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

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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.

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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.

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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

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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:

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"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."

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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.

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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:

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"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.

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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

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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

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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:

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"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.

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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.

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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.

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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."

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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

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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.

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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

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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.

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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

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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

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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 89-10