales and Use Tax imposes a tax, collectible at the time of sale, on the purchase of tangible personal property to be used, stored or consumed in this State (Ga. Code Ann., Sections 92-3405a and 92-3406a). The tax is basically a consumer's tax,

866
that is, a tax on the purchase and/or use of tangible personal property. Therefore, it is my view that purchases made in Georgia of tangible personal property to be used or consum.ed or stored exclusively outside the State of Georgia are not subject to the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act, and dealers are not required to collect the tax from such purchasers.
TAXATION,-Sales and Use Tax-Religious Institutions (Unofficial) (1) Religious institutions are not exempt from sales and use tax on
articles purchased by them. (2) Pipe organ purchased by taxpayer from out-of-town firm as a gift
to religious institution in Georgia is subject to use tax but credit may be obtained for any sales tax paid to another State.
August 15, 1955
Mr. William H. Mewbourne This will acknowledge receipt of your letter of July 27, 1955 in which you
inquire as to the taxability under the Geor~ia Retailers' and Consumers' Sales and Use Tax Act ofa pipe organ to be purchased by your client for the benefit of a local church.
You state that your client wishes to give a pipe organ to a local church; that she has been in contact by mail with a builder of pipe organs in another State, and that she has obtained a price at which the builder will construct the organ in the other State, the cost of having it transported to Georgia, and the cost of installing it in the church here. You desire the Attorney General's opinion as to the taxability of these items of cost under the Georgia Retailers' and Consumers' Sales and Use Tax Act.
That Act levies a use tax at the rate of 3 per cent of the cost price of each article of tangible personal property used or consumed in this State (Ga. Code Ann. Supp., Sec. 92-3402a (b)). The Act further defines "cost price" as follows: " 'Cost price' means the actual cost of articles of tangible personal property without any deductions therefrom on account of the cost of materials used, labor or service costs, transportation charges or any expenses whatsoever." While Section 92-3406a indicates that it is not the intention of that Act to levy a tax on interstate commerce, that section, which is taken from Section 4 of the Act, further states that it is the intention of the Act to levy a tax on the use and consumption in this State of tangible personal property after it has come to rest in this State and has become a part of the mass of property in this State.
Based on the foregoing provisions of the Act, it is my opinion that the pipe organ if purchased by your client and brought into this State would be subject to the provisions of the Sales Tax Act and a tax at the rate of 3 per cent of the cost price of the organ, including transportation charges to Georgia, would be due. Under the provisions of Section 10 of the Act (Code Sec. 92-3412a) your client would be entitled to a credit for any sales or use tax payments made to any other State on account of the purchase of the organ.
Under the provisions of Section 3 (c) 3 (a) of the Act (Code Sec. 92-3403aE) installation charges, if separately stated, are not taxable.
Of course you know that religious institutions are not granted exemption from the payment of sales or use taxes by reason of the purchase of tangible personal

867
property for their use. The only exemption that I am aware of which relates to religious institutions is that codified as Section 92-3403aC (2) (n). That section provides that the terms "sale at retail, use, storage and consumption" shall not include sales of any religious paper owned and operated by religious institutions or denominations. This, of course, does not in any wise grant an exemption to the religious institutions for purchases made by them.
TAXATION-Sales and Use Tax-School Funds (Unofficial) If an incorporated athletic association, managed by public high school
authorities, are instrumentalities of the school board, and at least some of their financial support is derived from public funds, they are exempt from payment of sales tax.
March 13, 1956
Mr. John W. Maddox You inquire as to an unofficial opmwn respecting the applicability of the
sales tax to sales of athletic equipment to incorporated high scool athletic associations which are managed by high school authorities.
In checking over the records in this office, I do not find that the exact point to which you refer has been ruled on. In an official opinion rendered to Dr. M. D. Collins on October 10, 1955 and reported briefly on page 2 of the January 15, 1956 Bulletin of the Georgia Department of Law, the Attorney General ruled, among other things, that purchases made by public schools of school supplies and equipment would not be subject to the sales and use tax since public schools are owned and operated by the State of Georgia, the county and the municipality in which they are located. This ruling was based on the provisions of Section 3 (c) 2 (d) of the Act which exempts sales made to the State, city or county governments. In an unofficial opinion dated April 18, 1955, we referred to a situation in which an athletic fund was administered by school officials and which was contributed to by proceeds from ticket sales and by appropriations from public funds, and we stated that it was our opinion that insofar as purchases of equipment were made by such athletic associations in that situation, it made no difference whether a particular purchase was made out of funds derived from proceeds of the ticket sale or whether it was made out of funds attributable to appropriations from the public treasury, since the imposition of the sales tax to such purchases would in either case result in an increased burden on the public funds contrary to the intent of the Act.
I think that the basic purpose of the exemption was to relieve public institutions from the imposition and payment of the sales and/or use tax and that the exemption would apply if the sale is to or the use is by a public instrumentality; i.e., an instrumentality of the State, city or county. From the facts set forth in your letter, I am unable to ascertain whether or not the incorporated athletic associations managed by high school authorities are instrumentalities of the municipality or school board. If they are and at least some of their financial support is derived from public funds, then I think they would be entitled to the exemption; otherwise, not.

~68
TAXATION-Sales and Use Tax-School Funds (Unofficial) Purchase of athletic equipment and meals and lodging of students on trips,
pursuant to school athletic program paid from school funds, are not subject to sales and use tax.
April 18, 1955
Mr. W. Dean Power, Jr. This will acknowledge receipt of your letter of March 26, 1955, addressed to
the Attorney General. You request an unofficial opinion on the following facts which I quote from your letter:
"On numerous occasions students of Canton High School make trips under auspices of and at the expense of the school in connection with athletics and other school activities. On such trips the school purchases meals and lodging when necessary. My specific question is: Must the school pay the State sales tax on such meals and lodging?
"Insofar as our athletic program is concerned, we maintain for the sake of convenience a separate bank account which is handled through the superintendent's office. This account receives proceeds from admissions and activity fees paid by students. As conditions warrant, additional funds are paid into this account by the Board of Education to supplement other sources of revenue. Equipment purchased for the school's athletic program is paid for from this account as are meals, lodging, travel expenses, and other expenses pertaining to the athletic program." You further state that your "athletic fund is a school fund administered by school officials under the supervision of the Board of Education," and that "it is not to be confused with the type of fund which might be maintained by such organizations as Touchdown Clubs, Booster Clubs, etc." Upon consideration of your question, and based upon the facts stated by you, I am inclined to agree with you that the source of the money spent is immaterial, and, insofar as the funds expended in the circumstances outlined by you are public funds, they should not be burdened with the payment of State sales taxes. The fact that the expenses incurred are in connection with an athletic program makes no difference, if the expenses are bona fide in connection with a public school educational program, they are exempt from the imposition of the sales tax.
TAXATION-Sales and Use Tax-Schools
(a) Schools must collect sales tax on admissions to school-sponsored functions.
(b) Purchases made by schools of supplies for their 9wn use is iwt subject to sales tax.
October 10, 1955 Honorable M. D. Collins State Supt. of Schools, Department of Education
You have requested an official opinion regarding the liability of a local public school for payment of the sales tax (1) on admissions to school athletic games and other school-sponsored functions, and (2) on the purchase of school sup.plies and equipment.
The tax levied on admissions is provided for in Section 3 (c) 1 (c) of the Georgia Retailers' and Consumers' Sales and Use Tax Act. That section reads as follows:

869
"Sales of tickets for admission to places of amusement, sports, or entertainment, including billiard and pool rooms, bowling alleys, amusement devices, musical devices, theaters, opera houses, moving picture shows, vaudeville, amusement parks, athletic contests, including wrestling matches, prize fights, boxing and wrestling exhibitions, football and baseball games, skating rinks, race tracks, public bathing places, public dance halls or any other place at which any exhibition, display, amusement or entertainment is offered to the public or place or places where an admission fee is charged."
With reference to question (1) above, the answer is that this is not a tax against the public school system but is a tax against the purchaser and user of the entertainment evidenced by the admission ticket. The school authorities are required under Section 12 (a) of the Sales and Use Tax Act to collect this tax as agent for the State. Section 12 (a) is as follows:
"The privilege tax herein levied, measured by retail sales shall be collected by the dealer from the purchaser or consumer. Notwithstanding any other provision, it is the purpose and intent of this Act that the tax imposed hereunder is, in fact, a levy on the purchaser or consumer of the tangible personal property or services described in this Act, and the levy on dealers as specified is merely as agent of the State for collection of said tax. Therefore, notwithstanding any exemptions from taxes which any dealer may now or hereafter enjoy under the Constitution or laws of this or any other State, or of the United States, such dealer shall collect the tax imposed hereunder from the purchaser or consumer and shall pay the same over to the State Revenue Commissioner as herein provided." With reference to question (2) above, it is my opinion that purchases made by public schools of school supplies and equipment would not be subject to sales and use taxes since the public schools are owned and operated by the State of Georgia, the county and the municipality in which they are located. This conclusion is based upon the provisions of Section 3 (c) 2 (d) of the Act which is as follows:
"The term 'retail sale' and 'sale at retail' shall also not include the following: ...
"(d) Sales which a State would be without power to tax under the limitations of the Constitution of the State or the United States, together with sales to the State of Georgia, any county or municipality of said State."
TAXATION-Sales and Use Tax-Schools (Unofficial) (a) Workbooks and supplies purchased by a school and sold to students
as a convenience, are subject to sales upon the sale to the students. (b) When a school sells such items as cold drinks, ice cream, and milk,
as offered to school lunches, such sales are subject to sales tax.
March 2, 1956
Hon. H. G. Eberhardt You request a ruling of the Attorney General on the applicability of the sales
and use tax to occasional sales by the school authorities of pencils, paper, and such small items to the children, and to the sales by the school authorities to the children of supplemental material such as work books, and to lunch room sales.
As to the first of these items, you state it has long been the custom at each

870
of the schools to keep a small supply of such items as pencils and paper for the accommodation of the students; that the students sometimes purchase these items from the teacher or other school authority, but that these sales are never great and are not made for profit purposes, but are made purely as an accommodation to the students. Under the facts which you have outlined, it is my opinion that these sales are taxable sales within the meaning of the Retailers' and Consumers' Sales and Use Tax Act. As you know, the incidence of the tax is on the consumer and
not on the seller. However, l think that the proper way to handle this would be
simply for the school authority to make these purchases of supplies, not on an exempt basis, by paying the tax upon the purchase and then simply to pass the tax along to the student.
The foregoing would seem to apply with equal force to the purchase and resale of workbooks where they are always purchased for the use of the students. Such purchases should not be made under the exemption enjoyed by the public school system.
With regard to the third item, lunch room sales, you ask whether the exemption embodied in Section 92-3403ac(2)g relating to school lunches sold and served to pupils and employees of public schools would apply to such items as cold drinks, ice cream and milk which are sold from the lunch room to the student. The exemption set forth in the subsection referred to above relates to "school lunches."
As you know, in the construction of the law, taxation is the rule and exemption is the exception. It is my opinion that the items to which you refer, that is, cold drinks, ice cream, milk and the like would be exempt if included in a school lunch and not otherwise. I do not believe that there was any intention on the part of the legislature to exempt the sale of cold drinks and ice cream, for example, merely because they might happen to be sold from a school lunch room to pupils or teachers in the school. Such sales must be made as a part of a school lunch to be exempt. I realize that this view may result in difficulties of administration on the part of school officials, but I feel that this is the only possible interpretation to be placed upon the wording of the Act.
TAXATION-Sales and Use Tax-State Excise Tax (Unofficial) Unless a retailer separately states the sales price of an article and the
state excise tax thereon, both must be included in gross sales price and 3 per cent sales tax imposed thereon.
November 9, 1954
Mr. John J. Sullivan This will acknowledge receipt of your letter in regard to the sales tax on
beer where a two-cents State excise tax has b.een collected thereon. In your letter you state that you do not feel that the full 3 per cent sales tax should be collected on the entire sales price of the beer but only on the sales price minus the two-cents state excise tax.
Regulation 6, promulgated by the Commissioner of Revenue under the authority of the Sales Tax Act, provides as follows:
"There shall be excluded from the purchase price of any article or service Federal or State Excise Taxes before the calculation of the sales or use tax but such Federal or State Excise Taxes shall be excluded if and only if (1) The Federal or State Excise Tax is levied on the product as

871
sold (but shall not be excluded if it is a tax on the component parts in the series of assembly) and (2) The Federal or State Excise Tax is seperately stated." From this regulation it is apparent that unless a retailer separately states the sales price and the State excise tax thereon, both must be included in the gross sales price and 3 per cent sales tax imposed thereon.
TAXATION-Sales and Use Tax-Tire Recapping (Unofficial)
Machinery purchased for the business of recapping tires is subject to tax to be paid by user. Recapping supplies are subject to tax to be paid by consumer.
April 19, 1955
Mr. R. F. Moseley
This will acknowledge receipt of your letter of March 23, 1955, in which you inquire as to whether the use tax is payable on the purchase price of used tire recapping equipment.
The Georgia Retailers' and Consumers' Sales and Use Tax Act imposes a tax of 3 per cent of the retail sales price as of the moment of the sale, or of 3 per cent of the cost price as of the moment of purchase on the sale for use or consumption within the State of Georgia, or the use or consumption of tangible personal property within this State. The tax is imposed first as a sales tax and, as such, is collectible from the purchaser by the dealer in cases where sales are made by a person engaged in the business of selling tangible personal property at retail. In this case, of course, the dealer who collects the tax remits it to the State. In cases where the purchase or sale is made without the State or is made in the State of Georgia but no sales tax is collected, the use tax at the rate of 3 per cent is payable by the user or consumer of such tangible property.
From your letter, I am unable to ascertain the exact nature of the transaction to which you refer. If you purchased used tire recapping equipment on or after April 1, 1951 and did not pay or were not charged the sales tax thereon, you are required by the law to pay the use tax at the rate of 3 per cent of the cost price as above outlined. The case of Rawls, Inc. v. Peck, 111 N.E. (2d) 916, to which you refer, apparently was an Ohio case and was based on a particular provision of the Ohio Sales Tax Act. That provision exempts sales in which it is the purpose of the purchaser to use or consume the thing transferred directly in the production of tangible personal property for sale by manufacturing, processing, refining and mining. This provision of the Ohio seems to have been interpreted to exempt machinery, equipment and supplies used in manufacturing and in mining operations.
However, the Georgia law does not contain such a provision, but expressly states that machinery and machinery repair parts that are used directly in fabricating, converting or processing articles of tangible personal property shall be subject to the sales and use tax.
As to supplies used in your tire recapping business, the Attorney General has ruled that the purchaser in such businesses as tire recapping, the resoling of shoes and other businesses where the end result is more in the nature of a service, is thA

872
consumer and is liable to pay the sales tax on the purchase of supplies and materials used in that business.
TAXATION-Sales and Use Tax-Transportation Charges (Unofficial) Transportation charges are not deductible from price of article sold for
the purpose of computing sales tax thereon.
May 13, 1955
Mr. John Dwight Mattox This will acknowledge receipt of your letter of April 7, 1955, in which you
request an opinion o:l' the Attorney General as to whether transportation or shipping costs may be deducted from the sales price of items of personal property before computing the sales tax thereon.
Under the provisions of 3 (c) 3 (a) of The Retailers' and Consumers' Sales and Use Tax Act, sales price means the total amount for which tangible personal property is sold, including any services that are a part of the sale, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or service cost, losses, or any other expenses whatsoever. Under the use tax feature of our law, 3 (c) 3 (b) of that Act, the Legislature defined "cost price" as meaning the actual cost of articles of tangible personal property without any deductions therefrom on account of cost of materials used, labor or service cost, transportation charges, or any expenses whatsoever. The Attorney General has ruled that in the case of the sales price of an automobile where the dealer invoiced the car, stating the transportation charges from the factory separately, that such charges were, nevertheless, properly includable in the sales price of the automobile for the purpose of computing the sales tax thereon.
In view of the foregoing provisions of the law and ruling of the Attorney
General, it is my personal opinion that the transportation charges referred to in
your letter are not deductible from the price of the article sold for the purpose of computing the sales tax thereon.
TAXATION-Sales and Use Tax-Wholesale Dealers (Unofficial) Where a wholesaler sells to retailers primarily for resale, the wholesaler
is under no duty to ascertain whether a portion of the goods are used by the retailer so as to create sales tax liability.
January 13, 1954
Mr. M. H. Blackshear You state that a company is engaged in selling various paper products, includ-
ing wrapping paper, paper bags, etc., to retail merchants. These paper products are purchased by the customers of the company in the main for use as packaging material for the packaging of tangible personal property for shipment or sale. You also state that it is common knowledge that wrapping paper bought by a retail grocer for the primary intended use of packaging material may be used on occasion in small quantities for other purposes such as a shelf liner or to wrap materials and supplies for storage. You further state that it is the practice of the company to obtain the registration number for each of his customers and that you are not concerned with sales made for any purpose to a buyer who is not reg-

873
istered as a retailer and as such directly accountable to the Sales and Use Tax Unit for sales and use taxes.
You ask whether or not a wholesaler supplier such as the company which you have described has any responsibility for the collection and payment of sales taxes on these out-of-the-regular course uses. You state that you have gone on the assumption that the status of paper products as an exempt packaging material is made to pend upon the use made of the paper rather than upon its inherent nature.
Section 3 (c) 2 of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360, 365) provides in part: "The terms 'sale at retail,' 'use,' 'storage' and 'consumption' shall not include ... materials, containers, labels, sacks or bags used for packaging tangible personal property for shipment or sale."
It is my opinion that the assumption made by you that the exempt quality of the packaging material is made to depend upon its use is correct.
Regulation 2 of the Rules and Regulations promulgated by the State Revenue Commissioner provides that a dealer shall not be required to execute certificates of resale to his wholesaler or supplier on individual purchases as long as there is no change in the character of his operation and as long as purchases are of tangible personal property of the sort usually purchased for resale. It is my view that this language is applicable to such purchases as described by you.
There appears in "State Tax Review," Vol. 14, No. 52, December 31, 1953, a Commerce Clearing House publication, the following statement:
"New York's Supreme Court Appellate Divi<;ion, First Department, conceded that 'a wholesaler of products normally resold at retail would not be expected to question the purchases of retailers in the business of retailing these products,' but said that when 'the products are not normally resold or the purchaser is not a retailer and rests upon a taxexempt use of the products, the vendor may be expected to make some fair check on the contemplated use.' "The ruling in American Cyanamid and Chemical Corporation v. Joseph was handed down on December 15." This reported holding succinctly sets forth my views in the matter. It is therefore my opinion that a company such as the one described by you has no responsibility for the collection and payment of sales tax on packaging materials sold to retail merchants who in the main use such packaging material for the packaging of tangible personal property for shipment or sale.
TAX COMMISSIONERS, COLLECTORS and RECEIVERSAuthority (Unofficial)
Tax Commissioners, Collectors and Receivers are without authority to notarize documents.
March 14, 1955
Honorable W. G. Robertson You ask if a tax commissioner, tax collector or tax receiver can notarize
documents. Generally, the rules of evidence of this State require that a Notary Public or
ex-officio Justice of the Peace notarize documents and ascribe to signatures. There is no provision in our law providing for a tax commissioner, tax collector or tax receiver to notarize documents.

874
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
A local law may not constitutionally be passed, which would authorize a Tax Receiver to obtain a commission on the School Digest.
October 16, 1956 Mr. Lloyd J. Stepp
You state:
"Please advise if a local bill can be passed giving the Tax Receiver of Fannin County a Commission on the School Digest.
"If such an Act has been passed, please advise as to the County and the date same was passed. Also, advise if it can be a local bill or else."
Under the general law of this State, as set forth in Code Section 32-1401, the county board of education is charged with the responsibility of preparing a tax digest for school purposes and furnish same to the tax collector of the county.
The Supreme Court of our State in the case of Board of Education of Decatur County v. Drake, tax-receiver, 157 Ga. 8 (2), held:
"The provision for paying commissions to the county tax-collector and receiver for services rendered in connection with State and county tax, as provided in sections 1234 and 1202 of the Civil Code, that the taxreceiver shall receive the same compensation as the tax-collector for such services, does not embrace a provision for paying the receiver commissions for any services in connection with the levy of the county-wide tax for school purposes, raised under the provisions of our code of school laws."
The ruling of the Court in this case was followed in the case of Hurst, tax-receiver v. Board of Commissioners of Burke County, 157 Ga. 648.
There is no general provision of law which authorizes the payment of commissions to a tax receiver for the preparation of a school tax digest.
I am of the opinion that a local law which would endeavor to pay a tax receiver commissions for these purposes would be unconstitutional under Section 2-401 of the Constitution which is as follows:
"General laws; uniform operation; how varied.-Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law. No general law affecting private rights, shall be varied in any particular case, by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and no person under legal disability to contract, is capable of such consent."
The Supreme Court in the case of Civil Service Board of Fulton County et al. v. MacNeill, Treasurer, et al., 201 Ga. 643 (1), in construing this provision of the Constitution held:
"Laws of a general nature shall have uniform operation throughout the State, and those provisions of special acts of the General Assembly in derogation of a general law, in the absence of constitutional authority, are void." In reply to your question as to whether or not the legislature has ever passed any local act which would give the tax receiver a commission on school taxes, the only act I have been able to find on this subject is found in Georgia Laws 1953, p. 2304. So far as I have been able to determine, the validity of this act has not been determined by our courts.

875
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
An outgoing tax collector is entitled to the entire amount of costs which have accrued prior to his leaving office, but which are not paid until actually collected.
December 3, 1956
Mr. T. H. Trice You state: "I did not run for re-election. I understand that I will be entitled to one half of the commissions on all uncollected taxes that will be collected by my successor in office. At the expiration of my term of office December 31st, I will list all uncollected taxes and turn the executions over to the sheriff for collection. There will be a fi. fa. cost of 50 cents and I am wondering who will be entitled to that cost, I or the incoming tax collector. Will appreciate you giving me your opinion so that there will not be any misunderstanding as to that matter. Will appreciate you giving me your opinion." Georgia Code Section 92-8002 provides a fee to tax collectors for issuing tax
fi. fas. This section is as follows: "Fee for issuing tax executions.-Tax collectors shall be allowed a
fee of 50 cents for issuing tax executions; but no tax collector, sheriff, or constable shall receive costs on said executions, unless the same shall be collected from the defendant." It will be observed from this provision of law that the 50 cents fee for issuing tax executions accrues when the fi. fa. is issued and is payable as an item of costs when the fi. fa. is collected. Georgia Code Section 89-830 provides for the distribution of commissions on uncollected taxes between the outgoing tax collector and his successor. This code section states that it shall be his duty (that is, the incoming tax collector), as taxes are collected, to pay to the outgoing tax collector one-half of the commissions and retain for his services one-half. It will be observed that this code section does not make any provision for the division of costs which have accrued prior to the assumption of duties by the succeeding tax collector. I am, therefore, of the opinion that you would be entitled to a fee of 50 cents for issuing tax executions while you were in office, which fee would be payable when the tax fi. fa. is collected from the defendant.
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
A Tax Collector is entitled to a commission on school taxes.
March 31, 1955
Honorable Clifford H. Adams Tax Commissioner
I wish to acknowledge receipt of your letter of March 4, 1955 in which you state:
"Is the Tax Commissioner or Tax Collector entitled to the 10 per cent of the last 20 per cent on the collection of County School Taxes? I have

876
just finished an audit here and Mr. Hodge asks this question. I am not and never have taken this commission but he requested that I get your ruling on this matter. I know that I am to take the 2% per cent from the collection of these taxes and turn it over to the County, which I have done in the past. Mr. Hodges seems to think since I take it on the State and County part, why shouldn't I take it on the school also, say when I reach the 80 per cent mark."
Section 32-1106 of the Georgia Code Annotated (1951 Cumulative Pocket Part) makes provision for fees to be paid tax collectors in this State in the collection of s.chool taxes. This section is as follows:
"The county tax collector shall continue to collect unpaid county school taxes formerly levied and payable under the provisions of this section, and shall be entitled to commission of 2% per c.ent. for collecting the same. He shall pay over to the board of education all moneys collected for the schools once a month. He shall also collect all county school taxes levied under the authority of Article VIII, Section XII, Paragraph I (Section 2-7501) of the Constitution of this State, upon which collections he shall receive a commission of 2% per cent. He shall likewise pay over to the county board of education once a month, all moneys collected under such levies. In those counties where the tax collector or tax commissioner is on a salary basis the fees herein provided for shall be collected by him and paid over to the proper fiscal authorities."
You will observe from the above-quoted Code Section that the tax collector's commission on school taxes is limited to 2% per cent. School taxes are required to be paid over by the tax collector to the Board of Education once a month. Other taxes are paid over by the tax collector to the County Board of Commissioners. Section 92-5304 of the Georgia Code Annotated (1951 Cumulative Pocket Supplement) refers to taxes other than school taxes. That section is as follows:
"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 per cent. of the ad valorem net digests collected by the tax collector. On all 'taxes collected in excess of 90 per cent. of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission shall be for such taxes 10 per cent. of all such collections, irrespective of the above and foregoing schedule and rates: Provided 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 per cent. of all taxes collected in excess of 80 per cent. of the total taxes due according to the net tax digest. 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, 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 from the above Code Section that the tax commissioner is entitled to 10 per cent commission on the taxes collected in excess of 90 per cent of the ad valorem net digest,. and on 10 per cent of all taxes in excess of 80 per

877
cent according to the net tax digest in cases where the Board of Commissioners has by appropriate resolution authorized the additional commissions.
For the purpose of clarification of this question in your mind, I might. point out that the digest for school taxes is made up by the County Board of Education and is not considered as a part of the county tax digest.
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
(a) A Tax Commissioner is entitled to receive his fees on taxes collected, even though the taxes are paid after an execution has been issued.
(b) A Tax Commissioner on a salary basis is entitled to retain 10 per cent of all taxes collected over 80 per cent of the tax digest, if so authorized by the County Governing Authority.
(c) A Tax Commissioner on a salary basis must turn over to the proper fiscal authorities, the 2% per cent fee received on school taxes;
July 30, 1954
Honorable Jack B. Taylor You state: "In 1933 the offices of Tax Collector and Tax Receiver of Washington County were consolidated into the office of. Tax Commissioner, and the Tax Commissioner was placed on a salary. "In addition to his salary the Tax Commissioner has been retaining 2% per cent commissions on the collection of. local school district taxes, and 10 per cent of all collections after 80 per cent of the total digest has been collected." "When tax fi. fas. are issued, usually in January or February, all the uncollected taxes are listed and. turned over to the Sheriff for collection. The Tax Commissioner does no further collecting. As the fi. fas. are collected the Sheriff turns them over to the Tax Commissioner, who enters them in his cash book, places the money in his bank account, and distributes to the participating political entities, after deducting his commissions. "The County Commissioners would like to know if it is legal for him to retain these commissions, and would also like to know if it would be possible for the County Commissioners to authorize compensation for a Deputy Sheriff (to be appointed by the Sheriff) assigned to the tax office for the purpose of collecting delinquent taxes." The fees to be paid the tax commissioner for collecting school taxes are given
in Section 32-1106, which is as follows: "The county tax collector shall continue to collect unpaid county
school taxes formerly levied and payable under the provisions of this section, and shall be entitled to commission of 2% per cent. for collecting the same. He shall pay over to the board of education all moneys collected for the schools once a month. He shall also collect all county school taxes levied under the authority of Article VIII, Section XII, Paragraph I (section 2-7501) of the Constitution of this State, upon which collections he shall receive a commission of 2% per cent. He shall likewise pay over to the county board of education once a month, all moneys collected under such levies. In those counties where the tax collector or tax commis-

878
sioner is on a salary basis the fees herein provided for shall be collected by him and paid over to the proper fiscal authorities. (Acts 1946, pp. 206, 211.)" You will observe from this section that the tax collector is entitled to a commission of 272 per cent on taxes collected. You will also note the following language in this section, "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." Compensation in addition to their. salaries is provided for the tax collectors of this State in Code Section 92-5304 which is as follows:
"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 per cent. of the ad valorem net digests collected by the tax collector. On all taxes collected in excess of 90 per cent. of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission shall be for such taxes 10 per cent. of all such collections, irrespective of the above and foregoing schedule and rates: Provided, 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 per cent. of all taxes collected in excess of 80 per cent. of the total taxes due according to the net tax digest. In those counties where th 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, 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." From the above-quoted code section, you will observe the following language:
"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 language is explicit in providing that in any case the tax commissioner would receive 10 per cent of the tax collected over 90 per cent of the net digest with the further provision that upon the approval of the board of county commissioners the tax collector would receive 10 per cent of all taxes collected over 80 per cent of the net digest.
The fact that delinquent taxes are paid to the sheriff after an execution has been issued by the tax commissioner would not deprive the tax commissioner of the fees provided in the preceding section. While it is true that payments on the fi. fas. are made to the sheriff they are made to him because of the fi. fa. placed in his hands by the tax commissioner. The tax commissioner is1 as a matter of fact, pursuing the legal processes to collect the taxes due when he places the fi. fa. in the hands of the sheriff for a levy. Any moneys collected by the sheriff on the tax fi. fa. must be remitted to the tax commissioner. The tax commissioner would then make remittances to the fiscal authorities of the county.
I am of the opinion that the county authorities would not be authorized to appoint a.deputy sheriff and assign him to the office of tax commissioner for the purpose of collecting delinquent taxes. The tax fi. fas. are chargeable to the tax commissioner and he is the only person authorized by law to place them in the hands of the sheriff or other levying officer for collection.

879
TAX COMMISSIONERS, COLLECTORS and RECEIVERS~ Compensation (Unofficial)
(a) A Tax Commissioner is entitled to the same fees that the Tax Receiver and Collector previously received.
(b) Where the County Commissioner authorizes the Tax Collector to receive a 10 per cent fee on all taxes collected over 80 per cent of the net digest, its action binds the county until it is repealed by a later commissioner.
May 9, 1956
Honorable Harold E. Ward
You state:
"On May 6, 1952 the Commissioners adopted the following resolution: 'GEORGIA, LAURENS COUNTY. COUNTY OF LAURENS SITTING FOR COUNTY PURPOSES.
Under the Act of the General Assembly of Georgia No. 503 (House Bill No.6) approved February 21, 1951 the Tax Collector of Laurens County is hereby authorized to receive 10 per cent of all taxes collected in excess of 80 per cent of the total taxes due according to the next (net) tax digest.
May 6, 1952. COUNTY COMMISSIONERS OF LAURENS COUNTY H. S. DOMINY, CHAIRMAN'
At the 1952 session of the General Assembly there was adopted a law abolishing the offices of Tax Receiver and Tax Collector and creating the Olfi~e of Tax Commissioner which also placed the Tax Commissioner on a salary.
I would appreciate your giving me a ruling on whether or not the resolution set forth in compliance with Code Section 92-5304 allowing the Commissioner 10 per cent of all collection above 80 per cent of the digest instead of above 90 per cent would now be binding on the Commissioners of Roads and Revenues ? In 1953 the present Road Commissioners took office and I wonder if they are bound by the resolution adopted by a previous group of commissioners? Sh~uld the Tax Commissioner be receiving commissions on collections above 80 per cent or above 90 per cent or would the salary bill exclude him from any commissions?"
The resolution passed by the Board of County Commissioners of Laurens County on May 6, 1952, authorizing the Tax Collector of Laurens County to receive 10 per cent of all taxes collected in excess of 80 per cent of the total taxes due according to the net tax digest, is valid and binding upon the Board of Commissioners of Laurens County until it is repealed by the County Commissioners. The Tax Commissioner of Laurens County, under the resolution of May 6, 1952, is entitled to receive 10 per cent of all taxes collected in excess of 80 per cent of the total taxes due according to the net tax digest so long as the resolution is in effect.
The fact that the Tax Commissioner is on a salary would not deprive him of the extra compensation provided in the resolution. Code Section 92-5304, which provides for the resolution in question, contains the following language: "In those counties where the tax collector or tax commissioner is paid on a salary basis, the commission porvided for herein shall be paid to the tax collector or tax commissioner in addition to said salary."

880
TAX COMMISSIONERS, COLLECTORS and RECEJ;.VERSCompensation (Unofficial)
A Tax Commissioner on a salary basis is entitled to a commission of 10 per cent on all taxes collected in excess of 90 per cent of the total taxes due, including taxes levied to retire bonds.
November 29, 1954
Mr. R. S. Perry You request an opinion upon the following facts: Is a tax commissioner, paid
on a salary basis, entitled to 10 per cent commission in addition to his salary for collections in excess of 90 per cent of the net tax digest for collection of taxes levied and to be used to retire county bonds, and for other taxes levied and to be used to finance an agreement with local hospital authorities for care of the indigent sick of the county?
Section 92-5304 of the Georgia Code Annotated, 1951 Cumulative Pocket Supplement, provides as follows:
'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 per cent. of the ad valorem net digests collected by the tax collector. On all taxes collected in excess of 90 per cent. of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission shall be for such taxes 10 per cent. of all such collections, irrespective of the above and foregoing schedule and rates: Provided 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 per cent. of all taxes collected in excess of 80 per cent. of the total taxes due according to the net tax digest. 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, 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." The above-quoted Code Section provides a commission of 10 per cent on all taxes collected in excess of 90 per cent of the total taxes due and does not make any exception for taxes levied to retire bonds or taxes levied to provide for the sick and poor of the county. It would be my opinion that the 10 per cent commission would be payable to the tax commissioner.
TAX COMMISSIONERS, COLLECTORS and RECEIVERS-'Compensation (Unofficial)
A Tax Receiver is entitled to no commission on taxes levied for school purposes.
August 17, 1954
Mr. R. L. Arthur You inquire whether you are entitled to commissions on taxes levied for school
purposes.

881
There is no provision of law for the payment of a commission to Tax Receivers on taxes levied for school purposes. Code Section 32-1106 provides that the Tax Collector of a county shall receive a commission of 2% per cent on collections of school taxes made by him. This section makes no provision for the payment of any fees to the Tax Receiver.

TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
A Tax Receiver is not entitled to a commission on taxes levied by the Board of Education to retire bonds issued for construction of school buildings.

October 16, 1956

Mr. Henry Lee Wall

You state:

"I have your letter of October 2, enclosing opinion. I understand that I am entitled to a commission on all county taxes entered on the county digest.
"What I wanted to know is whether I am entitled to a commission on taxes levied by County Board of Education to retire bonds issued for construction of school buildings."

Under Georgia Code Section 32-1401, the county board of education is charged with the responsibility of preparing the tax digest for school purposes and furnishing same to the tax collector of the county. The Supreme Court of our State in the case of Board of Education of Decatur County v. Drake, tax-receiver, 157 Ga. 8 (2), held:

"The provision for paying commissions to the county tax-collector and receiver for services rendered in connection with State and county tax, as provided in sections 1234 and 1202 of the Civil Code, that the taxreceiver shall receive the same compensation as the tax-collector for such services, does not embrace a provision for paying the receiver commissions for any services in connection with the levy of the county-wide tax for school purposes, raised under the provisions of our code of school laws."

The Court affirmed this decision in the case of Hurst, tax-receiver v. Board of

Commissioners of Burke County, 157 Ga. 648.

Georgia Code Section 32-1106 provides for the payment of commissions to a

tax collector in the collection of school taxes. There is no provision of law which

would authorize the payment of commissions to a tax receiver in connection with

the preparation of a tax digest for school purposes or for the payment of principal

and interest on bonds issued for school purposes.



882
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
(a) A Tax Receiver is not entitled to fees for taxes levied to pay school bonds.
(b) A Tax Receiver is entitled to fees for taxes levied to pay county road bonds.
(c) A Tax Receiver cannot receive fees to which he is entitled, but which, through mistake of fact, he failed to claim at the proper time.
November 2, 1956
Mr. E. E. Norton You inquire whether you as a tax receiver are entitled to commissions on
taxes levied to pay the principal and interest on bonds issued for county-wide school purposes.
Under Georgia Code Section 32-1401, the county board of education is charged with the responsibility of preparing the tax digest for school purposes and furnishing same to the tax collector of the county. The Supreme Court of our State in the case of Board of Education of Decatur County v. Drake, tax-receiver, 157 Ga. 8 (2), held:
"The provision for paying commissions to the county tax-collector and receiver for services rendered in connection with State and county tax, as provided in sections 1234 and 1202 of the Civil Code, that the taxreceiver shall receive the same compensation as the tax-collector for such services, does not embrace a provision for paying the receiver commissions for any services in connection with the levy of the county-wide tax for school purposes, raised under the provisions of our code of school laws." The Court affirmed this decision in the case of Hurst, tax-receiver v. Board of Commissioners of Burke County, 157 Ga. 648. Georgia Code Section 32-1106 provides for the payment of commissions to a tax collector in the collection of school taxes. There is no provision of law which would authorize the payment of commissions to a tax receiver in connection with the preparation of a tax digest for school purposes or for the payment of principal and interest on bonds issued for school purposes. You also request my opinion as to whether or not you are entitled to commissions on taxes levied to pay the principal and interest on county. road bonds.
Georgia Code Section 92-3701 states: "Purposes of county tax in general.-County taxes may be levied and
collected for the following purposes: . . . "2. To pay the principal and interest of any debt of the county and
to provide a sinking fund therefor." Georgia Code Section 92-5301 provides the commissions to be allowed each receiver and collector of State and county taxes and contains the further provision that the schedule of commissions shall apply to the tax net digest for the year beginning January 1, 1953. Bonds issued to be used in the construction of roads in the county would be for county purposes, and in my opinion, taxes levied to pay the principal and interest on these bonds should be included in the net tax digest, and the tax receiver and the tax collector would be entitled to commissions on the same as is provided in Code Section 92-5301.

883
You also request my opinion on the following question:
"If a tax receiver is entitled to get commissions on the above mentioned bonds, can he collect for back years, and how far back."
So far as I have been able to find the appellate courts of our State have not decided this question, however, in my 'research on the question as to whether or not tax receivers are entitled to collect commissions on their net tax digest for previous years, I have found two code sections which appear to me to be relevant in determining the question. Code Section 23-1602 is as follows:
"Claims to be presented, when.-All claims against ~ounties must. be , presented within 12 months after they accrue or become payable, or the same are barred, unless held by minors or other persons laboring under disabilities, who are allowed 12 months after the removal of such disability." The Supreme Court of our State in the case of County of Bibb et al. v. Winslett, tax-collector, et al., 191 Ga. 860, held:
"If the taxes were in fact collected by the county authorities, as the allegations of the petition were sufficient to show as against the demurrer interposed, then it was the duty of the county authorities to pay the tax-collector the amount of commissions due on the State's share. Such duty and the amount of commissions thus payable to the tax-collector, as compensation to a public officer, both being fixed and' determined by law, it was not incumbent upon the tax-collector to present his claim within twelve months in order to prevent it from becoming barred under section 23-1602, supra. See, in this connection, Gamble v. Clark, 92 Ga. 695 (19 S. E. 54); Semmons v. Glascock County, 161 Ga. 893 (3) (131 S. E. 881); Tucker v. Shoemaker, 149 Ga. 250 (99 S. E. 865); Rogers v. Citizens Bank of Douglas, 149 Ga. 568 (5) (101 S. E. 674); Culberson v. Watkins, 156 Ga. 185 (119 S. E. 319); Freeney v. Papa, 185 Ga. 1 (4) (194 S. E. 515). The amount was not uncertain and contingent on varying acts of the officer, as in Baggett v. Barrow, 166 Ga. 700 (2a) (144 S. E. 251)." (at page 876)
It does not appear from this case that the Court considered the statute dealing with voluntary payments made through ignorance of the law as is covered in Code Section 20-1007, which is as follows:
"Voluntary payments; recovery back.-Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule." The Supreme Court in construing this section in the case of Whitehurst v. Mason, administratrix, et al., 140 Ga. 248(3), held:
"Money paid through mistake of law, with full knowledge of all the facts, cannot be recovered back, unless it is made to appear that the person to whom it was paid cannot in good conscience retain it."
The tax receiver is paid on the basis of his riet tax digest after approval by the State Revenue Commissioner. The tax receiver files his digest together with a commission voucher with the State Revenue Commissioner. Code Section 92-4901 requires the tax collector to pay to the tax receiver the amount due him

884
as commissions. This payment is made by the tax collect;or out of the first taxes collected to the tax receiver. After the tax receiver has been paid his commissions and the tax collector has deducted his commissions, he remits the tax~s collected to the county treasury or fiscal authorities of the county. It appears to me that. under this procedure which is prescribed by .law that .the failure of a tax receiver to include in his voucher all commissions which might be due him would place him in the same position as a tax collector who failed to deduct all commissions which might be due him before making remittance to the county treasury or fiscal authorities of the county. Following this line of reasoning, both the tax receiver and the tax collector in an effort to collect commissions for prior years would be confronted with Code Section 20-1007 herein quoted.
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
The fees of Tax Commissioners are computed upon the net, rather than the gross, tax digest.
September 6, 1956
Honorable J. E. Lovett You state: "I would like your opinion on figuring my receiving fee on the 1956 Tax Digest. Will I figure it on the gross amount or the net amount of the digest?" Section 92-5301 of the Supplement to the Georgia Code states the commissions
which shall be allowed to each Receiver and Collector of State and County taxes. After setting forth the fees, this section contains the following provision:
"This schedule of commissions shall apply to the tax net digest for the years beginning 1953." You will observe that under this Code Section, which covers the fees of Tax Commissioners, as well as Tax Receivers and Tax Collectors, that your commissions are figured on the net digest.
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
Commissions of Tax Commissioner which are received in addition to a set salary cannot be considered as "salary" in determining whether such Tax Commissioner should receive compensation for handling sale of license tags, or whether compensation should be paid county under Act Approved March 9, 1955.
March 24, 1955
Honorable Leon H. Baughman Representative Early County
Your letter of March 11, 1955, inquires as to whether the total compensation of your county tax commissioner based upon annual straight salary of $3600 and commissions, conditioned, presumably, on his collecting those amounts of taxes in excess of a certain percentage of the digest, should all be considered as "salary"

885
within the meaning of that word as used in the Act providing for the sale of automobile tags by the tax collectorsat the county courthouses.
H. B. 2 (Act 412) approved March 9, 1955, provides in Section 3 that a 25c fee shall be retained by the tax collector or tax commissioner for compensation in handling the sale of such vehicle identification tags. It further provides, however, that if such county tax official is a salaried employee of the county and at a salary in excess of five thousand ($5000.00) per year the amount so collected shall go into the general treasury of the County, and in such cases it shall be the duty of .the governing authorities of the County to furnish to said agent such additional clerical help necessary to carry out the provisions of this Act."
You state that your county tax commissioner has been receiving "better than $2000.00 commissions" annually for the past several years, and, of course, such commissions, when added to the $3600.00 annual salary, exceeds $5000.00.
The question for determination, therefore, is whether the total compensation composed of an annual salary plus commissions, based upon his performance in collecting the taxes owing the county, constitutes "salary" within the meaning of the word as used in the Act.
It appears from the many decisions defining the word "salary" that it means a fixed compensation which is paid at stated periodic intervals (Dane v. Smith, 54 Ala. 47, 50; Commonwealthv. Bailey, 3 Ky. Law Rep. 110, 114; Blaine County v: Pyrah, 178 P. 702, 703, 32 Idaho, 111), while "fees" and "commissions" and "percentages", being uncertain and variable in amount, and depending upon the rendition of services which may or may not be either required or performed pursuant to someone's inclination, discretion or ability, are terms generally used in: contradistinction to "salary". (Brandon v. Askew, 54 So. 605,608,172 Ala. 160.)
Various appellate courts have defined "salary" thusly:
"Salary" is defined to be a periodical allowance made as compensation to a person for his official and professional services, or for his regular work. "Salary" is regarded as a per annum compensation. A public officer paid by feesis notthe recipient of a salary. Henderson v. Koenig, 68 S.W. 72, 75, 168 Mo. 356, 57 L.R.A. 659.
The word "salary" imports a specific contract for a specific sum for a specified period of time, while "fees" are compensation for particular acts, and "wages" are compensation for services by the day or week. Blick v. Mercantile Trust & Deposit Co., 77 A. 844, 846, 113 Md. 487.
The term "salary" as the Constitution applied it to the compensation of a public officer for services rendered does not denote the same class of compensation as indicated by the expressions "fees", "commissions", and "percentages". Osborn v. Henry, 76 So. 119, 121, 200 Ala. 353.
"Salary" denotes a recompense or consideration to be paid a public officer for continuous, as contradistinguished from particular, services, and may be denominated annual or periodical wages or pay. Cowdin v. Huff, 10 Ind. 83. So that "salary" and "wages" are often treated as synonymous; but the terms "salary" and "fees" are not held to be synonymous, since fees indicate compensation or recompense for particular acts or services. Landis v. Lincoln County, 50 P. 530, 31 Or. 424.
Where the Fulton County Board of Commissioners adopted a resolution to pay superior court judges specified sum, under constitutional provision authorizing commissioners to pay judges such sums, in addition to salary paid by state, as commissioners might deem advisable, compensation so provided for by resolution did not become "salary", within meaning of Constitution, so as to preclude reduction thereof except by two-thirds

886
vote of General Assembly, and commissioners could reduce amount of such compensation during judge's term. 185 Ga. 85, 194 S.E., 582, 585. From the definitions of "salary" supplied by the courts in these and other decisions, it must be concluded that "salary" as used in this Act means the guaranteed fixed- annual salary as provided by the governing authority of the county and cannot be read to include compensation derived from fees or commissions for the collection of a certain percentage of the tax digest, such commissions being variable and uncertain in amount. While the words "salary" and "compensation" are considered synonymous, the words "salary" and "commissions" cannot be considered as synonymous. Therefore, under the Act being considered, the $5000.00 "salary" referred to must constitute the annual compensation as fixed by the county governing authority and paid at regular intervals for the performance of the usual and regular duties of the office, and that any contingent or variable compensation is not "salary" as contemplated by this Act.
TAX COMMISSIONERS, COLLECTORS and RECEIVERS-Compensation County Tax Collector is entitled to a commission of 2lh o/o for collecting the
school tax for the maintenance and operation of public schools, and a commission of 2% o/o for collecting the school bond tax.
January 26, 1954
Dr. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your request of January 11, 1954 as to the compensation of tax collectors in collecting the following:
1. County-wide school tax for the maintenance and operation of the public schools.
2. County-wide school tax for the payment of the principal on bonds and interest thereon.
The law expressly provides that a tax collector is to receive a commission of
2Y2 per cent for collecting the county school tax for the maintenance and operation
of the public schools. Where the collector or commissioner is paid a salary, the fees are collected by him and paid to the county. Georgia Code Annotated 32-1106 provides as follows:
"The county tax collector shall continue to collect unpaid county school taxes formerly levied and payable under the provisions of this section, and shall be entitled to commission of 2lh per cent, for collecting the same. He shall pay over to the board of education all moneys collected for the schools once a month. He shall also collect all county school taxes levied under the authority of Article VIII, Section XII, Paragraph I [section 2-7501] of the Constitution of this State, upon which collections he shall receive a commission of 2lh per cent. He shall likewise pay over to the county board of education once a month, all moneys collected under such levies. In those counties where the tax collector or tax commissioner is on a salary basis the fees herein provided for shall be collected by him and paid over to the proper fiscal authorities." There is no express provision in the law as to any commission to a county tax collector for the collection of school bond taxes. Chapter 92-53, amended by

887
Georgia Laws 1953, page 234, on Compensation of Collectors and Receivers does not apply to school taxes. Board of Education v. Drake, 157 Ga. 8.
If no express provision is provided, should we imply one from the general provision found in 32-1106? An analogous situation was present in Mayor v. Board of Education, 87 Ga. 22, as to a municipal tax collector. The court held:
"... As a general proposition, it would seem just and equitable that any fund collected by taxation for a specific purpose, should bear the legitimate and necessary expense of such collection, and it would follow inevitably that this school fund should be reduced by the amount of such expense unless the law on the subject provides otherwise. We are of the opinion that this law should not be so strictly construed as to prevent this fund from being so reduced.... And on general principles, it is certainly fair that the school fund should bear the expense of its own gathering, just as all other funds raised by taxation are made to do...." On the basis of the above authority, it is my opinion that a county tax collector is entitled under 32-1106 to a commission of 2lh per cent for collecting the school tax for the maintenance and operation of public schools and a commission of 2% per cent for collecting the school bond tax. Where the tax collector is on a salary basis, both commissions will be paid over to the county.
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
County Tax Commissioner on salary basis is not entitled to fee for collecting intangible tax.
Owner of house trailer who does not own land on which trailer is located is not entitled to homestead exemption.
March 28, 1955
Mrs. Mildred D. Nix Tax Commissioner, White County
I wish to acknowledge receipt of your letter of March 14, 1955 in which you request my opinion on the following questions:
"(1) Am I entitled to commission on the recording intangible tax or not? I am on a salary and get 10% of all taxes collected in excess of 80%. I am wondering if I get any commission on the above. The Intangible Property Tax Act of 1953, as amended by the General Assembly in 1955, contains the following provision with reference to commissions of tax collectors or tax commissioners:
"Each tax collector or tax commissioner in this State shall make a report to the State Revenue Commissioner, on forms prescribed by him, on the first day of each month, of all sums collected under this Act for the preceding month, showing the principal amount of the note, the date of execution, and the maturity date of the note as disclosed from the face of the security instrument to be recorded, and the tax collector or tax commissioner shall retain six (6o/o) per cent of the tax collected as compensation for his services in collecting this tax. All such taxes shall be. deemed to have been collected by the tax collector or tax commissioner in his official capacity, and failure to collect and distribute as provided by law shall constitute a breach of official duty, and of the official bond of such

888
tax collector or tax commissioner. In each county in which the tax collector or tax commissioner is on a salary, the six (6%) allowed by this section as compensation shall be paid into the county treasury and become county property. The long term notes secured by real estate upon which this tax is imposed shall not be placed upon the property tax digest prepared and maintained by the tax receiver. It is the intention of the General Assembly that the six (6%) per cent commission permitted under this Act for collection of this tax by the tax collector or tax commissioner and distribution thereof shall be the only compensation permitted to any county official with respect to this tax; provided, however, that in counties having a population of more than 300,000 according to the last or any subsequent United States census, the commission allowed under this Act as compensation to the tax collector or tax commissioner shall be four (4%) per cent.'' You will observe from the above provision of law that no commission is l;lllowed to a tax collector or tax commissioner who is on a salary and the intangible tax so collected is not considered as a part of the tax digest.
"(2) Are people entitled to homestead exemption on house trailers if they do not own the land on which the trailer stands? They are sta~ tioned here and do not travel around. There is a housing shortage here now and they can find no other place to live except in trailers." A person living in a trailer, who does not own the land on which the trailer is stationed, cannot claim the trailer as a homestead exemption. "Homestead" is defined in Section 92-232 of the Supplement to the Georgia Code as follows:
"As used in this law (Sections 92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership." You will observe that this section states that "homestead" means real property. A house trailer is not real property. In a case where a person owns a trailer and the land on which it is located and occupies the trailer as a home, he would be entitled to claim the trailer and the land immediately surrounding the same as a homestead.
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
Tax Collector is entitled to commissions on tax levied to pay principal and interest on bonds issued by the county.
October 18, 1955
Honorable J. A. Mallory In your letter of September 30, 1955 you requested my unofficial opinion as to
whether or not the Tax Receiver of your County is entitled to commissions on the one and one-half mills tax levied to pay the principal and interest on bonds issued by the county for a new county camp, a public library building and a health center.
I am of the opinion that the Tax Receiver would be entitled to a commission on the one and one-half mills levied for the above purposes. I base this opinion upon Code Section 92-5301, which is as follows:

889
"The commissions to be allowed to each receiver and collector of State and county taxes shall be as follows, viz: ..." It will be observed from the above section that each tax receiver and tax collector of the State who is paid on a commission basis is paid according to the net tax digest of the county. I wish also to call your attention to Code Section 92-3701:
"County taxes may be levied for the following purposes: "1. To pay the legal indebtedness of the county, due or to become due during the year, or past due. The bond issue referred to in your letter creates a county debt and the tax levy made by the county for the payment of the principal and interest of this bonded debt comes within the purposes for which a county may levy taxes. Your attention is also directed to Code Section 92-3803, which reads as follows: "All taxes levied for county purposes shall be assessed upon the tax receiver's books for each year, and collected by the tax collector, who shall pay the same to the county treasurer."
TAX COMMISSIONERS, COLLECTORS and RECEIVERSCompensation (Unofficial)
Tax Receivers are not entitled to any commission with respect to collection of the intangible property tax.
April 29, 1955
Miss Eva Stephenson Tax Receiver, Newton County
In your letter of April 25, 1955 you request advice as to whether the Tax Receiver as well as the Tax Collector is entitled to the regular commission on recording intangibles.
I assume your question pertains to the commissions permitted under the Intangible Property Tax Act of 1953, as amended by Act 136, H. B. 146 (approved March 1, 1955) for the collection of the intangible tax on long term notes secured by real estate.
Section 4 of the Intangible Property Tax Act, as amended, imposes the tax upon the long term notes secured by real estate, such tax to be paid to the Tax Collector or Tax Commissioner prior to presenting such instrument for recordation to the Clerk of the Court.
Section 8 of the Act permits the Tax Collector or Tax Commissioner to retain 6% of the tax collected as compensation for his services in collecting this tax. Section 8 further states:
"... The long term notes secured by real estate upon which this tax is imposed shall not be placed upon the property tax digest prepared and maintained by the tax receiver. It is the intention of the General Assembly that the six (6%) percent commission permitted under this Act for collection of this tax by the tax collector or tax commissioner and distribution thereof shall be the only compensation permitted to any county official with respect to this tax; . . ." The tax receiver, therefore, is not entitled to any commission with respect to this tax.

890
TAX COMMISSIONERS, COLLECTORS and RECEIVERSDuties and Responsibilities (Unofficial)
A Tax Receiver must go to the several militia districts in the county for the purpose of receiving tax returns.
December 16, 1954
Honorable Lloyd Stepp Tax Receiver, Fannin County
You state that it is your understanding that Tax Receivers in most counties do not have to make rounds to receive returns. You then ask how this is done and if it will be possible for this to be done in Fannin County.
Section 92-4611 of the Code provides that the Tax Receiver shall go to the several militia districts in the county for the purpose of receiving tax returns. This, of course, is a general law.
I believe you will find that in the counties where no rounds are made, the office of Tax Receiver and Tax Collector have been consolidated into the office of Tax Commissioner. This is accomplished by a local bill of the Legislature and quite a few of the counties have placed a provision in such bills, stating that the Tax Commissioner will not have to leave the courthouse to receive returns.
I do not believe that a local Act stating that the Tax Receiver of a certain county would not have to make rounds would be constitutional, inasmuch as it would be a local law in conflict with a general law, which is prohibited by the Constitution.
Of course, there is some question that the Acts relative to the Tax Commissioner, on this particular point, are invalid but I assume that this is done on the theory that the Constitution authorizes the office of Tax Commissioner to be created, and possibly impliedly gives authority to make this provision.
TAX COMMISSIONERS, COLLECTORS and RECEIVERSDuties and Responsibilities (Unofficial)
It is duty of Tax Receiver to refuse the tax return of any taxpayer who refuses to furnish the make and model of each motor vehicle owned by him and such other information as the State Revenue Commission has requested be obtained relative to motor vehicles owned by the taxpayer.
January 14, 1955
Honorable J. 0. Parker Tax Receiver, Banks County
I wish to acknowledge receipt of your letter of January 11, 1955 in which you propound the following question:
"If a Banks County citizen comes in to make his tax return to me, as Tax Receiver, and I ask the question regarding return of automobiles and trucks, number, model etc., and he refuses to give the number he owned on January 1, 1955 and the models, is it my duty to take the returns and put down automobiles and trucks at so many dollars, whatever he returns them at, or is it my duty to refuse to take the return unless he gives the number he had and the models, or to take it in a lump sum?" It is your duty as Tax Receiver to refuse the tax return unless the taxpayer furnishes you with the make and model of each motor vehicle owned by him and

891
such other information as the State Revenue Commissioner has requested you to obtain from the taxpayer relative to motor vehicles owned by the taxpayer. Should you send in your digest without this information, the Revenue Commissioner would have the right to reject your digest. It is the policy of the Revenue Commissioner to equalize the valuations to be placed on motor vehicles returned for taxation in the State of Georgia.
TAX COMMISSIONERS, COLLECTORS and RECEIVERS-Liability (a) A Tax Collector, at the time the County Governing Authority gives
him credit on his digest with the State and County, is relieved from further liability on the insolvent executions allowed.
(b) All uncollected Fi. Fas. should be recorded on the general execution docket.
November 7, 1955
Honorable C. G. Campbell Director, Property Tax Unit
You request my official opinion on two questions. First, you ask: "Is the Tax Collector at the time he is given credit on his Digest with
the State and County relieved of further liability on the executions so allowed? If his accounts with the State and County are so credited, would he be required to account for such insolvent fi. fas. at any time thereafter? If so, would he be required to account for such executions after the statute of limitations had run on them?" The Tax Collector, at the time the county governing authority gives him credit on his digest with the State and County, is relieved from further liability on the insolvent executions allowed. If the insolvent tax executions are turned back to or remain in the hands of the Tax Collector or after credit is allowed on such executions, he is required to account for any funds subsequently collected on such insolvent tax fi. fas. The Tax Collector, after the allowance of the insolvent tax executions, is not required to account for said executions after the Statute of Limitations has run on them.
Secondly, you ask: "Should insolvent fi. fas. be recorded on the General Execution
Docket? If so, does their recordation re-establish the liability of the Tax Collector for them?" All uncollected fi. fas. should be recorded on the General Execution Docket and if no property can be found upon which to levy the fi. fas. a nulla bona should be entered thereon. It is not necessary for the Tax Collector to re-record these tax fi. fas. once they have been recorded. Should the Tax Collector re-record them there would be no liability against him for such action. A record of the insolvent tax fi. fas. is shown by the insolvent tax list as entered on the minutes of the Ordinary, Board of County Commissioners, or other authority having charge of county affairs in accordance with Code Section 92-7106. The opinions expressed herein are based upon my interpretation of the provisions of Chapter 92-71 of the Code of Georgia.

892
TORTS-Liability of Hospital Authority (Unofficial) A Hospital Authority is not immune to proper pr<ieeedings in the nature
of a tort.
February 26, 1954
Honorable Graydon Reddick I am pleased to acknowledge your letter relative to a Hospital Authority,
created pursuant to the Acts of 1941, page 243, being liable for a tort growing out of the functions and negligence of an employee or official thereof.
Section 99-1505 of the 1933 Annotated Code (1951 Cumulative Pocket Part), codified from the Acts of 1941, page 243, provides that such Authorities may sue and be sued. Therefore, it is my personal and unofficial view that a Hospital Authority would not be immune to proper proceedings in the nature of a tort.
The purpose and intent in creating all types of authorities was to create public corporations, separate and apart from the restrictions, liabilities and immunities of the State and local governments, the only method of control being that the statute creating such authorities designate certain public officials to conduct the affairs of such authorities. They perform certain governmental functions, but, like the Hospital Authorities Act, most of them authorize them to sue and be sued like any other person or corporation.
TORTS-Negligence-Comparative Negligence (Unofficial) Discusses law of comparative negligence in Georgia.
October 19, 1956
Mr. John J. Karcha Section 66-402 of the Code of Georgia Annotated provides: "Contributory negligence; ordinary care; comparative negligence.-In all actions hereafter brought against any such common carrier by railroad, under or by virtue of any of the provisions of this, the preceding, or the four succeeding sections, to recover damages for personal injuries to an employee, or where such injuries have resulted in death, the fact that the employee may have been guilty of contributory negligence, not amounting to a failure to exercise ordinary care, shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shaH be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee." Section 94-703 of the Code provides: "Consent or negligence of person injured as defense; comparative negligence as affecting amount of recovery.-No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to him."

893
Section 105-603 provides: "Diligence of plaintiff. If the plaintiff by ordinary care could have
avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." For a discussion on Contributory Negligence and Comparative Negligence, you are referred to the following Georgia cases: 130 Ga. 421 (60 S. E. 1056) 113 Ga. 708, 712 (39 S. E. 306) 103 Ga. 655 (30 S. E. 563).
TORTS-Negligence-Family Purpose Doctrine (Unofficial) "Family purpose doctrine" may impose liability for tort of wife.
December 3, 1954
Mr. N. F. Williams Reference is made to your letter regarding the liability of a husband :for
damages resulting from his wife's negligence in the operation of a family automobile.
I am constrained to point out that under the "family purpose doctrine" as laid down by the Court of Appeals in numerous decisions (see 46 Ga. App. 808, 47 Ga. App. 337, and 47 Ga. App. 647, etc.) the Court might hold you liable for damages for your wife's tort.
TORTS-Negligence-Guest Statute (Unofficial) For a guest to recover damages from the owner or operator of the motor
vehicle in which he was riding, it is necessary that he show gross negligence on the part of the owner or operator unless his presence in the vehicle was for the purpose of conferring some benefit on said owner or operator.
July 8, 1955
Mr. Ross Williams You requested "a copy of the automobile guest statute" in Georgia and
decisions under such statute "particularly with reference to driving on the wrong side of the road, excessive speed, etc."
In Frye vs. Pyron, 51 Ga. App. 613 (181 S. E. 142), the Court of Appeals held in part:
"'(2) One riding by invitation and gratuitously in another's automobile can not recover for injuries caused by the other's negligence in driving unless it amounts to gross negligence.' Epps vs. Parish, 26 Ga. App. 399 (106 S. E. 297); Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256); Peavy v; Peavy, 36 Ga. App. 202 (136 S. E. 96).'' The Court then quoted Section 105-203 of the Georgia Code Annotated which reads as follows:

894
"In general, slight diligence is that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances. Applied to the preservation of property, slight diligence means that care which every man of common sense, howsoever inattentive he may be, takes of his own property. The absence of such care is termed gross negligence." This case is cited and followed in Frank v. Horowitz, 57 Ga. App. 651 (183 S. E. 835). See also Bolton v. Bluestein, 55 Ga. App. 782 (191 S. E. 388) and Hopkins v. Sipe, 58 Ga. App. 511 (199 S. E. 246). On the subject of speed and control, I suggest that you read Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256) and Yearwood v. Yearwood, 45 Ga. App. 203 (164 S. E. 105). In King v. Stuart Motor Co., 52 F. Supp. 727, the Court held that unless the person in charge of the automobile or the driver thereof was guilty of such negligence as would authorize recovery by guest injured in accident, guest would not be entitled to prevail either against such person or against the owner of the automobile. In Holtsinger v. Scarborough, 69 Ga. App. 117 (24 S. E. 869) the Court held that a person in or on any part of the automobile for the purpose of conferring some benefit on the owner was an "invitee" toward whom such owner and driver owed duty to exercise ordinary care. But in Minkovitz v. Fine, 67 Ga. App. 176 (19 S. E. 2d 561); Barbre v. Scott, 75 Ga. App. 524 (43 S. E. 2d 760); Hennon v. Hardin, 78 Ga. App. 81 (50 S. E. 2d 236); Carpenter v. Lyons, 78 Ga. App. 214 (50S. E. 2d 850); McGowan v. Camp, 87 Ga. App. 671 (75 S. E. 2d 350) and Lane v. Varner, 89 Ga. App. 47 (78 S. E. 2d 528) are all to the general effect as Frye v. Pyron, supra, i.e., a guest riding in an automobile by invitation and gratutiously can not recover for injury caused by the host's negligence unless it amounts to gross negligence. For other cases in this and other states, see Georgia Digest, Southeastern Digest, or West Publishing Company Key Number System publications under "Automobiles Key Number 181(1), Case Required and Liability in general" and "181(2) Who are Passengers, Guests or Licensees." It appears well settled from the cases cited and from others available from the source material mentioned, that for one to recover from the owner or operator of a motor vehicle in which he was riding when injured, he must show gross negligence unless his presence in such vehicle was for the purpose of conferring some benefit on the said owner.
TRADE NAMES-Registration Trade names are registered in the Office of the Clerk of the Superior
Court; not the office of the Secretary of State.
May 20, 1955
The Honorable Ben W. Fortson, Jr. Secretary of State
Reference is made to your recent letter in which you request my opinion on the question as to whether you are authorized and required by law to register Trade Names upon request.

895
In my opinion the Secretary of State is not authorized or required to register Trade Names upon request.
In 1893 the General Assembly of Georgia passed an act providing, in substance, that persons, associations, etc., that had adopted or should thereafter adopt a "* * * trade mark * * * may file the same for record with the Secretary of State * * *." (Acts 1893, p. 134.) The same act provided for injunctive relief to protect the owner and holder of a trade mark so registered from "* * * the manufacture,
use, display or sale of any such counterfeits or imitations * * *." (Id.) See Georgia
Code Annotated, Sections 106-102 and 106-103.
In 1929 the General Assembly passed and later amended the Trade Names
Registration Act providing that "* * * every person, firm or partnership, carrying on * * * any trade or business under any trade name * * * which does not disclose
the individual ownership * * * shall * * * file in the office of the Clerk of the Superior Court of the county * * * a registration statement * * *." (Acts of 1929,
page 233; 1937, page 804; 1943 page 398.) See Georgia Code Annotated, 1951 Cumulative Pocket Part, Section 106-301.
In 1952 the General Assembly repealed Chapter 106-1 of the Code in its
entirety and enacted in its stead an entirely new piece of legislation "* * * to
provide for the registration and protection of trade marks; to define certain terms
* * *". This act (Acts of 1952, page 134) as the earlier one, provided that:
"Section 8. Subject to the limitations set forth in this Act, any person who adopts and uses a trade mark in this State may file in the
office of the Secretary of State * * * an application for registration of such trade mark * * *."
"Section 9. Upon compliance with the requirements of this Act, the Secretary of State shall cause a certificate of registration to be issued
* * *."
Section 6(a) defines the term "trade mark" as including "any word, name symbol, or device or any combination thereof adopted and used by a person to
identify goods made or sold by them* * *." (Emphasis added)
The statute mentioned does not, however repeal, expressly or by implication, the earlier Trade Name Registration Act. (Supra.) The net result of the legislation referred to was, therefore, to provide for the registration of trade marks, including names, adopted and used by a person to identify goods made or sold by him in the office of the Secretary of State and the registration of trade names under which businesses are operated in the office of the Clerk of the Superior Court of the County in which the business is operated.
Coming then to Act Number 240 (Senate Bill Number 31) Trade Mark Act Amended (Acts 1955, page 453), we find that it nowhere provides for any rights with reference to the registration of trade marks or trade names not granted by earlier legislation, but merely provides injunctive relief for the owners of trade
marks or trade names "* * * if there exists a likelihood of injury to business reputation * * * notwithstanding the absence of competition between the parties
* * *." (Emphasis added)
This, in my opinion, does not give you any additional authority or place upon you any additional responsibility relative to the registration of trade marks or trade names.

896
TRAFFIC LAWS-Bicycles (Unofficial) Bicycles are not regulated by state law.
December 3, 1954
Mr. Earl Edwards Reference is made to your letter regarding bicyclist and inquiring as to the
law governing the same. The Uniform Act Regulating Traffic on Highways (Ga. Code Ann., Sec.
68-1502, et seq.) deals with vehicles "* * * upon or by which any person or property
is or may be transported or drawn upon a highway except devices moved by human
power * * *." This obviously excepts bicycles.
While the riding of bicycles is not covered by State law, it may and probably should be regulated by local ordinance.
TRAFFIC LAWS-Municipal Corporations (Unofficial) Municipal corporations cannot pass a city ordinance regulating what is
described in the Uniform Traffic Act as authorized emergency vehicles, which would be valid in view of the provisions of the general law on the subject.
August 26, 1955
Honorable Lawton Miller Reference is made to your letter regarding the Uniform Act Regulating Traffic
on Highways, approved January 11, 1953, and more particularly Sections 26, 28, 29 and 128 thereof, as they affect the passage of city ordinances governing the operation of emergency vehicles.
You inquire, in effect, whether, in my opinion, the City of Macon, or other incorporated city, town or village, may adopt and enforce a municipal ordinance prohibiting the drivers of city or county police or fire department vehicles, State Patrol vehicles and such other vehicles as are designated and authorized in accordance with the provisions of the Act from exercising the privileges set forth in Section 26 thereof. In my opinion it may not.
Section 26 of the Act clearly provides that "Authorized emergency vehicles"
as defined in Section 2 (e) "* * * when responding to an emergency call, or when
in pursuit of an actual or suspected violator of the law, or when responding to
but not returning from a fire alarm * * *" may ignore parking restrictions, traffic
signs, signals and markings and speed limits. It will be observed, however, that
certain conditions are imposed such as, "* * * slowing down as may be necessary * * *", and "* * * so long as he does not endanger life or property." (Sec. 26 (a)
and (b).) See also the provisions of Sub-sections (c) and (d) of Section 26. As to the applicability of the various provisions of the Act, including those
dealing with emergency vehicles (Sec. 26), the lawmakers had this to say: "The provisions of this Act shall be applicable and uniform throughout this State and
all political subdivisions and municipalities therein * * *." While it is provided
that "Local authorities may, however, adopt additional traffic regulations * * *."
(Sec. 28) and "Nothing in this Act shall prevent cities and towns from regulating
* * * traffic within the limits of such cities and towns * * *." (Sec. 128), these
provisions must be read in connection with that which covers and is entitled "Powers of Local Authorities". (Sec. 29).

897

The section on "Powers of Local Authorities" (Sec. 29) mentioned in the

preceding paragraph provides that nothing contained in the several provisions of

the Act shall be deemed to prevent local authorities from reasonable exercise of police power with relation to certain specified traffic control problems. They include (1) parking; (2) traffic regulation by traffic signals (lights, etc.) or officers; (3) processions or assemblages; (4) one-way streets; (5) speed in parks; (6) stop

corners; (7) bicycle riding; (8) right-of-way intersections; (9) turns at inter-

sections; (10) speed limits. I find nothing in such section or elsewhere in the Act to indicate that the General Assembly did or intended to except the authorized

emergency vehicles provision (Sec. 26) from the application of the Uniform Applicability provisions (Sec. 29) and give to the many municipal governments the authority to vary the terms and provisions of the uniform state law.

I do not regard it as either necessary or proper that municipalities pass city ordinances on this subject, either to vary or adopt the provisions of the Statute

with regard to the privileges enjoyed by the drivers of authorized emergency

vehicles.

In Moore v. City of Tifton, 84 Ga. App. 280, at 287, the Court, Mcintyre, P. J.,

said in part:



"* * * if the health ordinance of the City of Tifton was passed after the general law went into effect * * * the ordinance was unconstitutional
and void. If the ordinance was passed prior to the effective date of the
general law * * * the ordinance was suspended in its operation by the
general law going into operation. In either event, the executions issued
under such ordinance were void * * *."

It is my opinion that the City of Macon could not pass a city ordinance regulating what is described in the Uniform Traffic Act as authorized emergency

vehicles which would be valid in view of the provisions of the general law on the

subject.

TRAFFIC LAWS-Offenses-Arrests for (Unofficial) An automobile used on official business by a person authorized to make
arrests for traffic offenses must be already marked, even though it is the private automobile of the officer.
September 22, 1954
Mr. Harry T. Lawrence
You asked my opinion as to whether a sheriff who uses his automobile for law enforcement purposes must mark the same as an official vehicle, when no official vehicle is furnished to him by the county.
Code Sec. 68-1707 of the 1954 Supp., Ga. Code Ann. provides as follows: "Any :motor vehicle which is used on official business by any person
authorized to make arrests for traffic violations in this State or any municipality or county thereof, shall be distinctly marked on each side and the back with the name of the agency responsible therefor in letters not less than six inches in height." Therefore, it is my unofficial opinion that if the sheriff of your county is required to furnish his own automobile for law enforcement purposes, even though it is owned by him and the county does not furnish him with a motor vehicle for such purposes, that such motor vehicle must be marked in accordance with the above code section.

898
TRAFFIC LAWS-Olfenses-Bonds Driving under the influence of liquor is a traffic offense and a sheriff,
if authorized by the Judge having jurisdiction over such cases, may accept cash bond for the personal appearance of the offender.
January 6, 1955
Mr. Robert J. Noland Reference is made to your letter of January 4, 1955 regarding "the offense
of driving a motor vehicle while under the influence of intoxicating liquors or. drugs". Specifically you inquire whether such offense is a "traffic offense", and whether a sheriff may take a cash bond from persons charged with such offense under and in accordance with the provisions of an Act of the General Assembly passed at the January-February 1953 Session, identified as Act Number 348 (Senate Bill Number 74), appearing on page 331 et seq. of Georgia Laws 1953, JanuaryFebruary Session.
The Uniform Act Regulating Traffic on Highways passed by the General Assembly at its November-December 1953 Session, identified as Act Number 854 (House Bill Number 128), appearing on page 556, et seq. of Georgia Laws 1953, November-December Session, provides in part that:
"It is unlawful and punishable as provided in Subdivision (d) of this section for any person who is under the influence of intoxicating liquor to operate or drive any vehicle." I am, therefore, of the opinion that such operation of any vehicle, except only those operated by human power, constitutes a violation of a traffic law within the meaning of the Act passed by the General Assembly at its January-February 1953 Session, identified as Act Number 348 (Senate Bill Number 74), appearing on page 331 et seq. of Georgia Laws 1953, January-February Session. It follows from the above that a Sheriff 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 the corporate limits of any municipality of this State for the operation of a motor vehicle while under the influence of intoxicating liquor or drugs and has been so authorized by the judge having jurisdiction of such offense, may accept cash bonds for the personal appearance of the person arrested.
TRAFFIC LAWS-Offenses-Driving Under Influence (Unofficial) Driving under influence of intoxicants may be punished only under state
statute and not under municipal ordinance.
February 17, 1955
Honorable J. W. Storey Operating an automobile while under the influence of intoxicating liquors or
drugs is a violation of the Uniform Act Regulating Traffic on Highways (Ga. Code Annotated, Section 68-1625) and punishable as provided therein (Section 68-9927).
Under the ruling laid down by the Supreme Court in Jenkins v. Jones, 209 Ga. 758 any city ordinance on the subject, if it pre-existed the Uniform Act Regulating Traffic on Highways, approved January 11, 1954, would be superseded thereby and if passed after the act in question would be unconstitutional (Art. I, Sec. IV, Par. 4).

899
It is my thinking, that driving under the influence may be punished only under the State statute, and that offenders may be tried in police courts only in the event there is no City Court or County Court having jurisdiction and then only providing the defendant waives a jury trial.
TRAFFIC LAWS-Offenses-Fines (Unofficial) Disposition of fines and forfeitures arising from violations of state laws
involving traffic offenses.
October 8, 1954
Mr. Herman B. Dine I have received your letter in which you asked what disposition is made of
motor vehicle fines in this State. All fines received for violations of State Laws involving traffic offenses are
used for the payment of legal fees and officers involved in those counties where the officers are on a fee basis, and the remainder for the payment of insolvent court costs, and the remaining balance into the County treasury.
In those counties where the officers receive salaries and not fees, then the fines are transferred from the Fines and Forfeiture Fund directly to the county treasury.
In municipalities, for the most part, fines are paid directly to the county treasury because the officers are on a salary but in the few instances where officers are on a fee basis, then the same procedure is used as outlined for the counties. All funds received for parking tickets and other parking violations are paid directly to the city treasury.
'fRAFFIC LAWS-Offenses-Jurisdiction of Recorder's Court (Unofficial) A Recorder's Court may not try traffic cases in a county which has a city
or county court.
September 29, 1954
Honorable J. T. Grice You request information as to whether or not the Recorder's Court of Glenn-
ville may try offenses arising under the Highway Patrol Act of 1938 (Ga. Laws 1937-38, p. 558; Code Ann. Supp., Sec. 92A-503).
The Constitutional provision relating to this question is Article VI, Section VI, Paragraph II, (Code Ann., Sec. 2-4102) which provides in part as follows:
"The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, and in all cases arising under the Compulsory School Attendance law 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 of incorporated cities and municipal court judges for offense arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State within their respective jurisdiction."

900
The statute, Code Ann. Supp., Sec. 92A-503, provides as follows: "All municipal courts and police courts shall have jurisdiction to
dispose of misdemeanor cases as provided by this Chapter which arise within the territorial limits of their respective jurisdictions, as now or hereafter fixed by law. The term 'police courts' shall be construed to include mayor's courts or recorder's courts, or like municipal courts by whatever names called." It thus appears from the foregoing that the statute, literally read, is broader than the Constitution, for under the former, any recorder's court is authorized to try this class of misdemeanor offenses, while under the Constitution, only those recorder's courts situate in counties having no city or county court are given such jurisdiction. In Clarke, Supt., vs. Johnson, 199 Ga. 163, the specific question arose as to whether or not the recorder's court of Atlanta had jurisdiction to try a misdemeanor case arising under the Georgia State Highway Patrol Act of 1937. The headnote to that case reads as follows:
"The amendment of 1937 to article 6, section 6, paragraph 2, of the constiution of Georgia (Ga. Code Ann., 2-3402), confers upon judges of police courts of incorporated cities and municipal-court judges jurisdiction to try misdemeanor cases arising under the act known as the Georgia State highway patrol act of 1937 only in those counties in which there is no city or county court. (Emphasis supplied.) Since Fulton County had such a court, it was concluded that the recorder's court of the City of Atlanta had no jurisdiction under the Constitution to try such misdemeanors. At the 1953 Nov.-Dec. Session of the General Assembly, House Bill No. 1035 was passed, which undertook to confer jurisdiction upon a City of Atlanta Court, to try misdemeanor traffic violations. The Governor requested my opinion as to the constitutionality of this bill, and based upon an exhaustive study, I concluded that the Act was clearly unconstitutional, under the authority of Grant vs. Camp, 105 Ga. 428. Accordingly, the bill was vetoed. The Constitutional provision above quoted, i.e., Article VI, Section VI, Paragraph II, constitutes the only exception to the Grant case. I note that the City of Reidsville, which, is also in Tatnall County, has a city court. Ga. Laws 1905, p. 335, as amended. I therefore conclude that the recorder's court of Glennville does not have jurisdiction to try misdemeanor traffic cases.
TRAFFIC LAWS-Offenses-Reckless Driving (Unofficial) "Reckless driving" is not a prosecutable offense.
December 6, 1954
Honorable Eugene M. Kerr Reference is made to your letter regarding the Uniform Traffic Act, and more
particularly the offense of "reckless driving". I concur with you in your view that there simply isn't any prosecutable offense
of "reckless driving" any more. I think that you are probably going to have to draw your accusations for the specific acts which formerly formed the basis for a "reckless driving" charge, provided, of course, that they are covered by the Act.

901

TRAFFIC LAWS-Speed Limits
(a) The State Highway Department is authorized to erect "advisory speed signs", stating the maximum safe speed, but violation of such speed is not a violation of the law unless there has been a proper determination and a setting of a speed limit which is lower than that allowed by law.
(b) The snne ru:es that govern "spe:od signs" govern "no parking" areas and signs.
(c) An order of the Director of Public Safety creating a speed zone under the authority of Georgia Laws 1939, page 295, is no longer of any effect.

December 12, 1955

Honorable W. A. Blasingame Chairman, State Highway Board

Your letter propounds three separate and distinct questions of law, and we shall deal with them separately.
1. "Advisory Speed Signs," as provided for on page 62 of the "Georgia Manual on Uniform Trdfic Control Devices," adopted March 25, 1954, pursuant to Section 31 cf Article 3 of the "Uniform Act Regulating Traffic on Highways," approved January 11, 1954. In this respect, the question posed by your letter is whether or not the erection of such "Advisory Speed Signs" would create a problem of enforcement, and whether or not it would be necessary to implement the erection of such signs by a resolution of the State Highway Board, and a proper order of the Director of the Department of Safety, as provided for by Section 49 of Article 6 of the aforesaid "Uniform Act Reguhting Traffic on Highways."
Your letter specifically refers to page 62 of the aforesaid "Georgia Manual on Uniform Traffic Control Devices," and, in your letter, you describe these devices as follows:

"It is proposed to place advisory speed signs indicating the safe speed that has been determined, these safe speed signs to be attached to the same posts carrying the curve indication and to have on them only such figures as "20" cr "35" and the letters "MPH." In this connection, you also state in your letter that the proposed erection of these signs is the result of certain tests of the Traffic Engineering Section of the Division of Highway Planning, which tests show the lawful rate of speed to be too fast for safety at the points, where it is proposed to erect these signs. On page 62 of thB aforesaid manual, there is a description of these signs, together with diagrams, which are substantially the same as heretofore set out, and said signs are entitled: "Advisory Speed Sign." For a clear and comprehensive understanding of this question, we quote from, and comment upon, the following Sections of the aforesaid "Uniform Act Regulating Traffic on Highways":

Section 31, Article 3: "The State Highway Board shall adopt a man-

ual and specifications, as recommended by the Engineering Division of the

State Highway Board, for a uniform system of traffic-control devices con-

sistent with the provisions of this Act for use upon all highways within

this State. Such uniform system shall correlate with and so far as pos-

sible conform to the system then current as approved by the American

Association of State Highway Officials."

.

. .

Section 32, Article 3: "The State Highway Board shall place and maintain such traffic control devices, conforming to its manual and specifications, upon all State Highways including those within all municipalities

902
and counties, as it shall deem necessary to indicate and to carry out the provisions of this Act or to regulate, warn, or guide traffic, and shall remove or direct removal of all traffic control devices which it shall deem unnecessary. All traffic control devices shall conform to those adopted under the authority of Section 31.
(b) No other authority shall place or maintain any traffic control devices upon any State Highway under the jurisdiction of the State Highway Board except by the latter's permission.
(c) The disregard or disobedience of the instructions of any official traffic control device or signal, placed in accordance with the provisions of this Act, by the driver of a vehicle, shall be deemed as prima facie evidence of a violation of law, without requiring proof of who and by what authority such sign or device has been erected."
A careful reading of the foregoing sections discloses that they are of a directive character, addressed to the State Highway Board. The mere fact that the manual, hereinbefore referred to, was provided for would not give to such manual the force and effect of law. The traffic control device, or signal, or sign, is but the evidence of the law, from which it derives its sanction. It will be seen from subparagraph (c) of Section 32, supra, that the language, "placed in accordance with the provisoins of this Act" are used.
Therefore, in the light of the foregoing, it is my opinion that, while the State Highway Board has ample authority for the erection of such signs, as described in your letter, such signs or devices, showing a lower rate of speed than that provided for by law at the point erected, would be of an advisory character only, and could not be made the foundation for a criminal prosecution, or the evidence of the violation of any law.
However, if it should be determined that it is desirable and necessary for the public safety to place such signs or devices at points, such as curves, thereby reducing the lawful rate of speed from that provided in the Act to the figure plainly marked on such sign or device, I am of the opinion that this is provided for in Section 49, of Article 6, which is as follows:
"Whenever the Director of Public Safety and the State Highway Board, upon request from any local authority, or upon their own initiative, shall determine upon the basis of an engineering or traffic investigation that any lawful speed limit hereinbefore set forth is greater than is reasonable or safe under the conditions found to exist on any State highway or upon any part thereof, or upon any extension thereof within a municipality, said Director may determine and declare a reasonable and safe lawful speed limit thereon which shall be effective at all times or during hours of daylight or darkness or at such other times as may be determined when appropriate signs giving notice thereof are erected."
I am of the opinion that, in order to invoke the provisions of the above stated provision, the following proceedure would be proper:
(a) An engineering and traffic investigation, showing the necessity for the reduction in speed at the described points;
(b) A resolution of the State Highway Board, spread upon the minutes of said Board, as a matter of public record, setting forth the findings of the said engineering and traffic investigation at the described points on the State Highway system, reciting the necessity for a reduction in the lawful rate of speed at such points, requesting the Director of Public Safety to issue a proper order for such reduction of speed, and providing for the placing of signs at such points, consistent with the order of said Director.

903
(c) The actual erection of the signs and, in this connection, I am of the opinion that the signs, as described in your letter, would be sufficient to comply with the law.
I am, therefore, of the opinion that, when these provisions have been complied with, the signs are no longer advisory in character, but observance of and obedience to the same is mandatory, and disregard or disobedience of such signs would come within the provisions of subsection (c) of Section 32 of Article 3 of the aforesaid Act.
2. The second question, propounded by your letter, is as follows: "Will it be necessary in every instance where safety provisions require no parking areas to have a formal order and designation issued by the Highway Board to make such designation legally effective?"
Section 93, (d), of Article 12 of the aforesaid "Uniform Act Regulating Traffic on Highways" is as follows:
"The State Highway Board with respect to highways under its jurisdiction may place signs prohibiting or restricting the stopping, standing, or parking of vehicles on any highway where such stopping, standing, or parking is dangerous to those using the highway, or where the stopping, standing or parking of vehicles would unduly interfere with the free movement of traffic thereon. Such signs shall be official signs, and no person shall stop, stand, or park any vehicle in violation of the restrictions stated on such signs."
A careful reading of the foregoing subsection (d) will disclose that it does not provide for, or permit a capricious designation of "no parking" areas, but plainly says: "where such stopping, standing, or parking of vehicles would unduly interfere with the free movement of traffic thereon."
As heretofore stated, in discussing Question No. 1, the mere erection of a sign, with nothing more, would be advisory in character only. However, if such "no parking" signs are to be erected, and disobedience to or disregard of such signs is to be made the foundation of a criminal prosecution, or prima facie evidence of a violation of the law, then there must be a reasonable and substantial compliance with the provisions of the law, authorizing the establishment of "no parking" areas, and the erection of such signs.
I am, therefore, of the opinion that the proper and lawful manner to accomplish this purpose is as follows:
(a) A report and recommendation to the State Highway Board by the Division of Highway Planning, or a report supported by competent evidence from any other source, that certain described areas of the State Highway System, giving the limits of each individual area, be designated as "No Parking" areas, and for the reason that it has been determined by the Division of Highway Planning that stopping, standing, or parking in such area is dangerous to those using the highway, and interferes with the free movement of traffic thereon.
(b) A resolution by the State Highway Board, referring to and founded upon such a report, designating such area or areas as "No Parking" areas, and in the language of subsection (d).
(c) The erection of the proper signs. In the event that the State Highway Board had under consideration many different areas, to be so designated as "No Parking" areas, there could be no objection to incorporating all of them into the same resolution, but each should be separately described so that it could be separated and identified. 3. Your third question deals with an order of the Director of Public Safety, creating a speed zone in the vicinity of rural schools, as authorized by Georgia

904
Laws Hl39, Act. No. 244, Section 2, Par. c, approved March 24, 1939 (Ga. Laws, 1939, p. 245). You ask for an opinion as to the present status of this order dated September 25, 1947. It will be seen from subsection (f) of Section 132, Article 17, of the aforesaid "Uniform Act Regulating Traffic on Highways," that this 1939 Act of the General Assembly was repealed in toto. The Act having been repealed, the order of the Director of Public Safety, which derives its only sanction from the Act upon which it is based, is now void.
TRAFFIC LAWS-Suspension of Driver's License (Unofficial) The Director of the Department of Public Safety may suspend a driver's
license for three years, even though a judge has suspended the license for only sixty days.
July 8, 1954
Honorable E. Lloyd Lewis You inquire whether the Director of the Department of Public Safety may
revoke the license of a person convicted of the offense of operating an automobile under the influence of intoxicating liquors or drugs for a period of three years, notwithstanding the judge who sentenced him suspended it for a period of 60 to 90 days only.
In addition to the Uniform Act Regulating Traffic on Highways, we must consider the provisions of the Motor Vehicle Safety Act of 1951 (Acts of 1951, page 565). Section 7-A of this Act provides that upon the conviction of a driver
for certain offenses including drunken driving "* * * it shall be mandatory upon
the Director to revoke such owner's or operator's license and/or registration for a
period of three (3) years * * *" subject, however, to his right to come in at the end
of 60 days and, having obtained a policy of automobile liability insurance or otherwise established his responsibility, ask for and get his license reinstated.
The two acts appear to me to have entirely different purposes and objectives, the one to punish for the crime of drunken driving and the other to insure financial responsibility of drivers in general and those who have demonstrated that they can not be trusted to operate motor vehicles safely and sanely in particular.
The Uniform Act Regulating Traffic on Highways passed in 1953 specifically provides that it shall not repeal the earlier driver responsibility legislation and the two are, apparently, compatible.
VETERANS-Exemption from Taxation-Licenses (Unofficial) City of Avondale Estates cannot require a license fee of a disabled vet-
eran holding a certificate of exemption whose principal business of television repair is in Atlanta, but who also conducts this business in Avondale Estates.
April 1, 1955
Mr. Richard H. Alford You request the Attorney General's advice as to your right to exemption as a
disabled veterans from the payment of any City of Avondale Estates license tax imposed upon your business. You state that you operate a television repair business under a veteran's certificate of exemption and although your business is

905
located in the City of Atlanta, it sometimes takes you into adjacent areas, including Avondale Estates.
If you have qualified as a disabled veteran under the provisions of Chapter 84-20 of the Georgia Annotated Code (specifically Sections 84-2011 through 84-2019), it is my opinion that the City of Avondale Estates cannot compel you to pay any license fee or tax imposed upon the conduct of your business. However, in the City of Avondale Estates has enacted any valid ordinance under the police powers vested in the city regulating businesses such as yours, they may require you to obtain a license under the provisions of that ordinance though you still may not be required to pay any fee for such license.
VETERANS-Exemption from Taxation-Licenses (Unofficial) Agents, servants and helpers of disabled veteran who holds a certificate
of exemption issued by the State Revenue Commissioner are not required to obtain a license to conduct the business.
May 17, 1955
Mr. W. R. Wynn Reference is made to your letter of April 29, 1955 relative to disabled veterans'
exemption from business license taxes imposed by towns, cities, counties or municipalities of this State.
This exemption is authorized by Section 84-2011, Georgia Code Annotated (1954 Supplement), Acts 1953, November Session, pages 431, 434, in the following language:
"The following classes of persons subject to the limitations hereinafter provided may peddle, conduct business, or practice the professions and semi-professions in any town, city, county or municipality in this State without paying a license for the privilege of so doing, provided such person receives a certificate of exemption issued by the State Revenue Commissioner as hereinafter provided:
"(a) Any disabled veteran of any one or more of the following wars: (1) Spanish-American War, (2) World War I, (3) World War II, (4) Korean Conflict.
"(b) Any blind person. "(c) Any veteran of peace-time service in the United States Armed Forces who has a physical disability incurred during the period of said service." This provision in varying form has been the law of this State for many years. In 1899 the case of Hartfield et al v. City of Columbus, 109 Ga. 112, arose under Section 1642 of the Political Code which authorized any indigent or disabled Confederate soldier residing in this State to "peddle or conduct business in any town, city, county or counties thereof, without paying license for the privilege of so doing." The plaintiff in that case was employed by an ex-Confederate soldier who held a certificate authorizing him to conduct business without a license. Plaintiff was employed as a driver in a draying business in which he had no interest. He was convicted in recorder's court of the City of Columbus of the offense of "doing business without license." He sued out a certiorari, which was overruled. In reversing the overruling of the certiorari, Judge Lumpkin said:

906
"We accordingly hold that a Confederate soldier having a proper certificate from the ordinary may carry on a draying business without paying any license for the privilege of so doing. . . . As a matter of course, his servants and employees are also protected by the certificate under which he operates, and can not themselves be called upon to pay for any license covered by the exemption granted to him." The holding in the Hartfield case was followed in Anglin v. The State, 12 Ga. App. 159, in which on page 160 the following language was used:
"We infer that it was the intention of the Legislature to allow Confederate veterans to employ agents, servants, or other employees in the conduct of their peddling, where it appears that the alleged agents and employees do in fact and in good faith sustain that relation to the holder of the certificate." Allen v. City of Atlanta, 52 Ga. App. 187, is a case in which the plaintiff in error was convicted in the recorder's court of the City of Atlanta for operating a filling station without a license even though the undisputed evidence showed he had no financial interest in the business, but was merely the employee of a disabled World War I veteran who held a license pursuant to Section 84-2011, Georgia Code of 1933. In reversing the overruling of the certiorari, the Court held that the undisputed evidence showed the plaintiff in error had no interest in the business and was merely an employee of a person who held a disabled veterans license. An almost identical case, decided in 1940, involving a dry cleaning business, is Childrey v. City of Atlanta, 62 Ga. App. 107. Although the present statute was enacted in 1953, Section 84-2011, Georgia Code Annotated (1954 Supplement), Georgia Laws 1953, November Session, pages 431, 434, it is in substance the same as the statute under which the foregoing case arose, these cases are therefore valid in determining issues arising under the present statute. By virtue of the above discussed authorities, I am of the opinion that a disabled veteran who holds a certificate of exemption issued by the State Revenue Commissioner to conduct a business may employ agents, servants and helpers and the said agents, servants and helpers are not required to obtain a license to conduct the business.
VETERANS-Exemption from Taxation-Licenses (Unofficial) Disabled veterans exempt from paying occupational or revenue license
taxes, but are not exempt from paying regulatory license fees.
June 14, 1955
Honorable Dorsey Jones This will acknowledge receipt of your letter relative to veterans' exemptions
from paying license fees imposed by your city. Section 84-2011, Ga. Code Ann. 1954 Supp., Ga. L. 1953, Nov. Sess., pp. 431,
434, reads as follows: "The following classes of persons subject to the limitations herein-
after provided may peddle, conduct business, or practice the professions and semi-professions in any town, city, county or municipality in this State without paying a license for the privilege of so doing, provided such person receives a certificate of exemption issued by the State Revenue Commissioner as hereinafter provided:

907
"(a) Any disabled veteran of any one or more of the following wars: (1) Spanish-American War, (2) World War I, (3) World War II, (4) Korean Conflict.
"(b) Any blind person. "(c) Any veteran of peace-time service in the United States Armed Forces who has a physical disability incurred during the period of said service. (Acts 1953, Nov. Sess., pp. 431, 434.)" In McKinney v. Patton et al, 176 Ga. 719, the Supreme Court held that under the statute a veteran was authorized to peddle or conduct business "without paying a license for the privilege of so doing," thus providing an exemption from liability for occupation taxes without purporting to confer any additional right or privilege. (Emphasis supplied.) The holding in the McKinney case was followed in Snipes v. Flournoy et al, 178 Ga. 815, in upholding a judgment of refusal of mandamus to require the Georgia Real Estate Board to issue to plaintiff as a disabled war veteran a license as a real estate broker without paying the $25.00 license fee. The distinction between an occupation tax and a regulatory license fee was pointed up by the case of City of Marietta v. Howard, 208 Ga. 719, which held that a taxi operator would be required to purchase a license from the City even though the operator was a disabled war veteran and was exempted from occupational taxes. Judge Duckworth, speaking for the Court, said: "That law (Section 84-2011, Ga. Code Ann.) purports only to relieve the person there described from paying any fee to cities, towns, or counties for the right to engage in business. The law stops there, but this petitioner seems to have construed it to constitute a denial of any power of such subordinate governmental units to regulate businesses that require close policing. The law relied upon neither expressly nor by implication takes away the police power of towns, cities, or counties."
In an opinion dated July 23, 1953 reported in Opinions of the Attorney General, 1952-1953, the Attorney General of Georgia held that Veterans are exempt under Section 84-2011, Ga. Code Ann., only from revenue taxes, and are not exempt from the payment of license taxes imposed for regulatory purposes.
It is, then, well settled that Section 84-2011, Ga. Code Ann. (1954 Supp.), exempts the disabled veterans, who qualify under the terms and conditions of the law, from the payment of occupational taxes and does not confer a right to exemption from a fee or tax imposed under the police power for regulatory purposes.
In view of the fact that you did not specify the particular license fee from which the veterans are claiming exemptions, it is impossible for this office to make a concrete ruling. However, it is trusted that the rules and principles discussed above will be sufficient for your purposes.
VETERANS-Exemption from Taxation-Licenses (Unofficial) Discusses issuance of licenses to peddle to veterans.
July 3, 1956
Mrs. R. L. Bell You state: "Please give us the law on Veterans license, State, county, and mu-
nicipal. Do towns have to recognize veterans State license and when they have plenty of money are they entitled to them?"
The State does not have available a pamphlet containing the laws relative to veterans' licenses. The Georgia Code Sections covering licensing of disabled vet-

908
erans and the regulation thereof is found in Chapter 84-20 of the Code of Georgia. I suggest that if you have a Georgia Code available it would be helpful for you to read this entire chapter. In reply to your letter, municipalities are required to honor veterans State licenses.
Code Section 84-2011 gives the classes of persons entitled to obtain a veterans license. This section is as follows:
"Disabled veterans and blind persons to peddle or conduct business or profession without license.-The following classes of persons subject to the limitation hereinafter provided may peddle, conduct business, or practice the professions and semi-professions in any town, city, county or municipality in this State without paying a license for the privilege of so doing, provided such person receives a certificate of exemption issued by the State Revenue Commissioner as hereinafter provided:
"(a) Any disabled veteran of any one or more of the following wars: (1) Spanish-American War, (2) World War I, (3) World War II, (4) Korean Conflict.
"(b) Any blind person. "(c) Any veteran of peace-time service in the United States Armed Forces who has a physical disability incurred during the period of said service."
Code Section 84-2012 sets forth the disability required before a veterans' license san be obtained and is as follows:
"Same; showing to be made; extent of disability; limit of income; period of service.-(a) No person shall be entitled to a license to peddle, conduct business or practice the professions or semi-professions under this law ( 84-2011 through 84-2019) until it has been made to appear to the issuing authority that the person making application therefor is a resident of this State; that the income of such person is such that he or she is not liable for the payment of State income taxes.
"(b) Blind persons must furnish satisfactory proof of their blindness to the issuing authority.
"(c) A war veteran must furnish satisfactory proof that he or she has a physical handicap disabling to the extent of 10 per cent or more; that his or her service in the Armed Forces of the United States was terminated under conditions other than dishonorable; and that his or her service or some part thereof were rendered during a war period as defined by an Act of Congress of the United States, approved March 20, 1933, entitled 'An Act to Maintain the Credit of the United States,' and commonly known as Public (Law) No.2, 73rd Congress; or that some part of his or her service was rendered on or after December 7, 1941 and before December 31, 1946; or that some part of his or her service was rendered on or after June 27, 1950 and before that date which is fixed by proclamation of the President of the United States as the date of termination of the conflict in Korea. Proof of such 10 per cent disability shall be established upon the written certificate of two physicians as to such disability, or by a letter or other written evidence from the United States Veterans Administration stating the degree of disability, or written evidence from the branch of the Armed Forces of the United States in which such veteran served.
"(d) A veteran of peace-time service in the United States Armed Forces must furnish proof that he or she has a physical disability to

909
the extent of 25 per cent or more incurred in line of duty during the period of said service by a letter or other written evidence from the United States Veterans Administration stating the degree of disability, or by written evidence from the branch of the Armed Forces of the United States in which such veteran served; that his or her service in the Armed Forces of the United States was terminated under conditions other than dishonorable." Code Section 84-2013 provides that before an applicant can be eligible to obtain a veterans license he must make an affidavit before the ordinary that he is not subject to the payment of income taxes to the State of Georgia. This Section is as follows:
"Same; application to ordinary; affidavit; certificate of eligibility.All persons within the groups enumerated in Section 84-2011 seeking a certificate of exemption from the payment of a license for peddling, conducting a business or practicing a profession or semi-profession must first make application to the ordinary of the county in which he or she resides for a certificate of eligibility. Each applicant shall make an affidavit before the ordinary that he or she is not subject to payment of any income taxes to the State of Georgia. Upon receipt of the evidence required in Section 84-2102 and the execution of the affidavit required by this section, the ordinary shall issue a certificate of eligibility stating that the applicant has furnished the proof required for the issuance of a certificate of exemption required by the State Revenue Commissioner."
VETETRANS-Exemption from Taxation-Licenses (Unofficial) Disabled veterans are exempt from license taxes from the State on any
local governmental subdivisions, so long as they are the exercise of rights, not privileges.
November 15, 1956
Mr. Jimmie George You pose the following question: "Will you inform me as to the exact extent the Georgia law granting free business licenses to disabled veterans applies to Darien, Georgia. To what extent does this apply to local residents and to transients?" The law to which you have reference is codified in Chapter 84-20 of the
Georgia Code Annotated, Sections 84-2011 to 84-2024. Section 84-2011 provides that the following classes of persons may peddle, conduct business, or practice the professions and semi-professions in any town, city, county or municipality in this State without paying a license for the privilege of so doing, provided such persons receive a certificate of exemption issued by the State Revenue Commissioner. The section then lists three classes of persons entitled to this privilege, which I deem it unnecessary to enumerate here. Based on the language of this section, it is my opinion that it was the intent of the Legislature to make the benefits of this Act available with respect to all local governments which have the authority to license businesses and to charge a fee or license tax. To the extent that the City of Darien has this authority, it would seem to be applicable to the City.
The Supreme Court has held with respect to the current law that this section has reference only to the fees charged by municipalities for exercising rights as

910
distinguished from privileges and that it does not confer upon one seeking to engage in a business classified as a privilege immunity from satisfying the conditions legally imposed by the licensing agency including the payment of any fee imposed in order to have such privilege. City of Marietta v. Howard, 208 Ga. 719. This case involved one seeking to avoid the payment of a license fee for operating a taxicab business, and it was held that the conduct of this kind of business constitutes a priviiege and not a right.
Section 84-2102 provides that no perso~ shall be entitled to a license under the provisions of this law unless it is made to appear to the issuing authority that such a person is a resident of this State. This section also imposes, along with the rest of the Act, other limitations on the right to secure free licenses to engage in business. I do not find any authority for a local licensing agency to refuse to issue such a license merely because the applicant is a transient, provided he lives in the State of Georgia.
VETERANS-Exemption from Taxation-Real Estate (Unofficial) Real estate bought by a veteran and paid for exclusively with his govern-
ment compensation is not exempt from taxation by his county.
January 20, 1955
Mr. Willie D. Harper I wish to acknowledge receipt of your letter of January 18, 1955 in which you
ask whether or not property bought by a veteran and paid for exclusively with his government compensation or pension is subject to taxation in the county.
This question was decided in the case of McCurry v. Peek, 54 Ga. App. 341, wherein the Court of Appeals held:
"The exemption from levy provided by section 3 of the Act of Congress approved August 12, 1935, relating to world-war veterans in respect to 'payment of benefits,' does not extend to real estate purchased with such 'benefit payment' received from the United States by a veteran as 'benefit payment.'"
VETERANS-Official Records Veterans are entitled to receive certified copies of official records from the
Ordinary for the disability claims without charge, but the Attorney General is not authorized to direct an Ordinary to perform an official act.
December 30, 1955
Honorable Pete Wheeler, Director State Department of Veterans Service
Receipt is hereby acknowledged of your letter requesting information concerning the acquisition of certified copies of official records from county ordinaries by veterans desiring to make disability claims.
At the 1953 January-February Session of the General Assembly, provision was made for the acquisition of such records without payment of the usual fee therefor where such records were desired by the veteran or any dependent thereof, the VA, or any veterans' organization, and where such veteran certifies that he is unable to pay for same. (Ga. Laws 1953, Jan.-Feb. Sess., p. 117; Code Ann., Sec. 78-101.)

911
[Editor's Note: See Ga. Laws, 1956, p. 614, which eliminates requirement that veteran must certify he is unable to pay.]
This Act further provides: "In any county where the county official referred to in this section is
on a fee basis, such official shall be paid the fee for such service by the county. Such payments shall be made on a monthly basis from county funds." The law does not authorize me to direct county officials to do or not to do official acts, and I am unable to comply with your request that I write a specified ordinary citing him the above law; however, I am enclosing a copy of this letter which you, in your discretion, may send to said ordinary for his personal, unofficial information.
VETERANS-Privileges (Unofficial) Relates effect of punitive discharge from military service on privileges
citizen of Georgia would otherwise be entitled to.
May 5, 1955
Lieutenant B. P. Badley This is in response to your letter of April 4, 1955, relative to the loss of benefits
under Georgia Laws arising from an undesirable or punitive discharge from the Armed Forces of the United States.
The first question raised is as follows: "Is there a loss of voting privilege and, if so, for how long?"
Under the present voting laws of Georgia there is no specific provision relating to undesirable or punitive discharges from the United States Armed Forces. See Section 34-101 et seq, Ga. Code Ann., 1955 Cumulative Pocket Part. The present law does provide that in cases of electors who are illiterate, they may, nevertheless, be entitled to vote provided they are of good character and understand the responsibility of citizenship. No cases have arisen under this provision of the election laws and, therefore, the general law as to what constitutes good character would no doubt apply. It is entirely possible that a dishonorable or other undesirable discharge might be held as evidence of lack of good character were this issue presented to a court.
The second question raised is as follows: "Is there a disability to the holding of office, elective or appointive?"
Answer: None. The third question raised is as follows:
"Is there a disability to the holding of any employment where salary or compensation comes from public funds?" Art. III, Sec. VII, Par. 24 of the Constitution of the State of Georgia, 1945, at Section 2-1924, Ga. Code Ann., reads as follows:
"Neither the State of Georgia, nor any political subdivision thereof, shall inaugurate or maintain any civil service scheme of any nature whatever which fails to provide for honorably discharged veterans of any war, and the said State of Georgia, or any political subdivision shall, if a civil service scheme is originated or is already in force, provide equal preferences accorded to such veterans as now exist under Federal Civil Service Laws."

912
Section 40-2207, Georgia Code Ann., 1951 Cumulative Pocket Part, provides inter alia as follows:
"* * * The rules and regulations issued by the Merit System Council
hereunder shall conform to the minimum standards for systems of personnel administration issued by the Social Security Board under the Federal Social Security Act and such other personnel standards as have been specified by the other Federal Departments from which Federal grants are obtained for use by the several State departments covered by this Chapter and the Governor's executive order hereunder." Thus, under these laws insofar as employment by the State of Georgia is concerned the same requirements as are imposed on Federal employees are made applicable to State employees. Thus, where Federal laws prohibit anyone from employing a person where they have been given a dishonorable discharge from the Armed Forces would likewise apply to State employment.
The fourth question raised is as follows: "What veteran's rights or tax privileges, if any, are lost, e.g., right
of homestead exemption?"
Section 84-2011, Ga. Code Ann., 1054 Supp., provides that any disabled or indigent soldier may peddle or conduct business in any town, city or county of this State without paying a license for the privilege of so doing, provided his service in the Armed Forces of the United States was terminated under conditions other than dishonorable. This is the only provision of Georgia law relating to tax privileges or exemption for veterans.
The fifth question raised is as follows: "Does a veteran lose state mustering out pay?"
The State of Georgia up to the present time has not enacted any legislation authorizing mustering out pay or bonus or other monetary payment for veterans.
The sixth question raised is as follows: "Will such discharge prevent entrance into profession or employment
fields where a license or other certificate is required for practice?" The present laws setting up the requirements for admission to practice professions or businesses requiring a license from the State uniformly require the applicant for such license to present evidence of good character. Although I am not aware of any decision arising under any of these laws in which the precise question of whether or not a dishonorable discharge will bar the issuance of such license, it seems reasonable that a dishonorable or other undesirable discharge would be evidence of bad character and would certainly be an obstable that would have to be overcome in making application for a license to practice in a business or profession.
VETERANS-School Training A school which changes from an all-white school to an all-colored school
does not thereby lose its eligibility to qualify for the training of veterans.
May 31, 1956
Honorable Pete Wheeler Department of Veterans Service
Receipt is acknowledged of your letter requesting my opinion on the question as to whether or not Draughon's Business College may qualify for training of veterans under P. L. 550, the Korean G. I. Bill.

913
You state that the college, located in Savannah for many years, has afforded business courses to white veterans and non~veterans, and that the new owner now wishes to relocate the school and offer such courses only for colored veterans and non-veterans. The question you propound is whether or not the school can qualify under P. L. 550 as one in continuous operation for a period of two years immediately prior to the enrollment of veteran students.
Firstly, the question is not affected in the least by the laws of Georgia requiring segregation of the races, because these laws apply only to schools supported directly by state or local funds. See the Act prohibiting expenditure of state or local funds for mixed schools (Ga. Laws 1955, p. 174) and the General Appropriations Act of 1956 (Ga. Laws 1956, p. 753).
The fact that the school is being relocated and changed from one for white students to one for colored students would not, in my opinion, cause the school to lose its identity as an operating entity so as to become an entirely new operation.
The pertinent section, 38 U. S. C. A. 932 provides as follows: "(a) The Administrator shall not approve the enrollment of an
eligible veteran in any course offered by an educational institution when such course has been in operation for less than two years.
(b) Subsection (a) of this section shall not apply to-(1) any course to be pursued in a public or other tax-supported educational institution; (2) any course which is offered by an educational institution which has been in operation for more than two years, if such course is similar in character to the instruction previously given by such institution; or (3) any course which has been offered by an institution for a period of more than two years, notwithstanding the institution has moved to another location within the same general locality." Note that paragraph (2) says "if such course is similar in character to the instruction previously given ...," and paragraph (3) declares that relocation of a school "within the same general locality." Under this section, I am of the opinion that the Draughon's Business School will qualify, but under the applicable law, it would appear that the Administrator of Veterans' Affairs is the final judge thereof. However, in any event, there is nothing in the Georgia Segregation Laws to affect the question one way or another.
VITAL STATISTICS-Examination of (Unofficial) Discusses requirements necessary for an examination of Ordinary's record
of births and deaths.
February 1, 1954
Mr. R. S. Wimberly You inquire whether and to what extent I feel that the Ordinary's records of
births and deaths may be made available to welfare workers. As you know, Act No. 184 (House Bill No. 197), Georgia Laws, January-Feb-
ruary Session 1953, page 140, at 148, provides in part as follows:
"(3) The * * * ordinaries * * * shall not permit the inspection of vital statistics records * * or issue a certified copy of a certificate or part there-
of unless they are satisfied that the applicant therefor has a direct and
tangible interest in the matter recorded. The decision of the * * * ordinaries * * * shall be subject to review by the * * * superior court of the county in which the question arises * * *." (Emphasis added.)

914
To me it appears quite clear that: (1) the ordinaries are precluded by law from permitting any person from inspecting any record unless there is a direct and tangible interest in the subject matter of that particular matter, i.e., birth or death, (2) that the ordinary is the one to determine whether the alleged interest is in fact direct and tangible, and (3) that the ordinary's determination is subject to review by the superior court, and probably only by the superior court.
Since no person could conceivably have a direct and tangible interest in each and every record of births and deaths in any one county at any one time, I think that the ordinary is neither called upon or authorized to permit any person access to the vital statistics records, collectively, but that he or she may and should inquire what specific record, i.e., what brith or what death the inquirer has an interest in, what the basis of the interest is, and what use is to be made of the information.
It must be remembered that laws such as this are designed to protect the individual's right of privacy regarding matters of the utmost delicacy, matters which could in some cases cause extreme embarrassment, or worse, and which, therefore., must be strictly and literally construed, and applied for the protection of the innocent.
WILLS AND ADMINISTRATION OF ESTATES-Foreign Corporations as Executors (Unofficial) A Connecticut corporation may not act as executor or testamentary trustee of the estate of a Georgia citizen. (Editor's Note: See Act. 240, 1957 Session of General Assembly.)
December 7, 1954
Mr. Hatton Lovejoy You ask if the State of Georgia has extended the right to corporations of
Connecticut to act as executor or testamentary trustee where named in the will of a Georgia citizen.
It is believed that the answer to your question is found in Section 113-1206 of the Georgia Code Annotated, which provides:
"A citizen of another state or territory of the United States may be nominated and act as executor or co-executor of the will of a deceased citizen of Georgia, when such person shall be heir at law, of equal, greater, or sole interest, of the estate of the deceased, and will give bond and comply with the requirements specified in cases of non-resident administrators." (Emphasis supplied.) You will note that the above section requires the non-resident citizen to be a natural person and an heir at law before such non-resident citizen can be an executor of the will of a Georgia citizen. I do not find any amendment to this statute in the 1954 Supplement to the Code. [Editor's Note: See Ga. Laws, 1957, p. 278, for instances where foreign corporations may serve in a fiduciary capacity.]
WILLS AND ADMINISTRATION OF ESTATES-Heirs (Unofficial) Widow would inherit, whether living with husband at time of his death
or not.
Mr. James W. Regan Reference is made to your inquiry regarding the law of descent and distribu-
tion and more especially the question of a wife's right to inherit from her husband with whom she was not living at the time of his death.

915
The provision cited by you formed a part of a statute passed by the 1851-52 Stlssion of the General Assembly and approved December 30, 1851. This Act had to do with the property rights of the wife in and to property acquired as the result of her labors and the labor of his children when they had been deserted by the husband and father. No mention was made of inheritance or descent and distribution. When, however, the present Georgia Code (1933) was adopted, the Section
(Sec. 53-507) contained the provision that "* * * the same shall descend to her children * * *." Whether this is reconcilable or in conflict with Section 113-902 which provides in part that "* * * the husband is her sole heir * * *," I would not
wish to say without more study and research than time permits. It is apparent, however, that under Section 113-903, Paragraph 1, upon the
death of the husband without lineal descendants, the wife is his sole heir, and that under Paragraph 3, if, upon the death of the husband, there are children, the wife shall have a child's part unless the shares exceed five in number, in which case the wife shall have one-fifth part of the estate. There is, so far as I am aware, no parallel provision to that discussed in the preceding paragraph.
WILLS AND ADMINISTRATIONS OF ESTATES - Inheritance by Adopted Child (Unofficial) General rule is adopted child may inherit from natural father unless barred by State law.
January 5, 1955
Mr. L. F. Sears This will acknowledge receipt of your letter of December 7, 1954, in which you
request an opinion as to whether an adopted heir has a legal right to share in her natural father's estate, and this letter addressed to you at Emory University Hospital is in confirmation of my telepohne conversaiton with Mrs. Sears yesterday.
As I told Mrs. Sears over the telephone, the problem posed by your question is not an easy one to which a "yes" or "no" answer may be readily given. However, the problem appears to have been considered in annotations in 80 A. L. R. 1403 and 123 A. L. R. 1042, and it is my suggestion that if your attorney has not already noted these annotations that you may wish to call them to his attention. Generally the solution seems to depend upon the provisions of the adoption law of the State wherein the adoption takes place, and the general rule seems to be that unless such State law specifically, or by necessary implication, provides that the adopted child shall lose or be barred from, as the result of the adoption, its rights as heir of its natural parents, it retains all.of its rights as an heir.
WILLS AND ADMINISTRATION OF ESTATES-Intestacy (Unofficial) Discussion of laws of intestate succession, and administration of intestate
estate.
September 16, 1954
Mr. George Hembree Reference is made to your questions relating to the law of inheritance in the
State of Georgia. When a husband and father dies intestate and leaves a wife and children, the

916
wife takes a.child's part unless the number of children exceed five, in which case the wife has a one-fifth part. If she elects to have her dower, she shall have no further interest in the estate. (See Georgia Code Annotated, Section 113-903 (3) ).
The Administrator is allowed twelve months from the date of his qualification to ascertain the condition of the estate and make payment of debts and distribution of proceeds (113-1505). The Administrator shall pay the debts of the estate, wholly or in part at the end of the first year (113-1507).
An Administrator may exercise his discretion in continuing the business of his intestate until the expiration of the current year and up until the time of sale or distribution the Administrator shall manage the property to the best interest of the estate (113-1523).
If at any time it shall become necessary for the payment of debts of the estate or for distribution to sell the lands of the decedent, the Administrator shall by written petition apply to the Ordinary for leave to sell.
These are the highlights of the applicable portions of the Georgia Code Annotated regarding your questions as you put them in your letter.
WILLS AND ADMINISTRATION OF ESTATES-Probate of Wills (Unofficial) (a) Time required for probation of will depends on when the will is offered for probate. (b) For probate in "common" form, no notice is required, while to probate in "solemn" form, it is necessary to notify all heirs-at-law.
November 17, 1954
Mrs. Wallace Cooper In answer to your question as to how much time can elapse before a will is
probated, I will have to reply that depends entirely on how remiss the executor and other interested parties are in offering the will for probate, for, obviously, it can not be probated until affirmative action is taken by them. Thereafter the
executor has one year in which to qualify and one year or as much longer as the
Ordinary (who is the judge of the Probate Court in this State) may allow upon proper showing made, to wind up the affairs of the estate and make proper dis~ tribution to the beneficiaries.
The Georgia Code Annotated, Section 113-615, provides that "The Executor shall offer the will for probate as soon as practical after the death of the testator, and shall qualify, unless restrained by the will, within 12 months after the same is admitted to record." (Emphasis added.)
As to the question of notice, you will find by reading Section 113-601 that a will may be probated either in "common form" or "solemn form." The former may be accomplished without notice to anyone but such probate and record is not conclusive upon anyone interested in the estate adversely to the will. The latter requires notice to all heirs at law (113-602) and such notice shall be personal if the party resides in the state, but may be made by publication upon proper order of court where such party resides outside the state or is unknown (113-607).

917
WILLS AND ADMINISTRATION OF ESTATES-Transfer of Decedent's Stock (Unofficial) Discussion of law pertaining to affidavit of executor necessary to secure transfer of decedent's stock. December 15, 1954
Mr. Albert N. Danoff There is no offcially approved form of "Non-Resident Affdavit" provided for
use in connection with the sale and transfer of stock in this State. The affidavit should set out, in general terms, the residence and length of resi-
dence of the decedent, his (or her death,) the appointment and qualifications of his (or her) executor or administrator, the fact that all debts of the estate have been paid or that sufficient funds have been provided for the purpose and the authority of the personal rep1esentative to dispose of or transfer the securities. This affidavit should be accompanied by certified copies of the will (if any), the letters testatmentary and related documents.
I suggest that you communicate with the officers of the corporation who will be asked to transfer the stock and seek to determine what, if any, form they prefer.

919
INDEX TO OPINIONS OF THE ATTORNEY GENERAL 1954, 1955 and 1956
Page
ABSENTEE BALLOTS. See Elections.
ACCOUNTANTS. See Professions, Businesses and Trades, this index.
ADJUTANT GENERAL. See Public Defense.
ADMISSION FEES. Taxation. Admission fees subject to sales tax, although no item of tangible property involved ---------- 830 Admission fee to fish in private pond subject to sales taX------- 830
ADMINISTRATION OF ESTATES. See Wills and Administration of Estates. this index.
ADMINISTRATIVE LAW. "Res judicata" inapplicable as restricting the determination of an administrative tribunal--------------- 280
ADOPTION. Inheritance by adopted child ---.----------------- 915 Procedure outlined ------------------ 1
AD VALOREM TAX. See Taxation.
ADVERTISING. As creating a Contract------------ 2 False and misleading may be enjoined by FTC------------- 2 "Official organ" of countY----------------------------------------- 68 Rates for legal advertising------------------------------- 2
AFFINITY. See Domestic Relations, this index.
AGRICULTURAL EXTENSION SERVICE. See Agriculture.
AGRICULTURE. Agricultural Extension Service. Authority for ----------------------------------------------------- 4 Agricultural Products-Taxation. Seed corn grown in State is exempL---------------------------------------- 715 Co-operative Marketing Associations. See Corporations, this index. Cotton. Penalties for bales falling below weight set by purchaser........------- 11 Eggs. Inspection fee _________________________________________ ---------------------------------------------------------------- 17 Entomology Department. Delegation of duties by Director.------------------------------------------------- 5

920

Page

AGRICULTURE- (Cont'd)

Farm Products. See also Cotton and Livestock this heading. Municipal licenses for sale of.................................................................................. 8 Not exempt from ad valorem taxation in hands of processor__________________ 708

Farmers' Market. Business located on exempt from municipal taxation and regulation........ 494

Feed. Disposition of penalties on...................................................................................... 14

Garbage. Treatment prior to feeding to livestock .......................................................... 10

Livestock. Duties of Governor with respect to Livestock Development Authority.... 12 Law relative effective date of Livestock Running at Large Act................ 5 Sale of livestock on State nroperty________________________________________________ ------------------- 659 Treatment of garbage prior to feeding to.......................................................... 10
Weighing ---- 10
Milk Control Board. Sale of "filled milk" for human consumption prohibited.............................. 6

Seeds.

Noxious seed requirements.................................---------- 891

Soil Conservation Districts.

Agencies of the State______________________________ _______________

645

Qualify to participate under the Federal Watershed and

Flood Prevention Act..........----- 7

Taxation.

Agricultural Products. Not exempt from ad valorem tax in hands of processor.......................... 708

Former subject to sales tax as purchaser of binder or baler twine.......... 832

Feed mill purchased out of state to do service work for farmers

in Georgia subject to use tax.......................------ 831

Motor Fuel Tax Refunds. Gasoline used to operate machinery to extract sand or clay not "for agricultural purposes" and not entitled to tax refund........................ 820 Planting, growing, cultivating pine trees is not "farming" and not
entitled to refund of tax on gasoline used-------- 819
Weights and Measures.
Bonds of Certified Public Weighers------------- 9 Penalties for bale of cotton falling below minimum weight
set by purchasers------------ 11 Weighing of livestock..............----- 10

ALABAMA. State boundary with Georgia....--------- 622

ALCOHOL-See also Intoxicating Liquors, this index. Regulation governing shipment of non-beverage pure alcohol........................ 450

ALCOHOLISM. Georgia Commission on, employees eligible for membership in Employees' Retirement System ----------- G98

921
Page
ALIENS Employment by State ----------------------------------------------------------------------------------------------- 627 Insurance companies insuring cargoes of Georgians in international commerce ----- 410

ALIMONY. See Domestic Relation, this index.

AMMUNITION. See Firearms.

APARTMENT HOUSES. Taxation-Homestead Exemption. Owner entitled to exemption if occupied as home............................................ 721

ARCHITECTS. See Professions, Businesses and Trades, this index.

ARMED SERVICES. See Military Personnel.

ARRESTS. See Criminal Law.

ASSAULT. See Criminal Law.

ASSESSMENT. See Taxation.

ATTORNEYS-AT-LAW. Appointment in Habeas Corpus cases-------------------------------------------- 133 County attorney cannot render service in official capacity to a political party..---------------------------------------------- 70 Denial of counsel as grounds for habeas corpus proceeding...--------------- 134 Employment by county for Board of Education...........................---- 183 Employment by County Board of Education..............-----'---------------- 183

ATTORNEY-GENERAL. No power to direct Orcj.inary to perform official act............:............................. 910 Representation of Insurance Commissioner in anti-trust action...................... 437

AUTHORITIES.

Fernandina Port Authority, Power in Georgia _____________ .................. _

398

Georgia Ports Authority, Agency of the State _____ ___

636

Georgia Turnpike Authority, Effect of Act creating.................--------------------- 398

Hospital Authorities.

Not immune from liability in tort---------------- 892 Livestock Development Authority, duty of Governor------------------ 12 State Bridge Building Authority, Lease of bridge partially in

Florida to State Highway Department---'------------- 403 State School Building Authority.

Generally ------------------------------------'---------------------------------------------'---------------------------------- 177 Letting of contracts.......,............................................................................................ 220

Sublease of building leased from---------- 224

922

Page

AUTOMOBILE CLUBS. Guaranteed bail bonds are insurance_________________________________________

--------------------- 434

AUTOMOBILES. See Motor Vehicles.

AUTOPSY. See Coroners.

BAIL. See Criminal Law. Guaranteed bail bonds by auto club are insurance------ 434

BALLOTS. See Election.

BANKRUPTCY. Effect of discharge on suspension of driver's license------------ 587

BANKS AND BANKING. Branch Banks. Establishment in a city where branch already exists.................................... 18 Establishment where bank is in a holding company relationship to another bank.--------------------------------------------------------- 21 Building and Loan Association. May be licensed by municipality........--------------- 494 Charter. A purported renewal of a bank charter made five years prior to the expiration date is invalid and of no effect------------ 22 Bank subject to supervision of Superintendent of Banks, although charter improperly issued and only de facto corporation.......................... 30 Must be an investigation by Department of Banking prior to formation of a de jure bank._____________________________________________________________________________ 22
Credit Banks-Taxation. Federal Intermediate Credit Bank debentures exempt from intangible tax --------------------- 687
Credit Unions. Authority and liability -------- 27 Increase of capital and borrowing........................................................................ 25
Taxation. Credit unions are not subject as consumers to sales tax........................ 848 State credit unions immune from intangible tax...................................... 779
Federal Land Banks-Taxation. Not liable for intangible tax at time of recording notes held by it________ 784
Holding Companies. Establishment of branch banks by........................................................................ 21
Insurance. Bank not authorized to carry on business of____________________________________________________ 32
Loans. Extent of loans to one individual and on agriculture products.................. 31 Fallacies in laws regulating small loans............................................................ 38 Loan committees not required in Georgia banks.............................................. 35

923

Page

BANKS AND BANKING-(Cont'd)

National Banks.

Conversion into State bank-------------------------------------------------------------------------------------- 29 Taxation.

Municipality cannot impose occupational tax on------------------------------------------ 688 Not subject to intangible taX------------------------------------------------------------------------------ 688 Powers.

Of State banks enumerated-------------------------------------------------------------------------------------- 32

Private Banks-Taxation.

Monied capital subject to five mill taX-------------------------------------------------------------- 692 Not entitled to income tax exemption granted State and National Banks 693

Rules governing taxation of private banks discussed------------------------------------ 690

Profits-Taxation.

Banks must pay ad valorem tax on surplus and undivided profits-------- 687

Real Estate.

Bank carrying on business of---------------------------------------------------------------------------------- 32 Taxation.

Law quoted on taxation of' real estate owned by banks---------------------------- 693

Savings and Loan Associations.

As legal investment for school funds------------------------------------------------------------------ 246 Municipality cannot require Federal Savings and Loan Association to

pay business license taX-------------------------------------------------------------------------------------- 694

Registration with Corporation Commissioner---------------------------------------------------- 35

Taxation.

'

Long-term real estate notes are not to be excluded in determining "net worth" for purpose of ad valorem tax because they have been

subject to intangible tax---------------------------------------------------------------------------------- 805 Savings and Loan Association cannot be taxed on its "shares"

outstanding ---------------------------------------------------------------------------------------------------------- 695 Subject to intangible taX-------------------------------------------------------------------------------------- 805

Shareholders-Rights.

Minority shareholder has right to inspect books of bank------------------------------ 37

Shares-Taxation.

Tax rate on shares quoted-------------------------------------------------------------------------------------- 697 True market value of outstanding shares of stock subject to

al valorem tax -------------------------------------------------------------------------------------------------------- 696

State Bank.

Conversion into by National Bank------------------------------------------------------------------------ 29

Powers ---------------------------------------------------------------------------------------------------------------------------- 32

State Banks-Taxation.

Municipality cannot collect business license tax from---------------------------------- 699 Sales to for banking purposes exempt from sales tax---------------------------------- 699 State and National Banks-Taxation.

Exempt from sales taX-------------------------------------------------------------------------------------------- 694 Liable for payment of intangible tax when acting as trustee-------------------- 698

Superintendent of Banks.

Has jurisdiction over bank although charter improperly issued and is

only de facto corporation-------------------------------------------------------------------------------------- 30

Taxation. See also Taxation.

924

BARBERS. See Professions, Business and Trades, this index.
BASKET FISHING. See Game and Fish.

Page

BATTEY STATE HOSPITAL. Individual may be released by Board of Pardons and Paroles conditioned upon remaining at hospital for treatment______ --------------------------------------------------- 504

BEAUTICIANS. See Barbers and Hairdressers, Professions, Business and Trades, this index.

BEER. See Intoxicating Liquors, this index.
BIBLE. Reading in public schools discussed------------------------------------------------------------------------- 209
BICYCLES. Not regulated by State law-------------------------------------------- 896 -
BLUE LAWS. See Criminal Law.
BLUE-SKY LAW. See Securities, this index,

BOARD OF EDUCATION. See Education.
BONDS. Acceptance of cash bonds for traffic offenses------------------------------:_______________________ 898 Retail Liquor Bond covers all taxes due to the State, not just liquor taxes 452 School Bonds. See Education-School Funds.

BUILDING AND LOAN ASSOCIATION. See Banks and Banking, this index.

BURNING. See Forestry.

BUSES. See Education-School Buses, this index.

CANDIDATES. See Elections.

CANDY. Use of intoxicating liquors in manufacture unlawful------------------------------------'- 462

CARRYING CHARGES. Law relative to discussed----------------------------------------------------------------------- 448



925
Page
CEMETERIES. Sale of interment rights is sale of real estate...................................................... 596
CHAMBER OF COMMERCE. Illegal for city to support through tax funds........................................................ 499
CHARITIES. See Public Charities.
CHARTER. See also Corporations, this index. Fire insurance company cannot surrender charter to Secretary of State. 413 Insurance company cannot amend where it has no stockholders or officers 411
CHATTAHOOCHEE RIVER. Boundary between Georgia and Alabama.............................................................. 622
CHIROPRACTORS. See Prof'essions, Businesses and Trades.
CHURCHES. Sale of intoxicating liquor within 100 yards of, unlawful................................ 461
CIGARS AND CIGARETTES. Sales tax applicable only to portion of purchase price to exclude State excise tax............................................................................................................ 835
CITIES. See Municipal Corporations.
CIVIL DEFENSE. See Public Defense. Local Civil Defense organizations exempt from sales tax................................ 836
CLERKS. See Courts.
COFFEE COUNTY. Douglas-Coffee County School merger.................................................................. 214
COIN OPERATED MACHINES. Distribution of aspirin, B. C. powder, etc. through vending machines does not violate drug laws................................................................................................ 567 Licenses. County without authority to license pin ball machines unless specifically provided by statute................................................................................................ 78 Sales tax on dispensed supplies.................................................................................. 836 Taxation. Music machines located on military reservations subject to sales tax...... 857
COLLECTION AGENCIES. Are not bonded, but are taxable in amount of $200.00...................................... 366

926
Page
COMITY. License issued by Alabama to carry concealed weapon has no effect in Georgia -------------------------------------------------- 338
COMMISSIONS. Rebates on insurance commissions prohibited--------------------- 420 See also Secretary of State.
COMMISSIONERS. See Counties.
COMMISSIONER OF REVENUE. Actions. Not estopped by actions of predecessor in office............--------------------- 795 Authority. Cannot furnish local official with information from tax returns unless specific provision of law so directs.................................................................. 828 Has discretion in authorizing use of' county tax digest forms.................... 707 May cancel or adjust assessment after formal assessment has been made ---------- 684 May make additional assessment for period of two years from date of filing intangible tax return............................................................................ 795 Railroads assessed by Commissioner of Revenue for taxation and not by local authorities................................................................................................ 826 Revenue Commissioner authorized to furnish information from income tax returns to County Tax Assessors...................""- 767 Revenue Commissioner cannot issue fi. fa. until making formal assessment ---------------- 757 Authority to compromise tax penalties. Commissioner or Deputy Commissioner of Revenue may compromise income tax penalty to extent of waiving penalty......------------ 764 Distribution of' funds remitted under Intangible Tax Act.............................. 577
COMPENSATION. Of county officers----------------------- 161
COMPENSATION RESOLUTIONS.-See General Assembly, this index.
CONDEMNATION.-See Eminent Domain, this index.
CONDITIONAL SALES CONTRACT. Holder who repossesses automobile entitled to register car in Georgia...."" 486
CONGRESS. Candidates for ----------------------------""""""---"""""------------"-- 303 Georgia Bureau of Investigation not required to turn records over to Senate Investigating Committee.........""""'""""""-....""""""""""--............................. 336
CONSANGUINITY.-See Domestic Relations, this index.
CONSOLIDATION.-See Education, Merger and Consolidation, this index.
CONSTABLES-See Courts, this index.

927
Page
CONSTITUTIONAL LAW. Constitutionality of Bible reading in public schools discussed______________________ 209 Education. Effect of 1945 Constitution on public school system----------------- 180 Private School Plan discussed------------------ 45, 47, 48, 50 Taxation and expenditure of funds for mixed schools in Georgia unconstitutional ---------------------- 39 Teacher's Retirement System-------------- 45, 47, 48 Effect on term of office. Constitutional Amendment providing County School Superintendent would no longer be elected by people does not terminate present term of office---------------------- 51 Income tax law based on percentage of Federal Income Tax is unconstitutional --------- 752 Legality of private school plan--------------------- 219 Local law granting Tax Receiver Commission on School Digest would be unconstitutional ------------- 874 Matter in a body of an Act not covered in the title will be stricken as unconstitutional ------------------------ 382 "Population" bill relating to compensation of local school board unconstitutional ---------------------------- 161 Segregation. See "Education," this heading.
CONSULS. Not required to have license tag on official vehicles------------------- 471
CONTRACTS. Contractual rights of minor not affected by right to vote at eighteen........ 158 County Board of Education, member contracting with State School Building Authority ------------------- 177 Creation by advertising....-------------------- 2 Recording. Recording conditional sales contract-------------------------- 52 State School Building Authority, contract with member of County Board of Education ----------------------------------- 177 Taxation. Contract transferring land upon payment of certain sum of money each year for five years subject to intangible taX---------------- 780 Royalty paid by Georgia corporation for use of out-of-State machinery subject to use tax--------------------------------------------------- 846 Sales and Use Tax imposed on gross proceeds from rentals, not imposed on royalties---------------------------------------- 845 Truck-lease contract is subject to provisions of Sale and Use Tax law 845
CONTRACTORS AND SUB-CONTRACTORS. See Professions, Businesses and Trades.
CONVICTS. See Prisons and Prisoners, this index.
CO-OPERATIVES. See Corporations, this index.

928

CO-OPERATIVE MANUFACTURING ASSOCIATIONS. See Corporations.

Page

CORONERS. Autopsy.
Necessity for -------------------------------------------------------------------------------------------------------------- 57 County officer, status as-May hold office of constable----.-------------------------------- 55
May hold office of Justice of Peace---------------------------------------------------------------------- 54 Fees.
Medical examiner entitled to fee for post-mortem examination------------------ 58 No fee for going to scene of collision----------------- ________________________________ _____ 53
No fee for post-mortem examination when no inquest held---------------------- 58 Holding another office.
Coroner may not hold office as deputy sheriff------------------------------------------------ 54 Inquest.
Fees --------------------------------------------------------------------- 58 Necessity for ------------------------------------------------------------------------------- 55 Juries. Empanelling and closing.............------------------------------------------------ 55 Medical Examiner ---------------------------------------------------------------- 58 Post-mortem examination. Medical examiner may perform over protest of coroner----------------------- 59 Qualifications determined by Superior Court, not the Ordinary...................... 79
Vacancies-Method of filling....----------------------------------- 56

CORPORATIONS. See also particular type of corporation, this index. Capital Increase ----------------------------------------------------------- 64 Charter.
Amendment to increase capitaL-------------------------------- 64 Charter amendments.
General Assembly may amend charters granted to private corporations prior to 1868, but may not grant charters to private corporations ----------------------------------------------------------------------- 60
Concept of ''doing business"--------------------------------------------------------- 704 Co-operatives.
Marketing associations need not contain word in name indicating it is a corporation_____________________________________________________________________________________ ________________ 61
State membership is unlawfuL------------------------------- 635 Co-operative Manufacturing Associations.
Tax liability-See Taxation.
Electric Membership Corporations. Taxation-See Taxation.
Federal Corporation. See also Banks and Banking and Insurance. Required to register with Corporation Commissioner---------------------------------- 615
Fees. For charter amendment --------------------------------------------------------------------------------- 64
Foreign corporation. Tax liability. See also Taxation-Corporations--------------------------------------- 700

929
Page
CORPORATIONS- (Cont'd)
Forfeiture of charters. Laws relative tO---------------------- 60
Non-Resident. Corporation which is agent of State of Wisconsin may own real property in State and lease it, and such does not constitute "doing business" -------------- 63
Public. Civil Defense Agency public corporation............................................................ 63 Distinction between public and private corporations...................................... 219
Rural Electrification Association. See Taxation.
Sales of gasoline to County School Board where member of Board is a stockholder............................................................................................................ 188
Service of process on non-resident corporation.................................................... 112 State License Tax.
See Taxation. Taxation.
See Taxation.
COTTON. See Agriculture.
COUNTIES. Advertisements by county officials. Laws relative "official organ"---- 68 Attorney. County attorney may not render services in an official capacity to political party ----- 92 Board of Education. See Education. Boards of Health. Regulations of prevail over municipal regulations........................................ 389 Books. Superior Court cannot order audit of.................................................................. 109 Candidates for General Assembly run in State, not County Primary........ 318 Commissioners. Change of qualifications while in office.............................................................. 71 May be member of General Assembly................................................................ 383 May be school bus driver........................................................................................ 233
Compensation of county officers-------- 161 Compensation of Employees.
County authorities cannot raise pay of employees in order to provide them with group insurance in absence of legislative authority.............. 72
Compensation of Juvenile Court Judge------------------- 99 Consolidation.
Laws governing consolidation, dissolution and merger of counties__________ 74 Contracts.
Cannot contract with individuals unless specifically authorized to do so 74 To discharge liability incurred by exercise of county power........................ 66 Convict Labor. Use of --------- 524

930
Page
COUNTIES-(Cont'd)
Coroners. See Coroners, this index.
County Advisory Committees for State parks...................................................... 653
County Funds. Audit of ........................................................................................................................ 75 County cannot levy tax to repair privately owned building which is used by public.......................................................................................................... 575 County may not levy tax for industrial developments.................................. 585 Penalty collected under Code Section 92-6913 should be paid into County Treasury .................................................................................................. 577
County Officers. Qualifications determined by Superior Court, not the Ordinary................ 79
County Registrars, duties of.................................................................................... 318
Depository. County depository is for all county funds, including school funds.......... 75
Dry Counties. See Intoxicating Liquors, this index.
Election Qualifications. Deputy County Registrar may run for public office without resigning present post ............................................................................................................ 77 Member of County Board of Education is ineligible to hold another county office .............................................................................................................. 78 Vocational Agriculture teacher is not prohibited from holding a county office ............................................................................................................ 77
Elections. Eligibility as county voter not necessary to be able to vote in city election ...................................................................................................................... 330
Funds. May not make a gift to Board of Education.................................................... 252
Licensing of Pin-Ball Machines. Are without authority to do so unless specifically provided by statute.... 78
Loans. Authority to negotiate temporary loans for current expenses.................... 69
Motor Vehicles. Equipment on ............................................................................................................ 468
Prison Camps. Construction and safety of...................................................................................... 526 Housing of county prisoners by State unlawful.............................................. 527 Joint operation by State and County unlawful................................................ 526
Private Interests. County Commissioner may bid on and receive contract to construct a county-wide school building with State School Building Authority...... 79
Public Officers. Coroner may not serve as Deputy Sheriff........................................................ 54
Public Utilities. County-owned utilities subject to control of Public Service Commission outside home county ............................................................................................ 500
Purchase of automobile license tag in...................................................................... 481 Qualifications of candidates for county offices...................................................... 307

931

Page
COUNTIES- (Cont'd)
Registrars. Deputy Registrar may run for publlc office without resigning present post ...................................................... ..................................................... 77
Revenue Certificate, issuance of................................................................................ 222 School Superintendent.
See Educat:on. Surveyors.
Authorized to pay assistants $10.00 per day.................................................... 80
Taxation. See Taxation. Of professional persons........................................................................................... 553
Tax Digest Form. See Taxation.
Treasurers-Salary. Interpretation of local law as to salary of Treasurer of Early County 81

COUNTY BOARDS OF HEALTH-See Counties.

COUNTY REGISTRARS-See Counties.

COUNTY TAX DIGEST FORM. See Taxation-Counties.

COUNTY TREASURERS-See Counties.

COURTS.

Adoption.

Jurisdiction

1

Clerks.

Clerk of' Superior Court eligible to run for General Assembly.................. 81

Registration of trade-marks with......

.................................................... 894

Retirement-See Retirement, this index.

Clerks of the Superior Court-Intangible Tax.

Cannot accept note for recording if it fails to set out amount

and due date ............................................................................................................ 787

Clerk should note on transfer of instrument that intangible tax has been paid, amount and date, along with his signature ....................................... 787
Responsible for collection of "recording" tax...... .......................................... 787 Sums collected remitted to County Tax Collector for distribution............ 582

Constables. Holding of office of coroner...................................................................................... 55 Holding of office of Justice of Peace.................................................................... 54 Justice of Peace may not be.................................................................................... 93 Justice of Peace must use........................................................................................ 93 Justice of Peace not authorized to request resignation................................ 110 Powers and duties of................................................................................................ 93 Summoning of coroner's jury.................................................................................. 55

Costs. Deposit of not required in alimony action, but is in divorce action.......... 55 Deposit of. Statute of Limitations on unpaid insolvent costs........................................ 119

932

Page

COURTS- (Cont'd)

F'ederal Courts. Jurisdiction as determined by Federal Congress.............................................. 88
Holding on Holidays. Law as to holding court on July 4th and other holidays................................ 84

Judges.

Compensation of Justices of Supreme Court Emeritus--------------------- 97

Compensation of Juvenile Court Judge................................................................ 99

Judge of Superior Court may be member of County Board of Education 180

Juvenile Court Judge may perform marriage ceremony................................ 156

May revoke suspended sentences.____________________________________________________________________

509

Qualifications of Juvenile Court Judge------------------------------------------------------- 83

Retirement-See Retirement, this index.

Judicial Sales. Automobiles sold at sheriff's sales are subject to sales tax........................ 855

Juries. Election of Board of Education by grand jury.............................................. 175
Eligibility for jury duty------------------------------------ 84
Exemption from duty. Federal employees not exempt------------------------------------------------------------------- 85
Grand Jury System in Georgia------------------------------------------------------------------------------ 83 Indictment by Grand Jury--------------------------------------------------------------------------------- 143 Justice of the Peace eligible to serve as Grand Juror---------------------------- 94 Qualifications and methods of choosing jurorS-------------------------------------------- 87 Selection of Grand Jury.... ----------------------- --------------------------------------------- 85

Justice of Peace.

Election ----------------------------------------

313

Eligible to serve on Grand Jry. -

--------------- 92

Has jurisdiction of small debts up to $200.00... --

-------------------------- 366

Ineligible to be Notary Pc:bEc ex-officio Justics of the Peace---------------------- 95

Jurisdiction.

Are without jurisdiction to acce)t cash bon::s or try misdemeanor

cases for violation of' traffic laws..

-------------------- --------------------- 94

Justices of the Peace aboLshed in Fulton County ar;d jurisdiction

lies with Civil Court of F'ulto:1 Co:mcy. ---------------------------------------------------- 94

May not serve as constable............ --------------------------------------------- --------------- 93

Must use duly elected constable.... ---------------------------------------------------------- 93

Not authorized to practice law...... ------------------------------------------------------- 97

Not authorized to request resignation of constable........ ---------------------- 110

Office may be held by member of General Assembly... ----------------------- 384

Powers and duties _____________________ ----------------------------

___________________ 98

Juvenile Court.
Compensation of Judge---------------------------------------------------------------- 99 Judge may perform marriage ceremony......-------------------------- 156 Qualifications of Judge______________________________________________________________________________________________ 83

Sentences. Without authority to commit minors to prison----- 101
Juveniles-Jurisdiction. Violation of traffic laws.............................................................................................. 99

933
Page
COURTS-(Cont'd) Juveniles-Sentences. Sentences of juveniles to Georgia State Training School for Boys------------ 103 Mayor's Court. May try traffic cases in any county where no city or county court------------ 489 Prisoners sent to State Board of Correction where no city or county court in countY------------------------------------------------------------------------------------------------------- 529 Mayors and Recorders-Jurisdiction. Jurisdiction in misdemeanor cases----------------------------- 104 Notary Public. Appointment of --------------.------ 105 Change of name during term of office-------------------------------- 106 Justice of Peace may not be commissioned Notary Public ex-officio Justice of Peace------------------------------------------------------------------------------------'------- 95 Notaries Public. Tax Commissioners, Collectors and Receivers are without authority to notarize documents ------------------------------------------------------------------------------------------ 873 Ordinaries. Authorized to turn ballot boxes only over to election managers------------- 314 Furnishing copies of official records to veterans------------------------------------ 910 Issuing of license to carry pistol does not authorize to carry pistol concealed ---------------------------------------------------------------------------------------------- 340 May try traffic cases in certain counties------------------------------------------------------------ 109 Must furnish sufficient postage for absentee ballots------------------------------------ 298 No authority to issue driver's licenses---------------------------------------------------------------- 586 No jurisdiction over violation of Game and Fish Laws-------------------------------- 366 No person shall carry pistol without a license from the Ordinary------------ 340 Procedure in and appeal from traffic cases-------------------------------------------------------- 108 Retirement-See Retirement, this index.
Vital statistics. Custodian of ------------------------------------------------------------------------------------------------------------ 913
Without authority to issue delicatessen license to sell sacramental wine 454 Ordinaries-Jurisdiction.
May try and fine citizen in excess of $20.00 without benefit of jury---- 107
Powers. Superior Court Judge cannot order audit of county official's books------ 109
Process. Service on non-resident corporation------------------------------------------------------------------ 112
Recorder's Court. Jurisdiction in traffic cases------------------------------------------------------------------------------------- 899
Sentences-Interpretation ---------------------------------------------------------------------------------- 111 Sheriffs.
Fees. For indorsing late license tag application should be remitted to State Revenue Commissioner ----------------------------------------------- 469 Turnkey fees discussed----------------------- 113 When entitled to fee on forfeiture of cash bond-------------- 113
Removal from office--------------------------------------- 116 Summoning of coroner's jurY--------------------------------------- 55

934
Page
COURTS-(Cont'd)
Sheriffs-Compensation. Entitled to arresting fee when accused arrested by state officer and delivered to sheriff, who accepts cash bond without confining._______________ 115 Fees in traffic caseS---------------------------------------------------------------------------------------------------- 116
Sheriffs-Mandamus. Mandamus will be to compel sheriff to levy tax fi. fa's.------------------------------ 816
Sheriffs and Clerks-Compensation. Entitled to fees in civil cases brought in Superior or City Courts, although Justice of the Peace has concurrent jurisdiction---------------------- 117
Solicitors General-Compensation. Claim to insolvent costs fund--------------------------------------------------------------------------------- 118
CREDIT UNIONS. See Banks and Banking.
CRIME LABORATORY. See Public Safety, this index.
CRIMINAL LAW. Arrest can be made in any countY--------------------------------------------------------------------------- 120 Assault. Assault on police officers carries same punishment as though committed on a private individual----------------------------------------------------------------------------------------- 121 Bail. No person may give bail more than twice for the same offense------------------ 121 Blue Laws. Drug store may be kept open on Sunday for sale of drugs, medicine and food -------------------------------------------------------------- 122 Municipality cannot enact a blue law ordinance.............................................. 122 Place of business cannot be operated on Sunday unless it is a place of necessity or charity.......................................................................................... 122 Unlawful to pursue business or work on Sunday............................................ 123 Degrees of crimes. Crimes in Georgia not divided into degrees........................................................ 125 Escape. Penalty for .................................................................................................................. 125 Extradition. Allowable in misdemeanor cases............................................................................ 148 Expenses of agents under Uniform Extradition Act...................................... 127 Georgia will not release a prisoner under sentence in this State to another State ------------ 126 False representations. Includes using another's driver's license and representing oneself to be the owner of the license.................................................................................... 128 False swearing-See Perjury, this heading. False writing, obtaining merchandise by. Felony, irrespective of value of property involved........................................ 142 Fire Discusses laws concerning the setting of fires.................................................. 128 Firearms. Not a crime to carry pistol in automobile.......................................................... 130

935
Page
CRIMINAL LAW-(Cont'd)
Fraudulent misrepresentation. Stopping payment on check given as bond in traffic violation---------------------- 130
Furnishing intoxicant to minor. Is a felony to furnish beer to a minor................................................................ 452
Gaming, gambling and Lotteries. Georgia has no legalized horse or dog races or bingo games where money is wagered----------------- 131 Offenses ---------------------------------------- 132
Grand Jury-See Courts, this index. Habeas Corpus.
Denial of counsel as basis for proceeding........................................................ 134 Not mandatory that counsel be appointed for proceeding.......................... 133 Res Judicata applies to proceedings-------------- 133 Where writ filed, State Board of Corrections not authorized to return
prisoner to home county............---- 135 History.
History of Georgia criminal law and publications relative thereto.......... 136 Illegal possession of beer.
Procedure for prosecution........................................................................................ 453 Indictments.
No requirement that indictments be sent to Attorney General's office, except in cases involving appeals of capital felonies..............____________________ 137
Larceny. No fixed monetary value of articles stolen to determine whether crime is felony or misdemeanor----------- 138
Lotteries and gift enterprises. Laws defining ------------------------------------------- 140, 141 Law pertaining to in reference to drawing of number for prizes--------- 139 Religious groups not exempt from laws governing------------------------------- 139
Misuse of dealers' tags ------------------------------------------------------------------------------------- 472 Perjury.
Does not include false swearing before Dental Board of Examiners------- 142 Procedure.
Indictment by Grand JurY--------------------------------------------------------------- 143 Registration of motor vehicles.
Procedure for criminal prosecution involving.................................................. 144 Rewards.
Not a matter of law; Governor may offer-------------------------------------------------------- 145 Sentences.
Computed from date imposed.......-------------------------------------------------------------------------- 515 Discussion of concurrent and consecutive penal sentences-------------------------- 146 Runs during treatment at Milledgeville State HospitaL----------------------------- 515 Runs from date imposed and not affected by informal release to and
imprisonment by Federal authorities-------------------------------------------------------------- 513 Suspended sentence not remitted by a parole........................................__________ 509
Slot machines. Procedure f'or curbing operation of------------------------------------------------------------------ 142
Statute of Limitations. Two years in misdemeanor cases.......................................................................... 148
DEFENSE-See Public Defense.

936
Page
DELICATESSEN.
Ordinary without authority to issue license to delicatessen for sale of
sacramental wine --------------------------'-------------------------------------------------------------------------- 454
DEPARTMENT OF DEFENSE-See Public Defense.
DEPARTMENT OF ENTOMOLOGY-See Agriculture~
DEPARTMENT OF PUBLIC HEALTH-See Public Health.
DEPARTMENT OF PUBLIC WELFARE-See State Government, this index.
DEPARTMENT OF REVENUE. Authority. May disapprove county tax digest in order to obtain reasonable equalization of assessed valuation of classes of propertY-------------------------------- 686
DIVORCE-See Domestic Relations, this index.
DOCTORS-See Professions, Businesses and Trades.
DOMESTIC RELATIONS. Alimony-See Divorce and Alimony, this heading. Divorce and Alimony. Deposit of costs not required in action for alimony...................................... 82 Grounds for divorce set out------------------------------------------------------------------------------------ 149 Residence requirement for divorce------------------------------------------------------'----------------- 151 Divorce. Marriage before final divorce decree is void---------------------------------------------------- 150 Guardian and Ward. A guardian may not borrow money on ward's "G. I. Insurance," nor may he purchase a home using "G. I. Loan" benefits-------------------------------- 152 Husband and Wife. Widow as heir of husband---------------------------------------------------------------------------------------- 914 Marriage. Cannot be grounds for denial of right to attend public schooL----------------- 276 Judge of Juvenile Court may perform marriage---------------------------------------------- 156 Requirements for valid contract of marriage.--------------------------------------------------- 156 Third cousins are not within prohibited degrees of consanguinity or affinity ------------------------------------------------------------------------------------------------------------------------ 157 Laws pertaining to issuance of marriage licenses and performance of ceremonies ----------------------------------------------------------------------------------------------------------' 155 Marriage performed in county other than where license is issued is valid --------------------------------------------------------------------------------------------------------------------------- 156 Requirements of common-law marriage--------------------------------------------------------" 153 Marriage not dissolved by conviction of husband f'or crime.------------------------- 153 Marriage between Whites and "West Indians" void______________________________________ 884 History and present status of miscegenation laws traced ---------------------------- 154 Married women. Subject to garnishment---------------------------------------------------------------------------------------- 368

937

Page
DOMESTIC RELATIONS- (Cont'd) Minor. A minor may vote at the age of 18, but this does not affect his contractual powers........................................................................................................ 158 Age of majority is 21.................................................................................................. 158

DOMICILE.

Discussed

523

DOUGLAS, CITY OF. Douglas-Coffee County School merger .................................................................... 214

DRIVER'S LICENSE. See Motor Vehicles, Public Safety and Traffic Laws, this index. Revocation not affected by pardon for traffic offense.........:.................................. 506 Suspension by Director of Public Safety................................................................ 904

DRUGS-See Public Health, Food and Drugs.

EASEMENTS. On State 'property............................................................................................................ 657

EAST POINT. May exercise power of eminent domain outside city limits and in adjoining county ............................................................................................................,....... 490

EDUCATION. Athletic Associations-Taxation. Incorporated athletic association managed by public school authorities and deriving some financial support from public funds is exempt from sales tax .................................................................................................................... 867
Attendance. Child may attend school of another system under certain conditions........ 270
City Board of Education. Contracts with County Board of Education........................................................ 168 Succeeds to rights of County Board of Education where city annexes new territory............................................................................................................ 168
Consolidation and Merger. Disposition of taxes upon.......................................................................................... 253 Relative jurisdiction of State and County Boards of Education as to new site of school.................................................................................................... 280
Constitution of 1945. Effect of on school system........................................................................................ 802
Contracts between school systems. Do not constitute a merger...................................................................................... 216

EDUCATION. County Boards of Education. Actions reviewable by State Board of Education............................................ 182 Allocation of school funds through........................................................................ 238 Borrowing of funds.................................................................................................... 240
Can require that a member countersign checks signed by County School Superintendent .................................................................................................. 171, 190
Cannot delegate duties of School Superintendent to another person.......... 171

938
Page
EDUCATION- (Cont'd)
County Boards of Education- (Cont'd)
Compensation.
May not include expenses for educational meeting...................................... 160 Contracts.
Binding on latter board except under certain conditions............................ 289 May contract with municipality for sewerage facilities for schools...... 166 Contracts with City Board of Education............................................................ 168
Duties, discussion of-------------- 608 Employees-See also School Buses, Drivers, and Teachers, this heading.
Attorneys ---------- 183 May suspend or dismiss employees ---- 180, 183 Fees from pupils..:............................................................................................... 255, 258
Location of consolidated schoolS--- 280 May require students to eat lunch at school cafeteria.................................... 182 May sell any school building.................................................................................... 223 Meetings.
May not have official meeting without presence of school superintendent -------- 171
Must be public.......................................................................................................... 169
Members.
Advisable that petition for condemnation he brought in name of members ------------ 164
Citizens of independent school district ineligible to be member of County Board o:f Education............................................................................ 174
Commissions ------ 178 Contracts with State School Building AuthoritY-------- 177 Election of members by grand jury...............----------- 175 Illegal for board to make purchases from corporation or partnership,
partially owned by member of Board.................................................. 186, 187 Ineligible to hold another county office............................................................ 78 Judge of Superior Court eligible to be member............................................ 180 May be member of General Assembly.............................................................. 383 Member of General Assembly eligible to be member of County Board
of Education ----------------- 296 Members of city council eligible to serve on County Board of Educa-
tion ----------- 174 Membership of Griffin-Spalding County Board discussed.......................... 172 No provision for representation of military personnel................................ 173 Sale of insurance to Board of Education........................................................ 192 Sales to Board of Education.............-------- 189 Sale to Board of Education by corporation where board member is a
shareholder ---------------- 188 Removal of member from militia district from which elected vacates
office -- 176 Terms are staggered and an incumbent holds over until his successor
is chosen -------------- 178 Two members may reside in same militia district........................................ 176
Obtains title to property of local school district when latter is abolished 265
"Population" bill providing for compensation unconstitutional.................... 161

939
Page
EDUCATION-(Cont'd)
County Boards of Education-(Cont'd) Power of Condemnation............................................................................................ 164
Powers. Cannot delegate power to Board of Trustees................................................ 294 May own property in independent school district........................................ 263 Right to contract with independent school system supersedes right of parents to insist on such a contract-------------------------------------------------------------- 270
Public Revenue. Not entitled to portion of penalty imposed on taxes on property not returned by taxpayer------------------------------------------------------------------------------------------ 825
President of -------------------------------------------------------------------------------.----------------------- 193, 203
Purchases. Illegal to purchase supplies from corporation where member of Board is stockholder -------------------------------------------------------------------------------------------------- 186
Purchases of. From corporation where member of Board is stockholder........................ 188 Gasoline from member.......................................................................................... 189 Insurance from members...................................................................................... 192 School supplies ------------------------------------------------------------------------------------------------------- 190
Sale price of school property set bY---------------------------------------------------------------------- 260 Sales of school property at private sale---------------------------------------------------------------- 259
School employees. Employed by local Board of Education.......----------------------------------------------------- 311
School funds. Allocation through County Board of Education............................................ 238
Suits against ---------------------------------------------------------------------------------------------------------------- 168 Suspension or expulsion of pupils------------------------------------------------------ 180 Tort Liability for libel------------------------------------------------------------------------------------------------ 192 County School Superintendent. Agent of Board of Education for purchase of school supplies.................... 190 Cannot be mandamused to execute contracts for teachers hired without
recommendation ---------------------------------------------------------------------------------------------------- 194 Compensation from State funds------------------------------------------------------------------------------ 198 Constitutional amendment providing no longer elected by people does
not terminate present term of office.................................................................. 51 Disbursement of school funds-------------------------------------------------------------------------- 171, 190 Duties, discussion of -------------------------------------------------------------------------------------------------- 167 Duties may not be delegated by local Board of Education............................ 171
Election. Qualifications of voters.......................................................................................... 196 Residents of independent school district cannot vote for, but resident of "quasi-independent" district may...................................................... 194, 197 Residents of an independent school system not entitled to vote for County School Superintendent........................................................................ 195
Eligibility. Laws relating to quoted........................................................................................ 202
Eligible to receive State funds for teachers........................................................ 198 Issuance of Commission--------------------------------------------------------------------------------------- 193, 203 May suspend employee of Board of Education-------------------------------------------- 180, 183

940
Page
EDUCATION-(Cont'd) County School Superintendent- (Cont'd)
Presence essential for meeting of local Board of' Education........................ 171 Qualifications of candidate for-------------------------------------------------------------------------------- 307 Qualifications -------------------------------------------------------------------------------------------------------------- 203
Filing of certificate of qualifications after primary and prior to general election---------------------------------------------------------------------------------------------- 201
Residence requirements discussed--------------------------------------------------------------------- 200 Recommendation necessary for hiring of bus driver........................................ 190 Recommendation not necessary for Board of Education to hire attorney 183 Vacancy in office caused by illness------------------------------------------------------------------------ 204 Courses-See Instructions, this heading. Driver's training, fee for in public schools------------------------------------------------------------- 258 Educational organizations-Taxation. Not subject to intangible tax on recording long-term real estate notes.... 797 Eminent Domain ------------------------------------------------------------------------------------------------------------ 164 Independent School District. Citizens ineligible to vote for County School Superintendent...... 194, 196, 197 Citizens of', ineligible to be member of County Board of Education............ 174 County Board of Education may own property in-------------------------------------------- 263 Distinguished from "quasi-independent" school district................ 195, 196, 197 Has control of educational matters and all real estate devoted to public
school purposes within its territorial boundaries---------------------------------- 205, 206 Property alone liable for debts incurred prior to merger with county
system ------------------------------------------------------------------------------------------------------------------------ 217 Property is not liable for indebtedness of county school system incurred
prior to mergers of systems-------------------------------------------------------------------------------- 214 Property passes to County Board of Education when local school district
is abolished ------------------------------------------------------------------------------------------------------------- 265 Residents not entitled to vote for County School Superintendent................ 195 Right to contract with county school system supersedes right of parents
to insist upon such a contract---------------------------------------------------------------------------- 270
Instructions. Bible teaching, constitutionality discussed.......................................................... 209 Music and art lessons given by private teacher on public school property 207
Lessons-See Instructions, this heading.
Merger and Consolidation. Contract between two school systems not a merger.......................................... 492 Effect of -----------------.------------------------------------------------------------------------------------------------------- 214 Property in independent school district continues to be liable for indebtedness after merger---------------------------------------------------------------------------------------- 217 Property of independent school district not liable f'or indebtedness incurred by county system prior to merger.......-----------------' 214 Title to property owned by independent school district passes to County Board of Edu:cation------------------------------------------------------------------------------------------------ 266
Minimum Foundation Program in effect in every county.................................. 180 Private School Plan-See Constitutional Law, this index.
Private Schools. Legality of private school plan-------------------------------------------------------------------------------- 219 State Board of Education may prescribe standards only for colleges-"----- 218 Subject to police power of State----------------------------------------------------' 218

941
Page
EDUCATION-(Cont'd)
Quasi-independent School System. Distinguished from independent system.............................................................. 195
Quasi-independent School District. Distinguished from independent school district............................................ 21, 197 Residents eligible to vote for County School Superintendent................ 196, 197
School Bonds-See School Funds, this heading. School Buildings-See also School Property, this heading.
Buildings may be sold by local Board of Education........................................ 223 Contracts let by County Board of Education or State School Building
Authority depending on financing.................................................................... 220 County not authorized to issue revenue certificates for erection of............ 222 Investment of funds raised for------------------------------------------------- 246 Lien of materialmen not applicable....................----------------------------------------- 221 School funds may be expended to improve and repair building leased
from State School Building Authority.............................................................. 221 Sublease of building leased from State School Building Authority lawful 224
School Buses. Drivers. Contracts with County Board of Education-------------------------------------- 190 County Commissioner may be----------------------------- 233 Employee of County Board of Education........................................................ 228 Local school board may borrow money and supplement sal:.ry................ 230 No minimum salary set by State Board of Education, so salary may be decreased by local Board of Education.................................................... 230 Payments to under jurisdiction of State Board of Education.................. 230 Requirements for --------------------------------------------------------------- 229 Student may be-------------------------------------------- 230
Signs. Laws relating to discussed----------------------------------------------- 233
Uses. Cannot rent buses for non-school purposes.................................................. 236 Illegal to use for transportation of student for recreation........................ 235 May be used only to transport pupil to and from place of instruction 234
What constitutes for purposes of securing license tag.................................. 484
School District. No authority to enter into long-term lease contracts for capital assets, except with another public agency.................................................................... 237
School Employees. Employed by local Board of Education__________________________________________________________ 231
School Funds. Bonds. Proceeds of bonds for "equipment" may be used for books for library 246 Surplus af'ter funds are retired are part of general funds of Board of Education -------------- 249, 250 Borrowing of funds------------------- 240 Capital outlay funds. Expenditure to connect with sewer.................................................................... 243 Uses discussed ----------------------------------- 240 Expenditure. Authorized for football field only when title in Board of Education...... 245

942

Page

EDUCATION- (Cont'd) School Funds- (Cont'd)

Authorized for securing water supply for schooL....................................... 244 Proceeds of bonds for "equipment" may be used for books for library 246 Expenditure to repair leased building.................................................................. 221 Illegal to invest school funds in Federal Savings and Loan Associations 246 Improper expenditure to purchase home for teachers------------------ 291

Indebtedness. Tax may be levied only on property of former school system to pay for debts incurred prior to merger................................................................ 217
Property in independent school system not liable for indebtedness of county system incurred prior to merger of two systems........................ 214
Keeping of discussed.................................................................................................. 248
Must be placed in county depository........----------------------------------------- 75 Proceeds from sale of school building must be used for school purposes
and no other...------------------------------------------------- 223 Proper expenditure to pay street assessment.................................................... 244

School bonds.

Investment of proceeds from.............................................................................. 246

Residents of an area part of a school district when bonds are issued

continue to be liable for bonds even though area later becomes part

of another district..........

______ _____________ 240

School taxes. Constitution limitations-See Constitutional Law, this index. Procedure for raising 15 mill limitation.......................................................... 254
Where there is a consolidation of school districts, resultant district is entitled to all taxes due to or collected by old district............................ 253

Surplus Debt Service Fund becomes part of general funds of Board of Education, not county.................................................................................... 249, 250

Taxes. County may not make a gift of' money to Board of Education................ 252 May not exceed 15 mills---------------------------------------------------- 252
School Funds-Taxation.

Purchases pursuant to school athletic program not subject to sales tax.... 868

School Lunches.

Students may be required to eat lunches at school cafeteria........................ 182

School Property. Cannot be rented for non-school purposes --------- 236

Disposition.

Procedure for ____________ ...............-------------- __________ --- ----------------

259

Disposition of when no longer needed for school purposes............................ 260

Independent school system controls real estate devoted to public school

purposes within its territorial limits.......................................................... 205, 206

Insurance. Cannot be done by mutual insurance company.............................................. 261

Location. County Board of Education may own property in independent school district --------------- 263
May be used by private teachers for giving pupils music and art lessons 207

943
Page
EDUCATION- (Cont'd) School Property-(Cont'd)
May be sold at private sale.-------------------------------------------------------------------------------------- 259 Reversion.
Reversionary clause including all buildings attached to realty....------------ 264 Sale price is in discretion of Board of Education---------------------------------------------- 260 Taxation. Land leased by school with option to buy is taxable---------------------------------------- 711 Title.
City may convey land located in independent school system to County Board of Education-------------------------------------------------------------------------------------------- 267
Passes to County Board of Education when merger with independent school district --------------------------------------------------------------------------------------------------- 266
Passes to County Board of Education when local school board is abo!~ ished ---------------------------------------------------------------------------------------------------------------------- 265
School Records. No authority for destruction---------------------------------------------------------------------------------- 269
School Sponsorship. School may not sponsor any activity not for education purposes---------------- 269
Schools. Sales of intoxicating liquor within 200 yards of, illegaL.....__..____________________ 461
School Taxes-See School Funds, this heading.
School of Another System. Child may attend under certain circumstances......-------------------------------------------- 270 Right of county and independent school system to contract supersedes right of parents to insist on such a contract......-------------------------------------------- 270
Schools-Taxation. Sales by schools to students of workbooks, supplies, cold drinks, ice cream, etc. are subject to sales tax------------------------------------------------------------------ 869 Schools must collect sales tax on admission to school-sponsored functions 868
Segregation. Private school plan------------------------------------------------------------------------------------------------------ 219 Unlawful to use same public school buildings for both Whites and Negroes -------------------------------------------------------------------------------------------------------------------- 273
Share-holders. Illegal for Board of Education to purchase from corporation where member of board is a share-holder..--------------------------------------------------------- 186, 187
State Board of Education. Appeals from teachers dismissed by County Board of Education................ 183 Appellate jurisdiction of County School Board------------------------------------------------ 182 Appellate jurisdiction in determination of location of school sites------------ 280 Has power to prescribe standards for private colleges, and no other private school ------------------------------------------------------------------------------------------------------- 218 Has power to reconsider determination---------------------------------------------------------------- 280 Jurisdiction over payments to school bus drivers---------------------------------------------- 230 No authority over hiring of local school personneL------------------------------------------- 237 Payment of tuition charges to local school district----------------------------------------- 257 Subject to Workmen's Compensation Law---------------------------------------------------------- 284
State School Building Authority. Contracts with members of local Board of Education-------------------------------------- 177 Letting of contracts.------------------------------------------------------------------------------------------------- 220

944
Page
EDUCATION- (Cont'd)
State School Building Authority- ( Cont'd) Repair of buildings leased from------------------------------------------------------------------------------ 221 Sublease of building leased from is legaL--------------------------------------------------------- 555
State School Superintendent. Issuance of commission to County School Superintendent---------------------------- 203
Students. Age. Minimum age administrative question to be determined by local school board --------------------------------------------------------------------------------------------------------------------- 274 Immunization.
Laws relating tO------------------------------------------------------------------------------------------------ 276
Objections on religious grounds----------------------------------------------------------------------- 275 Marriage.
Cannot be grounds for denial of right to attend school---------------------------- 276 May be required to eat lunch at school cafeteria------------------------------------------- 182 May be school bus driver---------------------------------------------------------------------------------- 230 Suspension or expulsion..............------------------------------------------------------------------ 180 Suspension.
Power to suspend and expel for misconduct------------------------------------------ 277, 278 Transportation-See School Buses, this heading.
Teachers. Contract. Must be in writing------------------------------------------------------------------------------------------ 286 Will issue only when hiring of teacher recommended by school superintendent -------------------------------------------------------------------------------------------------- 194 Normally for one year............................................................................................ 285
Election. Elected by local Boards of Education upon recommendation of local school superintendent ---------------------------------------------------------------------------------- 287 Procedure for discussed--------------------------------------------------------------------------------------- 288
Employment. Teacher unlawfully removed entitled to salary after removaL------------- 289 Teacher without written contract not legally employed----------------------------- 286 Term limited to one year------------------------------------------------------------------------------------ 289
Expenditure of school funds to purchase home for---------------------------------------- 291
Garnishment. Valid only where Board of Education consents---------------------------------------------- 290
Home. Purchase of unlawful, but may live in school buildings------------------------------ 292
May be employed only by local Board of Education---------------------------------------- 183 May be suspended by local Board of Education or local School Superin-
tendent --------------------------------------------------------------------------------------------------------------- .180, 183 Retirement-See Retirement, this index. State and County employees--------------------------------------------------------,-------------------------- 292 State funds, used to pay....---------------------------------------------------------------------------'-------- 198 State Security Questionnaire.-------------------------------------------------------------------------------- 292 Vocational agriculture teacher is not prohibited from holding county
office -------------------------------------------------------------------------------------------------------------------------- 77 When dismissed, may appeal to local Board of Education and State
Board of Education-------------------------------------------------------------------------------------- 183

945
Page
EDUCATION- (Cont'd)
Trustees. Authority. Is merely advisory, and cannot have other duties delegated............____,___ 294 Qualifications. Cannot have been convicted of crime involving moral turpitude, even though subsequently pardoned........................................................................ 295
Selection. Recommendation of school superinten"dent not necessary for.................... 287
Selection of ------------------------------- 296 Tuition and Fees.
Fees may not be imposed and collected from pupils to supplement school funds ------------------------------------------------------------------------------------:... 255, 258
Payment of tuitioi1 by State Board of Education to local school district 257 Voluntary contributions from pupils may be accepted by local Board of
Education ------------------------------------------------------------------------------------------------------------------ 256 Veterans.
Period of operation of school to qualify for veteran's training._________________ 912
EGGS-See Agriculture.
ELECTIONS. Absentee Ballots-See Ballots, this heading. Ballots. Absentee ballots. Discussion of mailing of ballots.......................................................................... 300 Failure to mail absentee ballot nine days prior to election does not affect validity of ballot unless it is returned too late to be counted.... 296 Ordinary must furnish sufficient postage for---------------------------------------- 298 Ballots speak for themselves and intention of voter cannot be obtained elsewhere ----------------------------------------------------------------------------------------- 313 ''Cross'' voting ---------------------------------------------------------------------------------------- 333 Effect of erroneously marking................................................................................ 300
Ballots. Listing of' Presidential Electors.............................................................................. 305 "Sample" ballots and diagram of ballots............................................................ 333 Sample ballots and diagram of ballots...............................................,.................. 301 Write-in Candidates -------------------------------------------------------------------------------------------------- 335
Candidates. Candidates for General Assembly run in State, not County primary........ 318 Congress of the United States..------------------------------------------------------------------------------ 303 General Assembly-necessary to pay taxes........................................................ 311 Presidential Electors --------------------------------------------------------------- 305 Qualification by payment of taxes.......................................................................... 311 Qualification by Petition............................................................................................ 310 Qualifications of county officers.......................................................................,...... 307 Qualifications of County School Superintendent................................................ 307 Qualifications of independent candidate for county office-------------------------------- 309 Qualifications of independent candidate---------------------------------------------------------------- 308 Write-in Candidates -------------------------------------------------------------------------------------------------- 335
County Board of Education elected by Grand Jury.............................................. 175

946
Page
ELECTIONS-(Cont'd)
County School Superintendent. No necessity to file certificate of qualifications prior to primary................ 201
Holding on Public Holiday............................................................................................ 312 Intoxicating Liquors-See Intoxicating Liquors, this index. Justice of the Peace........................................................................................................ 313 Managers.
May not carry ballot box outside the polling place.......................................... 332 Only one authorized to receive ballot boxes........................................................ 314
Qualifications of ------ 314 Military Personnel.
Registration and voting............................................................................................ 315 Municipal.
In election to incur debt, need approval of' only majority of persons voting ........................................................................................................................ 491
Petitions. Qualification of independent candidate by.......................................................... 308
Political Parties. County Democratic Executive Committee cannot provide who may assist a voter in casting of ballot.................................................................................. 331 Meetings must be held in court house or municipal auditorium.................... 317
Primaries. Candidates for General Assembly run in State, not County primary........ 318 School Superintendent need not file certificate of qualifications prior to primary ------------- 201
Referendum.
Special election -------- 325 Registration.
Democratic Executive Committee has no authority with respect to registration ........................................................................................................................ 318
Duties of County Registrars.................................................................................... 318 Military personnel --------- 315 Notification necessary when moving from one county to another.............. 320 Qualifications for ----- 324 Time for ---- 321 Special. Referendum in special election................................................................................ 325 Voters. Assistance in casting ballots.................................................................................... 332 Eligibility to vote in county election not necessary to vote in municipal
election ...................................................................................................................... 330 Qualifications ................................................................................................................ 330 Qualifications and registration................................................................................ 326 Qualifications and registration by maiL............................................................. 328
Voting. Assistance in casting of ballot........................................................................ 331, 332 County Democratic Executive Committee cannot prescribe who may assist a voter in casting of ballot...................................................................... 331 ''Cross" marking ballot.............................................................................................. 333 For independent candidate for county office........................................................ 309 Military personnel ---- 315

947
Page
ELECTIONS- (Cont'd) Voting- (Cont'd) Requirements for ---------------------------------------------------- 334 Write-in candidates ----------------------------- 335
ELECTRIC MEMBERSHIP CORPORATIONS-See Corporations.
EMINENT DOMAIN. Exercise by Board of Education------------------------------------------------------ 164 Exercise ]J.y municipality outside of city limits and in adjoining county...... 490
ENDORSEMENTS. Cannot be required for loan under Georgia Industrial Loan Act---------- 388
ENGINEERS-See Professions, Businesses and Trades, this index.
ENROLLED BILL RULE-See General Assembly.
ENTOMOLOGY DEPARTMENT-See Agriculture.
ESCAPE-See Criminal Law.
ESTATES-See Wills and Administration of Estates, this index.
ESTATE TAX-See Taxation.
ETOWAH RIVER. Ownership. Owned by landowners adjoining it----------------------------------------------- 555
EUGENE TALMADGE MEMORIAL HOSPITAL--See Public Health.
EVICTION. Law relating to quoted.
EVIDENCE. Georgia Bureau of Investigation not required to turn files over to United States Senate Investigating Committee................-------------------------- 336
EXAMINING BOARDS-See Professions, Businesses and Trades, this index.
EXCISE TAX-See Taxation.
EXECUTIVE DEPARTMENT. Authority of Governor. Authorized to pay for legal services rendered by attorney employed by Georgia Commission on Education--------------------- 159 Governor may offer rewards for apprehension of criminals.............................. 145 Powers of Governor. As regards Livestock Development Authority....--------------- 12 Denial of suspension of death sentence deprives Pardon and Parole Board of f'urther jurisdiction------------------------------------------ 516 No powers to commute death sentence to life imprisonment........................ 515 Proclamation of Governor. May be rescinded or amended------------------------- 159
EXECUTORS-See Wills and Administration of Estates, this index.

948
Page EXPLOSIVES.
Applicability of Safety Fire Regulation to carrier of explosives.................... 617 Blasting powder is subject to sales tax.................................................................... 850
EXTRADITION-See Criminal Law.
FAIR-TRADE LAW. Inapplicable to State...................................................................................................... 638
FALSE REPRESENTATION-See Criminal Law.
FALSE WRITING, OBTAINING MERCHANDISE BY-See Criminal Law.
FAMILY PURPOSE DOCTRINE. Imposing liability for tort of wife.............................................................................. 893
FARMERS' MARKET. Business located on exempt from municipal taxation and regulation............ 494
FARMS. Homestead Exemption-See Taxation, Homestead Exemption.
FEDERAL EXCISE TAX. Excluded in computing gross sales for sales tax purposes if billed separately to consumer.................................................................................................... 851 Sales tax paid on when included in gross price of' car and not listed separately ............................................................................................................................ 852
FEDERAL HOUSING AUTHORITY. Taxation. Security deeds and notes executed to Federal Housing Authority prior to time offered for recording not subject to intangible tax........................ 783
FEDERAL INTERMEDIATE CREDIT BANKS-See Banks and Banking.
FEEDS-See Agriculture.
FERNANDINA PORT AUTHORITY. Power in Georgia............................................-c............................................................... 398
FIRE-See Criminal Law.
FIREARMS. Licenses. License to carry pistol does not authorize to carry pistol concealed............ 340 License issued by Alabama to carry concealed weapon has no effect in Georgia ...................................................................................................................... 338 Service in armed forces does not disqualify one from obtaining a pistol license ........................................................................................................................ 341 Not a crime to carry a pistol in an automobile.................................................... 130 Pistols. Carrying ........................................................................................................................ 339 Carrying in automobile.............................................................................................. 338 Laws quoted .................................................................................................................. 341

949

Page
FIREARMS-Cont'd) Pistols- (Cont'd)
License to carry does not authorize carrying concealed-------------------------------- 340 Service in armed forces does not disqualify one to obtain a pistol license 341 Sales of ------------------------------------------------------------------------------------------------------------------------------ 342 Taxation. Tax on dealers imposed on wholesale, as well as retail dealers-------------------: 343

FIRE-FIGHTING-See Forestry.

FIREMEN. Pension Fund. Investment -------------------------------------------------------------------------------------------------------------------- 600

FISHING BOATS.

Taxation.

Sales tax applicable to fishing boats not touching port outside of

Georgia

853

FISHING LICENSES-See Game and Fish.

FOOD AND DRUGS-See Public Health. Distribution of aspirin, B. C. powder, etc. through vending machines does not violate drug laws-------------------------------------------------------------------------------------------------- 561 Use of intoxicating liquors in manufacture of candy unlawfuL-------------------- 462

FOREIGN CORPORATIONS-See Corporations.

FORESTRY. Burning. Effect of "Notice of Intention to Burn Act."------------------------------------------------------ 345 Law relative to burning of woods discussed------------------------------------------------------ 343 Fire-Fighting. Liability of private fire-fighters for trespass---------------------------------------------------- 349 Property damaged in fire-fighting should be restored to original condition ------------------------------------------------------------------------------------------------------------------------------ 348 Regional Forest Fire Protection Compact does not extend definition of "employee" for the purposes of Workmen's Compensation---------------------- 353 Volunteer fire-fighters are not entitled to Workmen's Compensation from State Forestry Commission---------------------------------------------------------------------------------- 351 Herty Foundation, Status of discussed-------------------------------------------------------------------- 564 Rangers. Damage done by should be returned to original condition------------------------------ 348 Timber, Sale of. Game and Fish Commission has power to sell woodland products-------------- 355 Woods. Law relative to burning discussed-------------------------------------------------------------------------- 343
FORT BENNING. State control over highways on reservation------------------------------------------------------------ 397

FRANCHISE TAX-See Taxation.

950
Page
FRATERNAL BENEFIT SOCIETY. Conversion into stock life insurance company........................................................ 411
FRATERNAL ORGANIZATIONS. Taxation. Subject to ad-valorem taxes.................................................................................... 714
FRATERNAL SOCIETIES. Reserve funds of a fraternal benefit society cannot be transferred to unassigned funds - 353
FUNERAL DIRECTORS-See Professions, Businesses and Trades, this index.
GAME AND FISH. Commercial Fishermen. If licensed by Game and Fish Commission, not required to obtain wholesale fish dealer's license to sell catch................................................................ 554 Fish. No prohibition against selling game fish taken in private ponds................ 356 Regulatory powers of Commission over basket fishing in Mcintosh County ------ 358 Taking of by use of seines illegaL....................................................................... 356 Fishing boats not touching 'port outside of Georgia subject to sales tax...... 853 Game and Fish Commission. Has power to sell timber and other woodland products and proceeds go into the State Treasury.................................................................................. 355 Regulatory powers over basket fishing in Mcintosh County........................ 358 Shall have an amount appropriated to it at least equal to amount paid into State Treasury by it---------------------------- 355 Laws. Automobiles and boats of wildlife rangers do not have to be marked in order for the rangers to make an arrest for violation of Game and Fish Laws--------------------------------------------- 365 Court of Ordinary has no jurisdiction of violation of------------ 366 Licenses. Honorary licenses discussed.................................................................................... 362 Unlawful to fish in county of residence without a license............................ 359 Private Ponds. No prohibition against selling game fish taken in private ponds---- 356 Quail. Discussion of law permitting sale of pen-raised quail.................................... 364 Seines. Taking of fish by illegal............................................................................................ 356
Streams. Law relating to obstruction in discussed............................................................ 359
Taxpayer not entitled to refund of tax on gasoline used in clearing trails, firebreaks and food sites for game...................................................................... 817
Wildlife. "Scientific Collector's Permit" necessary for shipment................................ 364

951
Page
GARBAGE. County contracts for disposition of--------------------------------------------------------------------------- 74 Treatment prior to feeding to livestock-------------------------------------------------------------------- 10
GARNISHMENT. Defaulting Taxpayer-See Taxation.
Law relating to discussed---------------------------------------------------------------------------------------------- 367
Married women subject to-------------------------------------------------------------------------------------------- 368 Municipal employees subject tO---------------------------------------------------------------------------------- 367 State employees subject to under certain circumstances________________________ 366, 369 Teachers ---------------------------------------------------------------------------------------------------------------------------- 290 Writ may issue only after final judgment-------------------------------------------------------------- 366
GAS FARM CREDIT ASSOCIATIONS. Liable for Georgia franchise tax when wholly owned by farmer members. 718
GENERAL ASSEMBLY. Appropriation. To Game and Fish Commission------------------------------------------------------------------------------ 355
Authority. May amend charters granted to private corporations prior to 1868, but may not grant charters to private corporations------------------------------------------ 131 May constitutionally prescribe requirements for enlistment in militia.... 557
Can accept surrender of charter of fire insurance company........-------------------- 413
Compensation Resolution. A duly enrolled compensation resolution is a legal charge, even though not properly introduced by a member of the General Assembly............ 372 Total amount appropriated by a compensation resolution must be paid, and not just actual expenses incurred-------------------------------------------------------------- 371
Constitutional Amendment. Ratification of providing School Superintendent would no longer be elected by people does not terminate present term of office---------------------- 51
Determination of compensation of State officials-------------------------------------------------- 635
Home Rule. Constitutional provisions permissive and require affirmative enabling legislation ----------------------------------------------------------------------------------------------------------------- 488
Legislation. Amendments. Miscitation of a code section in an amending act is immaterial and correct code section will be treated as amended-------------------------------------- 372
Constitutionality. Local law granting Tax Receiver Commission on School Digest would be unconstitutional ------------------------------------------------------------------------------------------- 874
Effective date generally immediately upon approval of Act, and Act does not act retroactively.----------------------------------------------------------------------------------- 373
Effective date. Act of 1955 being a sales tax collection statute as opposed to a tax imposition statute has retroactive effect----------------------------------------------- 840
Effective date of Livestock Running at Large Act------------------------------------------ 5 Enrolled bill rule discussed----------------------------------------------------------------------------------- 372

952

Page
GENERAL ASSEMBLY-(Cont'd) Legislation- (Cont'd)
Municipal.
Amendment to charter affecting candidates for council does not require a referendum------------------------------------------------------------------------------------------ 374
''Population'' bill unconstitutional------------------------------------------------------------------------- 161 "Population" bills.
Discussion of effect of-------------------------------------------------------------------------------------------- 375 Terms of office.
Discussion of legislation affecting-------------------------------------------------------------------- 381 Title.
Matter dealt with in a body of Act which is not in the title will be stricken as unconstitutionaL------------------------------------------------------------------- 382
Not necessary for an Act to contain all that is mentioned in the title 382
Members. Candidates run in State not County primarY---------------------------------------------------- 318 Clerk of Superior Court eligible to be member------------------------------------------------ 81 County Commissioner may be member of General AssemblY-------------------- 384 May be Justice of the Peace------------------------------------------------------------------------------------ 384 Member eligible to run for County Board of Education-------------------------------- 81 Member of County Board of Education may be member of General Assembly -------------------------------------------------------------------------------------------------- 383 Necessary to pay taxes------------------------------------------------------------------------------------------ 311
Power over Municipalities. May grant city right to license businesses-------------------------------------------------------- 493 May revoke charter of municipalitY---------------------------------------------------------------------- 487
State Property. Act of General Assembly necessary to grant easement over State property -------------------------------------------------------------------------------------------------------- 572
GEORGIA BUREAU OF INVESTIGATION-See Public Safety.

GEORGIA COMMISSION ON ALCOHOLISM

Employees eligible for membership in Employees' Retirement System

514

Employees eligible to come under merit system----------------------------------------------:- 628

GEORGIA INDUSTRIAL LOAN ACT. Effect of.

Act covers all persons making loans of $2,500.00 or less, except loans

made at 8% or less __ ------------------------

386

Endorsement for loan cannot be required

______________________

388

Insurance on loans ------------------------------------------------- ____________________ --------------------------------- 389 Interest cannot exceed 5% month ______________________ --------------------------------------------------- 389

Licenses.

Persons required to obtain _____________________ -----------------------------------------------------

392

Veteran must obtain, since license is regulatory, not occupationaL________ 393

Loan broker not required to qualify under Act___________________________________________________ 392

Repeals by implication license tax on salary and wage buyers___________________ 385

Taxes. Discount on loan subject to 3 o/o tax____________________________________________________________________ 393

953

Page
GEORGIA PORTS AUTHORITY. Agency of State______________________________________________________________________________________________________________ 636

GEORGIA TURNPIKE AUTHORITY. Effect of Act creating____________________________________________________________________________________________________ 398

GRAND JURIES-See Courts, this index.
GREAT SEAL. Use on textbook privately published and offered for sale unlawfuL___________ 638
GRIFFIN. Membership of Griffin-Spaulding County Board of Education discussed. 172

GUARDIAN AND WARD-See Domestic Relations, this index.

GUEST STATUTE. Discussed _______________________ ------------------------------- ----------------------------------------------------------------- 893

HABEAS CORPUS-See Criminal Law.

HABITUAL CRIMINAL ACT.

Not retroactive ----------------------- _______________

511

U nconstitutiona! --------------------------------------------------- ----------------------------------------------- ___________ 519

HAIRDRESSERS-See Barber and Hairdressers, Professions, Businesses and Trades, this index.

HEADLIGHTS.

Dual headlights legaL_____________________

469

HEIRS-See Wills and Administration of Estates, this index.

HERTY FOUNDATION-See Forestry.

HIGHWAYS. Construction. Use of convict labor to relocate service station on highway______________________ 394

Contracts.

May be let at any time ___________________

396

Control.

Jurisdiction over highways on Fort Benning Reservation_____ _______________ 397

Fernandina Port Authority, Power in Georgia ____________________ ---------------------------- 398

Georgia Turnpike Authority Act.

Effect of -------------------------------------------

--------------------------------------------------------------- 398

Highway Use Tax-See Motor Vehicles, this index.

Maintenance and Repair. Highway Department has no duty to maintain a bridge constructed prior to August 23, 1927 ____________ ----------------------------------------------------------------------- 399

Maintenance and Repair. Highway Board may negotiate with railroad or utility for actual expenses incurred for Highway Department.______ -------------------------------------------- 402

"State-aid" Roads.

Parking meter on ---------

403

954
Page
HIGHWAYS-(Cont'd) State Bridge Building Authority. Leases from to Highway Department where portion of bridge in Florida. 403 State Highway Board. Election of members_______________________________________________________________________________________________ 401 Wayside Parks. Establishment and location_______________________________________________________________________ 405, 406
HIGHWAY USE TAX-See Taxation.
HILL-BURTON ACT-See Public Health.
HOLDING COMPANIES-See Banks and Banking.
HOLIDAYS. Holding of elections on----------------------------------------------------------------------------------------------- 312
HOME RULE. Constitutional provisions permissive and require affirmative enabling legislation -------------------------------------------------------------------------------------------------- 488
HOMESTEAD EXEMPTION-See Taxation.
HOSPITAL AUTHORITIES-See Public Health.
HOSPITALS. See Public Health, this index. Hill-Burton Act-See Public Health. Taxation. Hospital authorities are not exempt from sales tax ____ ---------------------------------- 853 Non-profit hospitals not exempt from sales and use tax____________________________ 854 Not subject to intangible tax on recording of long-term real estate notes 797 Sales to University Hospital, Augusta, Georgia, are exempt from sales tax ---------------------------------------------------------------- --------------------------------------------------- 850
HOTELS. Taxation-Homestead Exemption. Owner occupying apartment attached to entitled to exemption___________________ 781
HOUSE TRAILERS. Taxation-Homestead Exemption. Entitled to exemption if owns property on which trailer is located________ 729 Resident owner entitled to exemption when he owns property on which trailer is located----------------------------------------------------------------------------------------------------- 730
HUNTING LICENSES-See Game and Fish.
HUSBAND AND WIFE-See Domestic Relations.
ILLEGITIMATE CHILDREN. Aid to----------------------------'---------------------------------------------------------------------------------------------------- 521
INCOME TAX-See Taxation.
INDEPENDENT SCHOOL DISTRICT-See Education.

955
Page
INDUSTRIAL DEVELOPMENTS. Constitutional amendment required before county or municipal corporation can levy tax for------------------------------------------------------------------------------------------------------------- 585
INDUSTRIAL LOANS-See Georgia Industrial Loan Act, this index.
INSANE PERSONS. Expenses of furlough from Milledgeville State HospitaL____________________________ 406 No authority for State to pay expenses of returning insane person to home state ------------------------------------------------------------------------------------------------------------------- 406 Prisoner confined in Milledgeville State Hospital not eligible for conditional release until restored to mental health _______________________________________ 512, 514
Retention. Eugene Talmadge Memorial Hospital cannot retain mental patients who enter voluntarily, although unsafe to release them---------------------------------- 565
INSURANCE. Agents. Does not have to be licensed or agent of particular company____________________ 408
Sale of renewals on expiration of insurance contracts to licensed agents
is activity of insurance agent____________________________________________________________________________ 409 Solicitors for cumulative investment trust program not insurance agent 407 Brokers. No law authorizing insurance brokerage activities___________________ -------------------- 409 Commissions. Filed as public record with Commissioner-------------------------------------------------------- 420 Rebates on prohibited----------------------------------------------------------------------------------------------- 420 Companies. Alien companies.
May insure cargoes of Georgians moving in International Commerce 410 Requirements for doing business same as for any other
foreign company ------------------------------------------------------------------------------------------------ 410 Charter Amendments.
Cannot be made when company has issued no stock and has no officers 411 Conversion of fraternal benefit society into stock company__________________________ 411 Deposits-See Deposits, this heading. Dissolution.
Commissioner has no duty to supervise distribution. of assets upon
dissolution of mutual companY---------------------------------------------------------------------- 414 Fire insurance company cannot surrender charter to Secretary of
State; must be to General Assembly__________________________________________________________ 413 "Four-County Company."
May insure city propertY------------------------------------------------------------------------------------ 415 Not required to post bond prior to receiving license________________________________ 415
Investments-See Investments, this heading. Licenses.
Four-county insurance company not required to post bond prior to receiving licens-e ------------------------------------------------------------------------------------------------ 415
Stock. Commissioner has no jurisdiction to control sale of stock of foreign company already issued____________________________________________________________________________________ 416

956
Page
. INSURANCE-(Cont'd) Companies- (Cont'd) Stock- (Cont'd)
Control of sale of by Commissioner when issued by foreign company 416 Control of increase by domestic company by Commissioner___________,_______ 416
Not exempt from blue-sky regulations----------------------------------------------------------- 618 Surplus Funds.
Amount raised by "Guaranteed Surplus Note" treated as____________________ 418 Title Insurance.
To qualify to write, company must make additional deposits__________ _ 418
Definition. Agreement to cancel balance of unpaid installment account is insurance 429 Agreement to make payments upon death of beneficiary is insurance____ 433 Agreement to pay certain expenses from definite fund not insurance___ 432 Agreement to replace purchased chattel if lost, etc. within one year is insurance ------------------------------------------------------------------------------------------------------------ 435 Collection agency which does not guarantee collection not engaged in insurance_________________ --------------------------------------------------------------------0----- 429 Guaranteed bail bond by auto club is insurance._____________________________________________ 434 Insurance is assumption of risk for agreed consideration____________________________ 432
Deposits.
Claims subject to cannot be subject to claim of non-resident___________________ 421
Necessity for. Fire insurance company must make additional deposit to write casualty insurance -------------------------- ---------------------------------------------------------------- 423 Must be deposit for each type of insurance written___________________________________ 424 To write title insurance, company must make additional deposit__________ 418
Release. Conditions for -------------------------------------------------------------- ----------------------------------------- 426
Withdrawal. Procedure for upon ceasing to do business__________________________________________________ 428 Transfer of deposit to another state will not defeat claims of Georgia policy-holders against it __ ------------------------- ------------------------ -------------------------- 426
Group Insurance. Illegal use of municipal funds for city to purchase for employees________ 496
Insurance Commissioner. Approval of investments ----------------------- --------------------------------------------------------------- 437 Commissions filed with as public record ----------------------------------------------------------- 420 Control over issue and sale of stock of companies__________________________________________ 416
Has power to reject any policy he does not believe is in best interests
of people of State_______________________________________________________________________________________ 440, 441
No duty to supervise distribution of assets on dissolution of mutual company -------------------------------------------------------------------------,--------,----------------- 414
Will be represented by Attorney General in anti-trust action__________________ 437 Investments.
FHA mortgage loans to lOOo/o of value_______________________________________________,__c___________ 609
Foreign company can invest in lease-hold estate in Georgia when permitted by laws of home state____________________________________________________________________________ 438
"Industrial Corporations" do not include financial institutions________________ 438 Loan secured by long-term lease only legal investment when approved
by Commissioner ----------------------------------------------------------------------'---------------------------- 437

957

Page
INSURANCE-(Cont'd) Investments- (Cont'd) Loans secured by real estate______________________________________________________________________________ 610 Loans secured by real estate leases_____________________________________________________________________ 608 Loan to owner of private water-works system__________________________________________________ 600 "Securities" includes common and preferred stock________________________________________ 438
Timber lands not "improved real estate"-------------------------------------------------------- 610 Mutual Insurance Company may not insure schooL__________________________________________ 261 Policies.
Return of premiums_________________________________________________________________________________________________ 440
''Tontine'' --------------------------------------------------------------------------------------------------------------------- 441 Sale of fire insurance to County Board of Education by member unlawful 192
Bank carrying on insurance business----------------------------------------------------------------- 32 Guardian of minor veteran may not borrow money on ward's
''G. I. Insurance'' ------------------------------------------------------------------------------------------------ 152
Schools. May not be done by mutual insurance company_____________________________________________ 261
Small Loans ------------'------------------------------------------------------------------------------------------------------ 389 Taxation.
Assets eligible for abatement of premium tax discussed______________________________ 443 Membership fee subject to premium tax____________________________________________________________ 444 Premium tax returns may be amended for a period of seven years________ 446
Unclaimed Funds. No provision in law for reporting _______ ---------------------------------------------------------------- 447

INTANGIBLE TAX-See Taxation.

INTEREST AND USURY.

Interest cannot exceed 5% per month under Industrial Loan AcL__

389

Law relative to "carrying charges" discussed______________________________________________________ 450

Law relative to discussed_____________________________________________________________________________________________ 451

INTESTACY. See Wills and Administration of Estate, this index.

INTOXICATING LIQUORS. Alcohol. Regulations governing shipment of non-beverage pure alcohoL________________ 450
Beer and Wine. Even when county is dry, is legal for county or municipalities to issue beer and wine licenses__________________________________________________________________________________________ 455 Felony to furnish beer to minor___________________________________________________________________________ 452

Free Beer. May be furnished by social club to members if legally purchased________ 452
Legality of s-ale cannot be determined by election__________________________________________ 451 License for sale of may be issued free of charge___________________________________________ 458

Ordinary without authority to issue delicatessen license to sell for sacra-

mental purposes -------------------------------------------------------------------------------------------------- 454

Procedure for prosecution for illegal possession of beer__________________

453

Driving under Influence-See Traffic Laws, this index.

Dry Counties. Legal to possess one quart tax-paid liquor even in dry county________________ 454

958

Page

INTOXICATING LIQUORS-(Cont'd) Dry Counties- (Cont'd)

One quart of tax-paid liquor may be possessed in__ --------------------------------------- 459 Private club cannot sell liquor to members in__________________________________________________ 454

Election to Legalize Sale.
Legality of' sale of beer and wine cannot be determined by election________ 451 May be held on Saturday________________________________________________________________________________________ 457

Petition. No time limit for circulation.------------------------------------------------------------------------------- 455
Voters, qualification of -------------------------------------------------------------------------------------------- 456
Licenses. County must charge for retail license for liquor, but not necessary for beer and wine license ------------------------------------------------------------------------------------------- 458 Ordinary without authority to issue delicatessen license to sell sacramental wine ------------------------------------------------------------------------------------------------- 389
Military Reservation. Sale on Military Reservation discussed___________________ ------------------------------------------- 458

Possession. Legal to possess one quart tax-paid liquor even in dry county__________________ 454
One quart of tax-paid liquor may be possessed even in dry county__________ 459

Retail Liquor Bond. Covers all taxes due to State, not just liquor taxes________________________________________ 460

Sales.

For consumption on premises unlawfuL________________________________________________

460

Near school or church unlawfuL___________________________________________________________________________ 461

Taxation-See Taxation. Use.
In manufacture of food illegaL__________ ----------------- ------------------------------------------------ 462 Wine-See Beer and Wine, this heading.

INVESTMENTS-See also Insurance and Retirement, Teachers' Retirement System, this index.
Savings and Loan Association ---------------------------------------------------------------------------------- 246 School Funds -------------------------------------------------------------------------------------------------------------------- 246

JEWELERS. Liens-See Liens, this index.

JUDGES-See Courts.

JURIES-See also Courts and Coroners, this index.

JUSTICES OF THE PEACE-See Courts.

JUVENILES.

In general, see Domestic Relations, this index. Felony to furnish beer to minor________________________________________________________________________________ 452

State Training School.

Transfer of juvenile from to State Board of Corrections

528

JUVENILE COURTS-See Courts.

959
Page
LABOR UNIONS. Laws against compelling membership in______________________________________________________________ 463
LANDLORD AND TENANT. Law relating to eviction________________________________________________________________________________________________ 463
LEGISLATION. Population bill providing for compensation of members of Towns County Board of Education unconstitutionaL__________________________________________________________________ 161
LIBEL. Liability of County Board of Education for __________________________________ -------------- 192
LICENSES. Marriage-See Domestic Relations, this index. Municipal. Any difference in rates must be based on reasonable classification__________ 493 May be imposed on Building and Loan Association______________________________________ 494 Must be reasonable ------------------------------------------------------------------------------------------------ 493 Pistol-8-ee Firearms, this index. Veteran's exemption from-See Veterans, this index.
LIENS. Jewelers and Watchmakers. Law relating to quoted________________ --------------------------------------------------------------------------- 465 Materialmen and Mechanics. Not applicable against school buildings-------------------------------------------------------------- 221 Mechanics and Materialmen's, Law relating to statutory forms for__________ 464 Priority-Sales Tax Lien. Takes priority, although accrued after recording of judgment lien__________ 815 Tax Liens-Extent. Covers all property of taxpayer ___________ -------------------------------------------------------------- 814 Tax-See Taxation, this index. Water and Sewer Charges. No State law provides for lien for _______________________ ---------------------------------------------- 467
LIVESTOCK-See Agriculture.
LOAN COMPANIES. Taxation. Paid in capital stock not subject to ad valorem tax____________________________________ 668
LOANS-See also Georgia Industrial Loan Act, this index.
LOANS-See also Banks and Banking. Fallacies in laws regulating small loans ------------------------------------------------------------- 151 Guardian of minor veteran may not use "G. I. Loan" benefits to purchase home for ward____________________________________________________________________________________ 152
LOTTERIES-See Criminal Law.
MAIL. Registration for voting______________________________,__________________________________________________________________ 328

960
Page
MANDAMUS. Lies to compel Ordinary to pay fees to Ordinaries' Retirement System____ 602 Tax Fi. Fas. Will lie to compel sheriff to levy tax fi. fas.___________________________________________________ 816 Will not lie to force school superintendent to issue contract for teacher hired without his recommendation__________ ------------------------------------------------------------- 194
MARRIAGE-See Domestic Relations.
MARRIED WOMEN-See Domestic Relations.
MASONIC HALL-See Public Charities.
MECHANICS AND MATERIALMEN-See Liens, this index.
MEDICAL EXAMINERS-See Coroners, this index. May perform post-mortem examination over protest of coroner_-------------------- 59
MERGER-See Education, Merger and Consolidation, this index.
MERIT SYSTEM-See State Employees, this index.
MILITARY PERSONNEL. Domicile and Residency ________________________________ -------------------------------------------------------------- 523 Dishonorable Discharge. Effect of on rights under Georgia law________________________________________________________________ 911 Driver's License. Not required to purchase in order to purchase license tag_______________________ 467 Not required to purchase Georgia license if non-resident____________ --------------- 467 License Tags. May purchase without having Georgia driver's license______________________________ 467 Not required to purchase if non-resident_________________________________________________________ 467 Registration and Voting in Election ________________________ ---------------------------------------------- 315 Representation on County Board of Education____________________________________________________ 173 Service in armed forces does not disqualify one from obtaining a pistol license------------------------------------------------------------------------------------------------------------- 341 Taxation. Act providing for postponement of tax payments by members of the armed forces no longer in effecL-------------------------------------------------------------------- 817 Homestead Exemption. _Career members entitled to where temporary members are________ ___________ 694 Entitled to, although absent from home because of military service 740 Not entitled to if domiciled in another state ____________________________________ 332, 739 Serviceman enitled to exemption although rents property while away 736 Liability. Military personnel claiming homestead exemption liable for personal property tax -------------------------------------------------------------------------------------------- 741 Liquor imported to foreign military personnel stationed on reservations in Georgia subject to State Excise Tax__________________________________________________________ 813 Military personnel entitled to military pay deduction on State income tax ---------------------------------------------------------------------------------------------------------------- 754 Military personnel who are residents of Georgia are subject to all municipal, county and State taxes___________________________________,____,_,_______________________ 673

961

Page

MILITARY PERSONNEL-(Cont'd) Taxation-(Cont'd)

Not subject to ad valorem tax if resident of another state, even though purchases Georgia license tag____________________________________________________________________________ 671

Personal property not subject to tax while temporarily stationed

in Georgia -------------------------------------------------------------------------------------------------------------- 672
Personal property subject to ad valorem tax if resident of Georgia although property not in State_________________________________________________________________________ 671

Subject to ad valorem tax if resident of Georgia although not present

in State

------------------------------------------------------------------------------- _________ 668, 669

Veterans-See Veterans, this index.

MILITARY RESERVATIONS.

Officers' Club-Motor Fuel Tax Refund.

Entitled to -------------------------------------------------------------------------------------------------------------

821

Sale of intoxicating liquors on------------------------------------------------------------------------------------ 458 State control over highways on__________________________________________________________________________________ 397

Taxation.

Gross receipts from music machines located on military reservations subject to sales tax________________________________________________________________________________________________ 857

Taxicab fares and sales of tangible personal property on military reservations are subject to sales tax_____________________________________________________________________ 857

MILITIA DISTRICTS. Removal of member of Board of Education from militia district where elected, vacates office ------------------------------------------------------------------------------------------------ 176 Two members of Board of Education may reside in the same militia district ---------------------------------------------- ---------------------------------------------------------------------------- 176

MILK CONTROL BOARD-See Agriculture, this index.

MILK LAWS-See Public Health, this index.

MILLEDGEVILLE STATE HOSPITAL. Expenses of furlough from _____ -------------------------------------------------------------------------------- 406 Prisoner held in is not eligible for conditional release until restored to mental health ___________ --------------------------------------------------- _____________ 512, 514
Sentence of prisoner runs during treatment at_------------------------------------------------ 515

MINERAL RIGHTS.

-Taxation-Ad Valorem tax _____________________ -----------------------------------------------------

673

MINIMUM FOUNDATION PROGRAM FOR EDUCATION.

In effect in every county in Georgia -----------------------------

180

MINORS-See also Domestic Relations, this index.
Adoption procedure ------------------------------------------------------------------------------------------------------ 1 Contractual powers not affected by fact that minor can vote at eighteen 158
Age of majority is twenty-one----------------------------------------------------------------------------------- 158 Felony to furnish beer to minor_____________________________________________________ -------------------------- 452

MISCEGENATION-See Domestic Relations, this index.

MOTOR SCOOTERS-See Motor Vehicles, this index.

962

Page

MOTOR FUEL. Taxation-8ee Taxation, this index.

MOTOR VEHICLES-See Also Traffic Laws, Public Safety, and Highways, this index.

Automobile Clubs. Guaranteed bail bonds by are insurance____________________________________________________________ 434

Driver's License. Effect of discharge in bankruptcy upon suspension of__________________________________ 587
No authorization for issuance "for business purposes only"---------------------- 586 Non-resident military personnel stationed in Georgia not required to
purchase Georgia driver's license____________________________________________________________________ 467

Non-resident military personnel stationed in Georgia may purchase license tag without purchasing driver's license____________________________________________ 467

Equipment.
Publicly owned vehicles_ ----------------------------------------------------------------------------------------- 468 "Guest Statute."
Effected by judicial decisions__________________________________________________________________________________ 469

Headlights. Dual headlights I egal--------------------------------------------------------------------------------------------- 469
Highway Use Tax-See License Tags, this heading. Law pertaining to carrying pistol in automobile_____ -------------------------------------------- 338

License Tags.

Application.

Fee received by sheriff for endorsement of late application should be remitted to State Revenue Commissioner____________________________________________ 469

Late application may be endorsed by county tag agent rather

than sheriff ----------------------- ----------------------------------------------------------------------------------- 469

Consuls.

Not required to have tag on official vehicles_______________________________________

471

Dealer Tags. Misuse a misdemeanor__________________________________________________________________________________________ 472

Required for dealers in motor scooters____________________________________________________________ 471

Must be obtained even though not used_________________________________________________________ 473

Procedure for obtaining________________________________________________________________________________________ 475

Highway Use Tax. Applicability to truck or trailer------------------------------------------------------------------------ 475 Violation of criminal offense______________________________________________________________________________ 476 Applicability to trailers_______________________________________________________________________________________ 476 Highway Use Permit required of foreign trucks________________________________________ 477

Military Personnel. May purchase without a Georgia driver's license if non-resident stationed in Georgia_________________________________________________________________________________________ 467
Not required to purchase if non-resident stationed in Georgia______________ 467

Purchase. Can be made only in county of residence______________________________________________________ 481
Cannot be made in county where apprehended for failure to have current tag unless county of residence________________________________________________________ 481
Dealer may not purchase tags for buyers of vehicles sold by him______ 479 Earth moving vehicles that travel under own power on highways
must purchase --------------------------------------------------------------------------------------------------- 477

963

Page

MOTOR VEHICLES-(Cont'd)

License Tags- (Contd)

Purchases- (Cont'd)

Law pertaining to quoted___ -------------------------------------------------------------------------------- 480
Tag agent may not refuse to sell tag because of failure to pay ad valorem tax__________________________________________________________________________________________________ 479
Truck crane must purchase tag________________________________________________________________________ 478

Rates.

Vehicle used by contractor to transport mail subject to "for hire" license rate _________________ ------------------------------------------------------------------------------------- 483

Reciprocity.

Laws relating to ___________

484

School Buses.

What constitutes ________ ------------------------------- --------------------------------------------------------- 484

Marking of cars not necessary in order for there to be a valid arrest

for violation of Game and Fish Laws__ -----------------------

________________

365

Motor Fuel Tax-See Taxation.

Motor Scooters. Dealers in required to register and obtain dealers' tags _____ -------------------------- 471 Must be licensed and operator subject to same rules as operator of automobile ________________ ------------------------------------------------------------------------ --------------- 485

Motor Vehicle Safety Responsibility Act.

Not superseded by Uniform Act Regulating Traffic on Highways___________ 590

Purchase of passenger vehicles hy State__________

__________________ ____________________ 641

Registration.

Law pertaining to quoted-------------------------------------- ___________ ---------------------------------- 480

Procedure for changing__ ____________________ ____ ------------------------------------------------------------- 486

Procedure for criminal prosecution involving

______ ------------------------------- 144

Repossessor under conditional sales contract entitled to register car______ 486

Taxation-See also Taxation.

Ad valorem taxation in generaL__________

------------------------------

674

Assessors may place higher valuation on automobiles than

other property ___________________ ------------------------------------------------------------------------------------ 675

Automobile purchased out of State for use in Georgia subject

to Use Tax___________ -----------------------------. ----------------------------------------------- -------------- 862

Automobiles sold at sheriff's sales are subject to sales tax____________________________ 855

Dealer subject to ad valorem tax on motor vehicles owned by him on

January first _________________________ ---------- _____ _______

67 5

Evaluation. Automobile valuation should not be carried over from last year where owner fails to file return ___ ___ _____ ------------ ------------------------------------ 723
Owner of automobile on January first liable for ad valorem tax thereon 666
Returns. Duty of Tax Receiver to refuse return to taxpayer who refuses to give required information on motor vehicles owned by him________________ 890
Sales tax paid on gross price of car to include Federal Excise Tax unless separately listed________________________________________________________________________________________ 852

Uniform Act Regulating Traffic on Highway. Does not supersede Motor Vehicle Safety Responsibility Act__ _________________ 590

MOTOR VEHICLE LICENSE TAX-See Taxation.

964

Page

MUNICIPAL CORPORATIONS.

Annexation. Effect of on municipal school system_________________________________________________ ---------------- 168

Assessments-See Public Revenue, this heading.

Chamber of Commerce. Illegal to use municipal funds to support____________________________________________________________ 499

Charter.

Amendment to charter affecting candidates for city council does not

require referendum ----------------------------------------------------------------------------------------------- 374 City Council.
Members of eligible to be member of County Board of Education____________ 174

Contracts.

With Board of Education for furnishing of sewerage facilities__

166

Courts. Jurisdiction of Recorder's Court in traffic cases_____________________________________________ 899

May try traffic cases when no City or County Court in county________________ 489

Creation. Act creating may designate municipal officials________________________________________________ 487

Charter may be revoked by General Assembly_______________________________________________ 487

No minimum population necessary for incorporation____________________________________ 487 No particular area needed________________________________________________________________________________________ 487

Not necessary to have a vote of people_______________________________________________________________ 487

Election. Eligibility as county voter not necessary to be eligible city voter____________ 330

Employees. Subject to garnishment in certain circumstances__________________________ _______________ 367

Home Rule.

Constitutional provisions permissive and require affirmative

enabling legislation -------------------------------------------------------------------------

488

Intoxicating Liquor.

Municipality can still issue license for sale of beer and wine even

though county is "dry"------------------------------------------------------------------------------------------ 455 Legislative Power.

Cannot regulate what is set by State law_-------------------------------------------------------- 896 Licenses-See Public Revenue, this heading.

Mayor's Court.

Prisoners sent to State Board of Corrections where no City or County

Court in county__________________________________ ------------------------------ __ ---------------------

529

Motor Vehicles.

Equipment on -------------------------------------------------------------------------------------------------------------- 468 Officials.
Act creating municipality may designate officials _________________ -------------------- 487

Parking Meters.

On State-aid roads -------------------------------------------------------------------------- _---- _______________ ____ 403

Powers.

Businesses. Cannot construct building for rental to private industry________________________ 489

Business located on Farmers' Market exempt from municipal regulation 494 Cannot enact a blue law ordinance_____________________________________________________________________ 122

Eminent Domain.

May be exercised by City of East Point outside city limits and in

adjoining county ------------------------------------------------------------------------------------------ 490

965

Page

MUNICIPAL CORPORATIONS-(Cont'd)

Powers- (Cont'd)

Police. Powers outside of city limits. __ ------------------------------------------------------------------------- 490

Public Revenue. Assessments. Street assessments against school__________________________________________________________________ 244

Debt. City cannot obligate itself for equipment in excess of annual
anticipated revenue ----------------------------------------------------------------------------------------- 492 In election to incur, need only majority vote of persons voting____________ 491

Licenses.

Difference in rates must be based on reasonable classification___________ 493

For sale of farm produce__________ ---------------------- -------------------------------------------------- 8

May impose license fee on Building and Loan Association___________

494

Must be reasonable_______________________________________________________________________________________________ 493

Of professional persons -------------------------------------------------------------------------------------- 553

Power to impose granted by General AssemblY----------------------------------------,- 493

Taxation.

Business located on Farmers' Market exempt from_______________________

494

Use of.

Illegal use to purchase group insurance for employees __________________________ 496

Illegal use to support Chamber of Commerce__________________

499

Public Utilities.

Municipally owned utilities subject to control of Public Service Commission outside of home county___________ ----------------------------- _______________________ 500

Purchase of Prison-made Goods __

------------------------------------------------------------- 530

Regulations.

Inferior to regulations of County Board of Health _______________ ------------------------ 571

Schools-See Education, this index.

Streets.

Assessments for against schools__ _____ ___________________________

244

Refusal to accept when less than a specified width

502

Taxation-See also Taxation.

Authority.

May not grant tax exemptions to incoming industries____________________________ 461

May not levy license tax on non-resident liquor dealer who solicits

orders for subsequent delivery__

------------------------------------------------- 809

Cannot require Federal Savings and Loan Association to pay municipal

business license tax _---------------------- _ ------------------------- ------------------------------ ________ 694

Exemption Certificates. Employees of person holding also exempt from license tax___________________ 713

Municipality engaged in business of buying and distributing natural gas is not exempt from paying State sales tax___________________________________________ 860

Not exempt from collecting sales tax ------------------------------------------------------- 858, 859

Property returned for ad valorem taxation, but later sold to munici-

pality, cannot be levied on_____

----------------------------------------------------------------- 680

Seed Corn. Seed corn grown in State exempt _________________________________ ------------------------------- 717

966

Page
MUNICIPAL CORPORATIONS-(Cont'd) Taxation-See also Taxation-(Cont'd) Tort Liability. City not liable for medical care for prisoner shot by policeman while escaping ---------------------------------------------------------------------------------------------------- 503
NATIONAL BANKS-See Banks and Banking.
NATUROPATHY-See Professions, Businesses and Trades, this index.
NEWSPAPERS. Official organs of Counties. Laws relative to_________________________________ ------------------------------------------------------------------------ 68
NON-PROFIT ORGANIZATIONS. Sales and Use Tax, not exempt from_____________________________________________________________________ 861
NON-RESIDENTS. Cannot press claim against deposit of insurance company in Georgia _____ 421 Taxation. Income Tax ------------------------------------------------------------------------------------------------------------------ 760 Liable for intangible tax on intangibles coming out of sales and deliveries in Georgia________________________________________________________________________________________________ 798 Non-resident not liable for sales tax on automobile bought in Georgia and delivered to him out of State_____ -------------------------------------------------------------- 861
NOTARIES PUBLIC-See Courts. Tax Commissioners, Collectors and Receivers are without authority to notarize documents ------------------------------------------------------- -------------------------------------------- 873
"NOTICE OF INTENTION TO BURN ACT"-See Forestry.
NURSES-See Professions, Businesses and Trades, this index,

OBSCENE LITERATURE.

Powers of Literature Commission______

640

OPTICIANS-See Professions, Businesses and Trades, this index.

ORDINARIES-See Courts.

PARDONS AND PAROLES-See also Prisons and Prisoners, this index. Conditional Release. May be granted on condition individual remains in Battey State Hospital and continues treatment ____ ------------------------ ____________________ ------------------------- 504
Destruction of Records. Law pertaining to discussed _________________________________________________________________________________ 505
Effect of Pardon. Does not require reinstatement of revoked driver's license ______________________ 506
Effect of' Parole. Does not make person convicted of crime involving moral turpitude eligible to be school trustee________________________________________________________________________________ 295
Does not remit suspended sentence______________ ------------------------------------------------------- 509

967
Page
PARDONS AND PAROLES-(Cont'd) Eligibility. "Habitual Criminal Law" not retroactive__________________________________________________________ 511 Prisoner confined in Milledgeville State Hospital not eligible until restored to mental health------------------------------------------------------------------------------ 512, 514 Sentence computed from date imposed_______________________________________________________________ 515 Sentence runs during treatment at Milledgeville State HospitaL____________ 515 Sentence runs from date imposed and not affected by informal release to and imprisonment by Federal authorities. ----------------------------------------------- 513 Governor's Authority. Denial of suspension of death sentence deprives Pardon and Parole Board of further jurisdiction__ ------------------------------------------------------------------------- 516 No power to commute death sentence to life imprisonment_______________________ 515 Habitual Criminal Act. Not retroactive --------------------------------------------------------------------------------------------------------- 511 Unconstitutional ------------------------------------------------------------------------------------------------------- 519 Pardon and Parole Board. No further jurisdiction when Governor denies suspension of death sentence -------------------------------------------------------------------------------------------------------- 516 Rights of Parolee. May apply for aid to illegitimate child____________ ----------------------------------------------- 521
PARKING METERS. On ''State-aid'' roads_________________________________________________ ---------------------------------------------------- 403
PARKS-See also State Parks, this index. Highway Wayside Parks ____________ ------------------------- ------------------------------------------ 405, 406
PARTNERSHIP. Illegal for Board of Education to make purchases from partnership partially owned by member of Board__________________________________________________________________________ 187 Not created by mere agreement to divide profits_______________ ---------------------------------- 522
PENSION ORGANIZATIONS. Taxation. Not subject to intangible tax on recording of long-term real estate notes 797
PENSIONS. Taxation. Government pensions exempt from State income tax unless merely retirement income ________ --------------------------------------------------------------------------------------------- 756
PERJURY-See Criminal Law.
PERSONAL PROPERTY. Taxation. Sales tax on personal property bought outside State____________________________________ 862 Tangible personal property bought outside State prior to enactment of Sales and Use Tax Law is not subject to tax________________________________________ 864
Taxation-Homestead Exemption. Must file application for annually________________________________________________________________________ 743
Not renewed automaticallY-------------------------------------------------------------------------------------- 742 Tax Situs for ad valorem taxation_________________________________________________________________________ 681

968
Page
PERSONAL PROFITS-(Cont'd) Tax Situs. Same as that of owner unless permanently located elsewhere____________ ------- 683
PERSONS. Domicile and Residency discussed --------------------------------------------------------------------------- 523
PETITIONS. No time limit for petition for election to legalize sale of intoxicants____________ 455 To qualify independent candidate for election to be placed on ballot____________ 308 To qualify independent candidate to be placed on ballot by use of postal cards ---------------------------------------------------------------------------------------------------------------- 310
PHARMACY-See Professions, Businesses and Trades, this index.
PHOTOGRAPHERS-See Professions, Businesses and Trades.
PISTOLS-See Firearms.
POLICE. Assault on police officer_____ ------------------------------------------------------------------------------------------- 121 City policemen not covered by Social Security______________________________________________________ 604 Police powers of State Parks Department___________________________________________________________ 653 Power of city policeman outside city limits____________________________________________________________ 108
"POPULATION" BILLS-See Legislation.
POPULATION. Determination by Superintendent of Banks _______ --------------------------------------------------- 18 No minimum population necessary for chartering of municipality________________ 487
POLITICAL PARTIES. Democratic Executive Committee cannot provide who may assist a voter in casting of ballot____________________________________________________________________________________________________ 441 Democratic Executive Committee has no authority with respect to voter registration ------------------------------------------------------------------------------------------------------ 318 Meetings must be held in Court House or municipal auditorium__________________ 317 Services cannot be rendered to by County Attorney----------------------------------------- 70
PORTS AUTHORITY-See Georgia Ports Authority, this index.
POSTAL CARDS. Use as a petition to qualify independent candidate to be placed on ballot____ 310
PRACTICAL NURSES-See Professions, Businesses and Trades, this index.
PRESIDENT. Presidential Electors ---------------------------------------------------------------------------------------------------- 305
PRIMARIES-See Elections.
PRISONS AND PRISONERS-See also Pardons and Paroles, this index. Convict Labor. Contract for use by counties __________________ --------------------------------------------------------------- 524

969

Page

PRISONS AND PRISONERS-(Cont'd) Convict Labor-(Cont'd) Use by counties,_____________________________________________________________________________,____________________________ 524

Use in competition with private enterprise questionable__________________ ,________ 524

Use of to relocate service station on highway _____ __ __________ __

394

Use to build septic tanks for local Health Department illegaL_______________ 524

Prison Camps.

Housing of county prisoners by State unlawful -------------------------------------------- 527 Joint operations by State and County unlawful_____________________________________________ 526

Safety of construction______________________________________________________________________________________________ 526

Prison Made Goods.
Sale to municipality ------------------------------------------------------------------------------------------------- 530 Prisoners.
Escapes. Expense of returning home by institution escaped from__________________________ 528
Misdemeanor. State Board of Corrections may receive from Mayor's Court where no City or County Court in county______________________________________________________________ 529

Transfer of juvenile to State Board of Corrections------------------------------------- 528 Sentences.
Computed from date imposed _______________________ --------------------------------------------------------- 515 Do not dissolve a marriage_______________________ -------------------- _________________________ ______________ 153

Runs from date imposed and not affected by informal release to and imprisonment by Federal authorities,_____________________________________________,_______________ 513

Runs during treatment at Milledgeville State HospitaL_______ --------------------- 515 Suspended sentence not remitted by parole______________________________________________________ 509

State Board of Corrections. Not authorized to return prisoner to home county when habeas corpus proceeding filed ------------------------------------------------------------------------ ----------------------------- 135

PRIVATE BANKS-See Banks and Banking.

PRIVATE PONDS-See Game and Fish.

PROBATE-See Wills and Administration of Estate, this index.

PROCESS-See Courts.

PROFESSIONS, BUSINESSES AND TRADES. Accountants. All members of firm must be certified before firm may practice as certified ____________________________________________________________,_________________________________________________ 531
Certified non-residents must register with Georgia by January of each year -----------------------------------C------------------------------------------------------------------------------ 531
State Board may not prescribe the place of the office of certified
accountants ------------------------------------------------------------------------------------------------------------- 532 Architects.
Use of name "X Architects and Engineers" not illegal if one of officers
of firm is licensed architect------------------------------------------------------------------------------ 533 Barbers and Hairdressers.
Legality of home permanent waves when no charge made__________________________ 536 State Board has authority to set sanitary conditions in barber and
beauty shops ------------------------------------------------------------------------------------------------------------ 537

970
Page
PROFESSIONS, BUSINESSES AND TRADES-(Cont'd)
Business with actual and tax situs in another state pays tax on income
to that state --------------------------------------------------------------------------------------------------------------- 761 Chiropractors.
Educational qualifications ----------------------------------------------------------------------------- 538, 539 Contractors and Sub-contractors.
Contractor responsible for any sales tax that may become owing by sub-contractor -------------------------------------------------------------------------------------------------- 655
Contractors liable for sales tax on materials consumed in performance of contract --------------------------------------------------------------------------------------------------------------- 842
Contractor liable for sales tax on supplies furnished Atomic Energy Commission ---------------------------------------------------------------------------------------------- 837
Contractor liable for use tax on materials furnished by city and used by him -------------------------------------------------------------------------------------------------------------------- 839
Contractor is liable for sales tax on materials installed in building erected for the State____________________________ ------------------------------------------------------------- 839
Contractor responsible for sales tax collection on sums held with respect to sub-contract completed prior to enactment of collection statute______ 840
Sub-contractor liable for sales tax on goods purchased and installed by him -------------------------------------------------------------------------------------------------------------------- 842
Sub-contractor liable f'or tax on materials used by him____________________________ 844 Sub-contractor liable for sales tax on materials installed where sub-
contract was let by one doing work for the State____________________________________ 841
Doctors. No State law authorizing sterilization operations on persons not covered under Act creating Board of Eugenics__________________________________________________ 572
Engineers. Cannot engage in land surveying________________________________________________________________________ 540
Organization must have registered engineer in it to advertise as Engineer Company --------------------------------------------------------------------------------------------- 542
False swearing before Dental Board of Examiners not perjury____________________ 142 Funeral Directors.
Laws governing licensing and regulation discussed________________________________________ 543
Naturopathy. Board of Examiners abolished_______________________________________________________________________________ 546 Educational qualifications for practitioners______________________________________________________ 545
Practitioners may use word "Doctor" only when followed by word ''Naturopathy'' ------------------------------------------------------------------------------------------------------- 544
Nurses. Advisory Committee to Practical Nurses' Board serves without
compensation ----------------------------------------------------------------------------------------------------- 547 Opticians.
Applicant for license under "Grandfather" clause must have for refunded if application is rejected______________________________________________________________________ 547
Qualifications for licensee under "Grandfather" clause________________________________ 549 Pharmacy-Food and Drugs.
Unlicensed pharmacist may sell aspirin and anacin, but may not fill prescription containing without proper supervision__________________________________ 566
Pharmacy. Procedure for filling a vacancy on State Board of Pharmacy____________________ 550
Photographers-Taxation. Photographer's liability for sales tax__________________________________________________________________ 864

971

Page
PROFESSIONS, BUSINESSES AND TRADES-(Cont'd)
Real Estate Brokers. Persons eligible to take examination for _________________________________ ------------------------- 551 Sale of interment rights in sale of real estate________________________________________________ 596
Taxation. County and municipal taxation of various professions discussed______________ 553
Taxation-Exemption. County may not exempt property from taxation as inducement to new business______________________________________________________________________________________________________ 709
Neither State, county nor municipal authorities may grant tax exemptions to incoming industries________________________________________________________________________ 709
Tire Recapping-Taxation. Sales tax on machinery due by user, sales tax on supplies due by consumer ---------------------- ---------------------------------------------------------------------------- 871
Wholesale Dealers. Collection of sales tax__________ ------------------------------------------------------------------------------------- 872
Wholesale Fish Dealers. Commercial fishermen licensed by Game and Fish Commission not required to obtain license________________________________________________________________________________________ 554

PROPERTY-See also Real Property, Personal Property, Public Property. Etowah River. Owned by landowners adjoining it______________________________________________________________________ 555
Evaluation for Tax. All things affecting value must be considered__________________________________________________ 679
Correct evaluation is joint responsibility of Tax Receiver and Tax Assessors --------------------------------------------------------------------------------------------------------- 680
Evaluation for Tax-Homestead Exemption. Whether or not taxpayer entitled to exemption should not be considered in assessing value_________________________________________________________________________________________ 724
Evaluation f'or Tax-Motor Vehicles. Automobile valuation should not be carried over from last year where owner fails to file return ----------------------------------------------------- ------------------------------- 723
Liability. Immunity of owners of property used for public defense purposes__________ 557
Trespass. Trespass by flooding___________________________________________________________________________________________________ 555

PUBLIC CHARITIES-See also Religious Institutions. Taxation. Masonic Hall is exempt from State and County taxation __________________________ 715

PUBLIC DEFENSE.

Civil Defense.

Nature of agency_________________________________________________________________________________

63

Property. Immunity of owners of property used for defense purposes____________________ __ 557

Regulation of.

General Assembly may constitutionally prescribe requirements for

enlistment in militia_____ ---------------------------------- ------------------------ -------------------------- 557

972

Page
PUBLIC DEFENSE-(Cont'd)
State Department of Defense-Disbursements. Not authorized to pay pro-rata share of administrative expenses of State agency administering old age and survivors' insurance~~~~~~~~~~~~~~~~ 558
State Department of Defense-Regulations of the Adjutant General. Superior to local laws when ~~~~~~ ~~~~~~~~~~~~~~~~~~~~~~-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 558

PUBLIC HEALTH. County Boards of Health-Milk Laws. Regulations of prevail over municipal regulations~~~~~~~-~~~-~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 571 Department of Public Health-Employees. Employee of Department of Public Health at Battey Hospital entitled to be retained on State payroll upon contracting tuberculosis, although diagnosis made af'ter she left State employment~-~~-~~~~~~~~~~~~~~~~ 561 Department of Public Health-Hill-Burton Act. Department authorized to receive and administer funds and to carry out programs provided for by Hill-Burton Act~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 564 Department of Public Health authorized to receive funds and carry out programs under Hill-Burton Act.~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~~~~-~~ 562 Form of Labor and Material Payment Bond, PHS-148 (HF) 7-47, discu ssed ~~~~~~~~~~~~~~~~ ~~~~--~~-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~~~-~~~~~- 56 2 Eugene Talmadge Memorial Hospital. Cannot retain mental patients who enter voluntarily, although unsafe to release them~~~~~-~~~~~~~~~~-~~~-~~~~~ -~ ~~~~ ~~~~~~~~~~~~ ~~~~ -~~~~~-~~~~~~~~~~-~~ ~~~~~~~~~~~~ ~~~~~~~~~~~~~~~~~~~-~~~- 565

Food. Use of intoxicating liquors in manufacture of candy unlawfuL~~~~~~~~~~~~~~- 462
Food and Drugs-Sale of Medicine. Unlicensed person may sell aspirin and anacin, but may not fill prescription containing without proper supervision~~-~~~~~~~~~~~~~~~~~~~~~~~-~~-~~~~~~~~~~~~~~~~~-~~~- 566
Food and Drugs-Vending Machines. Distribution of aspirin, B. C. powder, etc. does not violate drug laws~~~~~~~- 567
Funds for local public health department derived f'rom taxation~~~~~~~~~~~-~~~~~~- 524 Hill-Burton Act-See Department of Public Health, this heading.

Hospitals.

Battey State Hospital.

Individual may be granted release by Board of Pardons and Paroles

conditioned on remaining in hospital for treatment~~~~~~~~~~~~~~~~~~~~~~~~~~~~~- 504

Hospital Authority.

Not immune from tort liabilitY~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~~~-~~~~--~~-~~~~~~~~~---~~~--~~~~-~- 892

Milledgeville State Hospital-prisoner held in not eligible for conditional

release until restored to mental health.~~~~~~~~~~~~~~--~~~-~~-~~~~~~~----~~~~~~-~~~~~~~~- 512, 514

Milledgeville State Hospital-sentence of prisoners run during treatment

at ~~~~ ~~~~ ~--~-~- ~~~~~~~~-~~~- -~~--~-~~~ ~~~~~ ~~~~~~~~~~~-~~~~~~~~~~~~~~~~~~~-~~-~~~~~~ ~~~~ ~~~~~~~~-~~~ ~~~~~~~~~~~-~~~~~~~~~

515

Hospital Authorities-Liability Insurance.

Unauthorized to purchase since immune from tort liabilitY~~~~~

568

Hospital Authorities-Tort Liability. Created under Hospital Authorities' Law is immune~~~~-~~~~-~~~~~~~~~~--~~~~~~~---~-~-- 568

Milk Laws.
Regulations of County Board of Health prevail over municipal regulations ~~~----~-~~~~~~~~~~~~~~~~--~--~~-~-~--~-~-~-~----~-~~--~--~---~-~~~-~~~-~~~~~--~-~~--~~~~~-~~-~~~-~--~-~--~~-----~------- 571
Sale of filled milk for human consumption prohibited~~-~~~~-~-~~-~~~~~~~~~-~-~~'-~-~~~-- 6

973

Page

PUBLIC HEALTH-(Cont'd)

Sanitary Conditions.

In barber and beauty shops, prescribed by State Board of Barbers and

Hairdressers ------------------------------------------------------------------------------------------------------------ 537

Sterilization Operations.

No State law authorizing on persons not covered under Act creating Board of Eugenics______________________________________________________________________ --------------------------- 572

Use of convict labor by local health department illegal _____ _________________

524

PUBLIC OFFICERS. Change of qualifications while in office __ -------------------------------------------------------------- 71

PUBLIC PROPERTY.

Easements.

Act of General Assembly necessary to grant easement over State prop-

erty ------------------------------------

_________________ --------------------------------------------------------- 572

Expenditure of State Funds. State cannot improve property until title .to property is with State________ 574 State must have fee simple absolute title to property before expending

funds on ____

-------------------------------------------------------------------------------------- 573

Sufficiency of deed to State which would authorize expenditure of State

funds

---------------------------------------------------------------------------------------------------------

574

Taxation.

Property returned for ad-valorem taxation, but later sold to munici-

pality, cannot be levied on_--------------------------------------------------------------------------------- 680

PUBLIC REVENUE-See also Municipal Corporations, Education-School Funds, this index.
County Funds.
County cannot levy tax to repair building used by public, but owned by private individuals ---------------------------------------------- -------------------------------------------- 57 5
County may not levy tax for industrial developments ____ ------------------------------ 585 Penalty collected under Code Section 92-6913 should be paid into County
Treasury ---------------------------- -------------------------------- -------------------------------------------------- 577 Use of revenue for advertisement to induce new business requires con-
stitutional amendment ______ ---------------------------- _--------------------------------------------------- 709
Disposition of' Penalties.
On Feed ________________________ ------------------------------------------------------------------------- --------------------- 14 Penalty collected under Code Section 92-6913 should be paid into County
Treasury ________________ ------------------------------------------------------------------------------------------------- 577
Distribution-Intangible Tax. Based on location of property_____________________________________________________ -------------------------- 581 Funds remitted to Commissioner of Revenue_____________________________________________________ 577 Sums collected by Clerk of Superior Court remitted to County Tax Collector for distribution____________________________________________________________________________________________ 582
Municipal Funds. Municipality may not levy tax for industrial developments__________________________ 585
State Funds-Appropriations. Submission of annual and quarterly budgets______________________________________________________ 585

974
Page
PUBLIC REVENUE. State Funds. Cannot be expended on property unless State has fee simple absolute title ------------------------------------------------------------------------------------------------------------------------ 573 Cannot be used to improve property until title thereto is with State________ 574 Sufficiency of deed to State which would authorize expenditure of State funds to improve--------------------------------------------------------------------------------------------------- 574
PUBLIC SAFETY-See also Motor Vehicles and Traffic Laws, this index. Department of Public Safety. Functions of Georgia Bureau of Investigation__________________________________________________ 123 Jurisdiction over highways on Fort Benning Reservation______________________________ 397 Payment of medical expenses of troops injured in line of duty____________________ 591 Status of employees of Crime Laboratory_________________________________________________________ 589
Driver's License. Effect of discharge in bankruptcy upon suspension________________________________________ 587 No authorization for issuance "for business purposes only"------------------------ 586 Non:resident military personnel stationed in Georgia may purchase license tag without purchasing driver's license______________________________________________ 467 Non-resident military personnel stationed in Georgia not required to purchase Georgia driver's license___________________________________________________________________ 467 Suspension by Director of Public Safety__________________________________________________________ 904
Suspension and Revocation. Pardon for traffic offense does not affect___________________________________________________________506
Georgia Bureau of Investigation. Not required to turn records over to United States Senate Investigating Committee ------------------------------------------------------------------------------------------------------------ 336
Motor Vehicle Safety Responsibility Act. Not superceded by Uniform Act Regulating Traffic on Highways______________ 590
Uniform Act Regulating Traffic on Highways. Does not supercede Motor Vehicle Safety Responsibility Act_____________________ 590
PUBLIC SERVICE COMMISSION. Has control over municipal and county owned utilities outside home county 500 Jurisdiction. Applies to contractors furnishing service to Federal Government, but not to Federal Government itself______________________________________________________________________ 592 May forbid leasing by licensed carrier of equipment to a non-licensed person ---------------------------------------------------------------------------------------------------------------------- 593 Vehicles transporting own merchandise and not for hire not required to be registered with__________________________ -------------------------------------------------------------------------- 484
PUBLIC UTILITIES. Municipal and county owned utilities subject to control of Public Service Commission outside of home county____________________________________________________________________ 500
PUBLIC WELFARE-See also State Government, this index. Aid to dependent children__________________________________________________________________________________________ 521 Examination of vital statistics records by welfare workers_____________ --------------- 913
QUAIL--See Game and Fish.

975

Page
RAILROADS. Taxation-Assessment. Assessed by Revenue Commission and not by local authorities____________________ 826
REAL ESTATE. Bank carrying on business of____________________________________________________________________________________ 32 Sale of interment right sale of real estate______________________________________________________________ 596
REAL ESTATE BROKERS-See Professions, Businesses and Trades, this index.
REAL PROPERTY. Mineral Rights-Ad Valorem Tax----------------------------------------------------------------------------- 673
REBATES. On insurance commissions prohibited________________________________________________________________________ 420
RECKLESS DRIVING. Not a traffic offense ------------------------------------------------------------------------------------------------------ 900
RECORDS. Destruction. Law pertaining to preservation of records of Board of Pardons and Paroles discussed ---------------------------------------------------------------------------------------------------- 505 No authority for destruction of school records_________________ ------------------------------------- 269
REFERENDUM-See Election, this index. Not required for amendment to city charter affecting candidates for city council ---------------------------------------------------------------------------------------------------------------------- 374
REGIONAL FOREST FIRE PROTECTION COMPACT-See Forestry, this index.

REGISTRATION-See Election.

RELIGION.

Constitutionality of Bible teaching in public schools discussed_________

209

Objection to immunization prior to school admission on religious grounds 275

Ordinary without authority to issue license to delicatessen to sell sacra-

mental wine -------------------------------------------------------------------------------------------------------------- 454 Sale of intoxicating liquors within 100 yards of church illegaL_____________________ 461

RELIGIOUS GROUPS. Not exempt from lottery law __ ---------------------------------------------------------------------------------- 139

RELIGIOUS INSTITUTIONS. Taxation. Land owned by, subject to taxation when leased for commercial purposes 716 Not exempt from sales tax_____________________________________________________________________________________ 865
Not subject to intangible tax on recording long-term real estate notes____ 797 Pipe organ purchased as gift to religious institution not exempt from
sales tax -------------------------------------------------------------------------------------------------------------------- 866 Trailer owned by and situated on church land to be used as parsonage
is exempt ------------------------------------------------------------------------------------------------------------ 715

976

Page

RESIDENCES. Homestead Exemption-See Taxation-Homestead Exemption.

RESIDENCY. Discussed -------------------------------------------------------------------------------------------------------------------'---- 523

RES JUDICATA. Applicable to habeas corpus cases ________ -------------- -------------------------------------------------- 133 Inapplicable as restricting the power of an administrative tribunal to reconsider or modify its own decisions___________________ ------------------------------------------ 280

RETIREMENT.

Clerk of Superior Court.
If any payments withdrawn, clerk loses eligibility to become member of
fund-------------------------------------------------------------------------------------------------------------------------- 596 Must make continuous payments to be eligible for retirement __________________ 596 Employees' Retirement System.

Credit for prior service allowed for service as judge of City Court but not for service as judge of municipal court____ --------------------------- ___________________ 598
Members.

Employees of Georgia Commission on Alcoholism eligible for mem-

bership ----------------- -------------------------------------- ________________________

598

System of.

Are retirement systems for each political subdivision of' State, and not systems for each position________ ----------------------------------------------------------------- 599
Firemen's Pension Fund. Investments. Loan to private owner of water works system______________________________________________ 600

Judge of Superior Court. Qualifications for appointment as Judge Emeritus__________________________________________ 601

Ordinaries' Retirement System. Fees for. Ordinary may be mandamused to pay fees

__________________ _____

602

Ordinary must collect whether a participant in fund or not__________

603

Participation. Fact ordinary is defeated in election does not preclude participation in

fund ---------------------------------------------------------------------------------------------------------------------------- 604 Policemen.
City policemen not covered by Social Security_______ -------------------------------------- 604

Social Se,:mrity.

City policemen not covered. ------------------------------------------------------------------------------------ 604 Teachers' Retirement System.

Benefits. Re-employment of retired teacher does not stop benefits --------------------------- 605
Constitutionality. See Constitutional Law, this index.

Investments. See also Insurance, this index. F.H.A. mortgage loans to 100% of value_______________________ -------------------------------- 609

Loan secured by long-term lease legal only when approved by Insur-

ance Commissioner -------------------------------------------------------------------------------------------- 437 Loans secured by real estate______________________________________________ --------------------------------- 610

Loans secured by real estate leases ____________________________________ ------------------------------- 608

Local Retirement Funds. Right to receive payments__________________________________________________________________________________ 612

977

Page
RETIREMENT- ( Col'lt'd) Teachers' Retirement System.
Members. Code 32-2905 (6) applies to all teachers retired and subsequently restored to service______________________________________________________________________________________________ 614 Upon retirement, teacher withdraws from system________________________________________ 615
Option. Necessity for exercise____________________________________________________________________________________________ 615

REVENUE DEPARTMENT-See Department of Revenue.

REVENUE COMMISSIONER-See Commissioner of Revenue.

REVOLVERS-See Firearms.

REVENUE CERTIFICATES. Issuance not authorized by county to erect school building____________

---- 222

REVERSION.

Reversionary clause includes all buildings attached to realty___________________

264

REWARDS-See Criminal Law.

RIFLES-See Firearms.

"RIGHT-TO-WORK" LAW. Law against compelling membership in labor union ____ -------------------------------------- 463

RIVERS AND STREAMS.

Etowah River owned by landowners adjoining it-----------------------------

555

RURAL ELECTRIFICATION ASSOCIATION-See Corporations.

SAFETY FIRE REGULATIONS.

Applicability to carrier of explosives_______________ ------------------------------------------------------- 617

Regulation as regards prison camps

______ ---------------------------------------------------- 526

SALARY AND WAGE BUYERS.

No longer subject to license tax _____ ____ _ _____________________________________________

385

SALES.

Buyer at casual and isolated sale is liable for sales tax ___ --------------------

856

One who makes a casual and isolated sale is not responsible to collect the sales tax thereon__________________________________________________________________________________________________________ 837

Taxation. Transportation charges not deductible from price of article in computing

sales tax -------------------------------------------------- ------------------- ---------------------------------------------- 872

SALES AND USE TAX-See Taxation.

SAMPLE BALLOTS-See Election.

SAVINGS AND LOAN ASSOCIATIONS. See also Banks and Banking.
Deposit in, illegal investment of school funds ______ ------------------------------------------------ 246 Required to register with Corporation Commissioner__________________________________________ 35

978

SCHOOLS-See Education.

Page

SCHOOL LUNCHES-See Education, this index.

SCHOOL SUPERINTENDENT-See Education.

SECRETARY OF STATE. Commissions. Local Board of Education__________________________________________________________________________________________ 178 County School Superintendent________________________________________________________________________________ 193
Corporations. Federal corporations required to register with________________________________________________ 35
Fire insurance company cannot surrender charter to__________________________________________ 413 Registration of trade marks________________________________________________________________________________________ 894
Surveyor-General.
No authority to appoint deputY------------------------------------------------------------------------------ 646

SECURITIES. Stock of an insurance company regulated by insurance commissioner is not exempt from blue-sky laW----------------------------------"----------------------------------------------------- 618

SECURITY QUESTIONNAIRE-See Subversive Activities, this index.

SEED CORN. Taxation-Exemption. Grown in State exempt from taxation__________________________ ------------------------------------- 717

SEEDS-See Agriculture.

SEGREGATION. Private school plan______________________________________________________________________________________ ___________________ 219
School-See Constitutional Law, this index. Miscegenation-See Domestic Relations, this index. Unlawful to use same school buildings for both whites and Negroes__ _______ 273

SEINES-See Game and Fish.

SERVICE, MILITARY-See Military Personnel.

SEWERS. No State law providing for lien for charges_________________ ---------------------------------------- 467

SEWERAGE. Contracts for facilities between municipalities and school board_____ ______________ 166

SHAREHOLDERS-See Stockholders.

SHERIFFS-See Courts.

SIGNS. School Busses ----------------------------------------------------------------------------------------------------------------- 233
SLOT MACHINES-See Criminal Law.

SMALL LOANS,-See Georgia Industrial Loan Act, this index.

979

Page
SOCIAL SECURITY. City Policemen not covered__________ ---------------------------------------------- ---------------- ___________ 604
SOIL CONSERVATION DISTRICT-See Agriculture.
SOUTH CAROLINA. Boundary with Georgia___________ ---------------------------------------------------------------------'---------------- 625
SOVEREIGN IMMUNITY. Applicability to municipality_________________ ---------------------------- ____ ---------------------------------- 503 Hospital authority not exempt from tort liability________________________________________________ 892 Liability of County Board of Education for libeL__________________________________________,__ 192 State exempt from suit for negligence of employee____________________________________________ 650
SPALDING COUNTY. Membership of Griffin-Spalding County Board of Education discussed________ 172
SPECIFIC PERFORMANCE. Burden of Loss. Borne by vendee who enters on land pursuant to contract____________________________ 621
SPONSORSHIP. School may not sponsor any activity not for educational purposes_ ______________ 269
STATE BOARD OF CORRECTIONS-See Prisons.
STATE BOARD OF EDUCATION-See Education.
STATE BOARD OF PARDONS AND PAROLES-See Pardons and Paroles, this index.

STATE BOUNDARIES.
Alabama ----------------------------------------------------------------- -------------------------------------------------------- 622 Coastal Areas ------------------------------------------------------------------------------------------------------------------ 625 South Carolina ---------------------------------------------------------------------------------------------------------------- 625

STATE DEPARTMENT OF DEFENSE-See Public Defense.

STATE DEPARTMENT OF ENTOMOLOGY-See Agriculture.

STATE DEPARTMENT OF PUBLIC HEALTH-See Public Health_

561

STATE EMPLOYEES.

Aliens as --------------------------------- ----------------------------------------------------------------------------------------- 627

Commission on Alcoholism.

Employees are state employees eligible to come under merit system__

628

Federal and State Cooperative Inspection Services.

Employees are state employees for purposes of OASL --------------------------------- 629

Merit System. Employees of Commission of Alcoholism come under______________________________________ 628

State Personnel Board has no authority to subpoena witnesses____________________ 630

Retirement-See Retirement, this index.

State Museums.

Curator employee of Department of Mines, Mining, and Geology________________ 631

980

Page

STATE EMPLOYEES-(Cont'd)
Subject to garnishment ______________________ --------------------------------------------------------------- 366, 369 Who may be _______________ ------------------------------------------------------------------------------ ---------------------- 632

STATE FORESTRY COMMISSION-See Forestry. STATE FUNDS-See Public Revenue. STATE GAME AND FISH COMMISSION-See Game and Fish.

STATE BRIDGE BUILDING AUTHORITY-See Authorities, this index.

STATE GOVERNMENT-See also Executive Department, State Employ-

ees, and State Property, this index.

Bids on State contracts ___________________ -------------------------------------------------------------

633

Compensation of Officials.

Compensation of Veterans Service Board must be determined by General

Assembly ______________________________ --------------------------------------------------------------------------------- 635

Cooperative membership unlawfuL_________________________ --------------- ____ ---- --------------------- 635

Department of Public Welfare. Acceptance of Gifts___________________________________________ ------------------------------------------------------- 637

Fair Trade Law inapplicable to State ____________ ------------------------------------------

638

Georgia Ports Authority.

Agency of the State -------------------------- _______________ ---------------------------------

636

Great Seal.

Use of -------------------------

638

Herty Foundation.

Nature of -------------------------------------------------------------------------------------------------------------------- 347

Literature Commission.

Powers of ------------------------------------ -------------- ----------------------- --------------------------------------- 640 Purchase of motor vehicles for transportation of passengers__________________________ 641

Purchases exempt from Federal Excise Tax.-------------------------------- _--------------------- 644

Soil Conservation District.

Agency of State ___________________ ------------------------------------------ _____________

645

State Library. Distribution of court reports, laws, and journals____________________________________________ 639

Surety bonds required of State officials------------------------------------------------------

644

Surveyor-General.

No authority to appoint deputy____ ---------------------------------------------------- ______

646

Tax Liability.

Street Assessments --------------- --------------------------------------------------------------------------------- 647

Tort Liability.

State exempt from suit for negligence of employee_________________ ---------------------- 650

Use of State Funds for establishment of museum on private property

illegal ---------------------------------------------------------------------------------------------------------------------------- 650

Workmen's Compensation.

Departments are not authorized to secure insurance for ______________ ----------------- 652

Departments subject to law _________ ------------------------------------------------------------------------- 284

STATE LIBRARY-See State Government, this index.

STATE PARKS. County Advisory Committees______________________ -------------------------------------------------------------- 653 Highway Wayside Parks ------------------------ _____ ------------------------------------------- 405, 406

981
Page
STATE PARKS-(Cont'd) Necessity of title before permanent improvements may be made____________________ 655 State Parks Department. Police powers ------------------------------------------------------------------------------------------------------------- 653
STATE PROPERTY. Acquisition of lease of land by State _____________ --------------------------------------------------------- 655 Authority to encu,!llber by grant of easement_______________________________________________________ 657 Insurable interest in property leased from U. S. Army and subleased to private individual ---------------------------------------------------------------------------------------------------- 658 Sale of livestock on_____________________________________________________________________________________________________ 659 Sale of surplus propertY--------~"----------'----------------------------------------------------------------------- 660 State may accept a lease on property where no valuable improvements are placed on land and title insurance is procured_______________c____________________________ 655 Surplus property may not be sold directly to private individuaL______,___________ 661
STATE REVENUE COMMISSIONER-See Commissioner of Revenue.
STATE SCHOOL BUILDING AUTHORITY-See Authorities.
STATE TRAINING SCHOOL-See Juveniles, this index.
STOCK. .Insurance Companies.
Issue and Sale. ------------------------------------ ----------------------------------------------------------------------- 416
STOCKHOLDERS. Purchase by county Board of Education from corporation where member is stockholder of corporation___________________,______________________________________________________________ 188 Transfer of decedent's stock________________________________________________________________________________________ 917
STREETS-See also Highways. Assessments against school' property______:___________________________________________ --------------------- 244 Liability of State Property for street assessments________________________________________________ 647 Municipal refusal to accept when less than specified width______________________________ 502
SUBPOENA. State Personnel Board may not issue-------------------------------------------------------------------- 630
SUBVERSIVE ACTIVITIES. Employees of public educational institution subject to Sedition and Subversive Activities Act________________________________________________________________________________________________ 619 State Security Questionnaire. Teachers ------------------------------------------------------------------------------------------------------------------------ 292
SUPERINTENDENT OF BANKS-See Banks and Banking.
SURETYSHIP. Surety who completes contract when principal defaults is entitled to monies due to principal only to extent of actual expenses made__________________ 662
SURVEYOR-GENERAL-See also Counies, this index. No authority to appoint deputy_________________________________________________________________________________ 646

982
Page
TAX ASSESSORS. Authority. May place property on digest without notice if Taxpayer fails to file return ------------------------------------------------------------------------------------------------------------------------ 827 Duties and Responsibilities. Must assess all types of property at same percentage of value____________________ 685
Property Valuation. Automobile valuation should not be carried over from last year where owner fails to file return__________________________________________________________________________________ 723
Joint responsibility of Tax Assessors and Tax Receiver in making correct valuations -------------------------------------------------------------------------------------------- 680
Must consider all things effect value of property________________________________________ 679 Required to complete revision and assessment by June 1st__________________________ 665 Should not consider whether taxpayer entitled to homestead exemption
in assessing property value...------------------------------------------------------------------------------- 724 Time that Tax Digest is to be presented to Assessors and time it is to
be returned to Tax Receiver___-------------------------------------~------------------------------------ 665
Government Employment. May not hold any public office but may be employed by any branch of Government -------------------------------------------------------------------------------------------------------------- 661'\.
Tax Returns.
May be furnished information from individual income tax returns by Revenue Commissioner ---------------------------------------------------------------------------------------- 7137
TAX COMMISSIONERS, COLLECTORS AND RECEIVERS. Authority. Are without authority to notarize documents___________________________________________________ 873 Tax Receiver may ask taxpayer only such questions as appear on return 829
Compensation. Collection of School Tax __________________________________________________________________________________ 875, 886
Commissions received by Tax Commissioner in addition to set salary cannot be considered "salary" to determine whether Commissioner of County should receive compensation for sale of license tags____________________ 884
Fees of Tax Commissioner are computed on net and not gross tax digest 884 Fees of Tax Receiver in generaL__________________________________________________________________________ 882
In General ------------------------------------------------------------------------------------------------------------------- 877 Local law granting Tax Receiver commission on School Digest would
be unconstitutional ------------------------------------------------------------------------------------------------ 874 Outgoing Tax Collector entitled to costs accrued prior to his leaving
office -------------------------------------------------------------------------------------------------------------------------- 875 Tax Collector entitled to commissions for collection of tax levied to pay
county bond issue.---------------------------------------------------------------------------------------------- 888 Tax Commissioner entitled to same fees previously received by Tax Col-
lector and Tax Receiver---------------------------- -------------------------------------------------------- 879 Tax Commissioner on salary basis is not entitled to commission for col-
lecting intangible tax___________________________________________________________________________ ----------------- 887
Tax Commissioner on salary entitled to commission of lOo/o on taxes collected in excess of 90o/o of total taxes due______________________________________________________ 880
Tax Receiver not entitled to commission on school taxes------------------------------- 880 Tax Receiver not entitled to commission on taxes levied by Board of
Education ------------------------------------------------------------------------------------------------------------------ 881

983

Page

TAX COMMISSIONERS, COLLECTORS AND RECEIVERS-(Cont'd) Compensation- (Cont'd)

Tax Receiver not entitled to commission with respect to collection of intangible property tax_________________________________________________________________________________________ 889

Duties and Responsibilities. Duty of Tax Receiver to refuse return to taxpayer who ref'uses to give required information on motor vehicles owned by him______________________________ 890

Not responsible to handle account of firm owning property on January 1st so that subsequent purchasers pay ad valorem tax__________________________ ----- 667

Tax Receiver must go to the several militia districts in county for purpose of receiving tax returns____________________________________________________________________ _________ 890

Time Tax Digest is to be presented to Assessors and time it is to be returned to Tax Receiver__________________________________________________________________________________________665

Intangible Tax. May issue fi. fa. for collection of "recording" tax____________________________________________ 787

Sums collected by Clerk of Superior Court remitted to Tax Collector for

distribution -------------------------------------------------------------------------------------------------------------- 582 Liability.

Tax Collector's liability on insolvent executions______ ---------------------------

891

TAX EXEMPTIONS-See Taxation.

TAX PENALTIES-See Taxation.

TAX RETURNS-See Taxation.

TAX SITUS-See Taxation.

TAXATION. Admission Fees. Admission fees to fish in private pond subject to sales tax__________________________ 830
Admission fees subject to sales tax although no item of tangible property involved -------------------------------------------------------------------------------- ---------------------------- 830
Ad Valorem Tax. Agricultural Products. Not exempt in hands of processor____________________________________________________________________ 708

Banks. Banks must pay ad valorem tax on surplus and undivided profit__________ 687 Liable for tax on true market value of outstanding shares of stock____ 696

Electric Membership Corporations. Automobiles belonging to are exempt______________________________________________________________ 713
Failure to pay may not be grounds for refusal to sell license tag___________ __ 479

Fraternal Organizations. Not exempt from __________________ -------------------------------------------------------------------------------- 714

Intangible Property.

Municipality has no right to levy ad valorem tax on intangible prop-

erty covered by Intangible Property Tax Act___________

823

Liability.
Firm owning property on January 1st liable and not subsequent pur-
chasers ------------------------------------------------------------- ---------------------------------------------------- 667 Owner of property on January 1st is liable for tax for entire year________ 666 Time of liability is January 1st__________________________________________________________________________ 666

984

Page

TAXATION-(Cont'd) Ad Valorem Tax-(Cont'd)

Loan Companies.

Paid in capital stock not subject to------------------------------------------------------------------ 668 Military Personnel.
If resident of Georgia, subject to although not present in State____ 668, 669 Military personnel, residents of Georgia are subject to all Municipal,

County and State Taxes------------------------------------------------------------------------------------ 673
Not subject to if resident of another State even though purchases Georgia license tag____________________________________________________________________________________________ 671

Personal property of member stationed in Georgia not subject to tax if resident of another state__________________________c___________________________________________________ 672

Personal property subject to tax if resident of Georgia although prop-

erty not located in State_____

------------------------------------------------------------------- 671

Mineral Rights ------------------------------------------------------------------------------------------------------------ 673

Motor Vehicles.

Assessors may place higher valuation on automobiles than other property ----------------------------------------------------------------------------------------------------------------------~ 675
Dealer subject to on new and used motor vehicles owned by him on

January 1st ----------------------------------------------- --------------------------------------------------------- 675
In General ------------------------------------------------------ --------------------------------------------------------- 674 Penalties.
Failure to file return______________________________________________ ---------------------------------------------- 676 Penalty for late return________________________________________________________________________________________ 677

Property Valuation. All things affecting value of property must be considered by assessors in making valuation _____________________ --------------------------------------------------------------------- 679 Joint responsibility of Tax Receiver and Tax Assessors in making correct valuation _ --------------------------------------------------------------------------------------------- 680
Public Property. Property returned for taxation but later sold to municipality caimot be levied on______________________________________ --------------------------------------------------------------------- 680

Savings and Loan Association.
Long-term real estate notes are not to be excluded in determining
"net worth" for purpose of ad valorem tax because they have been subject to intangible tax___________________________________________________________________________________ 805

Situs of Property. Tax situs of personal property____________________________________________________________________ 681, 683
Tax situs of personal property is same as that of owner unless permanently located elsewhere______________________________________________________________________________ 683

Agriculture. Motor Fuel Refunds. Gasoline used to operate machinery to extract sand or clay. not "for agricultural purposes" and not entitled to tax refund____________________________ 820
Seed Corn. Seed corn grown in State exempt_-------------------------------------------------------------------- 717
Assessment. Adjustment. Revenue Commissioner may cancel or adjust assessment after formal
assessment has been made---------------------------------'--------------------------------------------- 684 Assessors may place higher valuation on automobile than ot:\ler property 675

985

Page

TAXATION-(Cont'd) Assessment- (Cont'd)

Equalization. Assessing authorities must assess all types of property at same percentage of value__________________;___________________,_______,_______________________________________________ 685

Department of Revenue responsible to maintain reasonable equalization and in doing so may disapprove county tax digest________________________ 686
Railroads. Assessed by Revenue Commissioner and not by local authorities____________ 826
Assessment and.Fi. Fa. Notice under Sales and Use Tax Law______________________________________________________________ 833

Banks.

Ad Valorem Tax.

Liable for on true market value of outstanding shares of stock______________ 696

Must pay ad valorem tax on surplus and undivided profits______________________ 687

Credit Unions. State Credit Unions immune from intangible tax________________________________________ 779

Federal Intermediate Credit Banks Debentures.

Exempt from intangible taX--------------~----------------------------------------------------------------- 687 Federal Land Banks.

Not liable for intangible tax at time of recording notes held by it ______ 784

National Banks.

Not subject to intangible tax_________________________________________________________________

688

Municipality cannot impose occupational tax on_____________________________

688

Private Banks. Monied capital subject to five mill tax___________________________________________________________ 692

Not entitled to income tax exemption granted State and National Banks ------------------------------------------------------------------------------------------------------------------- 693 Rules governing taxation discussed______________________________________________________________ 690
Real Estate.
Law quoted on taxation of real estate owned by banks-------------------------------- 693 Savings and Loan Associations.
Cannot be taxed upon its "shares" outstanding__________________________________________ 695
Federal Savings and Loan Associations exempt from municipal business license tax _______________________________________________________ -------------------------------------- 694
Long-term real estate notes are not to be excluded in determining "net worth" for purpose of ad valorem tax because they have been subject to intangible tax______ _ ------------------------------------ _____________________ 805
Subject to intangible tax________________ --------------------------------------------------------------- 805

Shares.

Liable for ad valorem tax on true market value of outstanding stock 696

Tax rate on shares quoted _

---------------------- ------------------ ------------------- 697

State Banks.

Municipality cannot collect business license tax from______________________

699

Sales to for banking purposes exempt from sales tax ____

699

Subject to Intangible "recording" tax______________ --------------------------------- _______

787

State and National Banks.
Exempt from sales tax ---------"------------ ---------------------------------------------------------- _____ 694 Liable for payment of intangible tax when acting as trustee__________ 698

Cigars and Cigarettes. Sales tax applicable only to purchase price to exclude state excise tax____ 835

986

Page

TAXATION-(Cont'd)

Collection Agency.
Subject to tax of $200_______ ---------------------------------------------------------------------------------------- 366

Consuls.

Not required to have license tag on official vehicle___________________________,____

4 71

Contracts. Intangible Tax.
Contract transferring land upon payment of certain sum of money each year for five years subject to intangible tax____________________________________ 780
Royalty paid by Georgia Corporation for use of out-of-State machinery subject to use tax___________________________________________________________________________________________________ 846

Sales and Use Tax imposed on gross proceeds of rentals, not imposed on royalties ------------------------------------------------------------------------------------------------------------- 845
Cooperative Manufacturing Associations. Exempt from all franchise and license taxes except annual license fee of $10.00 --------------------------------------------------------------------------------------------------------------------- 700
Corporations. Electric Membership Corporations. Automobile belonging to not subject to ad valorem tax______________________________ 713
Foreign Corporation shipping goods into State to broker on assignment basis is subject to tax ------- _------------------------- ------------------------------------------------------ 754
Foreign Corporations. Accounts receivable at branch office subject to intangible tax------------- 785 Establishment of branch office does not cause company to incur intan-
gible tax liability on loans made prior to January 1, 1954_,__________________ 785
Tax liability for doing business in Georgia __._______________________________________ 700, 701
Gas Farm Credit Associations. Liable for Georgia franchise tax when wholly owned by farmer members ------------------------------------------------------------------------------------------------------------------------ 718
Insurance proceeds on life of one of officers includible by corporation in gross income --------------------------------------------------------------------------------- 758
Intangible Tax. Tax due on loans secured by realty located in foreign state even when
not recorded in Georgia----------------------------------------------------------------------------- 802 Liability.
Concept of' "doing business" and tax liability__________________ -------------------------- 704 Subject to income tax although all goods sold out of State________________________ 703

Taxable although "not doing business"----------------------------------------------------------- 703 Royalty paid by Georgia corporation for use of out-of-State machinery

subject to use tax---------------------------------------------------------------------------------------

846

R. E. A.

Not subject to municipal business license tax----------------------------------

705

State License Tax.

Must pay minimum of $10.00__________________________________----------------------- -------- 70

Counties.

Authority.

Cannot levy tax on dealer in alcoholic beverages based on gross sales 811
Cannot tax liquor dealers on basis of gross sales__------------------------------ 81( Counties may not exempt property from taxation as inducement to
new business ----------------------------------------------------------------------------------- 70~

987

Page

TAXATION-(Cont'd) Counties- (Cont'd) Authority- (Cont'd)

May not levy license tax on non-resident liquor dealer who solicits orders for subsequent delivery________________________________________________________________________ 809

To levy tax for industrial developments would require constitutional

amendment --------------------------------------------------------------------------------------------------------- 585

County Officials.

Municipality can not levy occupational tax on county official in performace of official duties __________________________________________________________________________________ 824

County Tax Digest Form.

Commissioner of Revenue has discretion in authorizing use of________________ 707

Erroneous Publication of Levy.

Does not invalidate levy________________________________________ -------------------------------------------- 707

Tax Digest.

Department of Revenue may disapprove in order to obtain reasonable

equalization ---------------------------------------------- ------------------------------------------------------------ 686

Dealers.

Firearms tax imposed on wholesale as well as retail dealers

343

Definitions.

"Consume," "consumer" and "consumption" defined__________________

849

Discounts under Georgia Industrial Loan Act subject to 3o/o tax

393

Education.

Intangible Tax.

Educational Organizations not subject to on recording long-term real

estate notes ---------------------------------------------------------------------------------------------------------- 797

School Property.

Land leased by school with option to buy is taxable____________________________________ 711

Electric Membership Corporations-See Corporations, this heading.

Estate Tax.

Filing Copy of Federal Return with State.

Not necessary when gross valuation of estate is less than $100,000.00 708

Exemptions.

Agricultural Products.

In hands of processor not exempt from ad valorem tax ________________

708

Seed Corn grown in State exempt____________________________________________________________________ 717

Business and Industries.

Counties may not exempt property from taxation as inducement to

new business ------------------------------ ------------------------------------------ ---------------------------- 709

Neither state, county nor municipal authorities may grant tax ex-

emptions to incoming industries___________________________________

70!;1

Education.

Land leased by school with option to buy is taxable______________________

711

Electric Membership Corporations.

Automobiles belonging to not subject to ad valorem tax____________________________ 713

Exemption Certificate.

Employees of person holding also exempt from license tax --------------------- 713

Federal Government.

Federal Government immune but tax may be levied on instrument guaranteed by Veterans' Administration____________________________________________________ 714

Fraternal Organizations. Not exempt from ad valorem taxation____________________________________________________________ 714

988

Page

TAXATION-(Cont'd) Exemptions- (Cont'd)

Public Charities. Masonic Hall exempt from state and county taxation________________________________ 715
Religious Institutions. Land owned by subject to taxation when leased for commerCial pur-
poses ---------------------------------------------------------------------------------------------------------------------- 716 Trailer owned by and situated on church land for use as parsonage
is exempt -------------------------------------------------------------------------------------------------------------- 715 Seed Corn.
Grown in State and held in hands of producers exempt from state, county and municipal taxation ____________ ----------------------------------------------------------- 717
Veterans-See Veterans, this index.

Excise Tax. Gross price on article to include State Excise Tax is subject to sales tax unless separately stated by retailer__________________________________________________________ 870
Intoxicating Liquors. Liquor imported to foreign military personnel stationed on reservations in Georgia subject to State Excise Tax____________________________________________ 813

Firearms. Tax imposed on wholesale as well as retail dealers______________________,___________________ 343

Franchise Tax.
Gas Farm Credit Associations. Liable for when wholly owned by farmer members,_____________________________________ 718

Fraternal Organizations. Not exempt from ad valorem tax___________________________________________________ ---------------------- 714
Garnishment of Defaulting Taxpayer--------------------------------------------------------------------- 720
Highway Use Tax.
Applicability ---------------------------------------------------------------------------------------------------------------- 475 Violations ________________________________________________________________________________________:_________ ------------------- 476

Homestead Exemption.

Actual Occupancy of Premises.

Applicant not required to actually live on premises for ariy definite period during year________________________________________________________________________________________________ 731

Apartment House owner entitled to if he occupies as his home________________,_ 721

Application for.

Last day application may be filed __

722

Assessment.
Automobile valuation should not be carried over from last year where owner fails to file return__________________________________________________________________________________ 723

Whether or not taxpayer entitled to should not be considered in assessing value ---------------------------------------------------------------------------------------------------- 724
Automatic Renewal.
No automatic renewal on personal propertY------------------------------------------------- 742 Once applied for on real property it is automatically renewed________________ 725 Once applied for is automatically renewed although no return is filed 726 Resident owner entitled to automatic renewal on homestead exemption
extended by virtue of military service although he personally never filed application -------------------------------------------------------------------------------------------------- 727 Duplex Residences ------------------------------------------------------------------------------------------------------- 731

989

Page

TAXATION- (Cont'd) Hcmestead Exemption-- (Cont'd)

Entitlement.

Resident owner entitled to although votes in another county_

727

Extent.

Does not exempt property from tax execution for other taxes________________ 728

Farms.

Effect of owner of farm renting land but occupying residence_______________ 731

Effect of owner of farm where he farms only part of lands____________________ 731

Effect where deceased owner leaves no will and all heirs do not occupy

farm

______ --------------- _---------------------------------------------------------------- 731

Owner who works farm not entitled to when residing elsewhere ___________ 729

Hotels.

Owner occupying apartment attached to __ _

731

House trailers.

Resident owner entitled to if he owns property on which trailer is

located _____ ____ _____

____________ ___________ __ --------------------------------------------- 729, 73 0

In General Joint Ownership.

---------------------------------------------------------------------------------- 734

Occupant of homestead jointly owned with two others entitled to 1!3

exemption

________________ _________ __ ____ ___ ____________________________ ____________________ _ 731

Occupant of residence owned jointly with another entitled to exemption proportionate to his share __________________ ------------------------ --------------- 735

Joint Resident Owner.

Joint owners and occupants may claim only one exemption_ _________________ 723

May claim two exemptions when ____ ______ ____ ____________ ___________________

735

Military Personnel. Career members entitled to where temporary members____________________________ 738

Entitled to although rents residence while away________________ _____________ _ ____ 736

Entitled to exemption although absent from home because of military

service ________________ -------------------------- ________ -------------------------------------------------------- 740

Failure to file return on person::!! property does not deprive of exemp-

tion on real property

- _ _____ ____ ____________

739

Military personnel claiming homestead exemption are liable f'or per-

sonal property tax ____

---------- -------

7 41

Military personnel domiciled in another state not entitled to_______________ 737

Penalties.

Penalty for failure to file return applies to tax due over and above

exemption _______________________

741

Personal Property.

Must file annually on personal property

743

Not renewed automatically______________________________________ - ------------------------------------------ 742

Property Division. Entitled to on entire tract of land although portion separated by railroad track __________________ --------------------------------------------------------------------------------------- 745 Island separated by natural river cannot be included as part of homestead for purpose of exemption -------------------------------------------------------------------- 744 May be claimed on land lying in two counties______ ----------------------------------------- 743 May be claimed on property lying in two counties______________________________ 745, 746
Owner entitled to exemption on residence and land surrounding whether land divided into one or more lots________________________________________________ 747

990
Page
TAXATION-(Cont'd) Homestead Exemption-(Cont'd) Property Division- (Cont'd)
Residences. Effect on heirs when owner dies without wilL______________________________________________ 731 Effect of renting portion of residence___________________________________________________________ 731 Former owner not entitled to when property deeded to nephew who
lives elsewhere --------------------------------------------------------------------------------------------------- 748 Once applied for, automatically renewed------------------------------------------------------- 748 Owner who because of work occupies residence only on weekends en-
titled to exemption____________________________________________________________________________________________ 750
Taxpayer renting property and living with neighbor not entitled to exemption --------------------------------------------------------------------------------------------------------- 749
Time of Entitlement. Taxpayer entitled to exemption although ceases to occupy residence after January 1st------------------------------------------------------------------------------------------------ 750
Tourist Courts. Owner occupying apartment in__________________________________________________________________________ 731
Hospitals. Non-profit hospitals not exempt from sales and use tax________________________________ 854 Intangible Tax. Not subject to on recording of long-term real estate notes______________________ 797
Income Tax. Banks. Private banks not entitled to exemption granted State and National Banks -------------------------------------------------------------------------------------------------------------------- 693 Capital Gains. Effective date of act applied to prior transactions______________________________________ 751
Constitutionality. Income tax law based on percentage of Federal income tax is unconstitutional -------------------- -------------------------------------------- ------------------------------------------ 752
Corporations. Foreign corporation shipping goods into State to broker on assignment basis is subject to tax____________________________________________________________________________ 754
Resident corporation subject to although all goods sold outside State____ 703
Deductions. Military Personnel entitled to military deduction_______________________________________ 754
Exemptions. Government pensions exempt unless merely retirement income________________ 756 Code Section 93-3106 (F) construed__________________________________________________________________ 755
Fi. Fa. Revenue Commissioner cannot issue fi. fa. until making formal assessment ---------------------------------------------------------------------------------------------------------------- 757
Insurance Proceeds. Insurance proceeds on life of one of officers includible in gross income by corporation -------------------------------------------------------------------------------------------"-------- 758
Net Operating Loss. Federal income taxes cannot be included in net operating loss carry over ----------------------------------------------------------------------------------------------------------------------- 759
Non-residents ------------------------------------------------------------------------------------------------------------ 760

991
Page
TAXATION-(Cont'd) Income Tax- (Cont'd)
Out-of-State Business. Income from business located out of state with tax situs out of state is taxable by state where located------------------------------------------------------------------- 761
Out-of-State Wages. Residents employed in foreign country liable for Georgia income tax____ 763 Wages earned by resident in another state are subject to Georgia income tax -------------------------------------------------------------------------------------------------------------- 762
Payment. Tax of $30.00 or less must be paid with return____________________________________________ 763
Penalties. Commissioner or Deputy Commissioner of Revenue may compromise, penalties ------------------------------------------------------------------------------------------------------------- 764
Returns.
Closing date for filing is April 15-------------------------------------------------------------------- 763 Revenue Commissioner authorized to furnish information from income
tax returns to County tax assessors_________________________c---------------------------------- 767 Requirements for filing return quoted_______________________ --------------------------------------- 766
Tax Situs. Business located in another state_______________________________________________________________________ 761
Intangible Tax. Ad Valorem Tax. Municipality has no right to levy ad valorem tax on intangible property covered by the Intangible Property Tax Act____________________________________ 823
Applicability. Difference between bonds and long-term notes discussed_________________,__________ 769 If note does not show amount of loan but amount of payment to be made each month for a certain number of months, tax is on total of payments -------------------------------------------------------------------------------------------------------------- 787 Instrument showing amount of loan and amount of payments to be made annually until fully paid taxable in full amount of loan although two payments are to be made within three years__________________,___ 787 Not applicable to short-term note unless it becomes three years old______ 773 Question of fact whether instrument is a bond or long-term loan secured by real estate___________________________________________________________________________________________ 772
Tax applies to face amount of note and not to value of real estate securing note ------------------------------------------------------------------------------------------------------ 787
Tax applies to long-term lease agreement secured by a mortgage________ 769 Tax applies to long-term notes which are the subject of the debt se-
cured by real estate____________________________________________________________________________________________ 787
Tax applies to notes given for purchase of land where vendor executes bond for title to vendee_____________________________________________,______________________________________ 776
Tax due on entire amount of loan although evidenced by series of notes some of which mature in less than three years___________________________ 773
Tax due on note executed on July 1, 1954 which falls due on July 1, 1957 since it is a long-term note___________________________________________________________________ 787
Assessment. Revenue Commissioner may make additional assessment for a period of two years from date of filing of return_________________________________________________ 795

992
Page
TAXATION-(Cont'd) Intangible Tax- (Cont'd)
Cancellation of Note. Taxpayer not entitled to refund of tax when note cancelled within period of three years__________________________________________________________________________________________ 780
Collection. Clerk of Superior Court is responsible for collection of "recording" tax -'----------------------------------------------------------------------------------------------------------------------- 787 Collection of tax when not paid at time of recording--------------------------------- 787 Fi. Fa. will issue for collection of "recording" tax______________________________________ 787 Tax Commissioner on salary basis is not entitled to commission for collection of --------------------------------------------------------------------------------------------------------- 887 Tax Receiver not entitled to commission for collection______________________________ 889
Contracts. Contract for transfer of land upon payment of certain sum of money each year for five years subject to tax______________________________________________________ 780
Credit Unions. State Credit Unions immune from___________________________________________________________________ 779
Demand Notes. Demand note running longer than three years becomes long-term note and subject to tax______________________________________________________________________________________________ 781
Distribution. Based on location of property____________________________________________________________________________ 581 Distribution of funds remitted to Revenue Commissioner__________________________ 577 Sums collected by Clerk of Superior Court should be remitted to County Tax Collector for distribution__________________________________________________________ 574
Extentions. Extention of loan recorded prior to Act subject to tax since none paid on initial recording____________________________________________________________________________________________ 782 Extentions or renewals of original indebtedness not taxable__________________ 787 Tax not due on a note which is merely unpaid balance of old note on which tax was paid------------------------------------------------------------------------------------ 783
Federal Land Banks. Not liable for at time of recording notes held by it______________________________ 784
Federal Housing Authority. Security deeds and notes executed to Federal Housing Authority prior to time offered for recording not taxable____________________________________________________ 783
Federal Intermediate Credit Bank Debentures. Exempt ---------------------------------------------------------------------------------------------------------------------- 687
Fi. Fa. Fi. Ea. will issue for collection of "recording" tax_______________________________,______ 787
Foreign Corporations. Accounts receivable at branch office subject to_____________________________________________ 785 Establishment of branch office does not cause company to incur tax liability on loans made prior to January 1, 1954______________________________________ 785
Future Interest. Tax imposed on face amount of instrument and not on future interest 786
Inter-Company Receivables. Subject to ----------------------------------------------------------------------- -------------------------------------- 795
Liability. Liability for tax may not be transferred from lender to borrower________ 796

993

Page

TAXATION-(Cont'd)

Intangible Tax- (Cont'd)

Money.

Subject to tax of ten cents on each $1,000.00________________________________________

797

National Banks.

National Banks not subject to --------------------------------------------------------------------------- 688 Non-Profit Organizations.

Educational, religious, hospital and pension organizations not subject to tax on recording of long-term real estate notes__________________________________ 797
Non-Residents.

Non-residents liable for tax on intangibles coming out of sales and deliveries in Georgia ___,_______________________________________________________________________________________ 798
"Open End Note."

Subject to _________________ - -----------------------------------------------------------------------------"---------------- 799 Payment.
Holder of instrument is required to pay the "recording" tax__________________ 787 Penalties.
25% penalty for failure to file return applies although taxpayer vol~ untarily files at later date________________________________________________________________________________ 800
Realty in Two States.

Tax due on recording of lien on realty located in two states is pro-
portionate to value which land located in Georgia bears to totai value of entire tract__________________________________________________________ ---------------------------- 801 Realty Out of State.

Tax due on loans secured by realty located out of State even when not recorded in Georgia ___________________ ______________________ -------------------------------------- 802
Recording of Instrument. Cannot be recorded if note fails to set out amount and due date_______ _ 787 Instrument showing amount but no due date cannot be recorded _____ 787
Refinancing.

Refinancing of loan with d:fferent company and where additional sum is added to balance subjects entire amount of loan to tax____________________ 803

Refunds.

Payee entitled to refund of tax paid under protest on recording of

bond issue . _____________

804

Sales Tax.

Provisions of Intangible Property Tax Act do not apply to Sales Tax

Act------------------------------------------------------------------------------------------------------------------------ 805

Savings and Loan Associations. Long-term real estate notes are not to be excluded in determining

"net worth" for purpose of ad valorem tax b(O!cause they have been

subject to intangible tax_________ ----------------------------------------------

805

Subject to _____ _

______ __________ ___________________ ------------------------------- __________________ 805

State and National Banks.

Liable for payment of when acting as trustee____ -------------------------------- 698

Transfers.

Clerk should note on recording of transfer that tax has been paid,

the amount and date, along with his signature____________________________

787

Tax due on transfer of loan if none paid on initial recording_"--'--------- 808 Transfer of note not taxable if tax paid on- initial recording._______________ 787

Transferor not liable for tax on outstanding secured deed_____

807

994
Page
TAXATION-(Cont'd)
Intoxicating Liquors. Dealers. County cannot levy tax on dealers in based on gross sales____________________ 811 County cannot tax dealers in on basis of gross sales________________________________ 810 Counties and Municipalities cannot levy license tax on non-resident dealer who solicits orders for liquor to be delivered later.________________ 809 In general -------------------------------------------------------------------------------------------------------------------- 812 Military Personnel. Liquor imported to foreign military personnel stationed on reservations in Georgia subject to State Excise Tax__________________________________________ 813 Retail Liquor Bond covers all taxes due to state not just liquor taxes______ 460 Sales and Use Tax. Federal excise tax excluded in computing sales tax if billed separately to consumer__________________________________________________________________________________________ 851
Wine Tax. Wine sold to food processors subject to wine tax___________________ -------------------- 814
Liens. Extent. Property acquired after claim for taxes accrued subject to tax lien______ 815 Tax lien covers all property of taxpayer________________________________________________________ 814
Priority. Sales tax lien takes priority although accrued after recording of judgment lien ------------------------------------------------------------------------------------------------------ 815
Loan Companies. Paid in capital stock not subject to ad valorem tax________________________________________ 668
Mandamus to Compel Levy of Fi. Fas. Will lie to compel Sheriff to levy tax fi. fas.____________________________________________________ 816
Military Personnel. Act providing for postponement of tax payments by members of the armed forces no longer in efl'ecL____________________________________________________________________ 817
Homestead Exemption. Career members entitled to where temporary members are____________________ 694 Failure to file return on personal property does not deprive of exemption on real property_________________________________________________________________________________ 739
Military personnel domiciled in another state not entitled to._______________ 737 Serviceman entitled to exemption although rents property while away 736 Liability. Military personnel claiming homestead exemption are liable for per-
sonal property tax______________________________________________________________________________________________ 741
Liquor imported to foreign military personnel stationed on Georgia Reservations subject to State Excise TaX----------------------------------------------------- 813
Military personnel entitled to military pay deduction on state income tax 754 Military personnel who are residents of Georgia are liable for all
municipal, county and state taxes._________________________________________________________________ 673
Not subject to ad valorem tax if resident of another state even though purchases Georgia license tag_________________________________________________________________________ 671
Personal property not subject to tax while stationed in Georgia if resident of another state__________________________________________________________________________________________ 672
Personal property subject to ad valorem tax if resident of Georgia although property not in State----------------------------------------------------------------------- 671
Subject to ad valorem tax if resident although not present in State________ 669

995

Page

TAXATION-(Cont'd) Military Personnel-(Cont'd)
Subject to ad valorem tax if resident of Georgia although not present in State ----------------------------------- -------------------------- ___________ ____________________ ______________ __________ 668

Military Reservations.
Gross receipts from music machine located on military reservations subject to sales tax______________________________________________________________________________________________ 857

Motor Fuel Refunds.

Can be made only under law presently in effect_______________________________________________ 822

Not entitled to refund of tax on gasoline used in planting, growing

and cultivating pine trees__________________________________________________________________

819

Not entitled to refund of tax on gasoline used to operate machinery to extract sand or clay__________________________________________________________________________________________ 820

Not entitled to tax refund on gasoline used in clearing firebreaks,

trails and f'ood sites for game______________________________________________________________

817

Officer's Club on U. S. military reservation entitled to tax refund on

gasoline used ------------------------- ----------------------------------------------------------------------------------- 821

Motor Vehicle License Tax.

Applicability.

Earth-moving vehicles that move under own power over highways

subject to -------------------------------------------------------------------------------------------------------------- 477

Truck crane subject to ----------------------------------------------------------------------------

478

Vehicle used under contract to transport mail subject to "for hire"

license rate ------------------------------------------------------ -----------------------------

483

Motor Vehicles.

Ad valorem taxation in generaL__________________________________________________________________________ 674

Assessors may place higher valuation on automobiles than

other property

---------------------------------------------------------------------------

675

Automobile purchased out of State for use in Georgia subject to use tax 862

Dealers.

Dealer subject to ad valorem tax on motor vehicles owned by him

on January 1st

------------------------------------------------------------ ---------------------- 675

Sales tax paid on gross price of car to include Federal Excise Tax

unless separately listed

--------------- ----------------------

________ _________ ___ 852

Municipal Corporations.

Authority.

Bound by Code provisions limiting tax that may be levied provided charter not to contrary _____________________ ------------------------------------------__________________ 823

Cannot require Federal Savings and Loan Association to pay busi-

ness license tax _____ ----------------------------------------------------------- --------------------------------- 694 Has no right to levy ad valorem tax on intangible property covered
by Intangible Property Tax AcL_________________________ ------------------------------------ 823

May not levy license tax on non-resident liquor dealer who solicits orders for subsequent delivery______________________________________________________________________ 809

Municipality cannot collect a business license tax from a State Bank 699 Municipality cannot impose occupation tax on national banks______________ 688

To levy tax for industrial developments would require constitutional

amendment ---------------------------------------------------------------------------------------------------------- 585 Municipality engaged in business of buying and distributing natural
gas not exempt from sales tax_________________________________________________________________________ 860
Not exempt from collecting sales tax________________________________________________________ 857, 858

996

Page

TAXATION-(Cont'd) Municipal Corporations- (Cont'd)

Occupational Tax.

Cannot be levied by on a county official in performance of

official duties ______________

824

Property returned for taxation but later sold to municipality cannot

be levied on ______________________________________________

(80

Non-Residents.

Non-resident not liable for sales tax on automobile bought in Georgia

but delivered to him out of State_____

861

Intangible Tax.

Non-resident liable for intangible tax on intangibles coming out of

sales and deliveries in Georgia

798

Occupational Tax.

Cannot be levied by municipality on county official in performance of

official duties _

824

Exemption Certificate.

Employees of person holding also exempt __ _________ --------

713

Salary and Wage Buyers ________________________

385

Payment of taxes as required of candidate for election to

General Assembly

__ __________________ _____________ _

311

Penalties.

Disposition.

10% penalty for failure to file return is property of county

825

10.% penalty on taxes on property not returned is property of county

and neither State nor Board of Education entitled to portion ________ 825

Extent.

10% penalty for failure to file return covers both State and county

taxes, including county-wide school tax______ _ -------------

826

Failure to file ad valorem tax return . _

676

Failure to file return for ad valorem tax _________

676

Filing Late Return.

Penalty is on tax due over and above homestead exemption if one

applied for ---- ----- -- - --

725

Filing late return for ad valorem tax

677

Homestead Exemption.

Penalty for failure to file return applies to tax due over and above

homestead exemption . _____________ .

741

Intangible Tax.

25% penalty for failure to file intangible tax return applies although

taxpayer voluntarily files at later date _

800

Sales and Use Tax ___ ---------------

------- --------

862

Pension Organizations.

Intangible Tax.

Not subject to on recording of long-term real estate notes

797

Pensions.

Government pensions not subject to state income tax unless merely

retirement income -------

756

Personal Property. Homestead Exemption. Not renewed automatically ______ ----------------------------------- -------------------------------------- 742

997

Page

TAXATION-(Cont'd)

Premium Tax on Insurance Companies.___________ ---------------------------- 443, 444, 446

Public Charities. Masonic Hall exempt from State and county taxation_____________________________ - 715

Railroads.

Assessment.

Returned to Revenue Commissioner for assessment, not to

local authorities ---------------------------------

-------------------------------------------------- 826

Religious Institutions.

Intangible Tax. Not subject to intangible tax on recording of long-term real estate notes 797
Land owned by subject to taxation when leased for commercial purposes 716 Not exempt from sales tax _____________________________________________________________________________________ 865

Pipe organ purchased as gift to religious institution not exempt from sales tax ------------------------------------------------------------------------------------------------------------------ 866
Trailer owned by and situated on church land to be used as parsonage is exempt _______________ -------------------------------------------------------------------------------------------- 715

Returns.

Failure to File.

Gives Tax Assessors right to place property on digest without notice

to taxpayer --------------------------------------------------------------------------------------------

827

10% penalty for failure to file return is property of county____________________ 825

10% penalty imposed covers both State and county taxes, including county-wide school tax_____ -------------------------------------------------------------------------------- 826

Information.

Information on tax returns confidential and cannot be furnished to local tax officials unless specific provision of law directs _______________ 828
Tax Receiver may ask only questions which appear on return _______ 829 Premium tax return may be amended for seven years ____________________________________ 446

Rural Electrification Association.

Not subject to municipal business license tax__________ --------------------------------------- 705

Sales and Use Tax.

Admission Fees. Admission fees to fish in private pond subject to sales tax______________________ 830

Admission fees are subject to sales tax although no item of tangible

property involved

-------------------------------------

--------- -------------------- 830

Agriculture.

Feed mill purchased out of state subject to use tax ____

831

Farmer subject to tax as purchaser of' binder or baler twine_____

832

Application.

Application of sales and use tax ___________________________________________

832

Assessment and Fi. Fa. Ten days notice required for making assessment, no notice for issuing fi. fa.____________ ------------------------------------------------------------------------------------------- 833

Barter Transactions. Barter transactions subject to sales tax although no cash involved______ 835

Cigars and Cigarettes.

Cigarettes and Cigars, sales tax applicable only to purchase price to

exclude state excise tax____________________________________________________________________________

83 5

Civil Defense. Local Civil Defense Organizations are exempt from sales tax______________ 836

998

Page

TAXATION-(Cont'd) Sales and Use Tax-(Cont'd)

Coin Operated Machines.

Tax on dispensed supplies

836

Collection.

One who makes a casual and isolated sale is not responsible to col-

lect the sales tax thereon

__ _______________

________ .. _______________

837

Contracts.

Royalty paid by Georgia Corporation for use of out-of-state ma-

chinery is subject to tax---------------------------- --------------------------

846

Truck-lease contract is subject to provisions of Sales and Use

Tax Law ---------------------------------- ------------------------------------------------------------------------ 845 Tax imposed on gross proceeds of rentals, not imposed on royalties 845

Contractors.

Contractor liable for tax on materials used by him but furnished

by city _____________________ ------------------------------------------------------------------------------------------ 839

Contractor responsible for sales tax that may become owing by

sub-contractor ________________ --------------------------------------------------------- ------------------------- 843

Contractors liable for sales tax on materials consumed in performance of contract________________________________________________________________ ------------------------------- 842

Contractor responsible for tax on sums held with respect to sub-

contract completed prior to enactment of collection statute.........

840

Liable for tax on supplies furnished Atomic Energy Commission....... _ 837 Sub-contractor liable for tax on materials used by him____________________________ 844

Sub-contractor liable for sales taxes on materials installed where subcontract was let by one doing work for the State__________________________________ 841

Contractor liable for sales tax on materials installed in building erect-

ed for the State ------------------------- --------------------------------- __________ _____ _________________ 839

Sub-contractor liable for tax on goods purchased and installed by him 842

Credit Unions. Credit Unions are not subject as consumers to sales tax _________________ 848

Definitions.

"Consume," "consumer" and "consumption" defined.------------

849

Exemption.

Sales to University Hospital, Augusta, Georgia, are exempL___

850

Explosives.

Blasting powder is s11bject to sales tax . ___ __ ___ -------------------------

850

Federal Excise Tax.

Sales tax paid on gross price of car to include Federal Excise Tax

unless listed separately _______ --------- .____ ----------------- ........ ----------------------------- 852

Federal Excise Tax is excluded in computing gross sales on intoxi-

cating liquors for sales tax purposes if billed to consumer separately 851

Fishing Boats. Tax applicable to fishing boats not touching port outside of Georgia 853

Foreign Corporations. Must collect when selling and delivering tangible personal property in Georgia ------------------------------------------------------------------------------------------------------------- 700

Hospitals. Hospital authorities are not exempt from sales tax__________________________________ 853
Non-profit hospitals not exempL..________ ------------------------------------------------------------ 854

999

Page

TAXATION-(Cont'd)

Sales and Use Tax-(Cont'd)

Intangible Tax.

Provisions of Intangible Property Tax Act do not apply to Sales and Use Tax Act ______________________________________________________________________________________________________ 805
Judicial Sales. Automobiles sold at Sheriff's sales are subject to tax ________________________ _ 855

Liability.

Buyer of casual and isolated sale is liable. for sales tax--------------------------- 856 Liens.

Sales tax liens take priority although accrued after recording of

judgment lien ---------

815

Military Reservations.

Taxi Cab fares and sales of tangible personal property on military reservation are subject to sales tax _____________________________________________________________ 857

Gross receipts from music machines located on military reservations

subject to tax______________________________ ---------------------------------------------------------------------- 857

Municipal Corporations.

Municipality engaged in business of buying and distributing natural

gas not exempt from tax____________ --------------- ---------------------------------------------- 860 Not exempt from collecting sales tax_______ ------------------------------------ 858, 859

N 1-Profit Organizations. Non-profit organizations not exempt________ ------------------------------ ---------------------- 861

Non-Residents.

Automobile purchased by non-resident and delivered to him out of State not subject to tax ______________________________________ ------------------------------------------- 861

Out-of-State Purchases.

Automobile purchased out of State for use in Georgia subject to

use tax _________ --

862

Penalties.

Penalties related

862

Personal Property.

Tax on property bought outside State_____ -------------------- ____________________ 864

Tax on personal property bought outside State_________________________________________ 862

Photographers.

Photographers' liability for sales tax ________ -------------- ----------------------------

864

Religious Institutions.

Religious institutions not exempt_______________ _-------------------------------------------

865

Pipe organ purchased as gift to religious institution not exempt from sales tax_______________________________________________________________________________________________________ 866

School Funds.

Incorporated athletic association managed by public school authori-

ties and deriving some financial support from public funds is ex-

empt from sales tax _______ -------------------------------------------------------------------------------- 867 Purchases pursuant to school athletic program not subject to tax _______ 868

Schools.

Schools must collect sales tax on admissions to school-sponsored

functions ---- -- -------------------------------------------------------------------------------------------------------- 868
Sales to students of workbooks, supplies, cold drinks, ice cream, etc. by school are subject to sales tax _________________________________________________________ 869

State Banks.

Sales to State Banks for banking purposes exempt from sales tax____ 699

1000

Page

TAXATION- (Cont'd) Sales and Use Tax-(Cont'd)

State and National Banks.

Exempt from sales tax--"--------------------------"----- __________________________________

694

State Excise Tax.

Gross price on article is subject to sales tax unless retailer states

separately the sale price and the state excise tax_______________ ___________ __ _ 870

Tire Recapping.

Tax on machinery to be paid by user, tax on supplies to be paid by consumer --------------------------------------------------------------------------------------- ________________ 871
Transportation Charges.

Transportation charges not deductible from price of' article in computing sales tax___________________________________________ ---------------------------------- _______________ 872

Wholesale Dealers.

Wholesale dealer's liability -------------------------------- ----------------------------------

872

Savings and Loan Associations-See Taxation-Banks-Savings and

Loan Associations.

School-See Education-School Funds-Constitutional Law.

Seed Corn.

Exemption.

Grown in State exempt from taxation ____

717

Tax Levy.

Erroneous publication does not invalidate__ _

707

Tax Situs.

Income Tax.

Business located in another state___ _

761

Personal Property.

Ad valorem tax __

683

Same as that of owner

683

Veteran's Administration.

Instrument guaranteed by is taxable ______ _

714

TENANTS-See Landlord and Tenant, this index.

TIMBER.

"Timber Lands" not "improved real estate" for purposes of' insurance

investment ----------------------------------------------------------------------------------------

611

TIRE RECAPPING-See Professions, Businesses and Trades.

TITLE-See General Assembly.

TITLE INSURANCE.

State may accept a lease of land where no valuable improvements are

placed on it and where title insurance is obtained____________

655

To qualify to write, company must make additional deposits ______ ________ 418

TORTS.

City not liable for medical care for prisoner shot by policeman

while escaping ------------------------------------------------------------- ---------------------------

503

"Guest Statute" by judicial decision in Georgia___ _____ ____ _ __ __

469, 893

Hospital Authority responsible for_______,_____________________ -------------------------------------------- 892

1001

Page

TORTS-(Cont'd)

Libel. Liability of County Board of Education for ___________________________________________"______ 192

Negligence.

Comparative negligence discussed------------------------------------------------------------------------- 892 Family Purpose Doctrine__________________________________________________________________________________________ 893

Guest Statute -------------------------------------------------------------------------------------------------- 469, 893 Immunity of' owners of property used for Public Defense purposes________ 557 State not liable for negligence of employee __________________________ ----------------------------- 103

Trespass. Liability of private fire-fighters for____________________________________ -------------------------- 349

Trespass to property by flooding_____

__________ ----------------------------------------------- 555

TOURIST COURTS. Taxation. Homestead Exemption. Owner occupying apartment is entitled to exemption _________________:____________ 731

TRADE NAMES. Registered with Clerk of Superior Court _________ ----------------------------------------------------- 894

TRAFFIC LAWS-See also Motor Vehicles, and Public Safety, this index.

Bicycles.

Not regulated by state law ____ --------------------------------------------------------------------------------- 896

Cars of wildlife rangers do not have to be marked in order for there to be a valid arrest for violation of Game and Fish Laws_____________________________ 365

Driver's License.

Effect of discharge in bankruptcy upon suspension of___________

587

No authorization for issuance "for business purposes only"__ _______________ 586

Revocation not affected by pardon for offense_______________ --------------------______________ 506

Fraudulent misrepresentation to stop check given as bond for

traffic violation __ -------------------------------------------------------------------------------------------------------- 130 "Guest Statute" in effect in Georgia by judicial decision________________________________ 469 -

Juris diction.

Justice of Peace without jurisdiction to accept cash bonds or try mis-

demeanor cases arising out of violation of_________________

------------------------ 94

Juveniles ------------------- ---------------------------------------------------------------------------------------------------- 99

Mayor's Court may try traffic cases in any county where no city or

County Court ___

----------------------------------------------------------------------------- ---------------- 489

Motor Scooters. Operator subject to same rules as operator of automobiles_________________________ 485

Municipal Corporation.

Cannot regulate "emergency vehicles"----------------------------------------------------------

896

Motor Vehicle Safety Responsibility Act.

Not superseded by Uniform Act Regulating Traffic on Highways________

590

Offenses.

Arrests for.

Must be made in marked automobile, even though car privately owned 897

Bonds. Acceptance of cash bonds by arresting officer_____________________________________________ 898
Driving under Influence_____________,_______________________________________________________________________________ 898

Fines, disposition of--------------,------------------------------------------------------------------------------------- 899

1002

Page

TRAFFIC LAWS- (Cont'd)

Offenses- (Cont'd)

Jurisdiction of recorder's court___________________________________ -----------------------------

899

"Reckless Driving" not an offense_______________ ----------------- -------------------------------------- 900

Ordinary may try traffic cases in certain counties------------------------------------------ 109

Procedure in and appeal from trial of traffic cases in court of ordinary__ 108

Service of process upon foreign corporations under Non-Resident

Motorists' Act _____________________ ------------------------------------------------------------------------------- 112

Sheriffs' fees in traffic cases ---------------------- ________________

116

Speed Limits.

Set by Highway Department ________._________________________________________

901

Suspension of driver's license__________________ ____________________________________

904

Uniform Act Regulating Traffic on Highways.

Does not supersede Motor Vehicle Safety Responsibility AcL

590

TRANSPORTATION.

Taxation.

Transportation charges not deductible from price of article in computing

sales tax ---------, ---------------------------------- ----------------------- ------------------ __________

872

TRESPASS-See Torts.

TRUCKS AND TRUCKING.

Taxation.

Lease of trucks is subject to use tax ___________

845

TRUST COMPANIES-See Banks and Banking.

TRUSTEES-See Education, this index.

TRUSTS.

Representation of Insurance Commissioner in anti-trust action by

Attorney-General ____________ ------------------------------------------------------------------------------

437

USURY-See Interest and Usury, this index.

VETERANS.

Compensation of members of Veterans' Service Board_

635

Exemption from taxation.

Licenses.

Agents of exempt veterans also exempt ____________ ----------------------

904

Exempt from revenue licenses of political subdivisions of state__

909

Exemption is only from revenue license, not regulatory licenses

906

Law concerning issuance discussed----------------------------------------------------------------- 907
Veteran must obtain license under Georgia Industrial Loan Act since it is regulatory_______________________________________________________________________________________ 390

Where certificate of exemption obtained in one city, another city

cannot require license _------- -------------------------- --------------------------------------------- 904 Real estate purchased with veteran's benefits or pension not exempt___ 910

Guardian of a minor veteran may not borrow money on ward's "G. I.

Insurance' or purchase a home using "G. I. Loan" benefits

152

Licenses-See Exemption from Taxation, this heading,

1003

Page
VETERANS- (Cont'd) Official Records. Entitled to receive copies without charge__________________________________________________________ 910 Privileges of veterans dishonorably discharged__________________________________________________ 911 School Training. Period of operation of school to qualify for ________________ ------------------------------------- 912

VETERANS' ADMINISTRATION. Instrument guaranteed by is taxable____ -------------------------------------------------------------- 714

VITAL STATISTICS.

Examination of records ____________________

913

VOTERS-See Elections, this index.

WATER No state law providing for lien for water charges__________________________________________ 467

WEIGHTS AND MEASURES-See Agriculture, this index.

WHOLESALE DEALERS-See Professions, Businesses, and Trades.

WHOLESALE FISH DEALERS-See Professions, Businesses and Trades, this index.

WILD LIFE-See Game and Fish, this Index.

WILLS AND ADMINISTRATION OF ESTATES.

Foreign Corporations or executors----------------------------

914

Heirs.

Inheritance by adopted child _____ _________________________________

915

Widow as heir of husband ________..... _----------------------------------------------------------------- 914

Intestacy.

Heirs and administration __________

915

Probate of wills in "common" and "solemn" form____ --------------------------------------- 916

Transfer of decedent's stock-------------------------------

917

WINE-See Intoxicating Liquors, this index.

WISCONSIN. Corporate agent of may own and lease real property in State and such does not constitute "doing business"-_----------------------------------------------------------- 63

WORKMEN'S COMPENSATION.

Regional Forest Fire Protection Compact does not extend the definition

of "employee" for purposes of Workmen's Compensation_________

353

State Departments not authorized to secure insurance for ...________ ___ _______________ 652

State Departments subject to----------------------------------------------------------------------------- 284

State Forestry Commission not liable for, to volunteer fire-fighters

351

WOODS-See Forestry.

"WRITE-IN" CANDIDATES-See Elections.