Opinions of the Attorney General 1958-59

OPINIONS
of
THE ATTORNEY GENERAL
1958-59
EUGENE COOK
ATTORNEY GENERAL
P. T. MCCUTCHEN, JR., B. L. JOHNSON, AND W. P. JOHNSON, JR. Compilers
Printed by
FRANKLIN PRINTING & MFG. Co.
ATLANTA

The Honorable S. Ernest Vandiver Governor, State of Georgia Atlanta, Georgia
Dear Governor Vandiver: I have the honor to present herewith for
your consideration the report and opinions of the Attorney General of Georgia for 1958-59.
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,
EUGENE COOK The Attorney General
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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_______________________________________________________________1890-1891 W. A. LITTLE__________________________________________________________________________1891-1892 J. M. TERRELL-________________________________________________________________________1992-1902 B0 YKIN WRIGHT____________ ---------------------- ----------------------------------1902-1902 J 0 HN C. HART-------------------------------------------- _____________________________1902-191 0 HEWLETT A. HALL________________________________________________________________1910-1911 TH0 S. S. FELDER____________________________________________________________________1911-1914 WARREN GRICE______________________________________________________________________1914-1915 CLIFFORD WALKER ______________________________________________________________1915-1920 R. A. DENNY_________________ ---------------------------------------- ____________________1920-1921 GEORGE N. NAPIER__ ------------------------------------------------------------1921-1932 LAWRENCE S. CAMP______________________________________________________________1932-1932
M. J. Y0 EMANs________________________________________________________________________1933-1939
ELLIS G. ARNALL ____________________________________________________________________1939-1943 GRADY HEAD --------------------------------------------------------------------------1943-1945 EUGENE COOK ------------------------------------------------------------------------1945-
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PREFACE
In the preparation of this volume for publication, we are seeking to make available to the citizens of this State, whether laymen or lawyers, an indicia of the duties which are required and performed by this office.
While many duties pursued are not suitable for summation or condensed review because of their voluminous nature, one area, the rendition of opinions, we feel to be of great importance and peculiarly adaptable for compilation and publication. The Attorney General is called upon to render numerous opinions during each year, many on legal issues not previously adjudicated by the Courts. When "official" opinions are rendered, they are binding upon the officers of the State Government and serve to protect them when they act in their official capacities pursuant to those opinions until modified or set aside by the Courts. There is an additional need for opinions to serve as guides for county, city, and other public officials, attorneys, and even average citizens. This volume is a centinuation of our previous practice of publishing these authoritative comments, which contain information not otherwise available, on many subjects. To this end, six hundred and seventy nine opinions have been reviewed, and of these, four hundred and seventeen have been chosen to be of sufficient interest to warrant publication.
Also included, at the beginning of this volume, is a brief summary of the History and Duties of the Attorney General and State Department of law which, it is felt, will be of interest and benefit to many persons, whether lawyer, layman, student, native of Georgia, or visitor.
THE ATTORNEY GENERAL
IV

EUGENE COOK Attorney General
v

HISTORY, DUTIES AND POWERS OF THE ATTORNEY GEN-
ERAL OF GEORGIA AND THE DEPARTMENT OF LAW
HISTORY
Since early in its colonial history, Georgia has had an Attorney General. During the government of the Colony by the Trustees, local courts were called lawyerless courts-there were no practitioners in Georgia-and the courts were not authorized to admit persons to the bar. Some thought how happy they should feel of being "free from that pest and scourge of mankind called 'lawyers.' The Salzburgers from the swamps of Effingham rejoiced at the fact that they had 'neither lawyers, courts nor rum'."
While the Trustees permitted no lawyer to practice in Georgia, they themselves had to secure counsel to represent them in England. Sir Joseph Jekyll, Master of the Rolls, and friend of Oglethorpe, represented the Colony on occasion, and contributed 500 pounds to the Trust. In recognition of that fact, Jekyll Island was named in his honor. Another attorney employed in England was William Murray, afterwards the famed Lord Mansfield.
Eventually, England changed the Colonial method of government and a governor was appointed for the Province of Georgia. One of the powers granted to the governor was to constitute courts and define their powers. At this time, the King appointed William Clifton, Esquire, a distinguished English lawyer, to be Attorney General of Georgia. He reached Savannah in 1754 and was immediately asked to prepare a plan for constituting courts. On December 12, 1754, he presented a report which was adopted and is the germ of our judicial system. It provided for the erection of a "General Court with like power and authority as is used and exercised by the respective Courts of King's Bench, Common Pleas and Exchequer in England" and for a separate Court of Chancery to be held before the Governor and Council for determining all matters of equity.
Thus it is seen that the first lawyer authorized to practice in Georgia was its own first Attorney General.
Clifton had a short leave of absence in 1758, during which time Thomas Burrington, Esquire, acted as Attorney General Pro Tern. On returning to Georgia, Clifton resumed his duties, and evidently gave great satisfaction, for in 1764, when he was appointed Chief Justice of Florida, then in control of the British, the Common House
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of Assembly of the Province of Georgia resolved, "That the thanks of this House be given to the Honorable William Clifton, Esquire, late Attorney General of this Province and now Chief Justice of West Florida, for his upright conduct in this office as well as in all other public employment and that the Speaker so signify the same to him by a letter."
The resolution makes us feel that we have reason to be proud of the first lawyer on our long and lengthening Court Roll.
The Judiciary Act of 1797 provided for an Attorney General and Two Solicitors GeneraL They were simply prosecuting officers. The Attorney General at that time had no duties to perform in connection with the operations of the State Government except those of prosecuting criminals.
For the first time the Constitution of 1868 made the Attorney General a constitutional officer. He then became Attorney General in fact and the legal adviser of the Governor and other departments of the State Government. We have since had an Attorney General who is a constitutional officer and whose duties are defined by the Constitution and laws of the State.
The growth of the State agriculturally, industrially and financially since that time has required that the officers of the State be well informed in matters of law in order to decide with wisdom, policies to be pursued in order to foster and protect this growth. It has thus been inevitable that the duties and responsibilities of the Attorney General should multiply as this task devolved u}')on him.
DUTIES AND POWERS
Perhaps the greatest expansion in the office of Attorney General has occurred since the Reorganization Act of 1931, which created the Department of Law with the Attorney General as its chief. Prior to that time each department of the State Government employed such counsel as it needed, and the duties of the Attorney General were limited to those few specified in the Constitution and laws.
The Department of Law, as presently organized, was created by an Act of the General Assembly in 1943. That Act, and later amendments, superseded to a large degree, that portion of the Reorganization Act of 1931, under which the Law Department was originally created. These Acts are codified as Chapter 40-16 of the Annotated Code of Georgia. Code Section 40-1614 provides in part as follows:
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"The Department of Law is hereby vested with complete and exclusive jurisdiction in all matters of law relating to every department of the State other than the judicial and legislative branches ...."
A portion of the 1931 Act which was not specifically repealed also provides that when requested, the Department of Law shall advise with the General Assembly, or any committee thereof.
Although the Constitution and statutes of Georgia specify a multitude of duties which the Attorney General must perform, it may be stated generally that he acts as a lawyer with the State of Georgia for his client. As with all lawyers, a large portion of the time and energies of the Attorney General is devoted to representing his client in the courts of this State and in the nation. For example, he must represent the State in all cases before the Supreme Court of the United States, in capital felony cases in the Supreme Court of Georgia, in trials beyond the limits of the State, and in any civil or criminal case when so required by the Governor.
Within recent years, the volume of court cases for which the Attorney General is responsible has increased tremendously. All of these cases are extremely important. Some involve millions of dollars. Others involve constitutional principles affecting in intimate fashion, every person in the State, while in others, the very honor and dignity of the State of Georgia are drawn into issue. As the revenue of the State increases, the enlargement of the functions and services of the various agencies of government is reflected in a sharply increased volume of litigation.
The Attorney General must also represent the various State agencies and officials in litigation arising from the discharge of official duties. It should be noted at this point that when so representing the State government, he is protecting the interests of all citizens of Georgia inasmuch as our State government is a government of the people. This representation of the people's interests in court pits the Attorney General and members of his staff against the finest attorneys of the State and nation.
Another major function of the Law Department is advising the Governor and the various department heads of State government on the various legal problems which surround the operations of their departments. In many instances, conferences are held and oral advice rendered, and in many other instances, formal written official opinions are given to the Governor or the department head, as the case may be. An official opinion may be rendered only to the Governor
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and the heads of the various State departments on matters pertaining to the operation of the State government.
In addition to official opinions, the Law Department renders "unofficial" opinions as fully and adequately as time and official duties will permit. The Attorney General receives numerous inquiries from county and local officials and from various public and private organizations, both within and without the State. Answers to these requests are not required by law, and reflect only the personal views of the writer. However, it is believed that these unofficial opinions promote a degree of uniformity in local government and assist local officials in the performance of their duties. It is also felt that information is provided in these opinions which would be difficult to obtain otherwise inasmuch as Georgia has no central information bureau. It should be pointed out, however, that the Attorney General has no authority to represent any person in a private legal matter. For services of this type, it is necessary that the person involved seek the services of a private attorney.
To form some idea of the work involved in connection with the various duties mentioned heretofore, the following is a numerical summary of the opinions rendered by the Law Department for the years 1958 and 1959:
Official opinions rendered -------------------------------------------------- 294 Unofficial opinions rendered __________________ __________________________ 385
TotaL______________________ ---------------------------------- 679 Official opinions published ------------------------------------------------ 195 Unofficial opinions published -------------------------------------------- 222
TotaL_________________________________________________________ 417
The Attorney General also serves on a large number of boards, commissions, bureaus, and other similar agencies. For example, two important agencies of which he is a member are the Jekyll Island State Park Authority and the Stone Mountain Memorial Association. He also serves on the Board of Trustees of the retirement systems of peace officers, ordinaries, superior court clerks, superior court judges and solicitors general. Meetings and other services required for these and other agencies of which he is a member require an increasing amount of time and energies of the Attorney General.
Of course, it has been impossible in a limited space to list and describe all the duties which the Attorney General and the State Law Department are required to perform. It is hoped, however, that the above will furnish all interested persons with an insight into the history, powers and duties of the office of the Attorney General, the chief legal officer of the State of Georgia. December, 1959.
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ADMINISTRATIVE LAW-Notice and Hearing (Unofficial)

It is necessary that law under which administrative hearings are conducted prescribe notice and hearing.

Mr. Jay Buder

October 28, 1958

This will acknowledge receipt of your letter in which you request information concerning constitutional or statutory provisions which grant the right of "notice and hearing before an administrative agency".
Section I of the Fourteenth Amendment to the Constitution of the United States (Ga. Code Anno., Section 1-815) provides in part:
"Nor shall any State deprive any person of life, liberty or property without process of law."
Article I, Section I, Paragraph III of the Constitution of Georgia (Ga. Code Anno., Section 2-103) provides:
"No person shall be deprived of life, liberty or property except by due process of law."
These two clauses have been construed by the Supreme Court of Georgia to require notice and a hearing before an administrative agency before any action may be taken to revoke a license. This constitutional requirement must be met, even though the Act granting the right to revoke the license provides for an appeal to the Superior Court. See Mott v. Georgia State Board of Examiners in Optometry, 148 Ga. 55, 95 S. E. 867 (1918).
It is necessary that the law itself prescribe the notice and the hearing, and it is not sufficient that a notice and hearing are given, even though not required by law. See State Board of Medical Examiners! et al v. Lewis, 149 Ga. 716, 102 S.E. 24 (1919).

ADVERTISING-Legal (Unofficial)
Newspapers may require cash in advance on legal advertising.
February 16, 1959
Mr. Alva L. Haywood
In reference to your question as to the right of a publisher to require cash in advance for legal ads, I refer you to Section 39-1106 of the Georgia Code, which reads:
"39-1106. No sheriff or deputy sheriff shall be required to advertise the property of any defendant in :fi. fa. for sale, until the cost of such advertisement shall have been first paid by the plaintiff in fi. fa., his agent or attorney: Provided, that when any such party plaintiff, or his agent or attorney for him, shall make and file an affidavit in writing that owing to his poverty he is unable to pay such cost, it shall be the duty of said sheriff or his deputy to proceed as required by law."
and to Ward vs. The County of Appling, 80 Ga. 672, which is a suit by a pub-

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lisher against a county for advertising fees due him for advertising the sale of land levied upon by the sheriff for State and County taxes. The Court, in its opinion, indicates that he cannot recover the fees from the County. It further states he was not bound to publish the advertisements without payment of his fees and he was entitled to demand them in advance.
Therefore, it would be my unofficial opinion that you may require cash in advance on legal ads.

AGRICULTURE--Animals-Disposal of Dead (Unofficial)

Code Sections relating to disposal of dead animals enumerated.

Mr. Troy Barton

May 27, 1958

This will acknowledge receipt of your letter in which you request information relative to the disposition of dead animals or carcasses.

Code Section 88-9923 reads:
88-9923. If any person shall place the carcass of a horse, cow, sheep, goat, dog or other animal in any stream or road, street, lane, or alley, or place any such carcass upon the premises of another without burying it so deep as to prevent all stench therefrom, he shall be guilty of a misdemeanor. (Acts 1890-1, p. 242; 1908, p. 41.)"
Code Section 88-9924 reads:

"88-9924. In all counties in which there is a city of 1,000 or more inhabitants, according to the last Federal census, if a domestic animal or domestic fowl shall die without the corporate limits of a town or city and shall be within two miles of the residence of the owner thereof, and the owner shall fail or refuse to bury the carcass deep enough to prevent stench therefrom, within three hours after notice of the death and the location of the carcass, he shall be guilty of a misdemeanor. The carcass of such animal may, within three hours after such notice, be removed and at once manufactured into fertilizers. (Acts 1895, p. 86.)"
Code Section 88-9925 reads:

"88-9925. In all counties in which there is a city of 1,000 or more inhabitants, according to the last Federal census, if the owner of stale or decaying vegetable or animal matter, situated within this State and without the corporate limits of a town or city, shall fail or refuse to bury it so deep as to prevent any stench therefrom, within three hours after notice that it has become offensive to the smell or dangerous to health, he shall be guilty of a misdemeanor. (Acts! 1895, p. 86.)"

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AGRICULTURE-Bonding laws-(Unolficial)

Georgia law requires bonding of livestock dealers, agricultural products dealers, and others.

Mr. John P. Wallace

December 29, 1958

Your letter requesting information concerning Georgia's Agricultural Bonding Law has been referred to me for reply,
Georgia Laws 1956, page 501, provides for the bonding of persons dealing in livestock and persons operating a sales establishment for the sale of livestock at auction. Livestock as used in that Act includes cattle, hogs, goats, and sheep. No provision is made therein as to the sale of poultry or poultry products.
Georgia Laws 1956, page 617 as amended, relates to the licensing and bonding of dealers in agricultural products. Agricultural products as defined in that Act includes fruits, vegetables and pecans, and specifically excludes dairy products, cotton, tobacco, grains, and other basic farm crops.
From the above it appears that the sale of baby chicks by those persons engaged therein is not subject to either of the above-quoted laws. Inasmuch as such sales are not within the provisions of these Acts, I know of no law that would protect you in selling baby chicks to Georgia dealers and producers insofar as a bond is concerned, specifically providing protection therefor.

AGRICULTURE-Bonding Laws-Amount (Unofficial)

Amount of Bond required of livestock dealers.

Honorable Charles F. Crisp

June 25, 1958

Your letter has been forwarded to me by the Commissioner of Agriculture for an answer.
Section 3 of the Act regulating and licensing livestock dealers, approved February 15, 1952 (Ga. Laws 1952, p. 184), as amended by an Act approved March 25, 1958 (Ga. Laws 1958, p. 386) provides:
"Section 3. No livestock barn, auction, or sales operator shall engage in or carry on such business without first having applied for and obtained a license from the Commissioner of Agriculture. No livestock dealer or broker who buys or sells through a livestock barn, auction, or sales operator shall engage in or carry on such business without first having applied for and obtained a license from the Commissioner of Agriculture. There shall be no fee for such license and the license shall remain valid and in force until and unless revoked. No such license shall be issued to any person unless the applicant therefor shall be bonded as required by law."
Section 3 of an Act approved March 7, 1956 (Ga. Laws 1956, p. 501), as amended by an Act approved March 25, 1958 (Ga. Laws 1958, p. 310) provides:

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"Section 3. No dealer, except farmers purchasing livestock for his own use for feeding or breeding purposes and persons purchasing livestock for feeding by himself, shall purchase livestock at any sales establishment unless he has then in force a bond in an amount of not less than lj52 of the total purchases made by him during the calendar year next preceding the year in which the purchase is made. Provided, however, that the minimum bond of any dealer shall be $1,000.00 and the maximum bond shall not be required to exceed $25,000.00. Provided further, however, the provisions of this section shall not be applicable to nor shall a bond be required of a dealer who purchases livestock at sales establishments for cash only."
The above quoted provisions determine the amount of bond that the Commissioner of Agriculture may require of a person to engage in the business of dealing in livestock. The Department of Agriculture does not have the authority to require a bond in excess of the amounts provided therein.
Of course, you realize that this bond requirement is a condition for a person to engage in the business of dealing in livestock throughout the State. There is nothing to prohibit the individual operator of a livestock auction from requiring a bond or such other security that the operator may require as a condition of permitting the buyer to purchase livestock at the auction. It was not the intent and purpose of the livestock bonding law to supersede or alter any arrangements that might be made between the seller and buyer to satisfy payment to the purchase price. There is still the basic duty of the seller to satisfy himself that the purchaser can pay for the livestock purchased.

AGRICULTURE-Commissioner of-Duties (Unofficial)

Resume of status of Commissioner of Agriculture.

Honorable Richard W. Ervin

July 7, 1958

This will acknowledge receipt of your letter relative to the duties of the Commissioner of Agriculture of the State of Georgia.
The Georgia Constitution, Article V, Section II, Paragraph I, in part provides:
"... Commissioner of Agriculture . . . shall be elected by the persons qualified to vote for members of the General Assembly at the same time and in the same manner as the Governor.... They shall be commissioned by the Governor and hold their offices for the same time as the Governor."
Article V, Section II, Paragraph II, provides: "The General Assembly shall have power to prescribe the duties,
authority, and salaries of the executive officers, and to provide help and expenses necessary for the operation of the department of each."
Article III, Section I, Paragraph I provides: "The legislative power of the State shall be vested in a General

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Assembly which shall consist of a Senate and House of Representatives."
Article III, Section VII, Paragraph XX, provides:
"The General Assembly shall have the power to make all laws consistent with this Constitution and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State."
The above provisions of the Georgia Constitution seems to confer upon the General Assembly power to define the duty and authority of the Commissioner of Agriculture. No duty or authority is conferred upon the Commissioner of Agriculture by the Constitution. To the contrary, the expressed authority is reserved in the General Assembly to prescribe the duties, authority, and salaries of the Executive Officers. The General Assembly does not have the authority to abolish the office of the Commissioner of Agriculture. It would seem :!'rom the foregoing that the General Assembly has the authority to curtail the activities of the Commissioner of Agriculture by creating autonomous agricultural services.
For your information, Title 5 of the Georgia Code relates to Agriculture. The duties of the Commissioner of Agriculture are not all included in Title 5 and may be found in Titles 42, 62, 84, 112, and others.

AGRICULTURE-Dairy Processing Plants-Licenses

Jekyll Island State Park Authority, being an instrumentality of the State, is not required to obtain a dairy processing plant license to operate an ice cream parlor.

Honorable Phil Campbell

August 27, 1959

This will acknowledge receipt of your request for my opinion as to whether the Jekyll Island State Park! Authority is required to obtain a dairy processing license for the operation of an establishment serving ice cream on Jekyll Island.
By an Act approved March 9, 1956 (Ga. Laws 1956, p. 168) as amended, meat, poultry and dairy processing plants are required to be licensed. That Act defines the meaning of meat, poultry and dairy processing plants as used in the Act. The definition provided includes the operation of such establishments. In my opinion to Mr. F. S. Carr, Chief,. Food and Feed Section of the Department of Agriculture, under date of November 14, 1957 (Opinions of the Attorney General, 1957, p. 1), I dealt with the places manufacturing dairy products that are subject to be licensed.
The Jekyll Island State Park Authority was created by an Act approved by an Act found in Georgia Laws 1950, p. 152, as amended by an Act found in 1951 Ga. Laws, p. 782, as amended. It was created as a body corporate and politic and was deemed to be an instrumentality of the State and a public corporation. Georgia Code Annotated, Chapter 43-6A, relates to the Jekyll Island State Park Authority.

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Code Section 102-109 provides: "The State is not bound by the passage of a law unless named
therein, or unless the words of the Act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the Legislature."
The annotations found in this section in the Annotated Code implies that the Code Section applies to municipal corporations. Certainly if the Section applies to municipal corporation, it would also apply to public corporations that are an instrumentality of the State.
Based on the foregoing, I am of the opinion that the Jekyll Island State Park Authority is not required to obtain a license for the operation of a dairy precessing plant on Jekyll Island.

AGRICULTURE-Extension Service-Liability

No liability for damages arising from insect control assistance to farmers because agent of state performing official duties.

Mr. L. W. Eberhardt, Jr.

February 24, 1959

This will acknowledge receipt of your letter requesting an opinion concerning the liability, if any, on the part of the' state or Agricultural Extension Service Entomologists for damages arising from assistance furnished to farmers relative to insect control recommendations.
Agricultural Extension work is a function carried on by state universities pursuant to Act of Congress, 38 Stat. 373 (7 U.S.C.A., 341( et. seq.), providing federal appropriations therefor, in cooperation with the United States Department of Agriculture. 7 U.S.C.A., 342 (Supp.) declares,
"Cooperative agricultural extension work shall consist of the giving of instruction and practical demonstrations in agriculture and home economics and subjects relating thereto to persons not attending or resident in said colleges in the several communities, and imparting information on said subjects through demonstrations, publications, and otherwise and for the necessary printing and distribution of information in connection with the foregoing; and this work shall be carried on in such manner as may be mutually agreed upon by the Secretary of Agriculture and the State agricultural college or colleges receiving the benefits of sections 341-343 and 344-348 of this title."
In :Bailey v. Van Dyke, 66 Utah 173, 240 P. 454 (1925), it was held that agricultural extension work is not in the nature of private enterprise, but is of a public character.
Georgia has accepted the provisions of this Act (Ga. Laws 1914, p. 1243), and in Bowers v. Banks, 152 Ga. 659, 665, the Georgia Supreme Court recognized agricultural extension work as an integral part of the public function of education in this state, viz.:
"So the farm demonstration agent is appointed to carry out a very

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ambitious scheme of education in the above enumerated matters. He is .a peripatetic teacher of these subjects, going from home to home, from farm to farm, to impart information on these various subjects. He is employed to impart agricultural information to adult farmers. He does this by university or college extension work in connection with the agricultural college of this State and the U.S. Department of Agriculture. The educational purpose to be achieved by him is a very important one to the agriculture of this State. He carries on an important branch of education."
Clearly then, extension personnel are agents and employees of the state performing public functions.
The state and its agencies are not suable without express consent, Roberts v. Barwick, 187 Ga. 691; Arkansas v. Texas, 346 U.S. 368, 98 L. Ed. 80 (1953), and the state is not liable for the torts of its agents. 49 Am. Jur. 288, p. 76; 52 Am. Jur. 441, 100; 81 C. J. S. 1137, 130; Townsell v. State Highway Dept. of Ga., 180 Ga. 112, 116; Ramsey v. Hamilton, 181 Ga. 365.
Therefore, neither the state itself nor the Board of Regents would be liable for damages suffered by farmers as the result of following insect control recommendations.
On the other hand, the individuals guilty of tortious acts are personally liable therefor, and the fact that such individuals were public officials acting under legal authority does not render them immune. Florida State Hospital v. Durham Iron Company, 194 Ga. 350, 353 (3a); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 686, 93 L. Ed. 1628 (1949). Generally, any agent is liable for his own tortious acts. Code 4-409; Chambers, Adm'r. v. Self, 53 Ga. App. 437 (1); Risby v. Sharp-Boylston Co., 62 Ga. App. 101.
While the federal courts have extended the cloak of judicial immunity against liability for torts to cover many non-judicial, administrative officials, such has not generally been the case as to the state courts. See 3 Davis on Administrative Law 506, 26.01 et seq.
However, I see no reason why you could not protect your officials by re.quiring the farmer to sign a release as condition of furnishing him the insect .control recommendations. Where a party consents, this negatives the wrongful element of the defendant's act, and prevents the existence of a tort. Prosser on Torts 117, 18 (1941); Code 105-1803; Peacock v. Terry, 9 Ga. 137. The only requirement is that the person consenting be fully apprised of the facts. Mayor .& C. of Americus v. Phillips, 13 Ga. App. 321 (7) .

.AGRICULTURE-George Food Act

Georgia Food Act applies to soft drinks.

~Honorable Phil Campbell

August 11, 1958

This will acknowledge receipt of your request for my opinion as to whether . or not Section 11 of the Georgia Food Act (Ga. Laws 1956, p. 195) applies to . bottled soft drinks.

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Section 2 (c) of the Georgia Food Act reads: "(c) The term 'food' means (1) articles used for food or drink for
buman consumption; (2) chewing gum; and (3) articles used for components of any such articles."
Section 11 (e) of the Georgia Food Act reads: "A food shall be deemed to be misbranded:
(e) If in package form, unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; (2) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, that under clause (2) of this paragraph reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the Commissioner."
In 36 Corpus Juris Secundum 1041 (Food, Section 1), the statement is made, "Except as used in some statues, the word 'food' includes that which is drunk, as well as that which is eaten, for nourishment. . .." This quotation and the cases cited in support of such statement removes any doubt as to whether a bottled soft drink is a food.
From the above, I am of the opinion that the provisions of Section 11 (Paragraph e) of the Georgia Food Act applies to bottled soft drinks.

AGRICULTURE-Georgia Milk Commission-Authority

Commission has no authority to direct equitable adjustments in milk bases of producers.

Honorable Clifton A. Ward

September 2, 1959

You request my opinion as to whether or not the Georgia Milk Commission is authorized to direct equitable adjustments in bases of producers to compensate for production losses resulting from diseases, drought, or other unusual circumstances beyond the producer's control.
The authority of the Georgia Milk Commission is set out in the provisions of the Acts of the General Assembly creating the Commission, as amended, and is found in Georgia Code Annotated, Sections 42-523 et seq.
Section 42-554 relates to the establishment of bases by the producer so as to establish the price to be paid to producers. Nowhere in that section, nor in any other provision of the law relating to the Georgia Milk Commission, do I find any authority of the Commission to direct equitable adjustments in the bases of producers.
Code Section 89-903 provides that the powers of all public officers are defined by law and all persons must take notice thereof. Therefore, unless the Acts relating to the Georgia Milk Commission confer upon the Commission the authority to make such adjustments, the Commission cannot do so.
From the above, I am of the opinion that the Georgia Milk Commission, in

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the absence of the statutory authority, is not authorized to direct equitable adjustments in bases of producers to compensate for production laws from diseases, drought, or other unusual circumstances beyond the producer's control.

AGRICULTURE-Georgia Milk Commission

Compensation of members explained.

Honorable 0. A. Ward

May 12, 1959

This will acknowledge receipt of your letter in which you request my opinion as to the exact amount per diem, subsistance and travel expenses that the members of the Georgia Milk Commission are entitled to receive.
Section 3 of an Act approved February 17, 1959 (Ga. Laws 1959, p. 46) amends an Act known as the "Milk Control Act", approved March 30, 1937 (Ga. Laws 1937, p. 247), as amended, which in part provides:
".... Each member of the commission other than the chairman, shall be paid from the milk control fund, for each day devoted to the affairs of the commission, a per diem at the rate now or as hereafter prescribed as per diem for members of the General Assembly, but not in excess of one hundred fifty ($150.00) dollars per month. All members shall be paid the necessary and usual travel and subsistence allowed to other State officers and employees while engaged in the business of the commission . . .."
Thereafter, follows the provisions relating to the compensation of the director and chairman.
Article III, Section IX, Paragraph I of the Constitution (Ga. Code Anno. 2-2101) fixes the compensation of members of the General Assembly.
Section 1 of the General Appropriations Act, approved March 14, 1956 (Ga. Laws 1956, p. 753) fixes the per diem of members of the General Assembly at twenty ($20.00) dollars per day. This is arrived at by supplementing the constitutional five ($5.00) dollars per day with a fifteen ($15.00) dollar maintenance expense allowance. Any compensation received by the members of the General Assembly in excess of the twenty ($20.00) dollars is paid by action of each House of the General Assembly and, therefore, is not applicable under the conditions enumerated in the quoted provisions of the Milk Control Act. Therefore, from the above, I am of the opinion that the per diem of the members of the Georgia Milk Commission, other than the Chairman and Director, is twenty ($20.00) dollars per day with a maximum of not in excess of one hundred fifty ($150.00) dollars per month.
The mileage allowance for the operation of private automobiles by State officers and employees is fixed by the provisions of Georgia Laws 1950, page' 224 (Ga. Code Anno. 40-2002). The maximum rate per mile authorized is seven and one-half (7lh) cents. However, as provided in that Act, the rate per mile has been fixed at six (6) cents per mile. Until this rate is changed as provided in the Act, the maximun1 allowance for mileage is six (6) cents per mile. This

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provision, of course, is applicable only when a private automobile is used in the performance of the duties by a member of the Commission on business for the Commission.
The members of the Commission are entitled to receive the actual subsistance and travel expenses (other than by private automobile) incurred in the performance of their duties, subject to approval by the Chief Executive Officer of the Agency of the State having control or jurisdiction of the Department to which the expenses are billed.

AGRICULTURE-Livestock-Branding and movement (Unofficial)

Movement and branding of livestock in Georgia discussed.

Mr. Clyde Jennings, Clerk

May 12, 1959

Your letter to the Commissioner of Agriculture, requesting information as to laws regulating the movement of livestock and livestock brands, has been forwarded to me for reply.
Code Section 26-2613 relates to altering brands or marks of animals and prescribes the punishment therefor. Georgia Code Chapter 62-1 relates to marks and brands of livestock. An Act found in Georgia Laws 1953, Nov.-Dec., page 175, provides a supplemental method for recording marks, brands and tattooes.

Georgia Laws 1937, page 716, codified in part as Georgia Code Annotated 62-1306 and 62-1307, relate to the transportation of livestock by dealers and prohibits the buying or selling of livestock at any time after sunset and before sunrise. There is an express exclusion therefrom for the buying or selling of livestock at an abattoir, public slaughter pen, packing house, meat market, or public stockyard at any time.

The same Act, a portion of which is codified as Georgia Code Annotated 62-1309, provides as follows:

"Any person who has been found guilty of the larceny of any animal, after the judgment therefor has become final, shall be ineligible to receive another license, and any license theretofore issued to him, or thereafter shall be absolutely void."

A misdemeanor punishment is provided for violation of the 1937 Act.

From the foregoing, I am of the opinion that there is no requirement that livestock must be marked or branded before moving. However, if livestock is marked or branded, that brand should be registered as provided by law.

I am further of the opinion that the movement or transportation of livestock at night is not prohibited, as such.

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AGRICULTURE-Nurseries-Sales (Unofficial)

Measures which may be taken as a result of sale of nursery stock for commercial orchard use.

Mr. T. H. Kay

March 14, 1958

Honorable William E. Blasingame, Director of Entomology, has requested that I reply to your letter concerning the measures that can be taken as to varieties of nursery stock sold for commercial orchard use.
Code Section 84-9932 of the 1933 Code provides:
"84-9932. It shall be unlawful for any person, persons, firm or corporation, acting either as principal or agent, to sell to any person, persons, firm or corporation any fruit or nut tree or trees, representing the same to be of a certain kind, variety or description, and thereafter to deliver to such purchaser, in filling such order and completing such sale of fruit or nut tree or trees of a different kind, variety or description from such fruit or nut tree or trees so ordered. Any person violating the provisions of this section shall be guilty of a misdemeanor. Prosecutions under this section may be commenced at any time within seven years from the time of the delivery of such fruit or nut trees." This code section was repealed in 1937.
At the present time, we have no specific statute relating to the sale of fruit trees where the seller furnishes a different brand or variety. It would seem that precautions should be taken in purchasing by arranging the terms of the conditions of purchase, so that the buyer could go against the seller at any time when he should ascertain that he has been furnished a product different from that which he has bought.

AGRICULTURE-Poisons-Farm Use (Unofficial)

No laws specifically dealing with use of poisons on farms.

Honorable C. E. Johnson

June 4, 1958

This will acknowledge receipt of your inquiry of May 23, 1958, requesting a copy of Georgia laws governing the placing of poison on farms.
Georgia has no law specifically dealing with the question which you raised. The "Georgia Economic Poisons Act" (Ga. Laws 1950, p. 390), codified as Code Chapter 5-15, regulates the sale and distribution of poisons. However, there is nothing dealing with the use of such goods. It may be that the indiscriminate use of such poisons would constitute a nuisance. According to Code Section 72-101, "a nuisance is anything that works hurt, inconvenience or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance." A nuisance is subject to abatement as provided in Code Chapter 72-2. Generally, this Chapter provides for a public nuisance to be abated by the Solicitor General of the Judicial Circuit, and a private nuisance

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to be abated upon the application of the person injured. Also in this connection, Code Chapter 72-4 provides for the abatement of nuisances in cities and towns of the State.

AGRICULTURE-Poultry-Sales (Unofficial)

Statuatory requirements as to sale of poultry.

Mr. Clyde F. Daffron

Jyne 2, 1959

You state, "We would appreciate your advising us of details of any local or state laws that may be in effect in your territory dealing with the merchandising, advertising and sale of poultry through retail outlets, particularly where you are required to post certain information at point-of-sale or in listings of poultry in your advertising."
Georgia Laws 1956, p. 75 (Ga. Code Anno 42-119), provides:
"All meat, meat products, fish and poultry offered or exposed for sale or sold, commercially, shall be by net weight only except when sold for immediate consumption on the premises or where sold as a cooked food but not in a package or when sold for breeding purposes or when sold as pets or for other purposes than for human or animal consumption."
A misdemeanor punishment is provided for violation.
The above appears to be the extent of the statutory requirement. However, I call to your attention the fact that your adverising could not be inconsistent with the product offered for sale. That is to say that, if you advertise "Grade A" poultry the poultry will be required to be Grade A, or if you advertise "Gainesville Poultry", certainly the poultry would of necessity need to originate in the vicinity of Gainesville. Otherwise, the normal laws relating to merchandising, advertising and sale of poultry at retail would be applicable.

AGRICULTURE-State Wareouse Act

Lumber is not an agricultural product within the meaning of the State Warehouse Act.

(Ed. note: Ga. Laws 1959, p. 246 amended State Warehouse Act so that any person might elect to come under the terms of the act and operate a bonded warehouse.)

Honorable Phil Campbell

August 21, 1958

You asked my opinion as to whether lumber is an agricultural product within the definition of agricultural product in the State Warehouse Act (1958 Ga. Laws, Nov.-Dec. Sess., p. 412) as amended.

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Section 2(d) provides:
"Section 2. For the purpose of this Act.
"(d) The term 'agricultural product' means, individually and collectively, all grains, cotton, peanuts, meat, fruits, vegetables, and other farm products offered or accepted for storage in their raw or natural state; provided, however, that products which have been processed only to the extent to shelling, cleaning, and grading shall be included, and, provided further, that any warehouseman storing refrigerated and/ or processed agricultural products may, at his option, come under the operation of this Act."
Code Section 5-1617 provides:
"5-1617. Except wherein the law expressly otherwise provides, the terms 'agricultural commodities,' 'agricultural products,' and 'farm products' shall include and embrace crude gum (oleoresin) from a living tree or trees, and spirits of turpentine as processed by the original producer of the crude gum (oleoresin) from which derived."
Code Section 67-1107 provides:
"67-1107. The words 'crops' and 'growing crops,' as used in statutes relating to bills of sale, mortgages and liens to secure debt, shall include and embrace the fruits and products of all plants, trees, and shrubs, and whether the same be annual or perennial plants, trees, and shrubs, and shall also include and embrace crude gum (oleoresin) from a living tree. The planting, growing, cultivation, harvesting and marketing of trees and the fruits and products thereof shall be considered and treated under the laws of Georgia as an agricultural pursuit. Every original producer or original manufacturer of crude gum (oleoresin) from which is derived or may be derived gum spirits of turpentine and gum rosin and his employees are hereby declared to be, for all intents and purposes, farmers in so far as any statue of this State relates to farming and farmers." In Collins v. Mills, 198 Ga. 18, the Supreme Court declined to rule that lumber was a farm product. This case reveals the means and the necessary laws that have been enacted to bring producers of forestry products within the operation of specific statutes for specific purposes. At page 25, we find the following:
"In other words, according to its usual signification, the term 'lumber' would not ordinarily be classified as a farm product; and therefore, as to this lumber, it would be presumed prima facie that it was not such a product."
In a discussion of Code Sections 5-1617 and 67-1107, the Court of Appeals in Meadows v. Dixon, 61 Ga., Appeals, P' 6(i7, held:
"In our opinion it was the intention of the legislature, in passing these acts, to classify the products of the pine tree as personalty solely for the purpose of enabling turpentine operators to obtain credit on their products by the giving of bills of sale or mortgages, and for no other purpose. Had the purpose been otherwise, it would have been very easy for the legislature to have gone just a little further and said that one engaged in the production of turpentine was to be classed as a farmer for all purposes.

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"That the intentien of the legislature was only to facilitate credit to those in the turpentine business is further evident by the sentence in the act which says, 'except wherein such statute or law expressly otherwise provides, . . . "farm products" shall include . . . oleoresin.' From this sentence it will be seen that the legislature did not intend to classify turpentine products as farm products for all purposes, but that any earlier laws or acts which classified them otherwise would still be of force and effect."
From the above, I am of the opinion that lumber does not come within the definition of an agricultural product as used in the State Warehouse Act.

AGRICULTURE-State Warehouse Act

Pine Cones may come under State Warehouse Act, being includable in "agricultural products" as used therein.

Honorable Phil Campbell

March 14, 1958

You request my opinion as to whether a warehouse storing pine cones can be licensed under the State Warehouse Act (1953 Nov.-Dec. Sess., p. 412), as amended.
Section 2 of the Warehouse Act defines "public warehouse" or warehouse" as any building, structure or other enclosure other than refrigerated building er structure in this State at which any agricultural product as hereinafter defined is received from the public for storage for hire.
Section 2 (c) of the State Warehouse Act reads:
"Section 2 (c). The term 'warehouseman' means a person engaged in the business of operating a warehouse, or any person who uses or undertakes to use a warehouse for the purpose of storing agricultural products, as defined herein, for compensation for more than one person. Provided, however, any person operating a warehouse not covered by the provisions of this Act may elect to come under the provisions of this Act."
(Emphasis supplied).

Section 2 (d) of the State Warehouse: Act reads:
"Section 2 (d). The Term 'agricultural product' means, individually and collectively, all grains, cotton, peanuts, meat, fruits, vegetables, and other farm products offered or accepted for storage in their raw or natural state; provided, however, that products which have been processed only to the extent to shelling, cleaning, and grading shall be incluaed, and, provided further, that any warehouseman storing refrigerated and/ or processed agricultural products may, at his option, come under the operation of this Act."
Code Section 67-1107,. as amended, in part provides:
".. The planting, growing, cultivation, harvesting and market-

15
ing of trees and the fruits and products thereof shall be considered and treated under the laws. of Georgia as an agricultural pursuit. . ..."
In construing a portion of the above code section, the Court of Appeals in case of Hamilton Turpentine Co. v. Jolmson (93 Ga. App., p. 544) held that original manufacturers or producers of crude gum were farmers for all intents and purposes.
From the above, I am of the opinion that you, as Commissioner of Agriculture, may license a warehouse storing pine cones under the State Warehouse Act. Of course, adequate provisions will need to be made to establish the identity of the pine cones stored in each such warehouse, in that the green pine cones received by the warehouse change their nature in the ripening process. The warehouse receipt issued to cover such products that are stored must inform the holder thereof of the change in nature of the products stored until the pine seed and the pine cone are separated, and appropriate receipts issued to cover each of the products derived from the original green pine cones stored.

BAILMENTS-Care required of bailee (Unofficial)

Bailee must show diligence in care of property entrusted to care.

Mr. T. M. Webb

October 27, 1959

As I understand your question, you ask who is legally responsible for the damages a cow may do after escaping from the chute while being unloaded, or from the barn itself after being brought to same by the owner for the purpose of selling same in the barn owner's auction sale.
To the above it would seem that the general principles of bailments apply. For your information in this connection, I quote from the Georgia Code Annotated as follows:
"12-101. Definition.-A bailment is a delivery of goods or property for the execution of a special object, beneficial either to the bailor or bailee, or both; and upon a contract, express or implied, to carry out this object and dispose of the property in conformity with the purpose of the trust."

"12-102. Property in bailee.-In all cases the bailee, during the bailment, has a right to the possession of the property, and in most cases a special right of property in the thing bailed. For a violation of these rights by anyone he is entitled to his action."

"12-103. Care and diligence.-All bailees are required to exercise care and diligence in protecting and keeping safely the thing bailed. Different degrees of diligence are required, according to the nature of the bailments."

"12-104. Burden of proof as to diligence.-In all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence."

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"12-105. Contract of bailment generally an entire contract.-As a general rule, the contract of bailment is an entire contract, and a full performance is a condition precedent to an action upon it."
"12-106. Act of God as defense.--In order for a bailee to avail himself of the act of God or exception under the contract as a defense, he must establish not only that the act of God or excepted fact ultimately occasioned the loss, but that his own negligence did not contribute thereto."
And from C. J. S. as follows: 8 C. J. S., Bailments, Section 40: "... The general rule is that a bailer is net liable to third persons
for their injuries resulting from the bailee's negligent use of the thing bailed. . . ."
"Liability for injury to property. The bailee' is responsible to third persons, as true owners of the property bailed, for injuries with respect to the property caused by the acts of his servants . . ."
It is believed the above sets forth the general principles involved and the information you requested. But of course there are questions of fact that would have to be solved, such as delivery, particularly in the case where the cow escapes off the chute while being unloaded. Among other questions of fact involved is whether or not the bailee (owner of barn) has exercised the required care in preventing the escape and whether the cow is unusually wild and the bailor has given no notice of same to barn owner. It is also possible that some of the duties and responsibilities may be covered by a specific contract between the owner of the cow and the barn owner; if such be true the provision of it could and probably would alter the above.

BANKS AND BANKING-Accounts-Survivorship (Unofficial)

Honorable E. J. Calhoun

June 4, 1958

This will acknowledge receipt of your letter inquiring as to Georgia law concerning joint tenancy in a bank account.
I believe that your question is answered by the provisions of Code Section 13-2039 which reads as follows:
"13-2039. When a deposit has been made, or shall hereafter be made, in any bank in the names of two persons, payable to either, or payable to either or the survivor, such deposit, or any part thereof, or any interest or dividend thereon, may be paid to either of said persons, whether the other be living or not; and the receipt or acquittance of the persons so paid shall be a valid and sufficient release and discharge to the bank for payment so made."
Although this Section does not give a right of survivorship between two parties to a bank account, it protects a bank which makes payment of an account to the survivor.

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BANKS AND BANKING-Branch Banks-Change of Location

A mere change in the physical location of a branch bank is not the establishment of such a bank.

Honorable A. P. Persons

November 10, 1958

This will acknowledge receipt from your office of a letter from the General Counsel of the Federal Reserve Bank of Atlanta.
He states that the Columbus Bank & Trust Company has applied for permission to move its present Fourteenth Street Branch to a site in a suburban area that is to be annexed into the City of Columbus on January 1, 1959. He requests that you please advise him whether such a relocation would constitute an "establishment" of a branch bank under applicable Georgia statutes (Code Section 18-203, an Act approved July 20, 1929, Ga. Laws 1929, p. 214, and an Act approved August 17, 1929, Ga. Laws 1929, p. 214).
The problem seems to revolve around a definition of the word "establishment" as used in these banking statutes. I am not aware of any decision of our Appellate Courts on this matter. However, there are certain indications in both the Banking Law and the other law of this State which would' leave me to believe that a relocation such as proposed by the Columbus Bank & Trust Company would not be an establishment of a branch bank.
Our Supreme Court, in the case of Georgia Public Service Commission v. Georgia Power Company, 182 Ga. 706 (4) (1936), stated that the word "establish" is defined to mean "to bring into being, to build, to constitute, to create, to erect, to form, to found, to found and regulate, to institute, to locate, to make, to model, to organize, to originate, to prepare, to set up". Using this definition in conjunction with the uses of the words "locate" and "establish" in the Banking Law (see e.g. Code Section 13-905), I am of the opinion that the mere physical changing of location of a branch bank in Georgia would not constitute an establishment of such a bank.

BANKS AND BANKING-"Central Charge Plan"

A proposed "Central Charge Plan" and its legal effects discussed.

Honorable A. P. Persons

December 29, 1958

You have asked the opinion of this office concerning the legal effect of a proposal identified as the "Central Charge Plan".

The principal features of this plan are outlined in the proposed agreement between the individual merchant and the Bank and the attached documents. In Paragraph 1 of the agreement the individual merchant agrees to finance all of his sales of merchandise and services through the plan provided. I am informed by you, however, that this agreement and appended documents are not intended to include the financing of major items which usually are covered by a retention of title contract and promissory note from the purchaser to the merchant, al-

18
though the language of paragraph 1 of the agreement appears to include them.
Paragraph 2 of the agreement obligates the merchant to maintain a fair policy of exchange of goods and in regard to the return of goods purchased, and provides for the return to the merchant of the 6% charge made by the Bank in connection with such financing when goods are returned. Paragraph 4 of the agreement provides that the "sales drafts" shall be drawn by the merchant, and shall be endorsed without recourse or with recourse in the event the Bank directs such endorsement because of the credit status of the customer, although, as we shall note later, all assignments of the chose in action of the merchant upon the open accounts are, as a matter of fact, with recourse by the Bank against the merchant both by statute and other terms of the agreement.
Paragraph 6 of the agreement provides that the Bank shall credit the account of the merchant with it for the face amount od' the so-called "sales draft" less the 6% charge made by the Bank. Paragraphs 7 and 8 detail a number of circumstances under which the merchant will either buy back from the Bank the open account or have his account with the Bank charged therefor. Paragraph 9 of the agreement provides for the termination of the agreement upon 60 days notice by either party to the other with the retention of the rights of recourse of the Bank against the merchant. These provisions coupled with the statute, for practical purposes, mean that the Bank can require the merchant to repurchase any account, if it so desires, or charge his account therefor.
The instruments attached to the agreement between the Bank and the merchant are not those which would normally be expected in view of the terms of the agreement. The so-called draft attached to the sales ticket is not a negotiable instrument because it does not order anyone to pay a sum certain in money to the payee as required by Georgia Code Section 14-201 which defines the form of a negotiable instrument. It is made payable to the Bank although it provides for the endorsement of the merchant which apparently was intended to assign the chose in action upon the open account from the merchant to the Bank.
If the so-called note is to be considered a part of the sales ticket, it might be said to provide for the payment of the total amount shown on the ticket, but the note is incomplete int that it requires that we look to a chart which will be set forth on a satement sent the maker of the note on thEl lOth day of the month after his receipt of a statement of his account. As the merchant's customer executes more sales tickets to the same or a different merchant and they are received by the Bank, it is indicated that the terms of payment will change as provided by the chart and according to the total amount o1l the purchases of the customer. Apparently, the note executed in the case of each sale serves little purpose except to obtain the agreement of the maker to make payments in accordance with a chart sent to him. It could not be considered a negotiable instrument.
The execution of the note pre-supposes the existence of a debt due the Bank by the purchaser of the goods as consideration for it, and that debt could arise, in these circumstances, only from the assignment by the merchant of his chose in action upon the open account, to the bank. The execution of the sales ticket when coupled with the agreement between the merchant and the Bank may be taken to import an assignment to the Bank of the chose in action upon the open account.
The title to choses in action was not assignable at common law, and the

19
right to make such an assignment exists only by statute. Western Bank v. Maverick Bank, 90 Ga. 339, 342-3, 16 S.E. 942-3. The right to make such assignments of choses in action arising upon contract is provided by Georgia Code Section 85-1803 which is as follows:
"85-1803. Assignment of choses in action arising upon eontraet.All choses in action arising upon contract may be assigned so as to vest title in the assignee, but he takes it, except negotiable instruments subject to the equities existing between the assignor and debtor at the time of the assignment, and until notice of the assignment is given to the person liable."
In view of the fact that the provisions of the agreement, together with those of the statute, give the Bank complete recourse against the merchant, and in view of other details of the agreement and appended documents, I am of the opinion that under the decisions referred to in a memorandum addressed to you under date of July 15, 1957, concerning the purchase of commercial or business paper by state chartered banks, and the applications of Ga. Code Section 13-2013 thereto, the plan outlined in the letter of the Bank under date of December 10, 1958 and appended documents provide for a simple loan by the Bank to the merchant upon the security of an assignment of the open accounts, and hence is subject to all of the limitations and restrictions set forth in Ga. Code Section 13-2013, as amended. It does not come within any of the provisos in that Code Section that in addition to loans a bank may buy from or discount for any person, firm, or corporation bills of exchange or business or commercial paper actually owned by the person negotiating the same or that the limit of loans herein fixed shall not apply to bona fide purchases of commercial or business paper without recourse on the holder or payee of such paper. The Bank may make such loans to merchants within the limits set forth in\ such Code Section, but may not go beyond such limits. Such loans must be approved, and must be made upon the security provided in that Code Section.
In view of the conclusions reached, it is not necessary to deal with the practical difficulties involved in this plan. However, let us assume that the individual retail customer buys goods from three additional merchants, besides the merchant from whom he makes the initial purchase, the additional merchants also having the plan. In such circumstances, the question may arise as to which account the Bank will make credits upon when the retail customer makes individual payments according to the chart sent him, or for a less amount.

BANKS AND BANKING-Deposits-Survivorship (Unofficial)

If an account is in the name of "A. or B.", than upon death of "A", "B." would be entitled to the account.

Honorable Douglas Carlisle

March 17, 1959

In response to your letter in which you quote the last sentence of Section 16-431 o:f the Georgia Code Annotated, which reads:
"16-431. A State-chartered association or a Federal savings and

20
loan association may issue accounts to two or more persons as A or B, or as A orB or C (using the names of such persons) in which event any of such persons who shall first act shall have power to act in all matters related to such account whether the other person or persons named on such account be living or not. The title hereby contemplated and created shall be the full equivalent of the common law joint tenancy with right of suvivorship."
and ask the question "Does the last sentence ... mean that upon the death of a depositor in a federal savings and loan association, another person whose name was on the account with the one who died . is ... entitled absolutely to the deposit?"
It appears from reading the cases cited by you and the one referred to below that the answer would be yes; however, since you are in a position to examine the facts further, we refer you to Paragraph 4 of Nash, Administrator vs. Martin Executrix, et al., 90 Ga. App. 235, and believe that same, when applied to whatever factual situation you may have, will answer your question.

BANKS AND BANKING-Deposits-Service Charges (Unofficial)

Banks may impose service charges upon dormant accounts if it gives notice to depositors prior to imposition.

Honorable Robert M. Heard

December 9. 1959

This will acknowledge receipt of your letter requesting my opinion concerning service charges imposed on dormant checking accounts.
As I understand your problem, the Bank desires to know whether or not these charges were legal under principles stated in my opinion of October 16, 1947 (Op. Atty. Gen. 1945-47, p. 30).
On the basis of the facts stated in your letter, I agree with your interpretation that such charges were in accord with my opinion of 1947 above cited. In that opinion, I held simply that charges could not be made without notice or consent of the depositor. Under the facts stated in your letter, the Bank gave notice to dormant depositors before imposing the service charges, thereby giving them an opportunity to avoid same by withdrawing their account or reactivating it. Upon their failure thereafter to so do, it is only reasonable to assume that they impliedly consented to the charges.

BANKS AND BANKING-Deposits
A state bank with trust powers may deposit trust funds at interest in its own bank.
February 17, 1959 Honorable A. P. Persons
This communication has reference to a letter from Richard A. Sanders,

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Examiner (Federal Reserve System) to W. M. Jackson, Assistant Superintendent of Banks, which letter was referred to this Department with the request that you be advised on the questions raised involving that portion of the Trust Company Act of 1935 as is now codified as Section 109-510 of the Code of Georgia.
It is pointed out that trust funds in a bank fall into two major divisions: (1) those funds relating to strictly trust status such as executorships, guardianships, trustee-ships and the like; and (2) accounts involving agency relationships, both personal and corporate. The question is asked does the requirement for securing uninvested trust funds relate strictly to the trust type accounts, or does it relate to all trust accounts, including agencies.
It is further pointed out that under the provisions of Section 108-417 (Georgia Laws 1953, pp. 108-109) deposits of funds at interest in any State or national bank insured by the Federal Deposit Insurance Corporation are legal investments to the extent that the deposits are insured. The questions are asked: (1) Does this statute cover deposits at interest in own bank so that if a trustee institution deposits funds of one or more trust accounts in its own savings accounts, do such deposits become legal investments rather than uninvested trust funds; and (2) Do the provisions of Section 109-510 relate to the deposit of trust funds at interest in own bank?
Section 109-510 of the Code of Georgia provides that "All banks in this State having and exercising trust powers and privileges, and trust companies, savings banks and security or guarantee companies, and corporations doing a trust business or exercising the rights, powers and privileges of trust companies, and having uninvested funds shall se.cure them by setting aside with or pledging to their trust departments a sufficient amount of bonds of the United States of America or of the State of Georgia at their par value, the same to be held and kept as pledged security for the payment of all uninvested trust funds, the par value of such bonds being at all times equal to the amount of such funds." (Underscoring supplied.)
You will note that this section makes no distinction between funds held in a strictly fiduciary capacity and funds held in an agency relationship but applies to all trust funds. Therefore, in my opinion, the requirement for securing uninvested trust funds contained in Section 109-510 applies to both fiduciary funds and agency funds.
Section 108-417, enacted subsequently to the statute quoted in the preceeding paragraph, provides that: "Deposits of funds at interest in any chartered State or national bank, or trust company, located in this State, shall be deemed investments and such deposits are authorized as legal investments to the extent that said deposits are insured by the Federal Deposit Insurance Corporation, without any order or authority of any court."
This statute, of which only the 1953 amendment has been quoted, applies to any trustee holding trust funds, and would therefore apply to fiduciary trustees as well as agency trustees. The provision as to investing trust funds in savings or time accounts is restricted only to the conditions that the deposit receiving institution be insured by the Federal Deposit Insurance Corporation, and that such deposits are legal only to the extent of the Federal Deposit Insurance Corporation insurance coverage, which is $10,000 to each account.
I am therefore of the opinion that a State bank having trust powers may

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deposit trust funds at interest in time or savings accounts in its own bank and that such deposits are legal investments up to- $10,000 in each individual time or savings account. Such deposits not in excess of $10,000 do not have to be secured by bonds of the United States or of the State of Georgia, but all excess over $10,000 in any trust account would have to be secured by bonds of the United States or of the State of Georgia.
BONDS-Carnivals-Extent of Coverage
Bonds and liability insurance policies filed in office of Secretary of State under Ga. Laws 1957, p. 406, include coverage for property damage as well as for personal injuries.
Honorable Ben W. Fortson, Jr.
This will acknowledge receipt of your letter requesting my opinion on the question as to whether or not the bonds and liability insurance policies filed in your office by carnivals and itinerant shows under the Act of 1957 (Ga. Laws 1957 Vol. I, p. 406) should include coverage for property damage as well as for personal injuries.
In addition to requiring that such shows designate an agent for service, Section 1 (b) of this Act declares that they must:
"(b) Secure an insurance policy or a bond, affording coverage to such carnival, circus, or show for the extent of its stay within this State which insurance policy or bond shall be subject to any personal injury or death or property damages to the following limits: (1) An indemnity bond subject to a limit of one hundred thousand dollars ($100,000); or
(2) An insurance policy or public liability bond subject to a limit of fifty thousand dollars ($50,000) for personal injury or death or property damage sustained by any one person and subject to a limit of one hundred thousand dollars ($100,000) for personal injuries or death or property damages sustained by two or more persons as a result of any one accident or event."
These provisions plainly declare that the coverage must embrace "personal injury or death or property damages".
In Comer v. American Telephone and Telegraph Co., 176 Ga. 651 (2), a statute authorized telephone companies to construct and maintain their lines "over or under" any private lands, and the question arose as to whether the company would, in view of the disjunctive connective "or", be authorized to lay its lines both under and over such lands. In holding that it would, the court declared:
"The word 'or' as used in a statute should be construed as 'and' when necessary to give effect to the intention of the legislature as manifested by the context and the circumstances; and under this rule, the word as used in the statute under consideration must be construed as having a conjunctive, and not a disjunctive, meaning . . . ."

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Obviously, the same rule should apply here, as the legislative intent was to provide protection against both types of injuries, and not merely give the carnival or show an election as to whether it would file a bond or policy of insurance covering one or the other. Also, the caption of the Act refers to "darnages" generally.
I therefore conclude that bonds and insurance policies filed with your office under the 1957 Act should cover liability as to personal injuries, death, and property damage.

CHILD LABOR-Regulation .(Unofficial)

Law relating to employment of minors cited.

Honorable John J. O'Donnell

June 23, 1958

This will acknowledge receipt of your letter in which you request information concerning the laws. of Georgia as they pertain to discrimination in employment because of age.
The only law which we have relative to this subject is an Act approved January 30, 1948 (Ga. Laws 1946, p. 67), and which appears as Chapter 54-3 of the Annotated Code. This law regulates the use of child labor in the State. Under its provisions, generally a minor under 14 years of age may riot be employed, and a child under 16 years' of age may not work in any mill, factory, laundry, manufacturing establishment or workshop. No children between the ages of 14 and, 16 years shall1 be employed unless he shall obtain a certificate of employment from the Commissioner of Labor. Also, no minor under 16 years of age may be employed during the hours when public or private schools are in session unless such minor shall have completed senior high school. Under the provisions of this law, I believe that it would be necessary that an employer ask a prospective employee whether he is 16 years of age, and whether he is graduated from school.

CONSTITUTIONAL LAW-Act Containing No Enacting Clause (Unofficial)

Act containing no enacting clause is of doubtful constitutionality.

Honorable Stokes Walton

April 9, 1959

Honorable Ben W. Fortson, Secretary of State, has referred to this office your letter requesting an opinion as to the constitutionality of the Act of 1943 (Ga. Laws 1943, p. 421), Code Sections, 71-401, 402, 403, relating to notaries public, in view of the fact that the Act contains no enacting clause.
In Walden v. Town of Whigham, 120 Ga. 646, 647, it was said: "It is only necessary, however, to call attention to the fact that
the amendatory measure contains no enacting clause whatever; that,

24
aside from the title, the entire act consists of the words: 'Be it further enacted, That all laws and parts of laws in conflict with this Act are hereby repealed.' The proposed amendment amends nothing.''
The Act involved in the Walden case, it is to be noted, differs substantially from the present Act in question. The former (Ga. Laws 1897, p. 363) not, only contains no enacting clause, but has no "body", i.e., it consists of only a caption and repealer clause. The Act of 1943 in question contains a caption and body, but lacks only the formal enacting clause, "Be it enacted by the General Assembly of Georgia ..."
The Walden case was distinguished in Fowler v. Stone, 149 Ga. 125, involving the Act of 1916 governing fence laws (Ga. Laws 1916, p. 41), on the ground ~hat in the Fowler case, the enacting clause was a part of the first section of the body, whereas, as pointed out by the court, the act in the Whigham case "had no enacting clause at all, but had merely a caption and a repealing clause."
The Constitutions of 44 states specify the form of the enacting clause, but the Georgia Constitution is silent on the point. Sec. 1 Sutherland on Statutory Construction, p. 316, 1801.
In 50 Am. Jur. 132, 153, it is said: "... It has sometimes been declared that an enacting clause is
necessary to the validity of a statute, although there is no provision in the fundamental law requiring such a clause, but this rule has been questioned, and where there can be no doubt as to the authority by which a statute has been enacted, or as to the fact that it was intended by the legislature to be a law, it has been regarded as beyond the province of the courts to declare it invalid because of the omission of an enacting clause, in the absence of a constitutional requirement of such a clause.''
Similarly, 82 C. J. S. 104, 65 (c) (1) declares: "Although there is no constitutional provision requiring an enacting
clause, such a clause has been held to be requisite to the validity of a legislative enactment, unless it has been acquiesced in, and rights acquired under it to such an extent that it would be manifestly unjust '"o disturb them. However, there is other authority that an enacting dause is not indispensable to the validity of an act where there is no constitutional provision requiring one.'' In a case tried in Fulton Superior Court several years ago, Judge Pharr declared the Securities Act of 1953 (Ga. Laws 1953 Jan. Feb. Sess., p. 423) unconstitutional on the ground that it contained no enacting clause (in the same sense as the Act in question). However, no appeal was taken therefrom, so an appellate court decision is not available on the precise point. An identical question was also presented in the case of Wilson v. Chummey, 214 Ga. 120, involving the uniform reciprocal enforcement of support act (Ga. Laws 1956 Vol. I, p. 703) but the court decided the case on other grounds. However, I understand that during the course of oral argument, the Chief Justice indicated very clearly his belief that the lack of an enacting clause in the same sense as is involved in the Act in question is a fatal defect, and renders the Act void. If the question were one of first impression, I would have no hesitancy in expressing my own opinion to the effect that the mere lack of a formal enacting clause should not invalidate the Act. There is no question but that the Legislature intended to enact it. The Act contains a complete body and a complete

25
caption. To hold it void is to sacrifice substance on an altar on judicial irrelevances and narrow formalisms. In the present context, the lack of an enacting clause would appear to be no more than a typographical error, and the Supreme Court has admonished us that the legislative purpose should not be frustrated by rules which destroy an Act because of typographical errors. Lamons, et al. v. Yarbrough, et al., 206 Ga. 50 (1); Code 102-102 (9). There is even some authority which holds that the enacting clause consists of a whole body of the act, see Bal~ v. Mapp, et al., 114 Ga. 349, 353; Territory v. Burns, 6 Mont. 72, 9 P. 432, 433; 57 C. J. 597, Note 62.
However, in view of the Georgia cases, and the apparent feeling of the Supreme Court of Georgia, I would be indeed reluctant to hold that the Act which you question is valid, particularly since title to real estate very likely would depend upon such a holding. Perhaps the authorities which I have discussed herein would enable you to reach your own conclusion.

CONSTITUTIONAL LAW-Local Amendments (Unofficial)

Discussion of when amendment local or when general.

Mr. Burney Humphreys

February 9, 1959

I am pleased to acknowledge your request concerning a question that might possibly arise at the 1960 general election as to constitutional amendments affecting the Brooks County Board of Education. My comments below are in answer to the general question involved. No specific ruling or opinion could be given without seeing the provisions of the specific proposed amendments.
As to local constitutional amendments, Article XIII, Section I, Paragraph I of the Georgia Constitution: of 1945, as amended, provides as follows:
"A proposed amendment which is not general shall only be submitted to the people of the political subdivision or subdivisions directly affected." In interpreting the above provision the word "subdivision" means "political subdivision of this State." Towns v. Suttles, 208 Ga. 838, 840. Where the local amendment affects only a county school district, the people within an independent city school district located in the county would. not vote on said amendment. Towns v. Suttles, supra.

Therefore, in a constitutional merger of an independent school district with a county school district, the local constitutional amendment would be submitted to the people of both school districts. Also, "The votes of, the electors in each political subdivision affected shall be counted separately in determining whether such proposed amendment is ratified, and it must be ratified by a majority of the electors qualified to vote for members of the General Assembly voting thereon in each such political subdivision before it shall become a part of this Constitution. . . ." Article XIII, Section I, Paragraph I of the Georgia Constitution of 1945, as amended.

A local constitutional amendment calling for the appointment of the county superintendent of schools rather than having him elected, would be submitted only to those people who reside in that part of the county exclusive of an in-

26
dependent school district, i.e., the people directly affected by the proposed local amendment. This would be generally true even though a proposed local constitutional amendment me.rging the two school dist.ricts was on the ballot that same day. The reason being that on the date of the election the independent school system would not be affected by any vote as to the county school superintendent.

CONSTITUTIONAL LAW-Local Amendments

Validity of amendment providing for election of members of county school board discussed.

Honorable S. Ernest Vandiver Governor

October 5, 1959

This will acknowledge receipt of your request that this office advise you with reference to the procedure to be followed concerning the Gilmer County Board of Education.
Gilmer County, by an amendment to the Constitution, appearing in Georgia Laws 1953, November-December Session, page 544, provided for the election of members of the county school board. In 1958, the General Assembly proposed another amendment to the Constitution so as to provide for the election of members of the Board of Education of Gilmer County by districts. (Ga Laws 1958, p, 469) This amendment provided "at the election in 1958 the members of the Board shall be elected under the terms of the aforesaid amendment (the 1953 amendment to the Constitution) applying to Gilmer County, but the terms of the members so elected shall expire on December 31, 1960, and the Board as provided in the aforesaid amendment shall expire and be abolished on such date." It appears that at the 1958 general election, this amendment was submitted to the electors of Gilmer County. However, there was no advertising of the amendment in Gilmer County as required by the Constitution. Article XIII, Section I, Paragraph I of the Constitution provided in part:
"If such proposed amendment is not general, the Governor shall call such proposed amendment to be published in full in one newspaper of general circulation in such county in which the directly affected political subdivision or subdivisions are located.... A proposed amendment which is not general shall only be submitted to the people of the political subdivision or subdivisions directly affected ... such proposed amendment ... must be ratified by a majority of the electors qualified to vote for members of the General Assembly voting thereon in each such political subdivision before it shall become a part of this Constitution." After the general election held on November 4, 1958 Governor Griffin issued a proclamation stating that the amendment affecting Gilmer County had been adopted by a vote of 759 to 282. The Secretary of State prepared, and there was issued, commissions to the members of the County Board of Education of Gilmer County electe<l in 1958 for a term of two (2) years ending December 31, 1960,
as prescribed by the constitutional amendment above referred to. Your office
has now been contacted by the County Attorney of Gilmer County with the

27
request that the present commissions be recalled and that new commissions be issued to the members. of the Gilmer County Board of Education under the provisions of 1953 amendment to the constitution; i.e., commissions which would provide for a term of office ending December 31, 1962. You had requested my opinion as to whether this procedure may be followed.
In order to determine whether the commissions of the Gilmer County Board of Education are invalid, it is necessary to determine whether the amendment to the Constitution,pr6posed in 1958 has bec~me a part of the Constitution. This is a question which the Attorney General of Georgia cannot determine. The question of whether an amendment has been properly adopted according to the requirements of the existing Constitution is a judicial question and must be determined by the courts of our State, Hammondv. Clark, 136 Ga. 313(1) (1911).
I believe that under the existing decisions of our Supreme Court, there is grave doubt as to whether it can be said that the 1958 amendment is not part of the Constitution. The Governor has issued a proclamation stating that this amendment was submitted for rejection or nitification to the qualified voters of Gilmer County on November 4, 1958, and that the voters had ratified the amendment. This would seem to follow directly under the ruling laid down in the case of Hammond v. Clark, 136 Ga. 313, 324 (1911). In that case, the Supreme Court seemed inclined to take the position that the primary requisites for obtaining an amendment to the Constitution were a proposal by the legislature and a majority of the popular vote. The Court cited with approval the Constitutional Prohibitory Cases, 24 Kan. 700, which set forth this view, and Justice Lumpkin, speaking for the full bench, stated:
"This liberal interpretation applies rather to the maner of compli. ance with constitutional requirements in regard to amendments than to a total omission or disregard of such a requirement. It has not generally been held that an esseJ1tial requirement could be entirely omitted, nor does the present case require us to take that position. But we concur in the view that substance is more important than form, and that .the will of the legislature lawfully expressed in proposing an amendment, and the will of the people expressed at the proper time and in the proper manner at the ballot box, in ratifying such amendment, ought not be lightly disregarded and set at naught, even if an executive or ministerial officer should not strictly comply with his duty in connection with matters of detail, regarding the publication, or the like, and which do not appear to have substantially affected the result." 136 Ga. 313, 321 (1911). The above-quoted decision would seem to be authority for you to take no action affecting the commissions which are presently outstanding to the members of the Gilmer County Board of Education. In any event; this matter is one which should be determined by the Courts of this State.
As a practical solution, I would think that the best course of action for the citizens of Gilmer County to .follow would be to have their representative in the Genetal Assembly propose another constitutional amendment in 1960 which would settle this matter completely. This amendment could be proposed and voted .en by the electors of Gilmer County prior to the time at which the present terms of the members of the Board of Edueatio11 would expire; i.e., December 31, 1960.

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CONSTITUTIONAL LAW-Prohibition Against Gratuities
House Resolution for sale of State Property for "nominal sum'~ unconstitutional as being gratuity.
April 15, 1959 Honorable S. Ernest Vandiver Governor
This will acknowledge receipt of your request for my opinion as to the constitutionality of House Resolution No. 166-513 (Act No. 34), approved March 10, 1959.
The resolution authorizes you, as Governor, to sell to named individuals, as the Board of Directors of Trustees of the Athens Junior Chamber of Commerce, a certain portion of the land upon which the State Farmers Market, Athens, Clarke County, Georgia, was erected. The last sentence of the resolution provides:
"The consideration for such sales shall be nominal, for the reasons hereinabove enumerated." Article VII, Section I, Paragraph II, Subparagraph 1 (Ga. Code Anno. 2-5402) provides:
"The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association". The Supreme Court of Georgia, in the case of Atlanta Chamber of Commerce v. McRae (174 Ga., p. 590), in construing the above quoted provision of the Constitution, held that the Board of Commissioners of Roads and Revenues of the County of Fulton could not donate county funds derived from taxation or from other sources to the Atlanta Chamber of Commerce, the Atlanta Freight Bureau, the Atlanta Convention Bureau, Tourist Bureau, or other worthy causes that were highly beneficial to the general public. It follows ,therefore, that, if a county which has even more latitude than the State in such matters in that the county, municipal corporation or political subdivision of the State is permitted to do similar things for purely charitable purposes, the charitable purpose provision is not applicable to the State of Georgia.
In my opinion to you dated April 6, 1959, relative to the disposition of certain property in Coffee County, Georgia, I defined "nominal consideration" as, "One bearing no relation to the real value of the contract or article, as where a parcel of land is described in a deed as being sold for 'one dollar', no actual consideration passing, or the real consideration being concealed...."
From the above, I am of the opinion that, insofar as House Resolution 166513, Resolution Act No. 34, approved March 10, 1959, authoritizes the sale of the property for a "nominal consideration", it is unconstitutional. However, giving the resolution a construction that tends to uphold its validity wherever possible and further looking to the intent of the General Assembly in authorizing a sale, I am further of the opinion that you would be authorized to sell the property as specified in the resolution for a consideration that reflected the actual value of the property. The actual value could be determined by having the property appraised and selling the property as authorized in the resolution at the appraised value. In arriving at the actual value, consideration could be given to the efforts of the proposed grantees in procuring the property for the State initially.
For the sake of clarity and to further distinguish my opinion in this matter

29
from the opinion dated April 6, 1959 relative to the Coffee County property, we must remember that in the Coffee County q1:1estion the property was to be sold back to the original grantors of the State. ln this instance title was never in the proposed grantees, even thougll it appears that the funds for the acquisition of the property were raised by public subscription.

CONSTITUTIONAL LAW-Prohibition Against Gratuities

House Resolution for sale of State property for a "nominal sum" not unconstitutional.

Honorable S. Ernest Vandiver Governor

April 6, 1959

This will acknowledge receipt of your letter in which you asked certain questions relative to House Resolution 171-513 (Act No. 69, 1959 General Assembly).
The Resolution in question authorizes you sell to named parties certain property in Coffee County, Georgia. The Resolution in part provides:
"WHEREAS, the purposes of the aforesaid conveyances were for the sole purpose of having a state park erected in Coffee County; and
"WHEREAS, said park has not been established and the plan for said park has been abandoned; and
"WHEREAS, the aforesaid property is now surplus and of no value to the State, and it would be inequitable for the State to retain title to such property.
"NOW, THEREFORE, BE IT RESOLVED BY THE GENERAL ASSEMBLY OF GEORGIA that the Governor be, and he is hereby authorized to sell the aforesaid property on behalf of the State of Georgia. Such sales shall be to the persons from whom the property was conveyed. The consideration for such sales shall be set by the Governor at a purely nominal consideration, the, moral obligation of the State being enough to support the conveyances in question. The Governor is hereby authorized to execute proper instJ;"uments to effectuate the conveyance."
Article III, Section VII, Paragraph XX (Ga. Code Anno. 2-1920) provides: "The General Assembly shall have the power to make all laws con-
sistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State."
Article VII, Section I, Paragraph II, Subparagraph 1 (Ga. Code Anno. 2-5402) provides:
"The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association.''
Article I, Section IV, Paragraph II (Ga. Code Anno. 2-402) provides: "Legislative acts in violation of this Constitution, or the Constitu-
tion of the United States, are void, and the Judiciary shall so declare them."

30
ln 1'72 A.L.R. 1407 at 1408, the following is found:
''It is of the. essence 'o( a moral obligation that it arises out of a
state of facts appealing to a universal sense of justice a~d fairness, though upon such facts no legal claim can be based. The state may be said to owe a moral debt to an individual when his claim grows out of the principles of right and justice. When it is of such a nature as to be binding on the conscience or honor of an individual, it may be said to be based upon considerations of a moral or honorary nature of which the state may take cognizance. I;Iagler v. Small (1923) 307 Ill. 460, 138 NE 849, 856."
"It is generally recognized that a moral obligation is more th:im a
mere desire to do charity or to appropriate money in acknowledgement of a gratitude. It is an obligation which, though lacking any foundation cognizable in law, springs from a sense of justice and equity, that an honorable person would entertain, but not from a mere sense of doing benevolence or charity.. Fairfield v. Huntington (1922) 23 Ariz. 528, :;!05 P 814, 22 ALR 1438.
"... The court said that although the legislature has no right to appropriate money as a mere charity or gratuity, yet it does have. a right to recognize the essential justice of a claim against the state as weighed or measured by certain standards considered in the opinion. . . : Grout v. Kendall (1928) 195 Iowa 467."
The Supreme Court of Georgia, in the case.of Bachlott v. Buie (158 Georgia, p. 705 at p. 710) stated:
".. We think that parties are not estopped to deny facts recited in legislative acts, when such facts affect their rights, or where the right of the legislature to enact a law does not depend upon the existence of the facts recited. In such cases the recital of facts is prime facie true, but not conclusive. When, however, the right of the legislature to enact a law, touching matters purely legislative or political, depends upon the existence of facts, and the enrolled act recites the existence of such facts, the act not impairing or destroying private rights, the recital in the act of the existence of such facts, being necessary. to en~ able the legislature to pass the law, is conclusive and binding and cannot be traversed. . . ."
Every Act of the General Assembly is presumed to be valid until the contrary is shown. The conflict between the Act of the General Assembly and the Constitution must be clear and palpable before the Courts will declare the same to be a nullity.
From the above, I am of the opinion that House Resolution 171-513 (Act No. 69, approved March 25, 1959) is constitutional.
"Nominal Consideration" is defined by Black's Law D~ctionary, Fourth Edition at page 880, as "One bearing no relation to the real value of the contract or article as where a parcel of land is described in a .c<leed as being sold :for 'one dollar', no actual consideration passing, or the real consideration. being concealed. This term is also sometimes used as descriptive of an inflated or exaggerated value placed upon property for the purpose of an exchange."
You asked that I advise you what, in my opinion, would be a "purely nominal consideration" under the circumstances. .From the foregoing, I am of

31
the opinion that the General Assembly has given you broad latitude in determ~ ining the consideration you should require in the ,execution of the i;nstr\lments to effectuate the conveyance. In view of this, I would not be in a position to advise you as to an exact amount, but your latitude is very broad and the amount of consideration could not be questioned unless that latitude and discretion in fixing that figure were abused.

CONTRACTS-Offer and Acceptance Acceptance of low bid by State forms binding contract.

Dr. Claude Purcell

April 8, 1959

This will acknowledge receipt of your letter in which you request niy official opinion with reference to what action may legally be taken by the State Board of Education regarding a bid submitted for demolition work at the Old State Farmers' Market by Mr. Robert P. Matson.
According to your letter, bids for this demolition work were opened on April 13, 1959, and it was found that Matson Construction Company had submitted a bid of $25,000. Mr. Matson was notified that his bid had been accepted, and a contract was sent to him for signature. On May 19, 1959, Mr. Matson appeared before the State Board of Education and requested that he be allowed to withdraw his bid without penalty, claiming that, through error, the cost of demolition had not been deducted from his bid, and also that he had been unable to secure the 100% performance bond.
I further understand that Mr. Matson had presented no claim of mistake to the Department of Education prior to the time that his bid was accepted, and -indeed had made no claim at any time prior to the meeting of the Board of Education.
Although Georgia law has been applied on several occasions to prevent a forfeiture of a bid bond when a contractor has made a unilateral mistake (Cf. Tobey et al. v. Seaboard and Southern Construction Company, Inc. et al., 169 Ga. 104 (1929); State Highway Department of Georgia v. MacDougald Construction Company, 54 Ga. App. 310 (1936); Peerless Casualty Company v. Housing Authority of the City of Hazelhurst, 288 F 2d 376 (C.A. 5th, 1955); Ops. Atty. Gen., 1952-53, p. 15), all of these situations have involved situations where the contractor has attempted to withdraw his bid prior to acceptance. In the situation which you described, there is no doubt that the contractor cannot withdraw his bid. The bid was formally accepted and a contract furnished to Mr. Matson for signature, and no complaint was received by your department until f!ome thirty-six (36) days after the bids were opened.
Although Code Section 37-207 provides that equity may rescind and cancel a contract on the ground of mi5take of fact material to the contract of one party only, "if a party, by reasonable diligence, could have had knowledge of the truth, equity shall not relieve ..." (Code Section 37-211).
Hence, I am of the opinion that Mr. Matson has entered into a binding contract with the Department of Education, and if he fails to perform, the duties imposed upon him, i.e., execution of a formal contract, furnishing of a per-

32
formance bond, and performing the contract according to the specifications, the bond which he has posted with the Department may be forfeited.

CONTRACTS-Signatures Facsimile signatures on contracts.

Honorable Roy F. Chalker

April 16, 1958

Respecting your inquiry regarding the use of facsimile signatures under House Bill No. 642 as applied to contracts, this is to advise you that I have studied House Bill No. 642 and it has no application to contracts or performance bonds, but only to securities and evidences of debt.
Insofar as contracts are concerned, one executed copy constitutes a contract. As many other copies, whether executed or facsimile, may be prepared as may be required for the needs of auditing or administrative agencies.
This is intended to mean that, other than the one executed original, copies of a contract may be prepared in any manner that may be convenient, and in as many copies as may be required, for auditing or record or administrative purposes. The form of duplication as to the copies is quite immaterial. They may be executed copies, photostatic or verifax copies or facsimile copies, as may be most convenient.

CORPORATIONS-Name-Limitations A corporation which is not a regularly chartered bank, cannot use the
word "bank" in its name.

Honorable A. P. Persons

November 7, 1958

This will acknowledge receipt of your letter from the Honorable Sam C. Dettelbach to the Honorable Ben W. Fortson, Secretary of State. The problem raised by Mr. Dettelbach is whether Mr. Fortson should issue to him a Name Certificate for a corporation to be known as "Georgia Bank Investment Corporation".
Of course, your Department has no direct function in the issuance of a Name Certificate; but since the issue of a possible violation of one of the provisions of the Georgia Banking Law has arisen, I am pleased to present the following laws and observations for your consideration.
Code Section 13-204 provides in part: "13-204. No person, firm or voluntary association, or private cor-
poration, other than a regularly chartered and organized bank, shall use the words 'bank', 'banker', 'banking company', 'banking house' or any other similar name indicating that the business done is that of a bank , .."
Code Section 13-9934 provides:

33
"13-9934. Any private person, or the members of any firm or voluntary association engaged in the business of banking who shall violate the provisions of Section 13-204, shall be guilty of a misdemeanor." Under these provisions of the Code, I am of the opinion that the name proposed to be used by Mr. Dettelbach, "Georgia Bank Investment Corporation," may not lawfully be applied to a corporation which is not a regularly chartered and organized bank. Code Section 13-204 expressly prohibits the use of the word "bank". I cannot agree with Mr. Dettelbach's statement that this word is used "only as descriptive of the investment corporation business". The name is of such a character that it may tend to confuse and mislead members of the public as to the nature of the business transacted, and hence would fall under the express prohibition of Section 13-204. With regard to the criminal Code Section cited, Section 13-9934, it is doubtful whether any criminal prosecution would lie for the use of the name by Mr. Dettelbach's corporation. However, this would not forestall the possibility of Mr. Fortson's being enjoined by a bank from issuing a Name Certificate in violation of the provisions of Code Section 13-204.
CORPORATIONS-Charters-Small Business Investment Act of 1958 (Unofficial)
A corporation organized under Chapter 22-18 of Georgia Code would have authority to do all things prescribed of a small business investment company as contemplated by the Small Business Investment Act of 1958.
September 8, 1958
Honorable Elmer E. Cummins
You request an opinion of this office as to whether a company may be chartered under Georgia law for operation in accordance with the Act. Upon a reading of the Act, I find that the operation of a small business investment company as contemplated by the Act is to borrow money from the Federal Government, issuing its debentures in return. It then lends money to small business enterprises. Of course, all phases of the operation are subject to administrative regulations promulgated by the Small Business Administration.
Section 22-1801 of the Georgia Code Annotated provides: "Any three or more persons may obtain a charter for a private cor-
poration, the object of which is pecuniary gain or profit, except for banking, insurance, railroad, trust, canal, navigation, express and telegraph companies, by compliance with the provisions of 22-1802 to 22-1813 inclusive." Code Section 22-1828 provides that every corporation shall have the power to "borrow money .. issue bonds, promissory notes, bills of exchange, debentures, and other obligations . . ." Also, under this Section a corporation has power to "purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of the shares of the capital stock of or any bonds, securities or evidence of indebtedness created by any other corporation or corporations of this State or any other State or government." I believe under these Code Sections that a corporation organized under

34
Chapter 22~18 of the Georgia Code would have authority .to do all the things prescribed of a small business investment company as contemplated by the Small Business Investment Act of 1958. Of course, this statement must be qualified since you have, as yet, issued no regulations concerning the activities of this business, and it is conceivable that what the Small Business Administration will require will be in conflict with some express provision of Georgia h~w.

COUNTIES-Board of Tax Assessors-Members (Unofficial)

Members of County Board of Tax Assessors are ineligible to hold any State, county or municipal .office.

Honorable W. L. Denton

July 1; 1958

This will acknowledge receipt of your letter in which you ask my opinion as to whether a justice of the peace or a notary public is eligible to serve on the County Board of Tax Assessors.
Code Section 92-6907 reads as follows: "92-6907. The members of the board, during the time they hold
their offices and for one year thereafter, shall be ineligible to hold any State, county or municipal office, but they may be reappointed to succeed themselves as members of said board." You will note that this Section states that a member. of the Board sha.ll be ineligible to hold any State, county or municipal office. The Attorney General, in an opinion dated April 6, 1956, to Honorable B. H. Bailey, copy of which is enclosed, stated that a justice of the peace and notary public ex officio justice of the peace are both State officers. I assume that y.ou have reference to a notary public ex officio justice of the peace and not a commercial notary public. In vieW of the above, it is my opinion that a member of the Board of County Tax Assessors is ineligible to hold the office of justice of the peace or the office of notary :rublic ex officio justice of the peace.

COUNTIES-Board of Tax Assessors-Membership (Unofficial)

In counties of less than 25,000 population, the County Commissioner or governing authority may determine the number of members of the Board Tax Assessors, provided ndt less than three nor more than five members.

Honorable S. Thomas Ellis

December 19, 1958

You ask whether a local bill could be passed increasing the member~hip of the County Board of Tax Assessors from three members to five members.

Code Section 92-6903 was amended in 1951, and I believe this .amendment

will be the solution to your problem. It authorizes the county c.ommissioners to

do exactly what you want to do..That section reads as follows:

.

35
"92-6903. There is hereby established in each of the several counties of this State, a county board of tax assessors, which .board shall consist of three members to be appointed by the board of county commissioners or by a majority thereof, or by the ordinary in counties which have no board of county commissioners: Provided, that in all counties of this State which shall have a population of less than 25,000, according to the United States census of 1950 or by any future census of the United States, the boards of tax assessors in those counties shall consist of not less than three nor more than five members, otherwise qualified, the number of members to serve on such boards in said counties to be determined by the county commissioners or other county governing authority. The order making such appointment shall be regularly entered upon the record of the superior court of the county, and a certificate from the clerk of the superior court reciting said order, and that such person has taken the oath required by law, shall constitute the commission of the members and no other or further commission shall be required."

COUNTIES-Commissioners of Roads and Revenue-Authority (Unofficial)

Commissioners have discretion in determining the method of constructing public buildings for counties.

Honorable W. A. McQueen

February 16, 1959

I am pleased to acknowledge your letter relative to the construction and repairing of public buildings of a county, and your attention is called to the provisions of Section 23-1704 of the 1933 Code of Georgia, 1958 Pocket Supplement, and you will note that there is a proviso contained in this Code Section which reads as follows:
"Provided, further, that in any county having a chain gang the county commissioners of such county, or other persons having charge of such works, shall have the power and authority to purchase material for, and use the convicts in, building or repairing any public building, bridge, causeway, or other public works in such county, and in such cases sections 23-1701 to 23-1703 shall not apply. Where such material is purchased and such work done with the convicts, or labor so furnished as aforesaid, the county authorities of such county may use the funds of said county arising from taxes levied for such purposes in purchasing said material and in supporting and maintaining the convicts while said work is being done." In those counties where there is a chain gang the county commissioners have discretion in either letting a contract as provided in Code Section 23-1702 or proceeding to construct themselves under the proviso provision above cited.
Like all construction projects the safest method generally used is by the letting of a contract with a contractor properly bonded with a fixed amount of expenditures for a fixed amount of construction; whereas, under the alternative plan of convict work a county never knows what the construction will cost

36
and when it will be completed. However, this is a matter for the county commissioners to determine for themselves.

COUNTIES-Commissioners of Roads and Revenue-Election (Unofficial)

Election of county commissioners is not affected by Ga. Laws 1956, p. 159, relating to election of members of the General Assembly.

Honorable Cecil Conner

July 9, 1958

This will acknowledge receipt of your letter in which you ask whether an Act relating to election of the members of the General Assembly, (Georgia Laws 1956, page 159), would have any effect on the election of members of the Board of County Commissioners of Charlton County, (Georgia Laws 1927, page 529, Section 17).
Section 17 of the 1927 Act reads in part as follows: "... and that said election shall be made of the primary and general
election every two years when members of the General Assembly are nominated and elected, and those members of said board whose term of office shall expire the following January 1st shall be nominated and elected at the same time and under the same rules and regulations governing the nomination and election of said members of the General Assembly; ... That every two years thereafter, in the primary and general election for a member of the General Assembly of Georgia for Charlton County, successors shall be nominated and elected to the commissioners whose terms of office shall expire on the first day of January following such primary and general election, and such successors shall qualify and take office on January 1st of each year following their election in the manner and at the time aforesaid .. !'
This seems to require that County Commissioners be nominated and elected at the same time as members of the General Assembly from Charlton County are nominated and elected in the primary and general election for members of the General Assembly. The 1956 Act makes no change as to the time when County Commissioners are nominated and elected. In other words, the Commissioners are still nominated and elected at the same time as members of the General Assembly are nominated and elected. However, the 1956 Act does provide that in the event a county primary for members of the General Assembly is held, it must not be held prior to April 15th of any year. Consequently, since the election of County Commissioners, as provided in the local Act, depends upon the time of the nomination and election of members of the General Assembly, it would make it possible for County Commissioners to be nominated in a county primary in the event the County Executive Committee holds a county primary for members of the General Assembly. You know, of course, that prior to the passage of the 1956 Act, members of the General Assembly were required to be nominated in the State primary.

37

COUNTIES-Commissioners of Roads and Revenues (Unofficial)

County Boards of Commissioners must follow recommendations of County Board of Education as to tax levies for support of education.

Honorable R. A. McLindon

July 16, 1959

This will acknowledge receipt of your letter in which you request my opinion as to whether a Board of Commissioners must levy such millage for educational purposes as may be requested to be levied by the County Board of Education.
This question was brought before our Supreme Court in 1947 in case of County Board of Education of Willcox County vs. Board of Commissioners of Roads and Revenues of Wilcox County, 201 Ga. 815. In that case, Justice Head, speaking for a full bench, held that it was mandatory upon the fiscal authorities of a county levying taxes to follow the recommendation of the County Board of Education as to the tax levy to be made for the support of education where such recommendation is within the limits defined by the Constitution. In effect, the action of the County Board of Commissioners is purely ministerial and they have no choice other than to make the tax levy recommended by the County Board of Education.

COUNTIES-Commissioners of Roads and Revenue-Expenses (Unofficial)

Payment of travel allowances to Commissioners would not be legal without further legislation.

Honorable W. M. Dallas

November 26, 1958

This will acknowledge receipt of your letter in which you state that the Grand Jury of Upson County recommended that a travel allowance of $30.00 per month be paid the Chairman of the Board of County Commissioners, and $15.00 per month be paid to the other members of the Board. You request my opinion as to whether the payment of such an allowance would be legal.
Compensation of county officials must be provided for by law (See Houlihan v. Saussy, 206 Ga. 1). One point of view, however, does not consider a travel allowance as compensation; while another considers it as compensation if it is for a specific sum, such as is contemplated by the Grand Jury. It might be possible that the Commissioners be reimbursed for actual expenses incurred under the theory that where the law requires a specific duty to be performed and expenses are incurred in the performance of such duty, the political subdivision for which such duties are performed should be held responsible for the payment of expenses. It is my view, however, that it would be advisable to enact a statute at the coming Session of the General Assembly in the event it is desired to pay any type of allowance to the Commissioners other than the compensation referred to in your letter.
In 1920 (Georgia Laws 1920, page 636), an Act relating to the Upson County Commissioners provided that their salaries should be $100.00 per annum, with $3.00 per day for extra services rendered by them. The provision relative to payment for extra services has not been included in any Act since that time in

38
connection with compensation. This leads to the belief that the General Assembly intended that only the amount specifically provided for compensation should be received by the Commissioners.
An Act passed in 1935 (Georgia Laws 1935, page 823), provided a specific salary for the Chairman of the Board, the other members of the Board and the Clerk of the Board. No reference was made to any other allowance. This same Act provided compensation for the County Attorney, but also specifically pro'v.ided that he should receive actual traveling expenses while away from the county on the business of the county. This indicates that the General Assembly wo]Jld have also made reference to expenses for the Commissioners and the Clerk if it had been the intention of the General Assembly to provide such allowances for them. There are many Acts relating to county commissioners .which provide various types of allowances, and this is a further indication that the General Assembly feels that such allowances should be provided for by law. As examples, you might care to examine four such Acts, which may be found in the 1958 Laws. They are as follows: Atkinson County, page 2070; Calhoun County, page 2078; Haralson County, page 2409; and Johnson County, page 2911.
In view of the above, it is my opinion that legislation would be required for the payment of the allowance contemplated by the Grand Jury.

COUNTIES-County Officers-Coroners (Unofficial)

Coroner, being county officer, cannot hold office of Deputy Sheriff, or any other county office, but could hold position as municipal policeman.

Mr. Thomas F. Coody

March 3, 1959

I am pleased to acknowledge your letter and to advise that in the case of Carter v. Neal, 42 Ga. App., p. 88, the Court of Appeals said in construing Section 259 of the Civil Code of 1910, which is now Code Section 89-103:
"(2). Since, under Section 259 of the Civil Code of 1910, '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 heretofore or hereafter made,' and no commissioned officer shall be a 'deputy for any other commissioned officer, except by such special enactment,' a person commissioned as coroner of a county can not afterwards during his term be legally commissioned as a deputy sheriff of the county, in the absence of the authority of a special legislative enactment; ..."
Code Section 89-103 of the Georgia Code 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 the case of McBrien v. Starkweather, 43 Ga. App., p. 818, the Court of Appeals of Georgia held that a constable is not a county officer; and therefore a coroner, as a county officer, was not prohibited from holding the office of constable and coroner at one and the same time.
In the cases of Overton v. Gandy, 170 Ga., p. 562, and Long v. State, 127

Ga., p. 285, the Supreme Court of Georgia held that a Justice bf the Peace isa State officer and not a county officer. Therefore, a. coroner could r:ri.ot hold an office of Justice of the Peace and the office of coroner at one and the same time.
Under the above cited authorities it is clear that a coroner could riot hold the office of deputy sheriff or any other county offiee or deputy to a county officer, but could hold a job as a municipal policeman or as a Notary Public Ex-Officio Justice of the Peace or constable.

COUNTIES-County Officers-Supplies Furnished. (Unofficial)

County officers having offices in courthouse are entitled to have all office supplies and equipment reasonably necessary to maintain office.

Honorable G. E. Brown

January 20, 1958

Your attention is called to the provisions of Section 91-704 of the 1933 Code of Georgia, which provides:
"91-704. (402) Supplies for county offices.-lt shall be the duty of the ordinary or board of county commissioners, or other county authority having management of the revenues of the county, to furnish coal, wood, lights, furniture, stationery, records, and office supplies in general, for the different county offices of the county, at the expense of the county:

Provided, that this section shall apply only to the offices of said officers in the courthouse in said county."

The Court of Appeals of Georgia, in the case of Floyd County v. Graham, 24

Ga. Appeals, p. 294 construes the above quoted section as follows:

,.

"... , we construe this section to mean that a county officer having

an office in the courthouse is entitled to have all office supplies and

equipment reasonably necessary to maintain his office in a modern up-

to-date manner, corresponding with offices of similar character respon-

sible for a like amount of work."

Under the Acts of 1956, p. 2603, is found the following provisions: "The commissioner shall make all purchases for Franklin County."
The proper procedure for a refusal to comply with Section 91-704 would be by the writ of mandamus.

COUNTIES-Fire Districts-Creation (Unofficial)

Districting for fire protection purposes discussed.

Honorable J. Ernest Palmour

' December is, 1959

This is in reply to your letter asking if the Legislature, by a local bill, is authorized to district the territory of any county for fire protection and authorize a tax for providing .and maintaining the protection,. You ask if it is necessary

40
for a local fire district to be set up by constitutional amendment and if there is any conflict in the taxing powers of counties as set out in Section 2-5701 of the Code of Georgia (Article VII, Section IV, paragraph 1 of the Constitution of Georgia of 1945) with the provisions of Section 2-5702 of the Code (Article VII, Section IV, paragraph II).
I am of the opinion that Section 2-5702 authorizes the Legislature, by a local bill to district the territory of a county for fire protection purposes and to authorize such county to levy a tax upon the taxable property within such district for the purpose of providing and maintaining such fire protection, provided the limits or boundaries of such fire protection district are clearly set forth in the local bill. I am of th~ further opinion that there is no conflict between the taxing powers of a county as set forth in Section 2-5701 with the authority contained in Section 2-5702.
While the creation of local fire districts in various counties has heretofore been done by constitutional amendment, I believe that this method has been used in order to enable the local governing authorities of the county to determine and fix the boundaries of the fire protection district.
COUNTIES-Housing Authorities-Members (Unofficial) Chairman of County Housing Authority may not be an officer or em-
ployee of 'County, but may serve as mayor of a municipality. November 13, 1959
Mr. James W. Wallis I am pleased to acknowledge your letter relative to the eligibility of the
Chairman of the Board of Commissioners of the Housing Authority of the County of Douglas after being elected to the office of Mayor of the City of Douglasville.
Code Section 99-1110 of the Annotated Code of Georgia provides: "No commissioner of an authority may be an officer or employee of
the city or county for which the authority is created." The above pertinent portion of said statute is clear in providing that no commissioner of a city housing authority may be a11; officer or employee of the city, and that no commissioner of a county authority may be an officer or an employee of the county. There is nothing in the statute prohibiting the Mayor of the City of Douglasville from remaining as a Member or Chairman of the Board of Commissioners of the Housing Authority of the County of Douglas. He would be ineligible, however, to serve as a Member or as Chairman of the City Housing Authority of the City of Douglasville.
COUNTIES-Property-Disposal (Unofficial) County commissioners authorized to dispose of unserviceable county
property. July 14, 1959
Honorable Harold Hefner I am pleased to acknowledge your letter relative to a county disposing of

41
public property. Section 91-804 of the Code of Georgia, relating to unserviceable public
property provides:
"When any public property shall become unserviceable, it may be sold, or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury."
The book referred to in the above code section is that which is required under section 91-601 of the Code. The "proper authority" referred to in the above quoted code section is set forth in code section 91-805 which provides as follows:
"The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county." In connection with the above two cited code sections I would suggest that you discuss the matter with your county attorney and call to his attention the cases of Dyer et al, Commissioners, vs. Martin et al, 132 Ga., p. 445; Trapnell et al, vs. Candler County et al, 146 Ga., p. 617; Goodin et al, Commissioners, vs. McRae, 163 Ga., p. 293; Hunnicutt vs. City of Atlanta, 104 Ga., p. 2, and Killain vs. Cherokee County, 169 Ga., p. 313.

COURTS-Clerks-Discretion (Unofficial)

Discretion of Superior Court Clerk to approve or disapprove bond and security presented in cases arising under Motor Vehicle Safety Responsibility Act.

Mr. Robert E. Flournoy, Jr.

May 7, 1958

You inquire with regard to the legal responsibility of the Clerk of the Superior Court in cases arising under the Motor Vehicle Safety Responsibility Act (Georgia Laws 1945, p. 276, et seq.), as amended (Georgia Laws 1956, p. 543, et seq.), and in connection with which a bond is made by and accepted from:
"... the person giving proof of his ownership of real property and by one or more individual sureties owning real property within this State and having an equity therein in at least the amount of the bond ..." (Georgia Laws 1956, p. 551.)
The law further provides that: "The bond shall be approved by the Clerk in the same manner as a
supersedeas bond is approved." (Iden.) (Emphasis added.)
Turning to the question of how a supersedeas bond is approved by the Clerk, we find it provided that:
". . . the party shall . . . give bond with good security which bond shall be approved and attested by the clerk. ." (Emphasis added.)
In Harris v. Barfield Music House (147 Ga. 321), the Supreme Court of this State held that:
"The clerk is clothed with a discretion to approve or disapprove

the bond .." It appears quite clea~ to me that the Clerk is required to approve any bond and security accepted in this connection; that he is given discretion to approve or disapprove any such,bond and security and that he is saddled with the responsibility of satisfying himself that the bond and security are good before accepting them. In this connection, he may consider the affidavits of the principal and
sureties and rely upon them or he may. cl:J,e<;k the records, but it remains his
responsibility to "approve and attest" the bond and the taking of the affidavits does not relieve him of his responsibility.

COURTS~Clerks-Fees (UMfficial) Filing fees in Superior Court.

Mr. Otto Roberts

August 17, 1959

I am pleased to reply to your letter relative to the fee bill of clerks of the

superior courts in criminal cases of $4.00 for filing and docketing and entering

on the minutes in each cas~ of each Nolle Prosequi. This fee is provided for in

Section 24-2727 of the 1958 Cumulative Pocket Part of the Annotated Code of

Georgia in the following language:

"Service in docketing and entertaining bills of indictment or present-

ments on minutes in cases of Nolle Prosequi .... $4.00."

A settlement cost in the amount of $9.00 mentioned by you is also set forth

in the above Cited code section in the following language:

.

"Service in cases where the defendant is tried, or pleads guilty, or

there is a settlement ... $9.00."

It appears that a great number of the clerks of the superior courts are

receiving $13.00 for the above two items on the assumption that the above

quoted "or there is a settlement" applies to a Nolle Prosequi.

I do not find any appellate decisions construing the section of the code in

'question, and I :am unable to: give you an official opinion on a mater which does

not come within the jurisdiction of this department. However, it appears that

a large number of clerks are taking the position that they are entitled to $4.00

for filing and docketing of a Nolle Prosequi and $9.00 plus witness cost for

settlement.



COURTS-Clerks_::_Fees (Unofficial)

'

'

Superior Court Clerk fee for copying and recording equity proceedings

and bills of exception.

Honorable J. Morris Trapnell

May 28, 1958

This will acknowledge receipt of your letter in which you request that this office. advise you of the "correct fee for ~opying and recording proceedings in

equity and bill of exceptions sent to the Supreme Court of Georgia, and also to your office."
Cod~ Section 24-2728; as amended by Ga. Laws 1957, p. 320, provides that the Clerk of the. Superior Court in counties of under 65,000 shall be paid a fee as follows:
"For recording proceedings in civil cases, for exemplification of records, recording mortgages, liens, deeds and similar documents, :for recording homestead of personalty, for recording motions, for recording and copying proceedings in equitable proceedings and bill of exceptions to the Supreme Court or Court of Appeals and for recording or copying any instrument of writing not herein specified, per 100 words or fraction thereof, 25 cents." Since Candler County has a population of less than 65,000, you are entitled to this fee of twenty-five cents per one hundred words for copying and recording proceedings in equity and bill of exceptions sent to the Supreme Court of Georgia. However, for transcripts and copies of bill of exceptions in capital felony cases which are sent to the office of the Attorney General, you are not compensated under the above Code Section. By the provisions of Code Section 6-1001, you are required to furnish this office with such copies in all ~apital fe,lony cases. This Section provides "for the copies furnished the Attorney General, the Clerk shall be paid at the rate of 20 cents per 100 words." . The, proyisJons of this Section were not affected by the 1957 amendment to Code Section 24-2728.

COURTS-Clerks-,-Qualifications (Unofficial) Deputy Clerk of Superior Court must be twenty-one years of age.

Honorable William D. Carley

September 2, 1958

This will acknowledge receipt of your letter in which you request information concerning the minimum age requirements for a Deputy Clerk of the Superior Court.
Under Code Section 24-2713, the Clerks of the Superior Courts of the State are given power to appoint a Deputy or Deputies and to require from them .bonds with good security. This Section also provides that the Deputies shall take the same oath as the Clerks do, and that their term of office shal~ be as long as the principal continues in office. I am of .the opinion that this authorization for appointment of Deputies makes a Deputy Clerk a public officer of this State;
. Code. Section 89-101 provides as follows: "89-101. The following persons are held and deemed ineligible to.
hold any civil office, and the existence. of any of the. following states of facts shall be a sufficient reason for vacating any office held by s.l,lch persc;m, but the acts of such person, while :holding a commission, shall be valid as the acts of an officer de facto, viz.:
"1. Persons who are not citizens of this State, and persons under the age of 21 years." Therefore, I am of the opinion that a Deputy Clerk of the Superior Court of this .State must be at least 21 years .of age.

44

COURTS-Constables-Fees (Unofficial)

Constables entitled to fee for each of three advertisements required for sale of personal property.

Honorable Grady B. Gee

September 4, 1958

I am pleased to aeknowledge your letter requesting that I advise you if the item "each advertisement-$1.50" in the fee schedule of constable's fees under Code Section 24-820, means that the constable shall be entitled to receive $1.50 for each .of the three advertisements that is required under section 24-1411 of the Code for the sale of personal property.
Code Section 24-1411 provides: "Levy, in the case of personal property, shall be advertised ten days
before the day of sale, which advertisement shall designate the time and place of sale, giving a reasonable description of the property to be sold, and be posted in three public places in the eounty ..."
Apparently the Appellate Courts have not passed directly upon this particular point; however, it is reasonable to assume that the General Assembly, by using the word "each" before the word "advertisement", intended it to apply to each of the three notices placed in three separate public places in the county. Otherwise, the word "each" would not have been placed before the word "advertisement", which then would have provided for the payment of $1.50 for the court advertisement of the sale.
It would be my unofficial view that by using the word "each'" in the enactment of the item in question, the General Assembly intended that the constable would be entitled to $1.50 for each of the three advertisements, making a total of $4.50 for the advertising of the sale of personal property.

COURTS-Constables-Fees (Unofficial)

Fees for serving criminal warrants.

Honorable Lynward H. Ellis

October 28, 1958

This will acknowledge receipt of your letter in which you ask eertain questions pertaining to the fees for the services of Constables in serving warrants.
You quote from Code Section 24-820 as amended by Georgia Laws 1958, page 195. This Section provides:
"24-820. The following shall be the fees for Constables of the militia districts:
"Serving warrant within the boundaries of his district ------------$8.00 "Serving warrant outside boundaries of his district ------------------$3.00
* * *
"Serving warrants in criminal cases ----------------------------------------------$3.00
* * *"
The particular question that you ask concerning this Code Section is: "What

45
fee is a Co;nstable authorized to charge and collect for serving a criminal warrant by arresting the person named in the warrant as a defendant?"
I am of the opinion that the an~Swer to your question is found in the last provision of Code Section 24-820 quoted above. That is, for serving warrants in criminal cases a Constable is entitled to a fee of $3.00. The first two provisions of the Code Section are applicable only in civil cases. If you will examine Code Section 24-820 as it existed prior to the 1958 Amendment, youi will find that it provided:
"24-820. The following shall be fees for the Constables of the militia distries:
"Serving warrant __________ --------------------- __________ ------------------ - ----------------$1.00
* * *
"Serving warrant within the boundaries of his district ------------$3.00
* * *"
Thus, the only effect of the 1958 Amendment to the point here under discussion was to raise a Constable's fees for serving warrants in civil cases and did not affect the fee- which he could charge for criminals cases.
COURTS-Costs-Clerk and Sheriff (Unofficial)
Clerk and Sheriff costs on bench warrants and cash bonds. October 16, 1959
Mr. H. H. Caldwell
I am pleased to acknowledge your letter relative to sheriffs' and clerks' costs on bench warrants and cash bonds.
Code Section 24-2823 enumerates the fees allowed a sheriff in criminal cases, and you will note therein the item "Execution and returning a bench warrant, $6.00''. You will also note the item "Taking bonds in criminal cases, $4.00". This does not mean that these fees would be the only fees that a sheriff would be entitled to for the reason that he may perform some other service that il! enumerated in the fee schedule, and no two of such sheriff's acts would involve the same amount of work. Therefore, each case must be judged on its own bottom, so to speak, as to what fee is allowable under said fee schedule.
The fees for the clerk of the superior court are set out under, Code Section 24-27 of the Annotated Code of Georgia, and the clerk would be, entitled to such fees as he performs for the items enumerated in said fee schedule, and: likewise, each case must be judged on its own bottom as to services performed therein.
Of course you understand that the question of fees of a local county officer is a local matter, and of which the State Department of Law has no jurisdiction, for the reason that in the event that question arises between county officers and an opinion desired it would come within the jurisdiction of the county attorney, and it would not be proper or appropriate for the State Department of Law '"o interfere or usurp such officer's powers and duties. Therefore, I would suggest that if you or the sheriff desire an official opinion for your guidance it should come from the county attorney since his opinion on any specific case would be binding on a county official.

COURTS...;;,..Costs-Crimirtal Cases (Unofficial)
Costs in criminal cases transferred to another county. June 3'0, 1958
Mrs. Frances R. Birdsong
This will acknowledge receipt of your letter in reply to my previous letter of June 24th concerning the payment of costs in criminal cases transferred to Jones County on a change of Venue.
The Code, Section 27-2806 provides as follows: "When the venue is changed, the whole costs of the case and
expenses of the trial in the county to which it was transferred shall be borne by the county from which the case was removed. The jail fees, if any, of the person to be tried shall be collected and paid by the county treasurer of the county from which the case. was removed, and the mode of collecting and regulating the amount of fees shall be the same as in other like cases. The entire court costf?, including the costs of sheriff, bailiff, clerks, and jurors shall also be paid by the county treasurer of the county from which the case was removed, and shall have the same priority as jail fees, and shall be paid to the county treasurer of the county where the case is tried, after having been paid. by him." Code Section 24-2731 (Supp.), derived from the Act of 1950, page 175, provides as follows:
"All unpaid costs arising from services rendered in felony cases, including transcripts to appellate courts under forma pauperis affidavits,, due clerks of the superior courts in all of the counties of this State in which said clerks are paid on a fee basis shall be paid from county funds after each term of court, by order of the judge approving same, whether the defendant is convicted or acquitted." Und.er the above two sections, it would appear that these costs should be paid out of the general funds of the county. However, so far as I am able to determine, courts have never had occasion to pass on this question and due to the. vagueness of the two statutes, a definitive answer could only come from a decision of the court.
COURTS-Insolvent Costs-County Participation (Unofficial)
Right of counties to participate in insolvent costs discussed. March 3, 1959
Honorable Alfred A. Quillian
You ask my views relative to the case of Randolph County v; Ellis, "130 Ga.,
pages 121 and 124 wherein you state that you are Of the opinion that after reading this case that the county is not entitled to participate in the insolvent costs, but only in the cases wherein a fine is collected. You also state that while the case seems to be right iri point, that you need my counsel in the matter in. view of Code Sections 27-2920 and 27~2922.
Your attention is called to the fl;l.ct that the above cited case was deCided by the Supreme Court on February 8, 1908, and that Sections 27-2920 and :272922

of the Code of Georgia, being codified from the Acts of 1949, pages 1163 through 1172, provide as follows:
"27-2920. Costs and fees in criminaL cases.-In all criminal cases wherein any county pays costs or fees to. any officer of any court, such costs and fees shall thereupon become a claim, as to said costs and fees so pitid, against said fine and forfeiture fund i.n favor of and for the benefit of the county so paying su~h costs :hid f~es. Said claim, for the benefit of said county, shall at all ti~es require and take the same . priority of payment as against said fine and forfeiture fund as though said claim or such costs and fees were still held by said officer receiving ; such payment. Upon payment of such costs or fees, the county shan'' thereon become subrogated to the rights of the officer receiving such payment as to payment out of such fine and forfeiture fund, with all rights to enforce same at any time enjoyed by such officer.
"27-2922. Claimants of interest in fund may proceed by rule and attachment.-At any time, any claimant claiming any interest in the fine and forfeiture fund (inCluding the officer or officers in charge of the roads and revenues of the. county, on behalf of the county, and in the interest of the county in securing all moneys due hereunder.to the general fund of the county for the purpose of paying expenses of the courts, the maintenance and support of prisoners, and the payment to sheriffs and coroners for litigation, and payment of all demands of officers of court as aforesaid) may proceed as now provided by law by rule and attachment against the county treasurer and the presecuting officer."
The Act of 1949. above cited was undoubtedly passed to circumvent the decision in the Randolph County v. Ellis case.

COURTS-Insolvent Costs-Limitations on Claims (Unofficial)

All claims for costs from fine and forfeiture fund are barred seven years after accrue.

Honorable Charles Burgamy

July 23, 1958

I am pleased to acknowledge your letter relative to insolvent costs.

Code Section 27-2915 provides for a limitation of action on claims against

the fine and forfeiture fund of the several counties of the State of Georgia.

Code Section 27-2916 provides that aH costs shall be paidout of said fine and

forfeiture fund within seven (7) years after such cost accrued, or else' the same

shall be barred by limitation and s.hall cease after said seven (7) years to be a ~alid claim against said fine and forfeiture fund or against any holder or C\lSto-

dian thereof.

.



Section 27-1917 provides the only method to extend the limitation. And you will note that this procedure applies only when a claim shall be made and recorded as ordered within the original or first seven (7) year period, in order for said period of limitation to be extended, and of course any claim which was not extended under the provisions of this code section is forever barred.

48
There is no other procedure or method of waiver of the said Statute of Limitations.
Section 27-2921 provides for the payment of surplus funds into the county treasury under the conditions stated therein.
You pose the question as to whether or not County Commissioners would have a right to make a cash settlement and pay off a former officers' claim for fees previously barred by the Statute out of the general fund of the County. It is my unofficial view that this could not be done, as the purpose of the Statute of Limitations was to shut off and forever bar fees for claims except under the provisions set forth under Chapter 27-29 of the Annotated Code of Georgia.

COURTS-Insolvent Costs-Ordinary Court (Unofficial)

Ordinaries authorized to establish an insolvent cost fund for benefit of officers of Court of Ordinary.

Honorable W. M. Redman

August 22, 1958

This will acknowledge receipt of your letter in which you posed the following question:
"When the Ordinary of a county has before him a violator of the traffic rules of the state and he fines him a sum under the cost allowed the sheriff and ordinary, may the Ordinary carry over the balance due on the cost or secure the same out of insolvent cost. In other words can the Ordinary total the number of cases tried during a month and get his and the sheriff's costs out of the total fines for the month?"
Under the provisions of Annotated Code Chapter 92A-5, the Court of Ordinary is given jurisdiction to try traffic offenses in those counties of the State wherein there is no city or county court.
Section 92A-507 provides for the disposition of fines. It reads in part as follows:
"92A-507.... In case a fine is imposed and paid, the officers of the Court (where on fee basis) shall be first paid their costs arising in such case, and after the payment of all costs, the remainder of such fine or fines shall be paid into the County Treasury in the event the case is disposed of by the Court of Ordinary . . ."
Our Supreme Court held that this Section authorized the establishment of an insolvent cost fund for the benefit of the officers of the Court of Ordinary. See Cooper et al. v. Lunsford, Ordinary, 203 Ga. 166 (1947). Hence, in the situation which you posed, the Ordinary and the Sheriff would be entitled to receive their fees in all cases handled by the Court of Ordinary from the insolvent cost fund. I believe that you will find the details of such a fund outlined in Code Chapter 27-29.

49

COURTS-Judges-Compensation (Unofficial) Compensation of Judges by fee basis illegal.

Honorable J. A. Drake

January 5, 1959

This will acknowledge receipt of your letter in which you request my opinion as to whether the Judge of the City Court could be placed on a fee basis.
Although there could be some possible doubt about this situation, it is my view that the Supreme Court of the United States would hold that this could not be done. I base this statement on the case of Tumey v. The State of Ohio, 273 U.S. 510, L. Ed. 749, wherein the Supreme Court of the United States held in a somewhat similar situation that such an occurence would be illegal. However, you might like to examine the case of Wellmake,r v. Terrell, 3 Ga. App. 791, which was decided prior to the United States Supreme Court case cited above. However, the Tumey case made reference to the Wellmaker case and stated it could not go along with such a theory.

COURTS-Judgments-Recording (Unofficial)

Recording of lien creates lien on realty.

March 4, 1959

Your letter reads as follows:

"This clipping is very confusing as to the recording as to the judgment of the court. Does it mean the fi fa is judgment, and which record. The deed issued on Gen'l Ex. Docket. If it means Judgments, who will furnish the clerk with the judgement? Will the persons (J.P.'s), etc. furnish a judgment, or shall recording this fi fa on Deed Book be sufficient and what shall be the fees for the service?" The Act in question may be found in Georgia Laws 1958, Volume I, page 397, and reads as follows:
"Judgments as Liens on Real Estate-How Perfected. No. 379 (Senate Bill No. 215). An Act to provide that no judgment, decree or order of any superior court, county court, city court, justice court, municipal court, or any U.S. court shall in any way affect the title to real property until said judgment, decree or order is recorded in the office of the clerk of the superior court and indexed in the real estate records as herein defined: to provide the effective date of' this Act; to provide that the provisions of this Act shall be in addition to all other recordings now required by law; to repeal conflicting laws; and for other purposes.
"Be it enacted by the General Assembly of Georgia: "Section 1. No judgment, decree or order of any superior court, county court, city court, justice court, municipal court or any United States Court in this State shall in any way affect the title to real property until said judgment, decree or order is recorded in the office of the clerk of the superior court of the county in which such real property is located and an index to such recording is entered in an index to one

5o
or more of the real estate records in the office of such clerk. "Section 2. For the purpose of this Act, the term 'real estate
records' shall include deed books, lis pendens dockets, Federal Tax Lien Docket, and attachment dockets.
"Section 3. For the purpose of this Act, a general execution shall not be construed as ,being a judginentj .decree cor order.
"Section 4. The recording and indexing required by this Act shall be .in. ad.!!ition to and supplemental to itll other recording of judgments, decrees and orders now required by law. ,
"Section 5... This Act sh~ll only apply to judgments, decrees or orders. rendered after the adoption of this Act.
"Section 6. All Jaws and parts of laws .in conflict with this Act are hez:eby repealed,
"Approved March 2.5, 1!:158." : XoJJ:r first q1:1estion: Does it me,an the fi fa is judgment? It seems to me that Section 3 of the Act above quoted answers this. question.
Your next question: If it means judgments, who will furnish the clerk with the judgment? It seems to me that it would be the responsibility of the interested person to see that the same was properly recorded.
Your next question: What are the fees for these services? The duties of the clerk of the superior court are set out in Code Section 24-2714 and 24-2715. Fees for clerks of the superior courts are enumerated under Code Section 24-2727 of the Code of Georgia.

COURTS-'-Ju'ries-City Co~rt (Unofficial)

'

j''

.

.., ,..

'

Reducing number of jurors below twelve in city court.

Honorable James D. 'Maddox

July 21, 1959

Your letter :reads: "Several years ago a local act was passed reducing the number of
jurortJ in the City Court of Floyd County from twelve to six. The $upreme Court later helQ. that bec<tuse of this our Court was not a constitutional one and there was no right of direct appeal. Another change in the Co1:1rt was then made providing for twelve jurors.
"I am writing to inquire if you know. any way that we may provide for trial of .criminal cases with less than twelve jurors and .still retain the status of a constitutional City Court. It would also be d.esirable if civil cases involving less than a specified amount for example $500 be tried with a fewer number than twelv,e jurors."
Article VI, Section XVI, Paragraph I of the Constitution of Georgia provides as follows:
"Paragraph I. Right of trial by jury.-The right of trial by jury, except where it is otherwise provided .in this Constitution, .shall remain inviolate, but the General Assembly may prescribe any number, not less than five, to constitute a trial, or.. traverse jury, except in the superior court."
Georgia Laws 1955, page 3109, repealed an' Act to establish a City Court

of Floyd County, approved September 27, 1883, and established the City 'Court

of Floyd County in and for Floyd County. The caption of this 'Act reads as

follows:

"An Act to repeal an Act entitled 'An Act to establish a City Court

in the County of Floyd.', approved September 27, 1883 (Ga. Laws 1882-

83, p. 535), as amended, to establish the City Court of- Flody County in

and for the County of Floyd, and to define' its jurisdiction and power,

to provide for the election .of the judge, solicitor and other officers and

to define their power and duties, and to fix the term Qf s11ch officers,

and to provide for the election of a judge and the apppintment of other

officers, to fix the compensation of the judge and other officers t,hereof,

to provide for pleadings and practice therein and writs of. error there-

from, and to fix the terms thereof, to provide for jurors therefor, tq

define costs in certain cases, to repeal conflicting laws; and' for other

purposes.''

,

, .,

Section 15 of the Act above referred to reads as follows:

,"Section 15. All cases civil and criminalshaUbe tried by a jury of 12 to be selected in the same manner and with the .same number of strikes as provided for like cases, in the superior com:t, unless both parties shall waive their right to trial by jury, in which case the Judge of the said city court shall have the power and authority to hear and determine without a jury all civil ca11ses of which the court has jurisdiction, and to give judgment and execution therein and to hear and to determine without a jury, all criminal cases of which the said court .has jurisdiction, and to pass sentence thereon."

It is my conclusion that a civil case could not proceed to trial with less than twelve jurors .unless all parties to the case agreed to some. number less than twelve; and it is my opinion that a criminal case in the City Court. of ,Floyd County could not legally proceed to trial with less than twelve jurors unless the accused agreed to some number less than twelve. I would suggest that' in any case trial with less than twelve jurors that the record clearly show in a. civil case that both defendant and plaintiff agreed to such procedure.

COURTS-Juries-Grand Juror Qualifications (Unofficial)

Qualifications of grand jurors enumerated.

Mrs. Gretchen Conduitte

October_ 27, 1959

I am pleased to acknowledge your letter asking that I advise.you as to the
Georgia law relative to the qualifications for grand jurors.
Code Section 59-201 of the 1958 Cumulative Pocket Part of the Annotated Code of Georgia, codified from the Acts of 1887, p. 53; and; amended by the Acts of 1953, November Session, pp. 284, 287, provides the qualifications of grand jurors as follows:
"Qualifications of grand jurors; incompetency df certain public officers to serve.-All citizens of this State, above the -age of 21 yE\ars, being neither idiots, lunatics, nor insane, who have resided in the county

52
for six months preceding the time of serving, and who are the most experienced, intelligent, and upright persons, are qualified and liable to serve as grand jurors, unless exempted by law: Provided, however, that commissioners, tax receivers, tax collectors, members of the county board of education, county school commissioners, ordinaries, and county treasurers shall be incompetent to serve as grand jurors during their respective terms of office."
Section 59-202 of the Annotated Code of Georgia provides: "Number of grand jurors.-A grand jury shall consist of not less
than 18 nor more than 23, persons."
Section 59-203 of the Annotated Code of Georgia provides: "Manner of drawing.-The judges of the superior courts, at the
close of each term, in open court, shall unlock the box, and break the seal, and cause to be drawn from compartment number 'one' not less than 18 nor more than 30 names to serve as grand jurors at the next term of the court; all of which names shall be deposited in compartment number 'two'; and when all the names shall have been drawn out of compartment number 'one', then the drawing shall commence from compartment 'two', and the tickets be returned to number 'one', and so on alternately; and no name so deposited in the box shall, on any pretense whatever, be thrown out of it, or destroyed, except when it shall be satisfactorily shown to the judge that the juror is dead, removed out of the county, or otherwise disqualified by law."
Section 59-204 of the Annotated Code of Georgia provides: "Juries to be drawn for each week.-When the superior court is held
for longer than one week, the presiding judge may draw separate panels of grand jurors for each week, if, in his opinion, the public interests require it."
Section 59-205 of the Annotated Code of Georgia provides: "How drawn in vacation.-Whenever from any cause the judge shall
fail to draw a grand jury as provided in section 59-203, the ordinary of the county in which such failure may have occurred, shall meet at the courthouse at least 20 days previous to the next ensuing term of the court, whether such term is a regular or adjourned term, and then and there draw grand jurors to serve at that term; all of which shall be duly entered by the clerk on the minutes of the court and signed by the ordinary."
Section 59-206 of the Annotated Code of Georgia provides: "Summoning; time and manner.-Within 30 days after the grand
jurors shall have been drawn by a judge of the superior court, and within five days after they may have been drawn by the ordinary and commissioners, as provided in section 59-205, the clerk of the superior court shall issue and deliver to the sheriff, or his deputy, a precept containing the names of the persons drawn as grand jurors; and upon the receipt of the precept, the sheriff or his deputy shall cause the persons whose names are therein written to be served personally, or by leaving the summons at their most notorious places of residence, at least ten days prior to the term of the court the jurors were drawn to attend." Code Section 59-207 of the 1958 Cumulative Pocket Part of the Annotated
Code of Georgia provides:

53
"Tales jurors, when summoned.-When from challenge or from any other cause there shall not be a sufficient number of persons in attendance to complete the panel of jurors, the judge shall draw the tales jurors from the jury boxes of the county and order the sheriff to summon the jurors so drawn; and when the sheriff or his deputy shall be disqualified to summon talesmen they may be summoned by the coroner, or such other person as the judge may appoint."
Section 59-208 of the Annotated Code of Georgia provides: "Appointment of foreman. Oath of the grand jury.-The judge
of the superior court may appoint the foreman of the grand jury or may direct the grand jury to elect its own foreman. The following oath shall be administered to the foreman and each member of all grand juries, viz.: 'You, as foreman of the grand jury for the county of -----, shall diligently inquire and true presentment make of all such matters and things as shall be given you in charge, or shall come to your knowledge, touching the present service; the State's counsel, your fellows', and your own, you shall keep secret, unless called upon to give evidence thereof in some court of law in this State; you shall present no one from envy, hatred, or malice, nor shall you leave any one unpresented from fear, favor, affection, reward, or the hope thereof, but you shall present all things truly, and as they come to your knowledge. So help you God'."
Section 59-209 of the Annotated Code of Georgia provides: "Oath of bailiff to grand jury.-The following oath shall be admin-
istered to all baliffs attending grand juries, to wit: 'You do solemnly swear that you will diligently attend the grand jury during the present term, and carefully deliver to that body all such bills of indictment, or other things, as shall be sent to them by the court, without alteration, and as carefully return all such as shall be sent by that body to the court. So help you God'."
Section 59-210 of the Annotated Code of Georgia provides: "Foreman may administer oath to and examine witnesses.-The
foreman of the grand jury may administer the oath prescribed by law to all witnesses required to testify before such grand jury, and may also examine such witnesses."
Section 59-211 of the Annotated Code of Georgia provides: "Oath of witnesses before grand jury.-The following oath shall be
administered to witnesses before the grand jury: 'The evidence you shall give the grand jury on this bill of indictment (or presentment, as the case may be-here state the case) shall be the truth, the whole truth, and nothing but the truth. So help you God'."
Section 59-212 of the Annotated Code of Georgia provides: "Disqualification of jurors by relationship to party within sixth
degree.-All grand jurors in the courts of this State shall be disqualified to act or serve, in any case or matter, when such juror is related by consanquinity or affinity to any party interested in the result of the case or matter, within the sixth degree, as computed according to the civil law, and relationship more remote shall not be a disqualification."

COURTS-Justice O:f Peace-(Unofficial) 1. A justice court in conduct of civil business must meet monthly at a
fixed time and place. 2. All judgments of justices of the peace rendered in any civil case at
a place other than the regular appointed court site are void.

Honorable John M. Blankenship

January 8, 1958

1 am pleased to acknowledge your letter and to advise that a justice court in th~ conduct of civil business must meet monthly at a fixed time and place. Once the place of holding court has been fixed and advertised as provided by law it .!cannot be changed except in the manner authorized, and then only once in the official term of four years. See code s.ection 24-901 and 24-906. However, there is an exception, where such courts are in an incorporated town or city.
All judgments of justices .of the peace rendered in any civil case at a place other. than at the xegular appointed court site are void. See code section 24-908.
In the case of Reed vs. Thomas and MeNeal, 66 Georgia ~eports at page 995, the Supreme Court of Georgia held that a judgement rendered by a justice of the peace at his home instead of. the regular court room was void.
Intlie case of McDonald, et al ys. Farmers' Supply Company, 143 Georgia ~epor~s at page 552, the Supreme Court of .Georgia held that: a judgment l'endered at any place other than that fixed for holding court is void.
If a person is served in a civil suit to appear at the courthouse on a certain date ~:~nd time, and he appears, and for some reason the court was not held this would not have any bearing on the standing of the case in the court. In such instances. it would be incumbent. upon. the. defendant to inquire as to the date co which such case wail continued by the court. '

COURTS-Justice of Peace (Unofficial) Justice of peace must continue in office until successor qualifies.

Honorable Cy W. Hadden

February 5, 1959

.Iam .pleased to acknowledge your letter relative to your eligibility to "hold

over" as N. P. Ex-Off..J. P. in the 76th District of Jefferson County due to

failure of the recently appointed succe.ssor to qualify for the office.

Your attention is called to the .case of Bates v. Bagby, found in the 123

Georgia Reports at page 727, wherein the Supreme Court of Georgia held:

"A Notary Public and Ex-Officio Justice of the Peace, although

his resignation is tendered to and accepted by the Governor, continues in

'office under the statutes of this State, until his successor is appointed

an<j. qualified."



Th.'e Court cited in this decision Section 89-105 of the Code of Georgia,

which states that:

"All officers of this State must ... discharge the duties of their

office until their successors are commissioned and qualified",

and said that this statute is mandatory, and there are good reasons why it

should be so; among them, the governmental functions should not cease, and

. 55
that the public records of the office should be preserved and handed over to a successor.
Under the above cited authority it is the general rule that a Justice of the Peace continues in office until his successor is appointed and qualified for taking the oath of office.

COURTS-Justice of Peace (Unofficial)

Justice of Peace who issued criminal warrant may, under some circumstances become surety on bond.

Honorable Charles Burgamy

July 31, 1959

I am pleased to acknowledge your letter relative to a justice of the peace who issues a warrant for the arrest of a person and then later signs the bond of said person as surety after the sheriff has made an arrest under said warant.
The issuing of a criminal warrant by a justice of the peace is a judicial act, performed by a judicial officer, and is the beginning of a judicial proceeding, but it is not the act of a court. The court of inquiry does not come into existence until the accused has been "legally arrested and brought before" the magistrate and a court organized for the purpose of examining into the accusation. A justice of the peace can not issue a special warrant, returnable only to himself, but a warrant issued by him must be made returnable before himself or "some other judicial officer." The officer to whom the warrant is delivered for execution with reference to the judicial officer to whom the warrant shall be returned, and the magistrate who issues it can not become a court should the warrant not be returned to him.
The authority of a justice of the peace to hold an inquiry is limited. The court of inquiry does not come within existence until a person is "legally arrested and brought before him". Then, and not until then, does a court of inquiry come into existence. See Ormond vs. Ball, 120 Ga., p. 916.
While your letter does not so state, a justice of the peace may issue a warrant for the arrest of a person, and the, arresting officer having discretion and also required to carry him to the nearest judicial officer, may not bring the person charged with a crime before the justice of the peace who issued the warrant, and I know of no statutory provision which would prevent a justice of the peace as a citizen from signing the bond under such circumstances. While on the other hand, a justice of the peace may issue a warrant, and the arresting officer may, in his discretion, bring the person who is charged with the crime before the justice of the peace who issued the warrant, and in that event the justice of the peace would be authorized to convene a court of inquiry, and after hearing evidence discharge, or bind over such person so charged, and in the event of said person being bound over and the fact being entered in the docket, the court of inquiry ceases to exist, and I know of no statutory provision which would prevent the justice of the peace if he met the qualifications required to sign a bond as surety. Even though it might appear that an officer who acts in the various capacities and a judge of the various courts over which a justice presides at the times provided by law would not be in keeping with the general thought that a judge of a court of record should not subject himself to any acts for which he may be criticized.

56
Section 24-3328 which relates to attorneys or other officers of court, as you know is rule 28 of the superior courts, and applies to attorneys and other officers of the court. A justice of the peace is not an officer of the court since he is the court himself when presiding and is not an officer of the court when he is not presiding; and further, it could not apply for the reason that the court could not punish itself for its own contempt.

COURTS-Justice of Peace (Unofficial)

No general State statute prevents a Justice of the Peace from holding any other position.

Honorable J. W. Laseter, J.P.

December 1, 1959

I am pleased to acknowledge your letter requesting that I advise you if there is any law prohibiting a Justice of the Peace from serving as Recorder of a City Court.
I know of no general State statute which would prevent a Justice of the Peace from holding any other position; however, I would suggest that you read the Act creating the City Court that you have in mind to see if the Act itself prohibits a Justice of the Peace from holding the office of the Judge of the City Court.
You use the words "Recorder of the City Court". It may be that this is an office created by the Act creating the Charter of the City, and if so, this Act should be studied by you.

COURTS-Justice of Peace (Unofficial)

Procedure to dismiss peace warrants.

Honorable Edgar C. Nance

September 5, 1958

I am pleased to acknowledge your letter relative to the right of a Justice of the Peace to dismiss a peace warrant, and inquiry a~ to what procedures are to be taken to dispose of such warrant.
Code Section 76-201 provides: "Upon the information of any person, under oath, that he is in fear
of bodily harm to himself or his family, from another, or to violent injury to his property, any judicial officer authorized to hold a court of inquiry may issue his warrant against such other person, requiring his arrest; and if, upon the return thereof, the court is satisfied, upon hearing the evidence of both parties, that probable cause for such fear exists, he may require the accused to give bond, with good security, to keep the peace as against the person, family, and property of the affiant, and, on failure to give the bond, shall commit him to jail." Code Section 76-101 provides::
"Any judicial officer authorized to hold a court of inquiry may, upon the information of others, under oath, or on his own motion, issue his

57
warrant against any person in the county whose conduct is such as to justify the belief that the safety of any one or more of the citizens of the county, or the peace or the property of the same, is in danger of being injured or disturbed thereby; and upon the return of the warrant, the court in its discretion may require from such person a bond with sureties for his good behavior until the next term of the superior court of the county." You will note under the above cited code section that the Justice of the Peace, in his discretion after hearing the evidence may require a bond of good behavior until the next term of the superior court of the county. Once the bond is given, Code Section 76-204 applies, which provides that the superior court may at any time discharge the bond unless there shall be a motion to extend it, accompanied by evidence to satisfy the court of the necessity of such extension.
Your question relative to cost is controlled by the case of Levar vs. The State, 103 Georgia, page 42, in which the Supreme Court of Georgia held:
"It is not lawful to collect any costs in a peace-warrant case until after the same shall have been returned to and passed upon by the superior court." The Supreme Court in this case further said:
"Looking into the history of the peace-warrant proceeding from its beginning down to the present date, we are unable to reach the conclusion that either the General Assembly or the codifiers have ever contemplated that a peace-warrant shall end with the magistrate's action thereon; and although ... does not expressly so declare, we thing its language necessarily implies that the superior court must take hold of and finally dispose of all peace-warrant cases, and determine upon whom the costs thereof shall fall."

COURTS-Justice of Peace-Costs (Unofficial)

Costs in peace warrant cases are not collectible until case has been passed on by Superior Court.

Honorable C. E. Parrish

October 19, 1959

I am pleased to acknowledge your letter in which you ask the following questions:
1. In a bastardy case where the defendant is requested to give bond for maintenance and refuses and gives an appearance bond, are we entitled to our costs against him?
2. In a peace warrant where bond is given, are' we entitled to cost bill or by insolvent demands on the county?
3. Can the sheriff hold in the latter case until bail is furnished? In answer to your question No. 1, this question has been passed upon by the Supreme Court of Georgia, in the case of Hayden v. The State of Georgia, 40 Georgia Reports, at page 4791 in which this court held:
"A court of inquiry has not a right to give a final judgment against the defendant, for any cost, (except of his own witnesses). If the defen-

5S
dant, is bound over, the cost, except that of his own witnesses, abide the event." In answer to your question No. 2 the Supreme Court of Georgia has answered this question in the case of Levar v. The State, 103 Georgia Reports, at page 42, in which this court held:
"It is unlawful to collect any costs in a peace-warrant case until after the same shall have been returned to and passed upon by the superior court." Code Section 27-421 relating to costs due a justice court as a court of equity provides as follows:
"Duty of justice of the peace and clerk as to costs.-A justice of the peace who commits a prisoner to jail, or binds him for his appearance at the superior or city court to answer to a criminal offense, shall make out a bill of the costs which may have accrued in thei court below, and send it up with the other papers in the case; and the clerk of said court shall tax said costs with the other costs which may have accrued in the case, in the superior or city court, as the case may be; and the sheriff of said county shall collect the costs due the justice and constable, with the other costs in the case, and pay them over to the officers entitled thereto. If the accused shall be discharged for want of sufficient cause of commitment, the justice may, in his discretion, direct the costs to be paid by the prosecutor." Code Sections 27-2906, 27-2911, 27-2912 and 27-2913 provide the procedure for the collection of insolvent costs due officers of the court, and your attention is also called to the provisions of Code Sections 27-2928, 27-2929, 27-2930, 272931 and 27-2932 relating to the procedure for the payment of insolvent costs in cases in which a warrant has been issued and an accusation or an indictment found and a conviction has been had on the same. Code Section 76-201 of the Annotated Code of Georgia answers your question No. 3 in that it provides:
"On failure to give the bond, shall commit him to jail."

COURTS-Justice of Peace-Qualifications (Unofficial)

Qualifications of Justices of Jeace and County Registrars discussed.

Mr. Austin N. Hill

February 16, 1959

I am pleased to acknowledge your letter and to advise that for a person to be eligible for the office of Justice of the Peace, either by election or appointment, he must be qualified to vote for members of the General Assembly in the county in which the district is situated, and he must have lived in the district for the three months preceding the election or appointment, and must not be otherwise disqualified. See Code of Georgia, Annotated, Section 24-402; also, the case of Davis vs. Mercer, 48 Ga. Apps., p. 191, and Overton vs. Gandy, 170 Ga., p. 562, and for general disqualifications see Chapter 89, Ga. Code 1933 Annotated. No other qualifications are required.
Code Section 34-103, relating to county registrars, provides that the Judge

59
of the Superior Court in each county shall appoint quadrennially, upon the recommendation of the Grand Jury of said County, three upright and intelligent citizens of said county as county registrars.
There is not statutory provision calling for either one of the above offices to be held by a freeholder. Section 24-803 of the Georgia Annotated Code provides that the qualifications and eligibility for the office of Constable is the same as that for Justice of the Peace, except that any person may be appointed Constable to fill a vacancy or to accept some emergency who at the time is a resident of the district.

COURTS-Juveline Courts-Probation Unofficial)

Authority of Juvenile Courts to revoke probations.

Mrs. Kay Lee

January 12, 1959

This is to acknowledge receipt of your letter in which you ask for information on the juvenile courts.
You will find enclosed herewith Juvenile Court Act as amended through 1957; also, an amendment approved March 25, 1958, Georgia Laws 1958, page 395, as follows:
"JUVENILE COURT ACT AMENDED. No. 396 (Senate Bill No. 270).
"An Act to amend an Act relating to juvenile courts, approved February 19, 1951 (Ga. L. 1951, p. 291) as amended, particularly by an Act approved March 6, 1956 (Ga. L. 1956, p. 527), so at to authorize a juvenile court judge to place an offender on probation and, upon violation thereof, to prescribe confinement of the offender; to provide for the modification of court orders; to repeal conflicting laws; and for other purposes.
"Be it enacted by the General Assembly of Georgia: "Section 1. An Act relating to Juvenile Courts, approved February 19, 1951 (Ga. L. 1951, p. 291), as amended, particularly by an Act approved March 6, 1956 (Ga. L. 1956, p. 527), is hereby amended by inserting a new section to be numbered 'section 22-A' to read:
" '22-A. Any other provision of this Act to the contrary notwithstanding, the court is authorized to place an offender on probation and, upon the violation of the terms of the provisions by the offender, the court is authorized to order the confinement of the offender under such conditions as court may determine to be in the best interest of the offender and the best interest of the State. The court is authorized to specify the terms of the probation and shall be subject to modification from time to time as the court may consider expedient.'
"Section 2. All laws and parts of laws in conflict with this Act are hereby repealed.
"Approved March 25, 1958."

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COURTS-Notaries Public-(Unofficial)

A person must be a resident of Georgia before being appointed a notary public.

Honorable William J. Neville

October 17 1958

This will acknowledge receipt of your letter in which you request my opinion as to whether there is any statutory requirement to the effect that a person must have been a resident of Georgia for one year befor being eligible for appointment as a notary public.
Section 71-102 of the Annotated Code of Georgia reads as follows: "71-102. A notary must be 18 years old, or an attorney at law;
a citizen of the United States; a resident of Georgia, and a resident of the county from which he is appointed; and of good moral character." You will note that this section states that a person must be a resident of Georgia, but does not specify any particular length of time for such residency. I have been unable to find any statute which requires that a person be a resident of Georgia for one year prior to being appointed as a notary public and consequently, it is my view that if a person is a legal resident of Georgia and meets the other requirements and qualifications, such person may be appointed as a notary public.
Of course, you realize that the question of residence is one which must be determined from the facts and circumstances in each particular case. You will also note that Section 71-101 vests in the clerks of the superior courts power to appoint notaries public.

COURTS-Notaries Public-Appointment

Deputy clerks of the Superior Courts have authority to appoint Notaries Public.

Honorable Ben W. Fortson, Jr.

September 12, 1958

This will acknowledge receipt of your request for my opinion as to whether a Deputy Clerk or any person other than a Clerk of the Superior Court has the authority to appoint Notaries Public and issue commissions to such officers.
Section 71-101 of the Annotated Code of Georgia vests in the Clerks of the Superior Courts the power to appoint Notaries Public. By reading this Code Section alone, it would appear that only the Clerks would be authorized to appoint Notaries Public. However, it is my view that this is not the case.
Section 24-2718 of the Annotated Code reads as follows: "24-2713. They also shall at the same time (except those appointed
by the judges of the superior courts, and those becoming clerk by operation of law) execute bond in the sum of $3,000, with good security, unless changed to a less or greater amount by local Acts. They shall have the power to appoint a deputy or deputies, and may require from them bonds with good security, who shall take the same oath as the

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clerks do before entering upon the discharge of their duties, and whose powers and duties are the same as long as the principal continues in office and not longer, for the faithful performance of which they and their securities are bound." (Emphasis supplied.) You will note that this Section provides that the powers and duties of a Deputy Clerk shall be the same as those of the Clerk. Consequently, I am of the opinion that a Deputy Clerk may appoint a Notary Public in the same manner as the Clerk. I do not believe any other person would have this authority.

COURTS-Ordinaries-Costs (Unofficial)

Costs due ordinaries for conveying or incumbering a year's support. June 26, 1959

Mrs. Louise Wood

I am pleased to acknowledge your letter relative to costs due the ordinary for "conveying or incumbering a year's support".

Code Section 24-1716, which is codified from the Acts of 1950, page 140,

provides the following fees:

Year's Support.

"Whole service (recording excepted) ___

-------------------------------$13.00

Recording proceeding at 20c per 100 words, minimum ________________ 2.00

$15.00"

The above cited provision of the ordinarys' fee schedule is a new schedule

of fees for conveying or incumbering a year's support.

Code Section 113-1031, codified from the Acts of 1937, page 861, and fixed the fee for the ordinary for conveyance or incumbrance at a total cost not to exceed Five Dollars ($5.00).
Your attention is called to the provisions of Section 24-1716 of the Annotated Code of Georgia, which provides the Fifteen Dollar ($15.00) fee, which also provides:
"The schedule of fees here contained shall not be deemed or held to be exhaustive, and the ordinaries of this State shall be entitled to charge and collect any other fees for their services as now provided by law unless the same is in conflict with the provisions hereof". Your particular attention is called to the editorial note of the codifiers of the 1958 Cumulative Pocket Part of the Annotated Code of Georgia, wherein it is stated:
"The amendment of this Section by Acts of 1950, page 140, being later in date, probably supersedes the provisions of Section 113-1031, placing a maximum fee of Five Dollars ($5.00) to the ordinary in case of incumbrance of year's support."
It is my view that the codifiers are correct in this interpretation; i.e., that the fee set forth in Code Section 24-1716, or Fifteen Dollars ($15.00), is the proper fee for an ordinary for conveying or incumbering a year's support and supersedes the old Code Section 113-1031.

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COURTS-Ordinaries-Fees (Unofficial)

Ordinary fees, where found. Mr. L. H. Busha

March 24, 1958

I am pleased to acknowledge your letter and to advise that the fees in general for ordinaries are set forth in Code Section 24-1716 of the 1955 Cumulative Pocket Part of the 1933 Annotated Code of Georgia. Under this code section there are two separate paragraphs-one covering Lunacy trials, and the other, Restoration to Sanity trials. Both of these provisions provide for a $20.00 fee for the whole service in connection with each case. The last Amendment to this Code Section was by the Acts of 1950, page 140, which rescinded the 1939 fee schedule and reenacted this Code Section in lieu thereof.
Section 49-610.7 of the 1955 Cumulative Pocket Part of the 1933 Annotated Code of Georgia was codified from the Acts of 1947, page 1174, and amended by the Acts of 1952, pages 188, 189. This Act provided that the ordinary shall be entitled to a fee of $10.00 for issuing and docketing the commission and for ~he performance of other duties required of the ordinary in Restoration to Sanity trials. This Act also provides that the three Commissioners shall be entitled to a fee of $5.00 each.
Section 49-613 of the 1955 Annotated Code of Georgia, codified from the Acts of 1952, page 224, relating to the expenses of trying a commission of lunacy, and for carrying or conveying such insane person from the county to the Milledgeville State Hospital, provides that the ordinary shall draw his warrant upon the treasury of the county for such sum or sums as shall be actually necessary for such purposes, and that no money shall be drawn from the county treasury for such purposes when the estate of such insane person shall be sufficient to defray such expenses.
Section 49-610.7 provides that the ordinary shall draw his warrant upon the treasury of his county for an amount sufficient to defray the expenses of the Restoration of Sanity proceedings, but provides that when the estate of such person seeking to be restored shall be sufficient to defray such expenses such fees and costs shall be paid by the petitioner, and no money shall be drawn from the county treasury for the purposes as hereinbefore set forth. This Code Section is codified from the Acts of 1947, page 1174; Acts 1952, pages 188,189.
Chapter 23-17 of the Code of Georgia provides how contracts may be entered into by counties for public buildings. The provisions of law provide for letting the contract to the lowest bidder, at public outcry, before the courthouse door, after advertising, as provided in said Act, and further provides that the county authorities shall have the authority to reject any and all bids at said public letting.
In view of the fact that your county has voted a bond issue with certain conditions attached thereto, and not knowing the fiscal condition of the county, and for the further reason that in matters involving the expenditures' or funds for public buildings and works, it would not be appropriate nor proper for the State Department of Law to attempt to advise you in this matter. In order that the county and yourselves should be protected, it is suggested that you ask the county attorney for an official opinion in the premises, and if you do not have a county attorney, one should be engaged for such purposes.

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One cardinal rule that must be kept in mind at all times is that the purpose of competitive bids is to give everyone an equal opportunity, and to eliminate negotiating in the awarding of public works.

COURTS-Ordinaries-Guardians

Sales by guardians under order of Court of Ordinary.

Honorable Roy B. Friedin

August 12, 1958

You ask my opinion as to whether Section 19 of the 1958 Georgia Laws, page 657, changes the hours of sale for a guardian's sale. Section 19 amends Code Section 113-1702 to read as follows:
"113-1702. All public sales made by administrators shall be a public outcry. Beginning at ten o'clock a.m. Eastern Standard Time, or as soon thereafter as practicable, each such sale shall be made following any other sale at public outcry without undue delay. All such sales shall be concluded prior to four o'clock p.m. Eastern Standard Time unless it shall be so advertised. No sales shall be continued from day to day unless so advertised. Good faith is required by the administrator in all cases that the property may be sold in such manner and quantities as shall be deemed most advantageous to the estate."
Code Section 49-203, as amended by Section 5 of Georgia Laws 1958, page 673, reads:
"49-203. By order of the court of ordinary of the county of the guardian's appointment, or in the case of a foreign guardian, the court of ordinary in the county in which all or any part of the property is situated, the real or personal property of a ward, or any part thereof, may be sold, leased, encumbered or exchanged by the guardian upon such terms as the court may order, for the payment of the ward's debts providing for his care, maintenance, support and education of those who are legally dependent upon the ward, or for the purpose of investing the proceeds in other property, when it is deemed in the best interests of the ward to do so."
Code Section 49-204, as amended, provides: "49-204. When a sale, lease, exchange or encumbrance of the ward's
estate, or any part thereof, shall be deemed necessary or in the best interests of the ward, the guardian may file with the ordinary a petition setting forth the facts, terms and reasons for making the proposed sale, lease, exchange or encumbrance. Citation shall be issued thereon and copy of the petition and citation shall be served personally upon the ward, if he is over 14 years of age, and shall be published for four weeks in the newspaper in which the sheriff's advertisements for that county appear. On or after the date appointed in the citation the ordinary may consider the petition, hear evidence thereon, and if the proposed transaction is fair and in the best interests of the ward, he shall issue an appropriate order permitting the sale, lease, exchange or en-

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cumbrance; however, the ordinary, if he deems it advisable, may require any sale of the ward's property, to be held publicly and subject to the confirmation of the court. The provisions hereof are cumulative and not exclusive of other provisions of the law authorizing sales by guardians." (Emphasis Supplied). From the above, I am of the opinion that Section 19 changes the hours of sale for a guardian's sale only in those cases where the guardain's sale is conducted in such manner as to be governed by the law relating to sales by administrators.
I note with interest your reference to the interpretation of law by its draftsman. You cite the case of Georgia Railroad Co. vs. Wright (125 Ga., 611). As Lord Campbell said, in reference to the interpretation by Lord Nottingham, "If Lord Nottingham drew it, he was the less qualified to construe it, the author of an act considering more what he privately intended than the meaning he has expressed." (4 Campbell's Lives of the Chancellors, 228.)

COURTS-Ordinaries-Jurisdiction (Unofficial)

Jurisdiction of ordinary over misdemeanors growing out of operation of motor vehicles is limited to cases occurring outside municipalities, and to cases in which defendant waives, in writing, right to jury trial.

Hon. John W. Harrell

January 21, 1958

Reference is made to your letter regarding the jurisdiction of the Court of ordinary over misdemeanors growing out of the operation of motor vehicles. I suggest that you re-read Section 92A-501 et. seq. of the Georgia Code Annotated. I think that you will find that Courts of Ordinary, Municipal Courts and Police Courts of incorporated towns and cities are given jurisdiction over the type of cases in question. The Ordinary's jurisdiction is limited to cases occurring outside the city limits of incorporated cities, towns and villages, and to cases in which the defendant waives, in writing, his right to jury trial. The jurisdiction of the judges of the Municipal Courts, Police Courts, etc. are limited to those cases arising out of violation inside their respective municipalities. While the jurisdiction of these courts are exclusive, each of the other inside the territorial limits described, this jurisdiction is concurrent of that of the Superior Court of the county involved. As to your question relative to payment of costs, you will find that Section 92A-507 provides in part as follows:
"The defendants who shall plead guilty or who shall be convicted under this Chapter shall be required to serve such sentence in such manner as is now provided for by the law of this State in misdemeanor cases, and in case a fine is imposed and paid, the officers of court (where on fee basis) shall be first paid their costs arising in such case, and after the payment of all costs, the remainder of such fine or fines shall be paid into the county treasury ...". I think that your principal difficulty lies in a misconception that the jurisdiction of the Courts of Ordinary is exclusive in this type of case. It may be
that you are a,lsQ 1J!lder some misimpression with regard to types of cases which

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you may dispose of for you refer to an exception in cases of drunken driving and cases of public drunkenness. Drunken driving, like everything else covered by uniform traffic on highways, is within your jurisdiction but public drunkenness is not.

COURTS-Ordinaries-Jurisdiction (Unofficial)

Ordinaries do not have exclusive jurisdiction to hear applications of guardians to sell property of wards for reinvestment.

Honorable Richard W. Watkins, Jr.

July 7, 1959

I am pleased to acknowledge your letter asking my advice on whether Section 49-203 of the Georgia Code, as amended by the Acts of 1958, pages 673, 677, takes out of the Superior Court jurisdiction to hear applications of guardians for orders authorizing them to sell for reinvestment property of their wards. In other words, you ask if that jurisdiction is now exclusively in the courts of ordinary.
Your attention is called to the case of Turner, Guardian, et al, vs. Prigmore, 202 Georgia, page 377, in which the Supreme Court of Georgia held:
"Court of Equity has jurisdiction, on petition, to which minors are parties, plaintiffs or defendants, to render during term decretal orders authorizing guardians to sell property of their wards for the purpose of reinvestment." Your attention is also called to the case of Moore, Guardian, vs. Pittman, 185 Georgia, page 619, in which the Supreme Court of Georgia held:
"Where application of guardian was to sell land of minors for purposes of reinvestment as well as for maintenance, Superior Court, sitting at term time for purpose of hearing reinvestment part of petition, could determine whole issue under equitable maxim that equity will do complete justice and grant full relief." Your attention is also called to the case of Ethridge vs. Pitts et al, 152 Georgia, page 1, in which the Supreme Court of Georgia held:
"The Court of Equity was not deprived of such jurisdiction by the statutory adoption of the Code of 1863, which declared that: 'All sales of any portion of the property of the ward shall be made under the direction of the ordinary, and under the same rules and restrictions as are prescribed for sales by the administrators of the estates', nor did the incorporation of the same provision of the court of 1868, have such effect."

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COURTS-Ordinary-Jurisdiction (Unofficial)
Court of Ordinary does not have jurisdiction to try offense of operating a boat while under the influence of intoxicants.
July 15, 1958 Honorable Richard W. Watkins, Jr.
This will acknowledge receipt of your letter in which you request that this office render an opinion on whether or not the Court of Ordinary has jurisdiction over the offense of operating a boat while under the influence of intoxicants.
Ga. Laws 1958, page 55 (Ga. Code Annotated, Section 26-7325) provides in part as follows:
"Any person who shall operate a boat upon any public waterway of this State ... while in an intoxicated condition ... shall be guilty of a misdemeanor, and shall be punished as for a misdemeanor." Generally, the Court of Ordinary has no criminal jurisdiction. Its duties are limited to those specified in Code Chapter 24-19 which deals primarily with probate of wills, administration of estates and appointment of guardians. However, Article VI, Section VI, Paragraph II of the Constitution provides in part as follows:
"The Court of Ordinary shall have jurisdiction to issue warrants, try cases and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937 and other traffic laws and in all cases arising under the compulsory school attendance law in all counties of this State in which there is no city or county court, provided that the defendant waives a jury trial." Ga. Laws 1937-38, Extra Session, page 558, provides:
"The Court of Ordinary shall have jurisdiction to issue warrants, try cases and impose sentence thereon in all misdemeanor cases arising under that Act known as the Georgia State Highway Patrol Act of 1937 and other traffic law of this State in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial."
"That from and after the passage of this Act, the jurisdiction of the Courts of Ordinary of municipal courts and police courts of the incorporated towns and cities of this State are hereby enlarged and extended so that said courts acting by and through the judge or presiding officer thereof shall have the right and power to conduct trials, receive pleas of guilty and impose sentences upon defendants violating the penal provisions of the Act approved March 19, 1937, known as the Georgia State Highway Patrol Act or the Act creating a Department ofPublic Safety for Georgia, as found at pages 322-356, inclusive of the published volume of Ga. Laws 1937, and upon defendants violating any and all criminal laws of this State relating to traffic upon the public roads, streest and highways of said State where the penalty for t.he offense does exceed that of the grade of misdemeanor in the manner required by law." Emphasis supplied. I am of the opinion that the above provisions of the Constitution and laws of Georgia confer upon the Court of Ordinary jurisdiction only to try violations of criminal laws relating to traffic "upon the public roads, streets and highways." Hence, I do not believe that your Court has jurisdiction of the offense of operating a motor boat while intoxicated under the provisions of Code Section 26-7325.

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COURTS-Ordinaries-Jurisdiction (Unofficial)

Ordinaries without jurisdiction person charged but not indicted for murder on lunacy warrant.

Honorable William L. Abney

December 30, 1959

I am in receipt of your letter in which you state that there is now being confined in the Walker County Jail a person charged with murder. You state that as yet this person has not been indicted. You ask the question of whether or not you as Ordinary of Walker County, Georgia, have jurisdiction to try this person on a lunacy warrant under Code Section 49-604.
It appears that the case you cited that being McGRIFF v. STATE ex rel. GRAHAM, 135 Georgia, page 261-264, is the only case in Georgia dealing with facts such as those you set forth. It is well established by that case that were the person under indictment you would have no jurisdiction to entertain a lunacy trial under the then commitment statute, Civil Code of 1895, Section 2573.
Our present Statute 49-614 has all of the same pertinent wording, it having been amended in some particulars not connected with jurisdiction.
It would therefore be my opinion in applying our present statute with the old statute and construing it with the principle of the case of McGRIFF v. STATE ex rel. GRAHAM that you would be held to be without jurisdiction.
A person charged with a crime, as in this case a capital felony, is given every opportunity of showing insanity to the same court having jurisdiction of the crime and a writ of prohibition would lie, I believe, against an ordinary attempting to wrest the jurisdiction from that court.

COURTS-Ordinaries-Jurisdiction (Unofficial)

Ordinaries without jurisdiction to try offense of operating motor vehicle with expired license tags.

Honorable Logan Malone

March 16, 1959

This will acknowledge receipt of your letter in which you request that this office advise you if driving with an expired license tag is a criminal offense and whether jurisdiction of such offense is in the Court of the Ordinary in Counties in which there is no City or County Court.
Section 68-9901 of the Code provides as follows: "Any person, firm or corporation owning or operating any motor
vehicle described in Section 68-201 on any public highway or street after March 1st of each year without complying with the provisions of that Section shall be guilty of a misdemeanor." Section 68-201 of the Code is the Section which requires motor vehicles to have license tags, so it is fairly clear that operating a vehicle without a proper license tag is an offense against the laws of Georgia.
With reference to your second question, Section 92A-502 of the Annotated Code provides as follows:

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"The Court of Ordinary shall have jurisdiction to issue warrants, try cases and impose sentence thereon in all misdemeanor cases arising under Chapters 92A-1 through 92A-5 and other traffic laws of the State in all counties of this State in which there is no City or County Court provided the defendant waives a jury trial. Like jurisdiction is also conferred on the judges of the Police Courts in incorporated cities and Municipal Court judges for offenses arising in their respective jurisdiction." I believe that this Section limits the jurisdiction of the Court of Ordinary to cases arising under traffic laws of the State. In my opinion, Code Section 68-9901 is not a traffic law of Georgia, but rather is part of the revenue statutes of the State and hence the Court of Ordinary would have no jurisdiction to try offenses under such Code Section.

COURTS-Ordinaries-Marriage Licenses (Unofficial)

Return of marriage license to parties to license, and possible future effects.

Honorable Eugene Gunby

May 20, 1958

Reference is made to your letter regarding H. B. 863, Act No. 348, approved by the Governor March 25, 1958, authorizing and directing the return of marriage licenses and return thereon to the parties when the same has been recorded by law.
You inquire: (1) How will the ordinary return the license to the parties to a marriage license? (2) In counties where photo copies are not made, will there be proof of marriage if the marriage license itself cannot be found? (3) Is it necssary for the parties requesting the license to identify themselves? (4) If through error or inadvertence the license should be delivered to someone other than the husband or wife or their authorized representative, what would be the responsibility or liability of the ordinary?
The Act does not attempt to provide for the procedure details of its administration nor do other acts dealing with the duties of the Clerk of the Court of Ordinary or the Clerk of Superior Court. Moreover, there is nothing by which legislative intent may be determined. Thus, the Act must be construed and administered in the light of the provisions of other applicable statutes and the established and accredited practices of court clerks throughout the State.
Replying specifically to your first question, when the Clerk of the Court of Ordinary has entered the marriage license and the returns thereon in a suitable book kept in his office for that purpose as provided by Section 241804 (8) of the Georgia Code Annotated, he should return the license and return thereon to the parties to the marriage by maiL Certificates of marriages performed prior to the effective date of the Act could and should be returned upon request in prson or by mail as circumstances dictate.

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As to your second question in counties where photostatic equipment is not available and employed for this purpose, the licenses and returns thereon will be entered in a suitable book kept for that purpose by typewriter or by hand as was the custom in your own office for years prior to your acquisition of photostatic equipment.
Turning to your third question, I would say that since the Ordinary and the Clerk of the Court of Ordinary are liable for any neglect or omission which pretain to ministerial as contrasted with judicial duties (see Jones v. Reed, 58 Ga. App. 72, 77), it is patently incumbent upon him (or them) to require identification before turning over a marriage license to the parties or one purporting to be an authorized representative.
Finally, if, through error or inadvertence, the license should be delivered to someone other than the husband or wife or their authorized representative, the Clerk would be responsible and liable on his bond in the same manner and to the same extent as for any other neglect or omission. In this connection see State of Georgia v. Henderson, 120 Ga. 780; Smith v. Taylor, 56 Ga. 292(2), and Jones v. Reed, supra.
Since, however, a certified transcript of the record maintained as set out above would be available and would be admissible in evidence in lieu of the original, I do not see where the loss of the original through error or inadvertence would constitute any serious loss or give rise to any' considerable liability.

COURTS-Ordinaries-Sanity Hearings Amount of witness fee for sanity hearings conducted by Ordinary.

Mr. Ernest B. Davis

August 6, 1959

I have your inquiry concerning the hazards involved from a legal point of view in the acceptance by doctors employed by the Milledgeville State Hospital of sums usually ranging around ten dollars for the voluntary appearance of the doctor as a witness for a patient at the Hospital who desires to be discharged from the Hospital. I assume that the hearing in such a matter is initiated by a petition to the court of ordinary for a judgment of restoration to sanity under the provisions of Georgia Code Section 49-610.1.
If the docto:r is a member of the commission appointed by the court of ordinary to examine the petitioner, then Georgia Code Section 49-610.7 provides that he shall be paid five dollars ($5.00) for his services. Georgia Code Section 49-610.3 provides that the testimony of any official or employee of the Hospital shall be taken only by deposition. This Section further provides that the o:riginals or copies of the records of such Hospital shall be furnished and copies thereof shall be admissible in the proceedings for this purpose. This statute does not provide for the payment of any fee to the doctor on account of the taking of his deposition. In cases where the doctor is not a membe:r of the commission appointed by the ordinary to examine the petitioner, and he has not made such an examination, about all that he could testify concerning would be what is in the records of the Hospital as to the particular patient. Since the statute requires that these records be furnished, presumably for the information they contain, and no fee is provided for giving such a deposition, it may

70
be urged that it is a part of the duties of the doctor as an official or employee of the Hospital to give such deposition.
At its 1959 session, the General Assembly passed an act (Act No. 24, Ga. Laws 1959, Page 34) which in Section 3 thereof makes it an offense for anyone who is an officer, employee, or agent of the State, or any agency thereof to accept anything of value, in addition to his legally authorized compensation, from any source, as an inducement to perform his duty. Hence, where the doctor is not a member of the commission appointed by the ordinary to examine the patient, in which ca:;:e the statute provides a fee of five, dollars ($5.00), and testifies about the facts disclosed by the Hospital's records concerning the patient, there is some risk that persons inclined to be critical may urge that the doctor's acceptance of any sum is contrary to Section 3 of this Act. Likewise, if the doctor should be a member of the commission appointed by the ordinary to examine the patient, his acceptance of a sum greater than the five dollars ($5.00) provided by statute might involve some risk.
COURTS-Sheriffs-Fees (Unofficial)
Sheriffs entitled to fee for taking custody of persons apprehended by State Patrol and delivered to sheriff.
March 17, 1958 Honorable Robert M. Heard
Reference is made to your letter regarding arresting fees in cases where persons are arrested by the State Patrol for violation of traffic offenses.
Section 92A512 of the Georgia Code Annotated reads in part as follows: "The sheriffs of the several counties of this state are hereby
directed to be entitled to an arresting fee, as now provided by law, in all cases in which a sheriff or his deputy arrests, assists in arresting, or takes custody of any person charged with crime who has been apprehended by the State Patrol and delivered to the sheriff or his lawful deputy. . . ." It obviously is the State Patrolman's duty to deliver the prisoner to ~he sheriff if he chooses to have the prisoner report to the sheriff and the prisoner does so report, he has, in my judgment, been delivered to the sheriff and the sheriff is entitled to his fee. No comment is here made as to whether this is or is not the proper mode to delivering prisoners.
COURTS-Solicitors General-Salary (Unofficial)
Computing of salaries of Solicitors General for purpose of paying into Snlicitors' General Retirement Fund.
November 26, 1958 Honarable W. Glenn Thomas
This will acknowledge receipt of your letters of recent date in which you propound the question as to the amounts received by Solicitors General that may be included in computing the salary of a Solicitor General for the purpose of paying into the Solicitors General Retirement Fund.
An Act approved Mar.ch 17, 1958 (Ga. Laws 1958, p. 163) provides:

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"Section 4a. Any provisiOn of this Act to the contrary nothwithstanding, the words 'salary', 'fees' and 'compensation', as used herein, shall include all emoluments received by a Solicitor General for his services or resulting from the performance of his duties." From the above, I am of the opinion that it was the intent of the General Assembly to include all monies received by a Solicitor General for the performance of his services or resulting from the performance, of his duties, and to include monies received as an expense allowance, payments for services under the Uniform Reciprocal Enforcement of Support Act, and all other monies received in computing the salary of the Solicitor General for the purpose of determining the contribution that a Solicitor General can pay into the Solicitors General Retirement Fund.

COURTS-Superior Courts-Jurisdiction (Unofficial)

Superior Courts have concurrent jurisdiction with all inferior courts over misdemeanors.

Honorable Roy Chapman

September 1, 1959

I am pleased to acknowledge your letter making inquiry as to whether the superior courts have concurrent jurisdiction in cases arising under Section 92A511 of the Code of Georgia Annotated.
The Court of Appeals, in the case of Smith v. The State, 62 Georgia Appeals, page 733, answered your question in the following language:
"1. Superior courts of this State have concurrent jurisdiction with all inferior courts of misdemeanors, as defined in the Code, 24-2615. 'The superior courts have ever in our history been the great reservoir of judicial power-the aula regis, as it were-in which the judicial powers of the State were vested, and however other courts might be erected as a relief to it, to take cognizance of minor matters, the practice has been uniform to retain in this tribunal concurrent, and generally, even supervisory power over them.' Porter v. State, 53 Ga. 236, 239; Shute v. State, 36 Ga. 87; Anthony v. State, 9 Ga. 264; Bell v. State, 41 Ga. 589.
"2. Ga. L. Ex. Sess. 1937-38, pp. 558-562, did not take from the superior courts jurisdiction to try misdemeanor violations of traffic laws, and vest such jurisdiction in courts of ordinary or municipal courts, as the case might be, exclusively as against the superior courts; and a defendant has no right to demand that an indictment returned by a grand jury be abated because he has not first been tried in a court of ordinary.

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CRIMINAL LAW-Arrests-"Hot Pursuit" (Unofficial)

Foreign police officer may follow offender into and arrest same in Georgia if was in "hot pursuit."

Honorable Maston O'Neal

May 4, 1959

This will acknowledge receipt of your letter in which you posed the question where an individual commits a traffic offense in a Florida municipality bordering upon the State of Georgia is there a law that would permit a Florida officer to follow the offender in hot pursuit and make an arrest in the State of Georgia.
As you know, Code Section 27-207 of the 1933 Code of Georgia as Amended states:
"An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committeed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant." This Code Section has been upheld in a number of cases one of which is Waters vs. National Woolen Mills, et al., 142 Georgia Reports, page; 133. Code Section 27-211 of the 1933 Code of Georgia as Amended states as follows:
"A private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony, and the offender is escaping, or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion." You will note in the case of Graham vs. The State, 143 Georgia Reports, page 440, the Supreme Court held on page 441 in headnote 3 (a):
"... it will not be construed as working so radical a change in the
prior law as to authorize a private person to arrest another for a violation of a municipal ordinance committed in his presence, when the act does not constitute a felony or a misdemeanor." Turning to 4 American Jurisprudence, page 35, Section 51, it says:
"A public officer appointed as a conservator of the peace for a particular county or municipality as a general rule has no official power to apprehend offenders beyond the boundaries of the county or district for which he has been appointed. 51 L.R.A., 214. . . . In, some jurisdictions the making of arrests is regulated by statute and even private citizens are not given authority to make arrests without warrant beyond the limits of the county in which they reside, except in cases of fresh pursuit of a fleeing criminal endeavoring to avoid immediate capture in an original arrest, or in cases of immediate pursuit after arrest and escape."
Thus it seems from reading the above material and related material that the officer in your outlined factual case may proceed across the state line in hot pursuit but when he does so he assumes the character of a private individual and he is not clothed with the authority to make arrests for infractions of municipal ordinances.
In response to the second part of your letter relating to the comity of law doctrine it is my opinion that under the facts outlined in your letter it would not be to give the law of Florida any extra territorial operation but that if an

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action is brought in a Superior Court of the State of Georgia for an act committed in the State of Florida, the court of the State of Georgia will apply as a part of its own law the rule of the State of Florida in order to determine whether the act is a tort, etc.

CRIMINAL LAW-Arrests-Outside County (Unofficial)

Authority of County Police to make arrests outside their county discussed.

Honorable Edward B. Liles

March 3, 1959

I am pleased to acknowledge your inquiry as to the authority of County police under Section 23-1403 of the Georgia Code. The specific question being as to whether or not county police under said Section are authorized to go from the county of appointment to another county within the limitsl of the State of Georgia to receive a prisoner who is under arrest and detention and return such prisoner to the county of appointment.
Section 23-1403 of the Code of Georgia provides: "Powers. - Said county police shall each of them have under the
direction and control of the commissioners or ordinaries the same power to make arrests and to execute and return all criminal warrants and processes as sheriffs now have; and shall, under the same directions and authority, have all the powers of sheriffs as peace officers in the county of their election or appointment. (Acts 1914, p. 142.)" You will note that under this code Section county police are empowered t01 make arrests and to execute and return all criminal warrants and processes as sheriffs now have, and also have all the powers of sheriffs as peace offcers in the county of their election or appointment.
Your attention is specifically called to Section 27-209 of the Code of Georgia, which provides:
"(919 P. C.) Officer may make arrest in any county. Duty to carry prisoner to county in which offense committed. - An arresting officer may arrest any person charged with crime, under a warrant issued by a judicial officer, in any county, without regard to the residence of said arresting officer; and it is his duty to carry the, accused, with the warrant under which he was arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of that county.
"The county where the alleged offense is committed shall pay the expenses of the arresting officer in carrying the prisoner to that county; and the officer may hold or imprison the defendant long enough, to enable him to get ready to carry the prisoner off. (Acts 1865-6, pp.38, 39; 1895, p. 34.)" In the case of Coker v. The State, 14 Georgia Appeals, 606, the Court of Appeals held that Section 27-209' was intended to embrace such officers only as are authorized under the State law to execute warrants, and was not intended to embrace such officers as were constituted arresting officers by virtue of the

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laws of a municipality. Therefore, under the above cited Code Section and the ruling of the Court of Appeals, all arresting officers who are authorized by State law to execute warrants for offenses against the State would be authorized to go from the county of appointment to another county within the limits of the State of Georgia to receive a prisoner who is under arrest and detention and return such prisoner to the county of appointment.

CRIMINAL LAW-Arrests-Outside Jurisdiction (Unofficial)

City policemen may not make arrests outside city limits without warrant.

Judge M. W. Hicks

November 3, 1959

This will acknowledge receipt of your letter in which you ask whether city police would be able to apprehend traffic violators outside the jurisdiction of the city.
I believe that your question must be answered in the negative. I presume that you are referring to an arrest without a warrant. This typa of arrest is governed by the provisions of Code Section 27-207 of the 1933 Code of Georgia as amended which reads as follows:
"An arrest for a crime may be made by an officer either, under a warrant or without a warrant if the offense is committed in his presence, or if the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant."
In the case of Mullis vs. The State, 196 Georgia Reports, page 569, presiding Justice Jenkins stated at page 576:
"A police officer of a city in making an arrest for an offense against the State law or for a violation of an ordinance of the municipality committed in the city limits fails within the protection of the Code Section (27-207) first above cited. Thus a city police officer has authority to arrest without a warrant one who violates a State statute in his presence, or to so arrest within the city one who violates a city ordinance in his presence." Emphasis supplied.
I believe that the language of this case would require that any arrest made for violation of a city ordinance would have to be within the corporate limits of the city. This conclusion is supported by implication in the case of Coker vs. The State, 14 Georgia Appeals, page 606, the first headnote of which reads as follows:
"A police officer of a municipality has no authority as such to serve a warrant in a county outside the municipality." It would seem that if a city police officer does not have authority to serve a warrant for a State offense outside the corporate limits of his city, then he would have even less authority to arrest an individual outside the corporate limits of the city.

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CRIMINAL LAW-"Blue Laws" (Unofficial)
Local option to allow motion pictures and athletic events on Sundays. February 20, 1959
Mr. George C. Peacock
In response to your letter requesting a copy of the Georgia Sunday closing ordinance, we quote from the Georgia Code Annotated as follows:
"26-6905. Any person who shall pursue his business or the work of his ordinary calling on the Lord's day, works of necessity or charity only excepted, shall be guilty of a misdemeanor.
"26-6915. Since motion picture theatres are being operated, and athletic events, games and contests are being held, on Sundays in most of the principal towns and cities of the State, it is hereby declared to be the policy of this State that a method should be provided whereby the citizens of any town or county may provide for the operation or prohibit the operation of motion picture theatres, and for holding of athletic events, games and contests, or for prohibiting the same, on Sundays. Nothing in Sections 26-6915 to 26-6920 shall legalize horse or dog racing within the State of Georgia.
"26-6916. It shall be lawful for the operator or operators of any motion picture theatres and for those sponsoring or holding athletic events, games and contests to hold the same on Sunday: Providing, that before such shall be lawful the operator, operators or sponsors shall first obtain a permit from the mayor and council or other governing body of any municipal corporation within which the place( of operation or showing are located; and if such theatre or place of holding such athletic event lies outside of such municipal corporation such permits shall be first obtained from the county commissioner or other governing body of the county in which said theatre or place of holding such games and contests are to take place. In the event Sunday movies are licensed in a community the operator shall show once each month a show on either a religious or educational subject." Of course, the above is not complete as there are provisions for local elections on the last two mentioned Code Sections and there are also other laws relating to specific activities on Sunday. In this connection we refer you to title 26 of the Code of Georgia Annotated.
CRIMINAL LAW-"Blue Laws" (Unofficial)
Retail Food Stores may only sell perishable farm products. June 5, 1958
Mr. Martin Gitlin
In reply to your letter inquiring into the laws of this State regulating (he operation of retail food stores and supermarkets on Sunday, I would like to quote for your information the following Section of the Georgia Code:
"26-6905. Any person who shall pursue his business or the work of

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his ordinary calling on the Lord's day, works of necessity or charity only excepted, shall be guilty of a misdemeanor." The cases decided under this Code Section make it clear that the operation of a retail food store or supermarket as such on Sunday would be in violation of the law. This Code Section was originally adopted by an act of the Governor and Council of His Majesty's Colony of Georgia on March 4, 1762. The statute has been amended several times since its original enactment, but appears now in almost the same language as when it was first adopted. The above statute was somewhat modified in respect to food stuffs and related products by an act of the General Assembly of Georgia approved February 25, 1953 (Ga. Laws 1953, Jan.-Feb. Sess., p. 202), which provides:
"It shall be lawful to sell or offer for sale perishable farm products, growing plants, and perishable seed on Sunday." The latter statute would not permit retail food stores to offer for sale or sell products other than perishable farm products, growing plants and perishable seed on Sunday, but would permit them to open for the purpose of selling the perishable products. Since the violation of Code Section 26-6905 is punishable as a misdemeanor, any offender may be tried either in the superior courts or city courts of this State. ~ have no information available as to the number of cases prosecuted recently in this State for violation of this Section.

CRIMINAL LAW-"Blue Laws"-Exceptions (Unofficial)

Perishable farm products exempted from provision of Sunday sales.

Mr. R. J. Davis

March 10, 1959

Section 26-6905 of the Georgia Code provides: "Any person who shall pursue his business or the work of his ordi-
nary calling on the Lord's Day, works of necessity or charity only excepted, shall be guilty of a misdemeanor." This Code Section comes originally from an Act assented to March 4, 1762. Prince's Digest, Page 886, Section 2 of the Act provided:
"No tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord's Day or any part thereof (works of necessity or! charity only excepted) and that every person being of the age of 15 years or upwards offending in the premises shall for every such offense forfeit the sum of ten (10) shillings. And that no person or persons whatsoever shall publicly cry, show forth, or expose to sell, any wares, merchandises, fruit, herbs, goods or chattels whatsoever upon the Lord's Day, or any part thereof, upon pain that every person so offending shall forfeit the same goods so cried or showed forth, or exposed to sell, or pay ten (10) shillings."
The only exception to this general prohibition is found in a 1953 Act codified as Section 5-613 of our Annotated Code which reads as follows:
"It shall be lawful to sell or offer for sale perishable farm products, growing plants, and perishable seed on Sunday."

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CRIMINAL LAW-Gaming (Unofficial)

Gaming is prohibited under Georgia Law, and Bingo is included within definition of gaming.

Mr. David Green

August 26, 1959

We have your letter stating that the Secretary of State of Georgia has referred you to this office to ascertain whether there is any law relating to legalized games of chance and the playing of Bingo in this State. You further request a copy of such law and the name and address of the Commissioner in charge
thereof.
You have asked in particular about the game of "Bingo." However, what is written here is applicable as well to like games known at "Lotto", "Keno", "Beano", and "Screeno", since their titles may be considered synonymous and all of these games can be defined generally as games of chance played with
numbered cards. Article I, Section II, Paragraph IV, of the Constitution of Georgia of 1945,
codified as Section 2-204 of the Georgia Code Annotated, provides as follows: "Lotteries. All lotteries, and the sale of lottery tickets, are hereby
prohibited; and this prohibition shall be enforced by penal laws." Section 26-6501 of the Georgia Code Annotated, provides:
"Sale, etc., of lottery tickets.-Any person who, either by himself or his agent, shall sell or offer for sale, or procure for or furnish to any person any ticket, number, combination, or chance, or anything representing a chance, in any lottery, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor." Section 26-6502 of the Georgia Code Annotated, provides:
"Carrying on a lottery.-Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." Section 26-6404 of the Georgia Code Annotated, provides:
"Gambling.-Any person who shall play and bet for money or other thing of value, at any game played with cards, dice, or balls; or shall play and bet for money or other thing of value, at any table of whatever name, kind, or description, for gaming; or shall bet at any game of ninepins, or any other number of pins, or at any billiard or pool table, shall be guilty of a misdemeanor. In its decision in the case of Equitable Loan & Security Co., et al v. Waring, et al. 117 Ga. 600, 658, 44 S. E. 320, the Supreme Court of Georgia quotes from three or four dictionaries the definition as given in each of the word "lottery". The one quoted from Bouvier's Law Dictionary is:
"A scheme by which a result is reached by some action or means taken, in which result man's choice or will has no part, and which human reason, forsight, sagacity, or design can not enable him to know or determine, until the same has been accomplished." And Headnote 14 of this same case states:
"In order to constitute a lottery, three ingredients are essentially necessary,-consideration, prizes, and chance."
Referring to Section 26-6502 of the Georgia Code Annotated, the Georgia

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Court of Appeals said: (a) In the case of Goldwire, et al v. The State, 83 Ga. App. 249, at page 252: "This section prohibits the hazarding of money or other valuable thing at lottery or other scheme or device whether it be a raffle, gift enterprise, bolita, slot machine, or by whatever name it may be known; and to keep, maintain, employ, or carry on any such scheme or device for the hazarding of money or other valuable thing is a violation of this section." (Underscoring supplied.) (b) In the case of Lewis v. The State, 55 Ga. App. 159, at page 161: "Any scheme or device operated by a person, by which one participating therein might either lose the money invested or get more than his money's worth, the operator retaining the money so lost, is a scheme or device for the hazarding of money, within the meaning of the Penal Code above quoted".
The decision of the Court of Appeals in this case cited the above quotation from Meyer v. State, 112 Ga. 20, 37 S. E. 96, which case quoted Section 407 of the Penal Code of Georgia of 1895, said Section being identical to subject Section 26-6502 of the Georgia Code Annotated of 1933.
From the above cited code sections and portions of decisions by our appellate courts, it is evident that games of this sort, where wagers are made or money otherwise hazarded on the outcome of the events, are lotteries and are prohibited by Georgia statutes.
CRIMINAL LAW-Identification (Unofficial)
Fingerprinting as a means of identification discussed. January 12, 1959
Lieutenant Barney (B. G.) Ragsdale
This will acknowledge receipt of your letter in which you request information concerning State laws relating to fingerprinting.
I have examined the Code of Georgia, and I can find only two Code Sections pertaining to fingerprinting. One of these is Code Section 92A-302 which requires the Georgia Bureau of Investigation to maintain a file of fingerprints. The other is Code Section 77-512 which requires the State Board of Pardon and Paroles to keep a fingerprint record of any person who is subject to the relief to be granted by the Board. I agree with you that there is. no law presently in Georgia which requires fingerprinting before conviction of any crime.
However, I have noted with interest the recommendations of the Atlanta Citizens Crime Committee and the Executive Committee of the Fulton County Grand Jurors Association calling for the forthcoming Session of the General Assembly to enact a State-wide law requiring fingerprinting of individuals arrested for State crimes.

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CRIMINAL LAW-Larceny (Unofficial)

Punishments for cattle stealing, known as simple larceny.

Sidney Fryer

October 2, 1959

This will acknowledge receipt of your letter in which you request information concerning your sentence.
You state that your timesheet says that you are convicted on simple larceny. You further state that you received a sentence of 4-5 years for stealing a calf.
Section 26-2607 of the Georgia Code reads as follows: "26-2607. Cattle stealing shall be denominated simple larceny, and
be so charged in the indictment, and shall include the theft of any horned animal, and all animals having the hoof cloven, except hogs."

Code Section 26-2609 reads as follows: "26-2609. The stealing of one or more animals falling under the
above description of cattle shall be punished by imprisonment in the penitentiary not less than four nor more than 10 years." I believe that you were misinformed as to maximum punishment which could be imposed for the offense for which you were charged. After our Code details certain types of animals, it states that the larceny o:l; any other animal fit for food, and dogs, shall be guilty of a misdemeanor. However, I would think that the stealing of a calf would definitely fall under the difinition of cattle stealing.

CRIMINAL LAW-Possession Non-Tax Paid Liquor. (Unofficial)
Possession and transportation of non-tax paid liquor is a misdemeanor. June 25, 1959
Major Bankhead Bates
Your letter inquiring as to whether possession and transportation of non-tax paid whiskey is a misdemeanor or felony is answered in Sections 58-1056 and 58-1020 of the 1933 Code of Georgia as Amended. The Sections read as follows:
"58-1056. Possession of unstamped liquor; seizure; punishment.The possession of any distilled spirits or alcohol by any person which does not bear the tax stamps provided for herein shall be unlawful, and such distilled spirits or alcohol shall be subject to seizure by any peace officer, or agent of the Revenue Commissioner, and the offender shall be quilty of a misdemeanor and upon conviction shall be punished as such. (Acts 1937-38. Ex. Sess., pp. 103, 117.)"
"58-1020. Transportation of untaxed liquor except to warehouse a misdemeanor.- It shall constitute a misdemeanor for any private, contract, or common carrier to transport any alcoholic beverages or liquors intended for sale in this State except for delivery to a State warehouse provided for in this section, unless the tax on such alcoholic beverages or liquors has been paid and the evidence thereof attached to the container as provided herein. (Acts 1937-38, Ex., Sess., pp. 103, 108.)"

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CRIMINAL LAW-Representation By Counsel (Unofficial)
Representation of indigent accused by counsel. January 15,-1959
Honorable Jerome F. O'Rourke
Your letter reads: "The Criminal Jurisprudence Committee of the State Bar of Michi-
gan is attempting to determine the feasibility of seeking legislation concerning a Public Defender System or Legal Aid System for indigents accused of crime in the State of Michigan. It would be of considerable help to us in this regard if we were to receive from you whatever experience your State or Counties therein have had with such a system. If neither the Public Defender system nor the legal aid system is used, we would appreciate knowing from you how indigent persons accused of crime are provided with counsel." This State has neither a Public Defender System nor a Legal Aid System for the purpose of representing indigent persons accused of crime. Article I, Section 1, Paragraph 5, of the Constitution of Georgia provides among other things, that every person charged with an offense against the laws of this State shall have the benefit of counsel. A person who is charged with crime in this State, and the court is satisfied that the defendant by reason of his or her poverty is indigent and unable to pay' attorney's fee. for his or her Jefense, it would then be the duty of the judge to appoint a member of the bar to investigate such a defendant. This would be without compensation. However, there is a provision of law where counsel may be paid for his service where the defendant has been charged with a capital felony and is unable to pay counsel. Chapter 27-30 of the Annotated Code of Georgia, Pocket Edition reads as follows:
27-3001. Appointment of Attorneys in capital cases; compensation; expenses; affidavit. - A. Whenever it shall appear to the presiding judge of the superior court that a defendant or defendants, indicted for a capital felony, is or are, because of his or her poverty, indigent and unable to pay an attorney for his or her defense, it shall be the duty of the court to appoint one or more attorneys for said defendant or defendants, and each of said attorneys so appointed shall receive a reasonable sum in compensation for his services in the superior court to be not less than $50 nor more than $150, as determined in the discretion of the court, plus such sums as have been actually and prudently expended or incurred in the necessary preparation and investigation of the case: Provided, however, that the expense shall not exceed $500: Provided, that in any case in which a plea of guilty is entered the court may in its discretion reduce the minimum compensation for services as above set out to a sum of not less than $15.
B. Upon completion of all services by the attorney or attorneys so appointed under this section, the said attorney or attorneys shall submit to the court an affidavit containing an accurate statement of all services rendered and expenses paid or incurred; the court upon examination of said affidavit and approval thereof shall discharge said attorney or attorneys and shall enter an order directing the county treasurer, wherein the defendart or defendants were indicted, to pay to such attorney or attorneys such amount for said compensation and expenses as the court orders. (Acts 1953, Nov. Sess., p. 478.)
27-3002. Appeals in capital felony cases for indigent persons; com-

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pensation and expenses of appointed attorneys; affidavit. - A. In any capital felony case where there is a conviction and the defendant or defendants are desirous of appealing therefrom to the Supreme Court, and it appears to the presiding judge of the superior court that the defendant or defendants, is or are, because of his or their poverty, indigent and unable to obtain an attorney to prosecute his or their appeal, the court:
(a) In those cases, where the defendant or defendants has or have been represented by an attorney or attorneys appointed under section 27-3001, shall authorize the said attorney or attorneys to prosecute said appeal; or
(b) In those cases, where the defendant or defendants has or have not been previously represented by an attorney or attorneys appointed under section 27- 3001, shall appoint an attorney or attorneys to prosecute said appeal.
B. In all cases where an appeal is filed through an attorney or attorneys appointed to prosecute said appeal under this section, the Supreme Court or the Chief or Presiding Justice thereof, shall determine what reasonable compensation, if any, shall be allowed to the attorney or attorneys for services rendered in said case, not to exceed the sum of $250, plus all reasonable and necessary expenses paid or incurred in the prosecution of said appeal: Provided, however, that expenses shall not exceed $500. The court shall certify the amount to the State Auditor, who shall thereupon draw a warrant for such certified amount on the Treasurer of the State in favor of the person to whom such amount is due, and the Treasurer of the State shall thereupon make payment to such person: Provided, that the attorney or attorneys prosecuting said appeal shall file, along with the bill of exceptions in said case, an affidavit, which shall become a part of the record of the said case, and shall contain a statement by said attorney or attorneys that the said appeal is being sought in good faith and upon reasonable grounds, and the court is satisfied that the said appeal was made in good faith and upon reasonable' grounds.
C. The attorney or attorneys so appointed under this section shall also file an affidavit with the court containing a statement of all services rendered and expenses paid or incurred in the prosecution of the said appeal, which shall be examined and approved by the court or the chief or presiding justice thereof prior to its awarding compensation and expenses in said case. (Acts 1953, Nov. Sess., pp. 478, 479.)
27-3003. Affidavit of attorney that he has received no funds from other sources; reimbursement of State or county where such funds received. - Before any attorney or attorneys shall be entitled to such compensation and expenses, as provided for in the foregoing sections, the attorney or attorneys shall also file with the respective court, in which said services were rendered, an affidavit containing a statement that he or they has or have not directly or indirectly received, or entered into a contract to receive any compensation for such services or reimbursement for such expenses from any source. In the event the attorney or attorneys shall receive compensation from any source whatsoever for services rendered or expenses incurred in said case subsequent to receiving compensation from the county or the State under the provisions of

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this Chapter such attorney or attorneys shall reimburse the county or State, or both, either on a pro rata basis or in full for all funds that have been paid to said attorney or attorneys. (Acts 1953, Nov. Sess., pp. 478, 480.)

CRIMINAL LAW-Sentences (Unofficial)

Consecutive sentences are legal in Georgia.

Miss Esther Headrick

September 14, 1959

This will acknowledge receipt of your letter in which you ask whether compiled, cumulative, consecutive and supplementary sentences are legal in Georgia.
Consecutive sentences are legal in Georgia. Section 27-2510 of our Code provides that where a prisoner is convicted on more than one indictment at separate terms of Court, or in different Courts, the sentences imposed shall be served consecutively, the one after the other unless otherwise expressly provided for. Also, under this Section, the rule is that sentences imposed at the same term of Court will be served concurrently unless otherwise provided for. I am not sure what you mean by complied, cumulative and supplementary sentences, so I would hesitate to express any opinion as to their legality in Georgia.

CRIMINAL LAW-Worthless Checks (Unofficial)

Issuance and passage of worthless checks with intent to defraud.

Honorable W. G. Ramsey

July 7, 1958

This will acknowledge receipt of your letter in which you inquire concerning Georgia laws pertaining to the issuing and passing of worthless checks.
The statute pertaining to this subject is Code Section 13-9933 which reads as follows:
"13-9933. Any person who, with intent to defraud, shall make, or draw, or utter, or deliver any check, draft or order for this payment of money upon any bank, or other depository, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer has not sufficient funds in or credit with such bank, or other depository, for the payment of such check, draft or order upon its presentation, shall be guilty of a misdemeanor. The making, drawing, uttering or delivering of such check, draft, or order as aforesaid shall be prima facie evidence of intent to defraud. The word 'credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depository for the payment of such check, draft or order." Another Code Section which may be of interest to you is Section 5-9914 which provides:

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"5-9914. Any person engaged, either on his own account or for others, in the business of buying cotton, corn, rice, crude turpentine, spirits of turpentine, rosin, pitch, tar, cattle, hogs, sheep, goats, horses, pecans, peaches, apples, watermelons, cantaloupes, and mules, or other products or chattels sold by planters and commission merchants on cash sale, who shall buy such articles on sale from a planter or commission merchant for cash, and shall fail or refuse to pay for and shall make way with or dispose of the same before he shall have paid therefor, shall be imprisoned in the penitentiary for not less than one year, nor more than five years."
This office does not directly deal with criminal prosecutions, so I am unable to give you any personal experience with the above Code Section. However, from glancing at cases decided under these sections, it appears that the primary fault with Section 13-9933 is that no conviction may be had thereunder if a check is given in payment of an antecedent or pre-existing debt. In other words, if you bill your customers once a month for all deliveries during the month and a bad check is given in payment, no prosecution may be had under Sections 13-9933.
I am not quite sure of the nature of the business of your Association which is why I have quoted Code Section 5-9914 for your information. If your organization would fall under the definition of a "commission merchant" as in that Code Section, your remedy at criminal law would be much more satisfactory than under Code Section 13-9933.

DOMESTIC RELATIONS-Uniform Support Act (Unofficial) Duty of child to support parents under Uniform Support Act.

Honorable William F. Lindeman

June 19, 1958

This will acknowledge receipt of your letter relative to the use of the word "qualified" in Table V of the 1958 edition of Reciprocal State Legislation to enforce the support of dependents, as it relates to the liability of a child or children to support a needy parent or parents.
Section 2, paragraph 6 of the Uniform Reciprocal Enforcement of Support Act (Ga. Laws 1958, p. 34) provides:
"(6) 'Duty of support' includes any duty of support imposed or imposable by law, or by any court. order, decree or judgment, whether interlocutory or final, whether incidental to a proceeding for divorce, judicial (legal) separation, separate maintenance or otherwise, and without limitation specificially included for the purpose of this Act, the following: . . . .". Section 2, paragraph 7, provides:
"(7) 'Obligor' means any person owning a duty of support." Section 7 of this Act provides:
"Section 7. Remedies of a State or Political Subdivision thereof

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Furnishing Support. Whenever the State or a political subdivision thereof furnishes support to an obligee, it has the same right to invoke the provisions hereof as the obligee to whom the support was furnished for the purpose of securing reimbursement of expenditures so made and of obtaining continuing support.
"Provided, however, that the provisions of this section shall not be invoked unless the court having jurisdiction of the matter shall be satisfied that efforts on the part of said State or political subdivision to secure reimbursements for previous :mpport shall not jeopardize the enforcement of the court's orders for present or future support of "he dependent or dependents involved, and said court shall have the right at any time to enter appropriate orders to carry out the provisions of this section."
Georgia Laws 1951, page 691 (Ga. Code Ann. 99-626) provides: "99-626. If any recipient of old age assistance has any child or
children, who, in accordance with income and resources tables established by the State Department of Public Welfare, are able to support him but who fail to provide such support, the amount granted as assistance to the recipient shall be recoverable from such child or children in a civil action provided that judgment in the trial court is rendered during the lifetime of the recipient. It shall be the duty of the county department to refer to the Director of the State Department, or proper legal authorities, all cases involving children who, although reasonably able to support needy parents receiving old age assistance, are refusing or failing to do so. (Acts 1951, p. 691.)" Georgia Laws 1951, page 691 (Ga. Code Ann. 99-627) provides:
"99-627. From and after the passage of this law [99-626 and 99-627], it shall be the duty of all persons 21 years of age or over, of sufficient income, after reasonably providing for his own immediate family, to provide or assist in providing for the support and maintenance of his or her mother or aged or infirm father, he or she being then and there in destitute or necessitous circumstances. (Acts 1951, p. 691.)" The above cited authority places some limitations and qualifications upon the liability of the child to support a parent or parents. For this reason, the qualification was placed in the notation as to the liability of the child.

DOMESTIC RELATIONS-Wife's Signature (Unofficial)

There is no requirement that the prefix "Mrs." be used by a wife for her legal signature.

Mrs. Mildred M. Harvill

August 19, 1959

As we interpret your letter, you want to know if there is a State law which requires that the prefix "Mrs." be used to make a legal signature.
There is no Georgia statute requiring that this prefix be used in order that a signature be legal. In the case of Guyton v. Young, 84 Ga. App. 155, 65 S.E. 2d 858, the Georgia Court of Appeals held:

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"The prefix 'Mrs.' is not a name but a mere title, and not being used exclusively by married women, raises no presumption in law that the person using it is married at the time. It includes widows and divorcees as well as married women. It indicates that the party using it is a woman who has been manied but leaves it doubtful whether she is married at the time or not.''
And further, it is stated in 65 C.J.S. 5: ". . . the prefixes 'Mr.' and: 'Mrs.' appearing before names of per-
sons are not! themselves names or parts of names, . . . . Such a prefix is a mere title, and is descriptive only of the person referred to.
"The prefix 'Mrs.' may be used to, and usually distinguishes the person referred to as, or designates that she is, a married woman, and it may be used to distinguish a married woman from her husband. However, while it shows that at some time the person referred to has been married, it is not used exclusively by married women; but it is also properly used by widows and divorcees, who constitute such a large class as to preclude a presumption in law that a person referred to as 'Mrs.' is a married woman; and, hence, its use before a name, without more, creates an ambiguity as to whether the person referred to is married or single at the time.'' Since this prefix is not required to be used by law, it would appear that the signature used by an individual is purely a matter of personal preference.

DOMESTIC RELATIONS-Divorce (Unofficial)

Procedure in divorce actions same as ordinary civil actions except judgment cannot be taken by default.

Honorable A. M. Anderson

May 6, 1958

With reference to the effect of the Act of 1958 (Ga. Laws 1958, p. 315), conforming procedure in divorce cases to that, prevailing in ordinary civil cases. I understand that we are all agreed that a judgment by default can not be taken in a divorce case in the sense that proof is dispensed with. The only question at issue relates to whether or not, after the appearance day passes with no defensive pleadings being filed, the plaintiff may not, any time 15 days after the appearance day, establish his case by evidence and take judgment thereon.
Prior to its amendment by the 1958 Act, Code 30-113 read as follows: "No verdict or judgment by default shall be taken in a suit for
divorce, but the allegations in the petition shall be established by evidence before both juries.' As amended, this section now reads:
"Section 30-113. The same rules of pleading and practice applicable to ordinary civil actions, including those laws relating to the appearance day and the trial or 'return' term of cases, shall apply to actions for divorce, actions for alimony, actions for custory of minor children (other than habeas corpus proceedings), and actions for any combina-

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tion of the foregoing; provided however, that no verdict or judgment by default shall be taken in any such case, but the allegations of the petition shall be established by evidence before the judge or jury, as the case may be."
I do not believe that the language added in 1958 relating to "establishing the allegations by evidence before the judge or jury" should be construed as permitting the trial of an uncontested divorce case prior to the regular trial term.
In 1953, Code Section 30-113 as it then existed was construed in Cohen v. Cohen, 209 Ga. 459, 462 (3), where it was said:
"3. It seems very clear to us that the act of 1946, confirming 'rules of procedure and pleading and practice in civil actions,' which was adopted in lieu of Code 110-401 and 110-403 (Ga. L. 1946, pp. 761, 777, 778; Code, Ann. Supp., 110-401), and which provides for a default where the defendant has not answered as required, and permits the plaintiff except in actions for unliquidated damages, to take a verdict or judgment where the case is in default 'as if every item and paragraph of the petition were supported by proper evidence,' is by its terms inapplicable to Code 30-113, which declares that no verdict or judgment by default shall be taken in a suit for divorce, but the allegations of the petition shall be established by evidence. See, in this connection and to the same effect, Davis v. Freeman, 190 Ga. 833 (10 S. E. 2d, 847). 'In a divorce case the legal status of the plaintiff's case, insofar as it concerns the right of plaintiff to a verdict, is the same whether there is an answer filed by the defendant or not. The law requires the introduction of evidence sufficient to sustain the verdict.' Lovelace v. Lovelace, 179 Ga. 822, 825 (177 S. E. 685). Accordingly, no provision has been made in this State by statute or otherwise for a judg ment declaring a divorce suit to be in default as to pleadings, and we therefore hold that the court erred in striking the defendant's defensive pleadings, and in refusing thereafter to allow the defendant to resist fully the application for divorce by cross-examining the plaintiff and by the introduction of evidence or otherwise. The defendant in a divorce suit, like the State, should not be deprived of his or her right to resist fully the grant of a total divorce whether defensive pleadings be filed or not." (emphasis supplied)
Construing the language above with the various sections in Title 110 of the Code, i.e., Sections 110-401, 110-404, and 110-406, it seems to me that a "judgment by default" relates to a judgment taken before the regular trial term where the case is "in default" by virtue of the fact that no defensive pleadings have been filed, and such a judgment is a "judgment by default" irrespective of whether or not under the law it was necessary to adduce evidence, or whether under Code 110-401, all the allegations were taken as true without the necessity of proof.
Code Section 110-401 itself seems to attach this meaning to the word "default", i.e., a case is "in default" merely by reason of the fact that the appearance day has passed with no defensive pleadings having been filed.
On the other hand, Section 30-113, now as always, declares that judgments shall not be taken by default in divorce, etc., cases.
Section 81-1003, as amended (Ga. Laws 1958, pp. 315, 316) declares that all cases generally are triable at the trial or "return" term. It is only when a case is in "default" that a judgment can be taken sooner, and Cohen v. Cohen,

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supra, based on 30-113, which has not been materially changed in this respect, says in effect that a divorce case is never in default.
In other words, the language "no verdict or judgment by default shall be taken, etc.," was held in the Cohen case to be equivalent to saying that "a divorce case shall not be in default." If not in default, the case can not be tried before the trial term, without consent of the parties. This language has not been materially changed in the 1958 amendment. Section 30-113 originally referred to "both juries." As amended, it refers to the "judge or jury, as the case may be." This change is merely in accord with abolition of the two verdict requirement, and Section 30-101 (1957 Supp.), which declares that the judge tries all divorce cases where no issuable defense is filed on or before call of the case for trial, etc.

DOMESTIC RELATIONS-Divorce-Grounds (Unofficial)

Incurable insanity as grounds for divorce.

Honorable J. M. Grubbs, Jr.,

April 2, 1959

I am pleased to acknowledge your letter in which you inquire with reference to the provisions of Georgia Code Section 30-102 (11) covering the ~ubject of incurable insanity being grounds for the granting of a total divorce. This provision is a codification of the Act of 1951, pp. 744, 745. It appears from the information contained in your letter that the insane person in question was committed to the Milledgeville State Hospital in 1950 under Code Section 49-604, and was there only two or three months, after which time she was removed from the Milledgeville Hospital and was placed in a sanitarium in Boston. Since this time she has spent practically all of her time in an institution of one sort or another, but not in a state operated hospital.
It is concluded from your letter that she was not a patient at Milledgeville State Hospital again until in January, 1959, at which time she was sent to the Milledgeville State Hospital a second time. It appears further that she is not at the Milledgeville State Hospital now, but is at the University Hospital in Augusta for anticipated surgery.
It is noted that this patient was first released from the Milledgeville State Hospital in 1950 as "on furlough", as unimproved.
A careful review of the statute, Section 30-102 (11) of the Code of Georgia Annotated, appears to indicate that a specific yardstick is provided under which incurable insanity shall be sufficient to authorize the granting of a total divorce. This yardstick in the exact language of the statute is as follows:
"11. Incurable insanity, but no divorce shall be granted upon this ground unless the insane party shall have been adjudged insane according to the provisions of section 49-604, confined in an institution for the insane for a period of at least three years immediately preceding the commencement of the action, and until the superintendent of the asylum and one competent physician appointed by the court shall, after a thorough examination, make a certified statement under oath that it is their opinion that such person is hopelessly and incurably insane.

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Notice of this action shall be served upon one of the nearest blood relatives or guardian of such insane person and the superintendent of the institution in which he is confined, and such relative or guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the insane person shall not be altered in any way by the granting of the divorce. (Acts 1946, pp.. 90, 91; 1951, pp. 744, 745.)" It appears that the provisions of this Act have not been reviewed by oux appellate courts, but I am very apprehensive that a petitioner for divorce would not be justified in relying upon the above code section as a valid ground for the granting of a divorce.

DOMESTIC RELATIONS-Divorce-Service (Unofficial)

Petition and process served upon a man confined in prison.

Mr. Jack L. Bloom

May 23, 1958

You inquire as to the proper procedure under Georgia law for having the petition and process in a divorce proceeding served upon a man who is now confined in a Georgia prison.
First, it is perhaps wise to direct your attention to the fact that Section 30-107 of the Code of Georgia Annotated, requires that a person seeking a divorce must be a bona fide resident of Georgia for six months before filing the application for divorce. I assume that your client can qualify under this provision.
I direct your attention to the decision of the Georgia Supreme Court in the case of Scott v. Scott, 192 Ga. 370, 15, S. E. 2d 416, 417(3), in which the Court stated that a husband's confinement under penitentiary sentence in another county was not a voluntary change of domicile and proper venue of his wife's subsequent divorce proceeding against him would be the county where he resided before confinement. Section 2-4901 of the Code of Georgia Annotated, which is a part of the Georgia Constitution of 1945, requires that all divorce proceedings be brought in the county of the defendant's residence if a resident of this, State, and if the defendant is not a resident of this State, then in the county of the plaintiff's residence, plaintiff being a resident of Georgia. This is a matter of venue and cannot be waived and no other court has any right to act in the divorce proceeding.
I next direct your attention to Section 81-221 of the Code of Georgia Annotated, which provides that where a suit is filed in any county of this State the sheriff or other appropriate officer of that county may reserve the petition and process in any other county of the State. The Code Sections preceding Section 81-204 provide for ordinary methods of service. The concluding sentence of Section 81-204 states that in all cases not embraced within the foregoing provisions, the Judge may prescribe extraordinary service according to the exigencies of each case. In its decision in the case of White v. Glagow, 193 Ga. 609, 19 S. E. 2d 305, 309, the Georgia Supreme Court stated that the words of Code Section 81-204 "not embraced within the foregoing provisions", properly

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~onstrued; do not refer to Section 81-204 alone but to all the preceding Sections. Some lawyers have thought it sufficient to proceed under Georgia Code
3ection 81-221 to have the sheriff or his deputy of the county where the defeniant resided before his confinement in the penintentiary serve the defendant in whatever county the prison where he is serving may be located without an order of the court directing that such service be made. Other lawyers in Georgia have thought it an advisable precaution to file with their petition for divorce a motion :lirected to the Court setting forth that the defendant is a prisoner confined in a certain county and praying an order directing the sheriff to make appropriate service upon him in the county where the prison is located.

DOMESTIC RELATIONS-Marriage (Unofficial)

Essentials of common-law marriage as recognized in Georgia discussed.

Mr. George A. Fultz

May 13, 1959

This will acknowledge receipt of your letter in which you asked certain questions relating to common-law marriages.
Your first question as to the status of such marriages under Georgia law is answered very pointedly in Allen vs The State, 60 Georgia Appeals, 248 in headnote one when its says:
"This State recognizes common-law marriages." This clearly means that common-law marriages are just as valid as any other marriage.
Your second question; namely, "If they are not legal from their inception would time and circum-
stances ever make them legal; that is, even without a license to wed," can be answered by simply stating that they are legal from their inception provided the essentials of the marriage contract are present; namely, (1) the parties are able to contract, (2) it is an actual contract, and (3) it is consumated according to law. However, should either party be unable to meet any of the prerequisites the marriage would not be legal from its inception. The Supreme Court in Brown vs The State, 208 Ga. Reports, 304, says on page 306:
"While it is the rule that cohabitation, illicit in its inception, will be presumed to have so continued throughout the period of cohabitation, yet if, after the disability of the parties has been removed by lapse of time or otherwise, the cohabitation is continued, and the parties thereafter hold themselves out as man and wife, if the original illegal cohabitation was had in the absence of an attempted ceremonial marriage, a new and valid agreement of marriage will be presumed to have been entered upon, in the absence of anything appearing to the contrary'." As to whether children born of such a union will be called legitimate Section 74-101 of the 1933 Code of Georgia as Amended states:
"74-101. (3012) What children are legitimate; presumption; legitimation by marriage of parents. - All children born in wedlock, or within the usual period of gestation thereafter, are legitimate. The legitimacy of a child thus born may be disputed. Where possibly of access exists,

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except in cases of divorce from bed and board, the strong presumption is in favor of legitimacy, and the proof should be clear to establish the contrary. If pregnancy existed at the time of the marriage, and a divorce is sought and obtained on that ground, the child, though born in wedlock, is not legitimate. The marriage of the mother and reputed father of an illegitimate child, and the recognition of such child as his, shall render the child legitimate; and in such case the child shall immediately take the surname of his father."
Section 74-201 of the 1933 Code of Georgia as amended states: "74-201. (3026) What children are illegitimate. - An illegitimate
child, or bastard, is a child born out of wedlock, and whose parents do not subsequently intermarry, or a child the issue of adulterous intercourse of the wife during wedlock, or a child who is not legitimate within the meaning of section 74-101." From the two Code Sections it is apparent that an issue born of a commonlaw marriage would be legitimate. Your last question; namely,
"Would a common-law wife be compelled to testify against her husband in court," has been answered in the case of Allen vs The State, 60 Georgia Appeals, 248, in headnote five when it says:
"A common-law wife is incompetent to testify against her commonlaw husband, under Code, Section 38-1604."

DOMESTIC RELATIONS-Marriage-Licenses (Unofficial)

Application and issuance of marriage licenses.

Ron. Victor B. Jenkins, Jr.

March 25, 1958

Thank you very much for your letter inquiring with respect to the Georgia marriage laws. Your questions will be dealt with in the numerical order in which they are listed as follows:
1. Georgia Code Section 53-307 makes both parties applicants for the marriage license. The Act of 1927 from which the major part of this code section was taken appears to contemplate that the Ordinary will have both parties before him at the time of making their application, to aid the Ordinary in ascertaining certain facts upon which the validity of the license depends. It would also seem that the Ordinary would have difficulty in complying with Georgia Code Section 53-309 unless both parties gave him the information provided for in the application form.
2. Both Georgia Code Sections 53-204 and 53-207 use the word "parents" when requiring the consent of such persons to the marriage of a female. Hence, this would appear to mean both the father and mother, if living. You will note that there is a difference in the requirements where the parties who apply for the license are under 21 years of age, as provided in Section 53-204, and where there are

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grounds for suspicion that the female is under 18 years, as provided in Section 53-208.
3. Of course, if the Ordinary so desires, he may consult the parents of the male applying for a marriage license that he has reason to believe is under 21 years of age, or the parents of a female he believes to be between 18 and 21 years of age, but he is not obliged to do so if he satisfies himself that they are 21 years of age by receiving their birth certificates or in lieu of such birth certificates, the affidavits of at least two persons showing that both are 21 years of age or over, and if not convinced of the fact, the Ordinary must post the five-day notice unless the parents or guardian of the female appear before him in person and consent to the issuance of the license as provided in Section 53-204, or before the end of the five-day period the Ordinary declares that an emergency or extraordinary circumstances require him to issue the license before the end of such period.
4. I suppose that any Ordinary who issued a marriage license to a female domiciled in another Georgia County would say that she represented herself to be domiciled in his county and he had no knowledge to the contrary. However, it would seem that an Ordinary should exercise reasonable diligence in this respect. I know of no additional penalty provision of this kind in any other Georgia statute.

DOMICILE AND RESIDENCE (Unofficial)

Discussed.

Major Noah C. New

December 4, 1959

You have asked whether it is necessary for you to retain a legal residence in Georgia in order to be a resident of the State. In order to arrive at the answer to your question it is necessary to consider the legal meaning and effect of the words "resident" and "legal resident". Resident means merely one who lives in a particular place; it has no necessary connection with the concept of permanence or intent to remain indefinitely. Legal resident, on the other hand, is synonymous with domiciliary. A domiciliary is one whose permanent home is in a particular place, known as his domicile. Domicile is a broader and more fundamental concept than mere residence. It means one's fixed and permanent home to which, when one is absent therefrom, he always intends to return. One can change residences easily; one may have two or more residences at the same time, but not so with domicile. Every person has but one domicile. In order to change one's domicile it is necessary that he move from his old domicile and become a resident in the proposed new domicile with the intention to remain there permanently or at least indefinitely. One cannot change his domicile by merely assuming residence in a new location without the intention to remain there; physical presence in the new location must coexist with the requisite intention to remain there. Until a new domicile is acquired, one retains his old domicile.

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As applied to your situation, it appears that you were domiciled in Georgia in 1943. If at the time you left the State in 1943 you did not move to another state with the intention to remain there permanently but with the intention to return to Georgia, and if you have always considered Georgia to be your state of domicile and have done nothing which would manifest an intention that some other state become your domicile, then Georgia remains your domicile today. Even if you should have acquired a new domicile after your departure in 1943, if you resumed your Georgia domicile when you lived in Douglasville in 1949 and have not since then changed it, then your domicile remains in Georgia. Further in this regard, it is most important to note that members of the armed forces never lose their domicile merely by joining the service, and in response to military orders, moving about from state to state or abroad. They retain the domicile they held at the time they entered the service, unless they indicate that it is their intention to remove their domicile to some other state in which they are residing. In any event, you are a legal resident of Georgia unless you have manifested an intention to remove your legal residence to another state in which you were living at the time you formed or manifested such intention. From the tone of your letter I assume that you have maintained a fixed intention to retain your legal residence in Georgia and have acted accordingly. If that is the case, then you are a legal resident of this State at the present time.
One's status as a legal resident is not dependent upon his actual residence in the state. Although under ordinary circumstances a long absence from the state might constitute an indication of intention to abandon one's domicile, no such inference can be made in the case of one in the military service whose actual residence is necessarily dictated by military orders. Further, the fact that one is a legal resident of Georgia does not, of itself, render one an actual resident of the State. One can only be an actual resident by living in the state. Since residence is not dependent upon legal residence, but is based upon actual resi-. dence in the state, it is clear that the answer to the question you posed is, of necessity, no. Your retention of legal residence in Georgia is independent of the fact that your actual residence is out of the State. Your status as a legal resident cannot render you an actual resident in the absence of actual residence.
Let me point out that the word resident is frequently loosely used to mean legal resident, even in constitutional provisions and statutes, and considerable confusion results. Therefore, it is necessary in every given situation to ascertain whether the constitutional provision or statute which is involved uses the term in the sense of actual resident or legal resident. Each case, then, stands on its own feet.

DOMICILE AND RESIDENCE- (Unofficial)

Discussed.

Honorable J. Taylor Phillips

October 28, 1959

I am pleased to reply to your letter and to advise that the problem that you have is one that has given the appellate courts of this Stat~ considerable con-
cern as to laying down any firm and fixed rule except that each case must be

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judged on its own set of facts for the reason that the question of a domicile or legal residence is one which necessarily involves the intent of the individual in each set of facts.
The following cases may be of help to you in solving your problem. In the case of Bush v. The State, 10 Georgia Appeals, at page 544, th~ court held:
"The removal of an officer from the county for which he was elected or appointed, to another county in this State, does not vacate the office, until the fact has been judicially ascertained."
The court said in this case: "However, loss of citizenship does not result from a change of resi.:.
dence not intended to be permanent."
The court also held: "There must be either the tacit or the explicit intention to change
one's domicile before there is a change of legal residence."
The court also said: "While it is provided in the Civil Code that the domicile of a
married man shall be the place where his family resides, the wife or the wife and family may, for purposes of temporary convenience..... or for the purpose of educating the children, reside for a long time at a place not intended as a permanent abode, without effecting any change of legal residence; this for the reason that while there is a physical removal, there was never, on the part of those who moved, an intention to abandon a former domicile." In the case of Knight v. Bond & Brother, 112 Ga. at page 828, the Supreme
Court of Georgia said. "Temporary residence of a person with his family in another county
while he was performing a contract in that county does not result in change of domicile." In the case of Alvaton Mercantile Company v. Caldwell, 34 Georgia Appeals at page 151, the court held:
"Removal to another county and there rent house would not constitute change in domicile where removal was for purpose of educating children, former home was maintained, incidence of citizenship there discharged, and there was at no time intent provided to fix place of abode in place of removal, or to there establish permanent residence."
Also in this connection see Hardeman v. Hardeman, 179 Ga., p. 34; Worsham v. Ligon, 144 Ga., p. 707; Stanfield, guardian v. Hursey, 36 Ga. Ap., p. 394; Commercial Bank v. Pharr, 73 Ga. Ap. p. 364; Patterson v. Patterson, 208 Ga., pp. 7, 13; Farlow v. Augusta Naval Stores, 124 Ga., p. 261; :Mayo v. Ivan Allen Company, 51 Ga. Ap., p. 250; and Avery v. Bower, 176 Ga., pp. 202, 204. Code Section 79-201 defines who are citizens; also, see Code Section 2-125, which is paragraph 25 of Section I of Article I of the 1945 Constitution of Georgia.
From all of the facts set out in your letter, it would appear that should any dispute arise as to the legal residence of Mr. X that a question of fact would arise, and that his position could be substantiated by the fact that he owned a home, a farm, registered and voted, returned on visits from the other county, and while school was not in session came back to live during the off-season, pur:.. chased automobile license, and coupled with his retaining his legal residence in county A., that his position would prevail over anything contrary that he had

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abandoned his legal residence and citizenship. The question of citizenship is subsidiary to the legal residence of the person involved, for once a citizenand there could be no doubt that he was-his citizenship would remain with him, unless he was deprived of the same by the statutory provisions relative to the laws of citizenship, as long as he retained his legal residence where he intended it to be.

EDUCATION-County Board

Commissioners of Roads and Revenues have no supervisory authority or power over either county boards of education or superintendents of schools.

Honorable M. D. Collins

February 27, 1958

In reference to your letter concerning several local questions raised by the School Superintendent of Jeff Davis County, I would prefer that the specific answers to such local legislation be made by the local county attorney.
As to the broad question respecting the relationship between the Commissioners of Roads and Revenues and the county board of education, let me say that these two governmental bodies are completely separate. The Commissioners of Roads and Revenues have no supervisory authority or power over either the county board of education or the county superintendent of schools. The county board of education is a political subdivision of the State and serves as the agency through which the county acts in school matters. Board of Education v. So. Mich. Bank, 184 Ga. 641, 642. The Constitution of Georgia (Ga. Code Ann., 2-6801) places the control and management of the county schools under the county board of education. In construing and administering school laws, these boards are given wide discretionary powers. Boney v. Board of Education, 203 Ga. 152; Downer v. Stevens, 194 Ga. 598; Keever v. Board of Education of Gwinnett Co., 188 Ga. 299.

EDUCATION-County Board-Authority (Unofficial)

A county board of education has authority to subdivide county into schoolhouse districts and call elections for bonds to build school houses within those schoolhouse districts.

Mr. Roy P. Otwell,

June 25, 1958

I am pleased to acknowledge your letter concerning the question of whether

or not a county board of education may be permitted to call a bond election in

any one district of its county for the purpose of building a school building or

educational facility within that district.



Ga. Code Ann., 32-1101 provides that pursuant to the Constitution of 1945, each county shall cqmpose one school district, exclusive of any independent school

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system now in existence in a county. Ga. Code Ann., 32-i403.1 authorizes the division of a county into local "shoolhouse districts" for the purpose of issuing bonds to build schoolhouses, etc. It provides as follows:
"Whenever the county board of education of any county of this State deems it necessary for the purpose of securing proper school sites and buildings and to the best interest of education in the county, the county board of education shall have the power and authority to divide all of the territory of the county outside of independent school systems established prior to the adoption of the 1945 Constitution, into local subdivisions to be known as local schoolhouse districts. Whenever the county board of education divides the county into local subdivisions the entire county shall be so divided into separate subdivisions. The local subdivisions so set up and established shall be clearly and positively defined by the resolution passed by the board establishing such subdivisions. The same shall be marked off in the manner which the board deems to be most advantageous to the school interest of the county, providing that local school districts which were established prior to the 1945 Constitution may be reestablished: Provided, however, that local school districts which were set up, defined and established within a county prior to the adoption of the Constitution of the State of Georgia of 1945 may be reestablished and redefined without change, alteration or enlargement. The county board of education shall act as officers of such local subdivisio, and as such are hereby authorized to incur bonded indebtedness :for the purpose of purchasing school sites and for building and equipping, enlarging and repairing schoolhouses, to include building and equipping, enlarging and repairing lunch room, vocational and physical education buildings and facilities, in and for such local subdivisions. The bonded indebtedness which the county board of education is hereby authorized to incur shall be incurred pursuant to Art. VII, Sec. VII, Paragraphs 1 and II of the Constitution of 1945 [ 2-6001, 2-6002]. An election :for bonds for such local subdivisions shall be called and held in the manner prescribed by Chapter 87-2, as amended, and the bonds shall be validated in the manner prescribed by Chapter 87-3, as amended. The purpose of this section is to permit and to require the same procedure to be followed in the voting, issuance, levying of taxes for, and the retirement of bonds issued by the county boards of education for local subdivisions herein established, for building and equipping, enlarging and repairing schoolhouses, to include building and equipping, enlarging and repairing lunch room, vocational and physical education buildings and facilities, or purchasing sites therefor, as is required in the case of municipalities and other county bonds: Provided, however, that where the county board of education divides the county into subdivisions and seeks to issue bonds for any one of the local subdivisions, persons residing outside of the local subdivisions may not participate as qualified voters in said election. Should the election held in a local subdivision result favorable to the issuance of bonds for such local subdivision, the property located within such local subdivision as marked off and established by the county board of education shall be subject to taxation for the retirement of bonds issued by the county board of education for such local subdivision. The property located outside of such subdivision shall not be subject to taxation for the retirement of any bonds issued for the local subdivision."

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Ga. Code Ann., 32-1403.2 provides as follows: "It is not intended that section 32-1403.1 shall in any way interfere
with the county board of education issuing bonds on a county-wide basis as provided for in section 32-1403. The purpose of section 32-1403.1 is to give to the county board of education additional powers so that the county board of education may provide adequate school sites, buildings and equipment in counties, and under circumstances where county-wide bond issues for securing school sites, buildings and equipping schoolhouses prove inadequate and inequitable because of prior existing bonded indebtedness of local dstricts or otherwise."

EDUCATION-County Board-Authority (Unofficial)

A county board of education may require vaccination against small pox and poliomyelitis.

Honorable W. N. McKeever

September 16, 1959

This will acknowledge receipt of your letter in which you request information concerning Georgia laws providing for compulsory inoculation of school children.
Our law is phrased so that the Board of Education of each county is given authority to require vaccination against smallpox and poliomyelitis. For your information, this law is found as Section 32-911 of the Georgia Code Annotated, which reads as follows:
"32-911. The Board of Education of each county may make such regulations as in their judgment shall seem requisite to insure the vaccination of pupils in their respective schools against smallpox and poliomyelitis, and may require all scholars or pupils to be so vaccinated as a prerequisite to admission to their respective schools.
"This section shall not apply to scholars or pupils whose parent or guardian shall in writing object thereto on grounds that such requirements are not in accordance with the teachings of a recognized religious organization of which he or she is an adherent.
"This section also shall not apply to scholars or pupils whose parent or gardian shall present to said board the written statement of a practicing physician that the scholar or pupil should be exempt for reasons of health or because of previous adverse reaction to vaccination."

9.7

EDUCATION-County Board-Authority (Unofficial)
County Board of Education's authority to make temporary loans to finance operation of public schools discussed.

Honorable Claude Purcell

July 21, 1958

I am pleased to acknowledge your request concerning the authority of a

county board of education to make temporary loans for the purpose of financing

the operation of the public schools of said county.



The specific statutory provisions authorizing a county board of education to borrow money is found in Ga. Code Ann. Chap. 32-9. These laws are derived from the School Code of 1919. In 1949, the General Assembly passed a resolution proposing to amend the constitutional provision on "Temporary Loans" so as to expressly include county boards of education. The original provis1on included cities, counties, and political subdivisions (Ga. Laws 1949, p. 2112). The amendment was ratified on November 7, 1950. The Constitution, as amended (Ga. Code Ann., 2-6004 Supp.), provides as follows:

"In addition to the obligations hereinbefore allowed, each county, municipality, political subdivision of the State authorized to levy taxes, and county board of education, is given the authority to make temporary loans between January 1st and December 31st in each year to pay expenses for such year, upon the following conditions: The aggregate amount of aU such loans of such county, municipality, political subdivision or county board of education outstanding at any one time shall not exceed 75 per cent of the total gross income of such county, municipality, political subdivision or county board of education, from taxes collected by such county, municipality, political subdivision or county Board of Education in the last preceding year. Such loans shall be nayable on or before December 31st of the calendar year in which such loan is made. No loan may be made in any year under the provisions of this paragraph when there is a loan then unpaid which was made in a prior year under the provisions of this paragraph. Each such loan shall be first authorized by resolution fixing the terms of such loan adopted by a majority vote of the governing body of such county, city, political subdivision or county board of education, at a meeting legally held, and such resolution shall appear upon the minutes of such meeting. No such county, municipality, subdivision or county board of education shall incur in any one calendar year, an aggregate of such temporary loans and other contracts or obligations for current expenses, in excess of the total anticipated revenue of such county, municipality, subdivision, or county board of education for such calendar year, or issue in one calendar year notes, warrants or other evidences of such indebtedness in a total amount in excess of such anticipated revenue for such year."

While the above provision is in conflict with the statutory enactments found in Chapter 32-9 of the Code, there is no question as to which provision must be followed. Article I, Section IV, Par. I, provides that, "Legislative Acts in violation of this Constitution, or the Constitution of the United States are void, and the judiciary shall so declare them." (Ga. Code Ann., 2-402).

The law is clear therefore that the aggregate amount of all temporary loans of a county board of education outstanding at any one time shall not exceed

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75 per cent of the total gross income of such county board of education from taxes collected by such county. In my opinion this means "local county taxes". It cannot include anticipated revenues from the State Board of Education. The latter money is merely a grant from the State. In this regard, it is interesting to note that the first part of the resolution proposing the 1949 amendment states that the words "or received" should be added after the word "collected" in the second sentence of said paragraph (Ga. Laws 1949, p. 2112). However, the words "or received" were not included in the latter paragraph. Gilbert v. Georgia Railroad & Bkg. Co., 104 Ga. 412, holds that if a portion of the declaratory part of an Act, which recites that certain amendments are to be made, is omitted from the recital as to how the statute shall read when amended, none of the amandments referred to in the first part become operative save those contained in recital in the latter part.
As to the right of a county board of educatio!li to incur obligations other than borrowed money, the above constitutional provision expressly limits the aggregate of all such loans "and other contracts or obligations for current expenses" to the total anticipated revenue of the county board of education for the calendar year. This would include all contractual obligations of the county board of education such as teacher contracts, etc. In my opinion this provision has reference to revenue from all sources including state funds. These funds are budgeted, however, under the provisions of the Minimum Foundation Act of 1949 (Ga. Code Ann., Chap. 32-6).
In this regard, Lewis v. Board of Education of Lowndes County, 183 Ga. 687, 691, held:
"... A careful study of the legislation in this State relating to the common schools, ... shows an intent on the part of the legislature to systematize and regulate the expenditure of the common school funds so as to prevent an accumulation of burdensome debts by the boards of education over the State, and to provide for the operation of schools in such manner that the expenditures shall not exceed the income...."

EDUCATION-County Board-Authority (Unofficial)

County Board of Education has no authority to lease school buildings to private citizens for use as a recreational center.

Mr. L. W. Burnett

May 8, 1958

I am pleased to acknowledge your request concerning school property in Douglas County. Your letter states that the "Douglas County Board of Education has made plans to lease school buildings, no longer needed for school purposes, to private citizens to be used as a recreational center," and asks "whether or not the Board of Education would be liable for suit in case someone was hurt or an accident happened on this property".
The question depends upon whether or not the board of education would be acting beyond the scope of its lawful jurisdiction in leasing the property. If the board had no authority to execute such a lease, the member11 of the board might thereby subject themselves to individual liability. In this regard Duffee v. Jones,

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208 Ga.. 639, 645-646, held:
"... When the board of education acts upon matters lawfully within its jurisdiction, it is the county acting through its corporate authority, and a county is not liable to suit for any cause of action unless made so by statute. Code, 23-1502; Hammond v. County of Richmond, 72 Ga. 188. But when the board of education, through its members, acts beyond the scope of its lawful jurisdiction and commits an actionable wrong, the act so committed is not 'county action', and in such a case a suit may be maintained in the courts of this state against the wrongdoers." While county boards of education are given general authority by statute (Ga. Code Ann., 32-909) to purchase, lease or rent school sites for educational purposes, the only statute (Ga. Laws 1956, p. 10) authorizing a county board of education to lease out property owned by the said board contains the following restrictions:
"... shall have authority to lease any schoolhouse or other school property for private educational purposes to any person, group of persons or corporation which is or will be bona fide engaged in the operation of a private school, provided that said lease shall be for a period not longer than five (5) years."
On the basis of the above authorities, I am of the opinion that a county board of education has no authority to lease school property, no longer needed for school purposes, to private citizens to be used as a recreation center. However, the same is not true as to the sale of such property.
Ga. Code Ann., 32-909 provides in part as follows: "... The said boards are invested with the title, care and custody
of all schoolhouses or other property, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board...." The case of Duffee v. Jones, 208 Ga. 639, 644, in interpreting the above Code Section, held:
"Consequently and pursuant to this, a county board of education has power to and may sell at private sale any schoolhouse property for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes. But the board has no power or authority under this or any other provision of our law to sell any property which has been conveyed to and accepted by it, or its predecessor in title, in trust for educational purposes, as in this case, except in the manner and way provided for by Code Sections 108-408 and 108-409, which is at public sale after proper leave to sell has been obtained from the superior court."

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EDUCATION-County Board-Liability (Unofficial)

Liability for debts of athletic department of school. Purchase of milk for school lunch rooms.

Mr. William S. Smith

August 15, 1958

I am pleased to acknowledge your letter concerning several questions with regard to the ',Charlton County Board of Education.
As to milk for school lunch rooms, the Milk Control Act of Georgia under which the Georgia Milk Commission regulates contracts for the sale of milk is a local-option type of law. It may apply to sales to consumers only when the milk is sold in, or for consumtion in, designated milk sheds. Ga. Code Ann., Chap. 42-5. The Chairman of the Georgia Milk Commission advises me that Charlton County is not now within a designated milk shed. Therefore, so long as the Milk Control Act continues inapplicable to Charlton County, milk may be purchased in the same manner as other items.
The question of whether the county board of education is legally responsible for debts of the athletic department depends upon whether these debts were incurred by the board as part of the public school physical education program or by some athletic association separate and apart from the public school system. With regard to the former, I am enclosing a copy of an opinion of this office dated May 2, 1957.

EDUCATION-County Board-Members

Legality of contract by county board to employ one of its members as a principal or teacher questionable.

Honorable .i.Vl. D. Collins

February 4, 1958

I am pleased to acknowledge your request concerning the legality of a school principal and/ or public school teacher serving on the county board of education.
While Ga. Code Ann., 89-103 prohibits a person from holding more than one county office, a school principal or a public school teacher is a county Jmployee and not a county officer; therefore, the Code Section would not apply to a school principal or teacher. Since there is no prohibition under the law, it is my opinion that a school principal or a public school teacher could legally serve as a member of the county board of education.
Nevertheless, a problem will arise when the principal's or teacher's contract comes up for renewal for the coming school year. Georgia has always :followed the common law rule that no public agent may take a profit out of public business entrusted to his care. Hulgan v. Gledhill, 207 Ga. 349; Trainer v. City of Covington, 183 Ga. 759. Any such contract is invalid, although the official did not vote for its approval or exercise his influence in procuring other officials to vote for its approval, and although it is fair and free from fraud and was based on the lowest and most advantaeous bid submitted. Trainer v. City of Covington, supra; Montgomery v. Atlanta, 162 Ga. 534; Twiggs v. Wingfield, 147 Ga. 790;

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Hardy v. Gainesville, 121 Ga. 327; Mayor & C. of Macon v. Huff, 60 Ga. 221. 47 Am. Jur., 49, pp. 330, 331, states:
"As a general rule, however, the confidential fiduciary relation of a director to the district which he represents precludes him from placing himself in a position where his own personal interests may conflict with those of the school district. For this reason, it is generally held unlawful for a director to enter into a contract with the school district in which he has a personal and individual interest, or to continue after election as a director in a contract relation previously assumed; a contract so made by a director will not be enforceable. While the matter is usually regulated by statutes either abolishing or limiting the right to contract, the general rule, being based on public policy, may apply even in the absence of statute. . . ." On the basis of the above authorities, I am very doubtful as to the legality of a contract of employment entered into by a school principal or teacher with a county board of education of which the said principal or teacher is' a member.

EDUCATION-County Board-Members

Change of residence to another district does not terminate membership on County Board of Education.

Honorable Claude L. Purcell

February 5, 1958

I am pleased to acknowledge your request concerning the question of the status of members of a county board of education who now, because of an extension of the corporate limits of a city, find themselves residing within the territorial boundaries of an independsnt public school district.
The Constitution of Georgia (Ga. Code Ann., 2-6801) provides that "The members of the county board of education of such county shall be selected from that portion of the county not embraced within the territory of an independent school district." Hulgan v. Thornton, 205 Ga. 753, 757, holds:
"As to the time at which a person's eligibility for public office is determined, this court has consistently fixed it as the date of the election." Assuming that the members of the board of education resided in the portion of the county not embraced within the territory of the independent school district at the time of their selection, they met the qualifications and acquired legal title to the offices. As to their change of residence by the extension of the eorporate limits of the city, Ga. Code Ann., 89-501(5) provides:
"All offices in the State shall be vacated ...
* * *
"By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. On the first case the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained." In construing this section, the courts have held that a county officer legally elected to office who thereafter removes himself from the geographical area

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represented does not ipso facto cease to hold such office, but is at least a "de facto" officer, and so remains until there is a judicial ascertainment of that fact (although the rule is otherwise where the officer removes himself outside the State). Bush v. State, 10 Ga. App. 544(2) [solicitor moving outside county]; Jackson v. State, 27 Ga. App. 679 (3c) [constable moved outside militia district]; Long v. Carter, 39 Ga. App. 508(1) [J.P. moving outside militia district]; Channell v. State, 109 Ga. 150(1) [jury commissioner's moved outside county]; Stanford v. Lynch, 147 Ga. 518(2) [Board of Education member moved outside militia district]. "Judicial ascertainment" of the fact means adjudication by way of quo warranto proceedings. Stanford v. Lynch, 147 Ga. 518(2).
Therefore, even construed most unfavorably against these board members, they would continue to hold office until removed by quo warranto proceedings.

EDUCATION-County Board-Members (Unofficial)

Local board of education may do business with firm of which board member is employed on salary, but not if board member has any financial interest in firm profits, and if board member does not make sale.

Mr. E. C. Mitcham, Jr.

January 14, 1958

I am pleased to acknowledge your request as to whether it is legal for a local board of education to do business with a firm where a board member is a salaried (no financial interest in the firm) employee of the firm.
Ga. Code Ann., 32-949 provides: "No member of any county board of education in this State shall
sell to any county board of education any supplies or equipment used, consumed or necessary in the operation of any public school in this State." Ga. Code Ann., 32-9908 provides:
"Any member of any county board of education violating the provisions of section 32-949, forbidding any member of a county board of education to sell to any county board of education any supplies or equipment used, consumed, or necessary in the operation of any public school, shall be guilty of a misdemeanor and, upon conviction shall be published as for a misdemeanor." In addition, Georgia has always follower the common law rule that no public agent may take a profit out of public business entrusted to hiS! care. Hulgan v. Gledhill, 207 Ga. 349; Trainer v. City of Covington, 183 Ga. 759. Any such contract is invalid, although the official did not vote for its approval or exercise his influence in procuring other officials to vote for its approval, and although it is fair and free from fraud and was based on the lowest and most advantageous bid submitted. Trainer v. City of Covington, supra; Montgomery v. Atlanta, 162 Ga. 534; Twiggs v. Wingfield, 147 Ga. 790; Hardy v. Gainesville, 121 Ga. 327; Mayor & C. of Macon v. Huff, 60 Ga. 221.
Where statutes make it illegal for the school officer to be directly or indirectly interested in the contract, it has been held that the officer's interest in a partnership or corporation contracting with the school comes within the in-

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tent of these statutes. 47 Am Jur., 49, p. 330-331. However, 63 C. J. S. 991, p. 558 states that the fact that the official was a salaried employee of the contracting corporation does not invalidate the contract, "in the absence of evidence that the amount of his compensation was, dependent in any way on the making of the contract."
On the basis of the above authorities, I am of the opinion that it is legal for a local board of education to do business with a firm where a board member is a salaried (no financial interest in the firm) employee of the firm provided, however, that thtl said board member does not make the sale himself and there is no evidence that the amount of his compensation as an employee of the firm was or is dependent in any way upon the making of said contracts.

EDUCATION-County Board-Members (Unofficial)

Member whose residence is changed to another district continues to hold office until removed by quo warranto proceedings.

Honorable B. C. Gardner, Jr.

February 25, 1958

I am pleased to acknowledge your request concerning a member of the county board of education moving from the district from which he was elected into another district within the 'county wherein a member of the said board is already residing.
Your letter indicates that the Baker County Board of Education is organized and elected under a local constitutional amendment (Ga. Laws 1953, Jan.-Feb. Sess., p. 298). For this particular reason I cannot cite you any specific authority in answer to your question. However, I will set out what general law I have found on the subject which might be of assistance to you in arriving at your conclusion.
Hulgan v. Thornton, 205 Ga. 753, 757, holds: "As to the time at which a person's eligibility for public office is
determined, this court has consistently fixed it as the date of the election." Ga. Code Ann., 89-501(5) provides:
"All offices in the Stat('~ shall be vacated
* * *
"By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. In the first case the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained." In construing this section, the courts have held that a county officer legally elected to office who thereafter removes himself from the geographical area represented does not ipso facto cease to hold such office, but is at least a "de facto" officer, and so remains until there is a judicial ascertainment of that fact (although the rule is otherwise where the officer removes himself outside the State). Bush v. State, 10 Ga. App. 554(2) [solicitor moving outside county]; Jackson v. State, 27 Ga. App. 679(3c) [constable moved outside militia district]; Long v. Carter, 39 Ga. App. 508(1) [J.P. moving outside militia district];

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Channell v. State, 109 Ga. 150(1) [jury commissioner moved outside county]; Stanford v. Lynch, 147 Ga. 518(2) [board of education member moved outside militia district]. "Judicial ascertainment" of the fact means adjudication by way of quo warranto proceedings. Stanford v. Lynch, 147 Ga. 518(2).
Therefore, even construed most unfavorably against this board member, he would continue to hold office until removed by quo warranto proceedings.
In the Stanford case, supra, the member had been elected by the grand jury to serve on the board of education from W. District, which was not then represented; but later, Stanford voluntarily moved into another district which was already represented on the board. What is now Code Ann., 32-903 (1952 Rev.) prohibits the appointment of more than one member on the board of education from any one militia district, but in holding that Stanford's moving to a district already represented did not render him subject to removal, the Supreme Court stated:
"The vice of this contention is that a member of the county board of education is not elected for a district. He is elected from a district for the entire county by the grand jury representing the county as a whole. The jurisdiction of each member of the board of education is coexistive with the county, and is not limited to any one militia district. The statutory provision that the grand jury shall not 'select any two of those selected from the same militia district or locality' applies to the members of the board at the time of their selection. As was said in the case of Smith v. State, 24 Ind. 101, the facts of which are quite similar to those in the present case, 'It will be observed that the section of the statute under consideration does not require a continued residence in the district, but is fully satisfied with the qualification attaching to the person selected at the time his election becomes effective, and he assumes the duties of the office. At that time he takes an oath of office, and assumes the duties and a jurisdiction coextensive with the limits of the county. The previous residence within a particular district has secured in the candidate a local knowledge of the peculiar wants and requirements of that district, and the Legislature have deemed this sufficient, without requiring a continued residence within the same limits'."
The same rule does not apply as to the election of a person already living in a district then represented. See Clarke v. Long, 152 Ga. 619(3).
As to any proposed special election to fill a vacancy on the county board of education, your local constitutional amendment (supra) provides "Should a vacancy occur in the office of any member, the ordinary shall, withi~ twenty days, issue a call for a special election to be held not less than twenty nor more than thirty days thereafter for a successor to be elected by the registered and qualified voters of the district." See also Ga. Code Ann., 23-701(5). The general constitutional provision on filling vacincies as to members of a board of education is found in Ga. Code Ann., 2-6801.

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EDUCATION-County Board-Members (Unofficial)

No prohibition against Assistant Solicitor General of judicial circuit serving as member of county board of education.

Mr. W. C. Abney

September 23, 1958

I am pleased to acknowledge your request as to whether a person can serve as both an Assistant Solicitor General of, a Judicial Circuit and a member of a county board of education.
A member of a county board of education occupies a county office. Stanford v. Lynch, 147 Ga. 518; Compton v. Hix, 184 Ga. 749. Therefore, an Assistant Solicitor General of a Judicial Circuit would not come within the statutory provisions of Code 89-101, which provides:
"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature; ..."
To my knowledge there is no statutory provision which would prohibit an Assistant Solicitor General of a Judicial Circuit from also holding office as a member of a county board of education.

EDUCATION-County Board-Members (Unofficial)
Transacting business with bank in which member is majority stockholder.
February 18, 1959
Dr. Marcus Mashburn, Jr.
I am pleased to acknowledge your request concerning the question of any possible conflict of interest for a county board of education to do business with a bank in which one of the county board members was a majority stockholder in said bank.
On the general question of such possible conflicts of interest, I am enclosing a copy of an official opinion of this office dated April 19, 1954.
If your question has reference to a depository of educational funds that has been selected by the county authorities under Ga. Code Ann., 89-811, there is certainly no problem since the depository would not be selected by the county board of education unless the county authorities have failed to select said depository. The same would be true if neither the county authorities nor the county board of education acted and the depository was selected by the county school superintendent. Even if the selection of the depository was selected by the county board of education, it would be necessary to show that some benefit, direct or indirect could or would reasonably accrue to the corporate bank. Smith v. City of Winder, 22 Ga. App 278, 279, involved the deposit of municipal funds
in a bank in which the mayor and one councilman were respectively an officer
and director. The court held this was not illegal "since it nowhere appears that any financial profit would result to said bank so named as depository, in which the mayor and council owned stock, or that any contract whatever was made between the city and the private corporation in which said city officials were

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interested whereby any benefit direct or indirect could or would reasonably accrue to said bank, the money to be placed therein being on demand and subject to immediate check. . . ."
As to borrowing money, 63 C. J. S. 991, p. 558 provides: " ... It must appear, however, that some benefit, direct or indirect,
could or would reasonably accrue to the contracting corporation or firm. "... A transaction involving the borrowing of money by a borough
from banks in which borough officials are interested does not fall within the ban imposed by the common law or statute; .."
EDUCATION-County Board-Purchases
Purchase of fuel from firm, head of which is also member of State Highway Board, does not come under conflict of interest prohibition as county board is not an agency of state, rather political subdivision.
May 20, 1959 Dr. Claude Purcell
This will acknowledge receipt of your letter with the enclosure from Superintendent Jack P. Nix of the Banks County School System. Mr. Nix raises a question as to the application of House Bill No. 1 of the 1959 Session of the General Assembly (Ga. Laws 1959, p. 34). He states that his school board has been purchasing fuel from a concern, the head of which has recently been appointed a member of the State Highway Board. He requests information as to the application of House Bill No. 1 to his situation.
Although the question which is presented by Mr. Nix is purely a local mater which should be resolved by the Banks County attorney, I have examined the provisions of House Bill No. 1 and find that the only Section which might appear to be applicable is Section 2 which reads as follows:
"Section 2. Interested persons acting as government agents. Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any Board, Bureau or Commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any Authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this Section shall constitute a felony any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years." You will notice that this Section prohibits sales by any official or employee of the State to "the State of Georgia or any agency thereof." It is my opinion that a county school board is not an agency of the State; rather, it is a political subdivision thereof.

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EDUCATION-County Board-Sale of property

Restriction on sale of county owned realty does not apply to sale of county board of education realty.

Dr. Claude Purcell

July 20, 1959

This will acknowledge receipt of your letter in which you enclose a letter from Miss Lizzie D. Deariso, Superintendent of the Worth County School System. You request my opinion as to the question raised, in Miss Deariso's letter; i.e., whether the Act approved March 17, 1959 governing the sale of countyowned real estate applies to real property owned by a county board of education.
The Act approved March 17, 1959 (Ga. Laws, 1959, p. 325) enacts a new Code Section which is known as Section 91-804 which provides in substance that prior to the sale of any real property "belonging to any county of the State" notice of the sale must be advertised and a public sale must be held. This section appears in Code Chapter 91-8 dealing with public property. It follows Code Section 91-804 which provides that when public property shall become unserviceable it may be sold or otherwise disposed of by "order of the proper authority". The proper authority is defined by Code Section 91-805 as the county commissioners or other officers having charge of county matters, for all officers of the county. It is my opinion that these sections have reference only to property actually belonging to a county. Code Section 91-601 provides "all deeds, conveyances, grants or other instruments which have been or may be made to any officers or persons for the use and benefit of any county shall vest in such county the title as fully as if made to such county by name." However, this section and Code Chapter 91-8 are not applicable to property belonging to county boards of education. Code Section 31-909 provides that the county boards of education "are invested with the title, care and custory of all schoolhouses or other property with power to control the same in such manner as they think will best serve the interest of the common school."
The boards of education are authorized to sell any schoolhouse site when the same shall become unnecessary or inconvenient. It has previously been ruled that this sale may be at a private sale. Duffee vs. Jones, 208 Ga. 639, 1951.
Since property belonging to a county board of education and property belonging to a county are treated in different chapters of our Code, I am of the opinion that the amendment to Code Chapter 91-8 has no application to sales of propery, the title to which is vested in a county board of education.

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EDUCATION-County Board-Vacancies (Unofficial)

Upon failure of Grand Jury to appoint successor, old member continues to hold office.

Mr. Bobby Driggers

March 16, 1959

Your letter states that the local Grand jury did not make an appointment in February to fill the office of a member of the county board of education whose

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term had expired. You then inquire as to whether a problem exists of probably having no member in this position until the Grand Jury makes its selection in May of this year.
There is no such'problem unless the member referred to above has resigned. If he has not resigned, he continues to be a member of the county board of education until his successor is selected and qualified in May.
Ga. Code Ann., 89-105, provides as follows: "All officers of this State shall reside therein, at such places as are
designated by law, and discharge the duties of their offices until their successors are commissioned and qualified; and all officers whose certificates to records or other papers are admissible in evidence in any court in this State must have and keep an official seal." Shackelford v. West, 138 Ga. 159, held:
"... There is a patent difference between a vacancy in an office and the expiration of the term of the incumbent, whose tenure is for a definite term and until his successor shall qualify. In' the latter case it is the duty of the incumbent to continue in the discharge of his office until a successor is qualified; the superadded period being a part of the rightful term of office. He has the right to continue in office until the qualification of his successor who has been appointed or elected in the manner designated by the law. From the very nature of things there can not be a vacancy in an office so long as there is an officer authorized by law to perform its functions; .." Stephenson v. Powell, 169 Ga. 406, 408, held.
"The office does not expire at the expiration of said term, but the elected officer holds over until his successor is commissioned and qualified . . . ."
If the member of the board of education has resigned, the Constitution authorizes the board to elect his successor by secret ballot, who shall hold office until the convening of the next Grand Jury. Ga. Constitution of 1945, Article VIII, Section V, Paragraph I (Ga. 1Code Ann., 2-6801).

EDUCATION-County School Superintendent-Duties (Unofficial)

Powers and duties of a county school superintendent are controlled by general law, and not by local constitutional amendments which relate solely to the qualifications of the superintendent.

Honorable William J. Lee

November 7, 1958

I am pleased to acknowledge your request whether the adoption of two local constitutional amendments (Ga. Laws 1953 Nov.-Dec. Sess., p. 506; Ga. Laws 1958, p. 3) by the people of Clayton County alters the general 1aw with regard to the duties of the county school superintendent.
Both of these local amendments apply to the qualifications of the Clayton County Superintendent and the method of his election. The amendment voted on in 1954 provided that he was. to be elected by the Board of Education of Clayton County and established his qualifications. It also provided that the

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Clayto~ County Board of Education was to be elected by the voters of Clayton County. The amendment voted on in 1958 provides that the Clayton County School Superintendent shall be elected by the electors of Clayton County and establishes different qualifications for the office. Neither amendment attempts to change the provision of the Constitution that the school district "shall be confined to the control and management of a county board of education." Article VIII, 'Section V, Paragraph I (2-6801). The duties of a county superintendent of schools are set out in Code 32-1009, which provides as follows:
"The county superintendent of schools shall constitute the medium of communication between the State Superintendent of Schools and the subordinate school officers. He shall be the agent of the county board inprocuring such school furniture, apparatus, and educational requisites as they may order, and shall see that none but the prescribed textbooks are used by the pupils; shall audit all accounts before an application is made to the county board for an order for payment; he shall procure a book in which he shall keep a record of his official acts, which, t@gether with all the books, papers, and property appertaining to his office, he shall turn over to his successor. It shall be his duty to enforce all regulations, rules, and instructions of the State Superintendent of Schools and of the county board of education according to the laws of the State and the rules and regulations made by the said board of education that are not in conflict with the State laws; and he shall, together with the State supervisors, superintend the county normals and institutes for the teachers of his county, and shall visit every school, both white and colored, within his school district which receives State aid, at least once every 60 days, and familiarize himself with the studies taught in said schools, see what advancement is being made by the pupils, advise with the teachers and otherwise aid and assist in the advancement of education." In my opinion the powers and duties of the Clayton County Board of Education and the Clayton County School Superintendent are controlled by the general law and have not been altered by the local constitutional amendments of 1954 and 1958.
EDUCATION-County School Superintendent-Office
County authorities are not required to furnish office space to the County Superintendent of Schools in the absence of sufficient space in the courthouse.
July 16, 1959 Dr. Claude Purcell
This will acknowledge receipt of your letter in which you request my opinion as to whether Code Section 32-1012 requires the county authorities to provide the county superintendent of schools with an office in the courthouse.
Code Section 32-1012 reads as follows: "The county authorities of the different counties shall furnish the
county superintendent of schools thereof an office in the courthouse, providing there is sufficient room in said courthouse after furnishing the county officers with offices as now provided by law."

ilo
I am of the' opinion that this Code Section does not require that an office be furnished the county superintendent of schools if there is not sufficient room in the county courthouse. This would seem to be particularly true in view of Georgia Laws 1939, p. 195, which amended this Code Section so as to make it mandatory upon county authorities in certain counties to furnish office space for the county superintendent.

EDUCATION-County School Superintendent-Qualifications (Unofficial)

Qualifications of county school superintendent outlined.

Mr. Raymond Smith

October 14, 1959

The qualifications of a county school superintendent are set forth in Code Section 32-1004 of the Annotated Code of Georgia, which provides as follows:
"Before any person shall be qualified or eligible to the office of county superintendent of schools, he shall have had at least three years' practical experience in teaching, hold a first-grade high school license, or in lieu thereof shall have a diploma from a literary college or normal school, or shall have had five years' experience in the actual supervision of schools, or stand an approved examination before the State Board of Education as to his qualifications, be a person of good moral character, never convicted of any crime involving moral turpitude. The county superintendent of schools shall perform all the clerical duties which were formerly required of the county school commissioner. Before being eligible to qualify for election, candidates for the position must file with the State Board of Education a certificate showing at least one of the above qualifications. This certificate must be signed by the president of the county board of education. (Acts 1919, p. 350.)" In addition to the above qualifications a county school superintendent being a county officer within the meaning of paragraph VII of Code Section 89-101, it is necessary for a person to be eligible to hold a county office to have been a citizen of a county of a period of two years prior to his election and is a qualified voter in the county entitled to vote.

EDUCATION-County School Superintendent-Qualifications

By a constitutional amendment, the Coffee County Board of Education is given power to afix the qualifications, duties, responsibilities, authorities, and conpensation of the Coffee County Superintendent of Schools.

Dr. Claude Purcell

June 15, 1959

This will acknowledge receipt of your letter with the enclosure from Superintendent E. M. Thompson of the Coffee County School System. Mr. Thompson requests that this office advise him as to whether the County Board of Educa-

111
tion of Coffee County is restricted to legal residents of Coffee County in making an appointment as county school superintendent.
An amendment to Article VIII, Section VI, Paragraph I of the Constitution ratified November 2, 1954 (Ga. Laws 1953, Jan.-Feb. Sess.) reads as follows:
"The Superintendent of Coffee County Schools shall be elected by the Board of Education of Coffee County, Georgia, effective January 1, 1957, and the Coffee County Board of Education shall fix the qualifications, duties, responsibilities, authorities and compensation of the Superintendent of the Coffee County Schools." Under this Section of the Constitution, I am of the opinion that the Coffee County Board of Education determines the qualifications of the Superintendent of the Coffee County Schools.

EDUCATION-County School Superintendent-Salary

State Board may pay salaries of School Superintendents of independent systems directly to superintendent provided no charter provision in conflict with practice.

Honorable Claude Purcell

September 17, 1958

I am pleased to acknowledge your request concerning the legality of the State Department of Education paying the state salaries of superintendents of independent city school systems directly to said superintendents rather than through system boards of education as they are now paid.
It is my understanding that it has always been the policy of the State Department of Education to pay the salaries of the county school superintendents directly to said county superintendents. The basis, for this policy was the necessary implication contained in Code 32-1006 as to the compensation of county superintendents of schools.
The law confers broad powers upon the State Board of ,Education with regard to the administration of state school funds. See Minimum Foundation Act of 1949-Ga. Code Ann., Chap. 32-6. Code 32-408 specifically provides that "The State Board of Education shall provide rules and regulations for the supersivion of all public schools of this State; ... They shall make such rules and regulations as may be necessary for the operation of the common schools and for the administration of the common schools and for the administration of the common school fund." On the basis of this authority, I am of the opinion that the State Board of Education could adopt the administrative policy of paying the state salaries of superintendents of independent city school systems directly to said superintendents in the same manner as now being done in the case of county school superintendents. Care should be taken however as to the specific provisions of the various municipal charters in that a particular charter may be in conflict with such administrative policy. In such an event an exception should be made to said policy so as to conform to the intent of the General Assembly as expressed by that charter.

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EDUCATION-County School Superintendent-Salary

The salary of the County School Superintendent may be supplemented by the local board of education.

Honorable Claude Purcell

March 20, 1959

I am pleased to acknowledge your recent request concerning the following questions:
1. The right of a county school superintendent to a local supplement to his salary in. addition to that established by the State Board of Education.
2. The legal effect of a Grand Jury electing a member of the county board of education without complying with the provisions of nomination and advertisements provided in Ga. Laws 1958, p. 686.
As to the first question Code 32-1006 provides in part as follows: "... The county superintendents of schools shall receive salaries in
amounts fixed by the State Board of Education, based on classification and certification in the same manner teachers are paid under said Act: Provided, however, that in no event shall the salary of a county school superintendent be less than $70 per month, said salaries to be paid monthly out of the school funds of the State, and in addition thereto, the county board of education shall allow for additional compensation for the services to be rendered, as may be in their judgment proper and just. . . ."
It is clear from the above law that the question of a local supplement to the salary of a county superintendent of schools is a matter within the sound discretion of the local county board of education.
With regard to the second question, I have purposely withheld writing this opinion during the current session of the General Assembly because of the fact that corrective legislation on this law had been introduced prior to the receipt of your letter. Senate Bill No. 81, enacted by the 1959 Session of the General Assembly and signed by the Governor on March 20, 1959, is attached hereto for your information.

EDUCATION-Principals-Bonding (Unofficial)

The bonding of all persons employed as principals requires individual bonds, blanket bonds are insufficient.

Honorable George D. Busbee

September 16, 1959

This will acknowledge receipt of your letter in which you make reference to the recent act of the General Assembly requiring the execution of bonds by school principals. (See Ga. Laws 1959, p. 159).
You state that the Dougherty County Board of Education is desirous of bonding all principals in the system under one blanket bond. Section 1 of the Act referred to reads as follows:

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"Section 1. Any person now employed as principal and any person upon entering into employment as principal of any public school of this State shall execute a bond in an amount fixed by the local board of education having jurisdiction over such school. Said bond shall be made payable to such local board of education and shall be conditioned upon faithful and true accounting for all public and other funds and all property coming into such principal's custody, control, care or possession. The premiums of such bonds shall be paid by the local board of education out of the county educational fund." The language of this section leads me to the conclusion that it contemplates the execution of an individual bond by each person presently employed, or who shall hereafter enter upon his employment, as the principal of any public school in this State. In view of this language, I am of the opinion that a school system may not comply with the provisions of this Act by having a blanket bond.

EDUCATION-Private Schools

The State Board of Education must issue a certificate of compliance before a private junior college may be chartered, but once issued, the Board has no further jurisdiction over the college.

Dr. Claude Purcell

October 9, 1959

This will acknowledge receipt of your letter in which you request my opinion concerning the application of Code Section 32-415 to John Marshall University.
Code Section 32-415 reads as follows: "32-415. The State Board of Education shall prescribe, by regula-
tion, standard requirements for universities, colleges, normal or professional schools, conferring degrees or issuing diplomas in this State, and no charter granting the right to confer such degree or diplomas shall be granted or issued until the applicants therefor have obtained from the State Board of Education a certificate showing that such requirements of the Board have been met." As I understand the facts of this particular case from your letter, John Marshall University was granted conditional approval to operate a junior college by the State Board of Education under the above-cited Section. This approval was conditioned upon the University reaching all of the requirements prescribed by the State Board of Education and its standards adopted May 15, 1931. You request my opinion as to whether the Board may give conditional approval to a college under the above Code Section. I am of the opinion that such conditional approval may be given. However, I would like to point out that when such approval is given, there is an authoriza~ tion for a corporation to be chartered by a superim:r court of the State having authority to confer degrees and diplomas. Once this corporation is chartered, the State Board of Education has no further jurisdiction over the college. Hence, if John Marshall fails to fulfill the conditions imposed upon it by the Board of Education, no action may legally be taken to disturb the charter which will have been granted to the school by the superior courts of the State.

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EDUCATION-Private Schools
Any institution which confers degrees or issues diplomas in this State comes under regulation of the State Board of Education, but there are limitations upon enforcement.
Honorable Claude Purcell
This will acknowledge receipt of your recent letter regarding the meaning and interpretation of Code Section 32-415. This Code Section reads as follows:
"32-415. The State Board of Education shall prescribe by regulation, standard requirements for universities, colleges, normal or professional schools, conferring degrees or issuing diplomas in this State, and no charter granting the right to confer such degrees or diplomas shall be granted or issued until the applicants therefor have obtained from the State Board of Education a certificate showing that such requirements of the Board have been met."
Specifically, you asked the following questions:
(1) "What kinds of institutions come under the provisiOns of this law? Is it applicable to privately-owned public schools which give diplomas? Is it applicable to nursing schools of the State which gave diplomas?" I am of the opinion that the Code Section is applicable to any institution of higher learning which confers degrees or issues diplomas in this State.
(2) "Does the law provide or imply in any way that a charter may be revoked when a school fails to maintain the standards which have been established by the State Board of Education?" I am of the opinion that once. an institution has been approved by the State Board of Education, this approval may not be withdrawn and a charter which has been granted upon the basis of the approval may not be revoked. This is in accord with the opinion which I issued to you on October 9, 1959.
(3) "If a charter cannot be revoked, how can the meaning of this law, as outlined in the first sentence, be enforced?" I believe that the only method by which the law may be enforced as it is presently written is suggested by your next questions. I believe that the most efficient method would be an annual inspection of private schools to determine if they meet standards established by the State Board of Education. Then a list would be compiled of schools which do meet the standards and which do not. This would have no legal effect but would operate as moral persuasion.
(4) Your last question is "Can the State Board of Education prevent an institution from granting degrees or diplomas when it has secured neither charter nor State Board approval?" Under the present phraseology of the law, if an educational institution is not chartered; i.e., is not a corporation, then it may grant degrees and diplomas without the necessity of State Board approval.
In view of the intrepretations placed upon this law, I would like to suggest to you that you give serious thought to proposing to the General Assembly a revision of this Code Section so as. to authorize a more efficient and effective means of regulating private schools in the State. If you decide that this is a proper course to follow, this office will be happy to assist you in drafting the necessary legislation.

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EDUCATION-School Bonds-(Unofficial

Bond monies raised to build school house in one district may not be used to build school house in another district.

Honorable J. H. Highsmith

January 15, 1958

I am pleased to acknowledge your request concerning the proper use of bond monies voted to "build and equip a school building and related facilities at the Ten Mile-Bethel community". Your letter states that the school population in the Ten Mile-Bethel community is not sufficient to support an accredited school and that a new school building was not needed in that community. You also state that is has been recommended that the new facilities be erected in the Baxley community.
After a thorough study of all the cases in Georgia, I can not find any authority to the effect that the local board of education would be_ authorized to use the funds to build school buildings in a community other than the Ten MileBethel community.

Touchton v. Echols County, 211 Ga. 85 88, held: "This court has long required strict adherence in the application of
bon~ funds to the purposes for which they were voted." (See page 88 for numerous citations on this point). Wheeler v. Trustees of Fargo School District, 200 Ga. 323, 336, held:
"The approval of these bonds by the electors and their validation according to statute created a status analogous to a contractual relation between such electors and the State, which could not be destroyed or impared by a subsequent statute or constitutional provision.

As to the actual physical location of the school building, Board of Education of Paulding County v. Gray, 203 Ga. 583, 587, held:
"... the county board of education received from the trustees of the abolished school district in question the entire proceeds derived from a sale of the bonds which had been voted, validated, issued, and sold for the specific purpose of building, repairing, and equipping a schoolhouse in that area of Paulding County embraced within the limits of Camp Ground Consolidated School District. It is elementary, of course, that the trustees of the district, had it not been abolished, could not have lawfully used these funds for any other purpose. Neither the Constitution of 1945 nor any statute passed pursuant thereto purports to give the board of education, after receiving such funds, any right or authority to expend them for any purpose other than that for which they were voted. On the contrary, the plain provisions of the act under which the board has authority to take possession of these trust funds require it to expend them only for the purpose for which the bonds, were voted" (Emphasis by Court)
As to the physical location of highways, Marks vs. Richmond County, 165 Ga. 316, held:
" 'These bonds having been voted for the purpose of paving stretches of State highways which were then in existence and which then traversed the County of Richmond, the funds arising from their sale could not be diverted from that purpose and applied to the laying out or

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paving of new State highways which the State Highway Board might determine to establish, nor to paving stretches of a relocated State highway the location of which was determined upon after the election, ..." While bond funds can only be expended for the purpose for which they were voted, it is not an abuse of discretion for a local board of education to determine that it would be impossible to build a schoolhouse with the amount of bond money on hand and to use the money to buy the bonds which had not been cancelled but were being held by bank as agent of the county. Williams v. Ragsdale, 205 Ga. 274.

EDUCATION-School Buildings (Unofficial)

County Boards of Education have authority to contract with an independent school system for construction of a school building within that independent school district.

Mr..Roy W. Coley

June 6, 1958

I am pleased to acknowledge your request concerning the legality of a county board of education expending school funds under the terms of a contract with an independent school district for the construction or addition to school buildings. within the independent school district.
Your letter seems to assume that the above proposed expenditure is an obligation under the contract between the two school systems. Irrespective of whether this is the case or not, I do not feel that it would be appropriate for me to attempt to interpret any such local agreement. However, I will set out below information which may be of assistance to your local attorney in reaching his decision in the matter.
Under Article VIII, Section V, Paragraph I of the Constitution of 1945 (Ga. Code Ann., 2-6801), counties are granted authority to establish public schools within their limits, and each county, exclusive of any independent school system therein, composes one school district, the control and management of which is confided to a county board of education. See also Code, 32-901. Article VIII, Section IX, Paragraph I of the same Constitution (Ga. Code Ann., 2-7201) provides that county boards of education and independent school systems may contract with each other for the education, transportation, and care of pupils. Article VII, Section VI, Paragraph I (A) of this Constitution (Ga. Code Ann., 2-5901) provides that a county may contract with another county or a city for any period not exceeding fifty years for the use by the county or city or the residents thereof of any facilities or services of that county or city, provided such contracts shall deal with such activities and transactions as such counties and cities are by law authorized to undertake. Authority to the counties includes county boards of education. Sheffield v. State School Building Authority, 208 Ga. 575. It would seem that the same reasoning would apply to cities including city boards of education.
The case of Walker v. McKenzie, 209 Ga. 653, held that the Board of Educa-

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tion of Macon County had authority under the above constitutional provisions to contract with the Boards of Peach and Taylor Counties for the education of school children residing in Macon County. However, Tipton v. Speer, 211 Ga. 886, held that these constitutional powers to contract are limited by the constitutional provision which states that the control and management of county schools shall be confined to the county board of education., The Court held that the contract between the local boards of education of Thomas County and the City of Thomasville was unauthorized and void for the reason that it provided that the joint high school program for a county owned school building would be subject to the approval of both boards, i.e., the city board of education would be participating in the management and control of a county public school. In effect the Court said that the power to exercise judgment and discretion cannot be delegated by a county board of education. See also Levine v. Perry, 204 Ga. 323; 20 C.J.S. 89, p. 862.
In my opinion the Tipton case does not hold that a county cannot construct a county owned school building within an independent school system. See Board of Education of Fulton County v. Board of Education of College Park, 147 Ga. 776; Bailey v. County Board & c Elbert County, 213 Ga. 308. Nor does it hold that a county board of education cannot contract to pay county school funds to an independent school system in consideration for the latter educating certain school children of the former. If a county board of education has authority to so contract one could assume that the said authority would include all the funds necessary to educate these children including capital outlay, i.e., funds for school buildings and additions thereto of the independent school district.

EDUCATION-School Buildings-Sites

County Board of Education may make changes and relocations of school sites, and when approved by the State Board of Education, such action becomes final.

Honorable Claude Purcell

May 30, 1958

I am pleased to acknowledge your request concerning the motion adopted by the State Board of Education at its meeting on May 12, 1958. Your letter contains the following quote from the minutes of the State Board of Education.
" 'There was a motion by Senator Shurling that the application be approved. Mr. Peters asked that there be an amendment to the effect that this be done provided the new location be approved by the Legal Department and the State School Building Authority. Senator Shurling accepted the amendment. There was a second to the motion, including the amendment, by Mr. Duncan.'"
There is no authority under the law with respect to the Attorney General approving or disapproving any such administrative action under any of our school laws. However, I will give you my legal opinion as to whether there is authority under the law for the actions taken by both the local and State Board of Education.
The facts indicate that prior to April 7, 1958, the Laurens County Board of

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Education selected a site on which to locate a new consolidated high school building. On April 7, 1958, the said local board unanimously adopted a resolution changing and relocating the said site. On April 24, 1958, the State Board of Education unanimously adopted a motion approving the action of the local board of education, provided it met with the approval of the State School Building Authority and the State Legal Department.
The Supreme Court of Georiga has adjudicated in a long list of cases, going back more than 50 years, that a county board of education has authority and power to select, locate and acquire sites for school buildings in its county, according to its judgment and discretion, subject only to approval or disapproval by the State Board of Education upon appeal. Bedingfield v. Parkerson, 212 Ga. 654(4); McKenzie v. Walker, 210 Ga. 189(2); Boney v. Telfair Co. Bd. of Education, 203 Ga. 152(1). See also Ga. Code Ann., Sections 32-909, 32-910 and 32-414.
In two very recent cases, where county boards of education had previously selected sites for such schools and school building projects, and later changed and relocated such sites, the Supreme Court has specifically held that the county board has the power to subsequently make such changes> and relocations of such school sites. Patterson v. Boyd, 211 Ga. 679(1), 681; Smith v. Ouzts, Case No. 20032-decided May 7, 1958.
The Patterson case involved a change and relocation of the site for the Telfair County High School, from a place near Workmore to a place near McRae; and the very recent case of Smith v. Ouzts involved a change and relocation of the Washington County High School site, from a place near Tennille to a place within the city limits of Sandersville.
In view of the foregoing authorities, there is no question whatsoever as to the authority and power of a county board of education to make such changes and relocations of school sites, and when approved by the State Board of Education such action becomes final.

EDUCATION-School Buses-Driver salaries (Unofficial)

Salary of school bus drivers discussed.

Mr. Sam Bluestein

June 20, 1958

I am pleased to acknowledge your request concerning the application of the amendments of 1957 and 1958 to the salary of school bus drivers. Your letter states that your drivers have been receiving $1420.00 per year payable $155.00 for nine months and $25.00 for the tenth month.
It is my understanding that the school buses of your school district are county owned. The new amendments (Ga. Laws 1957, pp. 380, 381; Ga. Laws 1958, pp. 329, 330, 331) provide that "all school bus drivers employed by county boards of education to drive school buses shall continue to receive as a minimum, the salary paid during the 1956-57 school year or a salary of $100.000 per month for ten (10) months whichever is greater.... Provided, further however, that no driver of either joint, private or county owned school buses shall receive less

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than $100.00 for the tenth month." The 1957 amendment provided further that the Act becomes effective when and if funds are available. On June 11, 1957 the State Board of Education adopted a resolution to put the above law into effect on the basis of funds available. The resolution provided that all adult drivers of county owned buses shall receive "a minimum of $62.50 for the tenth month of the 1957-58 school year, and shall receive a minimum of $100.00 for the tenth month of the 1958-59 school year."
It is clear therefore that under the above resolution your bus drivers would be entitled to $62.50 for the month of June.
As to the question of the minimum contracts for the coming school year, an official opinion of this office dated April 22, 1957 states:
"In my opinion-'salary paid during the 1956-57 school year'- has reference to the total salary paid during the 1956-57 school year irrespective of the monthly payments." In addition, the drivers of county owned buses would be entitled to a minimum of $100.00 for the tenth month of the 1958-59 school year.

EDUCATION-School Buses-Laws Affecting

Compilation of all Georgia laws affecting the operation of school buses within the State.

The Honorable Ernest Vandiver

April 3, 1959

In response to your letter of March 20, 1959,, I have examined the laws of the State of Georgia pertaining to the operation of school buses and the general laws of the State affecting motor vehicles as applied to school bus operation. Most of these laws are found in the Uniform Act regulating traffic on the highways (Ga. Laws 1953, Nov.-Dec. Session, p. 556) which is codified as Chapters 68-15 through 68-17 of the Annotated Code of Georgia.
Code Section 68-1502 defines a school bus as "Every motor vehicle owned by a public or governmental agency and operated for the transportation of children to or from school or privately owned and operated for compensation for the transportation of children to and from school." Code Section 68-1667 defines the responsibility of motorists in passing a school bus. A vehicle is required to stop upon meeting or overtaking any school bus which is stopped on the highway for the purpose of receiving or discharging school children. This Section also requires that a school bus shall bear on the front and rear thereof a plainly visible sign containing the words "School Bus", and in letters not less than eight (8) inches in height. Also, this Section provides that it shall be unlawful to operate any flashing, warning signal light on any school bus except when the school bus is stopped or approaching a stop on the highway. Code Section 681626(b) (3) provides that the maximum speed at which a school bus may travel is forty (40) miles an hour. Code Section 68-1663 (2) requires that a school bus carrying school children stop at all railroad crossings. The above are the only Sections of the Uniform Act regulating traffic on the highways which specifically apply to school buses. However, other provisions of the Uniform Act which affect all motor vehicles are of particular interest in connection with a discussion of

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school buses. Primary among these are Code Sections 68-1723 through 68-1726. These Sections require that any vehicle operated upon the highway be in such a safe mechanical condition as not to endanger the driver or other occupant of any vehicle upon the highway. Also, the Department of Public Safety is authorized to inspect any vehicle and to require that the mechanical condition thereof be improved. If the Director of the Department determines that the vehicle is in such an unsafe condition as to constitute a menace to safety, he may suspend the registration to such vehicle.
Other provisions of our law affecting school buses outside of the Uniform Actregulating traffic on the highways are found in 92A-401(3)(b) which requires the driver on a school bus to obtain a public chauffeur's license. Also, under the provisions of Code Section 32-425, the State Board of Education is authorized to prescribe minimum standards for school buses used for the transportation of pupils and the State certification requirements of motor vehicle operators employed to transport school children shall be subject to the approval of the State Board of Education. Under this Section, the State Board of Education has prescribed some standards that appear in the general policies adopted by the Board as of January 1, 1957. However, these standards are not part of the statutory law of the State.
I believe that the above exhausts the number of laws of this State which are peculiarly applicable to school buses. As you may see, there is very little statutory regulation of the subject. However, any assistance which I or my staff may give you in making suggestions for new legislation before the next Session of the General Assembly will be willingly furnished.

ImUCATION-School Buses-Insurance (Unofficial)

No policy limits for liability insurance on school buses required by law.

Honorable A. Leopold Alexander

May 28, 1959

You inquired concerning the policy limits of an insurance policy written on school buses. You are correct in stating that Code Section 32-429 prescribes no policy limits. This Section was not amended by the 1959 General Assembly. However, the $50,000 limit which you mentioned seems to come from policies concerning pupil transportation as adopted and amended May 21, 1954, by the State Board of Education. I am enclosing a copy of these policies for your information. I am also enclosing a copy of the 1958 Georgia School Laws.

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EDUCATION-School Buses-Insurance (Unofficial)

Laws with respect to medical payments and liability insurance to cover school buses enumerated.

Mr. V. C. Smith

January 23, 1958

In reference to your letter concerning the laws of Georgia, with respect to medical payments and liability insurance to cover school bus operations, the following laws are listed below:
Ga. Code Ann., 32-429:
"The various school boards of the counties, cities and independent school systems employing school buses, are hereby authorized and required to cause policies of insurance to be issued insuring the school children riding therein to and from, school against bodily injury or death at any time therefrom resulting from an accident or collision in which said buses are involved. The amount of such insurance shall be within the discretion of the respective boards."
Ga. Code Ann., 32-430:
"Where a bus is owned by the school board, the board shall pay the premium for such insurance. Where the bus is not owned by the board, the premium shall be paid by the owner."
Ga. Code Ann., 32-431:
"Such boards are hereby authorized to cause a provision to be inserted in said policies insuring the members of the general public against personal injury or death or damage to property resulting from the negligent operation of said buses. Nothing, however, in this law shall construed as imposing legal liability upon such boards on account of such accidents. Wherever an insurance company issues a policy containing such a provision, the company shall be estopped to deny its liability thereunder on account of the nonliability of said board." In addition, I am listing below the laws concerning accident liability and casualty insurance which were enacted at the 1955 Session of the General Assembly of Georgia:
Ga. Code Ann. Supp., 56-1013:
"A municipal corporation, a county or any other political subdivision of the State is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting therefrom to any person, or for damage to property of any person, or both, arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of the State, under its management, control or supervision, whether in a governmental undertaking or not, and to pay premiums therefor."
Ga. Code Ann. Supp., 56-1014:
"Whenever a municipal corporation, a county, or any other political subdivision of the State shall purchase such insurance the negligency of

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any duly authorized officer, agent, servant, attorney, or employee in the amount of insurance so purchased. Neither the municipal corporation, county or political subdivision of the State, as the case may be, nor the insuring company shall plead such governmental immunity as a defense and may make only such defenses as could be made if the insured were a private person. The municipal corporation, county or other political subdivision of the State shall be liable for negligence as herein ..provided only for damages suffered while said insurance is in force, but in no case in any amount exceeding the limits or the coverage of any such insurance policy. No attempt shall be made in the trial of any action brought against a municipal corporation, county or any other political subdivision of the State to suggest the existence of any insurance which covers in whole or in part any judgment or award which may be rendered in favor of the plaintiff, and if the verdict rendered by the jury exceeds the limits of the applicable insurance, the court shall reduce the amount of said judgment or award to a sum equal to the applicable limits stated in the insurance policy."
Ga. Code Ann. Supp., 56-1015:
"Premiums on the insurance authorized by section 56-1013 shall be paid from the general funds of the municipal corporation, county or political subdivision."

EDUCATION-School Buses-Use (Unofficial)

School buses are restricted to use for pupils and school employees to and from school, and driver owned chassis may not be used for other purposes as long as attached to county owned body.

Mr. J. R. DeLoach

June 23, 1958

I am pleased to acknowledge your request concerning the use of joint ownership school buses-owner furnishing the chasis and the county board of education furnishing the body.

Ga. Code Ann., 32-426, provides as follows:

"County boards of education are hereby authorized and given power to purchase motor vehicles and other equipment for the purpose of transporting pupils and school employees to and from the public schools, to employ drivers and provide for the operation and maintenance of such equipment. County school boards are hereby authorized to expend money out of school funds for the purchase of such school transportation equipment and to repair, maintain, and operate same."
Three opinions of the Attorney General (Opinions of Atty. Gen. 1954-56, pp. 234, 235, 236), dated March 9, 1955, May 6, 1955 and July 5, 1955 held that the above Code Section limits the use of county owned school buses to temporary pupils and school employees "to and from the public schools" and stated:
''It is my opinion that this would prohibit the Board from using such

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vehicles for any purpose other than that expressly stated." Since the above Code Section contains the words "motor vehicles and other equipment", I am of the opinion that a school bus body owned by a county board of education can not be used for any purpose other than transporting pupils and school employees "to and from the public schools." If the county owned body is removed from the chasis, the owner of the chasis would be free to use the same for his own private purposes provided this was not in conflict with any contractural obligation entered into with the local board of education.

EDUCATION-School Districts-Indebtedness (Unofficial)

School districts are separate political sub-divisions of the State, and can therefore incur a bonded indebtedness independently of any indebtedness for general authorized county purposes.

Mr. Spencer Teal

April 7, 1958

I am pleased to acknowledge your request concerning the question of whether a county school district is a separate political division of Georgia such as is authorized to incur a bonded indebtedness up to 7% of the assessed valuation of its taxable property, independently of and in addition to any outstanding general obligation county road bonds.
The question is answered in Nelms v. Stephens County School District, 201 Ga. 274; Pinion v. Walker County School District, 203 Ga. 99, 102-103. The latter case held:
". . . While the Constitution does not specifically say so, yet the frequently applied construction of this provision is that each separate political division of the State which has authority to issue bonds is authorized to incur an indebtedness up to 7 percent of the assessed valuation of its taxable property independently of any existing indebtedness of another district and separate municipality or other political body whose territory might be co-extensive in whole or in part with that of its own. Under this construction of the Constitution, there are previous decisions of this court recognizing the validity of city bonds, being issued by a separate political division of the State, although located within the limits of a county having issued bonds of its own, where the aggregate would exceed the limit of 7 percent of the assessed property of the municipality thus bonded. There are also decisions recognizing former local school districts as separate political divisions of the State, such as were entitled to incur a bonded indebtedness independently of county bonded obligations. Jennings v. New Bronwood School Dist., 156 Ga. 15 (118 S.E. 560); Ty Ty Consolidated School Dist. v. Colquitt Lumber Co., 153 Ga. 426 (112 S.E. 561). It necessarily followed that, upon the merger by the General Assembly of such local school districts, in harmony with the provisions of the Constitution of 1945 (Art. VIII, sec. V, par. I) into county-wide school districts, the new countywide district would likewise constitute a separate political entity and could do as a unit that which its previous component parts could have

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done separately, and could therefore incur a bonded indebtedness independently of any indebtedness for general authorized county purposes, and this court has so held in Nelms v. Stephens County School District, 201 Ga. 274 (39 S.E. 2d, 651). The only question raised, in the Nelms case was whether the existence of county bonds for general county purposes such as for building a courthouse would prevent the issuance of county-wide consolidated school district bonds where the two together exceeded 7 percent of the assessed valuation of the property to be taxed. The Nelms case simply applied the previous decisions as to the authority of former local school districts to incur a bonded indebtedness as a separate political division of the State, by holding that the consolidated district could do as a unit what the separate entities could have done separately...."

EDUCATION-School Funds-Allocation

Allocation of State funds to local systems for non-resident tuition paying pupils discussed.

Dr. Glaude Purcell

May 20, 1959

This will acknowledge receipt of your letter in which you request my opinion on the following question:
"Is a school system entitled to receive State funds and allocation of teachers for non-resident pupils for whom tuition is charged."

The Georgia Constitution of 1945 (2-6401) provides in part as follows: "The provision of an adequate education for the citizens shall be a
primary obligation of the State of Georgia, the expenses of which shall be provided for by taxation."

Georgia Code Annotated (32-937) provides in part as follows:

"Admission to all common schools shall be gratuitous to all children between the ages of six and 18 years residing in the districts in which the schools are located."
Under these provisions, the Supreme Court of our State has held that tuition may not be charged to students residing in the district served by a public school. See Moore vs. Brinson, 170 Ga. 680; State nf Georgia vs. Regents of the University of Georgia, 179 Ga. 210. However, a non-resident of a school district may be charged a fee by a local board of education. See Irvin vs Gregory, 86 Ga. 605; Edalgo vs. Southern Railway Co., 129 Ga. 258.
In certain cases, the General Assembly has made provision for the students of one county to attend schools in another county and provision is specifically made as to the disposition of State funds to be involved. This is the so-called county-line school law appearing in Code Section 32-938. I believe from your letter that you are not interested in the application of this law. However, the opinion which I wrote to you on May 5, 1959, dealing with the county-line law also answers the question which you presented in your letter of May 15, 1959. On pages 3 and 4 of the September opinion, I said:

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"If the child resides within two miles of the school of the adjoining county, measured by the shortest route by public road, it is mandatory that said child be permitted to attend that school and that the said school be reimbursed for said proportionate cost of education. This right can be enforced in the courts or by appeal to the State Board of Education. Where the distance is in excess of two miles, it would be presumed that the General Assembly, under our present law, did not intend for the school of the adjoining county to be reimbursed for the said proportionate cost of education in the absence of a voluntary agreement from the school district within which the child resides. inclusio unius est exclusio alterius. Bailey v. Lumpkin, 1 Ga. 392, 403. As to other authority of the school districts to contract with each other for the education, transportation, and care of pupils see also Ga. Code Ann., 2-7201, 2-5901. A bill to amend the distance found in Code 32-938 from two to five miles failed in the 1958 Session of the General Assembly. House Bill No. 786.
"Your request also raises the question as to the distribution of state school funds by the State Department of Education, i.e., where a child who is a resident of one county is attending a school in an adjoining county which is in excess of two miles from the child's residence. If the two local school districts enter into a contract with respect to who shall receive the state money allotted for the education of the said child, it is my opinion that under the constitution and laws of Georgia the State Department of Education should disburse the said money in accordance with the terms of the contract. However, in the absence of any such agreement between the school districts it would be presumed as stated above that the General Assembly did not intend that the school of the adjoining county should receive the money. As to the school district in which the child resides, it would be entitled to the state money alloted for the education of the said child only upon the basis of that child's record in the average daily attendance report under the Minimum Foundation Act of 1949 (Ga. Code Ann., Chap. 32-6). If the child was not in attendance at the school district of its. residence at a given year, there is no basis under the Minimum Foundation Act for the school district to receive state monies for said child for the next succeeding school year."

EDUCATION-School Funds (Unofficial)

Education funds of a county may not be used to pay premiums for workman's compensation insurance.

Honorable James Emory Findley

August 22, 1958

I am pleased to acknowledge your request concerning the legality of expending public education funds to pay the premiums on workmen's compensation insurance for employees of the Board of Education for the City of Savannah and the County of Chatham.

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Due to both the complexity of the local laws with respect to the public school system of the City of Savannah and the County of Chatham and the fact the said school system was established prior to the adoption of the Constitution of 1877, this opinion will be limited to the general law relating to county boards of education and the Workmen's Conpensation Act. Since the Savannah-Chatham School System is somewhat unique within this state, I would prefer that the specific question of the applicability of the general law to this local school system be made by you as their attorney.
In an opinion dated June 16, 1958 to the Honorable Richard W. Best, the Attorney General ruled that counties are subject to the Workmen's Compensation Act under the 1958 Amendment to Code 114-101. A copy of this opinion is attached hereto for your information. As to employees of a county board of education, Murphy v. Constitution Indemnity Company, 172 Ga. 378, 379, held that the board is merely the agency through which a county acts in school matters, i.e., employees of the county board of education are in fact employees of
the county. Board of Education v. So. Mich. Bank, 184 Ga. 641; Smith v. Boart of Education of Washington County, 153 Ga. 758; Board of Education of Houston County v. Hunt, 159 Ga. 749; Burke v. Wheeler County, 54 Ga. App. 81. Being
employees of the county, said county public-school employees are now covered by the Workmen's Compensation Act (Code 114-101) in the same manner as other county employees.
With regard to expending public funds for insurance coverage or qualifying as a self-insurer, it must be remembered that the original Workmen's Compensation Act was held to be unconstitutional as to counties for the reason that the Constitution did not specificially authorize taxation by counties for such purposes. Floyd County v. Scoggins, 164 Ga. 485; Kelly v. County of Newton, 198 Ga. 483(1). Also, Murphy v. Constitution Indemnity Company, 172 Ga. 378, held that the constitutional provision authorizing a county to tax for educational purposes did not include compensation for workmen's compensation. The court stated:
"... The power to expend money by the board of education from funds derived from taxation is shown in Board of Education of Wilkes County v. Butler, 154 Ga. 569 (115 S.E. 10), and (105 S.E. 366), and does not extend to the object above mentioned. It would be an unconstitutional expenditure of money by the Board of Education of Troup County to pay for personal injuries received by a bus driver under the circumstances herein stated, or for compensation insurance under the workmen's compensation act. . . ." The 1945 Constitution specifically provides that counties may tax to provide for workmen's comp-ensation. Ga. Code Ann., 2-5701. As to the Act of the General Assembly putting this section into effect, see Ga. Code Ann., 92-3701. However, the granting of authority to the county to tax for the purpose of providing for workmen's compensation in no way changes the holding of the Supreme Court in the case of Murphy v. Constitution Indemnity Company, supra, that "educational purposes" do not include expenditures of workmen's compensation. Also, Atlanta Chamber of Commerce v. McRae, 174 Ga. 590, held that the express powers of a county to levy taxes must be used for the prescribed purposes and none other. Thus, taxes levied by a county for any one of the enumerated purposes can not be used for any of the other enumerated purposes. Code 32-942 and 94-3708 specifically provide that public-school funds can not be used for other than schoo~ purposes. See also, Burke v. Wheeler County, 54 Ga. App. 81.

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On the basis of the above authorities, it is my opinion that the educational funds of a county cannot be used to provide for workmen's compensation for employees of a county board of education. This would be true as to the cost of such insurance coverage or qualifying as a self-insurer. The legal responsibility for compliance with the Workmen's Compensation Act insofar as the employees of a county board of education are concerned would lie with the governing authority of the county, i.e., in many counties the Board of Commissioners of Roads and Revenues.

EDUCATION-School Employees

A county Board of Education may pay or supplement the salary of a secretary in office of county agent.

Honorable Claude Purcell

September 25, 1958

I am pleased to acknowledge your request as to whether it is legal for a county board of education to supplement the salary of a secretary who is employed in the office of the county agent.

Ga. Code Ann., 32-994 provides 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 therefor. The board of education of the several counties may employ and pay county agents and home demonstration agents to carry on said extension work."
The case of Hanks v. D'Arcy, 156 Ga. 55 (1923), upheld the constitutionality of the above Code Section stating ". . . we can not go to the extent of saying that, beyond a doubt, the purpose contemplated and accomplished in authorizing the appointment of the county agent and home-economics agent lies beyond the scope of the words empowering the counties to levy a tax" for educational purposes.
Attention is called to the fact that the above Code Section is permissive not mandatory, i.e., the county boards of education "may" not "must" employ county agents and home demonstration agents. Since the board could so employ and pay agents, it is my opinion they could' employ and pay part or all of the salaries of employees of the agent.
In 1937 the Constitution was amended to specificially authorize counties to tax for the purpose of paying county agricultural and home demonstration units. This provision is also found in the Constitution of 1945 (Ga. Code Ann., 2-5701). Where county taxes are levied for such a purpose, the expenses and salaries

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of the county and home demonstration agent would be paid by the general governing body of the county, i.e., usually the Board of Commissioners of Roads and Revenues.

EDUCATION-School Funds-Expenditure
County board of education may not use funds to pay pro-rata cost of collecting delinquent taxes.

Honorable Claude L. Purcell

February 5, 1958

I am pleased to acknowledge your request whether or not the county board of education may pay a pro-rata part of the cost of charges made by the county attorney to the Commissioners of Roads and Revenues for the collection of delinquent taxes from an individual whose business has been placed in a receivership.
An opinion was rendered by this office on November 20, 1957, stating: "A county board of education has the authority to expend public
school funds for the purpose of employing attorneys to represent members of a county board of education where the controversy involves the power of a local board of eduction (local school district) or an officer and the validity of the exercise of such power. . . . the; local board of education has no power to employ counsel for a purpose outside its proper function...."
Public school funds can be expended for educational purposes and none other. Code Ann., 32-942, 94-3708. The collection of taxes for the public schools is not a proper function of the county board of education. The board only recommends to the fiscal authorities of the county the rate of levy to be made for taxes for the support and maintenance of education in the county. Ga. Code Ann., 32-1118.
Burke v. Wheeler County, 54 Ga. App. 81, held:
"The county board of education had no authority in this case to enter into a contract to employ an accountant to audit the books of the tax collector of the county, and the public-school funds in its possession could not legally be paid to the plaintiff for the purpose of compensating him on this contract. . .."
Since the collection of taxes is not a proper function of a county board of education, it is my opinion that the board cannot legally expend public school funds to pay any part of the cost of charges made by the county attorney to the Commissioners of Roads and Revenues for the collection of delinquent taxes from an individual whose business has been placed in a receivership.

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EDUCATION-School Funds-Expenditures

Expenditures of funds for improvement of Home Demonstration Council building discussed.

Honorable Claude Purcell

March 5, 1959

I am pleased to acknowledge your recent request concerning the question of whether a county board of education may legally expend funds for plumbing and electrical wiring in a Home; Demonstration Council Building owned by the said Council.

Ga. Code Ann., 32-942 and 92-3708 provide in part that school funds "shall be used for educational purposes and none other." See also in accord Burke v. Wheeler County, 54 Ga. App. 81. Also the Constitution of 1945 (Article VII, Section I, Paragraph I - Code 2-5402) prohibits the granting of a gratuity. This provision applies also to counties. Atlanta Chamber of Commerce v. McRae, 174 Ga. 590. However, Ga. Code Ann., 39-944 authorizes "county boards of education, to carry on educational work for the promotion of the extension work in agriculture and home economics."
The answer to the above question would therefore depend upon whether the expenditure was in the form of a gratuity or for the purpose of educational work in home economics. This is primarily a question that would have to be answered by local authorities.

EDUCATION-School Funds-Expenditures

If garbage fee charged by city against each water meter is for actual services, then expenditure of school funds is appropriate, but if it is an attempt to levy a tax, then the legality is highly doubtful.

Honorable Claude Purcell

December 15, 1959

This will acknowledge receipt of the letter from the Honorable E. G. Mathew, Superintendent of the Jeff Davis School System.
Mr. Mathew states: "The City of Hazlehurst assessed or set up a garbage fee of one dollar per month for each water meter in City of Hazlehurst. This fee of one dollar per month is being charged on each meter at the various schools in the City of Hazlehurst. Would this be classified as a tax, or would it be classified as a fee? Is this a legal expenditure by the Board of Education?" Under the statement in Mr. Mathew's letter, I am somewhat in doubt as to the actual nature of the charge imposed by the City of Hazlehurst. If the fee charged is for the actual services rendered by the City to the schools, payment of the same would be a legal expenditure of schools funds (see Ops. Atty. Gen. 1954-56, p. 244). However, if this charge is an attempt to impose a tax upon the county school property, it is doubtful if the City has the legal authority to do so. (Cf. City of Atlanta v. State of Georgia, 181 Ga. 346 (1935).

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EDUCATION-School Funds-Expenditures (Unofficial)

Public educational funds should not be used to pay indebtedness owed by school lunch room.

Mr. C. Lloyd Connell

August 29, 1958

In reference to your request whether it is legal to use public educational funds for the purpose of paying an indebtedness owed by a school lunch room, I am setting out below opinions rendered by the Attorney General of Georgia under the dates of Novembr 8, 1937, April 29, 1939, and January 22, 1952.
"Article VII, Section II, Paragraph 1 of the Constitution of 1945 authorizes the State to levy taxes 'for educational purposes.' Article VII, Section IV, Paragraph 1 authorizes the General Assembly to delegate to the counties power to levy taxes 'for educational purposes upon property located outside of independent school systems, as provided in Article VIII of this Constitution.' It is my personal opinion that the providing of school lunches for children is not included within the quoted Constitutional language. Of course, there is no court decision which I can cite for this opinion, but in view of the previous opinions rendered by this office, I would hesitate to say that 'educational purposes' includes a school lunch program.'' The 1958 Session of the General Assembly proposed an amendment to the Constitution of Georgia authorizing counties to levy a tax for school lunch room purposes. Ga. Laws 1958, p. 428. This amendment will be voted upon in the general election for this year. Ratification of this amendment would authorize the expenditure of general county tax funds for the school lunch program.

EDUCATION-School Funds-Expenditures

Expenditure of school funds to pay mileage and expenses of the Chairman of the County Board of Education is not authorized in the absence of local legislation.

Honorable Claude Purcell

December 15, 1959

This will acknowledge receipt of the letter from Mr. E. C. Mathew, County Superintendent of Jeff Davis School System, in which he asked if it is a legal expenditure to pay mileage to the Chairman of the County Board of Education for trips which he makes to Hazlehurst.
Section 32-904 of the Code of Georgia, as amended by Georgia Laws 1959, p. 231, reads as follows:
"32-904. The General Assembly is hereby authorized to provide the compensation of the members of county boards of education by local act. In any county for which no local act is passed, the compensation of the members of the county board of education shall be a per diem of $10.00 for each day of actual service. The accounts for such service shall be submitted for approval to the County Superintendent of Schools .."

~31

This Code Section, in providing for the compensation of members of a county

board of education, makes no mention of reimbursement for expenses. Under

the legal principle of includio unius excludio alternus, I am of the opinion that in

the absence of any local legislation, the chairman of a county board of educa-

tion cannot be reimbursed for his expenses.

.

EDUCATION-School Funds-Expenditures

1. School funds may not be used to purchase a stove for school lunch room use.
2. School funds may be used to purchase license plates for a library bookmobile if operated by the Board of Education.

Honorable Claude Purcell

September 15, 1958

I am pleased to acknowledge your request whether it is legal for a county board of education to expend public school funds for the purchase of a stove for lunchroom purposes and a tag and insurance for a library book-mobile.
As to the above, I am setting out below opinions rendered by the Attorney General of Georgia under the dates of November 8, 1937, April 29, 1939, and January 22, 1952.

"Article VII, Section II, Paragraph 1 of the Constitution of 1945 authorizes the State to levy taxes 'for educational purposes.' Article VII, Section IV, Paragraph I authorizes the General Assmbly to delegate to the counties power to levy taxes 'for educational purposes upon property located outside of independent school systems, as provided in Article VIII of this Constitution.' It is my personal opinion that the providing of school lunches for children is not included within the quoted Constitutional language. Of course, there is no court decision which I can cite for this opinion, but in view of the previous opinions rendered by this office, I would hesitate to say that 'educational purposes' includes a school lunch program."
With regard to the tag for the book-mobile, in my opinion it would depend on the question of ownership and operation of the public library. Code 32-2706 authorizes political subdivisions to establish and maintain public libraries for the purpose of education. Board of Education v. So. Mich. Bank, 184 Ga. 641, 642, held that "A county board of education is a political subdivision of the State ... an agency through which the county acts in school matters."- However, it is my understanding that the various counties differ as to the operation of public libraries. Some are operated by county boards of education whereas others are by commissioners of roads and revenues or cooperative library boards composed of several counties. If the county board of education operates a public library, it is my opinion that said board could legally expend public school funds for the purchase of a tag for their book-mobile. The same would be true as to the expense of insurance coverage. See Ga. Code Ann., 56-1013, 1014, 1015 (Supp.).

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EDUCATION-State Board-Appellate Jurisdiction

S.tate Board of Education has appellate jurisdiction to settle all disputes in school matters, to include disputes between County Board and School Superintendent.

Honorable M. D. Collins

April 3, 1958

I am pleased to acknowledge your request concerning various questions arising from a resolution passed by the Laurens County Board of Education. The dispute is between the local superintendent and the local board.
The Code of Georgia 32-414 provides a statutory method of resolving such matters of local controversy in reference to the construction or administration of scho.ol law. The Section provides as follows:
"The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive. Appeals to the Board must be made in writing through the county superintendents of schools, or the secretary of the Official Board of Independent Systems, and must distinctly set forth the question of law, as well as the facts in the case. The Board shall provide by regulation for notice to the opposite party and for hearing on the appeal."
In regard to the exhaustion of administrative remedies see also the case of Bedingfield v. Parkerson, 212 Ga. 654, 660-661.
In view of the above, I am of the opinion that the solution to any such dispute between the local superintendent and the respective local board of education would ultimately lie in resort to the statutory remedy provided in Code 32-414.

EDUCATION-State Board-Expenses

Members not authorized any per diem or expenses except as expressly provided by law.

Honorable Ernest Vandiver

March 17, 1959

I am pleased to acknowledge your request concerning the question as to whether the State Board of Education acted within its authority in authorizing a member per diem in addition to that which is specifically authorized by law. Your letter refers to a resolution of the State Board of Education dated March 14, 15, 1955. The pertinent excerpt is as follows:
"Mr. Peters at this time told members of the State Board of Education that inasmuch as Mr. Whitman is devoting so much time to the duties of serving as Chairman of the State Board of Education and Chairman of the State School Building Authority, he would like to recommend that Mr. Whitman be given an allowance to take care of his expenses and per diem, He asked Mr. Whitman about how much time he gives to these duties.

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Mr. Whitman replied that he would estimate that the work takes about 60% of his time. He spends three to four hours a day signing checks, goes to study committee meetings, and recently made a trip to New York for five days in January.
Mr. Peters suggested that Mr. Whitman be given five days a week at the customary rate, and that it be retroactive, dating back to the time Mr. Whitman took office.
Mr. Stewart made a motion that Mr. Whitman be given five days a week remuneration at the customary rate of $20.00 per day, in accord with Mr. Peters' recommendation. There was a second by Mrs. Talmadge and the motion carried unanimously."
The minutes authorize Mr. Whitman to "be given an allowance to take care of his expenses and per diem." The amount to be "five days a week remuneration at the customary rate of $20.00 per day." The word "allowance" is sometimes employed as referring to payments to public officers; as to "per diem", where a statute fixes an officer's compensation at a certain sum per day, such officer, performing any substantial service on a particular day, has a right to a per diem compensation for that day. 67 C.J.S. 90, p. 327.
While the State Board of Education is authorized by statute to employ personnel upon the recommendation of the State Superintendent of Schools (Code 32-410), the above stated resolution did not hire Mr. Whitman as an employee of the Board but rather attempted to compensate him for his many duties as Chairman and member of the State Board of Education. Mr. Whitman's duties would be confined to those specified by law. The State Superintendent of Schools is the executive officer of the State Board of Education and the State Department of Education. Code 32-504.
Ga. Laws 1953, Jan.-Feb. Sess., pp. 110, 111, provides that "the members of the State Board of Education as a committee or any committee of the Board when authorized by board action taken at a meeting held in the State Capitol in the Department of Education may hold committee meetings anywhere within or without this State when necessary to obtain information for future guidance of the board ..." "The State Board of Education may authorize any member of said board to travel within or without this State if necessary to obtain information for the guidance of the State Board of Education . . ." "All members of the State Board of Education shall be paid by the State Department of Education twenty dollars ($20.00) per diem for every day in attendance at meetings of the said board at the State Capitol in the Department of Education or while traveling as a member of a committee of said board which has been authorized by action of the board, plus actual traveling expenses."
It is a cardinal principle of law in this State that where the General Assembly expressly authorizes one thing, it necessarily excludes all others. Expressio unius est, exclusio alterius. Bailey v. Lumpkin, 1 Ga. 392, 403. Also, statutes providing for costs and salaries are to be strictly construed, and neither can be increased by construction and in any indirect manner beyond the amounts specified by law. Walker v. Sheftall, 73 Ga. 806; McAlpin v. Chatham County, 26 Ga. App. 695; Walton County v. Dean, 23 Ga. App. 97. A public officer takes his office cum onere, and so long as he retins it he undertakes to perform its duties for the compensation fixed, whether such duties be increased or diminished. He cannot claim extra compensation for the performance of additional work within the line of his official duties, unless additional compensation is provided

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by competent authority. Twiggs v. Wingfield, 147 Ga. 790; Mitchell v. City of Thomasville, 50 Ga. App. 304. The rule is also well settled that where fees or salaries are established for the services of public officers, the policy of the law prohibits special contracts between them and the public. Adamson v. Leathers, 60 Ga. App. 382, 387. Neither public agencies nor their officers can do any act, make any contract, or incur any liability not authorized by some legislative act applicable thereto. Bowers v. Hanks, 152 Ga. 659. Any attempt to fix a different compensation for a public officer other than that established by law is void and against the policy of the law. Owens v. Floyd County, 96 Ga. App. 25.
On the basis of the 1953 law, members of the State Board of Education may receive per diem and expenses in only two instances: (1) attendance at meetings of the said Board at the State Capitol, or (2) while traveling as a member of a committee of said Board under specific authorization of the Board.
The problem arises as to the proper interpretation of the Board's resolution authorizing per diem to Mr. Whitman. If a statute or resolution is susceptible of more than one meanig, it should be given a reasonable construction and interpreted so as to uphold the same. Forrester v. Culpepper, 194 Ga. 744, 749; Kent v. State. 18 Ga. App. 30, 32. However, if the language is plain, unambiguous and positive, and not capable of two constructions, it must be taken to mean what it says and is not open to construction. Fulton County Pension Board v. Askea, 95 Ga. App. 77, and cases cited therein.
As to the resolution of the State Board of Education, it is clear that the intention of the Board was "that Mr. Whitman be given five days a week remuneration at the customary rate of $20.00 per day." The said remuneration was in consideration of the fact that Mr. Whitman was giving approximately "60% of his time" to his duties as Chairman of the State Board of Education. It is also clear that the Board intended Mr. Whitman to receive this remuneration five days a week regardless of the fact of whether he rendered any services on those days and regardless of the fact of whether he traveled on each of these days for the purpose of obtaining information for the guidance of the State Board of Education.
Records of the State Department of Education and the State Auditor indicate that Mr. Whitman has drawn approximately $1600.00 under authority of the Board's resolution of March 14, 15, 1955. Your letter states that as of December 31, 1958, Mr. Whitman has let some $17,200.00 of this authorization accumulate to his account in the State Department of Education.
On the basis of the above cited authorities, I am of the opinion that the State Board of Education has not been empowered by the General Assembly of Georgia to authorize the payment of per diem and traveling expenses to any of its members for services performed as a member of the said Board except as specifically provided by statute.
L am of the further opinion that the action of the State Board of Education, in authorizing the payment of five days a week per diem to a member of the said. Board without regard to the fact of whether the said member was at. tending meetings of.the Board or traveling for the purpose of obtaining informa.tion for the guidance of the Board, was and is beyond the' scope of its authority.

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EDUCATION-State Board-Old State, Farmers' Market

State Department of Education has complete control over Old State Farmer's Market and may contract concerning use of the property.

Honorable Claude Purcell

July 17, 1959

This will acknowledge receipt of your letter in which you enclosed a resolution adopted by the State Board of Education and request my opinion as to the validity and the binding effect of the resolution.
The resolution requests the approval of the Surplus Property Utilization Division, OFA, for the use of $200,000.00 of surplus funds held by the State Agency for Surplus Property in the construction of new facilities for the agency. The resolution further guarantees that the State Agency for Surplus Property will have the occupancy of the new facilities at the Old State Farmers' Market on a pernanent basis for the time necessary to amortize the advance rental payments, and that the amount amortized each year will not be in excess of $24,000.00.
As I stated to you in my letter of June 4, 1959, the State Department of Education has complete control of the Old State Farmers' Market. The State Board of Education has authority" - - - - - to accept on behalf of the State of Georgia any funds which may be now or hereafter provided for, - - - - - under any governmental regulation, order or declaration of policy for either vocational or other educational purposes conducted either in or out of school, - - - - -" (Ga. Code Anno. 32-413). The Board is further authorized "- - - - - to contract with and cooperate with any department, agency or instrumentality either of the State of Georgia or of the United States, in any manner which shall be requisite or incident hereto, which in the judgment of said Board may be deemed proper for the carrying into effect of the purposes of this Chapter, - - - - -" (Ga. Code Anno. 32-413).
In view of these circumstances and authorities, I am of the opinion that the resolutions adopted by the State Board of Education is valid and binding.

EDUCATION-Students-Assignment (Unofficial)

County Board of Education has control and management of schools, including assignment of pupils.

Mrs. A. C. McKay

August 28, 1956

I am pleased to acknowledge your letter concerning the assigning of pupils to a particular school within a county.
In reference to your comment about class "A" and class "C" schools, there is no such classification under the laws of Georgia. All schools in Georgia are considered to be equal under the Minimum Foundation Act of 1949. This Act declares the public policy of this state to be that educational opportunities for all citizens of Georgia shall be equalized.
It is my understanding that the Georgia High School Association; a volun-

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tary unofficial association, classifies high schools as A, B, C and etc. for the purpose of matching schools of comparable size in athletic events such as football and basketball. Their classification has no relevancy as to the quality of academic education within the various schools. No school is required to join this association.
With regard to pupil assignment, both the Constitution of Georgia and the statutes provide that the control and management of the public schools of a county school district is confined to the county board of education. Ga. Code Ann., 2-6801, 32-901. The county board of education is the tribunal for hearing and adjudicating all local controversies relating to construing and administering school law. Any party has the right to appeal the question in dispute to the State Board of Education. Ga. Code Ann., 32-910 and 32-414.

EDUCATION-Students-Maried

Local board of education may legally determine presence of pregnant married student injurious to welfare and suspend her.

Honorable Claude Purcell

June 9, 1958

I am pleased to acknowledge your request concerning whether or not a local board of education could legally require a married female pupil to withdraw from school upon the ground that the said female pupil was pregnant.
The Constitution and the Georgia Code give the right and require that children attend the common schools of Georgia.
The Constitution of 1945 (Code Sec. 2-6401) provides in part as follows: "The provision of an adequate education for the citizens shall be a
primary obligation of the State of Georgia, the expense of which shall be provided for by taxation ..." Georgia Code Annotated, 32-937 provides in part as follows:
"Admission to all common schools shall be gratuitous to all children between the ages of six and 18 years residing in the districts in which the schools are located...."
While all this is true, the Code also gives to the county board of education the right to make rules to govern its county schools. Under such authority, the county board of education may suspend children from School for conducting themselves in a manner calculated to produce disorder or committing immoral acts. See, Board of Education of Cartersville v. Purse, 101 Ga. 422; 47 Am. Jur. 177, p. 429.

In reference to rules and regulations adopted by school boards, 79 C. J. S. 446, p. 350, provides as follows:
"Such rules and regulations, however, must be reasonable; otherwise they can not be enforced. Thus, a rule or regulation has been held unreasonable ... which excludes him from admission entirely because he is married...." See also 47 Am. .Jur. 155, p. 412. On February 3, 1955, I rendered an opinion (Op. of the Atty. Gen., 1954-56, p. 276) holding that a local board of ed1,1cation can not deny a pupil the right

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to continue attending the public schools of Georgia on the ground that said pupil was married. Citing McLeod v. State, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161. Also on an appeal by a married high school football player, the State Board of Education on March 19, 1958 reversed a Polk County Board of Education decision and held that a student could not be excluded from extra curricula activities merely on the basis of marriage alone.
However, it would seem quite reasonable for a local board of education to determine that a married female pupil in the status of pregnancy could injuriously affect the welfare and discipline of the pupils of the schools to such an extent that said married pupil should be susupended from the school. See 47 Am. Jur. 155, p. 412. It has been the uniform rule in Georgia that the courts will not interfere with local boards of education in school matters except when they are violating the law or grossly abusing their discretion. Bedingfield 'V. Parkerson, 212 Ga. 654, 660. Generally it is considered that if the opinion of a court is to be substituted for the judgment and discretion of a board of education at the will of a disaffected pupil, the government of our schools would be seriously impaired, and the position of school boards in dealing with such cases will be most precarious. The courts will not generally consider whether such rules and regulations are wise or expedient. The findings and conclusions of the local boards should be conclusive unless they act corruptly, in bad faith, or in clear abuse of their powers. Coggins v. Board of Education of City of Durham, 223 N.C. 763, 28 S. E. 2d 527.
Therefore, in answer to your specific inquiry, I am of the opinion that a local board of education could legally determine that the presence of a married female pupil in the status of pregnancy would injuriously affect the welfare and discipline of the pupils of the school to such an extent that the said married pupil should be suspended from school by the said board.

EDUCATION-Students-Non-resident

Students may attend school in another county if reside within two miles of school in other county, or county boards of education may contract for students who live more than two miles from such schools.

Honorable Claude Purcell

September 5, 1958

I am pleased to acknowledge your request concerning the rights of public school children to attend public schools outside the school district of their residence.
Both the Constitution of 1945 and the Code state that the control and management of the public schools of a county school district shall be by the County Board of Education. Ga. Code Ann., 2-6801, 32-901. The Supreme Court of Georgia "has repeatedly held that the law vests full power and authority for the operation of schools in the County Board of Education." Dower 'V. Stevens, 194 Ga. 598; Boney v. Board of Education of Telfair, 203 Ga. 152; Keever v. Board of Education of Gwinnett County, 188 Ga. 299.
"As aptly stated by the trial judge: 'Dodge County still has its financial responsibility, and its board of education has the liability and the

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responsibility to see that every child in this district attends school, the very best school it can provide for it, whether it is on this site or somewhere else. As to what is best for this school pupils and what is the best educational interest of that particular district is vested in the board of education of Dodge County'."
On the basis of the above authorities it is my opinion that a local board of education has the authority to designate which school within its school district shall be attended by a particular pupil, i.e., assignment of pupils in the public schools. A bill giving the boards of education specific authority to assign pupils was killed in the 1955 Session of the General Assembly on the ground that said boards already possessed the authority sought to be conferred thereby. Senate Journal 1955, pp. 51, 60, 61, 122, 126, 130; House Journal 1955, p. 239.
The Constitution and Code provide that an adequate education for citizens is a primary obligation of the state and that "admission to all common schools shall be gratuitious to all children between the ages of six and 18 years residing in the districts in which the schools are located." Ga. Code Ann., 2-6401, 32-937. The Supreme Court has held that "A charge for matriculation can not be imposed as a condition precedent to the admission of children to a public school forming a part of the general school system of children living in the territory of the school and otherwise qualified." Moore v. Brinson, 170 Ga. 680, 686. However, the "right of school authorities to charge tuition for children who are nonresidents of the territory where the school is located has never been and can not be seriously doubted." Edalgo v. Southern Railway Co., 129 Ga. 258 266; Irvin v. Gregory, 86 Ga. 605.
With regard to pupils residing near a school situated in another school district, the General Assembly has provided a specific Oode Section (32-938) stating:
"In special cases to meet the demand of convenience children residing in one county may by express permission of the county board of education attend the common school of another county, and when a common school is located near a county line, children from an adjoining county shall be permitted to attend the school: Provided, such children reside near such schools or said school is more accessible to the residence of such children than any public school in the county of their residence. In such cases the teachers shall report separately the pupils from each county, but make the reports to the superintendent of schools of the county in which the school is located, and with which superintendent the teacher shall contract and from whom she shall receive her pay; but such superintendent shall report to the superintendent of the other county, and shall be reimbursed by him for the proportionate amounts paid for maintenance of said school in the ratio of the attendance. Arrangement for attendance upon county line schools is under the authority and direction of the superintendents concerned representing their respective boards, and provisions shall be made for such children just as for others. The word 'near' as used herein shall mean within two miles of the school of the adjoining county, measured by the shortest route by public road. When the county officials fail to arrange or contract for the attendance of such children, as aforesaid, the parents of such children shall have the right, by mandamus, to compel the county board of education of the county of their residence to make such a contract, or to appeal to the State Board of Education. The decision of the State Board

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of Education shall be final and binding on the local board."
The case of Board of Education of Rockdale County v. Gresham, 21 Ga. App. 440, interpreted the word "shall", found in the first sentence of Section 32-938, to be mandatory. The language of the Court is as follows:
"It appears that the purpose of the legislature was to make such right of attendance independent of any permissive authority of the county boards, the only condition to such right of attendance under the present statute being the added requirement that such children reside nearer such school, or that it shall be more accessible to the, residences of such children than any public school in the county of their residence."
While the above case was decided in 1917 and the statute has been amended twice (1919 and 1946) subsequent to that time, the relevant portions of the statute as to the basic right set out in the Gresham case remains the same. If the child resides within two miles of the school of the adjoining county, measured by the shortest route by public road, it is mandatory that said child be permitted to attend that school and that the said school be reimbursed for said proportionate cost of education. This right can be enforced in the courts or by appeal to the State Board of Education. Where the distance is in excess of two miles, it would be presumed that the General Assembly, under our present law, did not intend for the school of the adjoining county to be reimbursed for the said proportionate cost of education in the absence of a voluntary agreement from the school district within which the child resides. Inclusio unius est exclusio alterius. Bailey v. Lumpkin, 1 Ga. 392, 403. As to other authority of the school districts to contract with each other for the education, transportation, and care of pupils see also Ga. Code Ann., 2-7201, 2-5901. A bill to amend; the distance found in Code 32-938 from two to five miles failed in the 1958 Session of the General Assembly. House Bill No. 786.
Your request also raises the question as to the distribution of state school funds by the State Department of Education, i.e., where a child who is a resident of one county is attending a school in an adjoining county which is in excess of two miles from the child's residence. If the two local school districts enter into a contract with respect to who shall receive the state money allotted for the education of the said child, it is my' opinion that under the Constitution and laws of Georgia the State Department of Education should disburse the said money in accordance with the terms of the contract. However, in the absence of any such agreement between the school districts it would be presumed as stated above that the General Assembly did not intend that the school of the adjoining county should receive the money. As to the school district in which the child resides, it would be entitled to the state money allotted for the education of the said child only upon the basis of that child's record in the average daily attendance report under the Minimum Foundation Act of 1949 (Ga. Code Ann., Chap. 32-6). If the child was not in attendance at the school district of its residence at a given year, there is not basis under the Minimum Foundation Act for the school district to receive state monies for said child for the next succeeding school year.

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EDUCATION-Teachers (Unofficial)

Teacher may be candidate for Board of Education, but if elected, should not be rehired~ for next terms so long as retained membership on board.

Honorable Marion T. Pope, Jr.

August 17, 1959

This will acknowledge receipt of your letter in which you request the opinion of this office as to whether the principal or a school teacher in an elementary school could be a candidate for the county board of education.
Article VIII, Section V, Paragraph I of the Constitution relates to election of county boards of education and states that the only requirements relating to the qualifications of members are that they be citizens of the county and freeholders. The provisions of Code Section 32-902 further state that "no publisher of school books nor any agent for such publisher nor any person who shall be pecuniarily interested in the sale of school books shall be eligible for election as members of any board of education or as county superintendent of schools."
I am unable to find any express prohibition against a teacher being a member of a county board of education. However, I would like. to call your attention to the provisions of Section 32-604 of the Annotated Code which provides that the teachers, principals, and other school employees, shall be elected by the boards of education. Generally, where the power to appoint is conferred upon a board and the statute conferring the appointing power does not expressly authorize self-appointment, the appointment of some other than self is always contemplated. See Parrish vs. Town of Adele, 144 Ga. 242 (1915); Hawkins vs. Intendant of Jonesboro, 63 Ga. 527. Under the provisions of this line of authority, although a teacher might be initially elected to a county board of education, he or she would not be eligible to be re-elected as a teacher.

EDUCATION-Teachers-Housing

A County Board of Education may not issue revenue certificates to construct houses to be rented to public school teachers.

Honorable Claude Purcell

July 22, 1958

I am pleased to acknowledge your letter concerning the legality of a county board of education issuing revenue certificates under the "Revenue Certificate Law of 1937" for the purpose of constructing houses to be rented to public school teachers.
Ga. Code Ann., 87-802 (Supp.) authorizes the following revenue-producing undertakings:
" (4) Dormitories, laboratories, libraries and other related facilities; "(5) ... buildings to be constructed and used for the housing of exhibits
for fairs and educational purposes; buildings to be used for the housing of livestock, horses, cattle, swine, poultry and agricultural exhibits for exhibition purposes; the erection and construction of buildings to be used for amusement purposes or educational pur-

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poses or a combination of the two; ..." (Emphasis Supplied). First, with respect to paragraph (4), quoted above, I do not believe that the emphasized general phrase "other related facilities" could be construed to include housing facilities for teachers.
In construing statutes, "the courts shall look diligently for the intention of the General Assembly," Code 102-102(9), and one rule of statutory construction applicable here is the ejusdem generis rule, defined in Accident and Casualty In.s. Co. et al. v. Cook, 72 Ga. App. 241, 144, as follows:
"... Where general words follow special words in an enumeration, describing the legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. 2 Sutherland on Statutory Construction (3d ed.) p. 395, 4909. . . ." The specific subjects, i.e., "dormitories, laboratories, libraries", enumerated prior to the general phrase "other related facilities", all relate to facilities that constitute an integral part of the physical school properties for use by the students and public generally, whereas housing facilities would not be constructed as a part of the school plant or for use by the public generally, notwithstanding the incidental public benefit to be derived therefrom in facilitating the employment of desirable teachers.
Second, with respect to paragraph (5), since this paragraph contains no general language, it could not be said that merely because reference is made to housing facilities for swine, cattle, etc., it necessarily follows that the Feneral Assembly also intended to include housing for teachers. Expressio unius est, exclusio alterius. Cattle, swine and other domestic animals constitute only one type of personal property belonging to the school which would require housing no different than class room furniture or laboratory supplies. Here again, these subjects would be used as an integral part of the educational operation, whereas the home or living quarters of a teacher would hardly be said to fall in the same category. For a like reason, I do not believe that the phrase "... buildings to be used for ... educational purposes ..." could be construed to include housing facilities for teachers.
I am also enclosing for your information a copy of an opinion dated January 6, 1954, (Ops, Atty-Gen. 1954-'56, p. 291), holding that public school funds cannot be used to purchase a home for teachers, i.e., the term "educational purposes" does not include the construction of public school teacher housing projects. Also enclosed is an opinion of March 16, 1956 (Ops, Atty-Gen., 1954-'56, p. 292), regarding the use of the teaching home economics building after normal school hours.

EDUCATION-Teachers-Salaries

Word "shall" in 1957 Act unfreezing chargeback of Minimum Foundation Program is mandatory and any increased funds must be used exclusively for "salaries."

Honorable Claude Purcell

March 17, 1959

I am pleased to acknowledge your request concerning an interpretation of Ga. Laws 1957, p. 651 relating to unfreezing of the chargeback under the M;ini-

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mum Foundation Program of Education Act. In 1953, the calculation of the local financial ability section of the Minimum
Foundation Program of Education Act (Ga. Laws 1949, p. 1406) was amended to freeze the State school tax digest at a figure not to exceed the said digest for the year 1952. The 1957 Act repealed this freeze and stated in Section 2 thereof that "Any increased funds made available in the next fiscal year and annually thereafter by the passage of this Act shall be used for teachers salaries."
In my opinion, the word "shall" is mandatory and indicates that any such increased funds must be used exclusively for "teachers salaries." As to interpreting the words "teachers salaries", the Minimum Foundation Program of Education Act vests power in the State Board of Education to adopt rules and regulations to carry out the purposes of the said Act. Ga. Code Ann., 32-604. The schedule of minimum salaries for teachers is fixed annually by the State Board of Education. Ga. Code Ann., 32-606. Therefore, in construing Section 2 of the 1957 Act, I am of the opinion that the "manner" in which such increased funds shall be used for "teachers salaries" lies within the sound discretion of the State Board of Education.
EDUCATION-Teachers-Scholarship Program
Administration of Teacher Scholarship Program discussed. November 18, 1959
Honorable Claude Purcell
This will acknowledge receipt of your recent letter concerning the administration of the Teacher Scholarship Program authorized under the 1958 amendment to Article VII, Section I, Paragraph II of the Constitution. (Ga. Code Anno., Section 2-5402). The specific question asked by you is whether funds used to pay scholarships may be paid directly to colleges where students are attending or whether the student himself must receive the scholarship.
The Section of the Constitution involved provides: "The State Board of Education shall have the authority to grant
to citizens who are interested in becoming teachers . . . such scholarships as are necessary for them to complete programs of study and preparation for teaching. The terms and conditions thereof shall be prescribed and regulated by the State Board of Education." Webster's Dictionary defines a scholarship as a foundation for the support of a student. I believe that this is an acceptable definition of the word as used in the Constitution. Hence, I see no objection to you making payments directly . to colleges for the benefit of the students. The Board of Education has authority to prescribe the terms and the conditions of the scholarships granted and this would seem an entirely reasonable and proper regulation to require for the receipt of scholarship aid. This office has already furnished to Mrs. Patterson, Teacher Recruitment Consultant, a copy of two (2) suggested forms to be used in connection with the rant of the scholarship aid under the quoted provision of the Constitution. One of-these forms was a Note to be signed by the student at the time paymen'.s

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are made to the college involved. I would suggest as a practical matter of administration that checks for the amounts of scholarship aid for a given quarter or semester be made payable to the college and the student. The check along with a Note would be sent to the college itself with the request that the student sign the Note and have the college return it to your Department. The college of course, would be required to obtain the student's indorsement on the check in order to cash it, so you could be assured that the student himself was ack~ nowledging receipt of the scholarship aid.

EDUCATION-Television

The State Board of Education may acquire, maintain, and operate an educational television station.

Honorable George P. Whitman,

August 29, 1958

I am pleased to acknowledge your recent request whether or not the State Board of Education may legally acquire, maintain and operate an Educational Television Station. Under the plan proposed by the Board, it would acquire the station and necessary licenses from the F.C.C., and broadcast educational programs consisting of classroom instruction in subjects embraced within the curriculum as prescribed by regulation for the public school system under Code 32-408.
The actual teaching and conduct of the classes to be broadcast would not be paid for nor actually produced by the State Board or its representatives, but would be conducted by teachers on the payroll of public schools located in the community. Of course, the costs of operating the station, including the salaries of engineers and other technical personnel, would be paid by the State Board.
The programs would be broadcast on V.H.F. channels during such hours of the day as would facilitate their incorporation into the daily classroom schedules of the schools within the area to be covered by the broadcast, and each school participating in the program would have installed at its own expense the necessary television receivers. These receivers would be placed in the classrooms to be operated during the broadcast under supervision of a local teacher or instructor, who would be present at all times during the broadcast to explain, and where necessary, supplement the video presentation.
The formulation and adoption of this undertaking represents the results of careful, deliberate and constructive thinking by the responsibile state officials charged with the development and continued progress of education in Georgia.
Faced with the foreboding prospect of a progressively increasing influx of students in numbers that overwhelm the imagination, it has been determined that the televising of classroom instruction may well constitute the only salvation in the educational and financial dilemma confronting the state. Other states are already experimenting along these lines, and the reported results appear to be encouraging.
The specific legal question that arises concerns the question raised by the state auditor as to whether or not the operation of a television station by the

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State Board would infringe upon the provisiOns of the Constitution vesting the authority and duty of establishing and operating schools on the several county boards of education, Art. VIII, Sec. V, Par. I (Code 2-6801), and existing independent systems, Art. VIII, Sec. VII, Par. I (Code 2-7001).
While the Constitution of 1945 (Code 2-6801) provides that the public schools of a county shall be confined to the control and management of the county board of education, the purpose of this enactment is set out in Saxon v. Bell, 201 Ga. 797, 798, where the court held:
"As pointed out by this Court in Wheeler v. Fargo Consolidated School District, 200 Ga. 323 (37 S.E. 2d, 322), the General Assembly in 1919 enacted a very comprehensive code of school laws. See Ga. L. 1919, p. 288; Code, 32-901 et seq. This court in the Wheeler case, supra, said: 'The Constitution of 1945 simply made constitutional the first quoted portion of the Act of 1919, thereby creating a constituional board of education for the counties, and that is all this provision did.' It follows that the Constitution of 1945 did not purport to disturb our comprehensive code of statutory school laws other than to make the offices of county school superintendent and county boards of education constitutional rather than statutory offices."
The State Board of Education was made a constitutional body by an amendment in 1943 to the Constitution of 1877. That amendment provided that the "State Board of Education shall have such powers and duties as provided by law existing at the time of the adoption of this amendment, together with such further powers and duties as may hereafter be provided by law." Thus we see that the State Board of Education was made a constitutional body some two years prior to county boards of education.
The Code, Chap. 32-4, vests the State Board of Education with latitudinous authority. Section 32-403 declares that "The State Board of Education shall provide rules and regulations for the supervision of all public schools of this State; they shall provide a course of study for all common and high schools receiving state aid .. .'' Section 32-437 directs the State Board of Education to "make available uniformly to the public schools of the State, and the educational institutions of the Satte engaged in education and training of teachers, ~he curriculum materials, the units of instruction, and the suggested methods of instruction which are developed under the provisions of this law.'' All of these laws were in effect at the time of the adoption of thet 1943 Amendment to the Constitution of 1877. The identical provisions of the 1943 Amendment are found in the Constitution of 1945, i.e., State Board of Education has such powers and duties as provided by law.
In addition, the proposed plan under no view of the matter constitutes the establishment for operation of a school by the State Board of Education. Classes would be conducted and held in each local school and classroom the same as always, subject to control and supervision of local teachers and school officials. Not a single pupil would be removed from a county school system and placed in any state institution. Even the TV teachers' would be employed and paid by local systems participating in the program. The pupils would be subject to discipline of local teachers and no one else. What has been done is merely the furnishing by the state of bare raw materials and the means of communication by which instruction imparted by a local school teacher is made available to all the school children in their own local school rooms, no different than the furnish-

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ing of educational film and other materials which have long. been made available without question by anyone.
On the basis of the above authorities, I am of the opinion; that the above proposed program of educational television is not in conflict with the provision of the Constitution of 1945 which states that the public schools of a county shall be confined to the control and management of the county board of education.

EDUCATION-Textbooks-Selection (Unofficial)

The State Board of Education is authorized and empowered to regulate textbooks used in schools of State.

Mrs. Gertrude Stephens

October 21, 1958

I am pleased to acknowledge your informative letter concerning the use of certain high school textbooks in the public schools of Georgia.
As to the selection of textbooks, Ga. Code Ann., 32-707 provides as follows:
"The State Board of Education is authorized and empowered to prescribe by regulation the textbooks to be used in the various grades in the public schools of this State, including the elementary grades and high school grades. The Board may provide, by requisition, for multiple listings of books for use in the various grades, and may, in its discretion, authorize the county school superintendent or the superintendent of independent school systems, to exercise a choice as between books so listed or adopted for any particular grade." Ga. Code Ann., 32-709 provides as follows:
"The State Board of Education shall select a committee or committees of educators actually engaged in public school work in this State to examine textbooks and make recommendations thereon to the State Board of Education. Such committee or committees shall consist of such number of educators as the Board may deem advisable, not exceeding five in each instance. They shall serve for such time and for such duties as the State Board of Education may prescribe, and receive such compensation as may be fixed by the State Board of Education."
The following policies concerning textbooks have been adopted by the State Board of Education:
1. That the use of textbooks be furnished free to all pupils attending the public schools of Georgia.
2. That the distribution of textbooks be on a budget basis and that an allocation of textbook funds be set up to the credit of each local school system according to the grade enrollment of the previous year.
3. That textbooks in the field of industrial arts, and other special fields, be furnished upon the evaluation and recommendation of the state supervisory unit; provided, no textbooks to be furnished except upon the requisition of the superintendent of local school systems.
4. That a multiple listing of textbooks shall be adopted on the state level and that local school systems shall make their adoption from the state list.

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5. That the superintendent and board members of local school systems shall appoint textbook committees from among their teachers, principals, and instructional supervisors, to make a recommendation to the superintendent and the local board of education, the books to be used on the local level selected from the state-adopted list.
6. That the State Department of Education shall do all of the ordering of instructional materials upon the requisition of the superintendent of local school systems and shall have said materials charged to the Georgia State Board of Education and the amount subtracted from the allocation to said local school systems.
7. That the area supervisors shall approve all textbook requisitions."

ELECTIONS-Candidates (Unofficial)

Qualifications of a candidate are determined as of date of the election.

Honorable J. T. Cheney

February 13, 1958

This is in pursuance of our telephone conversation this morning in which you requested my opinion on the question as to whether or not a member of the county board of education would be eligible to run in a county Democratic primary to be held in March for the office of County Commissioner.
The Code, 89-103, declares that no person shall hold, or be commissioned to hold, at any one time, more than one county office.
However, a primary is not an election in the strict sense of the term, Norton v. State, 5 Ga. App. 586; Cox v. Peters, 208 Ga. 498, app. dism. 342 U. S. 936, and obviously does not result in placing the successful nomine.e in the position of "holding" an office within the meaning of Code 89-103. Consequently, I am of the opinion that the person in question could legally run in the county primary without affecting either his present position, or else being disqualified to receive the nomination for county commissioner. I understand, of course, that if the person receives the nomination in March, he will resign as a member of the school board prior to qualifying in the general election for commissioner.
Secondly, under any circumstances, the qualifications of a candidate are determined as of the date of the election. Hulgan v. Thornton, 205 Ga. 753, 757. Thus, under any view of the case, since the party in question plans to resign from the School Board before the general election, he would be eligible and qualified to run therein. However, here the matter goes even further than that. Code 89-103, referred to above, does not say that a person holding one office shall be disqualified to be elected to another. It merely' says that a person may not hold two such offices at the same time. The effect of this language is that a person holding one office is not disqualified from running for another, but on election to the latter office, he automatically forfeits the first. McWilliams v. Neal, et al., 130 Ga. 733; Casey v. McElreath, 177 Ga. 35.
Lastly, Code 89-103 refers to "county officers." In a technical sense, the term "county officers" includes only to the "county officers" referred to in the Constitution, Art. XI, Sec. II, Par. I (Code 2-7901), i.e., those who are elected by the qualified voters of their respective counties and hold office for four years.

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loulihan, et. al. v. Saussy, ordinary, 206 Ga. 1, 5. Absent any local constitutional .mendment, county school board members are not elected by the voters, but are .ppointed by the grand jury. Const., Art. VIlli, Sec. V (Code 2-6801). Within he meaning of Code 89-103, it may be that a member of a county board of ,ducation is not a "county officer". Cf. Andrews, et al. v. Butts County, 29 Ga. \.pp. 302; McLain v. State, 71 Ga. 279 (3). The right of a citizen to hold public 1ffice is the rule, and ineligibility the exception, McLendon v. Everett, 205 Ga. '13, and hence statutes limiting the right to hold office are liberally construed n favor of candidates therefor. Weems v. Glenn, 199 Ga. 388. However, in a lifferent context, a member of a county board of education has been held to be L county officer. Stanford v. Lynch, et al., 147 Ga. 518, 519. However, I do not ind it necessary to determine this question, as you state that the board member >lans to resign assuming he receives the nomination in the primary.

~LECTIONS-County Board of Registrars-Registration Cards (Unofficial)

Voter registration cards, where kept.

Eionorable Bill Westbrook

February 2, 1959

This will acknowledge receipt of your letter in which you ask whether it is permissible for members of the Board of Registrars to keep registration cards at places other than the office designated in the Voters Registration Act.
Code Section 34-110 contained in the 1958 Cumulative Pocket Part to the Annotated Code of Georgia is codified from the Voters Registration Act of 1958 (Ga. Laws 1958, p. 269). That Code Section reads as follows:
"34-110. Same; place of keeping; maintaining office where applications for registration will be take. - The registrars shall keep said registration cards at the tax collector's or tax commissioner's office, where one or more of their number, or one or more of their deputies shall be stationed for the purpose of taking applications for registration. In those counties where the registrars have a separate office, the registration cards shall be kept in such office. Any such office shall be in the courthouse or other publicly owned or publicly rented or publicly leased building. Each applicant for registration shall apply in person at the office where the registration cards are kept. The presence of any such official shall not be required except at such times as said office is open at regular hours."

As you can see, this section is self-explanatory and requires the cards to be kept in the office and provide that each applicant for registration shall apply in person at the office where the registration cards are kept.

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ELECTION-Ballots-Absentee (Unofficial)

Absentee ballots, to whom returned.

Honorable Carolyn Harris

August 8, 1958

This letter is in response to your request that I advise you as to whom absentee ballot must be returned.
Our absentee ballot law is found as Chapter 34-33 of the Annotated Code.

Under Code Section 34-3508, it is provided: "34-3303. The coupon hereinafter provided shall be enclosed within
the envelope addressed to the registrars, and immediately mailed."
Section 34-3305 provides that the registrars shall furnish to an applicant for an absentee ballot "a properly addressed envelope for the return of said ballot". I believe that the envelopes described in these two Sections are the same, and that it is necessary that the envelope for the return of the Ballot be addressed to the registrars of the county involved.
You specifically requested advice as to whether this law would be applicable in the forthcoming Democratic primary. Under the provisions of Code Section 34-3801, I am of the opinion that the voting by mail law applies in primary elections.

ELECTIONS-Ballots-Marking (Unofficial)

Marking of ballots for disabled voter.

Mr. L. L. Perry

September 4, 1958

This will acknowlede receipt of your letter which reads in part as follows:
"What is meant by that section of code which provides that in case a voter is blind, maimed, or 'otherwise disabled', he may have two Poll Holders or a 'free holder of his choice' to assist him in marking his ballot. For instance, is a person who is able to read and write and can see normally and is able to carry to the polls a baby in one arm considered to need help? Who is to decide whether or not an individual needs assistance?"
I have not been able to find any Code Section which uses the exact language as quoted above, but I believe you have reference to Annotated Code Section 34-1903. The pertinent part of that section reads as follows:
" .. Any voter applying to vote who shall state under oath in writing to any of the managers, which said oath may be administered by any of the managers, that by reason of his inability to read the English language, or by reason of blindness or the loss of the use of his hands or other physical infirmity, he is unable to prepare his ballot, may have the assistance of any two managers, jointly or separately, in the preparation of his ballot, or may select any freeholder of his choice to aid him in the preparation of his ballot. . . ."

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You will note that this Code Section is specific as to the procedure to be followed and provides that a voter must state under oath, in writing, one of the reasons listed in order to obtain help in preparing his ballot. As a general rule, it would occur to me that the person you use as an example in your question would not be one who would qualify under this particular section. However, without knowing all the facts involved, we, of course, are not able to state whether a particular person would qualify under this particular section. Actually it is a question which addresses itself to the voter, inasmuch as the voter must state under oath that he needs assistance, and in the event he does not need assistance, he is subject to criminal prosecution. The section is not absolutely clear as to whether the managers could refuse to allow a person to receive such assistance in the event such an oath were signed.

ELECTIONS-County Board of Registrars-Compensation (Unofficial)

Compensation of Chief Registrar discussed.

Mr. Archie Purvis

February 14, 1959

This will acknowledge receipt of your letter in which you request information relative to the compensation of Chief Registrar.
The last paragraph of Section 3 of the 1958 Voters' Registration Act reads as follows:
"The chief registrar shall be the chief administration officer of the board of registrars and shall generally supervise and direct the administration of the affairs of the board of registrars. The chief registrar shall act as chairman of the board of registrars, and, as chief registrar, shall perform those functions normally devolving upon a chairman. The chief registrar shall be compensated in an amount of not less than $10 per day for each day of service on the business of the board of registrars. The other registrars shall be compensated in an amount of not less than $7.50 per day for each day of service on the business of the board of registrars. In lieu of the above per diem compensation, ~he chief registrar may be compensated in an amount not less than $75 per month and the other registrars in an amount not less than $50 per month. The per diem or monthly compensation, as the case may be, shall be fixed, subject to the above limitations, by the governing authority of each county and shall be paid from county funds. The compensation of other officers and employees appointed and employed under the provisions of this Act shall be fixed by the board of registrars with the approval of the governing authority of each county, and shall be paid from county funds." I believe this paragraph is self-explanatory.

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ELECTIONS-County Board of Registrars-Authority (Unofficial)

Authority of County Board of Registrars to examine and revise voters list.

Mr. James C. Meeks

June 4, 195

I am pleased to acknowledge your letter asking advice as to carrying ou1 revision of voters list.
Your attention is called to the provisions of Section 34-127 of the 195E Cumulative Pocket Part, Annotated Code of Georgia, relating to the right o1 registrars to re-examine qualifications of electors, which provides as follows:
"The board of registrars shall have the right and shall be charged with the duty of examining from time to time the qualifications of each elector whose name is entered upon the list of qualified voters, and shall not be limited or estopped by any action taken at any prior time. (Acts 1958, pp. 269, 286.)"
Your attention is also called to Code Sections 34-128, 34-129, and 34-130 o1 the 1958 Cumulative Pocket Part of the Annotated Code of Georgia, which pro vides as follows:
"34-128. Registrars may require production of documents, subpoena witnesses; procedure where registrars differ upon questions raised. For the purpose of determining the qualification or disqualification of applicants and voters, the registrars may, upon at least one day's notice, require the production of books, papers, and other material, and upon like notice may subpoena witnesses. The registrars may swear any witness appearing before them. If the registrars shall differ among themselves upon any question coming before them, the concurrent votes of two of said registrars shall control. (Acts 1958, pp. 269, 286.)
"34-129. Service by sheriff of summonses, notices and subpoenas; compensation. - The sheriff, his deputy, or any lawful constable of said county shall serve all summonses, notices, and subpoenas, as issued by said registrars and placed in the hands of any such official. Such official shall receive such compensation as is provided for like services in the superior court. (Acts 1958, pp. 269, 287.)
"34-130. Notice of hearing to voters whose right to remain on list is questioned. - If the right of any person to remain on the list of qualified voters, whose name appears thereon, is questioned by the registrars, said registrars shall give such person written notice of the time and place of a hearing to determine such right which shall be served upon said person in the manner herein provided for other notices. (Acts 1958, pp. 269, 28~)"
Your attention is also called to Code Section 34-141 of the 1958 Cumulative Pocket Part of the Annotated Code of Georgia, which provides for the use of certified list of Secretary of State where county registration records have been destroyed by fire or otherwise, which provides:
"In any county in this State where the registration records have been destroyed by fire or otherwise, the list of voters which has been certified to the Secretary of State, as provided hereinbefore, shall be used to compile a new list. (Acts 1958, pp. 269, 292.)" Under the provisions of the above cited statutes you have ample power and

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authority to carry out the revisions. I am forwarding to you herewith a copy of an opinion to Mr. W. J. Jacques,
Jr., dated May 20, 1959, which opinion relates only to the cancellation or registration of electors who have not voted within two years. Therefore, in your work in revising the registration list of your county, you should keep in mind that any electors to be removed on the grounds that they have not voted within the past two years would be controlled by this opinion of May 20, 1959, and that all other grounds for the removal of an elector from the registration list would not be under said opinion.

ELECTIONS-County Board of Registrars-Compensation (Unofficial)

Compensation of Deputy Registrar discussed.

Mr. Peter J. Rice

May 21, 1959

I am pleased to acknowledge your letter asking that I give you views as to the compensation to be paid to you as deputy registrar of Putnam County Lmder the Georgia Voters' Registration Act, which was passed by the Georgia General Assembly at the 1958 Session.
The Voters' Registration Act of 1949 was a complete revision of all laws relating to the registration of voters in this State, and Section 47 (Ga. L., p. 1225) contained a provision specifically referring to the compensation to be L'eceived by a tax collector or tax commissioner, and provided:
"Section 47. For each application to register and qualify taken by the tax collector or tax commissioners, or his deputies acting in the capacity of deputy registrar and for each voter suspended by the same for failure to vote during the two preceding calendar years, said tax collector or tax commissioner shall receive the sum of five cents. For each name on the list of disqualified voters prepared in each year by the tax collector or tax commissioner, ordinary and clerk of the superior court, each of said officers shall receive the sum of one and one-half cents, but their compensation shall not be less than two dollars a day. The compensation of the registrars shall be fixed by the judge of the superior court. The compensation of said officials, the printing and supplying of registration cards, stationery and stamps, the hire of clerical help retained by the registrars and all other necessary expense in connection with the registration of voters shall be paid by the county commissioners, or that person, or those persons, exercising the functions of county commissioners, from the county treasury. All payments hereunder shall be made in the usual manner county bills are paid."
.The above quoted Section 47 was repealed by an Amendatory Act of 1950 (Ga. L, p. 126, 131) revising the original Act in the following! language:
"Section B. The Voter's Registration Law of 1949, Acts of 1949, page 1204, is hereby amended by adding at the end of Section 6 of said Act a new sentence to read as follows: 'The compensation to be paid to the registrars and all other officers and employees appointed and employed under this Act shall be fixed by the commissioners of roads and

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revenues of the county'; and by striking Section 47 of said Act in its entirety."
This section was codified in the 1955 Cumulative Pocket Part of the Annodated Code of Georgia as 34-106. It was amended by the 1958 Act so as to make separate provisions for the payment of compensation to the board of registrars.
The 1958 amendments to the original Registration Act of 1949 relating to compensation to be paid to the members of the board of registrars and to the officials and employees performing duties under the provision of the Registration Act provides as follows:
"... The chief registrar shall be compensated in an amount of not less than $10 per day for each day of service on the business of the board of registrars. The other registrars shall be compensated in an amount of not less than $7.50 per day for each day of service on the business of the board of registrars. In lieu of the above per diem compensation, the chief registrar may be compensated in an amount not less than $75 per month and the other registrars in an amount not less than $50 per month. The per diem or monthly compensation, as the case may be, shall be fixed, subject to the above limitations, by the governing authority of each county and shall be paid from county funds. The compensation of other officers and employees appointed and employed under the provisions of this Act shall be fixed by the board of registrars with the approval of the governing authority of each county, and shall be paid from county funds."
In considering the question propounded it is necessary to take into consideration the other provisions of the 1958 Amendatory Act, which in substance provides that the judge of the Superior court, upon the recommendation of the grand jury shall appoint three citizens of the county as county registrars, and that the judge shall designate one of the registrars as chief registrar.
You will note that the above cited 1958 Amendatory Act fixes a minimum specified rate of compensation to be paid to the chief registrar and the other two registrars which comprise the board of registrars, and authorizes the governing authority of each county to fix a per diem or monthly compensation for this board of registrars, but not less than the minimum stated, as the governing authority of the county may determine to be reasonable and just for the services performed, and that such compensation as fixed by the governing authority of each county shall be paid from county funds.
You will also note that this 1958 Amendatory Act further provides that the compensation of other officers and employees appointed and employed under the provisions of this Act shall be fixed by the board of registrars with approval of the governing authority of each county, and shall be paid from county funds.
Apparently it was the intention of the General Assembly in enacting the Amendatory Act of 1958 to allow the board of registrars compensation to be fixed by the governing authority of each county, and that the compensation of all other officers and employees appointed and employed under the provisions of the original Act as amended would be fixed by the board of registrars with ~he approval of the governing authority of each county, and paid from county funds.
There is another provision contained in Section 6 of the 1958 Amendatory Act, which provides as follows:
"Section 6. The tax commissioner or tax collector of the county shall be a deputy to the board of registrars and shall perform the duties

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required of him under this law. Said tax collector or tax commissioner may, with the assent of the board, designate one or more of his own deputies, to act as additional deputies. The registrars may appoint additional deputies and hire clerical help to aid them in the discharge of their duties."
This is codified under Code Section 34-106 of the 1958 Annotated Code of Georgia. This is the same provision that was codified as Code Section 34-109 in the 1955 supplement of the Annotated Code of Georgia and was codified from Section 9 of the original 1949 Registration Act.
The provisions of Code Section 34-106, codified from the Acts of 1958, p.p. 269, 273, merely provided that the tax commissioner or tax collector of a county shall be a deputy to the board of registrars and shall perform the duties required of him under the provisions of the Registration Act as amended, and that the tax commissioner or tax collector may with the approval and assent of the board of registrars, designate one or more of his own deputies to act as additional deputies to the board of registrars, and also that the board of registrars may appoint additional deputies and hire additional clerical help to aid them in the discharge of their duties. This particular provision does not provide how they shall be paid and by whom or from what funds; therefore, consideration must be given to the 1958 Amendatory Act as a whole to determine the intent of the General Assembly in providing from what funds and by what authority compensation was to be paid and disbursed for services performed by officials and employees carrying out the provisions of the Voters' Registration Act.
It is my personal and unofficial views that the question propounded is controlled by the provisions contained in Section 3 of the 1958 Acts as codified under Code Section 34-103 of the 1958 Cumulative Pocket Part of the Annotated Code of Georgia, which provides that the chief registrar and the other two registrars who comprise the board of county registrars shall be paid a per diem or monthly compensation above the minimum rates specified in said Code Section by the governing authority of the county in such amount as the governing authority of the county may deem to be reasonable and adequate for the services performed by the board of registrars, and it is my further personal and unofficial view that the compensation of all other officers and employees appointed and employed under the provisions of the Voters' Act as amended shall be fixed by the board of registrars with the approval of the governing authority of each county and shall be paid from county funds.
In case of disagreement between any county officials involved in the carrying out of the provisions of the Voters' Registration Act, it would be proper and appropriate for such officials to request an official opinion from the county atorney, and if any official was not satisfied as to his safety in making disbursements of county funds, or had any question unresolved and did not desire 'co follow the ruling of the county attorney, which would be official in the premises, then the only avenue open would be for the question to be determined by appropriate action in the superior court of the county involved.

ELECTIONS-County Unit System (Unofficial)

County Unit System discussed. Miss Margaret Twiggs

January 2, 195:

I find that the County Unit System has been the subject of considerabl' legal writing in this State, and I would suggest that you read the following:
"The County Unit System is Constitutional" by Henson, 9 Georgia Bar Journal, page 335 (1947).
"The County unit System is Unconstitutional" by Abram, 14 Georgia Bar Journal, page 22 (1946). 14 Georgia Bar Journal, page 28 (1946), 4 Mercer Law Review, page 25 (1952). 2 Mercer Law Review, page 274 by Davis. I have had a photostat copy made of the 9 Georgia Bar Journal which n doubt will have some historical value to you. Mr. Davis in 2 Mercer Law Review, page 274, has the following to say:
"Georgia has engrafted the County Unit System in some form into its electoral scheme the first State Constitution of 1777-South vs. Peters 70 Supreme Court 641 (1950), the latest statute being Georgia Laws 1917, page 183, Georgia Code Sections 34-3212 et seq. Neal Primary Act".
You will note in Mr. Henson's article that the unit system was used as voluntary system prior to its enactment by the Neal Primary Act of 1917.
The Neal Primary Act was approved August 14, 1917, and Governor Hug] Dorsey was Governor of Georgia at that time.
I do not know whether or not Mr. Watson had any public or political con nection with the adoption of the Neal Primary Act; however, I would sugges that you communicate with Mr. W. W. Brewton, 723 North Main Street, Colleg Park, Georgia, who is the author of the book "The Life of Tom Watson". Mr Brewton, as I understand it, had full access of all the papers and writings oJ Mr. Watson and was intimately associated with him for a number of year~ politically, and would be more than likely able to give you some of Mr. Watson'~ background as to whether or not he had any connection with the adoption oJ the Neal Primary Act.
You will note in Mr. Henson's writing that he said: "The court in the Thurman case correctly found a rational basis for
the County Unit System in that it was a product of a system voluntarily adopted and followed by the Democratic Party for decades prior to the Neal Act."
The State of Georgia consists of 159 counties. Ga. Code 23-101; Ga. Const 1945, Art. XI, Sec. I, Par. II (Code 2-7802). The "County unit system" is a method of computing votes in primary elections (the general election being on the popular vote basis) whereby each county in the state is assigned a given unit vote, and the candidate who receives the highest number of popular vote~ in any county is entitled to the unit vote of that county. The candidate whc receives a majority of such unit votes cast throughout the state is entitled tc the nomination. Ga. Code Ann., 34-3212 (Supp.).
Each county is given two unit votes for each representative which it has in the Georgia General Assembly. Ga Oode Ann., 34-3212 (Supp.). There are eight

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(8) counties which have six (6) unit votes each; thirty (30) counties which have four (4) unit votes each; and all the remainder have two unit votes each. Ga. Code Ann. 47-101 (Supp.); Ga. Const. 1945, Art. III, Sec.III, Par. I (Code 2-1501).
The constitutionality of Georgia's county unit system has been repeatedly upheld. See South v. Peters (1950) 339 U.S. 276, 94 L. Ed. 834; Cox v. Peters (1951) 208 Ga. 498, 67 S.E. 2d 579, app. dismissed, 342 U.S. 936, 96 L. Ed. 697, reh. den. 343 U.S. 921; Cook v. Fortson (D. C. Ga. 1946) 68 F. Supp. 624, app. dismissed, 329 U.S. 675, 91 L. Ed. 596. The main cases on which the foregoing decisions were based are Colegrove v. Green, 328 U.S. 529, and W:ood v. Broom,
287 u.s. 1.

ELECTIONS-Primaries-For County Officers (Unofficial)

Authority of County Democratic Executive Committee to hold primary for nomination of candidates for county offices.

Mr. Clinton J. Taylor

December 3, 1959

I am pleased to acknowledge your letter relative to the authority of a county democratic executive committee to hold a primary for the nomination of candidates for county officers.
The September Primary is the primary for which nomination for candidates for office of governor, members of Congress, United States senators, judges of the court of appeals, solicitors general and members of the General Assembly is held on one and the same day throughout the State, which is the second Wednesday in September of each year of which there is a regular general election.
County primaries by political parties are held under the rules and regulations of the county and State parties and they may call and hold a primary for county officers at such time as they may deem wise in their discretion.
Of course you understand that a primary is not an election. The election of county, State and Federal officers is held on the first Tuesday after the first Monday in November in the even-numbered years.
If a person desires to be a candidate of a political party he must run in the primary set by the party; otherwise, he would have to run as an independent in the general election in November.

ELECTIONS-Primaries-For General Assembly (Unofficial)

Nomination of candidates for General Assembly by primary.

Honorable Jimmy Conner

November 13, 1959

I am pleased to acknowledge your letter relative to primaries for members of the General Assembly. The statute applicable to the question l.s contained in Code Section 34-1307 of the 1958 Cumulative Pocket Part of the Annotated Code

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of Georgia, codified from the Acts of 1956, page 159, and which provides as follows:
"34-1307. Nomination of members of General Assembly as State or county primary; population restriction. - Any other provisions of law to the contrary notwithstanding, any person who has been or who hereafter is nominated for membership in the General Assembly, either in a county primary or the State primary, shall be the nominee for such political party, and the names of such candidates shall be placed on the general election ballot as the official nominee of such party: Provided however, that no county primary in which members of the General Assembly are candidates shall hereafter be called to be conducted prior to April 15th of any year, and when so called all candidates for nomination to the General Assembly shall run therein. Nothing in this section shall be construed to force a political party to hold a primary for the nomination of candidates for membership in the General Assembly or for any county office. This section shall not apply to counties having a population of more than 115,000 according to the 1950 or any subsequent census."
The above statute, you will note, provides that no county primary in which members of the General Assembly are candidates shall be called to be conducted prior to April 15 of any year, and when called all candidates for nomination to the General Assembly shall run. The last part of this sentence means merely that if there is more than one member of a county the other members must run at the same time.

ELECTIONS-Primaries-For General Assembly (Unofficial)

Nomination of candidates for General Assembly by primary.

Honorable Benjamin R. Martin, Jr.

March 14, 1958

This will acknowledge receipt of your letter in which you request my opinion relative to an Act approved February 20, 1956 (Ga. Laws 1956, page 159), providing for the nomination of members of the General Assembly in party primaries. Section 1 of the Act reads as follows:
"Section 1. Any other provisions of law to the contrary nothwithstanding, any person who has been or who hereafter is nominated for membership in the General Assembly, either in a county primary or the State primary, shall be the nominee for such political party, and the names of such candidates shall be placed on the general election ballot as the official nominee of such party. Provided, however, that no county primary in which members of the General Assembly are candidates shall hereafter be called to be conducted prior to April 15th of any year, and when so called all candidates for nomination to the General Assembly shall run therein."
It is my view that in the event a political party held a primary for the nomination of the members of the General Assembly, the person nominated in such primary would be the nominee of the party holding the primary and his

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name would be placed on the general election ballot. In the event a county primary is not held, it is my view that candidates for nomination for membership in the general Assembly would have to run in the State primary. Section 2 of the Act provides that the Act shall not be construed so as to force a political party to hold such a primary.

ELECTIONS-Registration-Concellation (Unofficial)

Cancellation of registration of voters who have not voted within certain period of time.

Mr. W. J. Jacques, Jr.

May 20, 1959

I am pleased to acknowledge your letter relative to Code Section 34-120 of the Georgia Code Annotated as amended by Georgia Laws, 1959, page 182, which provision deals with the cancellation of registration of electors who have not voted within a certain period of time.
House Bill No. 372, Georgia Laws, 1959, page 182, was approved by the Governor on March 10, 1959. The provisions contained therein relating to the beginning of a new procedure for the cancellation of the registration of electors which required certain notices to be mailed within sixty (60) days after January 1, 1959, was impossible of being carried out within the sixty (60) day period from January 1, 1959, since the sixty (60) days had expired before March 10, the date of the approval of the Act. House Bill 372, Georgia Laws, 1959, page 182, provides:
"Within 60 days after the first day of January, beginning in the year 1959, and biennially thereafter, the registrars shall revise and correct the registration records in the following manner: They shall examine the registration cards and shall suspend the registration of all electors who have not voted in any general election or primary, Federal, State or county within the two years next preceding said first day of January; provided, however, that on or before March 1st of said year they shall mail in a sealed envelope by first class mail to each elector at the last address furnished by the registrant a notice substantially as follows: 'You are hereby notified that according to State law, your registration as a qualified voter will be cancelled for having failed to vote within the past two years, unless before April 1st of the current year you continue your registration by applying in person to this office'." Your attention is also called to the provisions stated in said 1959 act which provides:
"Effective April 1, 1959, and biennially thereafter, the registrars shall cancel the registration of all electors thus notified ..." This provision was also incapable of being performed in the first instance for the reason that the notices which were required to be mailed within sixty (60) days after the first day of January, 1959, could not have, been mailed because the law had not been approved within the sixty (60) days after the first day of January, 1959. Therefore, there was no law on which any notice could be mailed.

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Apparently the statute in question was drawn with the view that it would have been passed by the General Assembly and approved within sufficient time for the various provisions to be carried out to begin during the year of 1959, but due to the fact that this law was not passed by the General Assembly and approved until March 10, 1959, there was no way for the Board of Registrars to comply with said Act for the year of 1959. Therefore, apparently your position advising the county registrars of your county that they must comply with Code Section 34-120 as amended by the Acts of 1959, page 182, commencing January 1, 1961, is a proper procedural interpretation of the Act in question because the Act restricts the procedure for the mailing of notice and cancellation to biennial periods beginning January 1, 1959.

ELECTIONS-Registration-Cancellation (Unofficial)

Voters entitled to notice before cancellation from registration list.

Mr. Thomas A. Hutcheson

December 8, 1959

I am pleased to acknowledge your letter and to advise that Code Section 34120 is very clear and specific in providing that no person shall remain a qualified voter who does not vote in at least one election, as provided in said Section, within a two year period, unless he shall specifically request continuation of his registration in the manner provided in said Code Section.
The statute is' just as clear and specific as to the duty of the registrars to carry out the provisions thereof by giving the proper notice to such persons, and there are no exceptions for reasons of non-performance.
Your attention is called to the provisions of Section 27 of the Acts of 1958 which provides:
"The Board of Registrars shall have the right and shall be charged with the duty of examining from time to time the qualifications of each elector whose name is entered upon the list of qualified voters, and shall not be limited or estopped by any action taken at any prior time."
Your attention is also called to the provisions of Section 30 of the Acts of 1958 which provides:
"If the right of any person to remain on the qualified voters, whose name appears thereon, is questioned by the registrars, said registrars shall give such person written notice of the time and place of a hearing to determine such right which shall be served upon said person in the manner herein provided for other notices."

ELECTIONS-Registration-When (Unofficial)

Voters cannot register after six months prior to election.

Mr. S. B. McCall

December 1, 1959

I am pleased to reply to your letter in which you ask that I advise you if I concur in your views that under the recently enacted Voters' Registration Act

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of 1958, that the Board of Registrars could not register anyone to vote, even in
a primary election, after a date six months' prior to the primary election.
Section I of the Act of 1958, page 269 (Code Section 34-101), provides: "Any person who, after the effective date of this law, desires to
register as an elector to vote in any general or special election in this State, to fill any Federal, State or county office, or in any primary to nominate candidates for any such office, or in any Federal, State or county election for any purpose whatsoever, must do so under the provisions of this law. Unless the context clearly indicates otherwise, 'election', as used in this law, shall mean any general or special election in this State to fill any Federal, State or county office, or any primary to nominate candidates for any such office, or any Federal, State or county election for any purpose whatsoever." Section II of the Act of 1958, page 269 (Code Section 34-111), provides:
"The registrars shall, in each year in which there is a general election for members of the General Assembly, cease their operations of taking applications from persons desiring to vote in such election six months before the date of such election. During the period while the general election list is being prepared, they may suspend the operation of taking applications from those desiring to vote in subsequent elections, provided the office shall be kept open at least one day and the same day in each week during this period for receiving applications."
Under the clear provisions of the above statutes I concur in your conclusions that the Board of Registrars could not register anyone to vote, even in a primary election, after a date six months prior to the primary election, in those years in which there is a "general election" for members of the General Assembly, the next of which would be the year of 1960.

ELECTIONS-Special Elections (Unofficial)

Victorious candidate in special election need only receive a plurality of votes cast rather than majority.

Mr. R. S. Wimberly

January 9, 1959

This will acknowledge receipt of your letter in which you request my advice

as to whether, in a special election to fill a vacancy in the office of Sheriff, it

is necessary that a person receive a plurality or a majority of the votes cast. in

order to be elected.

. "

Code Section 24-2803provides that a vacancy is filled and the after-proceedings are the same as in the case of a vacancy in the office of the Clerk of the Superior Court. Code Section 24-2704 provides how a vacancy is filled .in the office of the Clerk of a Superior Court. Code Section 24-2706 reads as follows:
"24-2706. Should any two or more candidates, at an election to fill said vacancy, or at a regular election, have the highest and an equal number of votes, said ordinary shall appoint and advertise another election in the manner prescribed in section 24-2704, and so do until & choice is made."

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This seems to indicate without question that it is only necessary that the victorious candidate receive a plurality of the votes cast rather than a majority.

ELECTIONS-Voter Qualifications-Residence (Unofficial)

A person may vote in county of official residence even though domiciled in another country.

Mr. 0. B. Crawford

January 2, 1958

I am pleased to acknowledge your request that I give you an opmron as to whether or not when a citizen moves his residence out of a county, can he still hold his voting privileges in the county from which he moved.
As a matter of information, the general rule is that when a citizen moves his legal residence out of a county, then he can only vote in the county to which he has moved his legal residence. However, it has been held by the appellate courts of this State a reat number of times that a citizen may have a legal residenct and also a place of domicile or places of domicile. He may maintain residence and also a place of domicile or places of domicile in another county of the State for considerable periods of time, depending upon the reason and necessity of remaining away from his legal residence. The question as to whether or not a person moves his legal residence from one county to another is a question of fact and one in which intent of the person is an important facet of determination; therefore, each question must be determined independently upon the facts and circumstances and intent of the individual.
A case in point is one in which a person may be elected or appointed to a State office and must maintain a domicile in Atlanta during the term of his office, while at the same time maintaining a legal residence in the county in which he lived at the time of his election or appointment. Of course if a person did not maintain a legal residence in the county from which he was elected or appointed, and moved from the county from which he lived to Atlanta and established his legal residence in Atlanta, then his legal residence would be in Atlanta and not in the original county.

ELECTIONS-Voter Qualifications (Unofficial)

Residence and domicile requirements discussed.

Honorable Harold E. Ward

February 16, 1959

I am pleased to acknowledge your letter in which you state that the Laurens County Board of Registrars is in the process of purging a voters' list in order to remove therefrom all persons who are deceased, have moved out of the county and who are not otherwise qualified to vote, and to ask my advice as to whether or not a person who has moved away from Laurens County and accepted a

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job elsewhere can legally remain on the list of qualified voters in Laurens County; and also, whether or not a person who is an elected official, or who has accepted an appointment with some governmental agency, and resides outside of Laurens County can remain on the list of qualified voters in said county.
The question which you propound is one which the Appellate Courts of this State have repeatedly held that a person may be a legal resident of one place and an actual resident of another.
Once a person has established his legal residence under the provisions of Article II, Section I, of the 1945 Constitution of Georgia, and the statutory provisions enacted relating thereto, then the question as to whether or not he has removed his residence is a question of fact, under which intention is the principle determining factor, and I would suggest that you read th~ sections cited below in which the Appellate Courts of this State have made distinction between legal and actual residence; in other words, a person may be a legal resident of one place and an actual resident of another; he may abide in one State or county without surrendering his legal residence in another if he so intends.
See: Hardman vs. Hardman, 179 Ga. 34 (7); Knight vs. Bond & Brother, 112 Ga., 828 (5); Bush vs. The State, 10 Ga. App., 644; Alvaton Mercantile Company vs. Caldwell, 34 Ga. App., 151 (a). Also, your attention is called to Section 79-406 of the Annotated Code of Georgia, which provides:
"The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention."
As a precautionary measure it would be advisable for the Board of Registrars to notify by mail any person that they may have under consideration for purging for the above reasons in order that such person may have an opportunity to appear and present his side of the matter, and of course, such person would be entitled to appeal under Code Section 34-116 any act of the Board of Registrars.
I regret that I have not gone further into this question, but you realize that the question of legal residence is one which is very broad in its scope and each individual case must stand on its own bottom so to speak, following the rules laid down by the Appellate Courts in the above cited authorities and statutes of this State.

ELECTIONS-Voting-"Single Shot" Voting (Unofficial)

"Single Shot" voting not prohibited by Georgia law, but State Democratic Executive Committee prohibits in primaries.

Mr. Jno. T. Shea

December 2, 1958

This will acknowledge receipt of your letter in which you request information regarding "single shot" voting in Georgia.

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"Single shot" voting is not prohibited in Georgia. Rule V of the Rules and Regulations of the State Democratic Executive Committee of Georgia, adopted May 23, 1958, reads in part as follows:
"... If more than one candidate is to be nominated for a particular office each voter shall vote for as many persons as there are nominations to be made; otherwise his vote for candidates for that particular office shall not be counted ..." I have been unable to find any local Act applying to a particular county and I am not at all certain as to whether the Supreme Court of Georgia would uphold such an Act. That court, in the case of Griffin v. Trapp, 205 Ga. 176, indicates that it might possibly declare such an act invalid. It is difficult to forecast the outcome of such a case, however, inasmuch as that case dealt with a particular election for specific officials.

FORESTRY-State Forestry Commission

State Forestry Commission has no authority to turn over "profits" from soil bank nursery operation to federal government.

Honorable Guyton DeLoach

April 10, 1959

This is written pursuant to your request for my opinion concerning a memorandum from Honorable W. S. Swingler, Acting Chief of the Forest Service, wherein he takes the position that all state forestry agencies participating in the Conservation Reserve Program under the Agricultural Act of 1956, 70 Stat. 195, 7 U.S. C. A., 1835 (Supp.), must, at the end of the program, account to the federal government for all sums in excess of the actual cost tO' the state of producing the trees.
As a part of the Soil Bank program under the 1956 Act, Congress has made provision whereby farm lands withdrawn from active crop production may be plant~d in trees, and the farmer entitled to credit therefor under the Act.
Title 7, Section 1835 (Supp.) provides: "(a). The Secretary may purchase or produce conservation ma-
terials and services and make such materials and services available to producers under the conservation reserve program to aid them in establishing vegetative cover or water storage facilities, or other soil-, water-, wildlife-, or forest-conserving uses, under contracts authorized by sections 1831-1837 of this title, may reimburse any Federal, State, or local government agency for conservation materials and services furnished by such agency, and may pay expenses necessary in making such materials and services available, including all or part of the costs incident to the delivery, application, or installation of materials and services." Pursuant to that .provision, the U. S. Forest Service has entered into a contract with the State of Georgia, acting by and through you as Director of the Forestry Commission, whereby the Service agrees to make federal funds available as provided by Seetion 3 of the agreement, to wit:
"3. The Forest Service will pay to the State, by reimbursement or advance payments, at such times and in such amounts as mutually agreed upon, for,

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(a) expenses incurred for the development of nursery facilities as provided in the approved Plan of operation, and (b) the net cost incurred by the State for the production of planting stock for use in the Program: Provided, that payments in any fiscal year shall not exceed the amount of the approved financial plan for the fiscal year." The way the agreement operates in practice is that farmers purchase and 3ay for the trees from the Commission, and they are then reimbursed by the federal government. The Commission receives no funds directly from the Forest Service in payment for the trees. The Commission never knows precisely how much the nursery program [or a coming year will cost, but endeavors so far as possible to fix a price for che trees that will reflect only the actual cost to the state. However, for the first year, you have realized a small profit from the sale of the trees, and it is Ghis profit which Acting Chief Swingler contends should be refunded to the Service at the end of the Program. Swingler's letter asserts that the reference in Section 3(b) to the Government's paying "net cost" requires that the state pay over to the Service any ~mall profit realized, which, it is contended, constitutes an overpayment beyond 'net cost." The Attorney General of Florida has recently ruled that the state is not bound by Swingler's somewhat belated "interpretation" of the agreement.
I am in accord with this opinion of General Erwin. The agreement anticipates that the federal government will merely underwrite any losses which the ~tate may sustain. No federal funds, other than those for the initial installation of the nursery, are to be paid to the state, except in the event a loss is suffered. The trees are purchased and paid for by the farmers. Whether they are reimbursed, and in what amount, is no concern of the Commission. State funds, and not federal funds, are used to defray operating costs of the nursery. In consideration for the state's promise to furnish these trees, the federal government has made available funds for the establishment of the nursery, and agreed to sustain any loss suffered by the state in its operation.
Mr. Swingler's letter is an attempt to vary the terms of a written contract by parol, which can not legally be done. Code 20-704 (1).
I therefore conclude that you would not be authorized to pay over any funds to the Forest Service as contended by Acting Chief Swingler.

GAME AND FISH-Bonds

Conditions in live shrimp bonds.

Honorable Fulton Lovell

July 9, 1959

This will acknowledge receipt of your request relative to the bond of a person engaged in the taking of shrimp for live bait.
Section 94A of an Act approved March 7, 1955, (Ga. Laws 1955, p. 483), as amended, particularly by an Act approved February 26, 1957 (Ga. Laws 1957, p. 122) relating to Game and Fish, provides:

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"No person shall engage in the taking of shrimp for live bait to be sold within the State of Georgia, unless such person first executes bond in the amount of $1,000.00, payable to the Governor, in such form and with such sureties as the commission may require, and conditioned upon the faithful compliance by such person with all the laws and regulations relating to game and fish. . . ." (Emphasis supplied) This is to advise that any bond, whether called a "surety bond" or "whatnot", that carries the condition enumerated in Section 94A and approved by the Commission, will comply with the bonding requirements of the Act.
I would suggest that several bonding companies be contacted in the matter of writing a bond that would be satisfactory to the Commission, and that would comply with the Act as the object of such discussion. If I can render any service in connection therewith, please do not hesitate to call upon me.

GAME AND FISH-Employees

Director, officials, and employees may be placed under provisions of Merit System.

Honorable Fulton Lovell

September 25, 1959

This will acknowledge receipt of your request for my opinion as to the authority of the State Game and Fish Commission to place you as Director, and other employees and officials of the State Game and Fish Commission, under the provisions of the Merit System.
By an Executive Order dated December 16, 1955, all employees and officials of the Commission, except the members of the Commission, were placed under the Merit System effective as of January 1, 1956.
Georgia Code Annotated, Chapter 40-22, relates to the establishment of a Merit System in certain departments of the State Government. Section 40-2242 provides a procedure to bring excluded employees under the Merit System. This Section is based on an Act of the General Assembly found in Georgia Laws 1952, page 221. Under this Act, a department is authorized to come under the Merit System unless specifically excluded or prohibited by law. This Act has not been repealed and was not referred to directly or indirectly in the 1955 Act relating to the Game and Fish Commission.
1955 Georgia Laws, page 483, relating to the State Game and Fish Commission, recites that it is an Act to completely and exhaustively revise, supersede and consolidate the laws relating to the State Game and Fish Commission and to game and fish. Section 1 thereof reads as follows:

"Section 1. In order to completely and exhaustively revise, supersede and consolidate the laws and procedures relating to the State Game and Fish Commission and to game and fish, there are hereby enacted the following sections and provisions:"

Section II of the 1955 Act, in part, provides: "The State Game and Fish Commission at its first meeting shall
appoint a director, who shall be the executive secretary and administra-

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tive officer of the commission, and have such other powers and duties as may be prescribed by the commission and by this Act, for all of which duties combined he shall receive a salary to be fixed by the commission from time to time which in no event shall exceed $8,600.00 per annum, including any contingent expense allowance, payable monthly, and traveling expenses necessary in the performance of his duties...." Sections 12 and 13 provide that the Commission shall fix the salaries of other officials and employees of the Commission. No provision of the 1955 Act precludes the Commission from taking the action here involved and placing all officials and employees, including the Director, under the Merit System in accordance with the provisions of Georgia Code Annotated, 42-2242.
There is no question that there was no express repeal or prohibition in the 1955 Act to prevent the Commission from taking the action here involved. Such a prohibition or repeal could come about only by holding that Georgia Code Annotated, 42-2242 (Georgia Laws 1952, page 221) was repealed by the 1955 Act by implication. Such appears not to be so because: (1) one statute will not be construed to repeal another by implication unless the two Acts are in irreconcilable conflict, Towaliga Falls Power Co. v. Foster, 143 Ga. 688, Moore v. The State, 26 Ga. App. 21, Cornwell v. Atlanta Trust Co., 177 Ga. 303: (2) every effort must be made to make all Acts stand, and later Act will not operate as repeal of earlier Act if by any reasonable construction they can be reconciled, Folds v. Auto Mutual Indemnity Co., 55 Ga. App. 198; (3) repeals by implication are not favored, Morris v. City Council of Augusta, 201 Ga. NN6: (4) the intention of the Legislature to amend existing law by implication must be clearly and unquestionably shown by provisions of the amending Act because an implied amendment to existing law cannot arise out of supposed legislative intent in no way expressed however proper it may seem to be. Amendments of existing law by implication are not favored and never occur except where later Act is clearly and indubitably contrary to existing law, Brinkley v. Dixie Construction Co., 205 Ga. 415.
The Constitution of the State of Georgia confers upon the General Assembly the power to make all laws consistent with, its provisions and not repugnant to the Constitution of the United States (Article III, Section VII, Paragraph XX, Georgia Code Annotated, Section 2-1920). While one of the most important tests as to whether particular laws amount to an invalid delegation of legislalative power is found in the completeness of the statute as it appears when it leaves the hands of the legislature, the requirement of completeness does not comprehend that a legislative act must in any event take effect as law after it leaves the hands of the Legislature (Holcombe v. Georgia Milk Commission, 188 Ga. 358). Further, the Court therein held at page 366 as follows:
"... As pointed out in Southern Railway Co. v. Lancaster, 149 Ga. 434 (100 S. E. 380), it has been held in this State that a statute can be enacted by the legislature and its operation be made contingent upon the will of bodies and persons other than the legislature, such as a grand jury. See Murphey v. Educational Board of Burke County, 71 Ga. 856; Haney v. Commissioners of Bartow County, 91 Ga. 770 (18 S. E. 28); Horne v. State, 170 Ga. 638 (153 S. E. 749)."
In Southern Rwy. Co. v. Lancaster, 149 Ga. 434, at pages 452 and 453, the Court said.
"... Judge Cooley in his work on Constitutional Limitations (7th ed.), 164-5 after stating that it is one of the settled maxims of consti-

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tutional law that the power conferred upon the legislature to make laws can not be delegated to any other body or authority, says: 'But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event. Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. . . ."
And further in this case, the Court said:
"... Our own court in several cases has held that a statute can be enacted by the legislature and its operation be made contingent upon the will of bodies and persons other than the legislature; some of the cases are Murphey v. Educational Board of Burke County, 71 Ga. 856 -provision of law for payment of school officers, not to operate in a county after grand jury shall otherwise recommend; Haney v. Commissioners of Bartow County, 91 Ga. 770 (18 S. E. 28) - road law to go into effect in county on recommendation of grand jury. . . ."
The Supreme Court of Appeals of West Virginia in LePage v. Bailey, 170 S. E 457, 114 W. Va. 25, held:
"It is well settled that an enactment may provide 'that it shall become operative only upon some certain act or event, or, in like manner, that its operation shall be suspended; and the fact of such act or event, or, in like manner, that its operation shall be suspended; and the fact of such act or event, in either case, may be made to depend upon the ascertainment of it by some other department, body, or officer, which i<~ essentially an administrative act.' State v. Brudge, 95 Wis. 390, 402, 70 N. W. 347, 350, 37 L. R. A. 157, 60 Am. St. Rep. 123. Leading authorities supporting this pronouncement are Cincinnati, W. & Z. R. Co. v. Commissioners, 1 Ohio St. 77, 88-89; Locke's Appeal, 72 Pa. 491, 498499, 13 Am. Rep. 716; Field v. Clark, 143 U.S. 649, 693, 694, 12 S. Ct. 495, 36 L. Ed. 294; Mutual Film Co. v. Commission, 236 U.S. 230, 245, 35 S. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916C, 296; Cooley's Const. Lim. (8th Ed.) pp. 224, etc.''
In Ross v. Jones, 151 Ga. 425, at page 427, the Supreme Court held:
"It has been held that the legislature can pass an act to take effect at a future date. Grinad v. State, 34 Ga. 270; and see 25 R.G.L. 797, 199, sections 46, 48, and cases cited; also Schneider v. Huseey, 2 Idaho 8, (1 Pac. 343); Harding v. People, 10 Colo. 387 (15 Pac. 727); State v. Bemis, 45 Neb. 724 (64 N. W. 348); Goree v. Greenwood, 93 S.C. 312 (76 S. E. 705); Patterson Foundry &c. Co. v. Ohio Rover Power Co., 99 Ohio St. 429 (124 N. E. 241)."
From the above, I am of the opinion that at the time of the Executive Order dated December 15, 1955, which became effective January 1, 1956, there are two concurrent provisions of law relating to the compensation authorized to be received by the Director of the Game and Fish Commission. The :first provision would be that the Commission was authorized to fix the compensation of the Director under the 1955 Act, in which event the compensation would be limited as provided in the 1955 Act. The second authorized compensation is that authorized under the Merit System and such compensation would be con-

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tingent upon the Commission exerc1smg the right and authority granted under the 1952 Act (Ga. Code Annotated, 42-2242). This is particularly true in view of the authority hereinabove cited holding that the 1952 Act became effective as to the Director and employees of the Game and Fish Commission upon ~he effective date of the action taken necessary to place them under the Merit System.
Therefore, based on the above, I am of the opinion that the compensation of the Director fixed and received under the Merit System in compliance with the authority vested in the State Game and Fish Commission is valid and authorized by law.

GAME AND FISH-Fish Drops

Erection and maintenance of bouys to mark fish drops.

Honorable Fulton Lovell

August 27, 1959

You request information concerning the responsibility of members of the Game and Fish Commission in accepting the maintenance duties of bouys erected on fish drops placed within the three mile limit off the coast of Georgia.
Under date of May 29, 1958, I held in an opinion to you that anything pertaining to navigation is under the jurisdiction of the United States. Subsequent to that date, I attempted to clarify the opinion by stating the effect of the "Tide Lands Oil Act" (U.S. Code Annotated, Title 43, 1301, et. seq.)
In addition to the above information, I direct your attention specificially to 33 USCA, Chapter 9, 403, et seq., that relates to navigable waters. The annotations under the above-cited Section seem to impose liability upon persons placing obstructions in navigable waters. In this connection, see the Mahanoy CCA, N.Y. 1921, 273 F. 668; Gulf Atlantic Transport Company vs. Becker County Sand and Gravel Company, 122 F. S11pp. 13.
From the above, it appears that the members of the Commission would be liable in the event of an injury or damage to property or person resulting :(rom the failure of the markers to adequately inform of the existence of the fish drops.
A procedure is provided whel'eby such material could be deposited in the channel with appropriate Federal action. As indicated by your letter, if the U.S. Corps of Engineers insist on some agency accepting the duty of maintaining the marking bouys of such drops, you might consider entering into an agreement with the Department of the Army so as to enable the members of the Game and Fish Commission to assume the responsibility of maintaining the buoys and at the same time protecting the members of the Commission from individual liability by setting fonh in the agreement all of the factors as to liability and responsibility.

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GAME AND FISH-Game Fish-Sale (Unofficial)

Permit from Game and Fish Commission required for possession of game fish from private pond for sale.

Honorable E. W. Hill

June 5, 1959

I am in receipt of your letter in which you ask the question "if the owner of a private pond is also the owner of a restaurant, may he sell the game fish taken from his private pond through the restaurant v.Jithout a permit?".
In answer to the above, I will quote in part from the regulations relating to the sale and transportation of game fish taken from the private ponds and otherwise promulgated February 9, 1959 by the State Game & Fish Commission.
"No person shall barter, sell or purchase, or offer to barter, sell or purchase, or have in possession for barter or sale, except under conditions hereinafter set out, any fresh water game fish."
The conditions set out following the above quote give permission in the case where the seller has in his possession a bill of sale showing that the game fish were shipped from without the State. The only other method given for obtaining the legal authority to sell game fish is by requesting and obtaining, by the owner of a private pond, a permit for the sale of such game fish. It is my personal opinion that the possession of game fish for the purpose of barter or sale, whether in a restaurant or otherwise, without complying with one or the other of the two methods of making the same legal, would be illegal.
The posting of the above permit in the owner's restaurant would show that he holds the game fish for barter or sale legally under the regulations of the Georgia State Game & Fish Commission.

GAME AND FISH-Licenses-Agents

A license agent is liable for loss of funds collected from sale of State hunting and fishing licenses.

Honorable Fulton Lovell

April 9, 1959

I am pleased to acknowledge your request for my opmwn concerning the liability of a license agents for the theft from the agent of monies collected from the sale of State hunting and fishing licenses.
In answer to your above question, I refer you to the Code of Georgia Annotated, Section 45-201, which reads:
"45-201. Hunting, fishing and trapping licenses in this State shall be issued and sold by the commission upon such forms which contain such information as the commission may prescribe: Provided, said licenses for hunting and fishing shall be sold in each county by some designated bonded agent who shall keep stubs of all licenses sold. All licenses shall be charged to such agent, who shall account for same and for the cash from resulting sales. The agent selling such licenses shall not receive for himself more than 25 cents for each license issued."

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As you will notice, the licenses are charged to the agent and he is required to account for same and for the cash from resulting sales. Therefore, I am of ',he opinion that the license agent is responsible and liable for the funds collected and later stolen from him.

GAME AND FISH-Licenses-Non-resident (Unofficial)

Non-resident hunting licenses, who may obtain. Honorable George W. Varn

February 7, 1959

In your letter you asked several questions relative to the type license you need to hunt on your property in Georgia.
An Act approved March 7, 1955 (Ga. Laws 1955, p. 483), as amended, completely and exhaustively revised and superseded the laws relative to the State Game and Fish Commission. Sections 30 and 31 of that Act relates to the licensing of residents and non-residents. The last paragraph of Section 31 deleted from a previous Act of the General Assembly the words "and landowners and their families and their duly authorized tenants, shall not be required to procure any such licenses for hunting or fishing on such landowner's lands and private ponds". Thereafter, it follows that all persons hunting or fishing in this State, except as specifically exempted by the Act, are required to obtain a license. The exemption provided therein is extended to legal residents of Georgia who are sixty-five years of age, or more, and persons under sixteen years of age.
Having determined that a license is necessary for a resident or non-resident to hunt in this State, a further question is presented as to the type of license you are entitled to buy. "Resident" is defined as "One who has his residence in a place". "Residence" is defined as "A factual place of abode. Living in a particular locality. It requires only bodily presence as an inhabitant of a place."
As "domicile" and "residence" are used in the same place, they are frequently used as though they have the same meaning, but they are not identical terms for a person may have two places of residence, as in the city and country, but only one domicile. "Residence" means living in a particular locality, but "domicile" means living in that locality with intention to make it a fixed and permanent home. (Black's Law Dictionary, Fourth Edition, pages 572-3).
The Supreme Court of the State of Georgia, in the case of Patterson v. Patterson (208 Ga., pp. 7, 13), stated "The question of domicile is a mixed question of law and fact, and in ordinarily one for a jury - - - - - -, and should not be determined by the court as a matter of law except in plain and palpable cases. - - - - - -".
The Supreme Court of Georgia, in Avery v. Bower, (170 Ga. pp. 202, 204), stated "'Residence' and 'domicile' are not synonymous and convertible terms. A man may have several residences, but only one place of .domicile. There must be a concurrence of actual residence and the intention to remain, to acquire a domicile." (Worsham v. Ligon, 144 Ga. 711).
Code Section 79-401 relates to the place of domicile. That section provides, "The domicile of every person of full age, and laboring under no disability, is

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the place where the family of such person shall permanently reside, if .in this State. If he has no family, or they do not reside in this State, the place where such person shall generally lodge shall be considered his domicile."
Code Section 79-406 relates to the change of domicile. That section provides, "The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention."
From the foregoing, I am of the opinion that a license is necessary for a resident or non-resident to hunt in this State, notwithstanding the fact that the hunting is done only on the property of the hunter.
I am further of the opinion that the question as to whether or not you would be entitled to buy a non-resident license would depend upon the application of the above-cited provisions of law to your particular circumstances.

GAME AND FISH-Nets-Use (Unofficial)

Use of power drawn nets for taking shrimp for own consumption.

Honorable Edward T. Brennan

August 27, 1959

This will acknowledge your request for my opm10n as to whether a person who uses a power-drawn net for taking shrimp in outside waters; i.e., in waters beyond the tidal rivers, tidal sounds, tidal bays, and tidal creeks of this State for his own consumption; i.e., not to be sold, required to obtain a commercial fishing license under the provisions of Georgia Laws 1955, p. 483, and in particular that portion of said Act codified in the Annotated Code as Code Section 45-212.
The provisions of the 1955 Act found in Code Section 45-212 relates to commercial fishing and the commercial taking of any food in the waters of this State. The provisions of this Section do not apply nor is a license required by the State for the taking of shrimp outside, the water within the jurisdiction of the State of Georgia.
Therefore, to answer your question, a person who uses a power-drawn net for taking shrimp for his own consumption outside the jurisdiction of the State of Georgia would not be required to obtain a commercial fishing license.

GAME AND FISH-Public Shooting Preserves

State may require special license for hunting on Public Shooting Preserves.

Honorable Fulton Lovell

June 30, 1958

Receipt is acknowleded of your request for an opinion as to the authority of the Commission to provide for special licenses for hunting on public shooting preserves.

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Under the Act of the General Assembly of 1957, approved March 7, 1957, especially Section 7 (Ga. Laws 1957, pp. 295, 298; Ga. Code Annotated, Section 45-1007) which is contained in paragraph (g), p. 51, of the Compilation of Laws and Regulations pertaining to Game and Fish of April 1, 1958, which in part provides as follows:
"The regular appropriate hunting licenses shall apply to all persons hunting on said preserves (public shooting preserves) except that shall the State Game and Fish Commission so desire, it may provide for a special license to be issued applicable to any one particular hunting preserve; provided further that such special license shall apply only to the person to whom issued and to the particular preserve for which issued." It is my opinion that the above provision gives the State Game and Fish Commission broad authority to provide for special licenses to be issued for the privilege of hunting on any public shooting preserve and to provide for the fee to be paid for same.

GAME AND FISH-Rangers

Wildlife rangers receiving maximum allowance for subsistence cannot be allowed additional expense for board bill.

Honorable Fulton Lovell

December 22, 1959

This will acknowledge receipt of your request for my opmwn as to the additional expenses that may be allowed for board bill to Wildlife Rangers who receive a subsistance allowance under the provisions of Georgia Law of 1956, page 349.
Georgia Code Annotated, Section 45-113, authorizes the Commission to appoint and fix the salaries of assistants and employees including a Uniform Division, to be known as Wildlife Rangers. Subsection (c) reads:
"(c) Each wildlife ranger shall receive, in addition to his salary, a sum to be fixed by the commission in an amount not to exceed $5 per diem, as a subsistence allowance, for each day actually spent in performance of his duties."
In view of the above, you pose this question:
"When Wildlife Rangers are off from home on official duties, can additional expense be allowed for board bill?"
Webster's New International Dictionary, second edition, page 251L1, defines "subsistence" as: "An allowance for expenses incurred in performance of a duty while temporarily away from one's residence." In Parrish v. United States, 158 Fed. Supp. 238, at 248, the District Court of Georgia, in construing a statute somewhat similar to the one in question here as to whether or not such an allowance should be included in taxable income, stated:
"The defendant contends that the word 'subsistence', as employed in Section 120 (Internal Revenue Code of 1954, 26 U.S.C.A., Section 120) means an allowance paid to a police officer to reimburse him for

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expenses incurred while away from home. The term 'subsistence" however, has no such connotation. Subsistence, in its ordinary usage means that which supports life; provisions or that which procures provisions. It is not limited to support while away from one's home or post of duty."
To the same effect, United States v. W. J. Shirah, et al., 253 Fed. R. 2d 798, citing the Parrish case.
Giving the above authorities their usual meaning, and construing the statute by the ordinary terms applied to the words utilized, it appears that the Commission is authorized to fix a subsistance allowance not to exceed $5.00 per diem to be payable to each Wildlife Ranger, in addition to his salary. This appears to have been done and I understand that at the present time each Wildlife Ranger receives a $150.00 subsistence allowance per month. Thus, it would appear that this is the maximum the Commission would be authorized to pay each Wildlife Ranger as a subsistence allowance.
It further appears that a board bill would be within the meaning of subsistence allowance as provided in this statute. Therefore, it also appears that a Wildlife Ranger, having received the maximum allowed for subsistence, could not be allowed an additional expense for a board bill.

GAME AND FISH-Quail

Wing clips may be substituted for rubber stamp to identify pen raised quail carcesses.

Honorable Fulton Lovell

June 2, 1959

This will acknowledge receipt of your request for my opinion as to whether or not the Game & Fish Commission can authorize by regulation, for the marking of a pen-raised quail carcass, by the use of wing clips or other devices that could be attached to the carcass so as to identify the bird as a pen-raised quail.
Georgia Laws 1956, page 48 (Ga. Code Anno. Sec. 45-535), relates to the breeding and sale of pen-raised quail. The Act provides for the identification of pen-raised quail by marking each carcass with a rubber stamp. You state that it has been impossible to obtain a rubber stamp so that the information required by the Act can be affixed to the carcass of the bird and remain legible.
It is clear that the intent of the General Assembly, in setting out the procedure to be followed in the marking of the carcass of such quail, was for the purpose of identifying the quail as being pen-raised.
The Supreme Court of the State of Georgia (191 Ga., p. 334) held that if a statute is clear and unambiguous, no Court has the right to construe it to mean other than what it declares, and its wisdom is a matter exclusively reserved to legislative branch of government.
The Supreme Court (185 Ga., p. 35) held that they will not attribute to the legislature the intention to punish for the failure to do an impossible thing, if another construction can legitimately be given to the Act in question.

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Further, the Court of Appeals (4 Ga. App. p. 207) held that the intention of the Legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the law.
The Supreme Court (183 Ga., p. 30) held that the general rule is that in constr"uing legislative enactments the use of uneqivocal language in enactment forbids interpretation of words employed by the General Assembly, but held this general rule inapplicable where words used have meaning, which in general acceptance is apparently obvious, but the purpose of enactment would be defeated where words employed were literally construed.
Code Section 102-102 provides: "The following rules shall govern the construction of all statutory
enactments :
''- - - - - -
"6. A substantial compliance with any requirement of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment.
"
"9. In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy. Grammatical errors shall not vitiate, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands. - - - - - -"
From the foregoing, I am of the opinion that the intent and purpose of the 1956 Act, relating to the breeding and sale of pen-raised quail insofar as the marking of the carcass of the bird is concerned, was to provide a means of identifying such carcass. Therefore, I am of the opinion that the Game & Fish Commission could adopt a regulation permitting the use of wing clips or other devices to be attached to the carcass of the bird, so long' as the method utilized contains the basic information required by the 1956 Act.

GAME AND FISH-Quail-Commercial Breeders

1. Commercial breeders authorized to sell live quail or carcasses if properly licensed.
2. License to operate hunting preserve does not entitle one to sell quail carcasses.

Honorable Fulton Lovell

April 23, 1959

I am in receipt of a request from your office, by Mr. George C. Moore, for my opinion in regard .to the legality of selling live quail by the holder of a commercial quail breeders license and also if the holder of a license to operate a hunting preserve may sell birds as food.
In response to your first question, I refer you to an Act (Ga. Laws 1956, p. 48; Ga. Code Annotated, Section 45-535) relating to breeding and sale of

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pen-raised quail which reads in part as follows: "(a) Any person, firm or corporation may engage in the business
of propagating pen-raised quail, commonly known as bobwhite quail, for restocking, propagation and other commercial purposes by complying with the provisions of this law, and may thereafter sell either live quail or the carcasses of such pen-raised quail for any purpose, including sale for food, either within or without this State."
The above quote sets forth the permissible actions of a person, firm or corporation operating and licensed as a commercial quail breeder. As you will note, such a person, firm or, corporation may sell either live quail or the carcasses of the quail. Therefore, your question as to whether or not a holder of a commercial quail breeder's license may sell live quail is answered in the affirmative.
To answer the second question set forth above, it is necessary to refer to Section 2 of an Act (1957 Ga. Laws, p. 295; Ga. Code 45-1001 - 45-1010) relating to hunting preserves which reads:
"Section 2. Any license issued hereunder shall permit the licensee to propagate, possess and release for shooting and/or taking on the preserve covered by such license any game bird or animal defined as such by law, rule or regulation under the laws of the State of Georgia, and in addition thereto, import, propagate, possess and release for shooting andjor taking on the preserve covered by such license any foreign game bird or animal not a native of the State of Georgia." This Section, in setting forth the rights of a licensee, spells out the right to possess and release for shooting and/or taking on the preserve, but does not regulate the right to sell dressed birds. Therefore, becoming licensed under the Hunting Preserves Act would not give a person, firm or corporation any right to, in effect, sell dressed birds other than they would otherwise possess under law. To determine the law applicable to the sale of pen-raised quail, you must look to the Georgia Code Annotated, Section 45-535, relating to breeding and sale of pen-raised quail discussed in answer to your first question.

GAME AND FISH-Tidal Waters

Closing of tidal waters discussed.

Honorable Fulton Lovell

April 23, 1958

This is in reply to your request in which you ask for a clarification on the law pertaining to the closing of sounds, tidal rivers, bays and creeks, with
which request you enclosed a letter addressed to you from Mr. David H. q.
Gould, Supervisor of Coastal Fisheries Division, in which letter Mr. Gould refers to an unofficial opinion rendered by this office on March 22, 1957.
I call your attention to the provisions in the Act in paragraph B of Section 94, approved March 7, 1955 (Ga. Laws 1955, pp. 483, 530) which provide as follows:
"(b) It shall be unlawful to take shrimp, crabs or fish other than shad and sturgeon with nets other than cast nets in the tidal rivers,

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tidal bays and tidal creeks of this State at any time." which was amended by an Act approved March 9, 1956 (Ga. Laws 1956, pp. 590, 597) to read as follows:
"(b) Except as otherwise specifically provided, it shall be unlawful to fish at any time with nets, other than cast nets, except for shad or sturgeon, in any of the tidal rivers, tidal sounds, tidal bays and tidal creeks of this State." In the Act of 1956 a new paragraph was added to the Act of 1955, which is as follows:
"94B. Taking of crabs with power-drawn nets between January 1st and March 15th.
(a) It shall be unlawful to take crabs with power-drawn nets between January 1st and March 15th, inclusive, of each year in the outside salt waters and such sounds which have been opened to commercial shrimp trawling under provisions of law, or which are hereafter opened to commercial shrimp trawling under provisions of law, unless the webbing used in the construction of such power-drawn nets so used shall be of minimum mesh size of four inches when stretched."
(b) The presence of a net of a mesh size smaller than four inches, when stretched, on board any boat or vessel fishing for crabs, as provided in this section, shall be prima facia evidence of a violation of this section.
(c) Any person, firm, or. corporation violating this section shall be guilty of a misdemeanor and punished as provided by law." In the light of the above law, it is my opinion that the taking of crabs by power-drawn nets is only permitted to be done in water which are opened to commercial shrimp trawling, and then could not be taken by power-drawn nets between January 1st and March 15th, inclusive. In your request and in the Mr. Gould's letter an unofficial opinion is referred to rendered by this office on March 22, 1957, addressed to Honorable William R. Killian, Representative of Glynn County, in reply to a request he made for an interpretation of Section 45-905(f). Mr. Killian did not request an opinion on the use of nets, but asked that when a sound or other body of salt water was closed by authority vested by law in the Game and Fish Commission, then would it be closed to every type of fishing, including crabbing. The unofficial opinion above referred to was intended to answer his qustion as to generally fishing and crabbing without reference to the use of power-drawn nets, and he apparently drew the wrong conclusion since the unofficial opinion stated that the taking of shrimp in any manner except for live bait would be prohibited when a sound or other body of salt water was closed because of the count exceeding the minimum provided by law.

GENERAL ASSEMBLY-Authority Unofficial)

General Assembly prohibited from making any donation or gratuity in favor of any person, corporation, or association.

Senator Herman Talmadge

June 6, 1958

In reference to your letter, I have read with much interest the enclosed memo of Senator Robertson pertaining to Senate Bill No. 3626. While I have

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no specific information concerning the activity of the Federal Government and other states on the matter, I will summarize the pertinent Georgia laws.
Gifts, such as proposed by the above bill giving Freedmen's Hospital to Howard University, are prohibited by our own State Constitution. Article VII, Section I, Paragraph I provides:
"The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association."
The case of Atlanta Chamber of Commerce v. McRae, 174 Ga. 590, held that the above constitutional provision also prohibited county funds from being donated to the Atlanta Chamber of Commerce, private freight bureau, or convention and tourist bureau. In my opinion neither the State of Georgia, a Georgia County or a Georgia City could constitutionally give or donate school property to a private individual or institution.
However, no like proihbition is found in regard to the Federal Government. Alabama v. Texas, 347 U.S. 272, 74 S. Ct. 481, 98 L. Ed. 689 (1953) held:
"Article 4, 3, Cl. 2 of the Constitution provides that 'The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory and other property belonging to the United States.' The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine."
As to the sale of public property in Georgia, this power rests exclusively in the General Assembly. Western Union Tel. Co. v. W. & A. R. Co. 142 Ga. 532, 534. However, there is specific authority vested in local boards of education under Code 32-909 to dispose of school property. Duffee v. Jonse, 208 Ga. 639, 644, in interpreting the above Code Section, held:
"... a county board of education has power to and may sell at private sale any schoolhouse property for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes. But the board has no power or authority under this or any other provision of our law to sell any property which has been conveyed to and accepted by it, or its predecessor in title, in trust for educational purposes, as in this case, except in the manner and way provided for by Code 108-408 and 108409, which is at public sale after proper leave to sell has been obtained from the superior court. . . ."
With regard to the general rule found in other states, 49 Am. Jur. 57, p. 270 states:
"In the absence of self-imposed constitutional or statutory restrictions and limitations, the state may, as it sees fit, sell or dispose of property real or personal which it holds in a proprietary capacity as any private owner of property may.''
There are many instances in Georgia where the General Assembly has enacted laws authorizing the lease of state owned property to private individuals. Examples are: Western & Atlantic Railroad Property - Ga. Laws 1915, Ex. Sess., p. 120 (Leased May 11, 1917 - expires December 27, 1969); state owned real estate in Chattanooga, Tennessee - Code 91-108, 91-110; Henry Grady Hotel Property in Atlanta - Ga. Laws 1921, p. 194; Ga. Laws 1939, p. 394; Georgia Mineral Leasing Commission, leasing of state owned

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property for mineral purposes - Ga. Laws 1945, p. 352; State Parks - Ga. Laws 1956, p. 22 (repealed at 1958 Session of the General Assembly); and School property - Ga. Laws 1956, p. 10.
The authority of Georgia municipalities to lease public property depends, of course, upon each local charter. There, are many instances in which municipalities have leased swimming pools to civic clubs such as the Lions and Kiwanis.
Perhaps Senator Robertson might be interested in our "Grant in Aid" plan which will allow Georgia to indirectly aid all private schools by means of a subsidy to the individual student rather than the school itself as in the case of Howard University and the United States Congress. I have reference to our Constitutional Amendment of 1954 which was sponsored by you in your last term as Governor (Article VIII, Section XIII, Paragraph I). It provides as follows:
"Notwithstanding any other provision of this Constitution, the General Assembly may by law provide for grants of State, county or municipal funds to citizens of the State for educational purposes, in discharge of all obligation of the State to provide adequate education for its citizens."
In 1956 (Ga. Laws 1956, p. 6) the General Assembly passed an enabling act to the above constitutional provision. A copy of this law is attached hereto for the information of the Senator.
I might add that recent court decisions seem to rule out the possibility of local boards of education leasing school property to private schools who would operate on a segregated basis. Deerington v. Plummer (C.A. 5th 1956) 240 F. 2d 922, involving a suit to enjoin a Texas County from renewing or extending a lease of a courthouse cafeteria to a tenant who would exclude therefrom persons merely because they were Negroes, held:
"Further, the express purpose of the lease was to furnish cafeteria service for the benefit of persons having occasion to be in the County Courthouse. If the County had rendered such a service directly, it could not be argued that discrimination on account of race would not be violative of the Fourteenth Amendment. The same result inevitably follows when the service is rendered through the instrumentality of a lessee; and in rendering such service the lessee stands in the place of the County. His conduct is as much state action as would be the conduct of the County itself. Muir v. Louisville Park Theatrical Association, 347 U.S. 971, 74 S. Ct. 783, 98 L. Ed. 1112, reversing 6 Cir., 202, F. 2d 275, which had affirmed D.C.W.D. Ky., 102 F. Supp. 525; Department of Conservation & Development v. Tate, 4 Cir., 231 F. 2d 615, affirming D.C.E.D. Va., 133 F. Supp. 53; Lawrence v. Hancock, D.C.S.D. Va., 76 F. Supp. 1004; compare Nash v. Air Terminal Services, D.C.E.D. Va., 85 F. Supp. 545; see also City of St. Petersburg, etc. v. Alsup, 5 Cir., 238 F. 2d 830."
The only practical answer would seem to be the outright sale of such school property with no strings attached.

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GENERAL ASSEMBLY-Legislation

Only "local" bills require advertising.

Mr. Dan M. O'Connell

June 5, 1958

This will acknowledge receipt of your letter in which you request information rearding the advertisement of proposed legislation.
The provision of the Constitution relating to advertisement of proposed legislation applies only to local bills and does not apply to general legislation.
House Bill No. 735, to which you refer in your letter, is now Act No. 402 and may be found in Georgia Laws 1958, page 408. This bill, being a "population" bill, was evidently treated as a general bill instead of a local bill. It would be, of course, up to the courts to determine the correctness of this theory. In the event it were held to be a general bill, the publication of the advertisements would be unnecessary.

HIGHWAYS-Appropriations-Use

Appropriations may not be used for any projects for which they were not appropriated.

Honorable Roy F. Chalker

April 1, 1958

Replying to your letter it is my opinion that the State Highway Department may not expend any of the funds which are available to the department under the Appropriations Act, for the preservation of archeological and paleontological artifacts; nor can such funds be used in "Archeological and Paleontological Salvage".
However, should other departments of the State government have funds available for the preservation of archeological and paleontological material or artifacts then, in my opinion, such other departments might make available to the Highway Department funds to be used by that department for those purposes, under the general authority contained in the constitutional provision codified as Section 2-5901, which authorizes the several departments of the State to contract with each other respecting the activities of each.
Any opinion herein contained adverse to the expenditure of funds refers merely to funds made available to the Highway Department to meet its present legal obligations and carry out the present legally assigned duties of the Highway Department.
Any funds which are made available for "Archeological and Paleontological Salvage" by other departments under a contract with the Highway Department entered into under Section 2-5901 may, in my opinion, be used to match similar funds made available by the Bureau of Public Roads under Section 120 of the Federal Aid Highway Act of 1956. This authority is given in Section 95-1502 referred to in your letter.

l79

HIGHWAYS-Bonds

When performance and payments bonds are applicable.

Honorable Roy F. Chalker

February 18, 1958

The answers to the several questions propounded by your letter require a construction of the 1956 Act of the General Assembly of Georgia, amending Code Section 23-1705 of the Code of Georgia of 1933, as amended, (Ga. Laws 1956, pp. 340 et seq).
The intent of the Legislature is of paramount importance in arriving at the proper construction of a statute. All statutes are presumed to be enacted by the Legislature with full knowledge of the existing condition of the law and with reference thereto. Please see Botts v. Southeastern Pipe Line Co., 190 Ga. p. 689.
In construing statutes, the fundamental rule is to ascertain and give effect to intention; but such intention must be that expressed in the statute and, when meaning or language used is plain, it must be given effect. Please see Qinkerton National Detective Agency v. Walker, 30 Ga. Appeals, p. 91; and 157 Ga. p. 548.
Code Section 102-102 provides that "In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil and the remedy."
With the foregoing principles of law in mind, and with the view of arriving at a proper construction of the aforesaid 1956 Act of the General Assembly, it becomes neressary to consider first the old law, as set forth in said Code Section 23-1705, as it existed prior to the amendment of the aforesaid 1956 Act. That Code Section provides for the giving of a bond by a public contractor, which is both a "performance" and "payment" bond, and provides that "the penalty of such bond shall not be less than the contract price". That Code Section is a codification of the Act of the Legislature of Georgia, approved August 19, 1916 (Ga. Laws 1916, pp. 94, et seq), which is referred to in your bond "Form HD 183", attached to your request for this opinion. It is very clear that the old Section 23-1705, contemplated the giving of only one bond and that the total penalty should not be less than the amount of the contract.
When we compare the new law, amending said Code Section 23-1705, as set forth in said 1956 Act, with old Code Section 23-1705, it becomes very apparent that it was the purpose of the language used in the enactment of the new law, to require the giving by the contractor of two bonds, each in a full penal sum of not less than the total amount payable by the terms of the contract, in Jieu of the single bond, as theretofore required. This conclusion becomes even clearer when it is noted that the 1956 Act, supra, likewise, amends certain other
Code Sections, including 23-1706 and 23-1707 by striking the word "bond", and inserting in lieu thereof the word "bonds".
I am of the opinion, therefore, that the answers to your first two numbered questions are as follows:
1. That the present bond, "Form HD 183", does not comply with the aforesaid 1956 Act of the General Assembly, amended Code Section 23-1705.
2, I am of the opinion that the 1956 Act, supra, requires the giving of two bonds, one being a "performance bond", and the other being a "payment bond", each to be in the penal sum of not less than the amount of the contract for which

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given, but, the said bonds being contracts between the same parties and growing out of the same transaction, there is no legal reason why both of such bonds should not be included in the same instrument.
3. The answer to your third numbered question is that you do have the right to call upon any contractor, at any stage of the construction, during the life of th~ contract, who has given a bond which does not comply with the requirements of Code Section 23-1707, as amended by the 1956 Act, supra, to strengthen his bond or to furnish new or additional bond, so as to bring his contract within the requirements of that Code Section. The Code Section is just as binding upon the contractor as upon the Department, and, in the absence of full compliance, his contract is subject to forfeiture. I do not think, however, that the Department is required to demand the strengthening of old bonds or the giving of new bonds from all contractors, now engaged in the performance of their contracts, but that this provision is optional and may be invoked whenever it appears to the best interest of the Department to do so.

HIGHWAYS-Bonds

A bond may be substituted for a contractor's Proposal Guaranty check under certain circumstances.

Honorable M. L. Shadburn

April 18, 1958

I have your resuest that I give you an opmwn as to the legality of substituting a bond for the contractor's Proposal Guaranty check in a situation where the Highway Department is not in position, because of a highway right of way difficulty, to award a contract based upon the contractor's bid, now.
There is nothing in the law which requires the deposit of a certified check to guarantee that a contractor-bidder will make good on his bid, enter into and perform the proposed contract. Such requirement is contained only in the Standard, or the special, specifications developed with relation to the proposed contract.
A study of those regulations shows that they are based entirely upon Board resolutions, and each advertisement requesting bids from contractors specifies the type of Proposal Guaranty; which is, generally speaking, the deposit of a certified check for a specified percentage of the amount proposed by the contractor's bid.
An analysis of the purpose for which this guarantee is given indicates that it is given for the purpose of affording the Highway Department a thirty or sixty day option to accept or reject the contractor's proposal, thereby making it a binding contract; while the posting of the guaranty check insures that the contractor will live up to his proposal.
The form of guaranty which the Highway Board require by resolution, rule, or individual action, is a matter resting entirely in the discretion of the Board. However, it is suggested that if the Board desires in an individual instance to deviate from an established rule, it formally indicate its desire to take such individual action.

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In the instance proposed in your letter, it seems that the sixty day option period has expired, yet both the contractor and the Department desire that the bid and proposal remain before the Department for acceptance until July 1, 1958.
I can see no objection to the Department and the contractor agreeing to hold this proposal in abeyance and affording the Department the opportunity of accepting or rejecting the bid until that time. And further, I see no objection to substituting a form of Proposal Guaranty by bond rather than by certified check.

HIGHWAYS-Competitive Bids

Advertising for competitive bids, and rates which may be charged for such advertising.

Honorable Roy F. Chalker

February 18, 1958

I have your letter which requests that I make a comparative analysis of Section 39-1105 which fixes and limits the advertising rates which can be charged by County gazettes for legal advertisments, and Sections 95-1620 and 95-1632 of the Code of Georgia of 1933, as amended, which respectively require that all contracts for road construction exceeding $1,000 be publicly advertised for competitive bids; and requires the State Highway Department or the State Highway Director to advertise for proposals in "such newspapers andjor other publications which will insure adequate publicity."
In my opinion, Section 39-1105 must be construed in connection with its companion code sections in Chapter 39-11 relating to "Judicial Sales".
Section 39-1101 describes how sales must be advertised; Section 1102 requires publication once a week for four weeks; Section 1103 describes how the official gazettes of the several counties shall be selected; Section 1104 authorizes the county officials who select such official gazette to go outside the county if there is no publication within that county in which the advertisements may be published in accordance with the other sections of that chapter, and otherwise meets the requirements.
Section 39-1105 fixes the rates which may be charged for such advertising. The balance of the chapter refers to paying the advertising fees in advance; changing the official gazette; and preservation of the qualifications for selection as the official gazette if publication is suspended because of World War II. (This last section, of course, is not longer operative since World War II has long since been terminated).
It is my opinion that should the State Highway Department. advertise for proposals to bid on contracts or projects under its jurisdiction in such county gazettes, then, the rates which must be paid is the rate prescribed in Section 39-1105.
However, I am of the opinion that the State Highway Board is not limited to the several county gazettes in its choice of advertising media for such proposals, because, by Section 95-1632 the Board is expressly admonished to insert such advertisements "in such newspapers and/ or other publications as will insure adequate publicity".

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If the Legislature had intended to limit the Board to the County gazettes, it could readily have said so. It did not say so. It made, in the choice of advertising media, the insurance of "adequate publicity" for such advertisements for proposals to bid.
It is my opinion that the State Highway Board may, by appropriate Resolution, authorize the insertions of advertisements on named projects to be let on competitive bid on designated dates, in advertising media other than the county gazettes if, in the opinion of the Board, such media would more adequately insure the publicity desired and focus the attention of qualified contractors upon the proposed contract lettings.
I am of the opinion that the Board is not limited to publications published in the State of Georgia. It is not limited in letting contracts to contractors resident in the State; and if it finds contractors resident in other States are qualified and interested and able to make the low bid and to make the bond required, I see no reason why they may not be invited to bid through the use of media which they read.
I am of the opinion that the Board should, if it desires to select such additional advertising media, do so by Resolution of the Board; and should expressly provide that no advertising rates shall be paid to any such publicity media are in excess of those charged other advertisers therein..

RIGHWAYS-Condemnation

1. Condemnation proceedings being in rem, interested persons have right and duty to intervene.
2. Disposition of buildings upon right of way discussed.

Honorable Jim L. Gillis, Sr.

April 23, 1959

Upon examination of the documents transmitted with your letter of April 21 on this project, I advise that all of the property described in the condemnation petition filed by Gwinnett County is the property of the County by virtues of the order of Judge Clinkscales dated August 23, 1958, wherein the following language occurred:
"It is decreed, ordered and adjudged that all the property described in the petition, to wit: 1.779 acres . . . be, and the same is hereby condemned in fee simple;"
If an error was made, in that some of the property described in the petition was not owned by the condemnee named, that is regretttable. But in my opinion, the condemnation suit being in rem, it was incumbent on persons owning an interest in that property to assert their interest.
If a legal reason exists, it is possible to file a motion to set aside the order of condemnation. But good reason would have to be shown.
It appears that Mr. Edwards, who would have the adverse claim to a portion of the property condemned, is willing to deed his property without expense other than the cost of removing the structure located on same. If this is true, it would appear that the County would have title from two sources to the same land. I see no particular harm in that.

183
Since the County owns the right of way, I assume your second question relative to use of State fund~ is really to be interpreted whether or not State funds may be used to remove existing structures in those instances where the County owns the right of way, but State and Federal funds are to be used in constructing a road under either the Post Road, Farm to Market, Rural Roads Authority, or other program.
It is my opinion that the removal of an existing structure from land acquired for right of way for road purposes is just as much a construction cost as is the removal of a large deposit of rock, a grove of large trees, or a crop planted and matured at or about the time of that acquisition.
In either instance, the road cannot be built until the obstruction is removed, and it is a proper construction cost for which State funds may be used. I do not need to point out to you that the removal of buildings, as well as removal of growing timber, or other obstructions to construction, which have a market value, should be so accomplished as to preserve as much as possible of that market value.
Since neither this building nor the land on which it lies is owned by the State, it is not necessary, that it be declared to be surplus by the Governor and public bids taken for its disposal. The County may sell the building, and arrange with the purchaser for its demolition and removal, and State Highway funds may be used as other construction funds are used in payment of the expense incurred, if there should be, a net expense incurred.

HIGHWAYS-Condemnation

Payment of condemnation awards before final adjudication will not result in liability of officials if done pursuant to court order.

Honorable Benton Odom

June 11, 1958

Reference is made to your letter in which you inquire as to your liability and the liability of the Board Members for the payment of condemnation awards before final adjudication, where it is probable that on an appeal to a jury, such awards might be reduced; and the possibility exists that judgments against the condemnees resulting from such reduced awards might prove uncollectible.
It is my opinion that where a State official pays money into court pursuant to a court order, in order that the State's business might continue to be handled, such payment cannot result in liability of that official, even though the amount required to consummate the State's business might later prove to be a lesser amount. The fact that the difference between the two might not be later collected would not in itself create liability, unless there were culpable negligence in failing to collect.
I do not assume that your letter referred to the possibility of liability for culpable negligence. By which term I mean a failure to do those things which a prudent man ought to do to collect a debt due him personally.
It is, therefore, my opinion that there would be no liability under the circumstances outlined either on the part of the Board Members or the Treasurer.

184

HIGHWAYS-Condemnation

Utilities are entitled to reimbursement when forced to relocate because of condemnation proceedings.

Honorable Roy F. Chalker

August 12, 1958

You desire an opinion as to whether or not the several opmwns I have given you concerning reconstruction of utility facilities presently in conflict with plans for construction of Interstate Highways, where such utility facilities are on roads or streets intersecting with and not made part of such System, applies to the rural areas of Georgia.
My previous opinions which hold in effect that the utility companies are entitled to reimbursement for relocation of their facilities, where such relocation has been compelled by the construction of expressway type roads through urban neighborhoods, have been based upon the following considerations:
(a) The lack of compensatory benefits (such as increase, in patronage, reduced maintenance costs, etc.) to the Utilities by reason of the construction of the expressway type road;
(b) The inapplicability to the situation of the Utilities as to such expressway construction of the principle laid down in the case of the City of Macon v. Southern Bell T. & T. Co., 89 Ga. App. 252, which is that a utility company is bound to forsee and provide for possible modification and improvement of public highways and streets when they initially lay their facilities thereon or thereunder without expense for the purchase of easement;
(c) The discrimination as to the allocation of costs resulting from such reconstruction against utility companies as a class, were extensive relocation and reconstruction held to be at their cost; and
(d) The fact that this type of highway is designed primarily for national, iDter-regional, interstate, and statewide use as distinguished from local use.
I have carefully studied the matter of relocation of utility facilities in rural areas, Where such relocation or reconstruction is caused by the construction, in conflict with such facilities, of an Interstate Limited Access Highway, to wit, the Interstate System.
I have arrived at the conclusion that the reasoning which compelled me to the conclusion that there is a strong moral and legal obligation for the general public to bear such cost, applies with legal or perhaps with greater force to the construction of interstate highways in rural areas.
It is obvious upon analysis that the cost of relocation or reconstruction of facilities is a part of the cost involved in the construction of the new highway. The only question to be determined is whether that portion of such cost of construction should be borne by the users of the highway through taxes, or upon that limited group who constitute the customers of the utility facility, through rates.
It is illusory to think that the costs will be borne by some corporation. Utility companies are almost universally under regulatory and rate-making bodies; and any expense incurred by such utilities, whether for original construction or reconstruction, must, in the very nature of things, be ultimately borne by the customers who patronize that utility.
So, in the consideration of this question, we must determine whether justice and law require that this small group rather than the larger group shall bear the expense.

185
Let us assume a local telephone company has extended its lines along a rural road to serve a dozen or so customers. An Interstate Highway is constructed which crosses this rural road. Such crossing cannot be at grade. Either the rural road, if relatively unimportant, is severed completely, dead-ending on both sides of the new highway, or it is elevated to cross the interstate limited access road above grade, or depressed to cross below grade.
In either event, the rural telephone company would not be permitted to extend its poles and 1ines across the interstate highway at the ordinary level of such poles and lines. The company would be required to reconstruct its line for a considerable distance on either side of the new limited access road to conform to the new grade of road along which the line lies; and would perhaps be compelled to construct lines parallel to the new road some distance to some nearby non-grade crossing thereof with its own facilities; and on the far side would have to again extend a long line to resume its course in the direction originally projected to serve its customers along that rural road.
The expense would be completely prohibitive in most instances and a severe hardship in all.
No new customers would be added. In fact the probability is that patronage would be lost rather than gained.
While this illustration is perhaps extreme, the same general situation would result wherever utility lines which are laid along existing roads or streets are crossed or intersected by the new limited access high-speed interstate road.
It is quite obvious, too, that the new highway would not be available to the utility company for servicing its facilities.
It is equally obvious that the very nature of the new highway prohibits all but the barest minimum of physical location of utility facilities inside the right of way limits of a limited access road.
It is difficult to conceive of the authorities in control of such a road permitting any utility to excavate within its limits to either install or service underground facilities thereon; and it is equally absurd to attempt to visualize slow trucks carrying giant spools of telephone cables traversing such highways, to lay, replace, repair or service telephone or telegraph lines.
Since servicing must be performed outside the limits of such new highway, it follows that the servicing of lines lying along roads which are intersected or crossed by such highways would be hampered and made more expensive to the companies.
For the reasons above outlined, and reiterating the reasoning and the citations outlined in the 1950 decisions, I am of the opinion that utility companies whose facilities must be relocated or reconstructed by reason of the construction of any segment of the Interstate Highway System must be reimbursed therefor.
I find nothing in the City of Macon case cited above which is in conflict with this conclusion. Nor do I find any constitutional provision, statutory enactment, or appellate decision in conflict therewith.

HIGHWAYS-Condemnation
Owners of property severed by condemnation proceedings are entitled to damages.
September 15, 1958
Honorable Roy F. Chalker This acknowledges your letter requesting my opm10n whether, under the
circumstances noted in that letter and its attachments, it would be legal to pay to the owners of property remaining after acquisition of a portion for right of way purposes, severance damages.
A review of the statements in the letter and on the attached plans, and the plans themselves, reveal that a portion of a lot now fronting on a four lane highway, and with access thereto, will be taken. The remainder of that lot, after construction, will be deprived of access to the four lane highway, which is to be converted into a limited access highway; but will retain access (which it presently has already) to an intersecting street, which, in turn will be converted into a kind of service road, with only one way access to the converted four lane.
In my opinion, access presently enjoyed will be severely curtained, and almost destroyed, to the four lane, and restricted, even as to the intersecting street, since it will no longer cross the four lane highway, but will merge with it, In one direction only, at a distant merger point.
Under these conditions, it is my opinion that compensable severance damages to the untaken portion has occurred; and the Highway Department is fully justified in appraising this damage and negotiating for a settlement thereof.

HIGHWAYS-Employees

Highway department cannot withhold earned compensation from a dismissed employee.

Honorable Roy F. Chalker

October 2, 1958

This acknowledges your request for my oprmon as to the legality of the Highway Department withholding moneys which are due by the Department or by the State Employees Retirement System to the employee for past services and contributions to the Retirement System; which employee has been dismissed from service because of an effort to sell State equipment, and an investigation is underway to determine whether or not he is indebted to the State because of previous sales of such equipment.
It is my opinion that the State Highway Department is not concerned with the return of contributions by the employee in the past to the State Employees Retirement System. Whether or not such contributions could or could not be returned by the State would be a matter for determination by the Employees Retirement officials and not by the Highway Department officials.
However, I invite your attention to the provisions of Section 40-2512 of the Code of Georgia of 1933, as amended, which exempts the return of an employee's contributions from any process of any kind.

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I do not believe that you would be justified in withholding any earned salary or compensation, including annual leave which has accrued and been fully earned. Of course an employee whose services have been terminated for cause may not be entitled to any leave after the date of such termination. Your letter does not advise the date of termination of this employee's services.

HIGHWAYS-Municipal Streets

State has option to repair or pay sum for maintenance of strees in municipalities of 5,000 population or less, when street is part of State-aid system of roads.

Honorable Roy F. Chalker

June 11, 1958

I have your letter which requests an analysis of Act No. 279 (House Bill No. 1036), Georgia Laws 1958 Session, pages 223, et seq., approved March 21, 1958:
This Act, in effect, equalizes the maintenance of State-aid highways in all municipalities regardless of size, whereas in the past it has been the obligation of the Department to maintain those highways which also constitute municipal streets in municipalities of 5,000 population, or less, only. The larger municipalities have been charged with the maintenance of their own streets irrespective of the fact that some of those streets are part of the State-aid system of roads.
The Act gives the Highway Department the option of providing for such maintenance either by the performance of the necessary work with its own forces or by contract; or, in lieu thereof, to pay some of the municipalities for maintenance, a sum equal on a per mile basis to the sums expended on State highways generally for maintenance.
In my opinion the various options provided in this Act are for the benefit of the Department and to be exercised at the discretion of the Department.
Answering specificially, however, the various questions you raise:
1. As to inactive municipalities, the Department may at its option perform maintenance on the streets within such municipality with its own forces. A fund, however, should be set up against the mileage of State-aid roads within such municipality. The Act as a whole allows a period of four years in which to equalize the expenses of such maintenance.
2. It is my opinion that the words "preceding year" as used in Section 2 of the Act, mean the year ending June 30 immediately preceding the year of allocation of funds; which years begin on July 1. The first year, for instance, begins July 1, 1958. Allocations for that fiscal year should be based upon maintenance cost for the fiscal year ending June 30, 1958. It is realized that the figures. will not be available on July 1, but I see nothing in the Act which requires that the funds be allocated on July 1. The Act requires that they be allocated for the year beginning July 1. Such allocation may be made as soon after July 1 as the figures are available and such allocation becomes feasible.
3. It is my opinion that the Act contemplates that the State Highway Department may at its option do maintenance work or pay money to the cities in-

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volved. In fixing the policies it would appear to be desirable for the Department to do the work in all instances where the city does not have adequate maintenance forces of its own; or where such maintenance forces are not equipped to do the work as effectively or as cheaply as the Highway forces can do that work. Necessarily, that means that the smaller cities, instead of getting money, will get the work done on the State-aid roads in their limits by the forces of the Department.
Most of the larger cities (being equipped with adequate maintenance forces) may prefer that the State pay them the money rather than have the work done with State forces. The option, however, is the Department's option-not the city's.
The unnumbered question, which is really part of No. 3 above, asks whether the law requires that the State action be based upon obtaining the agreement of the municipality in advance. The answer is "no". The option of whether or not to do work or pay money lies in the discretion of the Department.
No municipality may insist upon either the performance of work or the payment of money allocations until the fourth year of such allocation. That is to say, the money allocated for the year beginning July 1, 1958, to any named municipality, remains within the Department's control until June 30, 1962. And so on.
Should the above analysis leave questions still in your mind, other than administrative matters, please call on me.

HIGHWAYS-Options

Selected soil options are not necessarily invalid because they are with state employees.

Honorable M. L. Shadburn

February 27, 1959

This acknowledges your letter with relation to securing options for selected soil on lands belonging to members of the General Assembly, such options being obtained for the purpose of aiding in the solicitation of bids for road construction. You ask if the substance applies to State employees generally.
Construed with your standard specifications, the taking of options for selected soil does not finally obligate either the State or the contractor to take that particular soil or any part thereof or any definite quantity. Any soil which is taken under the option is paid for by the contractor and not by the State. The contractor is free to purchase soil elsewhere if he can find soil which will meet the specifications at a saving to himself.
The value of the option lies in making known to the proposed contractor that certain sources of pre-tested material are available, where such materials are available, the quantities at such locations which can be used, and the price at which it can be obtained.
Armed with this information the contractor is much better prepared to calculate and submit a competitive bid.
The taking of an option by the State also precludes the pre-emption of all available, suitable material by one contractor, thus prohibiting competitive bids.

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As long as no specific regulations require the contractor to buy his material at the area optioned, I do not think that the option violates either the law or the spirit of any law or regulation prohibiting State employees from selling to the State.

HIGHWAYS-Rights of Way

Regulation of "outdoor advertising" along rights of way discussed.

Honorable M. L. Shadburn

February 27, 1959

I have your letter advising that the State Highway Department has under preparation a policy letter explaining the application of the "Rules and Regulations for the Protection of State Highway Rights of Way" to streets within municipalities which constitute part of the State-aid Systems of Roads.
Your letter implies that there will be no difficulty with relation to those parts of the Rules and Regulations which were developed and promulgated by the Department. But you desire my opinion as to the applicability of Chapter 95-20 of the Code to those streets within municipalities which are part of the State-aid System, inasmuch as this is a State law rather than a State Highway Department rule, although included in the Rules and Regulations above referred to.
You have rightly questioned the authority of the State Highway Department to modify or explain the State law.
Chapter 95-20 of the Code relates to outdoor advertising. The Act from which is was codified, approved August 27, 1931, states in its title that it is "An Act to Regulate Outdoor Advertising." Although "outdoor advertising" is not defined in that Act, it is my opinion that the term was intended to mean roadside advertising relating to products or services not pertaining to business activity at the immediate location of the sign. I do not apprehend that the term "outdoor advertising" means one sign, or a very few signs, attached directly to an active business and stating the name and nature of that business.
Further, I apprehend that the term means "billboard advertising" or the advertisement of products and services not necessarily sold or put out by the owners of the signs; or incidentally pertaining to a business or activity in the immediate vicinity of the sign.
Therefore, I have very grave doubts that the Chapter was meant to apply to signs attached to buildings devoted to business purposes which merely give the name and nature of the business conducted in that building.
At the time this legislation was passed (Act of 1931), it defined the right of way by the following language:
"The right of way limits are hereby described to be any property deeded to public road authorities for public road purposes, and, in the absence of any deed, to be the outside construction lines, including barrowpits, ditches, and slopes, on such public roads." Following that definition, this Act referred to areas "within the right of way lines of the public roads of thi~ State". Ordinarily, this would not be construed to mean streets within a municipality.

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In 1937, the State Highway Act was amended so as to provide that "streets or parts of streets lying within the corporate limits of municipalities of this State and forming a continuation of, or a link in, the State-aid System of Roads of this State" should become a part of the State-aid System of Roads; and that thereafter the State Highway Department would be responsible for construction and maintenance of such streets; further providing, however, that the municipalities would not be relieved of their obligation of maintain their streets in a reasonably safe condition.
In urban areas sidewalks have ordinarily been understood to be provided for strictly local pedestrian traffic, or at most very light local vehicular traffic, such as children's tricycles, scooters, baby prams, etc. Such areas were not considered to be provided for through vehicular traffic which is the main purpose of the State-aid System.
Therefore, it would appear, in spite of the definition of right of way lines given above, that sidewalks in municipalities were not intended to be included in the definition of the area in which all "signs of any description" were prohibited. Hence, those businesses lying on municipal streets which also constitute part of the State-aid System, have not been heretofore prohibited from having signs attached to their buildings which might overhang the sidewalk, which solely advertise the business to which the signs are attached.
It was quite evidently the intention of the Legislature that the construction of the two Acts be construed as above defined, because in 1953, the definition of right of way limits as quoted above was repealed by the Legislature; thus allowing the State Highway Department somewhat more latitude in defining, for outdoor advertising purposes, what would be considered "right of way."
It is my opinion that the Highway Department is authorized to embody different standards in defining what is right of way in cities and in non-urban areas, for advertising sign purposes; and may authorize, within the limits of highway traffic safety, the maintenance of signs in city street areas other than the vehicular lanes.
I will add, however, that the definition of right of way for all other purposes has been fixed by our courts as substantially that which was originally contained in the 1931 Act; and I do not consider the repealing Act of 1953 modified the definition of right of way for all other purposes, as given in court decisions.

HIGHWAYS-Rights of Way

Where a utility occupies a railway right of way, it must bear the expense of moving if highway changes necessitate railway facilitiy changes.

Honorable Jim L. Gillis, Sr.

October 23, 1959

This acknowledges receipt of your letter in which you request an official opinion as to whether the Georgia Railroad Company would be required under the circumstances outlined in the file attached to your letter to request the Western Union Telegraph Company to move the facilities of the latter company located on the right-of-way of the Railroad Company at the expense of the Telegraph Company.

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Were it not for provisions of Paragraph 4-b of Policy and Procedure Memorandum 30-3 of the Bureau of Public Roads, I might interpret the contract between the two companies differently. But Paragraph 4-b of that memorandum reads as fo11ows:
"Utility on Railroad Right-of-Way: Where a utility company accupies the rights-of-way of a railroad company at the site of a project which requires a change in the railroad company's facilities, the approval of the agreement between the State or the Bureau of Public Roads and the railroad company will be contingent upon the railroad company exercising its rights under the terms or conditions of the permit or easement under which the utility company occupies the rightof-way and is required or relieved of the obligation to adjust its facilities at its own expense."
The foregoing quoted provision, which has the force and effect of Federal Law which the State Highway Department is bound to recognize under the provisions of Code 95-1502, requires me to hold that the Railroad Company must request the utility company to move at its own expense under the contract referred to.
Since that is true, the expense of removing or relocating such facilities of the Telegraph Company can not be reimbursed by the Bureau of Public Roads. And since the State Highway Department is required under the provisions of the Code Section cited to give assent to applicable Federal Law, such relocation would not be eligible for reimbursement at State expense.

HIGHWAYS-Rural Roads Authority

Bond holders of Rural Roads Authority may not interfere with public's use of interstate highways.

Honorable John Quillian

August 19, 1958

I have your letter which advises me that the Federal Government is delaying a commitment to participate in this project until an opinion of the Attorney General, or a court decision, has been provided stating that it will not be possible for bond holders of the Georgia Rural Roads Authority to interfere with the public's use of the right of way in the event there is a default in the payment by the Authority to the bond holders.
As you know, the Georgia Rural Roads Authority is an instrumentality of the State of Georgia which has been authorized to accept title to the rights of way of certain segments of the county road system in Georgia; to lease these segments of road for an annual rental to the State Highway Department of Georgia for a period not to exceed fifty (50) years; and to pledge such title, and such rental payments, to the amortization of bonds, or certificates, the proceeds of the sale of which are used to improve and pave the segments of roads referred to.
In carrying out this function the Rural Roads Authority, in lieu of making each road project a separate commitment, has grouped a large number of such projects into one commitment called "an increment". One lease was executed

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between the Authority and the Department as to all the roads proposed to be improved from the sale of bonds under each such increment, of which there are five.
The road which is proposed to be improved with Federal participation is included in Increment No. 1. Default could occur in the payment of rental by the Department only as that increment, or all of the several projects included in that increment.
In short, there is no possibility of default either in the payment of lease money by the Department to the Authority; or in the application of those payments to paying off the bonds of that increment, except as to the increment as a whole.
The Constitution of the State of Goorgia (Section 2-5901 of the Code of 1933 as amended) clearly authorizes the execution, and guarantees the legality, of the contract between the Authority and the Department for the lease of chose roads. The Supreme Court of this State has approved such contracts as legal and binding.
In addition, the legality of each increment has been submitted to and termed satisfactory, in favor of such legality by the Superior Court of Fulton County.
Hence, there can be no question but that the lease and contract are legal and binding; and the State Highway Department of Georgia, or its successors in charge of the roads of the State, may be compelled by mandamus, to carry out the terms of the lease contract.
As pointed out above, a default, or an action to force compliance in case of such default, would not be a default, or an action, concerning the segment of road under consideration here; but a default, or an action, concerning all of the roads which are included in that increment of bonds, a portion of which was used to pave this particular road.
I am of the opinion therefore that it would be the height of absurdity for the bond holders, or trustees acting for them, to attempt to take physical possession of forty (40) or fifty (50) short stretches of road located in :forty or fifty different counties scattered throughout the State. The remedy of mandamus, as suggested above, is clear and is so easy of application that it amounts to what, to all practical purposes, is the only available and workable remedy.
Assuming however that the bond holders, or a trustee acting :for them, preferred to take possession of the road, I am of the opinion that such road could not be closed to traffic by the bond holders. The courts of this State have repeatedly held that owners of property abutting upon a public road have an easement of ingress and egress and regress thereto. This is a property right vested in them.
These easements have not been sold or pledged by these abutting land owners.
These easements are not by virtue of any document executed by the Department, or any document executed by the Authority, conveyed or pledged to the bond holders.
I conclude therefore that the bond holders may not interfere with the public's use of such roads.

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HIGHWAYS-State Highway Board-Liability

Discussion of effect of a judgment against highway department and possible methods of enforcing same.

Honorable Jim L. Gillis, Sr.

April 7, 1959

You request that I give you my opm1on (in view of a complete discussion of this case in a memorandum to me,) whether or not the State Highway Department has the authority, and is under the duty, to settle or to pay the judgment in its present status.
Unquestionably you have the authority. That authority to settle or pay exists at any stage of an effort by someone to collect damages for injury or death caused by an allegedly defectively constructed or maintained bridge or approaches. The following language in Code Section 95-1710 cannot be construed in any other way, after vouchment:
"The State Highway Department shall have the right and authority to adjust and settle in the name of a county or on its own behalf any claim for damages for which the State Highway Department may be ultimately liable under this section."
As to whether or not the State Highway Department is under the duty to pay the judgement, I wish to say that such duty would arise under either of the following contingencies:
(a) When the primary liability of the county has been established by a final judgment of a court of competent jurisdiction, the "ultimate" liabilty of the State Highway Department immediately arises under Code Section 95-1710; and
(b) Whenever, in the exercise of a sound discretion, the State Highway Department has determined that further litigation, even though possible, is so fraught with risk that a settlement should be made.
As to the contingency listed under (a) above, this is a judgment which will be final unless further litigation is had.
As to such litiga:tion being too fraught with risk, as indicated in the second contingency cited, I recommend that the case be settled or paid at the present stage. In making this recommendation I wish it to be understood, however, that I do not wish to substitute my judgment for that of the State Highway Board. It is the duty of the Board to weigh the factors involved and to follow a sound discretion. My personal opinion cannot, and should not, be binding upon you.
But to aid you in the exercise of such discretion, I think that I should discuss, briefly, what further litigation is possible and the risks which would inhere in such litigation.
The attorneys in this cause, according to my view of the matter, have three courses open to them to force payment of the judgment. Those three courses of action are:
(1) A mandamus suit against the County Commissioners to compel them to levy taxes, raise sufficient funds to pay this judgment, and to pay the same;
(2) A similar mandamus against the Treasurer, or the Treasurer and Members of the State Highway Board, in the United States court; or
(3) Such mandamus in the State courts against the State Highway Department, the Treasurer and/ or the Board.

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As to the first contingency, I believe that it is sound law that a mandamus may lie only to force an officer to perform a plain legal duty; and I likewise believe that it is sound law in view of the language in Section 95-1710, as follows:
"The Stae Highway Department shall defend all suits and be responsible for all damages awarded against any county under existing laws ..."; that it is the plain legal duty of the County Commissioners not to pay such judgment and not to levy such taxes.
It follows that I believe it is sound law that such a mandamus suit would not lie in the Federal court. But the Federal Courts do not always agree with my~ views.
~ As to the second of the possibilities listed above, I am quite sure that a mandamus action against a State officer attempting to compel that officer to perform a duty of his office, would not lie in the United States courts, under the Eleventh Amendment, at the instance of a private citizen of another State. With somewhat more confidence I can predict that the United States Courts of the Middle District of Georgia would share this view; and that such an action would riot lie in the Federal court against the State Highway Department or against the officers of the Department, or against the Members of the Board in their official capacity.
'As to the third of such possiblities listed above, I am less confident as to the ultimate outcome. There is a district possibly that our State courts might hold that it is the legal obligation of the State Highway Deparment to pay this judgment; and that such legal obligation may be enforced by mandamus.
In connection with the possiblility of losing the first of these mandamus proceedings (which is the one now officially threatened) we run the risk also of having the court award substantial attorneys fees, on the ground that the county is unnecessarily litigious in forcing such further litigation.
If your sound discretion indicates that we should settle or pay this judgment at this stage, then it is the duty of the State Highway Department, in the exercise of that sound discretion, to settle or pay. As stated such action would be legal.

HIGHWAYS-Titles to Property

Reimbursement of counties for costs and expenses incurred in examining titles to parcels of land purchased for Highway Department discussed.

Honorable Roy F. Chalker

May 2, 1958

I have your letter requesting information as to the reimbursement of DeKalb County for costs incurred in the examination of title to parcels of land purchased by the County for the State Highway Department, and to be incorporated in the right of waY, of .the Interstate Highway System.
I find nothing in the contract which would prohibit your accepting the interpretation placed upon the contract between the County and a title searching firm of lawyers, which firm agreed to examine title on the project at the rate

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of $27~50 per title. The County Attorney has construed this contract to mean that where the present owner of a tract of land taken for highway purposes has acquired that tract from five different individuals, consolidating his purchases into one tract, then each such purchase by the present holder constitutes a separate title chain.
I recommend that you accept the County Attorney's interpretation of that contract. However, if there should be an effort to expand the interpretation of this contract further, financially speaking, you are at liberty to disagree with the County Attorney's interpretation of his agreement with these title attorneys, explaining, of course, the reason for your objections.

INSURANCE-Agents-Licensing

A person selling insurance through vending machines is an insurance agent and subject to examination and licensing as any other resident insurance agent.

Honorable Zack D. Cravey

March 24, 1958

You asked whether there is any difference in the license qualifications between an insurance agent who maintains an office, issues policies and collects premiums and a person who maintains vending machines from which a purchaser may deposit a coin or coins as premium for the issuance of an insurance policy.
Under the provisions of an Act approved March 7, 1956 (Ga. Laws 1956, p. 505), agents representing insurers other than those transacting life, health, accident, hospital, medical service and title insurance and bail bonding by individual sureties are required to be licensed by you as Insurance Commissioner.
According to Section lC of the Act, an agent is defined as follows:
"C. 'Agent' shall mean an individual, appointed or employed by an insurer who solicits insurance, or procures applications therefor, or who in any wise, directly or indirectly, makes or causes to be made any contract of insurance for or on account of an insurer, or who as representative of an insurer receives or receipts for money for transmission to the insurer for a contract of insurance, anything in the application or contract to the contrary notwithstanding. The term 'agent' as used in this Act shall not include a person acting for or as a collection agency, or an attorney at law admitted to practice in this State, when handling the collection of one or more premiums as a collection matter, nor shall it. include a person who shall perform exclusively clerical work, or exclusively work of an office of an insurer or representative thereof not involving solicitation of insurance, signing or countersigning of contracts, or the receipts of premiums. The term 'agent' includes subagent, and it includes solicitor."
Under the provisions of Section 9 of the Act, you, as Insurance Commissioner, are authorized to issue limited agents' licenses to certain individuals who engage in one particular type of insurance and who pass an examination perta~ning to that type of insurance.

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Under Section 10 of the Act, you, as Insurance Commissioner, are authorized to issue a "special license, without examination, to individuals selling transportation tickets of a common carrier of persons and property, who shall act as agents only as to travel ticket policies of disability insurance or baggage insurance on personal effects."
Under the provisions of Section 17 of the Act, with certain exceptions not applicable in the present discussion, "all insurance contracts on risks or property located or having a situs in this State must be countersigned by a resident agent duly licensed" under the provisions of the Act; and under Section 15 of the Act, no agent shall be instrumental in placing insurance upon any risk having a situs in this State except with an insurer admitted to do business in Georgia.
A vending machine by its nature is a mechanical device, and must be controlled by some human agency. If the vending machine sells insurance, it must of necessity sell policies issued by an insurer authorized to do business in Georgia, and which must be countersigned by a resident Georgia agent duly licensed by you as Insurance Commissioner. Therefore, I am of the opinion that the person selling insurance through such vending machines is an insurance agent and if he does not fall under the limited license provisions of Section 9 of the Act or the special license provisions of Section 10, then he is subject to examination and licensing the same as any other resident insurance agent.

INSURANCE-Companies-Advertising (Unofficial)

Radio advertising for company not licensed to business in Georgia, but insuring through direct mail solicitation.

Mr. Leonard Hyatt

March 27, 1958

I am in receipt of your letter in which you ask if radio stations and other advertising media domiciled in Georgia are prohibited by any special statute from advertising for an insurance company not licensed by the Georgia Insurance Department to do business in this State, but does a direct by mail solicitation from its home office through leads procured by such advertising.
Section 56-501 of the Code of Georgia defines an insurance agent as follows: "56-501. Definition of insurance agent. - Any person who shall solicit in behalf of any insurance company, or agent of the same, incorporated by the laws of this or any other State or foreign Government, or who shall take or transmit, other than for himself, any application for insurance or; any policy of insurance to or from such company or agent of the same, or who shall advertise or otherwise give notice that he will receive or transmit the same, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk at any time, or receive or collect or transmit any premium of insurance, or make or forward any diagram of any building or buildings, or do or perform any other act or thing in the making or consummating of any contract of insurance for or with any such insurance company, other than for himself, or who shall examine into or adjust or aid in adjusting any loss for or in behalf of any such company, whether any of such acts shall

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be done at the instance or request or by the employment of such insurance company, or of, or by, any broker or other person, shall be held to be the agent of the company for which the act shall be done or the risk shall be taken. (Acts 1887, p. 121.)"
Section 56-502 provides that any person doing any of the acts mentioned in 56-501, without the insurance company being licensed in this State shall be personally liable to the holder of a policy in an unlicensed company for any loss covered by the policy.
I construe th~ language of 56-501 to be broad enough to include the type of operation outlined in your letter.
Your attention is also directed to Section 56-502b of the Code of Georgia, which provides:
"56-502b. Representing unauthorized insurers prohibited; personal liability of agent. - No person, partnership or corporation shall, within this State, solicit, procure, receive or forward applications for life, health or accident insurance or annuities or issue or deliver policies for or in any manner secure, help or aid in the placing of any contract of life, health or accid,ent insurance, or annuity for any person other than himself, directly or indirectly, with any insurer not authorized to do business in this State. Any person, partnership or corporation shall be liable for the full amount of any loss sustained on any contract of life, health or accident insurance or annuity made by or through him or it, directly or indirectly, with any insurer not authorized to do business in this State, and, in addition for any premium taxes which may become due under any laws, of this State by reason of such contract. (Acts 1953, pp. -!07, 500.)"
I also think this statute broad enough to cover the type of soliciation which you outline.

INSURANCE-Companies-Charter Amendments

Proposed charter amendment authorizing increase in maximum number of shares of capital stock approved.

Honorable Zack D. Cravey

June 19, 1958

I have your letter in which you submit a proposed amendment to the eharter of the Southern General Insurance Company, and ask advice as to its approval.
It is noted that the proposed amendment authorizes an increase in the maximum number of shares of capital stock, and the issuance of a new class of stock to be designated as "Class A Common Stock" with certain rights and preferences. Thus the question arises whether an insurance company organized under the laws of this State is authorized to issue this class of stock.
While there is no specific statute provided of the question posed, it has previously been our view that the laws of Georgia contemplate one class of capital stock. Section 56-207 of the Code of Georgia provides:
"The capital stock of said company shall be divided into shares of $10.00 each, and shall not be less than $100,000.00 for each class of insurance to be engaged in, ...", and Section 56-208 provides:
"... each share of stock being entitled to one vote."

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Section 56-207 was amended at the 1957 Session of the General Assembly so as to provide:
"The capital stock of said company shall be divided into shares of $2.50 each, provided, however, when an insurance company shall have been licensed and operating for a period of not less than two years the said par value, after approval of the Insurance Commissioner, may be reduced to $1.00 per share."
An examination of the general corporation statutes fails to disclose any prohibition against preferred stock. In this connection your attention is called to the case of Hazelhurst v. Savannah, G. & NA. R., 43 Ga. 13 in which the Supreme Court held:
"... if there be no express prohibition against such issue in the charter a corporation has power to issue such stock, keeping within the amount of stock limited by the charter." This decision was reaffirmed by the Supreme Court of Georgia in the case of Georgia Power Company v. Watts, 184 Ga., 135.
Since by the proposed amendment there will be no prohibition in the charter of subject company against the issuance of preferred stock. and since the proposed amendment is for the purpose of increasing the capital and surplus and thereby improving the financial condition of the company, and will afford more protection of policy holders, and since the proposed new shares of stock meet the requirements of the insurance statutes as to par value and equal voting rights, I am of the opinion that you are authorized to approve the amendment.

INSURANCE-Companies-Deposits

Deposits with the Insurance Commissioner are for protection of policy holders, and in event of merger, if there is a surplus of funds or bonds on deposit, the surplus may be withdrawn.

Honorable Zack D. Cravey

June 25, 1958

You inquire relative to the withdrawal of $10,000 in bonds belonging to the DeSoto Fire Insurance Company, Gadsden, Alabama.
According to your letter, the DeSoto Fire Insurance Company will merge with and into the Gulf American Fire and Casualty Company, Montgomery, Ala., on November 7, 1958.
At the present time, DeSoto has on deposit with the Treasurer of the State of Georgia the sum of $10,000 and is qualified to write Fire and; Allied Lines of insurance. Gulf American has $95,000 in bonds on deposit and is qualified to write Fire and Allied Lines, Miscellaneous Casualty, Workmen's Compensation and Fidelity and Surety Insurance.
Under the merger agreement, Gulf American acquires all the assets of DeSoto and assumes all of the obligations of DeSoto in this State. Gulf American is requesting that the bonds registered in the name of and held for the amount of DeSoto be released as Gulf American already has on deposit with the Treasurer a sufficient amount of bonds to qualify for all types of insurance being written in Georgia.

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The purpose of the deposit statutes as codified in Chapter 56-3 of the Code of Georgia is to provide protection for policy holders. Gulf American and Casualty Company, which is the surviving company under the merger agreement, has on deposit with the Treasurer of Georgia the amounts required by statute for the various classes of insurance which it is licensed to write. By virtue of the merger agreement, the $10,000 deposit of DeSoto Fire Insurance Company becomes a surplus deposit which is no longer required.
In the event you, as Insurance Commissioner, are satisfied with the terms of the merger agreement (and I have examined said agreement, and it appears to be legal and proper), and you are satisfied that the financial condition of the surviving company (Gulf American) is such as its further operations will not be hazardous to Georgia policy holders, I see no reason why you should not issue an order authorizing the Treasurer of Georgia to return the bonds in question to Gulf American.

INSURANCE-Companies-Licensing

Companies licensed to write "fire insurance" would also have authority to write policies against radio active, contamination.

Honorable Zack D. Cravey

May 29, 1959

I have your letter in which you ask if a foreign insurance company licensed in this State to write Fire and Allied Lines of Insurance (property insurance) and Miscellaneous Casualty Insurance may have its license extended to include authority to write insurance "against the perils of radio actiYe contamination and all other perils causing physical loss to nuclear energy installations and facilities, including consequential loss."
Section 56-804 of the Georgia Code authorizes a State-chartered fire insurance company to cover by their policies loses ascribable to lightening, explosives, storms of every character, earthquake, hail, frost, snow, riot and civil commotion, theft, sprinkler leakage, explosions from causes other than explosives, smoke, aircraft, vehicles and against loss or damage to glass and .;he lettering or ornamentation thereon.
Section 56-502a defines casualty insurance as coverage against liability for bodily injury and property damage liability.
Our laws are, to a large extent, silent as to the coverages which a foreign fire or casualty insurance company may write on being licensed to do business in Georgia.
While the Georgia definitions were written into our laws long before nuclear energy and radio active contamination were ever dreamed of, I am of the opinion that such perils are proper subjects of insurance and that the language of the Georgia statutes is sufficiently broad to include this type of coverage.
It is my opinion that the present license of the company in question authorizes the writing of the type of coverage set out in your letter provided the company is authorized to write such coverage by the laws of the State of its domicile.

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INSURANCE-Companies-Mutual Companies

Certain requirements for organization of a mutual insurance company discussed.

Honorable Zack D. Cravey

July 21, 1958

Your letter set forth the questions below:
Q. 1. Is the paid-in surplus of $300,000.00 sufficient to meet the statuatory requirements for a mutual company to write Fire and Casualty Insurance and do I, as Commissioner, have any discretion as to amount of surplus such a company should be required to have before it is permitted to engage in business?
A. The proposed $300,000.00 surplus, in my opinion, will meet the minimum statutory requirements for a mutual company to write Fire and Casualty Insurance. The statutes are not exactly clear as to the amount of assets required for a mutual company writing two or more classes of insurance on a nonassessable basis. Section 56-1417 provides: "No policy shall be issued for a cash premium without an additional contingent premium unless the company
shall have a surplus of at least $100,000.00, or a surplus which is not less in
amount than the capital stock required of domestic stock insurance companies writing the same kind of insurance."
Section 56-207 as amended by the Act of 1957 now requires a stock company to have a capital stock of $200,000.00 "for each class of insurance to be engaged in." While my personal views are that there should be no difference in the financial stability of non-assessable mutual companies and stock companies that write the same kinds of insurance, I am forced to the conclusion that under the language of 56-1417, since alternative amounts are stated, the proposed nonassessable mutual can be legally organized to write fire and casualty insurance with a surplus of $300,000.00, if you, as Insurance Commissioner, are satisfied "that its financial condition, methods of operation and manner of doing business are adequate to meet its obligations to all policy holders in this State."
The above quoted language from Section 56-1414(d) when read in conjunction with Section 56-1417, would indicate that it is within the discretion of the Commissioner to require the proposed mutual to have a surplus at least equal to the capital of a stock company writing the same kind of business, which would be $400,000.00, or more.
Q. 2 Will such company be authorized to raise its surplus by issuing what is usually termed "guaranty fund certificates"?
A. Section 56-1421 authorizes a mutual to accept advances from "any director, officer, member or other person" to be used for the purpose of its business or to enable it to comply with any requirement of the law." Such moneys can only be repaid from the surplus remaining after providing for all reserves and other liabilities, and shall not otherwise be a liability or claim against the company or any of its assets.
It is suggested that the language in the proposed "guaranty fund certificate" be changed so as to be in the exact language of the statute, particularly that the word "savings" in line 2 of the second paragraph be changed to the word "surplus". No commissions can be paid in connection with such advances.
Q. 3. That amount of securities should be required to be deposited with the Treasurer of the State of Georgia in order for such a mutual company to write fire and casualty business on a non-assessable basis?

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A. Section 56-313 requires a mutual fire company writing on a non-assessable basis to have on deposit with the State Treasury the sum of $100,000.00; and Section 56-317 requires all domestic life and accident companies to deposit $100,000.00 with the Treasurer. The latter section has previously been construed to include companies doing a general casualty business. (See Opinion of Attorney General, 9-18-34- Yoemans, O.A.G. 1933-34, p. 356). This interpretation was adopted in my opinion to you dated 8-2-54.
I am therefore of the opinion that the proposed mutual company would be required to deposit $200,000.00 in acceptable bonds with the Treasurer of Georgia before it could be licensed to write fire and allied lines and casualty insurance.
Q. 4. Would members of the Georgia Farm Bureau engage in organizing the company be required to be licensed as insurance agents if they were to solicit and take applications for contracts from other members of the Georgia Farm Bureau to be issued if and when the organization of the company is completed and it is licensed to do business by the Insurance Commissioner, where such solicitors or organizers are not receiving any commissions in securing the applications?
A. Section 56-1414 outlines the procedure for organizing mutual insurance companies. This Section, in paragraphs (a) and (c), provides that before such company can be licensed by the Commissioner it shall hold bona fide applications for insurance upon \Vhich it shall issue simultaneously, or it shall have in force, at least 20 policies to at least 20 members for the same kind of insurance upon not less that 200 separate risks; and it shall have collected a premium upon each application, which premium shall be held in cash or securities in which insurance companies are authorized to invest, and which shall aggregate not less than twice the maximum single risk assumed subject to one fire, nor less than $10,000.00.
I do not believe that such procedure contemplates that such organizers be licensed as insurance agents or that the insurance agents licensing statutes applicable to the organizational period of a mutual company. Such organizers are not actually offering insurance for sale but are seeking to comply with statutory requirements for organizing a mutual company. They cannot be licensed as agents for a company not yet in existance, and while the applications may eventually ripen into insurance contracts, it cannot be said that such acts constitute the soliciting or writing of insurance because at that stage of the proceedings the company is non-existant and not authorized to write insurance contracts.

INSURANCE-Companies-Premium Tax

Default tax on an insurance company for failure to include premiums in its tax return is $500 per year.

Honorable Hubert McDonald

October 28, 1958

This will acknowledge receipt from your office of the amended premium tax return for the years 1947-1956 of an insurance company of Springfield, Illinois.

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You requested my informal opm10n as to what amounts are due the State of Georgia from this company. To briefly summarize, the facts in this case are that the insurance company for the years indicated above failed to include in its premium tax return filed with your office any indication of military business done in Georgia. Accepting the figures contained in ther amended tax return as correct, the company would be liable to the State of Georgia in the sum of $20,144.10 for the years in question. Of course, the State would be unable to enforce tax liability for a period of greater than seven years. See Opinion to the Honorable Zack D. Cravey dated September 21, 1954 (Opinions of the Attorney General, 1954-56, page 446).
You requested that I advise you as to what amount of interest or penalties are due for this belated return. I have examined the Premium Tax Law (Ga. Code, Chapter 92-25, as amended), and find that there is no provision for interest to be paid if a tax return is filed late. As was stated by our Supreme Court in the case of the State of Georgia v. The Southwestern Railroad:
"Taxes are not debts in the ordinary sense of the word so as to bear interest as liquidated demands. They are not contracts either expressed or implied; they cannot be connected by suit at law in the absence of express statutory provisions, and they are not the subject matter of set-off. Our system for enforcing the payment of taxes is by penalties and not by interest." Emphasis supplied. 70 Ga. 12, (8) (1883) The penalty prescribed. for the failure of a foreign insurance company to file a tax return is found in Code Section 92-7306, which reads as follows:
"92-7306. The penalty or default tax on foreign insurance companies shall be $500; ..." I am of the opinion that the insurance company, in addition to the check for $20,144.10, is liable for the sum of $500.00 for each year that they failed to include their military premiums in their premium tax return to the State of Georgia.

INTOXICATING LIQUORS-Advertising

A summary of statutes pertaining to advertising of liquors in dry counties.

Georgia Press Association Mr. Harvey Walters

July 1, 1959

This is in reply to your letter in which you request my opinion of the legality or illegality of newspaper advertising of liquor in dry counties.
For your information, I call your attention to Sections 58-301, 302 and 303 of the Georgia Code which are as follows:
"58-301. Advertising in all forms declared unlawful. - It shall be a misdemeanor:
"1. To advertise upon any vehicle of transportation or at any public place or resort, or upon any sign or bill board, or upon any circulars, posters, price lists, newspapers, periodicals or otherwise alcoholic, spirituous, vinous or malt liquors and beverages, or any of them, or any

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liquors and beverages prohibited by the laws of Georgia to be manufactured and sold in this State, or to advertise the manufacture, sale, keeping for sale or furnishing any of them, or the person from whom or firm or corporation from which, or place where, or the price of which, or the method by which or any of them may be obtained.
"2. To circulate or publish, sell or offer for sale any newspaper, periodical or other written or printed matter in which an advertisement in this section specified shall appear, or for any owner or occupant to permit any sign or bill board containing such advertisement to remain upon his premises, or to circulate any price lists, order blanks or other matter for the purpose of inducing or securing orders for such liquors and beverages or any of them no matter where located.
"58-302. Soliciting and taking of orders unlawful. - It shall be a misdemeanor for any person to solicit or receive any order for said liquors beverages mentioned in section 58-101 or any of them in any quantity to be shipped into this State, or to be shipped from one point in this State to another point in this State, and the taking or soliciation of such orders within the inhibition of this section shall also be a misdemeanor, although the orders are subject to approval by some other person, and no part of the price is paid nor any part of the goods delivered when the order is taken.
"58-303. - Injunction against continuing act; evidence, practice, and procedure. - When and where any violation of any of the provisions of section 58-301 or 58-302 shall have occurred, the continuation or repetition of the unlawful thing or act or any of like kind, by the offending person, firm or corporation, may be prevented by a writ of injunction issued out of the superior court upon a bill filed by the Attorney General, or by any solicitor general of the circuit or by any citizen or citizens of the county in which the offense has been committed, and all rules of evidence, practice and procedure that pertain to equity generally in this State may be invoked and applied in the cause as well as the granting of preliminary injunctions; all persons, whether agents, servants or officers of corporations or agents or servants of any individual, aiding or abetting in the commission of the offense, may be made parties defendant to such suits."

INTOXICATING LIQUORS-Credit Sales (Unofficial)

No law specificially forbids credit sales of beer or whiskey on credit, however regulations of State Revenue Commissioner prohibit such.

Mr. E. D. Bittner

June 18, 1959

The laws of this State do not prohibit the sale of beer or whiskey on credit; however, the rules and regulations issued by the State Revenue Commissioner prohibit credit sales. The rules on this question are as follows: Section 608 of Chapter 6, of the Laws and Regulations Relating to the Sale and Distribution of Distilled Spirits, page 60, states:

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"The consideration paid for all distilled spirits sold or bought by any retailer or sold by any wholesaler shall be cash paid at or before the time of delivery; if deliveries from a wholesaler to two or more warehouses or places of business of the same licensed retailer are to be made on the same day, no such deliveries shall be made until payment for all such deliveries shall have been made. Giving post-dated checks or other evidences of debt in payment for distilled spirits is expressly forbidden; and checks given by retailers partly or wholly in payment for distilled spirits and not honored or paid by the bank upon which drawn when presented thereto shall be in violation of this section."
.Rule 2, page 30, of the Laws and Regulations Pertaining to the Sale of Malt Beverages, states:
"All sales made by wholesalers and retailers shall be FOR CASH ONLY. Cash in this instance means that the delivery and payment therefor shall be a simultaneous transaction, and there shall be no maneuver, device or shift of any kind whereby credit is extended by a wholesaler or retailer. The use of post dated checks is prohibited."

INTOXICATING LIQUORS-Election to Determine Sale (Unofficial)

A "void" election is a nullity, and would not prevent another election to determine sale of liquor within the county from being held before two years had elapsed.

Mr. Robert E. Lawson

March 10, 1959

Your letter poses the following question:
"Under the local option law provided by Chapter 58-10 of the Georgia Code to nullify the results of a previous election held under this Chapter to determine if a county should continue to license and control retail sales of liquor within the county and that election through noncompliance with the law has been ruled void by the Superior Court, is it to be considered an election within the meaning of the Section so as to prevent another election within two years?"
A void election would not be considered an election as provided for in Chapter 58-10 of the Code of Georgia, known as the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors.
In 44 Words and Phrases 319, the word "void" is defined as follows:
"Word 'void,' as used in civil service law providing that appointment not made in conformity therewith shall be void, receives its natural full force and effect (San Francisco Charter 1899, art. 13, 11). Carrick v. Sherman, 288 P. 143, 145, 105 Cal. App. 546.
"A 'void' thing is no thing; it has no legal effect whatsoever; and no rights whatever can be obtained under it or grow out of it. In law it is the same thing as if the void thing had never existed. Mobile County v. Williams, 61 So. 963, 965, 180 Ala. 639."

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INTOXICATING LIQUORS-Malt Beverages (Unofficial)

County Commissioners of any county in State may pass a resolution authorizing sale of malt beverages in that county.

Hon. S. W. Miles

July 21, 1959

This is in reply to your letter in which you state: "We would appreciate your opinion regarding the sale of beer in a dry county. Our County Commissioners have passed a resolution authorizing the sale of beer in our county, which has been legally dry for 50 years.
"Does the Georgia law permit this? If not what is our recourse? If the law grants them this right, what is our procedure to prevent the legal sale of beer in our county?
"Does the local American Legion Post have the right to keep beer for sale to its members?" Under the Malt Beverage Act the county commissioners of any county in this State have a right to pass a resolution authorizing the sale of malt beverages in the county and to fix an a1inual license fee therefor. The law providing for this license fee is found in Code Section 58-717, which is as :follows:
"Upon any of the above designated businesses located outside a municipality, the governing authority of sueh county, in which any of the said businesses are located, is authorized to fix an annual license fee. The license fee so fixed shall apply to and be required for eaeh brewery or place of manufacture and for each place of wholesale and also for each place of retail distribution outside of -the municipality and/or including towns or cities."
The board of county commissioners have the right to exercise their discretion in this matter. The only recourse to prevent the sale would be the election of county commissioners who were opposed to the legalized sale of malt beverages in your county.
Code Section 58-706 provides that every brewer, wholesale dealer, and retail dealer in malt beverages shall pay the State and annual license tax. This section does not exempt the American Legion Posts or similar organizations from the payment of State tax, nor is there any provision in the Malt Beverage Act which would exempt such organizations from paying the county tax.

INTOXICATING LIQUORS-Possession (Unofficial)

Possession of more than one quart of liquor illegal in "dry" counties, and punishable as misdemeanor upon conviction.

Mr. Charles Burgamy

September 29, 1959

This is in reply to your letter wherein you state it is a violation of Code Section 58-1073 for a person to possess more than one quart of tax-paid whiskey in a dry county. I would prefer to base an indictment on Code Section 58-1077 which is as follows:

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"Any person found in possession or control of more than one quart of spirituous, vinous, or alcoholic liquor, in any county of this State (except such counties in which liquor may be legally sold or transported under the terms of this Chapter) shall be guilty of a misdemeanor and, upon conviction, punishable as in cases of misdemeanors. The fact that such person may have a license or liquor stamps shall be no defense in such prosecutions, where said liquor is carried into a county to which the terms of this Chapter do not apply, and wherein liquor is not legalized under the terms of this Chapter."
You further state that the only provision you have found in the Act to Legalize and Control Alcoholic Beverages dealing with the transportation of whiskey into a dry county is Code Section 58-1063. This section is the only provision in the Act prohibiting the transportation of whiskey into dry counties. The following section, Code Section 58-1064, provides that any person guilty of violating Section 58-1063 shall be guilty of a misdemeanor, and furthermore upon conviction shall have his license revoked by the Revenue Commissioner and no other license shall be issued to such person, firm, or corporation within a period of 12 months from day same was revoked.
The penalties provided for the violation of Code Section 58-1063 indicates that it was enacted for the purpose of deterring licenses in wet counties from shipping whiskey into dry counties.

INTOXICATING LIQUORS-Wine (Unofficial)

Any wines donated or purchased by University of Georgia for research purposes are still subject to wine tax.

Mr. John J. Powers

November 2, 1959

You state in your letter:
"For three or four years this Department has had a basic research project underway involving the action of anthocyanin pigment on growth of food poisoning bacteria. Recently the Wine Advisory Board, one of the agencies of the State of California, has shown an interest in the work and may be willing to support the work in part. If so, I assume it would be willing to make arrangement for donation of the wine from which we would extract the pigment or for us to purchase the particular types we need which are high in pigment content." and ask the question as to whether or not California wine purchased or donated to the University of Georgia for the purpose outlined in your letter would be subject to the Georgia tax on wine.
Any wine donated to or purchased by the University of Georgia would be subject to the State tax on wine. Code Section 58-901, which sets forth the State tax on wine, begins with the following paragraph:
"The following taxes shall be levied and collected on all wines manufactured, sold, possessed, or offered for sale within the State:"
Code Section 58-911 prohibits the importation into the State of Georgia wine which does not bear stamps evidencing the payment of taxes due the State

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of Georgia. This section is as follows: "It shall be unlawful for any railroad company, express company
or other public or common carrier or other person to transport into this State from without the State any wine that does not bear a Georgia wine revenue stamp as evidence of the tax thereon having been paid to the State on each and every package, case, barrel or other container thereof." I am not in the position to advise you whether or not wine purchased or donated for the purpose outlined in your letter would be subject to the federal tax. I suggest that you submit this question to the Alcohol Tax Unit of the Treasury Department.

MOTOR VEHICLES-Operator's Licenses-Minors (Unofficial)

A boy slightly under 15 years of age may not obtain a license to operate a motor scooter, and operation of such without a license is a misdemeanor.

Honorable Nat G. Spence

July 17, 1958

This will acknowledge receipt of your letter in which you request that this office advise you whether a "boy slightly under fifteen years old can get a license to operate a homemade 1 H.P. motor scooter, and if so, is it also necessary to have a license tag for the vehicle".
I believe that your question is answered by Code Section 92A-9904 and Georgia Laws 1958, page 396. Code Section 92A-9904 provides in part as follows:
"From and after July 1, 1937, it shall be a misdemeanor . . . for any person to operate a truck, motorcycle, automobile or any other motor-propelled vehicle upon the public roads or highways in this State, or in any county thereof, or upon the public streets of any incorporated village, town or city within this State without first obtaining a license unden the provisions of Chapter 92A-4 . . ."
Georgia Laws 1958, page 396, in providing for categories of persons entitled to receive a driver's license provides as one category the following:
"(6) Every person who shall operate a motor-driven cycle (as defined by the Uniform Act Regulating Traffic on Highways, Georgia Laws 1953, page 556, etc.) not to exceed five-brake horsepower, and who is over the age of sixteen and is not otherwise disqualified". This Act also provides as follows:
"It shall be unlawful for any person to operate any motor-driven cycle (as defined) not to exceed five-brake horsepower in this State without first obtaining a license to operate said vehicle .. No license to operate a motor-driven cycle (as defined) not to exceed five-brake horsepower shall be issued to any person under the age of sixteen or who is otherwise disqualified . ."
A motor-driven cycle, as defined by Code Section 68-1502(1) (d), is "every motorcycle, including every motor scooter, with a motor which produces not to exceed five horsepower, and every bicycle with motor attached."

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Therefore, I am of the opmwn that a boy slightly under fifteen years of age may not obtain a license to operate a homemade "1 H.P. motor scooter" under the laws of Georgia, and the operation of such a vehicle without a license is a misdemeanor.
Incidentally, I would like to call your attention to Code Section 68-1502(1) (b) which defines motor vehicles as "every vehicle which is self-propelled, except trackless trolleys which are classified as streetcars in subsection (6) (c) hereof". Under this Section the vehicle which you described in your letter would be a motor vehicle; and Code Section 92A-9914 is as follows:
"It shall be a misdemeanor for any person knowingly to permit his child or ward under the age of fifteen years to operate a motor vehicle upon the public roads or highways in this State or upon the public streets of any incorporated village, town or city."
Under this Section the parent or guardian of the boy whom you described in your letter would be guilty of a misdemeanor if he permitted his child to operate such a vehicle.

MOTOR VEHICLES~Operator's Licenses-Non-Residents (Unofficial)

Non-resident operators of motor vehicles in Georgia are exempt from purchasing Georgia license for 30 days, but not thereafter.

Hon, Jewell L. Futch

March 14, 1958

You request my opinion as to whether or not nonresident civilian Government employees stationed at Moody Air Force Base are required to comply with Code Section 68-221 which is as follows:
"Motor vehicles owned by nonresidents of the State may be used and operated on the public streets and highways for a period of 30 days without having to register and obtain a license to do so or a chauffeur's license: Provided, that the owner or owners thereof shall have fully complied with the laws requiring the registration of motor' vehicles in the State or Territory of their residence, and that the registration number and initial letter of such State or territory shall be displayed and plainly visible on such vehicle or vehicles. In other respects, however, motor vehicles owned by nonresidents and in use temporarily within the State shall be subject to the provisions of this law: Provided, no resident shall be allowed to operate a motor vehicle within this State under a license issued by another State."
The General Assembly, by resolution adopted in 1941, gave the Director of the Motor Vehicle License Unit of the Department of Revenue authority to make reciprocal extension agreements with other states whereby persons in the United States military services who owned automobiles registered in other states may operate their automobiles in Georgia for the period indicated in the certificate of registration issued in such other state. This resolution did not cover civilian employees assigned for duty by the military to stations within the State of Georgia. I am of the opinion that civilian employees of the Government assigned to duty in Georgia are not exempt from the provisions of Code Section 68-221.

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MOTOR VEHICLES-Operator's License-Revocation (Unofficial)

Driver licenses may be revoked by a court convicting a person of certain offenses, or by the Director of the Department of Public Safety upon notification of conviction of certain offenses.

Honorable Samuel J. Boykin

June 18, 1958

No little confusion and some embarrassment has arisen among the members of the Bench and Bar in various parts of the State as a result of the apparently conflicting provisions of Section 68-9927 (Acts 1953, Nov. Sess., pp. 556, 557) and Section 92A-608 (Acts of 1951, pp. 565, 571; 1956, p. 557; 1957, pp. 124 126).
The former empowers the court in its discretion to revoke the driver's licenl'e of a person convicted of operating an automobile under the influence of intoxicating liquor on first and second offenses and makes it mandatory that it do so on third and subsequent offenses.
The latter makes it mandatory upon the Director of the Department of Public Safety that he revoke such license for a period of three years upon notice of the license holder's conviction of such offense subject to its reinstatement "... after the expiration of any revocation or suspension period by any court or upon receiving a letter of recommendation from the court ..." in the event the licensee has acquired a policy of insurance or qualified as a self insurer.
The language quoted from the Act in the preceding paragraph appears to me to indicate that the General Assembly considered the two Acts as compatible and contemplated their administration by the judicial and executive branches of the government respectively without embarrassment to either.

MOTOR VEHICLES-License Tags-Mail Order

Mail order applicants for license tags are not subject to civil penalties until April 2nd, or the expiration of 15 days after date of the money order, which ever is later.

Mr. Dixon Oxford

April 28, 1959

This is in reply to your letter in which you point out reported instances in which local law enforcement officers have refused to recognize evidence of purchase of motor vehicle license plates by mail order, and request my official opinion as to the sufficiency of such evidence and the refusal of any law enforcement officer to accept such evidence as cause for prosecution for malfeasance in office.

Code Section 68-208 provides: "When an application for license tags and certificates shall be made
to the State Revenue Commissioner it shall be accompanied by cash, cashier's check, postal money order, or express money order for the license fee required by law. Money order receipts for the proper fee shall entitle the applicant to be licensed and registered for a period of 15 days from the date of said remittance."

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Code Section 68-212 provides:
"When application shall be made for the registration of any vehicle or tractor and a United States post-office money order shall be purchased for the correct fee and forwarded with said application, the receipt for said money order, when dated by the proper authority, shall serve as a 15-day permit to operate the vehicle or tractor on the highways."
Code Section 68-214, in part, provides: "Any automobile operated in the State of Georgia after April 1, of
that year, that does not have attached to the rear thereof a tag showing the payment of license for said year said motor vehicle shall be stored at the owner's risk and expense by any law enforcing officer of the State of Georgia: Provided that where the owner of said vehicle does present to said officer evidence that a tag has been ordered, and the purchase price thereof sent to the State Revenue Commissioner, but that said tag has not been delivered to said owner, then said owner shall not be subject to the penalty aforesaid."
Code Section 68-253 provides:
"An applicant may purchase a motor vehicle license plate by mail, by mailing a properly completed application form to the agent of the county of his residence along with a money order in the amount of the license fee plus an additional fee of 25 cents. Nothing herein shall be construed so as to change the requirement for the affidavit regarding payment of taxes, as provided in section 68-235, et seq."
Construing these sections together, it is my opinion that the General Assembly intended that a money order receipt, or similar evidence, showing a remittance to a county tag agent or to the State Revenue Commissioner for the proper fee entitles an applicant to the use and operation of the motor vehicle sought to be licensed and registered for a period of 15 days from the date of such remittance without penalty of any kind, assuming, of course, that the date of such remittance is on or before April 1.
Code Section 68-9901 provides:
"Any person, firm, or corporation owning or operating any motor vehicle described in section 68-201 on any public highway or street after March 1st of each year, without complying with, the provisions of that section, shall be guilty of a misdemeanor."
This criminal penalty was enacted in 1931 at a time when delinquency attached on February 2nd. Since then, the statute has been amended to provide for delinquency on April 2nd, and it is my opinion that the above criminal penalty does not attach until after May 1st of each year (i.e. on May 2nd).
In conclusion, it appears that a mail order applicant cannot be subjected to civil penalties until April 2nd, or until the expiration of 15 days after the date of a proper money order receipt issued on or before April 1, whichever is later, and cannot be subjected to criminal prosecution until May 2.
If any local law enforcement officer is making arrests for violations of Code Section 68-9901 prior to May 2, the matter should be taken up with the local solicitor-general.

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MOTOR VEHICLES-License Tags-Non-residents (Unofficial)

A person entering the State of Georgia daily, but returning to the State of his residence each night is not required to purchase a Georgia motor vehicle license tag .

Honorable William K. Boggs

November 20, 1958

You stated that there is an individual who owns and operates a place of business in Savannah, but who actually resides in the State of South Carolina. This individual has refused to purchase a Georgia license tag.
Code Section 68-221 provides:
"68-221. Motor vehicles owned by non-residents of the State may be used and operated on the public streets and highways for a period of thirty days without having to register and obtain a license to do so or a chauffeur's license:
I have discussed this matter with the Motor Vehicle License Unit of the State Revenue Department, and they informed me that their policy is not to require the purchase of a Georgia license tag from a resident of another state unless the automobile in question is in the State for a continuous period of over thirty days. Thus, under the facts which you presented where an individual enters the State of Georgia daily but returns to the state of his residence daily, he would not be required to purchase a Georgia license tag.

MOTOR VEHICLES-License Tags-Trailers (Unofficial)

An air compressor mounted on wheels and drawn by another vehicle is a trailer and requires a license tag.

Cerlist Diesel, Inc.

March 18, 1958

This is in reply to your letter wherein you enclose a leaflet describing an air compressor mounted on wheels which is not self-propelled but designed so as to be moved from one job to another by pulling the same over the public highways of this State attached to some other motor vehicle.
You inquire as to whether or not it would be necessary to license this vehicle in order for it to be towed upon the highways of the State of Georgia.
The Director of the Motor Vehicle Lke:-~se Unit informs me that this type of machinery has been classified by his department as a trailer and, as such, should have a license tag which would cost $5.00, the minimum tag for trailers.
Georgia Code Section 68-1502 (4) (a) defines "trailer" as follows:
"Every vehicle with or without motive power, other than a pole trailer, designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle."

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MOTOR VEHICLES-License Tags-Where Purchases (Unofficial)

License Tags for motor vehicles shall be purchased in county of legal residence of applicant.

Mr. Q. B. Powell

January 23, 1959

In reply to your letter, under the Act of 1955 which provided for the issuance of motor vehicle license plates in the several counties of this State, Section 3 of the Act, as found in Code Section 68-245, contains the following provision:
"... The State Revenue Commissioner shall prescribe such reasonable rules and regulations as in his discretion may be necessary to effectuate the purposes of this law." Rule 13, page 37, of the rules and regulations issued by the State Revenue Commissioner on the 1st day of December, 1955, is as follows:
"An Agent will not issue a license plate to a Georgia resident when the application shows his residence address to be in any other Georgia county than the county where the application is submitted. Residents of Georgia must purchase license plates in the county of the legal residence of the applicant. A non-resident who has lived in Georgia longer than thirty (30) days must purchase his license plates in the county of his principal place of abode." You have the right to report any evidence you might have as to the violation of this rule by the tag agents. This report should be made to the Director of the Motor Vehicle License Unit who will take such action as the Commissioner of Revenue may direct in the premises. You further state in your letter that certain applicants are swearing falsely on their tag application blanks. It is a violation of law for a person to make a false statement on his application for the registration of a motor vehicle. Code Section 68-9902, on this question, is as follows:
"Any person who shall make any false statement in any application for the registration of any motor vehicle, or in transferring any certificate of registration, or in applying for a new certificate of registration shall be guilty of false swearing, whether or not an oath is actually administered to him, if such statement shall purport to be under oath. On conviction of such offense such person shall be punished as provided by section 26-4004. Any person who shall violate any other provision of Chapter 68-2 of the Code of 1933 shall be guilty of a misdemeanor."

MOTOR VEHICLES-Police Cars-Marking Required (Unofficial)

All motor vehicles utilized to make arrests for traffic violations shall be distinctly marked.

Honorable J. W. Cross

September 2, 1958

This will acknowledge receipt of your letter in which you request that this Department advise you as to whether the General Assembly has ever passed a

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law reqmrmg a specific type of marking for all police cars which operate in the State.
I believe the law which you have in mind is found in Georgia Laws 1958, Nov.-Dec. Sess., page 556, 605, which is now codified as Section 68-1707 of the Annotated Code. This Section reads as follows:
"68-1707. Any motor vehicle which is used on official business by any person authorized to make arrests for traffic violations in this State, or any municipality or county thereof, shall be distinctively marked on each side and the back with the name of the agency responsible therefor in letters not less than six inches in height." As you can see from the above quoted Section, there is no specific type of markings required for police vehicles.

MOTOR VEHICLES-Registration Requirements (Unofficial)

Applicant for registration of motor vehicle required to make affidavit has paid all taxes for previous year on vehicle seeking to register, and on all other vehicles owned on January 1 of year preceding filing of application.

Mr. W. R. Allen, Sr.

February 27, 1958

The Act approved March 9, 1955 (Ga. Laws 1955, p. 638, 643) contains the following provision:
"In the event the applicant was not the owner of the vehicle for which an application is made for a license tag but was the owner of another vehicle on January 1 of the previous year, then such applicant shall present affidavit showing payment of all ad valorem taxes due the State and any city, county or school district thereof, on the motor vehicle owned by him, if any, on January 1 of the previous year. . . ."
In accordance with the provisions of this section of the Act approved March 9, 1955, the applicant for registration of a motor vehicle is required to make an affidavit that he has paid all taxes for the previous year on the vehicle which he is seeking registration and also on all other vehicles owned by him on January of the year preceding the filing of the application for license.

MUNICIPAL CORPORATIONS-Council-Members (Unofficial)

Incumbent councilman holds office until successor qualifies.

Honorable Charles L. Sparkman

January 20, 1958

Receipt is hereby acknowledged of your letter requesting my opinion on a question relating to the City of Garden City, Georgia.
As I understand your problem, on December 2, 1957, an election was held for Mayor and seven Councilmen of Garden City, and one of the Councilmen

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so elected died before taking office on the second Monday in January, 1958. The question arises as to who will serve in his place.
Under the charter of Garden City (Ga. Laws 1941, p. 1461) as amended (Ga. Laws 1955 Vol. II, p. 2044), it is provided in Section 3 thereof that elections for mayor and council shall be held on the first Monday in December; that such officers shall be sworn into office on the second Monday in January next following (Sec. 8); that "the mayor and councilmen hereafter elected and qualified shall hold their respective offices until their successors are duly elected and qualified" Sec. 3); and that in the event of vacancies "by death, resignation, or any other cause, such vacancy, or vacancies, shall be filled by a majority vote of the remaining officers within Sixty (60) days after such vacancy" (Sec. 4).
To begin with, it is to be noted from the above that the mayor and council are authorized to name a councilman only when there is a "vacancy". The Code, 89-501, defines the seven ways in which an office may be vacated, none of which are applicable to the instant situation, for although this Code Section declares, inter alia, that an office is vacated "By the death of the incumbent", Mr. Bowman was never an "incumbent", as this phrase refers to: one who is in the "present possession" of an office. 20 Words and Phrases, p. 585, et seq.; Webster's New International Dictionary, 2nd Ed. As stated by you, Mr. Bowman died before taking office.
I am therefore of the opinion that your problem is controlled by Section 3 of your' charter which provides that the persons elected shall hold office "until their successors are duly elected and qualified". This, I might add, is the general rule even in the absence of an express statutory provision. See Shackleford v. West, 138 Ga. 159; Stephenson v. Powell, 169 Ga. 406; Code 89-503. Consequently, there has never been a "vacancy", for the reason that upon the death of Mr. Bowman prior to his taking office, the incumbent holds over for another term, or until his successor is duly elected and, qualified. An almost identical situation arose in the case of Pittman v. Ingram, 184 Ga. 255. In the general election held in November 1936, James A. McFarland was elected judge of the Superior Court to succeed Claude C. Pittman, the former's term to commence in 1937. However, McFarland died on November 25, 1936, prior to qualifying or taking the oath of office. The Governor issued a proclamation declaring a vacancy and appointing William A. Ingram to fill the same under a constitutional provision authorizing the Governor to make appointments to fill vacancies. Judge Pittman declined to surrender his office, and on quo warranto being brought, the Supreme Court held that the Governor's purported appointment was void, and that Judge Pittman held over. In so holding, the Supreme Court declared:
"The office is not vacant so long as it is supplied, in the manner provided by the constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it,' and 'the mere expiration of the term of the incumbent does not create a vacancy.' .. 'All officers of this State must discharge the duties of their office until their successors are commissioned and qualified.... Where the legislature creates an office and provides for the election of an officer to fill it for a given term of years, the incumbent will hold over and beyond the fixed term until his successor is elected, qualified, and commissioned. . . . The office does not expire at the expiration of said term, but the elected officer holds over until his successor is commissioned and qualified. Holding over prevents vacancy.'

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* * *
In these circumstances the election of James A. McFarland was ineffective by reason of his death before he qualified by taking the oath of office and receiving a commission. He never became judge. The fact of his election did not cause a vacancy in the term of .Judge Pittman. The appointment of Judge Ingram by the Governor when there was no vacancy was unauthorized." I am therefore of the opinion: that upon the death of Mr. Bowman prior to his qualifying and taking the oath of office, his predecessor (the then incumbent) holds over for another term. In some instances where the law expressly so provides, an incumbent in such circumstances would hold over only until a special election, but your city charter does not provide for a special election. Since the incumbent holds over, obviously, any unsuccessful candidate at the December election would have no claim to office; in any event, Section 6 of your charter declares that the seven candidates receiving the highest number of votes at the election would be elected, and an unsuccessful candidate could not be one of the seven, notwithstanding the fact that one of them subsequently died.

MUNICIPAL CORPORATIONS-Liability (Unofficial)

Operation of vehicles by city employees.

Mr. J. P. Cheney

May 20, 1958

Reference is made to the question as to whether the City of Millen should have liability insurance covering the operation of motor vehicles by employees of the Police Department, Fire Department, Sanitary Department and Water Department.
The Uniform Act Regulating Traffic on Highways (Acts 1953), Nov. Sess., page 556, et seq.) codified as Section 68-1502 et seq. of the Georgia Code Annotated, is applicable and uniform throughout the State and in all political subdivisions and municipalities therein (Section 68-1606), and to the drivers of all vehicles owned or operated by the United States, any State, or any Coun'y, City, Town or District except as provided (68-1603).
The driver of an authorized emergency vehicle as defined when responding to an emergency call or in pursuit of an actual or suspected violation of the law or when responding to but not returning from a fire alarm may disregard parking restrictions, stop signs or lights and speed limits (68-1604), provided he sounds bell, siren or exhaust whistle and displays red light visible from a distance of 500 feet.
But it is specifically provided that the foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others (Iden.).
While the statute law of this State provides only that municipal corporations shall not be liable for failure to perform or errors in performance of legislative

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and judicial powers (69-301), no less an authority than Judge Marcus W. Beck said in Cornelisen v. Atlanta, 146 Ga. 416, that the whole section should be construed together to mean that . . . municipal liability should attach only for neglect to perform ... ministerial duties". This construction, it is pointed out in Brannon v. Brunswick, 49 App. 62, is consistent with the common law theory o:f non-liability in cases involving "sovereign governmental functions."
As Judge John B. Guerry said in Brannon v. Brunswick, supra, "Some difficulty has arisen in the application of these general principles ... and the courts have not been altogether happy, nor entirely consistent at all times in this regard." Nevertheless courts continue to apply the question "Is it a governmental function," and, apparently to broaden the concept of "governmental functions."
An ice plant operated by municipal authorities in connection with electric light and water plants was held to be a governmental functon in Holton v. Camilla, 134 Ga. 568, as was a public park in Corlelisen v. Atlanta, supra, and a swimming pool in Petty v. Atlanta, 40 Ga. App. 63, and parking meters in Gardner v. Brunswick, 197 Ga. 167.
Under this line of decisions there would appear to be little question that law enforcement, fire protection, water supply, sewerage treatment and garbage disposal would be governmental functions. See also "Governmental functions", 18A, Words and Phrases and cases cited.
The trend in traffic safety legislation, however, is to require those who exercise the right to operate motor vehicles over our streets and highways to insure the safety of those whose lives and property are endangered. Consider in this connection the Motor Vehicle Safety Responsibility Act (Acts of 1951, p. 565) as amended.
Consider also the statute enacted in 1955 authorizing municipal corporations, counties and other political subdivisions to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting therefrom to any person or for damage to property arising by reason of ownership and operation or motor vehicles whether in a governmental undertaking .or not and providing that where such insurance is provided governmental immunity shall be waived.
If, by your inquiry, you mean must the City of Millen have automobile liability insurance to cover the operation of motor vehicles used in connection with the public services mentioned as a matter of law, I will have to say no. If you mean may the city of Millen legally carry insurance on such vehicles, the answer is yes. If your question is whether the City of Millen should carry such protection for the benefit of its citizens and strangers within its gates, I will have to respond that that is a question which addresses itself to the good judgment and good conscience of the City Fathers.

MUNICIPAL CORPORATIONS-Mayor (Unofficial)

Mayor has no right to try cases involving State offenses.

Honorable H. G. Hicks

September 10, 1959

This will acknowledge receipt of your letter in which you ask "if a Mayor of a City has a right to try a DUI case, that is caught within the city limits, in

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a county which has a Superior Court but does not have a city court".
The Constitution of the State of Georgia of 1945 in Article VI, Section I, Paragraph I, provides that:
"The judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, Superior Courts, Courts of Ordinary, Justices of the Peace, Notaries Public who are ex-officio Justices of the Peace, and such other Courts as have been or may be established by law."
Thus, the only courts with authority or jurisdiction under our Constitution to try "State offenses," or persons charged with violation of State laws are State courts is firmly established by the following cases: Welborne vs. State, 114 Ga. Reports 793; Grant vs. Cant, 105 Ga. Reports 428, and Clarke vs. Johnson, 199 Ga. 163.
Article III, Section VII, Paragraph XX, of the Constitution of the State of Georgia of 1945 provides as follows:
"The General Assembly shall have the power to make all laws consistent with this Constiution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State."
And Article III, Section I, Paragraph I, of the Constitution of the State of Georgia of 1945 provides as follows:
"The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives." State courts are only those which "may be established by the law" that the General Assembly alone "shall have power to make all laws consistent with this Constitution" and that "the Legislative power of the State shall be vested in a General Assembly" is firmly fixed by the foregoing provisions of the Constitution and that this power cannot be delegated is likewise settled beyond doubt. My conclusion as to the interpretation of the Constitutional provisions hereinbefore quoted and the decisions of the Supreme Court of Georgia hereinbefore cited is that the trial of a State case is a function of the State and that municipal corporations have no right to inflict punishment for violations of the criminal laws of this State. See in this connection Strauss vs Mayor, Council of \Yaycross, 97 Ga. Reports 475. Therefore, under the factual situation outlined in your l<Jtter I must advise you that the answer is in the negative.

MUNICIPAL CORPORATIONS-Mayor and Council (Unofficial)

Suits brought against mayor and councilmen.

Honorable N. S. Turner

September 16, 1958

I am pleased to acknowledge your letter in which you request that I advise you if the Mayor and Councilmen can be sued individually or collectively.
Since the question as propounded is so broad and gives no facts upon which an answer could be properly based, I must refer you to Section 69-208 of the 1933 Annotated Code of Georgia, which in general provides:

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"Personal liability of officers. - Members of the council and other officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers, if done oppressively, maliciously, corruptly, or without authority of law."
Your further question as to whether or not a municipality can be sued falls in the same category as the other question, and I, therefore, refer you to Code Section 69-308 of the 1933 Annotated Code of Georgia, which provides as follows:
"Demand prerequisite to suit for injury to person or property; suspension of limitations. -No person, firm or corporation, having a claim for money damages against any municipal corporation on account of injuries to person or property, shall bring any suit at law or equity against said municipal corporation for the same, without first, and within six months of the happening of the event upon which such claim is predicated, presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injury, as nearly as practicable, and the negligence which caused the same, and no such suit shall be entertained by the courts against such municipality until the cause of action therein shall have been first presented to said governing authority, for adjustment: Provided, that upon the presentation of such claim said governing authority shall consider and act upon the same within 30 days from said presentation, and that the action of said governing authority unless it results in the settlement thereof, shall in no sense be a bar to a suit therefor in the courts: Provided, that the running of the statute of limitations shall be suspended during the time that the demand for payment is pending before such authorities without action on their part."

MUNICIPAL CORPORATIONS-Public Revenue

Limitations on expenditures in aid of private businesses.

Honorable Abit Massey

May 22, 1959

I am pleased to acknowledge your letter in which you ask:
"The Department of Commerce has contacted an industrial prospect who has indicated an interest in opening four manufacturing plants in Georgia, provided a training program for prospective employees can be undertaken under certain conditions. These conditions, briefly stated, are as follows:
"1. Can a municipal government purchase material to be used by the trainees in qualifying for employment?
"2. Can the municipal authorities sell the finished product to state institutions or the general trade without profit?
"3. The industry involved would provide the instructors, and the trainees would not receive any compensation during the training period.
"4. There would be no state funds involved in this transaction.

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"5. If a particular city preferred not to enter into such an agreement, would it be legal for a civic club or development corporation or any other group to undertake the matter of providing the material for this training program, and selling the finished product to state institutions or the general trade without profit?"
Of course you are familiar with the constitutional provisions of this State which prohibit the expenditure of public funds by the State, counties and municipalities to promote the interest of private industries or corporations, although it may result incidentally in the advancement of public welfare.
The questions propounded in your letter all fall within this prohibitive category, except the fifth, and this, I assume, refers to private organizations, associations or corporations. If they are private and not governmental agencies, they would be on the same footing as any other private undertaking. However, nothing which is said herein shall be construed to mean that I am saying that any such organization, association or corporation is authorized to do the things you mention for the reason that each private organization or corporation is controlled by its charter or by-laws and these documents must be inspected individually and carefully to determine their power to do business or contract. Your letter does not name any association, organization or corporation, or furnish charter or by-laws.
The use of public funds to train employees of or for a private business, by buying materials and manufacturing into finished products and selling such finished products would not be authorized use of public funds by the State, or county or a city under the existing Constitution of Georgia.
Your particular attention is called to the case of Beazley v. DeKalb County, 210 Ga., p. 41, in which the Supreme Court of Georgia held that a municipality cannot even with approval by referendum election, construct a building for rental to a private industry as municipalities have no authority to enter into business.
It might be helpful that you explore the possibilities of vocational education facilities of the Department of Education in providing trained employees for proposed industry.

MUNICIPAL CORPORATIONS-Zoning

The State is not bound by municipal zoning ordinanctis.

Honorable J. H. Dewberry

November 12, 1959

This will acknowledge receipt of your letter in which you state that municipalities of the State are attempting to enforce their inspection and zoning ordinances against new and remodeled buildings owned by the Board of Regents. You request that I advise you whether the Regents are legally liable for the payment of such inspection fees.
The answer to this question may be found in the case of City of Atlanta v. State of Georgia, 181 Ga. 346 (1935), the third headnote of which reads as follows:
"Where repairs are being made upon a building owned by the State on State property, it is wholly a matter of State -concern. A municipal

22:0
building ordinance is ultra vires insofar as it affects the State." This decision was a full-bench decision of our Supreme Court. and has not been modified. The basis of the decision is that a municipality is a creature of the State and possesses only such power as the State may delegate to it. Under Code Section 102-109, the State was not bound by the passage of a law unless named therein. Here the presumption would be that the State in authorizing a municipality to enforce zoning and inspection ordinances did hPt intend to include State property in such inspections. However, I would suggest that, as a practical matter, the Board of Regents might find it 'well to cooperate to the fullest with local authorities in order to insure safety of construction. This should be done on a voluntary basis, however, as an agency of .the State could not legally pay any inspection fee imposed by a City.

NAVIGATION-Hazards

Placing of car bodies into ocean under jurisdiction of United St~tes.

Honorable Fulton Lovell

May 29, 1958.

In reply to your letter in which you request an opmwn as to the hazards to navigation by the placing of car bodies into the ocean in Chatham County, I assume from your letter that the .territory you refer to is navigable waters and therefore without the jurisdiction of the State.
By the Constitution of the United States and following decisions of the Supreme Court, all navigable waters are under the jurisdiction of the United States, and only the control of game and fish within those waters within a three mile limit is given to the state on the "Tidelands Oil Act"; passed by Congress on May 22, 1953, which is under Title 43 of the U. S. Code Annotated, beginning with Section 1301.
Under the above authority, it is my opinion that anything that has to do with navigation would be under the jurisdiction of the United States, probably the Corps of Engineers and the Coast Guard.

NAVIGATION-Navigable Streams-Sunken timber (Unofficial)

Removal of sunken timber from State rivers and streams discUssed. (ED. Note: See further Ga. Code 5-605.)

Mr. Theodore G. Morley

September 151 195.8

I understand that you desire information concerning the obtaining. of rights

to remove sunken timber from the rivers of the state.

I know of no such prior activity in this state.

..

As far as legal implications are concerned, it would depenP, .ui!on whether

or not the stream was navigable.

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As to nonnavigable streams owned in whole by a landowner, the latter owns the property rights therein the same as any other part of his property, Code 85-1305, and his permission would have to be obtained. At to nonnavigable streams constituting a boundary, Code 85-1302 provides:
''The l;>eds of streams not navigable belong to the owner of the adjacent land; if the stream of water is the dividing line, each owner is entitled to the thread or center of the main current; if the current change gradually, the line follows the current; if from any cause it takes a new channel, the original line, if capable of identification, remains the boundary. Gradual accretions of land on either side accrue to the owner." A~_ to navigable streams, Code 85-1304 deClares:
"The rights of the owner of lands adjacent to navigable streams extend to low-water mark in the bed of the st;ream."
, As to the remainder of the navigable stream not embraced within the ;foregoing, there are no Georgia cases, but I presume Georgia would follow the general r]lle that title to the river bed is in the state. 65 C.J.S. 197, 92; 56 Am. Jur. 698, 241; 1d., p. 865, 453. If the right to remove sunken logs be treated tl)e: same as the right to remove sand, etc., it would require authorization from the- state by special legislative act. On the other hand, as to nonnavigable streams .and floating logs; it has been held that consent of the repairian owner must be qbtained. 93 C.J.S. 755, 82.
Lastly, as to navigable streams, since removal activities might affect navi" gation, you should also probably contact the U. S. Army Corps of Engineers.
(See further Georgia Code Annotated 5-605 as amended).

NUISANCES-Abatement (Unofficial)

Proof required to abate alleged nuisance caused by dust and dirt from a near-by concrete company discussed.

Mr. E;. B. Davis

August 21, 1959

You inquire as to whether any effective legal action may be taken to abate
a nuisance arising from rock dust and blasting operations carried on by a con-
crete company near the Battey State Hospital at Rome, Georgia. Attached to ypur inquiry is a memorandum of M. C. Walker to W. T. Montgomery in which it is stated that dust from this operation is thrown into the air, is deposited in windows and other places in the hospital, on the hospital grounds, and in the homes of officials and employees which are a part of the hospital establishment. Mr. Walker states that he is not qualified to make any statement as to any discomfort experienced by patients but in his judgment the operation of this plant is a nuisance involving the staff homes located on the northern side of the hospital grounds. He further states that excessive shocks from dynamite blasts have apparently had some connection with cracks appearing in the heating plant chimney and possible damage to water mains. However, he states that any proof of damage to the hospital property will be difficult to establish.

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Georgia Code Section 72-107 contains the following definition of a nuisance: "72-101. Definition in general. - A nuisance is anything that works
hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuissance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." You will note that the last sentence of this Code Section provides that the inconvenience complained of shall not be fanciful or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man.
Unless we could show that this operation impairs the ability of patients ',o recover from illness, or we can submit definite proof of damage to the hospital property, including the staff homes that Mr. Walker mentions, we would have substantial difficulty in obtaining an order of court directing the abatement of this operation as a nuisance. In the case of Sam Finley, Inc. v. Russell, 75 Ga. App. 112, 42 S. E. 452, our Court of Appeals decided that a petition which alleged that the defendant, in the erection and operation of an asphalt mixing plant, contaminated the air with oily and smokey dust, grit and dirt expelled into the air and blown into and upon plaintiff's dwellings and home to his injury and discomfort, sets forth a cause of action for damages. It is further disclosed in this decision that the defendant, in processing the asphalt mixture, employed a method of crushing rock or gravel into a fine dust which was mixed with the asphalt at the plant and that when expelled into the air in large volumes it was blown into the dwellings of the plaintiff, including his home, causing dust, grit, dirt and oil to be deposited on his floors, furniture, bedding, clothing and fixtures, and being inhaled by him and his family, affected their health.
I have recited some principal facts set forth in the above mentioned decision in order to give you a more adequate idea of the allegations ncessary ":.o be made in order to obtain an order abating this operation as a nuisance. There are other decisions of the courts which hold that an operation of this kind is not a nuisance in itself but may be carried on in such a manner as to become a nuisance.
In view of the above considerations, I suggest that we seek an opportunity to discuss this matter with one or more officials of the concrete company in order to determine whether we can secure an agreement to taking such measures as will prevent the operation from being a nuisance in the future. If \Ve cannot secure such an agreement, then, as theretofore indicated, I believe that we will have to submit proof to the appropriate court that there is injury to the ability of patients to recover at the hospital resulting from this operation or that the operation as carried on inflicts damage and injuriously affects the health of officers and members of the staff of the hospital, or that substantial damage to the hospital property is being caused as a result of this operation.

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PRACTICE AND PROCEDURE-Venue (Unofficial)

Venue of a libel action against a newspaper corporation would be in the county of the principal place of business.

Honorable Jack J. Helms

June 9, 1958

This will acknowledge receipt of your letter in which you request that this office render an opinion as to the laws of Georgia in regard to the venue of a libel action against an incorporated newspaper in this State.
As you are aware, the 1956 Session of the General Assembly passed an Act which in essence provided that an incorporated newspaper could be sued in any county of the State in which the paper was regularly delivered to more than 50 subscribers. (See Ga. Laws 1956, page 4.) The Supreme Court in the case of The Ledger-Enquire Company vs. Brown, 213 Ga. 538, held that this 1956 Act was an unreasonable classification and, therefore, the Act was unconstitutional and void. Under these circumstances, the law governing venue of actions against newspaper corporations as it existed prior to 1956 is still controlling.
Article VI, Section 14 of the Constitution (Code Chapter 2-49) provides for venue. After listing certain types of cases which are not here applicable, Paragraph 6 of this Section (Code Section 2-4906) reads as follows:
"All other civil cases shall be tried in the county where the defendant resides, and all criminal cases shall be tried in the county where the crime was committed, except cases in the Superior Courts where the Judge is satisfied that an impartial jury cannot be obtained in such county" This Section of the Constitution also appears as Code Section 3-201 which reads as follows:
"All civil cases at law (except as otherwise provided by law) shall be tried in the county wherein the defendant resides." Under these Sections, venue of a libel action against a newspaper corporation in this State would be "where the defendant resides," or in other words, in the county of the principal office or place of business of the corporation.

PARDONS AND PAROLES-Board of Probation-Authority

State Board of Probation is without authority to require probationers to execute any waiver of extradition, or otherwise impose upon them any condition not placed thereon by trial judge in his probation order.

Honorable Travis B. Stewart

January 19, 1959

Reference is made to your recent letter in which you inquire whether, in my opinion, the State Board of Probation, acting through the several Circuit Probation Officers may properly require of all probationers that they sign a waiver of extradition.
The statewide probation system, administered by the State Board of Probation, the Director of Probation and the several Circuit Probation Officers, Waf!

224
created by the Statewide Probation Act (Acts of 1956, pp. 27, 28), codified as Sections 27-2702, et seq., of the Georgia Code Annotated.
Under the provisions of the Act the trial judge may hold a hearing at a time to be determined by him for the purpose of determining the question of the probation of the defendant. The duty, and authority, of the probation officer is simply to make the investigation and report as directed by the .Court. (See Section 27-2709).
"If", the report and recommendation ha~ing been made as aforesaid, "it appears to the court" that ends of justice will be served thereby, "the court in fts discretion" may place the prisoner on probation (Idem). In this connection the court is required to determine "the terms and conditions of probation" (See Section 2711) including but not limited to those mentioned in the Act.
Nowhere in the Act is there any suggestion that the Board or its agents may place on a prisoner in connection with his probation any terms or conditions not required of him by court order passed by the trial judge at the conclusion of the hearing held fol" the purpose of considering his probation.
It is true that the Pardon and Parole Board Act of 1943 (Acts of 1943, p. 185), codified as Sections 77-501, et seq., of the Georgia Code Annotated, speaks of the release of prisoners by the Pardon and Parole Board "on probation" as well as "on parole" (See Section 77-514), and authorizes and requires that the Board "specify in and authorizes and requires that the Board "specify in writing the terms and conditions" of a parole. No mention is made of probation in this connection.
Whatever right, if any, the Pardon and Parole Board may have had to require waiver of extradition by probationers under the. Pardon and Parole Board Act of 1943, it is quite clear that it retains no such right under the State Board of Probation Act of 1956, for that Act clearly provides that "such probation system shall not be administered as part of the duties and activities of the Board of Pardons and Paroles."
I am therefore of the opinion that the State Board of Probation, acting through the Director of Probation and Circuit Probation Officers is without authority to require of probationers under its supervision the execution of ariy waiver of any right in this connection or otherwise or to impose upon them any condition not placed upon them by the trial judge in his probation order.

PARDONS AND PAROLES-Pardons-Discussed (Unofficial)

Discussion of pardoning procedure in Georgia.

Miss Dora I. Harbin

October 7, 1959

This will acknowledge receipt of your letter in which you request inf~rm~ tion concerning the pardon procedure "in Georgia. You pose certain questions concerning the methods which are employed in pardoning prisoners in our State. I would like to clarify definitions before I attempt to answer your questions.
Under the regulations of our State Pardon and Parole Board, a pardon is "a declaration of record that an individual is to be relieved from the legal consequences of the particular crime." A parole is "the release of an offender from

225
a penal institution after he has served a portion of his sentence under the contintdng custory and supervision of the State and under conditions that permit his re~iricarceration in the event of misbehavior." A conditional release is "a form of order selected by the Board in releasing felony prisoners who have completed the service of their minimum sentence with good institutional conduct record. This form of release is distinguished from parole. in that conditional release is automatic when the requirements are met whereas parole is a discretionary act of the Board."
To answer your specific questions, (1) the state of Georgia has a State Board of Pardon and Parole which is composed of three members who are appointed by the Governor and confirmed by the Senate for terms of seven (7) years. The present members are William H. Kimbrough, Chairman; Hugh C. Carney and Mrs. Rebecca L. Garrett.
(2) The Governor of Georgia is not a member of the Pardon and Parole Board and has no power to veto the actions of the Pardon and Parole Board. However, the Governor does have authority to suspend execution of a prisoner until the Pardon and Parole Board have an opportunity to act on the case. In addition, where any member of the Pardon and Parole Board is unable to serve
ih any case involving capital punishment, the Governor acts as the third member
of the Board and action taken in such case must be an unanimous vote. (3) The State of Georgia does not use a form of release known as: "condi-
tional pardon". However, individuals are paroled and continue under the supervision of 'the Pardon and Parole Board until expiration of their maximum sentence.
(4) An absolute pardon in Georgia would completely relieve a person from the legal consequence of a particular crime.
(5) Your fifth question was, "What happens to a pardoned offender if he commits another felony?" If an individual in Georgia has a true pardon, there ~an be no revocation of it. However, if you are referring to our form of release known. as parole or conditional release, then it is usually revoked under the commission of another crime.
PARKS-State Department of-Authority
Authority of Department of State Parks to construct a superintendent's residence on State Parks property discussed.
Honorable Charles A. Collier You asked my opinion as to whether the Department of State Parks may
construct a superintendent's residence on State Parks property. Georgia Code Annotated Section 43-124, Subparagraph (d) provides: "43-124. In addition. to the other powers herein granted, the Department is empowered and directed: - - - - -. "(d). To make expenditures with the approval of the Commissioner of Conservation from available funds for the care, supervision, improvement, and development of the State Park system."
Subparagraph (h) provides: "(h) To provide and maintain adequate recreational facilities and
to initiate, conduct, and supervise suitable programs and activities in

226
connection therewith." Article VII, Section III, Paragraph IV (2-5604) of the Constitution provides:
"The credit of the State shall not be pledged or loaned to any individual, company, corporation or association and the State shall not become a joint owner or stockholder in, or with, any individual, company, association or corporation." Georgia Code Annotated Section 91-117 provides:
"91-117. Any real estate owned or acquired by the State of Georgia may be improved with funds appropriated for a State Department provided the head of the Department affected and the Budget Bureau, consisting of the Governor and the State Auditor, consent to such use of such funds. (Acts 1945, p. 124)." By Act No. 144, approved March 9, 1956 (Ga. Laws 1956, p. 673), the General Assembly by House Resolution provided:
"Now, therefore, be it resolved by the General Assembly of Georgia that no State funds be expended for the construction of additional cabins or other housing facilities at any State park." (Emphasis supplied). In the case of Davis vs. State of Florida, 87 So. 2d 416, 417. "Housing :facility" was defined as, "Housing facility is a unit, usually in a sizable development, that serves as a home." 19 Words & Phrases 196, 1956 Cumulative Pocket Part. From the above, it appears that the Department of State Parks could erect a residence for a superintendent upon proprty on which the Department held fee simple title, provided the residence did not come within the meaning of "other housing facilities", quoted from the 1955 Act. However, in view of the uncertainty as to the extent that the 1956 Act prohibits the erection of housing facilities, I am of the opinion that it would be better not to construct such a residence for a park superintendent until the 1956 Act is amended so as to clarify the intent of the General Assembly. I phrase this opinion in this manner because of the fact that, even though there is no expressed prohibition in the 1956 Act, its phraseology is such that, even though such a residence could be erected by the Department on a technical distinction of a superintendent's residence from other housing facilities, it would be better to clarify the Act to remove any doubt as to its meaning. You further ask for the laws establishing the Georgia Department of State Parks. I direct your attention to Georgia Code Annotated, Chapter 43-1, particularly Section 43-101 through 43-115 and 43-120 through 43-133, and particularly Acts cited at the end of each of the code sections.

PARKS-State Department

A Forestry Training Program is a "public purpose" and would not violate the terms of a deed restricting land to uses of a "public purpose."

Honorable Charles A C.ollier

September 21, 1959

This is in reply to your letter in which you ask my advice as to the extent the Department of State Parks may go in entering into agreements with the University System for the use of portions of Hard Labor Creek Park in Walten

227
and Morgan Counties, and Fort Yargo Park in Barrow County for a Forestry Training Program.
I have examined the clauses to the applicable deeds on file with the Secretary of State, and find that the deed conveying the property from the United States of America to the State of Georgia in Barrow County contains a clause requiring land to be used for "public purposes." On this particular deed, I am of the opinion that the use for a Forestry Training Program would be such a public purpose as is contemplated.
The deed conveying the Walton and Morgan Counties property has a provision that limits the use of said property to public park recreational and conservational purposes. It seems that the intent of this is to require it for all three above uses rather than any one, such as a Forestry Training Program, which would amount to conservation.
Therefore, I am of the opinion that we should attempt to obtain the agreement by the United States of America for the use of this property for a Forestry Training Program, prior to the use as such for more than a three-year period.
In view of the above, I would recommend that, while obtaining permission for the use as a Forestry Training Program, we seek to obtain their consent on both parks to put us in an even better legal position.

PARKS-State Department

1. Disposition of useless equipment discussed. 2. Authority to require insurance by concessionaires.
Honorable Charles A. Collier

April 9, 1959

This will acknowledge receipt of your letter in which you request my opinion on several points involving the operation of your Department.
Your first problem concerns the practice of the State Parks Department in delivering to concessionaires large quantities of personal property. You state that the concession agreements make no provision for the State furnishing this property to the concessionaire, but rather requires the concessionaire to replace all furniture and fixtures at the termination of the agreement. You asked what course the State may follow with reference to the concessionaires to whom this personally has been furnished. With reference to your first suggestion that the State collect the monies which have been spent for this material, I do not believe that this course of action is legally feasible. The material, according to your statement, seems to have been furnished by the State on a yoluntary basis and was not requested by the concessionaire. In any event, the Department of State Parks would have no authority, under the general laws of the State, to sel.l materials directly to a concessionaire. Your second suggestion was ~hat your Department increase the lease rentals. I da not believe this is legally feasible under contract law. The concession agreement governs the relationship between the parties and the Department of State Parks cannot force an increased rental by the mere fact of furnishing additional and unsolicited material to the concessionaire. I believe that your third course of action that the Depart-

228
ment of State Parks repossess the personalty which has been furnished, is the only legal method by which you may proceed. However, there is nothing, to prohibit the Department of State Parks and the concessionaire from renegotiating the concession agreement so as to provide for the personalty to remain with the concessionaire upon the payment of a larger rental to the State. This renegotiation, however, would have to be entirely voluntary on the part of the concessionaire as there is no legal method for forcing him to abandon his signed agreement.
The next problem which you posed concerns the disposition of what you described as "large quantities of utterly useless, broken and damaged pieces of equipment and fixtures." You want to know whether the State Parks Department can haul off this equipment and dispose of it in some location where it will not be objectionable. I am of the opinion that this may not be done by your Department. Under Code Section 40-1902(e), the Supervisor of Purchases is given authority "to have general supervision of all store rooms or stores operated by the State government or any of its departments, institutions or agencies; to provide for transport and/ or exchange to or between all State departments, institutions and agencies, or to sell all supplies, material and equipment which are surplus obsolete or unused...." I believe that the proper procedure for you you to follow with respect to your worthless equipment is to declare it surplus and have the Supervisor of Purchases to dispose of it under the above Code Section. Of course, if the equipment is, as you say, utterly worthless and the Supervisor cannot sell it under the above Code Section, it may be otherwise disposed of by the Governor under the authority of Code Section 91-804. In any event, the proper disposition of the property is in the. hands of the Supervisor of Purchases or the Governor and not under your control as Director of the State Parks Department.
You also asked whether the State Parks Department by some form of letter may grant concessions without the necessity of having the Governor approve them before they become effective. The State Parks Department, under the provisions of Code Section 43-107, is a division of the State Division of Conservation. Code Section 43-101 provides that the State Division of Conservation shall be under the control and management of the highest executive officer of the Executive Department of Georgia, who shall be ex officio Commissioner of Conservation. Code Section 43-104 provides that the control and management of the Division shall be vested in the Commissioner with the Directors of the various Departments. As I have previously stated, Code Section 43-124 provides that the Department of State Parks is empowered and directed to grant concessions. I am of the opinion that this authority to grant concessions by the Department of State Parks should be exercised by the Commissioner of Conservation. In other words, the Governor of the State of Georgia must, at least, approve all concession agreements granted by the State Department of Parks.
In your final question, you asked whether the State should require a concessionaire to protect the State by means of casualty and accident insurance. I believe that in granting a concession, the State could require that the concessionaire take out castualty and accident insurance for the use and benefit of individuals who may be harmed by the operation of the concession. Of course, the operation of a State park is a function of the State in its sovereign capicity and as such the State is not subject to tort liability. Seel Corneulison vs. City of Atlanta, 146 Ga. 416 (1917); Warren vs. City Topeka, 125 Kan. 524, 265, p. 78, 57 ALR 555 (1924). However, even though the State itself would not be liable

229
for any tort injuries occurring as a result of the concessionaire's action, this still would not protect an individual who is harmed on State property and I believe that as a matter of policy, it would be desirable to afford some type of protection to the citizens of our State utilizing the Park facilities.

PENSIONS AND RETIREMENTS-Employees Retirement System

Employee as defined in Act explained, tag agents are not generally included.

Mr. W. Frank DeLamar

May 22, 1959

Replying to your request relative to the status of a county tag agent, you state that under the Plan and Agreement entered into between the Employees' Retirement System and the Jackson County Board of Commissioners extending social security coverage to employees of Jackson County, the term "employee" includes an officer or elected official of the county. However, a question has arisen as to who is the employer of the tag agent of Jackson County.
Your interpretation of the term "employee" is not legally correct for the reason that only a part of the statute is considered in saying that the term "employee" includes an officer or elected official of the county.
Section 99-1902 of the Annotated Code of Georgia which relates to the definitions of various terms for purposes of Chapter 99-19 of the Code provides:
"(a) The term 'wages' means all remuneration for employment as defined herein, including the cash value of all remuneration paid in any medium other than cash, except that such term shall not include that part of such remuneration which, even if it were for 'employment' within the meaning of the Federal Insurance Contributions Act, would not constitute 'wages' within the meaning of that Act;
"(b) The term 'employment' means any service performed by an employee in the employ of any political subdivision of the State, for such employer ..
"(c) The term 'employee' includes an officer of a political subdivision of the State; ..."
Section 99-1903 of the Annotated Code of Georgia which relates and conditions any agreement entered into between the Federal and State agencies, provides:
"The State agency .... is authorized to enter into an agreement with the Federal Security Administration, consistent with the terms and the provisions of this Chapter, for the purpose of extending the benefits of the Federal old-age and survivors insurance system to employees of the political subdivisions of the State with respect to services specified in such agreement which constitute 'employment' as defined in section 99-1902
"(4) All services which constitute employment as defined in section 99-1902 are performed in the employ of a political subdivision of the State, .. shall be covered by the agreement."

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Code Section 99-9905 relating to the plans for coverage of employees of political subdivisions, provides:
" (a) Each political subdivision of the State is hereby authorized to submit for approval by the State Agency a plan for extending the benefits of Title II of the Social Security Act, in conformity with applicable provisions of such Act, to employees of such political subdivisions.. no Sllch plan shall be approved unless: . . .
"(2) It provides that all services which constitute employment as defined in section 99-1902 and are performed in the employ of the political subdivisions by employees thereof. . .
"(c) (1) Each political subdivision ... shall pay into the contribution fund with respect to wages as defined in section 99-1902., ... contributions in the amounts and at the rates specified in the agreement entered into by the State agency under sections 99-1903 and 99-1904.
"(2) Each political subdivision required to make payments under paragraph (1) of this subdivision is authorized, in consideration of the employee's retention in, or entry upon, employment. . . ."
Therefore, considering the statute as' a whole, the proper and correct interpretation of the term "employee" under the provisions of the Social Security Act (Chapter 99-19, Georgia Code Annotated) would mean that: The term "employee" includes an officer or elected official or employee of a county when such person comes within the term "employment"-that is, a person who performs services in the employ of any political subdivision of the State for such employer (political subdivision). This simply means:
(1) The term "employee" would only include an officer, official or employee of a political subdivision of the State, if HE< met the conditions of:
(2) The term "employment" meaning any service performed by an employee in the employ of a political subdivision.
Code Section 99-1902 relates to an agreement between the Federal Government and the State.
Code Section 99-1903 relates to any agreement between the Federal Government and the State agency with respect to services specified in such agreement which constitutes employment as defined in Code Section 99-1902.
Code Section 99-1905 provides plans for coverage of employees of political subdivisions which must be in conformity with the State Act, and that no such plans or agreements shall be approved unless it provides that all services shall constitute employment as defined in Sections 99-1902 and 3, and are performed in the employ of the political subdivision for employees thereof.
Your specific attention is called to the provisions of Code Section 99-1902 which also defines the term "wages" to mean all remuneration :for cmp!oyment as defined in the Act, and the further provision which provides:
"... except that such term shall not include that part of such remuneration which, even if it were for 'employment' within the meaning of the Federal Insurance Contributions Act, would not constitute 'wages' within the meaning of this Act."
The above statutory provisions are called to your attention in order that yoll may thoroughly understand the intent of the Georgia Act authorizing social security coverage under certain conditions of political subdivisions of the State,

231
and in considering the question relative to a county tag agent.
Code Section 68-244 of the Annotated Code of Georgia provides as follows: "County officers as agents to receive applications and issue tags;
procedure where official fails to act. - The tax collectors of the various counties of this State, and the tax commissioners of the counties of the State in which the duties of the tax collector are performed by a tax commissioner are hereby made agents of the State Revenue Commissioner for the purpose of accepting applications for the registration of motor vehicles and issuance of license plates under the provisions of this Chapter except as provided in sections 68-249 and 68-250. Upon failure or refusal of any tax collector or tax commissioner of any county to accept said designation in writing by December 1 preceding the calendar year for which such designation is made, and/or perform the objects of this law (sections 68-244 through 68-252) for the entire calendar year for which such appointment as agent is made, the State Revenue Commissioner is authorized and directed to designate another county official or other qualified citizen of such county as agent who will be subjec11 to all the provisions and conditions of this law and the rules and regulations promulgated thereunder; or, upon the failure or refusal of such county officers to serve as agent within a calendar year, the State Revenue Commissioner may, if deemed necessary, provide for the the registration of motor vehicles and issuance of license plates for such county, at the State Capitol. The acceptance as 'Agent of the State Revenue Commissioner for the registration and licensing of motor vehicles in the county' shall be for the entire calendar year for which such appointment is made, and any resignation, refusal, or failure by any agent to perform the duties and responsibilities imposed upon such agent by this law and the regulations promulgated hereunder, occurring during the calendar year for which such appointment has been made, shall subject the bond of said agent required hereunder to revocation and forfeiture, at the discretion of the State Revenue Commissioner, to and including the amount of 25 per cent of the commissions to which said agent has theretofore during said calendar year been entitled under this law for the issuing of license plates in such county: Provided, however, that no such forfeiture shall be applicable or permitted in the event of death of any agent. (Acts 1955, pp. 659, 660; 1957, pp. 197, 198.)"
It is clear from this statute that a person receiving appointment under the provisions thereof is an agent of the State Revenue Commissioner of the sole purpose of receiving application for registration and licensing of motor vehicles in a county. His bond is fixed by the State Revenue Commissioner and payable to the Governor of the State of Georgia. He is under the sole control and jurisdiction of the State Revenue Commissioner for the bond of his employment as such agent. His sole remuneration for such services as tag agent is derived from a fee which he withholds by statute from payments made by citizens to the State for motor vehicle registration tags. There is one exception to this method of compensation, and that is in the event that the agent is also an employee or offical of a county at a salary paid by said county in excess of $7,999.00 per year; that all of said agent's fees in that event would become property of the county and paid into the treasury thereof.

Assuming that the tag agent of Jackson County is not within the exception above mentioned, it is my opinion that a tag agent appointed under the provisions of Section 68-244 of the Annotated Code of Georgia but the State Revenue Commissioner, is an agent of the State Revenue Commissioner of the State of Georgia for the sole purpose of registration and licensing of motor vehicles in the county of his appointment, and that he is under the sole contro~ and jurisdiction of the State Revenue Commissioner, and therefore, would not be an empl(lyee 0f the county or within its employ as such agent or while acting in the capacity of such agent.

PENSIONS AND RETIREMENTS-Employees Retirement System

Ordinaries' clerks are not employees.

Mr. W. Frank DeLamar

September 4, 1958

Pursuant to your written request, I have reviewed the records in the matter relative to a clerk of the ordinary of Walker County being an employee of Walker County. Your attention is called to Section 24-1801 of the 1933 Annotated Code of Georgia, which provides:

"The ordinaries are, by virtue of their offices, clerks of their own courts; but they may, at their own expense, appoint one or more clerks, for whose conduct they are responsible, who hold their officers at the pleasure of such ordinary."

Walker County is under the commission form of government of a sole commissioner, and the ordinary in this county does not have jurisdiction of county affairs, and neither does the county commissioner have any authority or jurisdiction over the conduct of the office or duties of the ordinary of Walker County. Therefore, the County of Walker, through its governing authority, the county commissioner, has nothing to do with who is appointed a clerk by the ordinary, or who is hired, or what his duties are, or what his pay is, or when he is fired, and has no control over the clerk's conduct or the time, manner and method of executing work in any manner whatsoever.

The Appellate Courts of this State have consistently held that the chief

test of whether or not a person is an employee lies in whether the employer

h.as or assumes the right to control time and method of work. See 87 Georgia

Appeals, 678; 49 Georgia Appeals, 642; 53 Georgia Appeals, 141, and cases cited

therein. Also the case of Grost vs. Robinson, 194 Georgia Reports, page 710,

wherein the Supreme Court of Georgia held that a deputy sheriff and deputy

jailers are employees of the sheriff and not of the county. This case involved

the question of a deputy sheriff and a deputy jailer contending that they were

county employees for the purpose of coming under a county pension fund, and

the above cited ruling was adverse to their contentions.

.

Your attention is also called to the fact that under the Constitution of the State of Georgia, Article 7, Section 4, Paragraph 1, that the various counties of the State of Georgia can only levy and: expend tax funds for the purposes enumerated in said Constitutional provision, and the county is prohibited ~here by from expending tax funds except for the purposes enumerated therein, and

233
a county would not be authorized to expend tax funds for persons who are not the employees of the county.
Your attention is also called to the opinion rendered to you oh July 19,
1957, relative to an employee of the clerk of the Superior Court of Liberty County, wherein this department held that such clerk of the Superior Court of Liberty County as not an employee of Liberty County.
Your attention is further called to the fact that the county attorney of Walker County, Honorable G. W. Langford, on March 13, 1950, ruled that the clerk of the ordinary of Walker County, Georgia, in question was not an employee of Walker County, and that the County of Walker was not authorized to expend tax funds for the payment of the social security tax because such clerk of the ordinary received no salary or compensation from the county from which a deduction could be made for social security taxes for retirement purposes.
It is my firm opinion that the clerk of the ordinary of Walker County in question is not an employee of the County of Walker, but is solely the employee of the ordinary of Walker County, who, himself is on a fee system as an independent officer, and any compensation paid his clerk is paid from any fees that he may derive from performing his duties as provided for in the above cited code sections.

PENSIONS AND RETIREMENTS-Employees Retirement System

Persons includable under Retirement System.

Honorable W. Frank DeLamar

March 31, 1959

This will acknowledge your letter attaching a copy of a memorandum from the Office of the General Counsel, Bureau of Old-Age and Survivors Insurance, stating that you are of the opinion that this Department may wish to again review an opinion given to you on September 4, 1958 relative t~ a clerk appointed by the ordinary of Walker County, Georgia, at his own expense for whose conduct the ordinary is wholly responsible, and who holds such position at the pleasure of the ordinary, and whose bond is made to the ordinary and not to the county or to the Governor of the State, and given for the sole protection of the ordinary, and whose employment does not deprive said ordinary from being clerk of his own court of ordinary, and whose duties are wholly misisterial and clerical only, and who is not employed by the County of Walker.
I have again reviewed the matter in question and reaffirm the opinion given to you on September 4, 1958 in said matter, and further call to your attention the following statutory and constitutional provisions which are applicable to the question under consideration. Section 99-1902 of the Code of Georgia relating to definitions for the political subdivisions of the State provides:
"(b) The term 'employment' means any service performed by an employee in the employ of any political subdivision of the State, for such employer. . .
"(f) The term 'political subdivision' within the terms of this Chapter, means counties ..."

234
Section 99-1903 of the Code of Georgia relating to Federal-State agreements and the required provisions thereof, provides:
"The State agency, ... is hereby authorized to enter ... into an agreement with the Federal Security Administrator, consistent with the terms and provisions of this Chapter, for the purpose of extending the benefits of the Federal old-age and survivors insurance system to employees of the political subdivisions of the State with respect to services specified in the agreement which constitute 'employment' as defined in section 99-1902 ...
" (4) All services which . . . constitute employment as defined in section 99-1902, ... are performed in the employ of a political subdivision of the State, and . . . are covered by a plan which is in conformity with the terms of the agreement and has been approved by the State agency under section 99-1906, shall be covered by the agreement."
Section 99-1905 of the Code of Georgia relating to plans for coverage of employees of political subdivisions provides:
"(a) Each political subdivision of the State is hereby authorized to submit for approval by the State agency of Georgia a plan for extending the benefits of Title II of the Social Security Act, in conformity with applicable provisions of such Act, to employees of such political subdivision.... except that no such plan shall be approved unless:
"(2) It provides that all services which constitute employment as defined in section 99-1902 and are performed in the employ of the political subdivision by employees thereof, shall be covered by the plan;
"(c) (1) Each political subdivision as to which a plan has been approved under this section shall pay into the contribution fund, with respect to wages ... at such time or times as the State agency may by the regulation prescribe, contributions in the amount and at the rates specified in the applicable agreement entered into by the State agency under sections 99-1VOil or 99-1904.
"(2) Each political subdivision required to make payments under paragraph (1) of this subsedion is authorized, in consideration of the employee's retention in, or entry upon, employment aft.er enactment of this Chapter, to impose upon each of its employees, as to services . , , a contribution with respect to his wages ... Contributions so collected shall be paid into the contribution fund . . . Failure to deduct such contribution shall not relieve the ... employer of liability therefor."
It is clear under the statutory provisions above cited that a person to be deemed an employee of a county must be in the employment of the county.
Your attention is also called to the following constitutional provisions which are applicable in this matter. Article 7, Section II, Paragraph 1 of the Constitution of Georgia of 1945, codified as Code Section 2-5501 provides:
"2-5501. Paragraph 1. 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:
"7-A. In order to extend to the employees of the State, any department of the State, any State institution or political subdivisions of the State, and to the dependents and survivors of such employees, the basic protection accorded others by the old age and survivors insurance program embodied under the Social Security Act (Act of Congress approved August 14, 1935, 49 Stat. 620, officially cited as the 'Social

235
Security Act,' as such Act has been and may from time to time be amended), and the Federal Insurance Contributions Act (as set forth in Subchapter A of Chapter 9 of the Federal Internal Revenue Code, as such Code has been and may from time to time be amended), the General Assembly is authorized to enact such legislation as may be necessary to insure the coverage to employees of the State, any department of the State, any State institution or political subdivisions of the State, and the dependents and survivors of such employees under said Social Security Act as the same has been or may be amended and the Federal Insurance Contributions Act as the same has been or may be amended; and any provisions of this Constitution notwithstanding the State for and on behalf of itself, its departments, institutions or political subdivisions is hereby authorized to enter into agreements with the Federal Security Administrator or other appropriate official of the United States Government under the provisions of said Social Security Act as the same has been or may hereafter be amended in the manner as provided therein and as provided by the General Assembly. The Teacher Retirement System of Georgia and the Employees 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." You will note that the above provision of the Constitution of Georgia restricts the powers of taxation exercised by the General Assembly of Georgia for the purpose of providing funds in order to put into effect the old age and survovors insurance program to employees of the State, any department of the State, any State institution, or political subdivisions of the State, and to the pendents and survivors of such employees. It is my opinion that no one except the employees actually in the employment of such governmental agencies, or dependents, or survivors of such employees can be covered by an Act of the General Assembly relating to any program of benefits financed through taxation of public funds raised by taxation. Neither the Employees' Retirement System of Georgia nor the County of Walker would be authorized to expend public funds raised by taxation for the purpose of initiating, carrying on or extending old age and survivors insurance benefits to any person who is not an employee of and in the employment of the State, or an employee of or in the employment of a county or other political subdivision of the State, or to the dependents and survivors of such employees in view of the above constitutional restrictions and statutory provisions of the General Assembly of Georgia.

PENSIONS AND RETIREMENTS-Investment of Funds

Investment of funds for retirement systems discussed.

Honorable Zack D. Cravey

July 22, 1958

Funds of the State Employees Retirement System, the Teachers Retirement System, the Firemen's Pension Fund and the Peace Officers' Retirement Fund can be invested in those securities in which an insurance company organ-

236
ized and doing business under 'the laws of this State is authorized to invest its funds; Section 56-224 of the Code of Georgia enumerates the classesof securities which .are legal investments for insurance companies. Sectioif 56-22& provides that 'investments i!li classes of securities not defined in Section 56-224 can only be made with approval of the Insurance Commissioner.
You, as Commissioner, have authority to approve the investment under discussion in your discretion if you are satisfied that it is a sound investment and meets the standards indicated in Section 56-224.
While no cover letter accompanied the copies of the correspondt:mce referred to, and no specific questions are asked, I am of the opinion t)lat .such approval of the investment should not be granted by you as Insurance C,p'Wmis-
1
sioner unless the bonds are secured by a first lien on the improved real' estate of the Church in question. I would further suggest that if the amount of bonds exceeds 66 2/3% of the value of said improved real estate, that yot{ require additional security. It is noted that the Board of Deacons of thi~ Churc.h have indicated a willingness to endorse the bonds being offered for sale.
In the event that you are a member of the Board of Trustees. of the particular funds contemplating making this investment, I would suggest that you disqualify yourself and let the minutes of the meeting of such Board so show, and not officially participate in the transaction of buying the bonds in question or
making a loan, as the case may be, on the security of the bonds. .r suggest this
precaution in view of possible criticism to which you mig}J.t be subjected in case the bonds should become in default, even though I think that you have a legal right to act as a member of said Board in the particular transaction.

PENSIONS AND RETIREMENTS-Firemen's Pension Fund (Unofficial) J:
Board of Trustees for Firemen's Pension Fund has power ,to approve
or disapprove applications for disability benefits.

Honorable Eugene W. Holcombe

May 1, 1959

In your letter you ask if the Board of Trustees of the Firemen'fl Pension Fund has the right to disapprove applications for disability benefits whe.re. the disability results from bodily injury incurred prior to the effective date (4-1-57) of the 1957 Amendment to the Firemen's Retirement System Act of 1955, now codified in Chapter 78-10 of the Code of Georgia.
Section 7-A, which was incorporated into the Act by the 1957 Amendment, provides:
"7-A (a) Any 'fireman' or 'volunteer fireman' as defined in this Act, who is a member of the fund and who becomes totally and permanently disabled as a result of bodily injury while actively engaged in the performance of such 'fireman' or 'volunteer fireman's' official duties, shall be entitled to receive disability benefits in the amount of Sixty ($60.00) Dollars per month. Provided, however, no such person shall be eligible for such benefits until at least six (6) months from the date such verson sustained the injury causing such disability."

In my communication to you dated June 25, 1957, I pointed out what I considered t;he intent of the Legislature to be when the Act was amended in 1957. While the language contained in Section 7-A (a) of the 1957 Amendment is somewhat ambiguous in that it does not clearly state that the total and permanent disability must result from bodily injury sustained while a member of tP,e Fund, I think that the Legislature intended such to be the case.
As previously pointed out to you on June 25, 1957, to place any other construction on the amendment would be to saddle the Firemen's Retirement System with an unknown number of claims that could possibly make the system financially unsound.
Again, I call your attention to the provisions of Section 7-A (c), which grants to the Board the right and power to approve or disapprve all applications for disability benefits.

PENSIONS AND RETIREMENTS-Firemen's Pension Fund (Unofficial)

Procedure for rejoining Fund after having once resigned previously.

Mr. Max Wiggins

December 10, 1959

This is in reply to your letter in which you ask: "1. How long after returning to the Fire Service does one (a for-
mer fireman who was a member of the Fund and who had withdrawn the money paid into the Fund) have to rejoin the Pension Fund?
"2. How long does one have to repay the amount withdrawn from the Fund, should he return to the Fire Service?"
Section 5-A of the Firemen's Retirement System Act, now codified as Section 78-1015 of the Code of Georgia, provides that any member who withdraws the money which he has paid into the fund while still a fireman or voluntary fireman, shall be allowed six: months in which to make proper application for. reinstatement of membership in the fund, and he must pay to the Secretary-Treasurer all the money so withdrawn, with interest at the rate of six percent. per annum from the date of such withdrawal, plus the dues which he
a would have been required to pay had he remained member of the fund from
the date of withdrawal to the date of the fund from the date of withdrawal to the date of reinstatement, with interest thereon at the rate of six percent per annum.
I construe this section to mean that a member may withdraw from the
fund after becoming a member and while still continuing his employment as a
fireman or volunteer fireman, and may subsequently while still so employed rejoiri the fund by repaying the money withdrawn together with interest at the rate of six percent per annum, plus the dues which he would have had to pay in the interim, together with interest on said amount of dues at six percent. per annum. I am of the further opinion that the money withdrawn with the interest thereon and the amount of accrued dues with interest thereon would have to be paid to the Secretary-Treasurer within the six months period provided for application and on or before the time the Board took final action on the appliGation.

238
Paragraph 4 of this section provides that a fireman who on leaving Fire Service withdraws his contributions and later re-enters Fire Service shall be eligible once again to become a member of the fund and shall be entitled to credit for his previous Fire Service if he pays to the Secretary-Treasurer the amount withdrawn together with interest at six percent per annum. This paragraph is silent as to when application for membership must be filed and when the funds withdrawn together with six percent per annum interest thereon shall be paid.
Your attention is called to Section 78-1005 of the Code of Georgia which deals with applications for membership in the fund. This section provides that firemen and voluntary firemen who are now serving shall make application to the Board for membership within six months from the approval of the Act. All persons who subsequently become eligible for membership in the fund shall make application within four months from the date of becoming firemen.
I am of the opinion that the fireman under discussion, who left the Fire Service and withdrew his contributions, and who later re-entered Fire Service, had the status of a new fireman when he returned to Fire Service, and construing the Act as a whole, has four months to apply for membership in the fund. It is my further opinion that in order to obtain credit for his prior fire service he must pay up the amount withdrawn from the fund together with interest thereon at six percent per annum on or before the Board takes final action on his application for reinstatement in the fund, provided said sum is tendered within four months of the date he re-entered fire service. I do not construe this paragraph to require him to pay dues for the period of time intervening when he was not employed as a fireman or voluntary fireman.

POST MORTEM EXAMINATIONS-Witnesses (Unofficial)

Payment of medical examiners as witnesses under Post Mortem Examination Act.

Honorable James H. Pugh

December 17, 1959

This will acknowledge receipt of your letter requesting information as to the fees1 paid to a medical examiner for his. services as a witness.
Georgia has a statute somewhat similar to the "Maryland Law" and is found in an Act of the General Assembly, approved March 11, 1953 (Ga. L. 1953, p. 602), known as the "Georgia Post Mortem Examination Act". Section 3 thereof provides for the appointment and duties of medical examiners. This Section also provides the fees that a medical examiner is entitled to receive :for his services. This Act is codified as Chapter 21-201 in the Georgia Code Annotated, 1958 Cumulative Pocket Part.
The fees for witnesses are set forth in Code, Chapter 38-15. I direct your attention to this Chapter in view of the several provisions pertaining to fees that could be applicable in determining the fee of a medical examiner for his appearing as a witness. This Code Chapter authorizes some variation in the fees, as I am sure you are aware that some of the Judicial Circuits of this State are much larger and have much more business than some of the others.

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PRISONS AND PRISONERS-Board of Corrections-Authority

Authority of Board of Corrections to construct a clinic and office on prison property for the use of an institutional surgeon discussed.

Honorable Jack M. Forrester

February 16, 1959

This will acknowledge receipt of your letter requesting my opinion as to the legality of a proposal whereby the Board of Corrections would construct a clinic and office on the premises of the Georgia State PrisolJi at Reidsville for use by your institutional surgeon.
Your letter states that at present, all of your employees at the prison have to travel at least 20 miles for medical services, and that the proposed arrangement would greatly benefit the institution. The doctor would furnish the clinic with his own funds.
I am of the opinion that this arrangement would be legal provided the doctor restricts the use of such state-owned facilities to the treating of state employees. So restricted, the undertaking would amount simply to a contract between the state whereby in consideration of the furnishing of the building and space by the state, the physician would furnish medical services to state employees on a more expeditious and economical basis, thereby improving the efficiency of the operation of the prison. Insofar as any benefit may directly accrue to the prison employees, not only would it also indirectly accrue to the state because of the aforestated reason, but it would also be sustainable ::ts merely another part of the compensation furnished the employees for their services by the state, and analagous to employees retirement benefit systems, which have been upheld on this ground. DeWitt v. Richmond County, 192 Ga. 770, 773. For this same reason, I see no reason why it would be necessary that you charge the doctor rent for use of the facilities, for I assume that you will require him to furnish his services to your employees at a rate less than -~hat which would be otherwise charged, which would prevent the transaction from being unlawful as the grant by the state of a gratuity. Constitution, 2-5402 (1). Of course, it is entirely a matter for you to decide as to whether or not rent will be charged.
On the other hand, should the doctor be permitted to treat patients other than state employees at the state-owned faciliies, I am of the opinion that this would be illegal as (1) a gratuity, 2-5402, and (2) subject perhaps to the objection that the state would be engaged in a business not authorized by law.
Lastly, I question whether any long term lease should be entered into in this matter under any circumstances, but I suggest that this matter be handled on a month-to-month basis, and in any event, a clear understanding should be had with the doctor prohibiting treatment of patients other than employees or inmates of the prison in the prison facilities to be constructed.

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PRISONS AND PRISONERS-Board of Corrections-Authority

Board of Corrections has authority to contract for natural gas for Reidsville State Prison.

Honorabl~ Jack M. Forrester

March 10, 1958

This will acknowledge receipt of your letter in which you request my opinion on the question as to whether or not you have authority to enter into a contract with Georgia Coastal Natural Gas Corporation providing for the furnishing of natural gas by the latter to the Georgia State Prison at Reidsville, Georgia.
This contract recites that Georgia Coastal has secured a contract with Southern_ Natural Gas Company providing Georgia Coastal with. a supply of gas, which contract will be presented to. the Federal Power Commission for approval; the Prison obligates itself to appear before the F~deral Power .Commission in support of this contract, and agrees to purchase its supply of natural gas f:rom Georgia Coastal once it has secured approval thereof and installed its pipes.

I am of the opinion that you are legally authorized to execute this contract,

subject to the following observations.

- .

First, as a matter of law,. since this contract .extends over a period greater

1ha'n one year (current appropriations) it should contain a clause to the follow~

ing effect:

. ..

"Nothing herein shall be .construed as creating obligation .against the State of Georgia beyond current appropriations, the parti~s hereto recognizing that the State is constitutionally prohibited from incurting . a debt as that term is used in the Constitution, Art. VIII, Sec. III; Par. I (Code 2-5601)." Secondly, as a matter of administrative policy which you might desire to consider, I call to your attention the fact that the certificate of public convenience and necessity issued to Georgia Coastal by the Georgia Pub1ic Service Commission is now being contested by competing applicants before the Suprem~ Court of Georgia, the same being case No. 20024. Moreover, Georgia Coastal has yet to secure approval of its supply contract with Southern Natural' Gas by the Federal Power Commission, aside from the fact that several years may elapse thereafter before pipe are actually laid. In the meantime, it is not altogether impossible - although granted improbable - that the Federal Power Commission might certificate an interstate pipeline to serve this same area, arid you would thereupon desire to obtain service from the latter, i.e., "A bird in hand . . ." I assume of course that the Georgia Public Service Commission would not consider certifying another intrastate pipeline so long as Georgia Coastal is still in the field.

PRISONS AND PRISONERS-Board of Corrections-Authority

Board of Corrections has authority to contract with person for services and equipment for limited purpose of plowing land, without going through Supervisor of Purchases.

Honorable J. M. Forrester

April 16, 1959

I am pleased to acknowledge your letter which relates to the employment

of the services of a p.erson with such p.erson furnishing his own equipment in the form of a tractor for the purpose of plowing approximately fifty acres of iand in..the.vicinity of the Meriwether Prison Branch at Warm Springs, Georgia, in order to plant a garden to produce fresh vegetables for the use of inmates at such institution.
The p1;imary duties of the State Supervisor of Purchases, under Chapter 40-19 of the Code of Georgia consist of canvassing all sources of supplies, and contracting for the purchases of all supplies, materials and equipment required by the State government or any of its departments under competitive bidding as provided in said Act. He also has the duty to contract for telephone, telegraph, electric light power, postal and all other like contractual needs of the State government and its departments, and to rent or lease grounds, buildings, offices, or other space required by any department of the State government with cert~in exceptions enumerated in said Chapter.
Under the facts stated in the correspondence in question, the Supervisor of furchases was corre<ot in his letter to you stating that such contract of employment should be ex{tered into between the Department of Corrections and the p,erson furnishing his services and equipment for the plowing of the ground in question, as this did not come within the classification of supplies, materials and equipment purchases or utility contracts, since your request to him was for the employment of a person who furnished his own equipment for the performance of a service.
In such contracts your Department should obtain written competitive bids and retain them in your files, and precautionary administrative measures taken to insure the full performance of all the terms and conditions of the contract entered into.
Thifi opinion is restricted to the facts in question herein stated, and shall not apply to any other transaction since the facts necessarily. vary in each insta11ce.

PRISONS ,AND PRISONERS-Board of Corrections-Authority

Board of Corrections has authority to rent facilities from a county, but has none to contract to employ a designated person as a warden.

.Honorable J. M. Forrester

March 9, 1959

This will acknowledge receipt of your letter requesting my opinion as to the legality of a proposed agreement with Dooly County whereby it would lease its prison facilities, including the warden's house, to the State Board of CorJ;ections in consideration of (1) $400.00 per month rent (2) a ten (10) man 'detail of prisoners to be used by the county eight (8) months of the year, ~nd (3) your agreement to employ as warden the former warden employed by the county.
Insofar as this agreement provides for renting of the facilities and the payment of rent and the furnishing of prisoners therefor, its legality is unquestionable. Code 77-218 (Supp.); Constitution, Art. VII, Sec. VI, Par. I (Code 2-5901).

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But insofar as it undertakes to obliate you by contract to employ a designated person as warden, a different situation is presented. The duty of selecting and employing wardens is vested exclusjvely in the State Board of Corrections and the Director thereof. Code 77-306 (Supp.) provides in part:
"The Director of Corrections, with the consent and approval of the State Board of Corrections, is hereby authorized to appoint and employ such clerical force as is necessary to carry on the administration of the penal system, and such experts and technical help as needed, assistants to the Director, wardens and guards, and other employees necessary for the operation of the State-operated institutions where prisoners are confined. . , ." Section 77-314 (Supp.) declares in part:
"The State Board of Corrections shall by rule and regulation define the qualifications for wardens, guards, and other personnel employed in the prisons and county public works camps. . . ."
Public offices may not be bought and sold, such agreements being con:trary to public policy and void at common law. Grant v. McLester, 8 Ga. 553, 555. See also Code 20-504; 17 C.J.S. 586, 219; 43 Am. Jur. 104, 295. In Andrews v. Richardson, 32 Ga. App. 687, 691, it is said:
"It is well settled that any contract made by a public official which would hamper or restrict him in the due performance of his public duties is necessarily against public policy. The contract between Richardson and Andrews, in so far as it obligates Richardson to retain Andrews in office for a definite period of time or beyond the time when Richardson should see fit to dispense with his services, necessarily would hamper Richardson in the performance of his public duties. It is conceivable that the retention of Andrews in office, although he is properly performing the duties of deputy tax-collector and has not otherwise violated the contract might hamper the efficiency of the entire office force and prevent Richardson from properly and efficiently performing the duties of the office. The contract sued upon, therefore, is void as against public policy. . . ."
It is a matter of common knowledge that the office' of warden of a prison is of an extraordinary character affected with a great public interest in that the lives, safety and well-being of not only the public but the prisoners themselves are in some measure entrusted to the warden's care. The law evinces the policy that the Board of Corrections and its Director are to exercise their informed and expert judgment in selecting and discharging such officials, and any contract or agreement whereby you seek to divest yourselves of that discretion, power and judgment is void as being contrary to public policy.
Of course, I do not mean to imply t11at it would be illegal for you to employ the former county warden should you determine to your own satisfaction that he possesses the qualifications which you require (presumably he does, since his prior service as county warden was subject to your approval, Code 77-314) but any contract which obligates you to employ ,or retain him in employment is void.

248

PRISONS AND PRISONERS-Board of Corrections-Employeelii

Bonding of wardens and deputy wardens discussed.

Honorable J. M. Forrester

February 19, 1959

This will acknowledge receipt of your letter requesting my opinion as to bonds covering your wardens and deputy wardens.
Section 5 of the Act of 1957 (Ga. Laws 1957 Vol. I, pp. 477, 481) prescribes what the terms and conditions of such bonds should be, viz.:
"Section 20. (a) Before any prison, county public works camp, or other penal institution operating under jurisdiction of the State. Board of Corrections shall be approved to receive prisoners, the board shall require the warden, superintendent, or other chief custodial officer thereof to execute a bond in such amount as the board may require, with good securities to be approved by it, such bond not to be less than $10,000, and payable to the Governor and his successors in office, and conditioned upon the following:
1. To faithfully account for all public and other funds or property coming into the principal's custody, control, care or possession.
2. To truly and faithfully discharge all the duties imposed upon him by law or the rules and regulations of the State Board of Corrections.
(b) The board may also require that any other officials, employees or agents of the board or of the various penal institutions above referred to shall give such bond as referred to in paragraph (c), in an amount to be determined by the board, but in no case to be less than $5,000."
The bond submitted by you relating to accounting for funds covers only dishonest or fraudulent acts, whereas the applicable law is not so limited, but covers any loss of funds.
Secondly, the other bond which relates to performance of duties is limited to those imposed by law, whereas Section 5 quoted above refers to laws and regulations of the Board, which is a very material difference, since it is the rules and regulations of the Board which almost wholly define the duties of the wardens and deputy wardens rather than any law enacted by the Legislature.
Under the Supreme Court's decision in United States Fidelity and Guaranty Co. v. McCurdy, 180 Ga. 683, it is not entirely clear as to whether the bond in question would be treated as official bonds or as common law undertakings, but regardless of which may be the case, I am of the opinion that these bonds should be re-executed so as to conform to the 1957 Act, and tol avoid any doubt, reference should be made in such bonds to said Act.
I note that these bonds also'. cover deputy wardens, bookkeepers and other designated personnel. To avoid any question of legality, the Board should by resolution entered on your official minutes expressly require that such persons be bonded, if this has not already been done.
Since M. has executed the bonds on behalf of the surety as attorney-in-fact, a copy of his power of attorney should be attached.
I notice that several names have been marked through. Under the terms of the bond, persons may be added or taken off only by endorsement of the surety, although of course this would not be of too much importance from your standpoint except as to persons added.

244
Some of the persons listed in the schedule undoubtedly are required by their position to handle large sums of money and checks. Therefore, the Board may wish to raise their coverage above the $10,000 minimum prescribed for wardens, and the $5,000 minimum prescribed for deputy wardens and other officials. ~It woul~! certainly afford you a greater degree of protection on your public official's bond.
Lastly, these bonds do not purport to be signed by any of the principals, and while this very likely would not vitiate the obligation of the surety where the bond is accepted and acted on, United States Fidelity & Guaranty Co. \'. 1\'lcCurdy, 51 Ga. App. 507 (2); Rust, et al. v. Producers Co-operative Exchange, Inc., 81 Ga. App. 260, 263, nevertheless I think that to assure liability on the part of the principals, they should be required to sign.

PRISONS AND PRISONERS-Board of Corrections-Employees

Expenses of employees when subpoenaed to testify in Superior Court.

Honorable J. M. Forrester

June 20, 1958

Receipt is hereby acknowledged of your letter requesting my opinion on the question as to whether or not employees of your office subpoenaed to testify in Wheeler Superior Court in a criminal prosecution are entitled to expenses from Wheeler County or the Board of Corrections.
The criminal prosecution in question was brought against a County Commissioner for utilizing convict labor on private property in violation of law, and the presence of your employees as witnesses was required for the purpose of .testifying as to the official records of the State Board of Corrections pertitining to an investigation conducted by the Board into these activities, which resulted in the removal of all prisoners from the Public Works Camp.
The Code, 38-1902 provides: "A witness for the State attending in a different county from that
of his residence shall receive $2 per day during his attendance, and his actual traveling expenses, not to exceed four cents per mile in going and returning. If he is subpoenaed in more than one case, he shall receive per diem and mileage in one case only: Provided, that a witness whose residence or usual place of business is within three miles of the courtroom attended by him shall be paid for attendance 75 cents per day and no mileage." Obviously, the above would not be sufficient to pay the actual expenses of any employee subpoenaed to County, and since they will be appearing solely with reference to official matters arising out of their employment with the State Board of Corrections, I am of the opinion that it will be legal for the Board to pay these employees the difference between their actual expenses and the amount paid by County. As to mileage the Supervisor of Purchases has established 6c per mile as the amount under Code 40-2002, and since the policy of this law evidences the intent (1) that state officials and employees are tp be xeimbursed only for actual expenses, and (2) as to mileage, the amount should not exceed 6c per mile, I am of the further opinion that the Board should pay mileage at the rate of 2c per mile, where, as here, another body (County) is liable for 4c per mile.

245

PRISONS AND PRISONERS-Board of Corrections-Employees

:Method of procuring signatures on warden bonds.

Honorable J. M. Forrester

March 5, 1959

This will acknowledge receipt of your letter requesting my opinion as to the method of procuring signatures of your wardens and other prison personnel on bonds required under the Act of 1956 (Ga. Laws 1956 Vol. I, pp. 161, 176) as itmended, (Ga. Laws 1957 Vol. 1, pp. 478, 481).
On February 19, 1959, by official opinion I informed you that new bonds should be obtained under the above law, and pointed out that these bonds should be signed by the principals, as well as the surety. Your letter raises the question as to the method of obtaining these signatures in view of the fact that the personnel and officials to be bonded reside in various parts of the state.
I am of the opinion that any principal called upon to sign such a bond should have a copy thereof before him so he will know what he is signing, thereby satisfying the requirements of mutual assent under the law of contracts. Any procedure wherein a principal signs a blank piece of paper is frought with danger, in that such principal might later assert that since no bond was before him, he did not know what he was signing. On the other hand, where one has a document before him and can read, the law generally will not permit him to say that he did not know what he was signing when he signed it. B. E. Robuck Inc., v. Walker, 212 Ga. 621.

PRISON AND PRISONERS-Confinement

Where prisoners should be incarcerated during periods of stays of execution.

Honorable Jack M. Forrester

August 10, 1959

This will acknowledge receipt of your request concerning the disposition of a prisoner.
The prisoner is presently confined at the Georgia State Prison in Tattnall County under sentence of death, said execution having been set for August 17, 1959. This morning, His Excellency, the Governor, ordered that the execution of the .prisoner be stayed a period of sixty (60) days from August 17, 1959, in order to permit her attorneys sufficient time to present their case to the Pardons and Paroles Board.
You inquire as to whether you should continue to hold the prisoner at the Georgia State Prison or have her returned to Bibb County, the county in which she was sentenced. Code Section 27-2514 provides in part as follows:
"Upon the conviction of any person of a crime, punishment of which is death ... it shall be the duty of the sheriff of the county in which such convicted person is so sentenced . . . to convey such convicted person to said penitentiary not more than 20 days nor less than 2 days prior to the time fixed in the judgment for the execution of such con-

246
demned person unless a stay of execution has been caused by appeal, granting of a new trial, or other order of a court of competent jurisdiction . . . ." (Emphasis Supplied.)
Under the provisions of this Section, I am of the opinion that the Sheriff of Bibb Sounty, the county in which the prisioner was sentenced should deliver her to the State Prison not more than 20 days prior to the date fixed :for execution. Since the Governor's Order provides that the execution of the prisoner is to be stayed for a period of sixty (60) days from August 17, 1959, she should be held in Bibb County until a time which will be not more than 20 days prior to a new date of execution. However, since the prisoner is already in the custody of the State Board of Corrections, she should be returned to Bibb County to be held until a new date for execution is set in the manner provided by law.

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PRISONS AND PRISONERS-Convict Labor (Unofficial)

Convict labor cannot be used to construct edifice on county property to be occupied by private groups.

Honorable J. B. Hatchett

March 4, 1958

Receipt is hereby acknowledged of your letter requesting my opinion on the question as to whether or not prison labor could be used in a home for the aged and infirm to be constructed by Fulton County and operated by a charitable organization known as' Battle Hill Haven.
As I understand the problem from statements contained in letter to you from the County Manager, in the past Fulton County has maintained and operated its own home, "Haven Home", housing approximately 200 persons, but it is now anticipated that the county will construct a million dollar home which will be turned over to the directors of Battle Hill Haven, who will house the 200 county persons, as well as approximately 200 persons now being cared for by Battle Hill in its own facilities. The new building will be leased to Battle Hill for a nominal consideration, and the county will pay the cost of care of patients who by law are wards of the county. While Battle Hill is strictly charitable in nature, it does receive pay from those persons now in its institution, on a cost basis, and will continue to receive payment therefrom after the proposed transition.

The Code, 77-318 (1956 Supp.) provides: "(a) The State Board of Corrections shall provide rules and regula-
tions governing the hiring out of prisoners by any penal institution under its authority to municipalities, cities, the State Highway Department, or any other political subdivision, public authority, public corporation, or agency of State or local government, which are hereby authorized to contract for and receive said prisoners, but such prisoners shall not be hired out to private persons or corporations, nor shall any instrumentality of government hereinbeforQ authorized to utilize prison labor use such labor in a business conducted for profit."
In view of the above, I am of the opinion that the proposed use of prison labor would be illegal. Unquestionably, the control and management of the

24'1
home will be in the hands of the directors of Battle Hill Haven, and this, I believe, is decisive. While Battle Hill may be charitable in nature, they nevertheless are either "private persons or [a] corporation[s] ", within the meaning of the above law.
As a result of the financial dilemna in which the State found itself following the Civil War, the "convict lease" system was adopted, whereby convicts were leased out to private persons. See Ga. Laws 1866, p. 155; Ga. Laws 1874, p. 26. This system gave rise to many abuses, and received much criticism. See A. E. Taylor, "The Origin and Development of the Convict Lease System in Georgia", Ga. Hist. Quarterly, Vol. 26, pp. 113-128 (1942); Taylor, The Abolition of the Convict Lease System in Georgia", Ga. Hist. Quarterly, Vol. 26, pp. 273-287 (1942). However, it was not until 1908 that the system was abolished. See Ga. Laws 1908, p. 1119. As descriptive of the distinguishing features of this system, it was said in Ga. Penitentiary Co. No. 2 et al., v. Nelms, 65 Ga. 499, 504:
"It was a transfer by the state to the lessee of the control and labor of these persons in consideration that they would feed, clothe, render medical aid and safely keep them during a limited period." Of course, later laws required that the control of the convicts be kept under jurisdiction of the State, and that only "the labor" of the convicts would be leased. See Chattahoochee Brick Co. v. Goings, 135 Ga. 529 (1). However, it is clear that any arrangement whereby the custody, control and labor of prisoners are vested in private parties would be illegal, and the prisoners would be entitled to relief by habeas corpus. Simmons v. Ga. Iron & Coal Co. 117 Ga. 305, 318 (9). I am therefore of the opinion that the proposed plan for use of prison labor could not legally be placed into operation without an amendment to the existing law.

PRISONS AND PRISONERS-Convict Labor

Convict labor may be used in fire ant eradication programs.

Honorable Jack M. Forrester

December 2, 1959

This will acknowledge receipt of your letter in which you request an opinion
as to whether convict labor may lawfully be used to participate in the fire ant
eradication program that is underway in Meriwether County.
The fire ant eradication program is a joint project of the Federal government and the State of Georgia and I gather from your letter and the enclosed letter from Mr. Buchanan, County Agent of Meriwether County, that it is desired that eradication be carried on using convicts.
Code Section 77-318(a) reads as follows: "77-318(a). The State Board of Corrections shall provide rules and
regulations governing the hiring out of p1isoners by any penal institution under its authority to municipalities, cities, the State Highway Department, or any other political subdivision, public authority, public corporation, or agency of State or local government, which are hereby authorized to contract for and receive said prisoners, but such prisoners

248
shall not be hired out to private persons or corporations, nor shall any . instrumentality of government thereinbefore authorized to utilize prison . labor use such labor in a business conducted for profit." From previous knowledge of the fire ant eradication program, I believe that convict labor may lawfully be used. The program is for a public purpose and prison labor may be used for this. However, Mr. Buchanan in his letter states: "Federal officials who are supervising the work have agreed to .use any additional labor in a profitable way." I would like to point out that there is no authorization for the State Board of Corrections to hire out prisoners to the Federal government and also there is an express prohibition against the utilization of convict labor in a business conducted for profit. If convict labor is furnished for this program, care should be exercised to ins~Jre that the supervision will be under the State, a county, or a political subdivision of the State and that no "profit" is made from this use of labor.

PRISONS AND PRISONERS-Convict Labor

Use of convict labor on private land authorized upon consideration land is to be used rent free by a prison branch for a term of years.

Honorable J. M. Forrester

October 30, 1958

This will acknowledge receipt of your request for my opm10n on the question as to the validity of an agre~ment entered into between the Warden of the Jefferson Prison Branch, and a private land-owner, whereby in consideration of the Warden's clearing five (5) acres of land belonging to the land-owner, he will permit the Prison Branch to occupy the land rent free for a period of three (3) years.
First, the state cannot enter into any lease whereby it becomes obligated to pay rentals over a period of years, as this would create a debt against the State in violation of the debt limitation clause, Art. VII, Sec. III, Par. I (Code 2-5601). Barwick v. Roberts, 188 Ga. 655; s. c., 192 Ga. 783 (5). Of course, certain leases of the authority-type financing character are expressly aut,horized, Const., Art. VII, Sec. VI, Par. 1 (Code 2-5901); Mcl,ucas v. State Bridge Building Authority, et al., 210 Ga. 1, but this is not involved here. Consequently, for the agreement to be legal, any consideration to be furnished by state must be executed, or else to be performed within the year.
Secondly, as respects the authority of the state to work prison labor on private property, I have previously ruled that under Code 77-318 (1957 Supp.), a city was not prohibited from using prison labor to clear private land under a local health ordinance, so long as the transaction was for a good faith public purpose, rather than a subterfuge designed to benefit the private owner.
Simularly, on May 28, 1958, I ruled that the state could legally use prison labor to remodel quarters belonging to a private party but rented by Gwinnett County to house county officers.
In these opinions, I concluded that the Georgia statute previously quoted prohibits (1) the hiring of prisoners to private persons, and (2) the use of

249
prison labor by the state or political subdivision in a business conducted for profit.
In the absence of any regulation upon the subject declaring otherwise, which the Board of Corrections is authorized to issue under Code Sections 77-318 (1957 Supp.) and 77-307 (1957 Supp.), I am of the opinion that the agreement in question is not illegal, so long as it was entered into in good faith, for the purpose of procuring the use of land for the state, rather than as a guise whereby the private land-owner is enabled to receive a gratuity from the state, prohibited by the Constitution, Art. VII, Sec. I, Par. II (Code 2-5402).
Such arrangements afford ample opportunities for abuse, but it is a policy matter for the Board to determine as to whether they should be prohibited altogether. Conducted on a large scale, they might very well assume a different character, and constitute the "doing of business" for profit, which is illegal.

PRISONS AND PRISONERS-Convice Labor

Use on street dedicated to public use, and duly accepted by municipality valid.

Honorable Jack M. Forrester

December 2, 1959

This will acknowledge receipt of your letter in which you request my opinion as to whether prisoners were illegally used out of the Houston County Public Work Camp.
The dispute seems to revolve around the status of a street located in a subdivision of the City of Warner Robins known as Hudson Heights. It seems that convict labor was used to prepare Paul Street running through this subdivision for paving. Your investigator reported that there was no record in the office of the Clerk of the City of Warner R.obins that the Street had been deeded to the City or that the Street had been dedicated.
This office was contacted by representatives of the City of Warner Robins in Houston County and has been furnished a copy of a certified plat relating to the subdivision in question and a copy of the minutes of the Warner Robins Planning Board accepting the plat. You will notice that the plat bears the :following words:
"The undersigned hereby acknowledges this plat and allotment to be his, free act and deed and hereby dedicates to public use as streets, alleys, parks, easements, and open spaces forever. All are as so shown or indicated on said plat." This dedication is dated September 15, 1959. The Street layout was approved by the City of Warner Robins on September 15, 1959, and the plat was approved by the City of Warner Robins Planning Board on October 21, 1959. This later fact also appears from the minutes of the Planning\ Board. Under the provisions of Section 77-318 (d), the Board of Corrections is authorized to require prisoners to labor on "the public roads, public works, or in such other manner as the Board may deem advisable." It is my opinion that the Street involved here was legally dedicated and accepted by the City of Warner Robins and that it is a public road as contemplated by this Code Section. See, e.g., Southern Railway Company v. Combs, 124 Ga. 1004(1) (1906). Hence, I am of the opinion that this transaction involved no illegal use of convict labor.

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PRISONS AND PRISONERS-Convict Labor

Soil conservation districts are State agencies and use of prison labor on projects is lawful.

Honorable Jack M. Forrester

January 5, 1959

This will acknowledge receipt of your letter requesting my opinion on a question propounded by Honorable Tom Patterson, Commissioner of Roads and Revenues of Whitfield County.
Mr. Patterson desires to know whether or not it would be legal to utilize convict labor from the Whitfield Public Works Camp to remove buildings on private land in connection with soil conservation projects being conducted by the Limestone Valley Soil Conservation District Supervisors. The Soil Conservation District has obtained easements from landowners for the purpose of constructing water impounding structures and flooding pools, and in carrying out these operations, it has become necessary to remove five buildings situated on land to be covered by flooding pools.
Soil conservation districts are expressly declared to be agencies of the state government, Code 5-1806 (Supp.), 5-2012 (Supp.), whose powers and duties are comprehensively defined and regulated by law, Code, Chp. 5-18 through 5-22 inclusive. Section 5-2015 expressly authorizes such Districts to conduct engineering operations on lands within the District, and 5-2019 (Supp.) authorizes the erection of soil conservation structures.
As concerns prison labor, Section 22(a) of the Act revising the laws relating to the State Board of Corrections (Ga. Laws 1956 Vol. I, pp. 161, 177) expressly authorizes the use of prison labor by municipalities, public authorities, public corporations, or other agencies of state or local government, so long as such prison labor is not used in a business conducted for profit.
Therefore, since the Limestone Valley Soil Conservation District is an agency of state government, it would be lawful to use prison labor in the execution of projects are bona fide functions which Soil Conservation Districts are duly authorized by law to engage in.

PRISONS AND PRISONERS-Convict Labor

Use of prisoners to move buildings for State agencies is not prohibited.

Honorable Jack M. Forrester

June 25, 1959

This' will acknowledge receipt of your letter with reference to the proposed gift by the Southern Railway Company of a depot building located at Raoul, Georgia, to the State of Georgia. You request that I advise you whether under Georgia law you will be permitted to use prison personnel from the Georgia Industrial Institute to remove this building and rebuild it on premises belonging to the State at Alto.
Section 77-318 of the Annotated Code reads as follows: "77-318. (a) The State Board of Corrections shall provide rules and

251
regulations governing the hiring out of prisoners by any penal institution under its authority to municipalities, cities, the State Highway Department, or any other political subdivision, public authority, public corporation, or agency of State or local government, which are hereby authorized to contract for and receive said prisoners, but such prisoners shall not be hired out to private persons or corporations, nor shall any instrumentality of government hereinbefore authorized to utilize prison labor use such labor in a business conducted for profit.
"(d) The Board of Corrections or any penal institution or county public works camp operating under jurisdiction of the board shall be authorized to require prisoners coming into its custory to labor on the public roads, public works, or in such other manner as the board may deem advisable. The Board of Corrections may also contract with municipalities, cities, counties, the State Highway Department, or any other political subdivision, public authority, public corporation or agency of state or local government now or hereafter created by law, which are hereby authorized to so contract with the board, for the construction, repair, or maintenance of roads, bridges, public buildings and any other public works by use of prison labor."
I am of the opinion that this section would not prohibit the use of prison labot to remove a building from private property and re-erection of the same on State property where the sole benefit would flow to the State of Georgia.

PRISONS AND PRISONERS-Extradition

Prisoner wanted in foreign states on misdemeanors may be extradited.

Honorable Robert J. Carter

November 16, 1959

This will acknowledge whethere an individual wanted on a misdemeanor charge in a foreign state may waive extradition to the demanding state or may be extradited by the demanding state from the State of Georgia.

Section 44-403 of the Annotated Code of Georgia provides in part as follows: "... it is the duty of the Governor of this State to have arrested
and delivered up to the executive authority of any other State of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and who is found in this State."
I believe that this Section by the use of the words "other crime" clearly expresses the intention of the General Assembly that the Governor shall extradite persons charged with a misdemeanor in other states.
Under Section 44-426 of the Annotated Code, a person who is arrested in this state charged with having committeed a crime in another state may waive extradition. Hence, I am of the opinion that both of your questions should be answered in the affirmative.

252

PRISONS AND PRISONERS-Extradition
Waiver of extradition rights by consent prior to" parol from another state.

Honorable Robert J. Carter

April 21, 1958

This will acknowledge receipt of your letter requesting my opinion on the question as to whether or not a Virginia prisoner paroled from that state and permitted to come to this state under parole supervision of Georgia parole officials, may be returned to Virginia without the necessity ,of formal extradition proceedings following service of a sentence in this state and revocation of the parole by Virginia authorities. Although you have not furnished me with a copy thereof, I understand that the Virginia parole contained a condition that the prisoner would waive extradition in the event his parole was ever revoked.
Section 25A of the Uniform Criminal Extradition Act, 9 Uniform Laws Ann.; found in the Georgia version of the Act as Code 44-426, provides a formal procedure whereby a prisoner (under parole or otherwise) may waive extradition, but the section does not limit waiver to the method there provided, for it is expressly stated "nor shall this waiver .procedure be deemed to be an exclusive procedure or to limit the powers, rig.hts, or duties. of the officers of the demanding state of this state."
This identical question arose in the case of Ex Parte Casemento, 24 N. J. Misc. 345, 49 A 2d 437 (1946), where, as here, the question related to the interpretation of the Uniform Criminal Extration Act, and the authority of a person to waive his rights in advance. The holding is very well summarized by the headnote, viz.:
"An agreement signed by prisoner as condition of being paroled from custody in Pennsylvania that prisoner waived extradition to Pennsylvania and that he would not contest any effort to return him to Pennsylvania was binding, as against contention that prisoner could not waive his constitutional rights. in advance, since constitutional rights can be waived."
In Georgia, our courts recognize that "a person may waive or renounce what the law has established in his favor....",Code 102-106, and that a pardon (or parole) "is a mere act of grace, to which 'the pardoning power may attach any condition precedent or subsequent 'Yhich is not illegal, immoral, or impossible of performance; and when a convict accepts such conditional pardon, he is bound by all of its valid provisions/' Muckle v. Clarke, 191 Ga. 202, 12 S. E. 2d 339; Hiatt v. Compagna, 178 F. 2d 42 (C.A. 5th' 1949), aff'd. 340 U.S. 880.
It is therefore clear that the prisoner has already waived extradition. The question then arises as to whether, notwithstanding such waiver, he is nevertheless entitled to be carried. into court .and have his rights explained to him. Code 44-411, which confers this right of hearing prior to delivery to authorities of the demanding state, uses the phrase "No person arrested upon such warrant shall be delivered ... etc." (Emphasis supplied). "Such warrant" refers to the Governor's warrant of arrest issued pursuant to Section 7 of the Uniform Act (Ga. Code 44-408). ~mmonwealth v. Dye, 373 Pa. 508, 96 A 2d 129 (1953). Also, Code 44-426, relating to waiver of extradition, states in the context of "waiver" ... "and all other procedure incidental to extradition proceedings...."

In view of these considerations, it would. se.em that Section 44-411 would

not apply where the prisoner has already waived tlxtradition, On .the other hand,

the question of identity. of the accused could .well override all . other considera-

tions, and the need 'for a hearing in this respect would be just as great where a

waiver was made in the paroling state as whera it was not. Also, I note that a

failure to comply with 44-411 is punishable ,.as a misdemeanor. See Code 44-

9901.

., '

In view of the above, ~Fconclude that; while the prisoner has no right to

formal extradition proceedings, they baving already been waived, due caution

would seem to require that the prisoner be taken be(ore a judge prior to delivery.

Whether he will then be given oppottunity to institute legal proceedings of any

nature will depend upon the judge's determination.

PRISONS AND PRISONERS-Extradition

Waiver of extradition rights.

Honorable Robert J. Carter

September 14, 1959

.This will acknowledge receipt of your letter in which you request informa-

tion ,concerning a prisoner who is presen~ly incarcerated in the Plckens County

Public Works Camp.



The prisoner is a parolee from the State of Maryland being paroled to this

State on October 14, 19)8, under the. terms of the Interstate Compact for Out-

of-State Parolee Supervision. In obtaining his parole, he signed the standard

form used under this Compact, Condition 4 of whlclj reads as follows:

"That I hereby do wave extradition to the 'state of Maryland and also agree that I will not contest a~y effort to return me to the State of Maryland."

You request that this .offic~ advise you whether it is mandatory that he be produced in Court to have his rights explained to him prior to releasing him into custory of agents from the State of Maryland. The Uniform Act for Parolee Supervision (Ga. Laws 1950, p. 405, Ga. Code Anno. Chapter 27-27A) was adopted by the State of Georgia on April 5, 1950. Maryland adopted the provisions of the Act on September 24, 1927. Md. Laws 1937, Chapter 125. Section 3 of the Compact provides in part:

"(3) That duly accredited off!cers of a sending State may at all times enter a receiving State and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the indentity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of States party hereto, as to such persons. The decision of the sending State to retake a person on probation or parole sha,ll be conclusive upon and not reviewable within the receiving State...."
Although I am unable to find any Georgia cases pertaining to the Interstate Compact, its coris~itutionality has been upheld in the following States: Arkansas, Gulley, Sheriff, vs. Able; 215 Ark. 350; 210 S. W. 2d 514 (1948); Cali-

254
fornia, Ex Parte Tenner, 20 Cal. 2d 670, 128 P. 2d 338, Cert. den., 314 U.S. 585, 317 U.S. 597 (1942); Louisiana, Ex Rei Dupont vs. Grosch (Criminal District Court for the Parish of Orleans, No. 14-278), aff'd. La. Supreme Court No. 41453, November 6, 1953; Mississippi, Stone vs. Robinson, 69 S. 2d 206 (Miss., 1954); Ohio, Ex Rei Nagy vs. Alvis, 152 Ohio State 515, 90 N. E. 2d 582; see also, Ohio, Ex Rei Eiknbary vs. Smith, 39 Ohio Ops., 84 N.E. 2d 918 (1950); New York, Ex Rei Rankin vs. Ruthanzer, 304 N.Y. 302,107 N.E. 2d 458 (1950); Washington, Peers vs. Smith 31 Wash. 2d, 52, 195 P. 2d 112, Cert. den., 335 U.S. 834 (1948).
In addition, two circuit courts of the United States have passed upon the constitutionality of the Compact. See U.S. Ex Rei MacLaine vs. Burke, 200 F. 2d 616, 3d Circuit, 1962, Peers vs. Smith 175 F. 2d, 9th Circuit, 1945, Cert. den.,
338 u.s. 838.
I find the reasoning in these cases entirely applicable to Georgia Law and believe if the question were ever presented to our Supreme Court, they would decide in accord with the Supreme Courts of other jurisdictions.
With regard to the specific question which you asked, I believe that you are concerned with the application of a portion of the Uniform Criminal Extradition Act, which is codified as Chapter 44-4 of our Annotated Code. Section 44-411 provides:
"44-411. No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel ."
Under Section 44-9901, any officer who delivers to the agent for extradition of the demanding State a person in his custody in willful disobedience to the above quoted Code Section shall be guilty of a misdemeanor. However, I am of the opinion that neither of these code sections are applicable in the present situation. Under Section 3 of the Interstate Compact quoted above, the provisions of the extradition law of the State are expressly waived by Georgia with reference to this individual. Since these are the only criminal provisions concerned, I am of the opinion that you would be violating no law of the State of Georgia in turning Clarke directly over to the agents of the State of Maryland for return to that State. Cf. Columbo vs. Robins, Rhode Island Superior Court, MP No. 3038, March 4, 1952.

PRISONS AND PRISONERS-Public Works Camps

A county may lease property for a public works camp, and it is not necessary that the State acquire fee simple title to such property.

Honorable J. M. Forrester

December 12, 1958

Receipt is hereby acknowledged of your letter requesting my advice with respect to a proposed leastll of land to Gilmer County, to be used for the purpose of a site for a county public works camp.

255
The Code, 77-312 (1957 Supp.) provides as follows: "(a) Subject to provisions hereinafter stated, any county may pur-
chase, rent, establish, construct and maintain a public works camp for the care and detention of all prisoners assigned to it by the State Board of Corrections, and such county may contract with other counties relative to the joint care, upkeep and working of such prisoners in said counties, and said counties may each pay their pro rata share of such expenses by taxes assessed and levied as now provided by law.
"(b) All public works camps established by the counties as herein provided shall be subject to supervision and control by the State Board of Corrections, and said board shall be subject to supervision and control by the State Board of Corrections, and said board shall promulgate rules and regulations governing the administration and operation thereof.
"(c) Each County establishing a county public works camp which complies with the rules and requirements established by the Board of Corrections and is approved by such Board shall receive a quota of prisoners in accordance with such methods of appointment as may be established by said Board. The State Board of Corrections is hereby given the authority to withdraw all prisoners from any camp which does not at any time meet the requirements of the board or comply with its directions."
It is, therefore, obvious that the law expressly authorize the county to rent t public works camp, and does not require it to obtain fee simple title as do the >Olicies applicable to property acquired and institutions conducted by the State, tself.
However, the terms of any lease or other arrangement made by the county 'or the purpose of a public works camp are expressly subject under the above aw, to approval and supervision of the State Board of Corrections and it is ,ntirely a matter of policy for the Board to determine as to whether the proIOsed lease is acceptable. I have no information whatever that would entitle ne to intelligently pass upon the wisdom of accepting the lease even assuming his was a question over which I have jurisdiction. Solely as a matter of legal orm the lease appears to be proper, but I have not undertaken to determine rhether or not it complies with the order of the State Board of Corrections, as he Board is better able to interpret its own regulations and orders.

'RISONS AND PRISONERS-Probation

1. When a prisoner is placed on probation, the original sentence is subject to modification by the rendering court at any time during the period of probation.
2. A suspended sentence has the effect of placing a prisoner on probation.

[onorable Robert J. Carter

October 30, 1958

This will acknowledge receipt of your request for my opinion to the validity f an amended order of probation rendered by Judge Bruce of the Criminal :ourt of Fulton County in the case of State v. "A".

256

At the September 1958 term of court, "A" was:convicted on two -counts of

fraudulent checks', and''sentenced "to pay a fine of sev!lnty-five dollars1 . , . and

be put 't6 work and labor on the Public' Works . ' . for the space of six (6)

months." (emphasis supplied) .,;,

Just below the sent~nce there ~as imprinted with rubber stamp the state-

ment,:

''

.

"Sentence Susp~nded qn Payment of Fine, .and on Condition I)e-:
f,~:n,p,ant . not V~Qlate: the Laws of Georgia, and until further Order of
the Court,"

"A'' was unable to pay this fine, and entered upon service of his sentence in the prison system, when .on October 18, 1,958, at the October Term of Court, Judge Bruce, signed an "Order of Probation" on a standard probation form utilized tby the. State Probation System.: This form,. in. .effect, .undertakes to amend the original sentence. so as to relie.;ve "A" of payment of the fine, and permit him to serve the sentence on probation upon his making restitution, which as I understand it has been done.

The question arises as to whether this attempted modification is valid, in view of the fact that it was rendered after the term of court had expired at which the original sentefice was entered, the Criminal Court of Fulton County being on a monthly-term basis. Ga. Laws 1890-91, Vol. II, pp. 935, 936.

To' begin with, certain geileral observations should. be made. First,' both

the original sentence, and the sentence as amended, do not constitute "alternative sentences'~; as they provide that the prisoner serve six months and pay a

fine (in the original sentence) or make restitution (in the sentence as amended)~

Under an alternative sentence, satisfaction of one part of the sentence dis-

charges the other, whereas if thf.l.fine be unconditional, the: prisoner must satisf:y

botll provisions. Dickson v.'Officers of Court; 36 Ga. App. 341; Smith v. Jackson,

164 ~a. 188; White. v. Moland, 95 Ga. App. 402. The sentence here says "And"

not :"or'\ and is therefore unconditional, whatever may be the situation wit11

respect to the probationary feature, for under an alternative sent~ce, :paymen1

of the fine completely discharges the imprisonment feature, whiJec if1.the sentencE

is probated on condition that a fine be paid, which is d!}ne, the: ,ptisqper if

nevertheless required. to serve the sentence on probation, subjecLtp rev.ocatior

for violation .of the terms.thereof,

~ ~! i!',J

Secondly, the stamped provision on the original sentence declaring it to b' "suspended on payment of fine" rendered it a probationary sentence, irrespec tive of whether the prisoner's case was at that time referred to the probatior department or not. Code 27-2714 (1957 Supp.), found as Section 13 of' the 195l Statewide Probation Act (Ga. Laws 1956 Vol. I, pp. 27, 33), and which is simila: to the Act of 1933 (old Code 27-2706), provides as folows:

1'In all criminal cases in which the defendant shall be found guilty, er- in which a ;plea of Kllilty or plea of nole contendere shall be: entered, and the trial judge after imposing sentence shall further provide that the- execution of such sentence shall be suspended, such provision shall have the effect of placing such defendant on probation as provided in this hiw \27-2702 through 27-2721) ,"

The humane purpose of this section was to prevent abuses which aros undet. the 'oLd; law whereby so-called "suspended sentences" were held over , defendant for the rest of his life, subjecting him to repeated revocations an' imprisonment. See Aldredge v. P9tts, 187 Ga.. 290, 291 (1). Of course, exceptio!

25'1;

was made under both the 1933 and 1956 Acts with ;r:~spect to. abandonment and bastardy cases. See Code 27-2715. (1,957 Supp:.); Ga. LaW\'! 1933, p. 266;, Ga. Laws 1941, p. 481. As to .the effect pf the .1956 Statewide Probation Act on pro-

bationary sentences, see Op. Atty. Gen. 1957,, p. 207.

Third, prior to passage of the Statewide Probation Act of 1956, it was well~ established that the Court was without power to. modify' or amend a sentence after the term of rendition had expired. Long v. Stanley, 200 Ga. 239, 241; Shaw v. Benton, 148 Ga. 589 (1); Auldridge v. Womble, 157 Ga. 64; Stockton v. State, 70 Ga. App. 17. This rule was held to be unaffected or changed by enactment of the old probation law. Auldridge v. Womble. supra. Of course, during the term a sentence is subject to modification by either diminishing or increasing the punishment, Jobe v. State, 28 Ga. 235; Gobles v. Hayes, 194 Ga. 297, and this power of the court is not affected by the fact that the prisoner has already commenced service on his sentence, assuming o{ course that the term has not expired. Gobles v. Hayes, supra, but cf. Rutland v,. State, 14 (;a.. App. 746. Also, a void sentence is subject to amendmel).t anytime, or :r;nore properly expressed, the Court may at any time impose a new, valid sentence, where the prior sentence was void. Heard v. Gill, 204 Ga. 261; American Surety Co. v. State, 50 Ga. App. 777, 783; Morris v. Clark, 156 Ga. 489 (2); Hollis v. State, 48 Ga. App. 672; Mc~endon v. State, 207 Ga. 328. Simi,arly, where for some

reason the prisoner is npt sentenced at .the term of Court at which he was convicted, he may be broight back before the Court at a later term and. have sentence imposed upon,him. Davis v. State, 192 Ga. 648; Penny v. Horton, 197

Ga. 824 (2).

Since the term.o. rendition had expired in this case, and silwe .the amendment was not to correct a void sentence, the only question remaining is whether or not the 1956 Statewide Probation Act h~s alter,eqc tl,lis rule.

Section 10 of the Act (Ga. Laws 1956. Vol. I, pp. 27, 32 (Code Anno., 272711), after enumerating specific terms a~d conditions which the sentencing judge may impose on probation, then d~clares:

"The enumeration of specific kinds of terms and conditions shall

not prohibit the court from adding thereto sueh other conditions as it

considers proper. The court may rescind or mopify at any time any of

the terms or conditions theretofore imposed by the court upon the pro-

bationer." (emphasis supplied).

.,

In the present case, the original sentence imposed a fine of seventy-five ($75.00) dollars, unqualifiedly, and as such, this was a pal't .of the sentence, and ~xecution can issue therefor at an;v' time, the sentence not being in the alterna;ive. Dickson v. Officers of Court;..36. Ga. App, 341:~ However, in view of the ;tamped provision on the original sentence relating to suspension upon payment )f the fine (quoted previously herein)', the sentence was thereby rendered pro)ationary in character, one of the terms of which was that the prisoner pay the :ine. Therefore, since payment of the fine was a "term or condition" of proba;ion as refl}rred to in Section 10, just quoted, it follows,. ~:t: p~iori, that it was mbject to change by the Court, although this would not. affect the right of the ;tate to collect the fine.
I therefore conclude that insofar as Judge Bruce's amendment purports to ~ermit the prisoner to serve his setence on new termi! of probation, it is valid ~nd should be given effect. Whether or not the ]fulton County authorities will mdertake to issue execution on the tine as they are fully authorized to so do .s none. of my concern. The two questions are separate and independent.

258
Of course, I wish to call to your attention the fact that the result reached here, and the holding of this opinion, is limited to situations where the original sentence imposed was a probationary sentence. I find it unnecessary to de termine what effect, if any, Section 27-2709 (1957 Supp.) may have in cases where the original sentence was not probationary.
It necessarily follows that the prisoner should be discharged to serve his sentence on probation, assuming that he has made restitution as therein required.

PRISONS AND PRISONERS-Sentences

When sentences run concurrently or consecutively discussed, and further their computation upon revocation of parole.

Honorable Robert J. Carter

June 15, 1959

This will acknowledge :receipt of your letter in which you request that I advise you as to the method of computing the sentences of prisoners who were paroled or conditionally released and whose parole or conditional release was revoked prior to February 20, 1956 where the order of revocation by the State Board of Pardons and Paroles provided that the remainder of the original sentence was to be served consecutively to sentences which had been subsequently imposed after the individual had been released from prison.
Prior to February 20, 1956, Code Section 27-2510 read as follows:
"Where a person shall be prosecuted and convicted on more than one indictment and the sentences are imprisonment in the peniteniary, such sentence shall be severally executed the one after the expiration of the other; and the judge shall specify in each the time when the imprisonment shall commence and the length of its duration."
It had been held that the proper construction of this section meant that where several sentences, either felony or misdemeanor, were imposed, they would automatically be served concurrently unless the sentences themselves expressly provided otherwise. Fortson vs. Elbert County, 117 Ga. 149. However, this rule would not apply where the sentences involved were rendered by different courts. Overtower vs. Hollis, 121 Ga. 159. In the case of Goble vs. Reese, 214 Ga. 697, 107 S.E. 2d 175 (Case No. 20317, decided February 6, 1959), our Supreme Court stated:
"The State Board of Pardons and Paroles has not had conferred upon it any power to change the sequence of sentences legally imposed by the courts."
Under these authorities, I am of the opinion that where a prisoner has been paroled or conditionally released on a sentence and such parole or conditional release has been revoked by the State Board of Pardons and Paroles prior to February 20, 1956, the prior sentence must be served concurrently with any subsequent sentence expressly provides otherwise. This is true even through the order of revocation may state that the prior sentence is to be served consecutive to the subsequent sentence. The Reese Case, supra, is a full-bench decision by our Supreme Court and the interpretation of the powers of the State Board

259
of Pardons and Paroles contained therein must be adhered to until the decision is changed or modified by the Court itself or the General Assembly. Of course, where a prisoner has been paroled or conditionally released and such parole or conditional release has been revoked by the State Board of Pardons and Paroles prior to February 20, 1956, and a subsequent sentence is imposed by a court other than the court which imposed the prior sentence, then the two sentences will be served consecutively. However, the reason for this consecutive computation is the interpretation of Code Section 27-2510 and not because of the language contained in the order of revocation of the State Board of Pardons and Paroles.

PRISONS AND PRISONERS-Sentences

Effect of receiving new sentence while on parole from previous sentence discussed.

Honorable J. M. Forrester

March 2, 1959

This will acknowledge receipt of your letter requesting my oprmon concerning the computation of sentences under the Supreme Court's recent decision in Goble v. Reese, 214 Ga. 697.
In this decision, the Courtl held that a prisoner who receives new sentences while on parole must serve such new sentences consecutively with the remainder of the parole sentence, at least where the trial judge does not make a contrary provision in the new sentences and they were not imposed at the same term of court as1 the parole sentences.
As I understand the Court's decision, where the prisoner is placed in prison pursuant to the new sentence, this ipso facto has the same effect as if parole were revoked eo instanti on the parole sentences, and these sentences must be served in full before you would be authorized to start computing the new sentences, in view of the Court's holding that prior sentences must be served first, and that the Parole Board can not change the sequence of: service on sentences.
This is true irrespective of whether or not the Parole Board ever actually issued an order revoking parole, as imprisonment of the prisoner pursuant to the new sentences, automatically has this effect. It therefore results that im~ prisonment may be pursuant to the new sentences, they do not start running until the old sentences have been served in full.
To avoid confusion, I suggest that the Parole Board adopt the following regulation:
"Where a person is convicted of new offenses while on parole or conditional release and enters any prison, public works camp or other institution under jurisdiction of the State Board of Corrections, the parole or conditional release shall automatically stand revoked as of the data such new sentences were imposed (provided the prisoner is incarcerated following such imposition) without further or specific order of revocation by the Board, unless the Board by specific order in the case makes contrary provision."
A somewhat similar provision could be placed in all paroles and conditional releases as one condition thereof.

260

PRISONS AND PRISONERS-Sentences

New sentence declaring "computed from this date", and received by prisoner having one or more outstanding sentences, is consecutive.

Honorable Robert J. Carter

March 19, 1959

Your question concerns the situation where a prisoner having one or more outstanding sentences receives a new sentence which declares to the effect that it is to be "computed from this date", etc.
Prior to its amendment, Code 27-2510 provided as follows:
"Where a person shall be prosecuted and convicted on more than one indictment, and the sentences are imprisonment in the penintentiary, such sentences shall be severally executed, the one after the expiration of the other; and the judge shall specify in each the time when the imprisonment shall commence and the length of its duration."
Notwithstanding the clear language of this statute which obviously meant ~hat several sentences would be consecutive, the Supreme Court held that unless provided otherwise therein, several sentences would be served concurrently. Fortson v. Elbert County, 117 Ga. 149; Sullivan v. Clark 156 Ga. 706; Shamblin v. Penn, 148 Ga. 592; Long v. Stanley, 200 Ga. 239, 241. While old 27-2510 by its terms applied only to felonies, it was held that the same rule would be applicable to misdemeanors under common law principles. Fortson v. Elbert County, supra.
Even where a prisoner had already commenced service on the old sentence, new sentences subsequently received were held to be convenient. Teasley v. Nelson, 164 Ga. 242, 248. However, in any case, where a sentence was imposed by a different court than the court imposing the prior sentence, it was held that the two sentences would be consecutive. Hightower v. Hollis, 121 Ga. 159. There is language in this case which is also subject to the1 interpretation that sentences imposed at different terms of the same court would be served consecutively.
In Sullivan v. Clark, supra, the interpretation placed upon 27-2510 to the effect that sentences would be concurrent was questioned, and Ford v. Ellis, 182 Ga. 344, 345, construed it to the contrary.

Such was the background existing at the time of the 1956 revision of 27-2510, which now reads:
"(a) Where at one term of court a person is convicted on more than one indictment or accusation, or on more than one count thereof, and sentenced to imprisonment, such sentences shall be served concurrently unless otherwise expressly provide therein.
(b) Where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, such sentences shall be served consecutively, the one after the other, unless otherwise expressly provided therein.
(c) This section shall apply alike to felony and misdemeanor offenses."

You will note that the above section now declares that sentences imposed at different terms or in different courts are consecutive "unless otherwise expressly provided therein." This section plainly says that to be concurrent, the sentence must expressly provide otherwise.

261
I do not believe that statements such as "to be computed from this date," standing alone, are sufficient to overcome the presumptive rule of construction created by the new statute. I recognize the rule that "Sentences for criminal offenses shall be certain, definite, and free from ambiguity, and where the contrary appears, the benefit of doubt shall be given the accused," Buice v. Bryan, 212, Ga. 508 (3), but considering the old law, the evil - all the confusion which existed prior to the 1956 Act - and the remedy to be afforded by the latter, Code 102-102 (9), I am of the opinion that such sentences as referred to in your letter should be treated as consecutive in character. This has been your uniform interpretation as well in mind since the 1956 Act was enacted, and the interpretation of officials charged with administering a law, while not binding, are entitled to great respect by the courts. Georgia Ass'n. of Osteopathic Physicians '& Surgeons v. Allen, 112 F2d 52; Howell v. State, 71 Ga. 224; Elder v. Home Bldg.'& Loan Ass'n., 188 Ga. 113.

PROFESSIONS, BUSINESSES AND TRADES-Barbers

A person not properly licensed as a barber may not instruct in a beauty show.

Mr. J. H. Parham

September 26, 1958

This is to acknowledge receipt of your request for an opinion from this office. Your letter reads as follows:
"The State Board of Barber and Beautician examiners would like an official opinion on the following question:
"Can a person teach in a beauty show, with or without compensation, without being the holder of a teacher's license issued by the State Board of Barber and Beautician Examiners?" Code Section 84-9904 of the Annotated Code of Georgia 1933 reads as follows:
"84-9904. BARBERS AND HAIRDRESSERS; ILLEGAL PRACTICE OF OCCUPATION, ETC. -If any person not lawfully entitled to a certificate of registration under Chapter 84-4 shall practice the occupation of a barber or a hairdresser, or if any such person shall endeavor to, learn the trade of a barber or hairdresses by practicing the same under the instructions of a barber or hairdresser or other person, other than as in said Chapter provided, OR if any such person shall instruct or attempt to instruct any person in either of such trades; or if any proprietor of or person in control of or operating any barber shop, barber college, barber school, beauty shop, beauty college, or beauty school, shall knowingly employ for the purpose of practicing either of such occupations any barber or hairdresser not registered under Chapter 84-4, or if any person barber or beauty college, or barber or beauty school shall instruct or attempt to instruct, in either of such trades, any person not registered, under the provisions of Chapter 84-4, or if any person shall falsely or fraudulently pretend to be qualified under Chapter 84-4 to practice or learn either of such trades, or occupations,

262
or if any person shall violate any other provisions of Chapter 84-4, he shall be guilty of a misdemeanor." It is my opinion that if any person not lawfully entitled to a certificate of registration under Chapter 84-4, shall instruct or attempt to instruct any person in either of such trades, that such person would be guilty of a misdemeanor, whether such instruction was in1 a beauty show or at any other place, and this would be true whether the instruction was with or without compensation.

PROFESSIONS, BUSINESSES AND TRADES-Chiropractics (Unofficial)

Renewal of licenses discussed.

May 6, 1958

Dr. Mattie C. Stephens

This is to acknowledge your letter in which you make inquiry as to the meaning of Code Section 84-521, which! among other things provides as follows:
"Every person who receives, or has received a license to practice chiropractic from the State Board of Chiropractic Examiners shall pay the said Board on or before .January 1st of each year and every year, beginning with the year 1940, a fee of $2, which shall renew his license to practice chiropractic for the ensuing year, provided, however, that said Board has satisfactory evidence that applicant for renewal attended at least one of the two educational programs conducted by the Georgia Chiropractic Association, during the preceding year. . ." You then ask the following questions:
"Will attendance at the International Chiropractic Association, a National Seminar of recognized merit, or a Regional Conference satisfy requirements of 84-521 in so far as educational requirements for renewal of license ?
"If the answer to the above is negative, is the attendance requirement at the Georgia Chiropractic Association educational program for renewal of licenses unconstitutional?"
In answer to your first question, the law provides that in order to renew a license the holder thereof shall pay annually a $2 fee, and that the paying of a $2 fee shall renew such license, provided the applicant has attended at least one of the two educational programs conducted by the Georgia Chiropractic Association, during the preceding year. And in answer to your first question, it is my opinion that the law is clear and unambiguous. and means exactly what it says-that the applicant must satisfy the Board that he has attended at least one of the educational programs conducted by the Georgia Chiropractic Association during the preceding year.
In answer to your second question, it is my opinion that attendance at the International Chiropractic Association, or a Regional Conference would not meet the requirements of the law, and it is also my opinion that the requirements of Code Section 84-521 do not violate any provision of the Constitution.

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PROFESSIONS, BUSINESS AND TRADES-Employment Agencies
Veterans' certificate of exemption does not relieve from payment of regulatory license fees.
July 27, 1959 Honorable Garland T. Byrd
This is in reply to your letter in which you request my opinion as to the applicability of the $100 license fee imposed by Section 2(s) of the Act to Regulate Private Employment Agencies (Ga. Laws 1959, p. 283), to. a person holding a Veteran's, Certificate of Exemption and entitled to the relief of Code Section 84-2011, as amended (Ga. Laws 1953, Nov.-Dec. Sess., pp. 431, 434).
Code Section 84-2011, as amended, authorizes certain persons to engage in business, etc., in this State "without paying a license for ~e privilege of so doing" (emphasis added). This language, indicating the benefits conferred by this section, has been used in every statute dealing with this subject matter since 1897 (Ga. Laws 1897, p. 24; 1898, p. 46; 1918, p. 116; 1919, p. 91; 1935, p. 163; 1947, p. 1152; 1953, Nov.-Dec. Sess., pp. 431, 434).
In McKinney v. Patton, 176 Ga. 719, the Supreme Court said, with reference to this language, "The Statute thus provides an exemption from liability for occupation taxes, without purporting to confer any additional right or privilege", and: held that the plaintiff in that case was not thereby entitled to be relieved of State regulation as a common carrier.
In Snipes v. Flournoy, 178 Ga. 815, the Supreme Court carried the rationale of McKinney v. Patton one step further when it held that this language did not afford any exemption or immunity from the payment of the $25 fee required in the State regulation of real estate brokers. The Court said: "The fee of $25 ... is not an occupation tax, but is regulatory in character. . ." See, also, Ham v. The State, 59 Ga. App. 872.
It appears from these cases that the exemption or immunity afforded by Code Section 84-2011 relates only to State and local occupation taxes and does not grant any exemption or immunity from State or local police regulation. See City of Mariet\ta v. Howard, 208 Ga. 719.
Other provisions of the statute indicate the scope of the exemption or immunity. For example, Code Section 84-2016 says:
"All persons eligible for a certificate of exemption to be issued by the State Revenue Commissioner shall state in their application filed with the State Revenue Commissioner the kind of business to be operated and the place where such business is proposed to be carried on, and only the business described in the application shall be exempt from the payment of State,. county and municipal business or occupation license taxes. . . ." (emphasis added). Code Section 84-2023 says:
"Exemptions from business license tax, or occupation tax, granted herein shall extend to the professions and semi-professions." (emphasis added).
Now, the Act to Regulate Private Employment Agencies (Ga. Laws 1959, p. 283) is obviously a regulatory measure, and the fee required by Section 2(s), in the context of the entire statute, appears to be in exercise of the State's regulatory powers and not in exercises of its revenue raising powers. Specific lan~uage in the statute to the effect that the purpose of the $100 fee is to pro-

264
vide funds with which the Commissioner of Labor may carry out the intent and purposes of the act, as found in Snipes v. Flournoy, is. hardly necessary when it so clearly appears from Section 2(a) that the license is a' conditon precedent to even opening for business, and that operating without a license is a misdemeanor. See Inter-City Coach Lines, Inc. v. Harrison, 172 Ga. 390, 395.
In conclusion, therefore, it is my opinion that Code Section 84-2011 does not relieve a p~rson holdip.g a Veteran'.s Certificate of Exemption from the payment of the regulatory license fee prescribed in Section 2(s) of th Act to Regul~te Private Employment Agencies.
PROFESSIONS, BUSINESSES, AND TRADES-Employment Agencies
Employment agencies must re-register under Ga. Laws 1959, p. 283.
June 22, 1959
Honorable Ben T. Huiet
This will acknowledge your letter requesting an opinion from this office in the following language:
"An opinion from you i~> requested as to whether or not all private employment agencies must file an application for a new license to operate a private employment agency in the State of Georgia after July 1, 1959, and otherwise comply with the law with respect to furnishing a new bond, paying a license fee, and such other requirements as set forth in Act No. 344 of 1959." Georgia Laws 1937, page 230, re-established the Labor Department, and Section 9 of the 1937 Act, page, 237, provides as follows:
"Section 9. DutiEls and Powers of Commissioner. In addition to such other duties and power as may be concerred upon him by law, the Commissioner of Labor shall have the power, jurisdiction, and authority:
"(f) To supervise the business of private employment agencies and employment intelligence bureaus and as frequently as may be necessary to examine into the condition of each such agency or bureau. The Commissioner shall require each agent to make application for licens~ to do business, which application must be indorsed by two taxpayers' in the county where such agency proposes to conduct business, said license to be granted by the Commissioner upon the payment to the State of such tax as may be charged, and the filihg of a bond in the sum of $500 for the faithful performance of duty, said license to be renewed annually. The Commissioner shall require each agency to report to him once a month 'in writing, showing the names, addresses and number of persons for whom positions were secured, where secured, the kind of position, the pay of same, the amount of fee collected and the amount still to be collected. Nothing in this paragraph shall authorize any employment agency or persons with such agency, or .any employee thereof, to act as an emigrant agent. If any agent shall be found to be violating th~ law, it shall be the duty of the Commissioner immediately to proceed to have such person presented to. the proper authorities for prose- 0

265

cution and to cancel the license of such agency to do business."

The above Section, of the 1937 Law is now codified in Section 54-122, subparagraph (f) of the Code of Georgia Annotated, 1958 Cumulative Pocket Part.

Gegrgia Laws 1959, page 283, regulates the operation of private employ-

ment agencies - licensing and supervision. Section 1 of the 1959 Act, subsection

(1), deals with the same subject matter as set out in the Act of 1937, and

reads as follows:

'

"(1) Every appllcation for a license shall be accompained by a bond in the sum of one thousand dollars ($1,000.00) with a duly licensed and authorized su~~ty company, to be approved by the Commissioner of Labor 'and filed in the office of the Commissioner of Labor, and shall be conditioned that the person applying for the license will comply with the provisions of this act and with the terms of each and every agreement entered into and between said person and any employee or employer, and that the applicant shall return to the employee or employer alL moneys paid out by him, as set forth fn. Section 3 of this Act, as well as any money or valuable consideration of any kind or nature taken wrongfully from or suffered by the employer or employee. 1f, at any time, in the opinion of the Commissioner of Labor, any of the sul'eties shall become irresponsible, the person holding the license shall, upon 'written notice from the Commissioner of Labor, furnish a new bond, subject to the provisions of this section. Failure to furnish a new bond within fifteen (15) days after such notice, in the discretion of the Commissioner of Labor, shall operate as a revocation of such license and license shall, thereupon be returned to the Commissioner of Labor, who shall revoke same.

"(j) There shall appear on the license the name of the licenses, the location of the office where the elnployment agency is to be conducted, the name of the' person who is to be charged with the general management, the name under which the employment agency is to be carried on."

Section 3 of the Act of 1959, which is numbered "Section 2" in the Act, provides as follows:

"Section 2. (s) Every applicant for a license under this act shall pay an annual license fee of $100.00 upon issuance or renewal of .said . license, beginning on or before July 1st, 1959, and annually thereafter;''

It is clear there is a material conflict between the Act of 1937 and the Act of 1959, particularly as to bond and payment of fees. Of course, the Act of 1959 sets out many other regulations for private employment agencies which are not mentioned in the Act of 1937.

There being material confficts between the Act of 1937 and the Act of 1959, it is my opinion that the Act of 1959 prevails and must be complied with before a'.person can be authorized to operate a private employment agency.

It is further my opinion that the Law of 1959 requires every person who desires to operate an employment agency after July 1, 1959 to procure a new license, give new bond, and pay the fee required by the Act of 1959 above r~ferred to. It\ is my opinion that persons operating private ~tnployment aiencies after July 1, 1959 would be subject to all of the laws and regulationil set out in said act above referred to.

266

PROFESSIONS, BUSINESSES, AND TRADES-Foresters

Granting of license by reciprocity discussed.

Mr. Robert Dixon

March 10, 1959

This will acknowledge receipt of your letter requesting my opmwn on the question as to whether or not you would be authorized to grant a professional forester's license by reciprocity to a person licensed in one state, but, residing in another state which does not have a forester's registration law.
Under Section 6 of H.B. 92, recently passed by the Georgia General Assembly at the 1959 Session, but which has not yet been signed by the Governor, the granting of a license by reciprocity has no relation to the state in which the licensee resides. Section 18 (a) as amended provides as follows:
"(a) Any nonresident of Georgia, or any person within six months after becoming a resident of Georgia, who has been licensed as a registered forester under the laws of another state, may be licensed and registered under the laws of Georgia by reciprocity without having to qualify under the other provisions of this Act subject to the following conditions: (1) That the requirements and qualifications. for licensing and registration under the laws of the state in which such person is licensed are substantially equivalent to those of Georgia, to be determined by the Board. (2) That such state permits licensing of foresters registered in Georgia or terms substantially equivalent to those in this Section, to be determined by the Board. (3) Notwithstanding the foregoing, the Board may decline to license by reciprocity any such person on an individual basis where the Board determines that such applicant does not possess good character, has been guilty of fraud in making application under the laws of Georgia or of any other state, or where the Board determines by examination or otherwise that such applicant is not in fact qualified to become licensed as a registered forester."
Under the terms of the above, the only question for consideration where a licensee from another state has made application for registration in this state is whether or not the state in which he is licensed permits "licensing of foresters registered in Georgia on terms substantially equivalent to those . . . [in Georgia]".

PROFESSIONS, BUSINESSES AND TRADES-Landscape Architects

Who may be included under Landscape Architects.

Mr. C. L. Clifton

November 18, 1958

You request my opmwn as to whether or not the following are entitled to a license under the Landscape Architect Law (Georgia Laws of 1958, Volume One, pages 400-407) if they are otherwise qualified: Architects, Civil Engineers, Landscape Contractors, City Planners, Landsurveyors, Agriculturist, Horticulturist, Foresters, Nurserymen, Gardeners, Landscape Gardeners, Garden and Lawn Caretakers, Graders and Cultivators of land. You ask the further ques-

267
tion: "May the Board refuse to issue licenses to the foregoing."
Section 9 of the .Act in question provides that the Act does not affect any laws relating to architects, civil engineers, landscape contractors, and city planners. It also provides that architects or civil engineers, who are certified to practice their profession in Georgia are exempt from registration under the provisions of the Act in question.
Section 9 also exempts landscape contractors from registration under the provisions of the Act in question. It also exempts, a city planner, every agriculturist, horticulturist, forester, nurseryman, gardener, landscape gardener, garden or lawn caretaker, and grader or cultivator of land.
The Act also provides that none of the foregoing enumerated professions or occupations can use the! title "Landscape Architect" without complying with the provisions of the 1958 Landscape Architect Law. This merely means that this title cannot be used by any person without complying with) the provisions of said Act, but it does not prevent the named persons from carrying on the occupation or profession.
However, if a person who is within one of the above exempted categories desires to obtain a license to use the title "Landscape Architect," he must comply with the provisions of the 1958 Act upon the same basis as all other persons except that they may be further exempted from any examination for a license by following the provisions of Section 18.
Section 18 of the 1958 Landscape Architect Law provides that any person over the age of twenty-one (21) years and of good moral character, who submits evidence to the board that for not less than one year prior to the passage of this Act, he has regularly engaged in the practice of landscape architecture as a principal livelihood, as defined in said Act, shall be entitled to receive without examination, a license to practice landscape architecture, if he filed such application within six months after March 25, 1958. This Section further provides that '.he application shall be accompanied by a twenty dollar ($20.00) exemption fee in lieu of examination, and the fee for an original license.
Any person who shall have mailed his application to the Board of Landscape Architects or to the Joint Secretary of the State Examining Boards within six months from March 25, 1958, and who meets the qualifications contained in Section 18 would be entitled to a license to practice landscape architecture without examination, and it would be mandatory upon the Board of Landscape Architects to issue said license within a period of time which would normally be required for the processing of such application. The Board would not be authorized the withholding of the issuance of such license for a longer period than necessary for a normal processing of such application.
It is my understanding that sworn affidavits are required as to the moral character, and the one year period of which the applicant states that he had been regularly engaged in the practice of landscape architecture as a principal livelihood, and tha~ these are filed with the application as provided under Section 18 of the Act in question. It must be borne in mind that any such sworn documentary evidence is the only evidence before the Board of Landscape Architects, and that hearsay, second or third hand information would not be sufficient to deny the granting of a license under said "Grandfather Clause".

268

PROFESSIONS, BUSINESSES AND TRADES-Nursing

Wearing of insignia "RDN" alone is not necessarily a violation of the Nurse Practice Act.

Miss Genevieve Phillips, R.N.

January 27, 1959

This is to acknowledge receipt of your letter which reads as follows:
"Enclosed is information that has circulated to doctors' office nurses nurses in Georgia. The Board of Examiners of Nurses for Georgia would like a ruling on this as to whether or not any part of this is in violation of the nurse practice act."
The enclosed information attached to your letter seems to concern an organization known as "American Registry of Doctor's Nurses," and this organization sends out literature encouraging people to register with their association for a certain fixed fee, and states that those who have as much as six month's training will be issued a pin bearing the letters "RDN", which is supposed to stand for "Registered Doctor's Nurse". They say this will distinguish these people who are registered from other people wearing similar uniforms.
Regarding the question of whether or not the use of the pin, or the advising and encouraging and wearing of the same would violate the practice of the nurse practice act, you are referred to Code Section 84-1012 which reads as follows:
"It shall be unlawful for any person or persons to practice as undergraduate nurse without a, certificate from said Board of Examiners, except in hospitals. Each licensed undergraduate who registers in accordance with the provisions hereof shall be styled and known as a licensed undergraduate nurse, and no other persons shall assume or use such title, or use the abbreviation ''L.U.N." or other letters, words or figures for the purpose of representing that he or she is a licensed undergraduate nurse within the meaning of this Chapter." Code Section 84-9915 reads as follows:
"Nursing without certificate from Board of Examiners. - It shall be unlawful for any person or persons to practice professional nursing as a graduate nurse or registered nurse without a certificate from the Board of Examiners of Nurses for Georgia; and person violating any of the provisions of Chapter 84-10 shall be guilty of a misdemeanor, and upon conviction thereof shall be punished in accordance with section 27-2506." Code Section 27-2506 provides the penalty for a misdemeanor, which shall in no case be more than eighteen (18) months in prison, and a $1000.00 fine, or both. Code Section 84-9916 reads as follows:
"Registered nurse, unlawfully claiming to be. - Each graduate nurse who registers in accordance with the provisions of Chapter 84-10 ehall be styled and known as a registered nurse, and no other nurse shall assume or use such title, or use the abbreviation "R.N." or any other letters, words or figures to indicate that he or she is a graduate or registered nurse; and a violation hereof shall be deemed a misdemeanor."

269
The wearing of the badge "RDN" alone and of itself, would not be a violation of the law. It would be a violation of the law to wear such insignia for the purpose of representing that the wearer thereof was a licensed undergraduate nurse. It would also be a violation of the law if a person wearing such insignia did so for the purpose of indicating that the wearer of such insignia was a graduate or registered nurse.
It would be a question of fact to be decided by the jury as to whether or not the wearer of the insignia "RDN" violated the law. In order( to sustain a conviction, however, it would be necessary to prove that the wearer of such insignia did so for the purpose of deceiving the public into believing that the wearer was a licensed undergraduate nurse, or that the wearer was a graduate registered nurse.
It is, therefore, my opinion that the wearing of the insignia "RDN" alone and of itself would not necessarily violate the nurse practice act.

PROFESSIONS, BUSINESSES AND TRADES-Real Estate'

Reinstatement of Real Estate Broker license.

Mrs. Annelle S. Johnson

April 20, 1959

This is to acknowledge your letter which reads as follows:
"I have been requested by the Chairman of the Georgia Real Estate Commission to request of you an official opinion on the following facts:
"John Doe for many years held a real estate broker license. He herefore failed to pay his broker fees but obtained a salesman's license and the last several years was licensed as a real estate salesman.
"QUESTION: Would the Georgia Real Estate Commission be authorized under the law to reinstate John Doe's broker license?"
It is my opinion that since John Doe did not retire from the real estate business, but remained in the business as a real estate salesman, thl}.t the Georgia Real Estate Commission would be authorized to reinstate John Done's broker license upon proper application and upon payment of current license fee.

PROFESSIONS, BUSINESSES AND TRADES-Used Car Dealers

Act creating State Board of Registration of Used Car Dealers discussed.

Mr. John S. Hood, Jr.

March 4, 1959

This is in reply to your letter requesting certain opm10ns relating to the law governing the State Board of Registration of Used Gar Dealers.
In your letter you refer to portions of Code Section 84-101 (Act of 1931, as amended, and 1937) and Section 5 of the Act creating the State Board of Registration of Used Car Dealers, which is now Code Section 84-3905 (Pocket

270
Supplement). Based on these two Code Sections, you ask the following two questions:
1. Does the Joint Secretary have any powers other than, or in addition to, those set out in the Sections above referred to?
Answer: It is my opinic>n that the duties and powers are plainly set forth in the Sections above referred to and the answer to your first
question is "No".
2. What does "and his office shall be maintained under the supervision of the Secretary of State" in Section 84-101 mean?
Answer: This language clearly means that the Secretary of State shall supervise the office of the Joint Secretary.
Your next query is whether the Secretary of State, (supervising the .Joint Secretary's office), or the Joint Secretary has any power or authority superior to the lawful directives of the Board as defined in the Used Car Dealers~ Registration Act.
Answer: It is my opinion that they do not.
You then cite paragraph (c) of Section 8 of the Used Gar Dealers' Registration Act and ask whether the word "may" used therein provides that it is permissive for the Board to consider renewal applications for approval or rejection under the lawful powers and regulations of the Board.
Answer: It is my opinion that the Board does have authority to consider renewal applications for approval or rejection.
You next ask under what provisions may the Board refuse to issue a renewal license.
Answer: It is my opinion that the Board may refuse to issue a renewal license under. the provisions of Section 11 and 12 of the Used Car Dealers' Registration Act.
Your next inquiry is as to what course the Board can take, other than prosecution, to obtain license fees for last year, from an applicant this year, who did not apply for a license last year.
Answer: It is my opinion that there are no provisions of law in the Act creating the Board to require an applicant to pay a fee for a 1958 license he did not receive.
You next ask whether the Board may accept or keep 1958 application fees where no licenses were issued during the year because of neglect or procrastination in making application therefor on the part of the applicant.
Answer: It is my opinion that unless a license is issued during the year in which application is made, the State would not be entitled to the fee.
You next ask whether the minutes of the Board are public information and whether the Board can instruct the Joint Secretary to not release the minutes and records of the Board.
Answer: It is my opinion that the written and recorded minutes of the Board meetings are public records and are open to public examination. The Board is without authority to prohibit the public from examining such records.
Your last question is as follows:
"May the Board use the authority to penalize without prosecuting as stated

271
in the caption of the Act, plus the provisions of (d) and (e) paragraphs of Section 7 in dealing with the persons who apply now, in 1959, for licenses and should have applied last year also. Furthermore can we use, the same in applying for their 1959 licenses?"
Answer: It is my opinion that the Board may use, in addition to its authority to revoke, suspend or refuse licenses, the injunctive remedy provided for in Section 14 of the Act to enjoin any violation of the provisions of the Act. Violators ure also subject to prosecution under the misdemeanor provisions of the Act.

PROPERTY-Condemnation-Damages

Damages to personalty.

April 29, 1958

Honorable Roy F. Chalker

Your letter requesting that I supplement my opinion of July 10, 1957, dealing with damage to personal property by the taking of real estate on which that property is situated, so as to make that opinion cover the cost of moving personal property in its relation to the value of land taken or damaged for right of way purposes, has been received.
I am of the opinion that the cost of moving personal property from real estate which is taken for public purposes cannot be considered as an element of damage, as such. However, I am of the opinion that the cost of removal of either fixtures, buildings, or personalty, especially when used for business purposes, may be considered as one of the factors entering into a determination of the value of the real estate to the condemnee from whom it is taken.
To explain the above statement, I point out that ordinarily, when an entire parcel of property is taken, or an entire leasehold interest is taken, the measure of the damages is the "market value" of the land or leasehold interest as the case might be. Market value has been defined as the price which may be paid by one wishing but not required to buy, to one wishing but not required to sell.
While this is a general rule, a number of appellatE!) cases in Georgia have held that it is not always the rule. As an example, I refer to the case of Housing Authority of Savannah v. Savannah Iron & Wire Works, Inc., 91 Ga. Appeals 881. The third headnote of that case reads as follows:
"The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the pecuniary loss sustained by the owner, taking into consideration all relevant factors. Ordinarily this loss is represented by the fair market value of the property interest taken, but it may be fair and reasonable value of the property taken if in fact the market value would not coincide with the actual value thereof. Accordingly, the charge, of the trial court on the measure or recovery in this case was not error for any reason assigned." In the discussion of this headnote, the appellate court approved a charge by the trial court reading as follows:
"I further charge you, gentlemen, that the Constitutional provision

272
as to just and adequate compensation does not necessarily restrict the lessee's recovery to market value. The lessee is entitled to just and adequate compensation for his property; that is, the value of the property to him, not its value to the Housing Authority. The measure of damages for property taken by the right of eminent domain, being compensatory in its nature, is the loss sustained by the owner, taking into consideration all relevent factors."
One of the relevent factors in the case then before the Court was that the business of the condemnee required special fixtures and buildings, which added little or nothing to the general market value of the tract 1taken, but had a very special value to this condemnee engaged in this special business; which fixtures and buildings had to be duplicated at some other location in: order to enable the condemnee to continue his business.
It is my opinion that where the word "lessee" is used illj the above charge of court in the particular case, the word "owner" could be/ substituted, where the fee, rather than the leasehold, was taken. I can see no difference between "the value of the property to him" when referring to a lessee or when referring to an owner.
Obviously, where any special purpose fixtures or buildings or stock piles of materials are presently located on a tract of land which have a special value to the occupant of that land (whether owner or lessee) but add nothing to the "market value" to the general public, the rule laid down in the Savannah Wire case applies.
I can see no reason why it should not equally apply where thE!! special value consists of stored scrap metal, for instance, which must be moved to another location at great expense if the real estate is taken.
A pile of scrap iron or scrap brass has a definite market value on any given date f.o.b. in the city of its location. This pile or store of scrap metal presently located on a tract desired for a right of way would be worth no more inl a location several blocks away; yet it would take a substantial sum to transport that pile of scrap metal from the location which is taken "at gun point" by the exercise of the power of eminent domain to another location which the former owner must find.
And applying the above reasoning, each case must stand on its1 own bottom. A stock pile of material or a large stock of goods continuously held for sale, the maintenance of this stockpile being< necessary to the operation of the business, is on a different footing from moving a tenant's household goods from one residence to another. In the latter case, the value of the property as a residence would more nearly approximate its "market value" as defined above; and the rulings concerning special use would have no application.
I repeat that the expense of removal of personal property, fixtures or buildings, would be only one of the factors which might relate to the special value to the present occupant.

273

PROPERTY-Condemnation-Valuation

Valuation of condemned property when buildings are involved.

Honorable Roy F. Chalker

January 20, 1958

I have your letter posing the question of the proper valuation methods which should be used by the assessors or the jury in arriving at a fair valuation for right of way condemnation purposes.
Your hypothesis is that the area taken for right of way intersects a building on the tract involved, i.e., a portion of the building lies on land which is taken, and a portion of the building lies on land which is not required not taken for right of way purposes.
You further state as a hypothesis that the value of the whole building is $10,000; that the cost of removal from its present location to another on the land of the condemnee is $3,000; but that the condemnee does not wish to negotiate the removal of the building to another location on his land.
You ask the question "May we move the building off the right of way onto other property of the condemnee and pay for such removal?"
The answer to this question is "No". A condemnor may not enter upon other land of the condemnee for the purpose of putting the building on such land without the condemnee's consent, or without condemning some easement or interest therein.
You ask the question "May we sever that portion of the building which extends upon the right of way?"

The answer is that in some instances it may be done, and in some instances it may not. If it is practicable to do so without destricution o1, the building, the answer is "Yes';. If severance would result in destruction, th~n obviously, the measure of damage, to the building is its full value.

Your other question is, which of the two figures - the $3,000 or $10,000 is to be used in arriving at the value?

The answer to that is, that the measure of the damages in a condemnation case is the value of that property which is taken and the consequential damages to that part of the property which is not taken. In the instance hypothecated above, it might be that neither the $3,000 or the $10,000 would be the accurate measure of damage.
Of course the value of the land taken in your hypothesis is the same in either instance. The difference would lie in the valuation of the land which remains after condemnation, as compared with the value of that fragment of land (not taken, of course) before the condemnation was commenced.
In considering this "damage", the assessors or jury would be bound to deduct from the whole damage, any increase which might result from the improvement respecting the sales value or market value of the tract not taken.
Therefore, your question cannot be answered in the forms proposed. The assessor's or jury must take all of the factors I have mentioned under consideration.
In at least one instance recently a building was severed successfully following a condemnation which encompassed the circumstances you outline, to wit, the intersection of a building by the line drawn between the, land taken and the land not taken.
In other instances it might be impossible to so sever the building and the

!74
whole building would be destroyed. In that case, the value of the land (without the building) taken would be charged against the condemnor. The true market value of the remaining portion of the condemnee's land (without the building, of course, it being destroyed) would be compared with the value of that tract before taking.

PROPERTY-Deeds-Requisites (Unofficial)

Form and requisites of deeds discussed. Mr. Maurice D. Arnold

August 10, 1959

I )lave this date received your letter in which you request information concerning the title system used in the State of Georgia.
In response to your questions the following information is offered. Title search by a private company is not necessary in the State of Georgia althougt there are several title companies that furnish this service and insure titles for a fee. Many attorneys, however, also search titles and of course guarantee that the title, if approved by them, is good legal title. Therefore, either method is acceptable in this State, each being responsible for the work for the clear title if submitted as, such. Georgia law also states various statutory provisions for adequate procedure, form, and notice statutes which may be found in the following Code Sections: 67-2501, 29-401, and 29-402 to 29-404. These are our recording statutes and are self-explanatory.
Deeds in the State of Georgia do not have to be submitted on a standardized form so long as the basic components' of a deed are present. ~This is covered in Code Section 29-104 which reads as follows:
"Form of deed. - No prescribed form is essential to the validity of a deed to lands or personalty. If sufficient in itself to make known the transaction between the parties, no want of form will invalidate it. (Acts 1768, Cobb, 163. Acts 1785, Cobb, 164.)"
Deeds in the State of Georgia are recorded at the county level and since no form is needed as is pointed out by Code Section 29-104 the only problem is to determine whether or not the requisites of a deed are satisfied. I also invite your attention to Code Section 29-101 which reads as follows:
"Requisites of a deed to lands. - A deed to lands must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or someone for him, and be made on a valuable or good consideration. The consideration of a deed may always be inquired into when the principles of justice require it. (Act 1785, Cobb, 164.)" Thus, we see that if these requisitions are satisfied, no form is necessary.
I might point out that Georgia, of course, has the Torrens Act which protects against prescription and in most other areas is similar to the law of other jurisdictions insofar as deeds are concerned. The only poin1J I would make is, of course, the extreme care that must be exercised in the interpretation of various recording statutes as you are aware that there are several different types in these United States such as race notice, pure notice, etc. The Code Sections that I have quoted for you and the others which I have made reference, to should properly cover these points.

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PROPERTY-Deeds-Witnesses (Unofficial)

Attesting witnesses are not required to imprint seal upon deeds, or document witnesses.

Mr. Dudley F. Williams

September 30, 1959

You asked if the acknowledgement of a, Justice of the Peace on a quitclaim deed, without affixing his seal thereto, is a valid acknowledgement under the laws of Georgia.
Georgia statutes provide that in order for a deed to be eligible to be recorded it must be witnessed by. two persons, <me of whom to be a judge of a court of record (including a judg~ of a municipal court), a justice of the peace, a notary public, a clerk or deputy clerk of the Superior Court or of a city court created by Special Act of the General Assembly. Georgia statutes do not require that the. attesting officer imprint his seal upon the document witnessed.

PROPERTY-Landlord and Tenant (Unofficial)

Effect on tenancy by death of landlord who was owner of only a life estate.

Honorable Hendrix Rowell

March 24, 1958

This will acknowledge receipt of your letter in, which you asked if Georgia has a statute which provides that one in possession of farm property under a lease from a life tenant can remain in possession of said property until all crops are gathered, regardless of the date during the year upon which the life tenant's interest was terminated by death.
Section 85-607 of our Code of 1933 reads as follows: "85-607. Rights of renter from life tenant upon termination of life
estate. - If the tenant for life rents the land for the year, and the life estate is terminated during the year by his death or otherwise, the tenant shall be entitled to the land for the term of the year upon complying with his contract with the tenant for life." This Code Section first appeared in the laws of Georgia as Section 2238 of the Code of 1863. At that time it read as follows:
"2238. If a tenant for life hires out a slave or rents the land for the year and dies or the estate is otherwise terminated during the year, the hirer shall be entitled to slave and the tenant to the land for the term of the year upon complying with his, contract with the tenant for life."
Section 2232 of our Code of 1868 deleted the provisions of this Section relating to slaves, but otherwise retained thei substance of it. The Section appears without substantial modification as Section 2258 of our Code of 1873, Section 2258 of our Code of 1882, Section 3093 of our Code of 1895 and Section 3669 of our Code of 1910. The Code Section does not appear to be part of the common law> but is based upon "an Act to improve the law of landlord and tenant in

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relation to emblements to growing crops 'seized in executioll( and to agricultural tenant's fixtures" assented to July 24, 1851, 14-15 Viet., Chapter 25. Section 1 of that Act provides "that where the lease or tenancy of any farm or lands held by a tenant at rack rent shall determine by the death or cesser of the estate of any landlord entitled for his life or for any other uncertain interest, instead of claims to emblements, the tenant shall continue to hold and. occupy such farm or lands. until the expiration of the then current year of his tenancy and shall then quit, upon the terms of his lease or holding in the same manner as if such lease or tenancy were then determined by the effluxion of time or other lawful means during the continuance of his landlord's estate; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant's lessor would have done if he had been living' or had continued the landlord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of cesser of the estate of such predecessor or lessor to the time of the tenant so quitting, and the succeeding landlord or owner and the tenant respectively shall, as between themselves and as against each other, be entitled to all the benefits and advantages and be subject to the terms, conditions and restrictions to which the preceding landlord or lessor and such tenant respectively would have been entitled and subject in case the lease or tenancy had been determined in the manner aforesaid at the expiration of such current year: Provided, always that no notice to quit shall be necessary or required by or from either party to determine any such londing and occupation as aforesaid."
You might find the construction of this Code Section by our Court of Appeals in the case of Story vs. Butt, 2 Ga. App. 119, 58 S. E. 388 (1907), of interest.

PROPERTY_;Personalty

The constitutional prohibition against taking property without adequate compensation applies to personalty as well as realty.

Honorable Jim L. Gillis, Sr.

July 22, 1959

I acknowledge receipt of. your letter to which you attach letters from J. S. CalLand C. W. Enfield of the Bureau of Public Roads.
As I understand the inquiry, justification is sought for the use of State funds to remove stocks of merchandise or other items of personal property from parcels of real estate which are acquired for right-of-way purposes.
We have no adequate appellate decisions on this subject in Georgia, however, the constitutional provision! incorporated in Section 2-301 of the. Code, the last sentence of which reads as follows:
"... Private property shall not be taken, or damaged, for public purposes, without just and adequate . compensation being first paid.", . refers to the taking, or the damaging: of property. The word "property" in my opinion, includes personal property as well as real property.
When a parcel of real estate used for business purposes is taken for right~ of-way purposes, either by negotiation or by condemnation, it is obvious that

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certain -personal' prc:>perty, such as floor fixtures, show cases, office furniture, file cabinets and the contents thereof, as well as the stock of goods, or warehoused merchandise, has a value in place.
This value in place is, to the person who is <'onducting the business operation, obviously greater than it is when deposited 011; the sidewalk, for instance.
The business records and information which are contained in the files; the books of account; the display cases and, counters; the inventory and disPlayed merchandise is of far more value than it would be if the same 'material was placed helter-skelter in a room.
Removing that merchandise to some other place, or displacing it from where it is, obv,iously causes damage to that personal property.
as This damage must be measured is other damage, and that damage is to
the value of t:hat property to the owner as it was when the State Highway Department displaced .him. That value may be. and in .most cases, is much greate~ to the ;9ne who. pas been conducting the b~siness than is its resale value.
.The cost of transferring these articles to a new location wher~ the business may be again conducted can not be charged as such.
Dbviously, however, the reasonable cost of such moving may be evidence which is illustrative of the damage to the property, meaured as of that particular owner. 'Therefore, the cost: of such' moving should be ascertained and estimated, either when arriving at a value for negotiation, or when determining evidence of a value in condemnation case.
I, therefore, conclude moving cost may not be paid as such" But the cost :bf moving may in many instances, be evidential as to, or illustrative of, the damage done to such personal property by the taking.
And under the clear language originally quoted, such damage must be paid by the authority which so takes it for public purposes. ,
I trust that this will enable you to advise Mr. Enfield and Mr. Call of our position in the matter.

PROPERTY-Purchase by Federal Government

Consent of the Legislature is required for purchases of property within the State by the United States Fish and Wildlife Service.

Honorable Fulton Lovell

June 25, 1959

I am in receipt of your letter in which you ask if the State of Georgia now has a' statute consenting to the purchase of lands within the State of Georgia by the United States, Fish and Wildlife Service.
In answer to tP,e above, I quote from Georgi11 Code Annotated, Section 15;304 as follows:
"15-304. The consent' of the State is hereby given to the acquisition by the United States by purchase, gift or exchange, or by condemnation according to law, of only such lands as may be contracted, proposed, or offered for sale in writing by the ostensible owner to the , Vnited States, in which the owner consents to such condemnation, of

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such lands in all those counties in the northern and central portions of the State south to and including the following counties: Stewart, Webster, Marion, Taylor, Upson, Monroe, Jones, Putnam, Green, Taliaferro, Wilkes, Jasper, Elbert, Warren, Hancock, Oglethorpe, Dodge, Treutlin, Laurens, Butts, and Richmond, and in and around the Okefenokee Swamp as in the opinion of the State and Federal Governments may be needed for the establishment, consolidatiCin, or extension of national forests, forest experiment stations or wildlife sanctuaries in the State, and also rights of way and land on which to build roads, highways and bridges in the Ok8fenokee Swamp, and rights of way and land on which , to build roads, highways and bridges to connect said swamp roads with other highways, or for any development purposes best suited on these lands to be acquired by the Umted States: Provided, that the State shall retain concurrent jurisdiction with the United States in and over such lands in so far as civil process is concerned in all cases, and such criminal process as may issue under the authority of the State against any person charged with the commission of any crime without or within said jurisdiction may be executed thereon in like manner as if this law had not been enacted: and Provided, that in all condemnation proceedings the rights of the Pederal Government shall be limited to the specific objects set forth by laws of the United States in regard to national forests, wild-life sanctuaries, and rights of way on which to build roads, highways and bridges."
The above gives the consent of the State of Georgia to the acquisition by the United States of lands in designated areas. I am further of the opinion that land in other than the designated areas could not be acquired prior to the consent of the State of Georgia by the Legislature.
In this connection, I refer you to 16 U.S.C.A., Section 715f relating to the expending of funds, by the United States, received from the sale of duck stamps, which reads:
"No deed or instrument of conveyance shall be accepted by the Secretary of the Interior under sections ... of this title unless the State in which the area lies shall have consented by law to the acquisition by the United States of lands in that State."

PROPERTY-Realty

Methods of acquisition by State discussed.

Honorable C. E. Gregory

November 3, 1959

This will acknowledge receipt of your letter in which you ask that I approve steps that Mr. Stephen Pace proposes to take to clear title to a tract of land that the Georgia Historical Commission is interested in acquiring.
The facts as related are that on the 12th day of May, 1911, six grantors conveyed by a deed to four ladies1 "in trust" for the Council of Safety Chapter, D.A.R., a tract of land in Lee County, Georgia. The four named ladies at that time were officials of the Council of Safety Chapter, D.A.R. It now appears

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that two of these ladies are deceased and the other two are outside the State of Georgia and are incapable of acting or understanding. The local D.A.R. Chapter is still active and operating and has had possession of this tract for forty-eight continuous years.
Mr. Pace proposes that the State acquire title in the following manner:
(1) Have the local D.A.R. Chapter to hold a formal meeting and, by resolution reciting all the facts, appoint fonr new trustees and give them express authority to convey title to the site to the State of Georgia;
(2) At the same time have: the local Chapter, by resolution, authorize and direct its Regent to execute a deed to the site to the State of Georgia, therein disclaiming all right, title and interest in the site;
(3) Have the new trustees and the Regent to execute and deliver such two conveyances to the State of Georgia.
These steps in my opinion would be entirely adaquate for the State to acquire title to the desired property.
It is obvious that a trust resulted and that the D.A.R. Chapter has the entire beneficial interest in this tract of land. Therefore, if the preceding steps are taken, there could never be any question as to the State acquiring title to the property.
After the preceding steps are followed, if the tract of land warrants it, it it might be desirable for the Commission to decide whether or not it would like to have this tract of land title insured by a title company. If the cost is not inconsistent with the value of the land, it might take the appropriate action so that in the event anyone should ever question the title, the Historical Commission would be fully protected. This last step I do not recommend but only advise you that it could be done if the facts warrant it.

PROPERTY-Realty-Sale.

Disposition from sale of an "Estate for years". Honorable Jack M. Forrester

May 14, 1958

Receip1J is hereby acknowledged of your letter of May 13, 1958, requesting my opinion on the question as to whether the State or Lee County is entitled to the proceeds derived from the sale of pulp wood by the Lee Prison Branch. This pulp wood was taken from lands belonging to Lee County, but under a 20 year lease to the State for use in conjunction with farming operations of the Lee Prison Branch, and was made available by reason of clearing work being conducted by prisoners to render the land suitable for cultivation.
The lease in question expressly declares that it creates an estate for years rather than a mere landlord-tenant relationship. Cf. Code 61-101.
I am of the opinion that the question you pose is controlled by the case of Higgins v. State, 58 Ga. App. 480, where it was held that a tenant for years, as an incident to clearing land for cultivation, could sell the timber derived from such clearing, although it was recognized that a tenant could not cut timber merely to sell or dispose of it for profit. See also, in accord, 51 C. J. S. 1029, 342; 32 Am. Jur. 206, 222. Therefore, the State, not Lee County, is entitled to the proceeds from the sale of the pulpwood.

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PROPERTY-State-Conveyance

Conveyance of property to County Board of Education by Board of Regents authorized.

Honorable L. R. Siebert

June 22, 1959

This will acknowledge receipt of your request concerning the authority of the Board of Regents to convey to the County Board of Education of Walton County certain property which was formerly known as the Monroe, Georgia Vocation Trade School.
Section 32-141 of the Annotated Code of Georgia reads as follows: "32-141. All properties owned or held by the Regents of the uni-
versity system of Georgia pursuant to this Title which in section 32-139 are declared to be the public property of the State, may be sold, leased, or otherwise disposed of by the said Regents subject to the approval of the Governor, whenever the Board of Regents may deem such sale, lease, or other disposition to the best interests of the university system: Provided, that the Board of Regents shall first determine that such property can no longer be advantageously used in the university system: Provided, further, that where any such property has been granted or conveyed to the university system or Regents of the university system, or any institution embraced within the university system, or the trustees thereof, for specified uses, such property shall only be sold, leased, conveyed, or otherwise. disposed of for similar uses or purposes, which shall be in conformity with any use or trust declared in any such grant or conveyance."
Under the provisions of this Code Section, I am of the opinion that if the Board of Regents shall determine that property may no longer be used advantageously in the university system, the Regents may make any disposition or conveyance of such property that they deem proper subject to the approval of the Governor.

PROPERTY-State-Conveyance

Conveyance of property to a non-profit organization by Board of Regents.

Honorable S. Marvin Griffin

June 10, 1958

In response to your letter concerning a deed from the Regents of the University System of Georgia to the City of Douglas, Georgia conveying 77.74 acres of land in Coffee County, I have examined same and approve it as to form. The grant is for airport purposes and contains a reversionary clause which provides that the land shall revert to the Regents of the University System of Georgia if said property is sublet or abandoned for airport purposes. The deed states that the Board of Regents of the University System of Georgia has passed a resolution declaring "that the said property can no longer be advantageously used in the University System and that its: transfer is for the best interests of the System."

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The law (Ga. Code Ann., 32-141) with respect to the disposal of property of the University System provides:
"All properties owned or held by the Regents of the university system of Georgia pursuant to this Title which in section 32-139 are declared to be the public property of the State, may be sold, leased, or otherwise disposed of by the said Regents subject to the approval of the Governor, whenever the Board of Regents may deem such sale, lease, or other disposition to the best interests of the university system: Provided, that the Board of Regents shall first determine that such property can no longer be advantageously used in the university system: Provided, further, that where any such property has been granted or conveyed to the university system or Regents of the university system, or any institution embraced within the university system, or the trustees thereof, for specific uses, such property shall only be sold, leased, conveyed, or otherwise disposed of for similar uses or purposes, which shall be in conformity with any use or trust declared in any such grant or conveyance."

PROPERTY-State-Conveyance

Conveyance of property to non-profit organization by Forrestry Commission.

Honorable Marvin Griffin

September 17, 1958

I herewith enclose for your signature a deed relinquishing the state's interest in described property in Richmond, County, Georgia, to the Richmond County 4-H Clubs, Inc.
This property was originally granted to the state without cost by Mrs. Eliza H. S. Nixon of said county, subject to reversionary clause, to be used as a State Forest. The grant was made under a 1925 Act of the General Assembly (Ga. Laws 1925, p. 19, 202), Section 5 of which authorized the State to accept gifts of land to be administered by the State Board of Forestry, predecessor of the Georgia Forestry Commission, subject to "a stipulation that they be held and administered as State Forests . . ." Of course, this Act is no longer in effect, and subject to only one or two limited exceptions the state will not now accept gifts of land subject to reversionary clauses, but present policies and laws would not affect the validity of the 1932 deed executed pursuant to the express authority of the 1925 act.
In 1942, the Forestry Commission's predecessor abandoned the use and occupancy of this property, as it was too small for profitable exploitation by the state.
In 1941 during World War II, that poxtion of the property lying to the east of the Ceneral of Georgia Railroad was sold to Darr Aero Tech Inc., a government-backed corporation engaged in training war pilots at Bush Field.
Beginning in 1942, when the state abandoned the property, it was taken over by the Richmond County 4-H Club and developed as a demonstration forest.

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For some reason, no effort was made then, either to convey the property to the Club or to establish Mrs. Nixon's reversionary interest.
In 1946, Mrs. Nixon conveyed to the state her reversionary interest in approximately a four-acre parcel of the remaining tract. The purpose of this conveyance was to facilitate construction of buildings on the property by the 4-H Club, which was done with funds belonging to the Club.
It was only recently that any effort has been made to secure title to the property for the Richmond County 4-H Club.
By a resolution passed in 1957 (Ga. Laws 1957 Vol. 1, p. 178), the General Assembly authorized you to convey the state's interest in this property to the Richmond County 4-H Clubs, Inc., such conveyance to be in conjunction with the release by Mrs. Nixon to the 4-H Clubs of her reversionary interest.
However, some misunderstanding apparently exised between the parties involved, for it was later determined that Mrs. Nixon did not intnd to release her reversionary interest in the property, but desired to retain it so as to insure that the property would always be devoted to public uses such as would be the case with respect to the forestry demonstration project maintained by the 4-H Clubs. Hence no deed was ever executed under the 1957 Resolution. Accord-
ingly, the 1958 General Assembly amended the 1957 Resolution so as to strike
therefrom a reference to the conveyance's being made in conjunction with release by Mrs. Nixon of her reversionary interest. See Ga. Laws 1958 Vol. I, p. 252.
The matter is now in proper form for execution and delivery of the :necessary deeds pursuant to the Resolution of 1957, as amended by the Resolution of 1958, supra, and I am taking th~ liberty of writing you this accompanying opinion for the purpose of clarifying any legal question that may arise with respect to the validity of the two resolutions.
A problem encountered in the past with respect to siminar resolutions concerns Art. VII, Sec. I, Par. II of the Constitution (Code 2-5402) which provides:
"The General Assembly shall not by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation or association."
Since the Resolutions in question do not provide for payment to the state of any monetary compensation by the 4-H Clubs in consideration for the grant, the question arises as to whether said resolutions are unconstitutional as attempting to grant gratuities.
First, with respect to the larger part of the original 100 acre tract, there is no question whatever but that the proposed grants would be legal. As to this part of the property, the state does not own fee simple title anyway but only a fee on condition subsequent. A conveyance of land which provides that it is for stated purposes, and that should it cease to be used for such purposes the title is to revert back, gives the grantee a fee on condition subsequent, and upon breach thereof the grantor has a right of re-entry. Rustin v. Butler, et al., 195 Ga. 389; Code 85-902. This right of re-entry ean also be asserted against the state as grantee. In Cannon r. Montgomery, 184 Ga. 588, 592, property had been conveyed to the state for use as a game and fish hatchery and recreation eenter, subject to condition that should it cease to be used for such purposes, title would revert back to the grantor. Subsequently, the State Game and Fish Department abandoned the use of the property, but maintained an employee on the premises to serve as watchman. The assignee of the grantor sougth to enjoin this watchman from interfering with the former's possession, to which the defendant de-

283
fended on the ground that the suit in effect was against the state which had not consented to be sued. In rejecting this contention, it was said:
"So in a case where property is conveyed to the State Department of Game and Fish for a term of ten years, with privilege of renewal at the expiratiol'l thereof, for use by such department as a fish hatchery and recreation center, with the stipulation that should the State abandon the use thereof its rights under the lease would forfeited, and the plaintiff acquires a tract of land, including that so leased and conveyed to the State Department, subject to such contract or lease, such plaintiff may, upon a breach of such condition or non-performance thereof, working a forfeiture, maintain proper proceedings to recover possession of the property against the State Department or the official thereof holding the same, without the statutory consent of the State. In such a case the plaintiff has a right to treat the contract forfeited and sue for possession, and such action could not be defeated on the ground that it is a suit to enforce a contract against the State."
Therefore, insofar as the Resolution here seeks to relinquish the state's interest in the larger part of the tract, which is still subject to reversionary clause, it is merely legislative recognition of what will necessarily transpire by operation of law anyway. Actually, since the Forestry Department abandoned the property in 1942, the grantor, Mrs. Nixon, has the legal ,right to assert her reversionary interest irrespective of whether or not the Legislature ever gave formal recognition to the abandonment. The Resolution and accompanying deed, which will be joined in by Mrs. Nixon, is merely a method whereby her right of reentry is being asserted in favor of the 4-H Clubs, Inc., who will carry out the public purposes of the trust in place of the state.
The next and last question concerns so much of the Resolution and deed as undertakes to convey title to the small, approximately four-acre tract to which the state obtained fee-simple title in 1946 when Mrs. Nixon released her reversionary interest thereto.
"In the main, the general principles governing the construction of statutes apply also to the construction of a constitutional provision," Valdosta v. Singleton, 197 Ga. 194, 210, and one such rule is that "in all interpretations, the Courts shall look diligently for the intention of the General Assembly, keeping in view at all times, the old law, the evil and the, remedy." Code 102-102 (9). Public history and all facts and circumstances connected with the public affairs of the State should be considered. Dawson v. Dawson \Vaterworks Co., 106 Ga. 696, 704.
The clause of the state constitution prohibiting gratuities, 2-5402 (1), cited previously herein, did not appear in either the Constitution of 1777 or that of 1789. See McElreath on the Constitution of Georgia, pp. 229, 242. It first appeared as Art. 1, Sec.. 24 of the Constitution of 1798, wherein it was provided that "No vote, resolution, law, or order shall pass the General Assembly granting a donation or gratuity in favor of any person whatever but by the concurrence of two-thirds of the General Assembly." See McElreath, supra, 375, p. 257. It was incorporated in substance, in every subsequent constitution. See Constitution of 1861, Art. 11, Sec. 6, Par. 3; 1865, Art. II, Sec. VI, Par. 3; 1868, Art. VII, Sec. XVI, Par. I; 1877, Art. VII, Sec. XVI, Par. I.
It is significant to note that the gratuity clause appeared for the first time in the state constitution shortly after the Yazoo Fraud Act of 1795 (Watkins' Digest, p. 387), in which Constitution there also appeared for the first time a provision declaring that "no law shall pass ... contains matter different from

284
what is expressed in the title thereof" (now 2-1908). It has been said that this latter provision was attributable directly to the Yazoo fraud. See McElreath, supra, 75, p. 90; Saye, The Constitutional Law of Georgia, p. 156. See also Park, "The History of Georgia in the Eighteenth Century", Report of the 38th Annual Session of the Ga. Bar Association, pp. 154, 267 (1921); Harper, "The Yazoo Question", 5 Amer. L. J. 354 (1814); Heath, "The Yazoo Land Fraud", 16 Ga. Hist. Q. 274 (1932); McLendon, Public Domain of Georgia (1924); Chappell, Miscellanies of Georgia, Part II, p. 56 (1874).
Also of pertinence is the fact that Section 24 of Article I, in which the gratuity prohibition first appeared, deals firstly and in large part with an expressed repudiation of the Yazoo Purchase Act, thereby indicating a common purpose for the entire Section.
Very likely the aroused populace also had this notorious fraud in mind when adopting the gratuity provision, and in this respect it is important to note that the Yazoo fraud involved grants to a private corporation organized for profit.
All the answer that is required, however, is given by Georgia v. Trustees of the Cincinnati Southern Ry., 248 U.S. 26, 63 L. Ed. 104 (1918). In that case the Legislature by Act had granted an easement to the Cincinnati Southern Railway to use part of the Western and Atlantic right of way in Tennessee, the latter being a railroad wholly owned by the State of Georgia. The grant was made without monetary consideration, but solely on the basis of a legislative declaration that the operation of the new railroad line to be constructed thereon would benefit the commerce of the State. Subsequently, the Georgia Legislature passed an. act purporting to revoke this easement, and suit was thereafter instituted against the Railway to enjoin its continued enjoyment. It was claimed that ,the original act granting the easement was unconstitutional as being in conflict with the gratuities prohibition of the Constitution. In rejecting this contention, the United States Supreme Court declared:
" Even if the contemplated and invited change of position on the part of the Cincinnati & Southern Railway and the benefit to the state expressly contemplated as ensuing from it were not the conventional inducement of the grant, and so were not technically a consideration, we are of the opinion that the grant was not a gratuity within the meaning of the state Constitution. A conveyance in aid of a public purpose from which great benefits are expected is not within the class of evils that the Constitution intended to prevent, and in our opinion is not within the meaning of the word as it naturally would be understood."
If the state can constitutionally make grants to a private corporation formed primarily for pecuniary gain to its stockholders solely because of the indirect benefits to be received from the building of railroad lines, a fortiori, it follows that grants to a non-profit educational corporation would be legal where the sole purpose is to carry forward a public-type undertaking previously conducted by the State.
The Richmond County 4-H Clubs Inc., was incorporated as a "private nonprofit corporation for educational purposes." Article 3 of its charter as found in the official records of the Secretary of State declares that,
"The purpose and object of said corporation is an educational one and not for individual pecuniary gain to any of the incorporators. The corporation, shall have no capital stock. The corporation is formed for

285
such educational and recreational purposes as in the judgment of said corporation will best meet the needs and advance the interests of the 4-H Club work throughout the County of Richmond, in providing practical and experimental training in agriculture and related fields for the farm youth of the county."
There is nothing to indicate that the Club is not being operated as required in its charter, and it is a matter of common knowledge that the 4-H Club organization is devoted to non-profit work which is of great benefit to the public generally. I previously recognized this public character of the 4-H Clubs, when it was held in 1952 that prison labor could legally be used in the construction of 4-H Club projects.. See Op. Atty. Gen. 1952-53, p. 153.
The 1958 Resolution enacted by the General Assembly declares that the property in question has become surplus and that "the public uses and benefits for which the property was originally dedicated would be best served by conveyance of said property to the Richmond County 4-H Clubs, Inc., for use as a forestry demonstration project ..." Whatever may be the binding effect of this declaration, cf. Smith v. City of Atlanta, 161 Ga. 769, 778, there is certainly no basis whatever for rejecting it here.
I am therefore of the opinion that the Resolution of 1957 (Ga. Laws 1957 Vol. I, p. 178) as amended (Ga. Laws 1958 Vol. I, p. 252), as well as the proposed deed attached hereto, are legal and constitutional.

PROPERTY-State-Easements

Easements over State property may only be granted by General Assembly.

Honorable Alan Kemper

April 21, 1959

This will acknowledge your letter regarding a proposed agreement between the State Department of Public Welfare and C. Goldstein and Sons for a water service line proposed to be laid across land belonging to the Georgia Training School for Boys located in Baldwin County, and proposed primarily for serving a subdivision known as Sunny Acres near Milledgeville, Georgia.
This proposed agreement has been reviewed carefully. Your attention is
called to the fact that the authority to dispose of State property is vested in
the Legislature, and in this connection we call to your attention certain language contained in the decision of the Supreme Court of the State in Western Union Telegraph Company vs. W. & A. R. R. Company, 142 Ga., 532, 534, and especially to language found on p. 534 as follows:
"But no power conferred upon the Governor by the code authorizes his consent to the sale of any property of the State, or any easement or interest in the State's property. The power to dispose of property belonging to the State is vested in the legislature. 36 Cyc. 870. And the Governor would have no right to usurp the legislative function in the matter of contracting away the States property, or any interest therein."
The proposed agreement would constitute an easement for the right of a private way over land belonging to the State. Section 85-1401 of the Code of

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Georgia Annotated, provides for an express grant of such easement. Also please note that Section 85-1404 ,of the Code provides that a parol licensei is primarily revocable at any time, but is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easement running with the land. There are cases where a license to erect a dam is not revocable after expenditure of money and making of improvements in pursuance thereof, and a license to cut a ditch for drainage is not revocable after the ditch has been dug at expense to the licensee.
There is a distinction between a privilege or easement, carrying an interest in the land, and requiring a writing within the Statute of frauds to support it, and a license which gives the authority to do a particular' act or series of acts upon the land of another for the purpose of improvement only, without possessing any estate therein. Such a license is not within the Statute. 3 Kent's Comm., 452. Jenkins vs. Brown, 48 Ga. Appeals, 483.
The Governor's powers and duties as to State property are provided in Chapter 91-4 of the Code of Georgia, and Section 91-503 of the Code authorizes the Governor to sell or rent property. A precedent found in Acts, 1950, p. 412, specifically authorizes the Governor to lease land in Walker County, and on March 9, 1956, a bill enacted by the General Assembly was approved providing that all leases of State property which begin more than one year after execution shall be ratified by a two-thirds vote of the Senate.
This proposed contract includes provision that the proposed water line is being laid for the purpose of enabling the City of Milledgeville to furnish and sell water to a residential subdivision and there is provision that the parties of the second part may transfer their rights and interest in the said water line to the Mayor and Aldermen of the City of Milledgeville. Of course, there is also provision in the proposed agreement that the first party, which is the State of Georgia, reserves the right to revoke by giving the second party eighteen months written notice.
I am of the opinion that the execution of this document would grant an easement over State property and that such an easement may be granted only by authority of the General Assembly. I do not find where the General Assembly has by any provision authorized the State Department of Public Welfare to grant such an easement. It may be that the provision in the proposed contract reserving the right of revocation after giving eighteen months written notice would take this out of the rule laid down in Section 85-1404 of the Code of Georgia, and upon this theory you may be willing to execute the document and take the risk of obtaining ratification of your action, by the next general assembly, which decision would be a matter of policy to be determined exclusively by you as Director of the State Department of Public Welfare. The document is being returned herewith.

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PROPERTY-State-Insurance (Unofficial)

All insurance for protection of State property vested in executive department, and no requirement to purchase through State Purchasing Department.

Mr. Harrison W. Call

October 15, 1959

I am pleased to acknowledge your letter which has been referred to this Department by General Alvan C. Gillem, Jr., State Supervisor of Purchases.
In Georgia there is no statuatory requirement that insurance or any part thereof be purchased through the State Purchasing Department.
All insurance for the protection of State's property as authorized by statute is vested in the State Executive Department of which the Governor is head.

PROPERTY-State-Inventory

Requirements for inventory of State property.

Honorable William R. Bowdoin

July 23, 1959

After having reviewed the statutory provisions regarding the responsibilities of the preparation and maintenance of inventories of State property by departntents, institutions and agencies of the State Government, and the duties and responsibilities of the Governor, the State Auditor, the Supervisor of Purchases and the Attorney General, it is my opinion that all of the applicable provisions of law will be fully met if inventories of such property are maintained up to date and available for annual inspection and periodic checks by the Governor, the Supervisor of Purchases, the State Auditor and the Attorney General.

P R O P E R T Y- S t a t e -T r a n s f e r s

Transfer between department of State.

Dr. Claude Purcell

June 4, 1959

This will acknowledge receipt of your letter in which you request my official >pinion as to the binding effect of the transfers of December 14, 1958, and \'larch 31, 1959, of the State Farmers' Market Property from the Department >f Agriculture to, the Department of Education.
Generally, title to real property which is conveyed to a State official in his lfficial capacity is vested in the State of Georgia. Cf. Linde,r v. Ponder, 209 Ga. '46 (1953); Barwick v. Roberts, 192 Ga. 783 (1941). When property is State lroperty, its control is in the Governor of the State. See Code Section 91-402, vhich provides in part as follows:

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"The Governor shall have general supervision over all property of the State, with power to make all necessary regulations for the protection thereof, what not otherwise provided for. . . ." The transfers of December 14, 1958 and March 31, 1959 of the State Farmers' Market were signed by the Honorable Phil Campbell, Commissioner of Agriculture, and were respectively approved by Governor Griffin and Governor Vandiver. Under these circumstances, I am of the opinion that the Department of Education has and will have complete control of the State Farmers' Market Property as if the property involved had been originally conveyed to the Department, subject, however, to the restrictions imposed in the transfers; i.e., that the property will not be used as a farmer's market, that it will be used by the Department of Education, that it will be reconveyed to the Department of Agriculture upon the termination of its use by the Department of Education, and that the Department of Education will not encumber the property in such a way so as to jeopardize the interests of the Department of Agriculture.
In effect, these restrictions simply require that the property involved be used by the State Department of Education for public purposes, and you, and the chief administrative official of the Department have authority to determine or designate what portions of the property will be used) for which purposes.

PROPERTY-State-State Forests

Sale of timber from lands of Department of Corrections.

Honorable Jack Forrester

July 1, 1959

This will acknowledge receipt of your letter in which you request information concerning a method by which sales of timber products from the lands under control of the Department of Corrections near Reidsville, Georgia, may be made.
I am of the opinion that, under th~ present law of the State of Georgia, the Department of Corrections has no authority to sell or otherwise dispose of timber from lands under its control. The only method by which this may be done is under the provisions of Code Section 91-804 which authorizes the Governor to declare property surplus and sell it when it becomes unserviceable.

PROPERTY-State-State Forests

Sale of timber from State Forests.

Honorable Lawton Shaw

February 21, 1958

In accordance with our conversation relative to the sale of timber products by the Georgia Forestry Commission, I am writing you this letter for the purpose of clarifying the question of the Commission's authority in these matters.
As I understand the facts of the particular question, the Commission has conducted a "thinning" operation in the Waycross State Forest in accordance

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with its timber management program, and now desires to sell the timber and other timber products derived from the operation. They have advertised for four weeks for bids, bids were received, opened, and the highest bid accepted. The question now is whether or not it will be necessary for the Governor to execute an executive order authorizing such sale.
Generally, before sate property can be sold, it must be declared unserviceable and surplus property by the Governor, and by him authorized to be sold. Code 91-804, and 91-805.
However, the laws relating to the Georgia Forestry Commission, Code 43217, provide:
"When lands are acquired or leased under the provisions of this Chapter, the Director, with the approval of the Commission, is authorized to make expenditures of funds not otherwise obligated to the management, development, and utilization of such areas, and to sell and otherwise dispose of the products from such lands."
The reason for this special provision relating to the Commission is obvious. One of the principal duties of the Commission is to engage in research and other similar projects to develop new forestry management practices and collect scientific data which would be of value to the advancement of this important part of our economy. To carry out these duties, it is necessary for the Commission to dispose of the waste products therefrom. Due to the wide-scale and continuous nature of this work, the Legislature deemed it wholly impractical to require that the Governor assume responsibility for personally supervising this work. Accordingly, the law places this duty, and the responsibility which is its necessary concomitant, on the Director of the Forestry Commission, to see that such waste products are sold in such a manner as will be: to the best interests of the state. For any failure to properly perform the duties of his office, of course, the Director would be liable on his bond, as required by Code 43-211.

PROPERTY-State-Trespass (Unoffi.cial)

How trespassing on State property may be prohibited.

Dean A. M. Herrick

January 5, 1959

I am pleased to acknowledge your request concerning the possible restriction of public use of certain property under the control and management of the School of Forestry.
Ga. Laws 1956, p. 9 provides as follows: "Any person who for any purpose shall enter upon any property owned, leased, or otherwise under the care, custody, control, supervision or operation of the State or any of its agencies, where such property has been closed to the public, by executive order of the Governor, or by order of the official in charge of the State agency or department having supervision over such property, or by oral or written order of the official or employee having immediate supervision over such property, shall be guilty of a misdemeanor and punished as provided by law; provided however, that notica of such closing is first given to the public, either

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by posting of appropriate signs at the entrance to such property, or by actual communication to such person by the official in immediate supervision of such property, or his agents or employees. Provided however, this Act shall not apply to employees of the agency concerned authorized to enter the property for purposes of care, custody, maintenance or inspection."

PUBLIC HEALTH-County Board

A County Superintendent of Schools is a member of the County Board of Health.

Honorable T. F. Sellers, M.D.

February 6, 1959

Reference is made to your recent letter in which you inquire as to whether the Superintendent of Education of Dougherty County is, by virtue of holding that position, a member of the Dougherty County Board of Health. I am of the opinion that he is.
As you point out, the law provides that "A county board' of health for each county is hereby created, composed of three persons, two of whom shall be members of such board by virtue of their offices, to wit: the county superintendent of schools and ...". (Ga. Code Ann., Section 88-201).
The question arises from the fact that the General Assembly in 1951 enacted legislation which merged the independent school system of the City of Albany and the then existing school districts of Dougherty County outside the corporate limits of Albany into a new school district co-extensive with the boundaries of the county. (Ga. Laws 1951, pp. 2233,, et seq.).
It was provided that the new district should have a "Superintendent of Education" whose duties should be those of the former county superintendent of schools subject to such increase or decrease in responsibilities as the new board should direct. It does not appear to what extent these duties have been increased or decreased nor does it appear to me to matter.
The Superintendent of Education of Dougherty County performs the same basic functions and has and discharges the same basic duties as did the County Superintendents of Schools in several counties of the State when the Act which
a: is codified as Code Section 88-201 was passed. He is in my judgment "the county
superintendent of schools" within the meaning of this section and therefore member of the County Board of Health.

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PUBLIC HEALTH-County Board (Unofficial)

Meetings of the County Board of Health are not required to be public.

Mr. Robert E. Flournoy, Jr.

August 6, 1959

Thank you for your recent letter making inquiry as to whether discussions of members of a County Board of Health at regular meetings. of the Board must be open to the public.
I do not find in the Acts creating the County Boards of Health any provision that requires that such discussions be open to the public. However, in this connection I think it appropriate to direct your attention t~ Act No. 83 of the 1959 General Assembly concerning the inspection of public records, which is set forth in Georgia Laws 1959, page 88, the first Section of which is as follows:
"All State, county and municipal records, except those, which by order of a court of this State or by law, are prohibited from being open to inspection by the general public, shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to anY' citizen."

PUBLIC HEALTH-Hospital Authorities (Unofficial)

Hospital Authority Act of 1941 and financing of a hospital built under that Act discussed.

Mr. B. Irvin Cheney

March 4, 1958

Reference is made to your letter regarding the financing of a hospital to be built by the Hospital Authority of Wilkes County under the Hospital Authority Act of 1941.
While the Hospital Authority Act of 1941 provided for the financing of hospitals to be built by the County Hospital Authorities through the issuance and sale of securities of their own, some counties, having encountered difficulty in disposing of these bonds, have issued bonds creating direct debt against the county. Apparently these bonds have been issued under the authority of Article 7, Section 2 of the Constitution of the State of Georgia, codified as Section 25701 of Georgia Code Annotated. Under these provisions, the General Assembly is given the power to delegate to any county the right to levy taxes for public health purposes and to provide other care and hospitalization for the indigent sick people of the county. Under the authority of this section, the Supreme Court of the State held in Griner v. Board of Commissioners of Bulloch County et al. 180 Ga. 619 that:
"The building and equipment of a hospital in Bulloch County with. funds derived from the sale of refunding certificates of the State Highway Department, issued to the county under authority of the Act of the General Assembly approved March 1, 1933 (Ga. L. 1933, p. 161), to take care of sick convicts and the indigent poor of the county, with

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limited facilities for pay patients, is a lawful purpose and fails within the purview of Section 13 of the Act referred to, and does not offend the provisions of Art. 7, Sec. 6, Par. 2, of the Constitution of the State of Georgia, limiting the taxing power of counties. For this reason the court did not err in refusing an injunction against the board of commissioners."
Your attention is called, however, to the phrase "limited facilities for pay patients". I am not certain how far this goes to limit the applicability of this case to the construction of hospitals like that you have in mind. I judge that you have a County Attorney and that you have consulted with him. If so, you should be guided by his advice and counsel, for, by relying on his advice and his advice only, will you be protected in your actions. Any advice or counsel that the Attorney General might offer would be purely unofficial and would neither bind nor protect the Board of Commis5ioners.

PUBLIC HEALTH-Mattresses

Commercial upholstering shops are required to have a license before renovating sofa-beds.

Dr. T. F. Sellers

September 16, 1959

This is in reply to your letter wherein you request an official opinion on the following question:
"Are owners or operators of commercial upholstering shops who renovate convertible units (soft beds, hide-a-beds, roll-away beds) required to obtain a license to renovate matteresses ?"
The Act entitled, "An Act to improve the sanitary conditions of the manufacture of mattresses and bedding, upholstered furniture; . . ." was approved March 30, 1937 (Ga. Laws 1937, pp. 719-725). This Act is found in Chapter 88-13 of the Supplement to the Code. The particular section requiring a license is found in Section 88-1303, which is as follows:
"No person, except for his own use, shall make, remake or renovate mattresses until he has secured a license from the Board of Health and paid a license fee of $25 therefor; said license shall be valid for the calendar year in which issued or until voided by a violation pf this Chapter: Provided, a plant or place of business owned solely })y blind persons in which place of business not more than one seeing assistant is employed in the manufacture or renovation of mattresses shall not be required to pay the tax herein provided or any other charges or taxes levied or to be collected under this Chapter." Code Section 88-1301. defines the word mattress as follows:
* * *
"The word 'mattress' means: Any mattres3, upholstered spring, comforter, pad, cushion, upholstered furniture or pillow used for sleeping, and not smaller that 12 inches in its greatest dimensions."
* * *
It will be observed from the Code sections herein quoted that all persons, except blind p(lrsens who have not over one seeing .employee, who renovates or

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remakes mattresses are required to pay the license fee provided in the act. The definition of the word mattress as used in the act, in my opinion, covers sofa beds, hide-a-beds and roll-away beds which use an upholstered spring comforter, pad, cushion or pillow used for sleeping.
The owners and operators of commercial upholstering shops who renovate convertible units such as sofa beds, hide-a-beds and roll-away beds are, in my opinion, required to obtain a license to renovate mattresses as is provided in Code Section 88-1303.

PUBLIC HEALTH-Milledgevi1le State Hospita1

Authority of State Board of Health over Milledgeville State Hospital.

Honorable T. F. Sellers, M.D.

June 19, 1959

Receipt is hereby acknowledged of your letter requesting my opinion in connection with the Administrative Order of April 24, 1959, which transferred the administration and control of all affairs of the Milledgeville State Hospital from the State Department of Public Welfare to the. Department of Public Health of the State {)f Georgia. Specifically you ask "Does the Administrative Order delegate t0 the Department of Public Health of the State of Georgia all authority relating to the management and control of the Milledgeville State Hospital as defined in Georgia Public Law?" Further you ask "Does the Administrative Order direct the Department of Public Health of the State of Georgia to carry out all duties and responsibilities defined by public law relative to the management and control of the Milledgeville State Hospital?" Your third question asks, in the event it is expedient to adopt additional rules and regulations, or to repeal or amend existing rules and regulations, as provided for by law relative to the management and control of the Milledgeville State. Hospital, does the State Board of Health have authority and responsibility in said matters?
Milledgeville State Hospital was under the control and direction of that supervisory body known as the Board of Control of Eleemosynary Institutions, which was created by the State Reorganization Act of 1931. All laws passed and: adopted by the Legislature were by Acts of 1937, pp. 355-368, transferred to the State Department of Public Welfare. A portion of this Act, codified in Georgia Code Section 99-124 provides:
"The State Department (of Public Welfare) shall be empowered with authority to delegate in whole or in part the operation of any institution or other activity of this Department to any other appropriate department or agency of the State, County, or municipal governments, and to contract with and cooperate with such departments or subdivisions in any manner proper for carrying out the purposes of this law.
It must be concluded that the Administrative Order issued by Mr. Alan Kemper, Director of the State Department of Public Welfare, dated April 24, 1959, approved by Governor S. Ernest Vandiver, is in good form and was executed pursuant to the authority given that Department under the aforementioned Act, and thus conferred complete authority to the Department of

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Public Health relative to the management and control of the Milledgeville State Hospital.
Likewise, in answer to your second question, the Administrative Order imposes the obligation on the Department of Public Health to carry out all duties and responsibilities defined by law relative to the management and control of the Milledgeville State Hospital.
In answer to the third question, Georgia Code Section 88-101 provides:
"There is hereby created and established a department of the State government to be known as the Department of Public Health under the management and control of a Board of Health." Code Sections 99-1701, 1702, provide:
"99-1701. State Board of Health; power and authority.- In addition to the powers and duties now vested in and imposed upon the State Board of Health by existing laws, the said Board shall have pewer and authority to make and promulgate reasonable rules: and regulations for the protection of the health and lives of inmates and patients of hospitals, sanitoria, infirmaries, maternity homes, nursing homes, homes for the aged, and other instiutions where persons are received for treatment, examination, maternity care, or nursing or personal care in this State, except that such authority shall not include the offices of physicians or others practicing the healing art unless more than one bed is provided in such offices for overnight care of patients. (Acts 1946, pp. 34, 35; 1958, p. 322.)"
"99-1702. Same; adoption of rules and regulations. - The Board after consulting with an advisory committee appointed as provided in Section 99-1704 shall adopt and promulgate all such reasonable rules and regulations which in its judgment are necessary to protect the health and lives of said inmates and patients and shall prescribe and set out the kind and quality of building, equipment and facilities which every such institution in this State shall have and use in order to properly care for its inmates and patients. (Acts 1946, pp. 34, 35; 1958, pp. 322, 323.)"
Applying the foregoing statutes, it is my opinion that it is mandatory upon the State Board of Health to observe and be governed by all the unrepealed statutes enacted for the Board of Control of Eleemosynary Institutiens and the State Department of Public Welfare. It is also my opinion that the State Board of Health may adopt and promulgate any rule or regulation relative to the management and control of Milledgeville State Hospital not inconsistent with or in conflict with existing law. The adoption of such rules and regulations should be done as an official act of the State Board of Health, for I do not believe rules and regulations under which the State Department of Public Welfare conducted the affairs of Milledgeville State Hospital were transferred by the Administrative Order referred to.

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PUBLIC HEALTH-Milledgeville State Hospital
Limitations on autopsies of deceased patients.
August 21, 1959
Dr. John H. Venable, M.D.
You made an inquiry as to whether the Milledgeville State Hospital in requesting permission of the family of a patient at that hospital to make an autopsy when the patient dies can omit any reference in the written authorization to an examination of the patient's head. I understand that the usual language of the authorization from the family is to make a complete autopsy including the head. I understood that the hospital will wish to make such examination of the patient's head notwithstanding the fact that it is reasonably certain that the patient died from a heart attack or other causes, although of course there will be some cases in which the head should be examined for purposes of the autopsy.
An autopsy has been defined generally as an examination made by a qualified person for the purpose of determining the cause of death. Georgia Code Section 21-205, as amended, sets forth certain instances in which a post mortem examination or autopsy is required. These instances include cases in which any person shall die as a result of violence or suicide or casualty or suddenly when in apparent health, or when unattended by a physicia~ or within 24 hours after admission to a hospital without having regained consciousness or in any suspicious or unusual manner. However, it is provided that such post mortem examination is not required where there is sufficient evidence or medical history sufficient to disclose the cause of death. Other instances in which the Code Section requires a post mortem examination are those in which a prison inmate dies suddenly without an attending physician and whenever such an examination is ordered by a court having criminal jurisdiction.
The following Code Section 21-206, provides as follows:
"21-206. Authority to perform autopsy. - In the case of death of any person under such circumstances as would not require a post mortem examination under the provisions of section 21-205, any physician, duly licensed under the laws of the State of Georgia, or of any other State having licensing requirements equal to or greater than those imposed by the State of Georgia, shall be deemed to have been legally authorized to perform an autopsy upon the body of a deceased person when such autopsy has been consented to by the person assuming custody of the body for the purpo!Ses of burial, such as the husband, the wife, the father, the mother, a child, a guardian, next of kin, or in the absence of any of the foregoing, a friend of such deceased person charged by law with the responsibility of burial. If two or more of such persons assume custody of the body, the consent of one of them shall be deemed sufficient legal authorization for the performance of the autopsy."
You will note that this Code Section provides that the autopsy or post mortem examination shall be deemed to have been legally authorized when it has been consented to by the person assuming custody of the body for purposes of burial, such as the husband, wife, father, mother, a child, a guardian, next of kin, or in the absence of any of the foregoing, a friend of such deceased charged with the responsibility of burial. If two or more persons assume custody of the

296
body for this purpose, the consent of one of them is sufficient authorization for the performance of the autopsy.
Where there is sufficient evidence to disclose the cause of death without the performance of an autopsy and incisions are made in the head or other parts of the body for scientific or exploratory purposes, then such incision and examination in connection therewith would not come within the generally accepted meaning and purpose of an autopsy. Also, in those cases where it is known that death was due to some other cause, such as a heart attack, there would be no necessity for making an examination of the patient's head in order to determine the cause of death, which is the general purpose of conducting an autopsy. In the decision of our Court of Appeals in the case of Liberty Mutual Insurance Company v. Lipscomb, 56 Ga. App. 15, 192 S. E. 56, the Court held that the unauthorized mutilation of the dead body of a husband gives a right of action in his widow. In other cases it has been held that members of the immediate family of a deceased who have the right of burial, have a right to bury the deceased in his or her existing condition at the time of death and that any interference with that right gives them a cause of action against the person who has so interfered with their right of burial.
In view of the foregoing considerations, I believe it would be unwise to undertake an examination of the head or other parts of the body without complete authority to do so, especially in those cases in which the autopsy is not necessary to discover the cause of death or it is definitely known that the cause of death arose from a condition existing in some part of the body other than the head. If you do not wish to especially mention the head in these authorizations, I think it would be sufficient if the family of the deceased authorized a post mortem examination including an examination of all areas of the body since all areas would obviously include the head. I believe that this kind of authorization would be more adequate than an authorization which merely stated that the hospital was authorized to make a complete autopsy including the head. I do not believe that it would be safe simply to have the family authorize a "complete autopsy" for the reasons above indicated.

PUBLIC HEALTH-Milledgeville State Hospital

Employee benefits.

Dr. T. F, Sellers, Sr.

August 12, 1959

I have your letter in which you request my opmwn as to whether Section 89-919 of the Code of Georgia Annotated requires that the Department of Public Health continue to provide employees of Milledgeville State Hospital with the goods and services which they were receiving at the time of the passage of the Act, which included this Code Section, by the General Assembly, and whether this Act makes legal the furnishing of all of the benefits provided in this Code Section.
This Section of the Code provides as :follows: "89-919. Method by which goods and services are procured by
employees of certain hospitals and other institutions. - Employees of

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hospitals, education institutions, eleemosynary institutions, penal institutions and corrective institutions which are under the control and jurisdiction of a State department or the Board of Regents shall be entitled to obtain goods and services in the same manner and under the same procedure used at the present time in obtaining such goods and services through such hospitals and institutions, and any provisions of the laws of this State relating to purchasing contrary thereto shall not apply to such employees: Provided, however, that no employee shall be permitted to make any single purchase of goods or services in excess of $50, except medical and dental services only, and in no event shall any employee obtain goods or services for any person except for himself or members of his immediate family. (Acts 1956, p. 383)" You state that when the Act was passed these employees were receiving drugs at reduced prices not less than cost, and medical and dental services at cost with such services to their immediate families at less than cost.
This office has previously directed your attention to Sections 40-1936 and 40-1937 of the Code of Georgia Annotated, which provide as follows:
"40-1936. Purchases through Supervisor by State officers or employees for individual ownership prohibited. - It shall be unlawful for any employee or official of the State of Georgia to purchase, directly or indirectly, through the Supervisor of Purchases, or through any agency, department, board or bureau of the State, any article, material, merchandise, ware, commodity or other thing of value for the personal or individual ownership of himself or other person or persons. All articles, materials, merchandise, wares, commodities or other things of value purchased, directly or indirectly, by or through the Supervisor of Purchases or by or through any agency, department, board or bureau of the State shall be and remain the property of the, State of Georgia until sold or disposed of by the State in accordince with the laws governing the disposition or sale of other State property. (Acts 1939, pp. 160, 175)"
"40-1937. Sale or delivery of merchandise, etc., by or through Supervisor or State department for individual ownership. - It shall be unlawful for any person to knowingly sell or deliver any article, material, merchandise, ware, commodity or other thing of value to any person, directly or indirectly, by or through the Supervisor of Purchases or by or through any department, agency, board or bureau of the State for the individual and personal ownership of such person or other person or persons, except that property of the State may be sold or otherwise disposed of in accordance with the laws governing the sale or other disposition of State property. (Acts 1939, pp. 160, 175)"
If the provisions of Georgia Code Section 89-919 contained in the Acts of 1956 at page 383 are a valid exercise of the legislative power vested in the General Assembly by the Constitution of Georgia, then the employees of Milledgeville State Hospital are entitled to receive the benefits specified in this Code Section. However, if this Code Section is found to be contrary to or in violation of any provision of the Constitution of Georgia or of the Constitution of the United States, then the provisions in this Code Section are void and such employees are not entitled to receive the benefits set forth therein.
Article I, Sectiou IV, Paragraph II of the Constitution of Georgia of 1945, which is codified as Georgia Code Section 2-402, provides that legislative acts

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in violation of the Constitution of the State of Georgia or of the Constitution of the United States are void and that it is the function of the Judiciary to determine whether or not such acts are in violation of provisions of either Constitution. Since it is made the function of the Judiciary to determine whether acts of the General Assembly are in violation of the provisions of either Constitution, the Attorney General must, as a matter of general policy, refrain from declaring any act of the General Assembly to be constitutional or in violation of either Constitution.
The provisions of the Constitution of Georgia of 1945 which the Judiciary might consider in: determining whether the provisions of Georgia Code Section 89-919 are in accordance with the Constitution or in violation of the Constitution, include, among others, Article I, Section I, Paragraph II (Georgia Code Section 2-102), which provides that the protection to person and property is the paramount duty of Government and shall be impartial and complete: Article I, Section IV, Paragraph I of the Georgia Constitution of 1945 (Code Section 2-401), which provides that laws of a general nature shall have uniform operation throughout the State and no special law shall be enacted in any case for which provision has been made by an existing general law, and further provides that no general law affecting private rights shall be varied in any particular case, by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and Article VII, Section I, Paragraph II, Subdivision 1 of the Constitution of Georgia of 1945 (Code Section 2-5402), which provides that the General Assembly shall not by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation or association, and Subdivision 2 of the same paragraph of the Constitution, which provides that the General Assembly shall not grant or authorize, extra compensation to any public officer, agent or contractor after the service has been rendered or the contract entered into.
In the case of Dennison Manufacturing Company v. Wright, 156 Ga. 789, 120 S. E. 120, the Supreme Court of Georgia held that an unconstitutional statute though having the form and name of law is in reality no law, and confers no authority upon and affords no protection to an officer acting thereunder. In its decision in the case of DeKalb County v. Grice, 51 Ga. App. 887, 181 S. E. 703, the Georgia Court of Appeals held that the waiver of unconstitutionality of an act so as to authorize the imposition of a judgment by application of the terms of the act, cannot be made by a public body, such as a county, whose powers and duties are limited by law. In a later decision of the Georiga Supreme Court in the case of Franklin v. Harper, 205 Ga. 779, 55 S. E. 2d 221, the Court again reaffirmed that an unconstitutional statute is in reality no law and confers no authority upon, and affords no protection to, an officer acting thereunder.
Under the decisions above cited, if the Judiciary in a case brought before any appropriate court, should declare that Georgia Code Section 89-919 is in violation of any of the above mentioned provisions of the Georgia Constitution, then the provisions of the Code Section would be void and they would Rot afford any protection to the State Department of Public Health or any officer of that department or any officer of the Milledgeville State Hospital who had furnished such. benefits because of the provisions of this Code Section.
Anyone who brought a suit to require the Milledgeville State Hospital to furnish the benefits provided by Georgia Code Section 89-919 would most .likely take the position that the benefits provided . by this Code Section are a part of.

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the compensation of employees of the Milledgeville State Hospital for services rendered and that the provisions of the Code Section create a statutory contract requiring the furnishing of these services without cost to the employee or a member of his family. In its decision in the case of Cole, Clerk, et al v. Foster, et al, 207 Ga. 417, 61 S. E. 2d 815, the Georgia Supreme Court decided that the statute requiring that Peace Officers pay a defined monthly sum into the Peace Offcers Annuity and Benefit Fund creates a contractual relation, and the disal3ility and retirement pay provided by the statute is adjusted compensation for services rendered and is not unconstitutional as allowing compensation to Peace Officers for past services. In its decision in the case of Villyard v. Re gents of the University System of Georgia, 204 Ga. 517, 50 S. E. 2d 313, the Supreme Court of Georgia decided that the Regents of the University System might operate a laundry and dry cleaning service at reduced prices at the Georgia State College for Women for the benefit of students and persons connected with the school and that its action in so doing was not in violation of the provisions of the Constitution of Georgia. However, this decision was based in part upon the Court's determination that under existing statutes the Regents of the University System have the powers of a corporation and it omitted to decide in that case whether the furnishing of such a service to students and others connected with the particular college established a discrimination in favor of these students and against students at other colleges operating under the Regents of the University System who were not furnished a similar service.
You will recall that the General Assembly at its last session in 1959 passed Act No. 24, which is found in Georgia Laws 1959, page 34, and following pages, Section 3 of which provides that whoever, being an officer, employee, or agent of the State of Georgia, or any agency thereof, accepts money or anything of value, in addition to his legally authorized compensation, from any source, as an inducement to perform his duty or to refrain from performing his duty, shall be guilty of a felony. If a Court of competent jurisdiction should find that the provisions of Georgia Code Section 89-919 are void because they are in violation of some provision of the Georgia Constitution or of the Federal Constitution, then it is possible for such a Court to find that an employee of the Hospital receiving the benefits provided in this Code Section was receiving something of value in addition to his legally authorized compensation, although there may be some doubt as to what conclusion a jury might reach concerning this' matter under the circumstances.
The Attorney General cannot recommend to you that you discontinue the benefits which employees of the Milledgeville State Hospital are now receiving under this Code Section or that you continue to furnish the benefits provided by this Code Section free of charge as set forth in your letter. If you should decide to discontinue the furnishing of these benefits free of charge and a suit should be brought to compel the Hospital to furnish these benefits, then the Law Department would present to the Court the questions above outlined. It would then be a question for the Judiciary to decide, in accordance with the provisiens of the Georgia Constitution above pointed out whether the provisions of Georgia Code Section 89-919 are in accordance with the Constitution of Georgia or they are in violation of its provisions.
The next term of the Superior Court of Baldwin County, Georgia, to which a suit involving this matter could be made returnable begins on the second Monday in October, 1959. Hence; it is probable that such a case could not reach the point of decision in an appellate court until sometime early next year at which time the General Assembly is scheduled to be in se~sion.

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Since there is serious doubt as to what decision an appellate court would reach if questions as to the constitutionality of the provisions of Georgia Code Section 89-919 were presented to it in an appropriate proceeding, I suggest that this problem be submitted to the General Assembly for consideration and action at its next session.

PUBLIC RECORDS-Preservation and Reproduction

Laws relating to photographing, micro-filming and photostating of public and non-public records discussed.

The Honorable Ben W. Fortson, Jr.

May 22, 1958

You have asked that we supply you with an up-to-date list of citations pertaining to photographing, micro-filming and photostating of public and nonpublic records. I am informed that the material is desired for use in connection with the revision of a pamphlet on this and related subjects issued by you in 1953.
Up to 1950 the legislation passed by the General Assembly regarding the use of photostatic equipment and other photographic devices by the Clerks of the Superior Courts and the Ordinaries of the several counties of the State of Georgia were, in effect, local bills being applicable only to counties within a population range adjusted to the purpose intended to be achieved. In that year, however, the legislative trend changed.
The 1950 Legislature passed three Acts regarding the use of photographic processes in connection with record keeping by Court Clerks which show, for the first time, a trend toward broad overall authority on a statewide basis. The first of these amended Section 29-42 of the Georgia Code so as to provide that all decrees, deeds, mortgages or other instruments affecting the titles to lands shall be recorded by the Clerk of the Superior Court by the use of printing, typewriting, handwriting in ink, photostating or photographing (Georgia Laws 1950, p. 413 (codified as Section 29-420, Georgia Code Annotated). The second had to do with Ordinaries and provided for, as authorized, the use of photostatic or other photographic equipment for the purpose of recording any documents authorized or required to be recorded in his office (Georgia Laws 1950, p. 414, codified as Section 24-1805, Georgia Code Annotated). It will be noted that both of these applied to all counties and that the last applied to all documents. The third and last of the bills enacted at this time was one applying only to those counties having a population of 31,500 to 33,000 according to the 1940 census. This Act is significant in that it applied to all officers who have charge of records, not merely the Clerk of the Superior Court and the Ordinary, and that it provided not only for the use of photostatic and other photographic equipment, but also for "micro equipment." This suggests that the phrase "photostating" or "photographing" did not include microfilming. (Georgia Laws 1950, p. 2108).
This was followed by an Act palilsed in 1951 which applied only to counties of 300,000 er over and only to the Clerks of the Superior Courts but specifically authorized the use of microfilm in keeping certain records (Acts of 1951, p. 197).

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The 1955 session of the legislature passed a bill providing that the Clerk of the Superior Court or the Ordinary of any county having a population of not less that 31,000 according to the 1950 United States census, may install and use photostatic equipment or other photographic equipment in recording and furnishing copies of any and all instruments, records and proceedings of record or on file in his office (Georgia Laws 1955, p. 2746).
In 1957 the General Assembly passed an Act authorizing the Clerk of the Superior Court of any county of this State to install and use photostatic equipment or other photographic equipment, excluding micro equipment . . thus making the provisions state-wide as far as the Superior Court Clerks are concerned (Acts of 1957, p. 121, codified as Section 24-2747, Georgia Code Annotated).
At its following term (1958), that legislative body failed to pass a bill authorizing the Clerks of the Superior Courts to install and use micro photostatic equipment, photostatic equipment, or other photographic equipment . . .
Apparently, therefore, as the matter stands at the present time, Ordinaries (Georgia Laws 1950, p. 414, codified as Section 24-1805, Georgia Code Anno-. tated) and Clerks of Superior Courts (Acts of 1957, p. 212, codified as Section 24-2747, Georgia Code Annotated) of the several counties of the state may use "photostatic or other photographic" equipment in recording any documents authorized and required to be recorded in his office. Microfilm, however, would appear to be limited by the several Acts to a specific area of usage as set out therein.
Concurrently with the evolution of the present law on photographic reproduction of documents and records, there was developed a body of statute law dealing with record disposal. Among those referred to and commented on in your pamphlet were the Act of 1879 which authorized the. Secretary of State to destroy certain useless papers which was followed by Acts authorizing the Commissioner of Labor (Acts of 1945, p. 335), the Revenue Commissioner Acts of 1950, pp. 29, 30) and the County Welfare Department (Acts of 1953, pp. 17, 18) to do likewise.
Approaching the records destruction problem on a broader and more comprehensive basis, the General Assembly, in 1943, passed an Act empowering the Governor to authorize and direct the destruction of records listed, described and certified by the custodian as obsolete, useless and without historic value provided the judgment of such custodian be concurred in by the Secretary of State and the Director of the Department of Archives, and provided further that such records are not less than seven years old (Acts of 1943, pp. 468, 469, as amended by Acts of 1953, Jan.-Feb. Sess., p. 4; Acts of 1957, pp. 504, 505, codified as Section 40-809, Georgia Code Annotated).
Beyond this, however, the Act provides that any head of (any of) the department(s) of (the) State charged by law with the custody of any such records may destroy the same upon his own responsibility, provided he first causes microfilms of the same to be made capable of development into photostatic copies, and such photostatic copies shall be received in any Court in the State as primary evidence: Provided no record shall be so destroyed that it not seven years old (Acts of 1943, pp. 468, 469, codified as Section 40-810 of the Georgia Code Annotated).
. T~e wisdo~ of the provis~o;ns of this latter Section is debatable. It permits circumventiOn of the provisiOns of the preceding Section; it disregards the fact that photographic enlargements may be "faked" by deletions, addition and

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alternations; it ignores the value of examination of paper and ink for clues to genuineness and it overlooks possible historic value that only originals possess.
A study of these provisions suggests the question as to whether our laws might not wisely be made to authorize the use of photostatic, microfilm, or other photographic methods of recording all instruments required to be recorded in any Court, commission, department, agency, or instrumentality of the State and the records of proceedings therein; Provided, however, that the originals (where the same constitute a part of the public records or are of historic value) be preserved for all time by lamination, where necessary, and storage in space suitable therefor where they may be made available for inspection and use as evidence in any case in which their genuineness and authenticity is subject to question.

PUBLIC SAFETY-Department of - Blood Tests

Department may retain blood test samples for twelve months from date of taking, and then destroy unless notified to contrary.

Honorable William P. Trotter

April 3, 1959

This will acknowledge receipt of your letter in which you enclosed a facsimile of a report proposed for use by the crime laboratory in making reports for blood alcohol.
You asked particularly the legality of the statement appearing at the bottom of the report which reads as follows:
"Unless notified to the contrary, the blood sample will be held in the Laboratory for twelve (12) months from the above date and then destroyed."
I am of the opinion that the above-quoted provision is not in conflict with any of the laws of the State of Georia Under the provisions of Code :Section 68-1625, the Director of Public Safety is required to make available physicians or hospital technicians in each county to perform blood alcohol tests for persons arrested for driving under the influence of intoxicating liquors. There is no requirement in the law that you must retain the blood samples for any specified length of time. Under Code Section 92A-302, you are required to keep permanent files and records of criminal information and to provide for the scientific investiation of articles used in committing crimes, or articles, fingerprints or bloodstains found at the scene of crimes. Under Code Section 92A-105, the Department of Public Safety is authorized to provide such rules and regulations as may be necessary for the Division of Criminal Identification, Detection, Prevention and Investigation. Since the crime laboratory falls underneath this Division and since there is no express statutory requirement that you keep physical evidence for a specified period of time, I am of the opinion that you may by rules and regulations provide that blood samples may be destroyed after being held by the crime laboratory for twelve (12) months unless contrary instructions are received. This seems to be an entirely reasonable exercise of your powers of rules and regulations.
There was attached to the facsimile report, which you sent me, a chart

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indicating through pictorial illustration the effect which a certain percentage of alcohol in the blood would have upon an average individual. I do not believe that this information in the form presented should be included upon the official report. Although the actual percentages and degree of influence is in accord with the presumptions created under Code Section 68-1625, the graphic way in which these presumptions are illustrated might tend to be objectionable in case the report is used in a criminal proceeding.

PUBLIC SERVICE COMMISSION-Authority

Authority of Public Service Commission to revoke or cancel Certificate of Public Convenience and necessity discussed.

Honorable Matt L. McWhorter

January 1, 1958

I am pleased to acknowledge your question of whether or not the Public Service Commission has the authority to revoke or cancel a Certificate of Public Convenience and Necessity issued under the Telephone Systems Act, Ga. Laws 1950, p. 311.
The Georgia Public Service Commission is a constitutional body (Ga. Code Ann., 2-2703), but it has only such powers as the General Assembly has expressly, or by fair implication, conferred upon it. Georgia Power Company v. Georgia Public Service Commission, 211 Ga. 223; Georgia Public Service Commission v. City of Albany, 180 Ga. 355. While the Commission has general supervisory powers over all common carriers, telephone and telegraph companies, gas or electric light and power companies, etc. (Ga. Code Ann., 93-307), it has been given specific and detailed powers regarding certificates of public convenience and necessity as to motor carriers, gas systems, and telephone systems. Ga. Code Ann. Ch. 68-6; Ga. Laws, 1956, p. 104; Ga. Laws 1950, p. 311. In both the Motor Carrier Act and the Gas Systems Act, the Commission has been given specific authority to revoke or cancel such certificates. Ga. Code Ann., 68-607~ Section 9-Ga. Laws 1956, pp. 104, 108. The Telephone Systems Act of 1950 does not contain any such provision authorizing revocation or cancellation of certificates. On the contrary, it provides that violations of the Act are to be remedied by the application of penalties under Code 93-416 and the criminal provisionS} of Oode 93-9901 (Section 7 of the 1950 Act).
Since the Commission has been given the power to revoke and cancel certificates under certain regulatory acts but not under the Telephons Systems Act, it would be presumed that the General Assembly, under our present law, did not intend for the Commission to have such revocation or cancellation power over Telephone System certificates. Inclusio unius est exclusio alterius. Bailey v. Lumpkin, 1 Ga. 392, 403.

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PUBLIC SERVICE COMMISSION-Jurisdiction

Commission has no jurisdiction over intrastate transportation of Federal Government property.

Honorable Matt L. MeWhorter

May 29, 1958

I am pleased to acknowledge your request as to whether a decision of the Supreme Court of the United States eliminates from the jurisdiction of your Commission regulation of Georgia intrastate transportation rates of the railroads and common and contract motor carriers on movements for account of the United States Government and its various departments and agencies.
On March 3, 1958, the Court struck down a California statute which required the approval by the state's Public Utilities Commission of rates charged by common carriers for transportation of "property of the Armed Forces". The statute provided that "The commission my permit common carriers to transport property at reduced rates for the United States . . . to such extent and subject to such conditions as it may consider just and reasonable". There is a large volume of military traffic in California, and the federal government negotiates special rates with carriers which are substantially equal to or lower than those for regular commercial shipments.
On the merits, the Court found that federal policy, as expressed in statutes and military regulations, provides for federal officers negotiating rates for shipment with discretion to determine when the existing rates will be accepted and when negotiations will be undertaken for lower rates. The California statute would, said the Court, permit exercises of this discretion only if the state commission approved, and this amounts to a prohibition on the federal government. "Here the conflict between the federal policy of negotiated rates and the state policy of regulation of negotiated rates seems to us to be clear", the Court declared pointing out that state regulation might involve the Services in "an administrative morass" that would seriously interfere with national defense.
There is some question as to whether this opinion is limited to the transportation of "property of the Armed Forces". Certainly the decision itself could only be authority as to government owned property. Nevertheless, the dicta of the case could be construed either way with respect to contracts negotiated by the federal government for the transportation of private property of individuals employed by the Armed Forces. For example the opinion itself uses the words "government property" or "United States property" in three separate places. It makes no reference to property other than government owned property. However, in referenc to the statement concerning conflict between federal policy of negotiated rates and state regulation, the opinion could be construed to cover any federal negotiated rate including contracts by the federal government for the transportation of private property of individuals employed by the Armed Forces.
One basis of the California case, the possible "administrative morass", does not exist in the State of Georgia. There was no provision in the California Code or the regulations for the making of a "freight of all kinds" rate which is the practice of the federal government, i.e., unless the gove,rnment could negotiate rates for each shipment, the shipments would be delayed for commission action unless shipped under the established rates. It is my understanding that your Commission permits a "freight of all kinds" rate; therefore, no so-

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called "administrative morass" would result from the exercise of your Commission's jurisdiction.
In conclusion, I am of the opinion that the decision in Public Utilities Commission v. United States, 2 L. Ed. 2d 470 (March 3, 1958), eliminates from the jurisdiction of your Commission regulation of Georgia intrastate transportation rates of the railroads and common and contract motor carriers on movements of government owned property for account of the United States Armed Forces. As to contracts negotiated by the federal government for the transportation of private property of individuals employed by the Armed Forces, the question remains unanswered, and I am unable to give an opinion as to just what would be the ruling of the Supreme Court of the United States.

PUBLIC SERVICE COMMISSION-Jurisdiction

Commission has none over portions of city natural gas system located in county.

Honorable Matt L. McWhorter

March 18, 1958

I am pleased to acknowledge your request concerning the jurisdiction of the Public Service Commission over the City of Austell Natural Gas System' (created through the issuance of revenue-anticipation certificates) with respect to that portion of the system that is located in Douglas County. Your letter states that while the City of Ansell has always been located within the territorial boundaries of Cobb County, House Bill No. 705, passed at the 1958 Session of the General Assembly and signed by the Governor on February 11, 1958, extended the corporate limits of Austell into a portion of Douglas County.
The Georgia Constitution, Article IV, Section I, Paragraph 1 (Ga. Code Ann., 2-2401), defines the power of the General Assembly to regulate utility rates and declares that,
".. Provided, nevertheless, that such power and authority shall never be exercised in any way to regulate or fix charges of such public utilities as are or may be owned or operated by any county or municipality of this State; except as provided in this Constitution."
Article VII, Section VII, Paragraph V (Ga. Code Ann., 2-6605) of the Georgia Constitution, authorizes municipal corporations, counties and other political subdivisions of the state to issue revenue-anticipation certificates to finance the construction of revenue producing facilities authorized in the Revenue Certificate Law of 1937, as amended (Ga. Code Ann. Supp., Chapter 87-8). Paragraph V provides as follows:
"... Provided that after a favorable election has been held as set forth above, if municipalities, counties or other political subdivisions shall purchase, construct, or operate such electric or gas utility plants from the proceeds of said revenue certificates, and extend their services beyond the limits of the county in which the municipality or political subdivision is located, then its services rendered and property located outside said county shall be subject to taxation and regulation as are privately owned and operated utilities."

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An opinion dated March 8, 1956, Opinions of the Attorney General, 1954-56, p. 500-502, involving the interpretation of the Intrastate Pipelines Systems Act of 1956 (Ga. Laws 1956, p. 104) held as follows:
".. that publicly-owned gas or electric facilities extended beyond the county limits with revenue certificates 'shall be subject to taxation regulation as are privately-owned and operated utilities' . . . since H.B. No. 455 [Ga. Laws 1956, p. 104] requires gas utilities to obtain certificates of public convenience and necessity, and since Art. VII, Sec. VII, Par. V of the Georgia Constitution classifies publicly-owned systems in foreign countries for regulatory purposes as privately-owned and operated utilities, it follows that such publicly-owned gas systems are subject to H.B. No. 455 [Ga. Laws 1956, p. 104] with respect to all extensions beyond the limits of their home county and which are financed by revenue certificates." Since the City of Austell Natural Gas System is now "located" in both Douglas County and Cobb County, it is my opinion that the services rendered by the said gas system within the territorial boundaries of the Counties of Douglas and Cobb are not subject to regulation by the Georgia Public Service Commission.

PUBLIC SERVICE COMMISSION-Mergers

Legal effect of railway company mergers.

Honorable Matt L. McWhorter

May 19, 1958

I am pleased to acknowledge your request whether or not the merger of the Nashville, Chattanooga & St. Louis Railway into the Louisville & Nashville Railroad Company resulted in a sublease or re-lease of the Western and Atlantic Railroad property within the meaning of Section 11-A of the Lease Act of 1915 which would require specific approval in writing by the Governor. The lessee of the property was the Nashville, Chattanooga & St. Louis Railway.
Said Section 11-A provides as follows: "The said lessee shall not sublet or re-lease the said Western &
Atlantic Railroad, or any part thereof, without the approval in writing of the Governor of the State; provided, however, that the Commission herein created shall have the power and authority to prescribe the terms and conditions under which the tracks may be used by other railroads in cases of emergency. All improvements, betterments or additions to, in, or upon the said road or any part thereof, or any part leased thereunder, made by the lessee or its tenants, shall become, upon the expiration of the lease, part of and belong to the State of Georgia." Your letter states that by joint application dated January 26, 1955 the Louisville and Nashville Railroad Company (a Kentucky corpo,ration) and the Nashville, Chattanooga and St. Louis Railway (a Tennessee corporation) sought authority from the Interstate Commerce Commission under Section 5(2) of
the Interstate Commerce Act to merge the properties and franchises of the Nashville, Chattanooga and St. Louis Railway into the Louisville and Nashville Railroad Company.

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Your letter also states that at the direction of the Governor and the General Assembly of Georgia, the Georgia Public Service Commission intervened before the Interstate Commerce Commission for the purpose of protecting the interests of the State of Georgia. Following negotiations with the applicants, adequate written assurances were obtained both to safeguard the continuation of the proper, efficient and unrestricted operation of the state-owned Railroad and to safeguard the interests of the citizens of Georgia. By order dated March 1, 1957, in Finance Docket No. 18845 the Interstate Commerce Commission approved the proposed merger and there was contained in that order routing and service provisions which reflect the agreements reached with the applicants and which provide the safeguards sought by the, Georgia Public Service Commission. The merger was consummated on August 30, 1957.
A corporate merger such as in the present case means the absorption of one corporation by another, which retains its name and corporate identity with the added capital, franchises and powers of the merged corporation. Mobley v. Hagedorn Const. Co., 168 Ga. 385; 15 Fletcher Cy. Corp. 7041, p. 8.
While the Louisville and Nashville Railroad Company has here expressly assumed all title and interests of the Nashville, Chattanooga and St. Louis Railway, 15 Fletcher Cy. Corp. 7088, pp. 96-97 states:
"Where there is no provision to the contrary in the agreement of the parties or in the Act under which the combination is effected, the new or continuing company becomes vested with whatever title or interests in property the old companies had. Thus rights under leases held by a corporation pass upon merger or consolidation to the new or absorbing comp~ny. . . . A formal assignment of claims or contracts is not necessary to pass title thereto, in case of merger, to the corporation in which the corporation owning such claim is merged, for they pass without further act or deed."
Also such acquirements by the absorbing company are subject to the same
burdens and liens and restrictions which attached thereto in the hands of the constituent corporation. Tompkins v. Augusta Southern R. Co., 102 Ga. 436; Nadler, Georgia Corporation Law, p. 443. See Ga. Code Ann., 22-1844 (Supp.) as to corporations organized under the Georgia Corporation Act of 1938. Thus we see from the formal agreement of the two Railroads and from the law in the absence of any such agreement, the Louisville and Nashville Railroad Company now has all title and interests of the Nashville, Chattanooga and St. Louis Railway, which includes the lease agreement by the State of Georgia with the Nashville, Chattanooga and St. Louis Railway entered into on May 11, 1917- said lease to expire December 27, 1969.
While a lease is not the same as merger, (15 Fletcher Cy. Corp. 7132, p. 187), the Louisville and Nashville Railroad Company did under the merger agreement assume all obligations of the Nashville, Chattanooga and St. Louis Railway and among those obligations is the said lease agreement of May 11, 1917.
As to the restrictions against subletting or re-leasing the property of the Western and Atlantic Railroad, I Tiffany Real Property, Third Edition, 118 states:
"Covenants and conditions against assignment [le,ases] have been strictly construed by the courts, and have been held not to extend
to assignments by operation of law."
Was this merger agreement between the two Railroads either a sublease

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or re-lease or was it neither i.e., by operation of law? A sublease is "one executed by the lessee of an estate to a third person,
conveying the same estate for a shorter term than that for which the lessee holds it. The distinction between and assignment for a term of years and a sublease or subletting is that if the lessee parts with his entire interest of the term, it constitutes an assignment and not a subletting, although the transfer is in a form a sublease; but if the lessee reserves to himself a reversionary interest in the term, it constitutes a sublease, whatever the form of the transfer." Black's Law Dictionary, p. 1036. Since all interests of the Nashville, Chattanooga and St. Louis Railway passed to the Louisville and Nashville Railroad Company, it is clear from the above definition that the merger agreement was not a subletting of the Western and Atlantic Railroad property.
Webster's International Dictionary, Second Edition, defines the term "release" to mean "a conveyance of a man's right in lands or tenements, to another having an estate in possession." The merger agreement does not contain any formal conveyance of the lease in question and as to whether it amounts to an assignment, Dodier Realty & Inv. Co. v. St. Louis Nat. Baseball Club, - - Mo. - - , 238 S. W. 2d 321, states:
"The merged corporation having succeeded to the rights of the original leases by operation of law it follows that there was no assignment within the prohibition of the covenant in question." See also Wisconsin Electric Power Co. v. Wisconsin Dept. of Taxation, 251 Wis. 346, 29 N. W. 2d 711.
On the basis of the above authorities, I am of the opinion that the merger agreement between the Nashville, Chattanooga and St. Louis Railway and the Louisville and Nashville Railroad Company does not amount to a sublease or re-lease of the property of the Western and Atlantic Railroad under the terms of Section 11-A of the Lease Act of 1915. The Louisville and Nashville Railroad Company has merely absorbed the Nashville, Chattanooga and St. Louis Railway through corporate merger and thereby acquire the interest of the lessee by operation of law. This being the case there is no necessity for any formal approval by the Governor of the agreement.

PUBLIC WELFARE-Eligibility of Recipients (Unofficial)

Recipients of Public Welfare funds and effect of their having illegitimate children.

Mr. Harry E. Sexton

October 1, 1958

I am pleased to acknowledge your letter relative to recipients of aid to dependent children who have an illegitimate child while receiving such aid.
In 1951 the General Assembly enacted the following statute (Georgia Laws 1951, page 692), which has since been repealed by an Act of the General Assembly (Georgia Laws 1952, pages 253, 254):
"99-910. Granting of assistance; grant limited to one illegitimate child. - Upon the completion of such investigation the county department shall decide whether the child is eligible for assistance under

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the provisiOns of this Chapter, and determine in accordance with the rules and regulations of the State Department the amount of such assistance and the date on which such assistance shall begin. The county department shall notify the applicant of its decision. Such assistance shall be paid monthly upon order of the county department from funds allocated to the county department for this purpose. Provided, however, and notwithstanding any of the provisions of this Chapter, no grant of assistance or money payments under the terms of this Chapter shall be made for more than one illegitimate child of a mother by any county welfare department or the State Department of Public Welfare. Should a mother have more than one illigitimate child, then the one grant of assistance or money payment shall be made for the first-born or eldest, if eligible." The reason for the repeal of the above statute was that the Federal Government refused to make grants under the Aid to Dependent Children Program to the State under said statute, and in order to receive such grants made for the Program, the General Assembly repealed same. The existing Law is now codified 99-903 of the Georgia Code and provides as follows:
"99-903. Eligibility for assistance. - Assistance shall be granted under this Chapter to any dependent child who is living in a suitable family home meeting the standards of care and health fixed by the laws of this State and the rules and regulations of the State Department thereunder: Provided, however, and nothwithstanding any of the provisions of this Chapter, each mother applicant for aid to dependent children under the provisions of this Chapter who makes application for benefits to an illegitimate or bastard child shall, in addition to the above eligibility requirements, give in writing, under oath, the full name and last known address of the father of any child claimed as a dependent of the purpose of obtaining aid to dependent children under the provisions of this Chapter."

PUBLIC WELFARE-Total Disability (Unofficial)

Procedure for person desiring benefits for total disability.

Mr. R. I. Craven

January 2, 1958

The State Department of Public Welfare, under the direction of Honorable Alan Kemper, State Office Building, Atlanta, Georgia, is the agency created by state law for the administering of the assistance programs of the Federal Government in the State of Georgia. The State Department, in conformity with State and Federal laws on the subject, promulgate rules and regulations to be followed by the County Welfare Departments, of which there is one in each county of Georgia.
The procedure is for a person desiring benefits under the totally disabled statute to go to the County Welfare Department and make application and this application is passed upon by the County Board of Public Welfare, which is appointed by the County Commissioners of the County subject to the approval of

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the State Department. This County Board must either approve or disapprove the application. If the application is disapproved you can appeal to the State Department of Public Welfare, for a review of the County Board's action. The appeal is made by writing a letter to the County Welfare Department, and mailing it or delivering it to the County Director; also, sending a copy to the State Department of Public Welfare.
You ask an additional question relative to the Support of Dependency Act, and it would not be proper or appropriate for me to pass upon any constitutional question as to the validity of said Act since I am by law required to represent the State Department of Public Welfare, and for the further reason that I can only give an official opinion to the Governor or to the head of a State Department on matters in which the State is involved.
I might say that agreat majority of the States have similar laws to that in Georgia, and they are in full force and effect.

PURCHASES-State-Sale Bidders (Unofficial)

State may not require that bidder be member of private organization, but may require that he be properly licensed and insured.

Mr. T. B. McDorman

October 14, 1959

You ask advice as to whether or not you can require that a bidder be an active member of a private association of LP Gas dealers or distributors, and whether or not you can require that such bidder be properly licensed by the State of Georgia as provided by the State Fire Marshal, and whether or not such bidder must carry liability insurance.
The sale and distribution of liquified petroleum gas is set forth in Chapter 73-301 of the Annotated Code of Georgia and is known as the "Liquefied Petroleum Safety Act of Georgia". Under Code Section 73-306, the State Fire Marshal is authorized and empowered as the prerequisite to the granting of a license or a permit to require that such applicant furnish bond in such amount and terms as the State Fire Marshal may deem advisable and ec:xpedient for the protection of the general public and to indemnify for losses and damages which approc:ximately result from any act of negligence o:f the principal, his agents or employees while he or they may be engaged in the performance of duties with reference to liquefid petroleum business.
Under Code Section 73-309 of the Annotated Code of the State of Georgia, the State Fire Marshal is authorized to issue licenses or permit for the sale and distribution of liquefied petroleum gas.
It is my opinion that you can not require as a prerequisite that a bidder be an active member of any private assocation or organization; but, on the other hand, it would be within your duty to require that a bidded of such products be licensed to properly conduct such business in the State of Georgia, not only for the protection of the State's property, but that of the public who may be injured or damaged by the improper distribution, handling, and other things necessary in supplying and storing of such products on the premises of the agency requesting you to purchase such gas. Likewise, it would also be within your duty to require that such bidder be properly qualified with the State Fire Marshal as to liability insurance as required under the rules and regulations promulgated by the State Fire Marshal for the handling of liquefied petroleum gas.

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PURCHASES-State-Foreign Products (Unofficial)

No statutory prohibition against purchase of foreign products by State, but preference to Georgia products is required.

Mr. C. L. Magnuson

October 15, 1959

I am pleased to acknowledge your letter which has been referred to this Department, and to advise that the only statute applicable to the question raised in your letter is that which provides as follows (Code Section 40-1920, Annotated Code of Georgia):
"Preference to local sellers. The Supervisor of Purchases in awarding of contracts, all things being equal, shall give preference to local sellers of Georgia products when it is possible to do so, and the interest of the State is not sacrificed, and the quality and prices permit it."
The above statutory provision is codified from the Georgia Laws of 1937, pp. 503, 512.
There is no statutory provision prohibiting purchases of foreign products by the State of Georgia except as above set forth, which is not a prohibition but provides that Georgia products shall be given preference under the conditions outlined in said statute.

PURCHASES-State-Supervisor of Purchases

Supervisor of Purchases may not allow any department to purchase supplies except upon requisition and purchase orders, unless specificially exempted by law.

Honorable C. L. Shaw

September 5, 1958

I am pleased to acknowledge your request that I advise you whether or not you as supervisor of purchases have the authority to eliminate requisitions requesting purchase orders to be issued on miscellaneous items bought for legal investigational purposes.
You state that such samples are purchased for obtaining evidence of compliance with the laws incumbent upon the commissioner of agriculture to require compliance.
All of the authority vested in the supervisor of purchases of the State of Georgia is contained in Chapter 40-19 of the Annotated Code of Georgia. Section 41J-1906.1 specifically provides that it shall he the duty of the State supervisor of purchases to contract for the purchase of all supplies, materials, and equipment required by the State government. This chapter also provides that the various departments, institutions, and agencies of the State shall make requisitions on forms approved by the supervisor of purchases of such supplies, materials, and equipment required by them, and provides that if such departments, institutions, and agencies shall purchase any supplies, materials, and equipment from other sources as certified to them by supervisor of purchases, that it shall be unlawful.

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Section 40-1916 provides the only exceptions for the purchase of supplies\ materials, and equipment by the supervisor of purchases. These exception apply to < technical instruments and supplies and technical books and other printed matter on technical subjects; also manuscripts, maps, books and periodicals for the use of the State library, livestock for slaughter, and perishable articles such as fresh vegetables, fresh meat, butter, eggs, poultry and milk, emergency supplies of drugs, chemicals and sundries, dental supplies and equipment. And jlll of these items of emergency supplies shall be reported to the supervisor of pUrchases, giving a full report of the transaction and the emergency in full detail to be recorded and the record book or file shall be kept by the supervisor of purchases.
Sectio~ 40-1919 provides 'that if any department, institution, or agency purchases any supplies, materials or equipment contrary to the provisions of Chapter 40-19, or the rules and regulations promulgated thereunder, the executive officer of such department, institution, or agency shall be personally liable for tre cost thereof.
In the request attached to your letter, reference is made to the purchase of samples, but there is no explanation as to the samples or what kind of articles are in question. Therefore, it must be assumed for the purpose of answering your request that such samples referred to are articles of merchandise which the department of agriculture desires to purchase for the purpose of carrying on the duties imposed upon the State Department of Agriculture by law.
There can be no doubt that when a department, institution, or agency of the State requires any supplies or materials which are needed and used in the performance of the duties imposed upon such department, agency or institution, that such supplies and materials are those mentioned in Chapter 40-1901 of the Code. Therefore, anything purchased by such department or agency for the ;carrying on of its duties would without any question be supplies or materials necessary for the proper operation of the department unless such supplies and materials fell within one of the exceptions above enumerated.
It is my opinion that you would not be authorized to create an exception allowing any department or agency of the State of Georgia to purchase any supplies or materials necessary in the operation of said departments or agencies except upon the procedure of requisitions and purchase orders as established in your department.
.~>The General Assembly has seen fit to specify those items of supplies and materials for which it is not mandatory to purchase through the supervisor of purchases, and which are set forth in Code 40-1906, and if any department, agency, or, institution of the State has any problems of hardship, the solution to the problem is through the General Assembly to grant relief, but you, yourself,;ii!.S supervisor ,of purchases have no such power.

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PURCHASES-State-:-Supplies.

Liquified petroleum gas is a "supple" .and thus com~etit!ve bids must be secured to State purchase.

General Alvan C. Gillem, Jr.

September 29, 1959

Pursuant to your request, I have reviewed the matter of purchasing liquified
as petroleum gas at the Alexander Stephens State Park, and it is my opinion that
liquified petroleum gas is a usable commodity within the ter~ "supplies'' used in Code Section 40-1906.1, which makes it the duty of the State Supervisor of Purchases to contract for the purchase of all supplies, materials .and equipment required by the State Government.
Under the above cited provision of law and the provisions of Chapter 40-19 of the Code of Georgia, which requires competitive bids on supplies and materials, except for emergency purchases, it is my further opinion that it is your duty to obtain competitive bids for the purchase of liquified petroleum gas fo;r use and consumption by the State Government.

STATE GOVERNMENT-Department of Commerce

Department of Commerce acquired all powers, duties, and authority of State Planning Commission, and thus may receive and accept gifts, grants, or services from Federal Government, and administer and expend such funds.

Honorable Abit Massey

May 1; 1959

You req11est my opinion as to the authority of the Director of the Department of Commerce of the State of Georgia with respect to the receiving at)~

expending Federal and other funds, entering into contracts with the United

States Government, and providing planning assistance to municipalities, in view

of Acts 35 and 337, Senate Bills 12 and 82 respectively, of the 1959 Session of the General Assembly, having an effect of changing the 1957 Act No. 368 upo~

which an opinion by me of July 19, 1959 was based.



Senate Bill 12, Act No. 35, approved February 17, 1959, abolished the State :Planning Commission and the office of Director of Planning and transferred the powers, duties and functions of the State Planning Commission to the Board of Commissioners of the Department of Commerce.

Act 337, Senate Bill 82, approved March 17, 1959, abolished the Boa:rd ..of Commissioners of the Department of Commerce and transferred its powers, duties and functions to the Director of the Department of Commerce.

I am of the opinion that all the powers, duties, authorities and :!'unctions granted or imposed by law in the State Planning Commission, abolished as above .stated, and the Board of Commissioners of the Department of Commerce, abolished as above stated, are now by law under the provisions of Senate Bill 82, Act 337,. approved March 17, 1959, vested in the Director of the Department of Commerce, and that said Director, with the approval of the Governor, may re'ceive and l:(ccept gifts, grants, or services from the Federal Government and may admj~ister and .expend. such funds, enter into agreements. and _contra.Cts .with

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the United States as provided by law, and provide planning assistance to communities, municipalities, or other local governments within the State of Georgia as provided by law and availability of funds appropriated or expendable according to law.

STATE GOVERNMENT-Department of Defense

Local Civil Defense Directors are appointed by Mayors of municipalities, and by Commissioners of Roads and Revenues for counties.

Major General Charlie F. Camp

September 9, 1958

Receipt is hereby acknowledged of your request for my opinion relative to a question concerning appointment of a local Civil Defense Director for the City of Marietta.
Your letter states that a disagreement has arisen between the Mayor and City Council as to who has the authority under law to make the nomination, the Mayor having on July 31st nominated one person who was appointed by the Governor, whereas subsequently thereto you received copy of the minutes of the City Council purporting to nominate someone, else.
The Georgia Civil Defense Act of 1951 (Ga. Laws 1951, p. 224), in Code 86-1809 (Supp.) provides in part that,
"The executive officer or governing body of the political subdivision is authorized to nominate a director who shall be appointed by the Governor . ."
The question thus turns upon whether or not the Mayor or Council constitutes the "executive officer or governing body of the political subdivision" as used in the above quoted provision.
To begin with, the Mayor is the "Chief Executive Office,r" of a municipality. McQuillin on Municipal Corporations, 3rd Ed., 12.41. Specifically, Section 20 of the charter of Marietta so declares. See Ga. Laws 1904, pp. 519, 525, as amended, Ga. Laws 1952, p. 2246.
On the other hand, it is equally well-settled that, "The generally accepted meaning of the phrase 'governing authority' or 'governing body', in reference to the operation of city or county governments, is a council or board performing legislative functions." Humthlett v. Reeves, 212 Ga. 8, 12; 18A Words and Phrases, p. 239. The office of mayor and council are distinct and separate. Palmer v. Claxton, 206 Ga. 860, 863.
It is thus seen that technically a contradiction e,xists in the, wording of 86-1809. Its language is in the disjunctive, but obviously it was not the intention of th~ Legislature to permit either the mayor or the council to make the nomination, depending upon the fortuitous circumstances of which was first beset by the inclination to act. Statutes should receive a reasonable' construction, and one that will not render them difficult of enforcement. Roberts v. State, 4 Ga. App. 207 (2). Conflicting intentions are never presumed. Kiser & Co. v. Doyal, et al., 51 Ga. App. 30, 33.
However, solution may be found in the rule that words of a statute are to be construed in connection with their context, Amorous v. State, 1 Ga. App. 313

815
(1); Davis v. Fitzgerald, 6 Ga. App. 532, and the statute must be examined as a whole, and its different provisions reconciled if possible. Carroll v. Ragsdale, 192 Ga. 118, 121.
In the present case, the Civil Defense Act establishes a program whereby Civil Defense activities may be conducted by local political subdivisions in cooperation with and subject to general supervision .of, a centralized state agency. A careful re,ading of Code 86-1809 (Supp.) indicates that the General Assembly apparently had municipalities principally in mind as the local participating units. They are mentioned first and most prominently therein. Also, generally but not necessarily always, the municipal governments of our larger cities are more highly organized and thereby have greater capabilities for coordinated activities than the traditional county governments. However, some counties which have become increasingly urban in nature, have assumed a more refined and complex governmental structure, and the Legislature evidently had this in mind to a, lesser degree, for there was also included in the definition of "political subdivision" as used in 86-1809 (Supp.) a reference to "counties where the Governor has established a local organization for the county ..."
Therefore, it would seem that the disjunctive terminology of 86-1809 (Supp.), i.e., "executive officer" vis-a-vis "governing body", was placed in the Act for the purpose of providing designations that would be appropriate to both municipal and county governments. While most municipalities have an "executive officer" in the form of a mayor, a majority of counties in this state are governed by Boards of Commissioners of Roads and Revenues, having a plurality of members whose duties are both legislative and executive in character, although the latter undoubtedly predominate. See Constitution, 2-7806. I am accordingly of the opinion that as to municipalities, the word "executive officer" should be considered as controlling, whereas the words "governing body" primarily relate to counties. It necessarily follows then that the nomination by the mayor should be given effect.

STATE GOVERNMENT-Department of Defense

Civil Defense agreements reviewed.

Major General George J. Hearn

June 9, 1959

I am in receipt of your request for my opinion in relation to the following questions relating to an agreement concerning the civil defense organization of the City of Atlanta and Fulton and DeKalb Counties:
1. Under the State Civil Defense Act of 1951 as amended, can this agreement be considered a legal document?
2. Do you consider this document as fulfilling the requirements that each county and city pass an ordinance or resolution establishing Civil Defense?
3. If the agreement is legal, does it except local political jurisdiction, such as East Point, Decatur, etc. or is it all included?
4. Should the agreement spell out the political boundaries or coverage? I am. of the opinion that the referenced agreement is a legal document; however, It does not seem to fulfill the requirements that each city establish a local organization for civil defense as set forth in Georgia Code Annotated,

316
Section 86-1809 and, therefore, would not enable the director of same to be eligible for surplus property under the requirements set forth in Surplus Property Information Bulletin No. 1. In this connection, I would like to call your attention to Georgia Code Annotated, Section 86-1809(a), which reads:
"Each city of this State having a population of 1,000 or more is hereby authorized and directed to establish a local organization for civil defense in accordance with the State civil defense plan and program. The Governor, or the Director at the request of the Governor, may also establish local organizations in other cities or counties whenever he determines. there exists a need for such local organizations. (The term 'political subdivision' for the purpose of this Chapter shall mean: (1) Cities having a population of over 1,000; (2) Cities having a population of less than 1,000 in which the Governor has established a local organization; and (3) Counties where the Governor has established a local organization for the county and defined its territorial jurisdiction). The executive officer or governing body of the political subdivision is authorized to nominate a director who shall be appointed by the Governor and shall direct responsibility for the organization, administration and operation of such local organization for civil defense, subject to the direction and control of such executive officer or governing body. Each organization for civil defense shall perform civil-defense functions within the territorial limits of the political subdivision within which it is organized, and in addition, shall conduct such functions outside of such territorial limits as may be required pursuant to the provisions of this Chapter." and Georgia Code Annotated, Section 86-1808(a), which reads:
"The director of each local organization for civil defense may, in collaboration with other public and private agencies within this State, develop or cause to be developed mutual aid arrangements for reciprocal civil defense aid and assistance in case of disaster too great to be dealt with unassisted. Such arrangements shall be consistent with the State civil defense plan and program, and in time of emergency it shall be the duty of each local organization for civil defense to render assistance in accordance with the provisions of such mutual aid arrangements." It appears that the subject agreement is an attempted combination of two steps contemplated by the Georgia Civil Defense Act of 1951. First is the establishment of a, local organization for civil defense along with the appointment of a director and the second is the development of mutual aid arrangements for reciprocal civil defense aid and assistance in case of disaster too great to be dealt with unassisted. I am of the opinion that it is the intent of the "Georgia Civil Defense Act of 1951" to have the local organization for civil defense established and organized in the various political subdivisions, using the definition given political subdivisions in the act; and it is the further intention of the act that the director of each local organization for civil defense may, in collaboration with other publiG and private agencies cause to be developed mutual aid arrangements foJ;" reciprocal civil defense aid and assistance. It would appear that the various poiitical subdivisions included in the agreement under discussion could, by following the act, nominate the present director as their director and thereby secure his appointment by the Governor so that he could qualify to draw surplus property under the regulations set forth in Surplus Property Information Bulletin No. 1.

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In answer to questions 3 and 4, I refer you to the above quote from Georgia Code Annotated, Section 86-1809 which, in my opinion, authorizes the Governor or the Director at the Governor's request to establish local organizations in cities having a population of less than 1,000 and in counties whenever the Governor, or the Director as the case may be in case of delegated power, deter~ mines there exist a need. The act, in my opinion, further contemplates that the Governor or the Director upon establishing a county organization will define its territorial jurisdiction. In this connection, you are referred to Georgia Code Annotated, Section 86-1809 (a) quoted above.

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STATE GOVERNMENT-Department of Public Welfare-Employees

Educational leave policies of State Department of Public Welfare for its employees discussed.

Honorable Alan Kemper

June 10, 1959

This wlll acknowledge your letter enclosing proposed rev1s1on to the educational leave policies of the Georgia Department of Public Welfare, along with a copy of the proposed educational leave agreement, setting forth the terms of scholarships which you propose to authorize under the provisions of the amendment to the Constitution of the State proposed by House Resolution approved March 13, 1957, Georgia Laws 57, Volume 1, p. 528, 530.
The above amendment to the Constitution was ratified by the voters in the 1958 General Election. Under this amendment the State Department of Public Welfare has the authority to disburse State funds to match Federal funds to provide qualified employees with graduate or post-graduate scholarships urider certain terms and conditions. Please note that the personnel to whom these scholarships are extended must, as a prerequisite to obtaining such scholarship, agree to work for the department or agency granting the scholarship for at least two years for each year spent in study, or refund the money received for said scholarship pro rata. It is the duty of the' State Department involved to receive and pass upon, allow or disallow such applications for scholarships in accordance with rules and regulations prescribed by the State Department, and to manage, operate and control all funds used for this purpose.
The amendment provides that no additional appropriation shall be made by the General Assembly to finance such scholarships, but the same shall be financed from the regular appropriations to the various State departments and State agencies.
The provision for the cost of operating the State Department of Public Welfare is found in Section l3(a) of the General Appropriations Act of 1956, 1956 Laws, Volume 1, p. 770, the amount appropriated being the sum of $500,000. Of course, you understand that the expenditure of this fund is subject to budgetary approval, and it is suggested that such a scholarship before being approved by the Director of the State Department of Public Welfare, shall first be submitted to the Budget Bureau and approval obtained for the entire period of time covered by the proposed scholarship. Otherwise, the Director of the Welfare Department may find himself approving a scholarship and obtain-

318
ing approval for one quarter from the Budget Bureau, whereas approval should be obtained for the entire term of the scholarship and contract.
It is also suggested that in order to protect the interest of the State of Georgia in the disbursement of such State funds, that a contract in each instance be entered into between the State Department of Public Welfare and the individual applying for such scholarship, the terms of which shall conform strictly with the Constitutional amendment above outlined, and shall include agreement that the person to whom the scholarship is granted shall work for the Department of Public Welfare for at least two years for each year spent in study, or refund the money received for said scholarship pro rata.
It is also suggested that your rules and regulations include provision that such agreement be accompanied by an adequate surety bond payable to the State Department of Public Welfare covering faithful performance of such agreement.
Subject to the above outline, it is my opinion that the expenditure of State funds for matching Federal funds to provide such scholarships will be in order.

STATE GOVERNMENT-Department of Veterans Service

Duties of the Director of the Department of Veterans Service, the Veterans Se,rvice Board, and the Merit System Council discussed.

Honorable A. L. Henson

July 18, 1958

This will acknowledge receipt of your request for my opinion with respect to several questions concerning the relative duties of the Director of the State Department of Ve,terans Service and the Veterans Service Board, as well as a question concerning the relative authority of the Merit System Council.
Since these questions are all related, I am combining them all in this one opinion.
First, with respect to the respective duties of the Board and the Director, the State Department of Veterans Service was created by Act of 1945 (Ga. Laws 1945, p. 319, as amended, Ga. Laws 1956 Vol. I, p. 160, as amended, Ga. Laws 1957 Vol. I, p. 165), and codified as Code Ann., Chap. 78-4 (Supp.).
Section 78-401 (Supp.) declares, inter alia: ".. The Department of Veterans Service shall be administered by
a State Director of Veterans ServicQ and State Board of Veterans Service comprised of seven members. The Director of Vete,rans Service shall be the executive officer of the Department and shall be charged with the administrative responsibilities of the Department in conformity with the orders, rules and regulations of the State, Board of Veterans Service."
Section 78-407 (Supp.) provides that the Board shall appoint the Director, who shall serve for four years, and who shall be the, chief executive and administrative official of the Department and of the Board, and Section 78-405 (Supp.) provides that the State Board shall recommend to the Director matters of policy, procedure and work projects.

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Section 78-406 (Supp.) provides: "It shall be the duty of the Director to effectuate and carry out
the laws of the State pertaining to veterans, and likewise to perform the duties required of him by law and by regulation of the Board." Also, Code Section 78-409 (1957 Supp.) declares in part,
"The Director, as executive officer of the Department of Veterans Service and the Board shall be in charge of the administration of all matters pertaining to veterans' affairs under the terms and provisions of this Chapetr, and in conformity with rules and regulations of the Board. Section 78-412 (Supp.) provides:
"The Director of the State Department of Veterans Service is authorized and directed to employ competent personnel to assist in the administration of the Department of Veterans Service. . . . As executive officer the Director shall have exclusive authority to employ personnel necessary to carry out the purposes of this Chapter, and shall define the duties of employees, assign their official stations, and fix their compensation."
It is therefore seen from the above as well as other provisions throughout the Act that the Director is referred to as the "executive officer." An "executive officer" is one in whom resides the power to execute the laws. People v. Salsbury, 134 Mich. 529, 96 N. W. 936, 939. Arkansas Amusement Corp. v. Kemper, 182 Ark. 897, 33 S. W. 2d 42, 43 (1930), it is said:
"... An executive officer or employee is one who assumes command or control and directs the course of the business, or some part thereof, and who outlines the duties and directs the work of subordinate employees. . . ." On the other hand, the Act speaks of the Board in the context of such words as "policy", "regulations", "rules", etc.
On the basis of the foregoing I conclude that it is the duty of the Board to prescribe by regulations or orders the broad policies or general plan by which the affairs of the Department are to be conducted. The actual duty of executing these policies and directing the day-to-day activities of the Department are vested in the Director. He alone has the duty of determining the routine details as to the manner of execution, and the selection, hiring, discharge and supervision of employees of the Department.
When the Board has established a policy or rule, governing the transaction of the Department's business, its authority has been expended, and while it is the duty of the Director to execute, implement and give effect to all such lawful policies and rules, the law does not anticipate or expect that the Board shall itself administer them or interfe,re with the Director in performing the administrative duties vested in him by law.
Second, your letters seek my opinion on the question as to whether or not ~he Board and the Director may take any effective action which would change )r modify the organizational structure or classification plans as prescribed by ;he Merit System Council for employees of the State Department of Veterans Service placed under the merit system by executive order of the Governor.
In 1943 the General Assembly enacted a comprehensive Act establishing t "merit system of personnel administration covering the employees of the 3tate" who were either therein declared to be subject to the Act or later placed ;hereunder by excutive order of the Governor, Section 40-2242, or else by special

320
legislative Act. See Ga. Laws 1943, p. 171 (Code Chap. 40-22). The effect of this Act was to amend the Act creating every state department then or thereafter subject thereto. Cf. Reed v. City of Smyrna, 201 Ga. 228(7).
Under the Merit System Act, it is the Council's duty to adopt and amend rules and regulations providing for "the establishment and maintenance of classification and compensation plans, the conduct of examinations and the establishment of registers of persons eligible for appointment under the merit system, the certification of eligible persons, appointments, promotions, transfers, demotions, separation, tenure, reinstatement, appeals, service ratings, payroll certification and other phases of merit system administration." Code Section 402207 (b).
Such classification plans and schedules have been established for the employees of the Veterans Service Department and are now in force.
In construing statutes, the cardinal rule is to determine the intention of the Legislature, Code Section 102-102(9). Acts in pari materia are to be construed together to determine this intent, Huntl'linger v. State, 200 Ga. 127, 131, so as to harmonize all parts thereof and give effect to each. Ryan v. Chatham County, 203 Ga. 730.
Therefore, I conclude that the "exclusive authority" of the Director over the employment, promotion, compensation and dismissal of employees, conferred by Code Section 78-412 (Supp.), previously quoted herein, has been accordingly modified by the Act creating the Merit System, and that neither the Director nor the Board has authority to change or alter classification plans established pursuant to law. Of course, the Board has authority to promulgate policies and general regulations governing employees of the Department, but they must not conflict in any way with the classification plans and other regulations of the Merit System Council, nor can the Board undertake to usurp the administrative functions of the Director with respect to employees of the Department.
The Act creating the Merit System does not take away the Director's authority over appointment, promotion, demotion and dismissal of employees affected but his actions in these matters must conform to the rules and regulations of the Merit System Council, insofar as such rules are not in conflict with the provisions of the Merit System Act and other laws of the State.

S'fATE GOVERNMENT-Employees-Aliens

State of Georgia may not hire aleins except when American citizens are not available.

Honorable Edwin L. Swain

July 30, 1959

I am pleased to reply to your request for an Oplmon as to whether or not a citizen of Canada can be employed by the State Department of Public Healtl to carry on a joint research project between the University of Wisconsin anc the Georgia Department of Public Health.
Section 89-106 of the 1958 Cumulative Pocket Part, Annotated Code oJ Georgia, provides:
"Aliens not to be employed. - No department of the State Govern-

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ment or any political subdivision thereof shall employ any alien for any purpose until a thorough investigation has been made and it is ascertained that there is no qualified American citizen available to perform the duty desired by the State of Georgia, any department thereof or any political subdivision thereof. Provided, however, that any institution of the University System of Georgia may employ any alien who is attending such institution as a student, and any such institution may employ an alien for a period of time not to exceed one year, or enter into exchange professorship agreements with institutions, foreign or otherwise, where aliens are involved, for a period of time not to exceed one year, all subject to the restrictions of this proviso but without regard to the remainder of this section. (Acts 1937-38, Extra. Sess., p. 189; 1955, p. 383.)"
Section 89-107 of the said Code provides:
"Officer employing alien removable. - Any department head or any official of any political subdivision in this State that violates the term of section 89-106 shall be subject to removal from office by the Governor. (Acts 1937-38, Ex. Sess., p. 189.)"
The above cited statutory provisions are clear in providing that no departnent of the State Government of Georgia or political subdivision thereof may Jmploy an alien for any purpose until a thorough investigation has been made wd it is ascertained that there is no qualified American citizen available to Jerform the duty desired by the State of Georgia, or any department thereof Jr any political subdivision thereof.
Should the State Department of Public Health, after a thorough investiga;ion having been made, ascert:1in that there is no qualified American citizen wailable to perform the duties of the position for which they seek to fill, then ;hey would not be prohibited from hiring an alien to, perform such duties.
It is my suggestion that in the event that such thorough investigation is nade and ascertainment made as provided in the above cited statutes that the )irector of the State Department of Public Health file with the State Merit ;ystem a certificate of such finding in order that a record may be kept of he facts found through such investigation.

!TATE GOVERNMENT-Expenditure of State Funds

Governor not authorized to expend State funds directly to municipalities in absence of valid contract, and unless made in accordance with appro~
priations of General Assembly and provisions of budget laws of State.

1onorable Marvin Griffin, Governor

November 25, 1958

You request my opinion as to whether or not the State of Georgia, through ou as Governor, can expend State funds to reimburse the City of Milledgeville, ~eorgia, for labor and materials furnished by the City of Milledgeville in con-
tructing a sewer trunk line for this municipality, to which institutions of the tate; namely, The Milledgeville State Hospital, The State Training School for :oys, National Guard Armory, and the Milledgeville State Hospital Dairy Farm

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would be connected. With your request was enclosed a letter from the Mayor ,of the City of
Milledgeville and invoices from the City of Milledgeville to the State agencies above mentioned, totaling $20,759.00. There is no law which would authorize you as Governor of Georgia to expend State funds directly to the City of Milledgeville to pay the invoices submitted.
All expenditures and public funds must be made in accordance with appropriations of the General Assembly and the provisions of the budget laws of this State.
Article 7, Section 6, Paragraph 1 of the Constitution of Georgia provides that a State agency may contract for a period not exceeding fifty years with a municipality for the use of any facility or service of a municipality, provided that such contract shall deal with such activity and transaction as such governmental agencies are by law authorized to undertake.
However, I do not have before me the existence of any such contract applicable to the invoices submitted. Of course, it must be pointed out that such contracts would necessarily involve facilities and services, and not reimbursement, for public works contracted for and handled exclusively by the municipality prior to the existence of a contract.

STATE GOVERNMENT-Georgia Commission on Alcoholism.

1. Records of Commission are confidential and should not be divulged except upon court order.
2. Patients are of two types, voluntary, and involuntary. Upon request by authorities with proper warrants, voluntary should be turned over, however patients committed to Commission by courts should be retained until authorized for release by the Commission.

Mr. Charles B. Methvin

November 13, 1959

I am pleased to reply to your letter in which you state that you are from time to time requested by the courts and attorneys to give information concerning your record and case histories of patients at your facilities, and that it is your interpretation that the records and case histories of the patients at your facilities is privileged information and that you are not required to give it to the court or to an attorney without an official order or subpoena from a court, and that it is your further understanding that said records and case histories would have no meaning to the court without professional interpretation from one of your physicians or psychiatrists.
Code Section 88-819a of the 1958 Cumulative Pocket Part of the Annotated Code of Georgia provides as follows:
". . . The record of any individual committed to the Commission for treatment, guidance and rehabilitiation shall be confidential and the contents thereof shall not be divulged except on order of a court of competent jurisdiction."
The above statute is clear in providing that the records and case histories of patients in your institution are confidential and should not be divulged ex.

828
cept upon an order of a court of competent jurisdiction, Your understanding as the meaning of these documents to the court is
erroneous where you take the position that the documents would have no meaning to the court without interpretation by one of your own physicians or psychiatrists. The records are the highest and best evidence in a court of law and their meaning and interpretation would be that as found by the court or its component parts.
Whenever you are served with a subpoena or court order for the production of case historie,s and records of patients in your institution they should be produced in court at the time, place and date as shown on said subpoena and should be accompanied by the keeper of the records. It is suggested that in such event you also have produced a Photostat copy of such case history and record of the patient, and usually the court will allow the substitution of the Photostat copie,s for the original records. In all instances the person delivering the original reco,rds in court should remain and return the records, as' soon as the court is finished with them unless the records are impounded by specific order of the court.
You also mention that from time to time a warrant is served on one of your patients and that at times authorities want to apprehend a patient fo,r transfer to jail.
Under the Georgia Commission on Alcoholism Act as codified in Chapter 88-8a of the 1958 Code of Georgia you have two types of patients, to wit: (a) voluntary patients; (b) patients committed by competent cour~s. It is my view that if a patient has been committed to your institution by a court of competent jurisdiction as set forth in the Act creating your Commission that you would not be authorized to surrender him or her until such time as your medical staff deemed it advisable to release him to the custody of the official making the demand. However, the provisions of the Act creating your Commission provides ample authority for your Commission to release any patient committed by the courts when you deem it advisable. So, therefore, insofar as patients committed by competent courts are concerned, you should if requested by an arresting official under due process place a detainer and hold the patient in your custody until you de,em his condition such to warrant the turning him or her over to the arresting officer who holds an appropriate warrant. Each such case must be judged on it,s own merits and under no circumstances would you desire your facilities to become a haven for the hiding out of any person from due p~rocess of arrest under the guise of treatment for alcoholism.
In the voluntary type of patients; that is, the patient who comes to you voluntarily, and who may leave upon his own request, it would be my view that you should release him to the arresting officer upon the presentation of a proper warrant for his arrest for' any crime alleged to be committed.

STATE GOVERNMENT-Georgia Commission on Alcoholism

The facilities of the Commission are not authorized for use by anyone to carry out the program of an individual person, firm or corporation.

Honorable Charles B. Methvin

June 9, 1958

I am pleased to acknowledge your letter and to advise that the Georgia Commission on Alcoholism was created by the Acts of the General Assembly of

we- 1951, pages 806-814, for the specific purpose of maintaining facilities,
grams and procedures within the State of Georgia for the control and treat-
ment of alcoholism.
The duties of the Commsision are set out under 88-807a of the .1955 CumUlative Pocket Part of the 1933 Annotated Code of Georgia, and all of. these duties set forth relate to the study of the problem of alcoholism, including methods and facilities available, for the care, custody, detention, treatment, em-
ployment and rehabilitation of alcoholics. The. Georgia Commission on Alcoholism would not be authorized to 1Ise~ or,
allow its facilities to be used except for the express purposes as procvided by
the Statute.
The Commission would not be authorized to allow its facilities to be used by any pe~'s,on, firm or corporation for the canying on of any program as an individual person, firm or corporation. The facilities operatecf by the Georgia Com~is~ion on Alcoholism must and can only be used for the purposes enumer~ted in the Statute concerning alcoholiGm as above cited.

---------------
'",)

S,TATE GOYERNMENT-Georgia Historical Commission

The Commission may make demand and possible institute sliit, to recover for damages to its markers.

~rs. Mary G. Jewett

November 25, 1959

':!'his will acknowledge receipt of your letter in which you ask if the Georgia Historical Commission could collect for dam~tges svstained to its markers.
In my opinion the answer is in the affirmative. There is no specific statute that I have been able to find that allows the Georgia Historical Commission to sue )or be sued; but since this body is a part of the State of Georgia and the State'of Georgia does have the inherent right to sue, I think it would be enHre1y propei' for you to make a demand upon the negligent party or parties and in the event they fail to respond for you to take the appropriate legal action to enforce your demand. I respectfully suggest, though, that before yo~l institute any type of suit that you make a demand by letter and perhaps that might preclude the necessity of such ~i suit.
All of the foregoing assumes in the instant case that the marker is owned by the Georgia Historical Commission and that it is placed in lands owned by the Commission. Of course, it might be possible for these markers to be placed in lands owned by the State of Georgia and not specifically owned by the Commission. An example would be that you could place a mmker on a high-
way right of way which actually is owned by the State Highway Department.
As you li:no-w, the State Highway Department does have a statute authorizing it
a to. sue and be sued. Then the question arises as to whether the marker has be-
c"o~e part of the realty. However, this situation is not apparent from your letter, but I thought perhaps you would like to bear it in mind for future action.

325

STATE GOVERNMENT-Georgia Historical Commission

Commission is not authorized to apply receipts of a particular museum to maintenance and operation of that project, but should deposit all il]regula:r operating account of Commission.

Mr. C. E. Gregory

March 6, 1959

I am pleased to acknowledge your letter in which you state that tl{e Georgia Historical Commission is operating museums at the Chief Van House, Chatsworth, Etowah Mounds, Cartersvil1e, and .Jarrett Manor, Toccoa, and that a charge of from twenty-five cents (25c) to fifty cents (50c) for adults and ten cents (10c) for children is being collected for admission.
You further state that your Commission requires the custodians of these museums to make weekly deposits of such admission fees in their local banks, and you desire to be advised if you can apply the receipts. of each project or museum to the maintenance and operation of that particular project. You cffiention that a majority of your Commission Members think they can colJect and spend such admission fees just as the various Examining Boards under the Secretary of State collects and disburses fees.
The Examining Boards referred to above have specific appropriations and all of their income goes into the State Treasury, and I would suggest that you check with the State Auditor relative to the actual procedure involved therein.
It is my considered opinion that all funds deposited above operating costs of each of the above operated museums shall be deposited in the regular operating account of the Georgia Historical Commission subject to the State budget laws and regulations adopted pursuant thereto by the State Budget Bureau as all other public funds are deposited, and you would not be authorized to disburse the same in any other manner.
Since it is mentioned in your letter, your particular attention is called to the fact that the deposit of funds of the State must be made in banks that' have secured the State from any loss of such funds in said banks, and you should also check this with the State Auditor as to whether or not the funds .ihat you have on deposit are correctly deposited.

STATE GOVERNMENT-Georgia Real Estate Commission

The Georgia Real Estate Commission may hold its meetings or hfo)arings in any county of the State in which it has jurisdiction.

Honorable L. C. Pitts

November 18,. 1958

Your letter sta,ted that you desired to hold a hearing in Savannah with reference. to charges pending against a real estate1 broker there.
Code 81-102 is derived from the Act of 1943 (Ga. Laws, 1943, p. 370) and is a general provision relating to all Boards operating under the Joint Secretary.
On the other hand, Code 84-1404, relating specificially to the Georgia Real Estat"C Commission, which was de.rived from an Act of 1941 (Ga. Laws 1941, p. 342) and re-enacted in 1949 (Ga. Laws 1949, pp. 943, 944) providesjn .part.

326
"The Commission may hold its meetings in any county in this state over which it has jurisdiction." To begin with, the above provision, being the latest expression of the General Assembly, must control. Cairo Banking Go. v. Ponder, 131 Ga. 708, 710; Burgamy v. State, 114 Ga. 852 (1); Puckett v. Young, 112 Ga. 578, 583. Second, it is uniformily held that special provisions control as against general ones which would control in the absence of the special. Missouri v. Poss (1936) 299 U.S. 72, 76, 81 L. Ed. 46, 49, 57 S. Ct. 60; Ginsberg & Sons, Inc. v. Popkin (1932) 285 U.S. 204, 208, 76 L. Ed. 704, 708, 52 S., Ct. 322; Kepner \'. United States (1904) 195 U.S. 100 ,125, 49 L. Ed. 114, 123, 24 S. Ct. 797.
STATE GOVERNMENT-Great Seal-Use of (Unofficial)
Limitations on use of Great Seal of State, and description of Great Seal.
November 2, 1959
Honorable Claude H. Hall
This will acknowledge receipt of your letter in which you ask if the use of the "Georgia Seal" would be legal.
I assume that you are referring to the great seal of the State and my answer is predicated on that assumption.
Section 2-3201 of the 1933 Code of Georgia as amended provide's as follows: "2-3201. (6496) Paragraph I. Great seal; what constituties; cus-
tody; when affixed to instruments. - The great seal of the State shall be deposited in the office of the Secretary of State and shall not be, affixed to any instrument of writing except by order of the Go:vernor or General Assembly, and that now in use shall be the great seal of the State until otherwise provided by law." Section 26-3915 of the 1933 Code of Georgia as amended pro:vides as follows:
"26-3915. (246 P. C.) Forging or using forged public seals. - Any person who shall falsely and fraudently forge or counterfeit or be concerned in forging and counterfeiting the great seal of this State, or any other seal authorized by law, or shall falsely and fraudulently cause or procure the same to be forged and counterfeited, or shall falsely, fraudulently, and knowingly impress, or cause to be impressed, any instrument with such forged and counterfeit seal, or shall falsely, fraudulently, and knowingly affix it or cause it to be affixed to any instrument, or shall falsely and fraudulently utter or publish any instrument impressed with it, knowing it to be forged and counterfeit, shall be punished by imprisonment and labor in the penitentiary for not less than two years nor more than 10 years. (Cobb, 802, 803.)" From the preceding Sections it is apparent that if the great seal is not used in accordance with the law, then there is a penal provision that applies for its ille,gal use. Just for informational purposes I thought you might be interested in the description of the great seal as it is described in Section 40-701 of t:he 1933 Code of Georgia as amended which is as follows:

327
"40-701. (213) Description of great seal. Secretary of State as keeper. - The Secretary of State shall keep the great seal of the State adopted August 17, 1914, and now on deposit in the office of the Secretary of State. The said seal shall be either of silver or of some' harder and more. durable metal or composition of metals, two and one-quarter inches in diameter.
"The device on one side is a view of the seashore, with a ship bearing the flag of the United States riding at anchor near a wharf, receiving on board hogsheads of tobacco and bales of cotton, emblematic of the exports of this State; at a small distance a boat, landing from the interior of the State, with hogshe,ads, etc., on board, representing the State's internal traffic; in the back part of the same side a man in the act of plowing, and at a small distance a flock of sheep in different postures, shaded by a flourishing tree; the motto thereon, 'Agriculture and Commerce, 1776.'
"The device on the other side is three pillars supporting an arch, with the word 'Constitution' engraven within the same, emblematic of the Constitution, supported by the three departments of government, viz., the legislative, judicial, and executive - the first pillar having engraven on it 'Wisdom,' the second 'Justice,' the third 'Moderation'; on the right of the last pillar a man standing with a drawn sword, representing the aid of the military in the defense of the Constitution; the motto, 'State of Georgia, 1776.' (Act 1799, Cobb, p. 959. Acts 1914, p. 1247.)"

STATE GOVERNMENT-Merit System

A State department or agency may be brought under the Merit System by either executive order or by legislative action relating to the specific department.

Major General Charlie F. Camp

August 19, 1958

This will acknowledge receipt of your request fot my opm10n on the question as to the steps necessary to place the employees of the Civil Defense Division orf the Department of Defense under the Merit System.
There are two methods by which the employees of any state de,partment or agency may be brought under the Merit System: Either by executive order of the Governon in accordance with the procedure prescribed by Code 40-2242, or by legislative act relating to the specific department. See, in this latter respect, Code 40-2210 through 40-2241, inclusive, for various acts placing different departments under the system.
In 1950 an Act was passed which in its relevant sections provided that "all employee'S of the State Military Department, except the Adjutant General, Assistant Adjutant General (executive) and aide-de-camp, shall be governed by ... [the merit system] ..." See Ga. Laws 1950, p. 180; Code 40-2221, 40-2223, inclusive.

At the time this law was enacted, the Civil Defense Division was not in existence, it having been created by an Act of 1951 (Ga. Laws 1951, .p. 224),
a and aJthough Section 4 provides that the Civil Defense Division thereby created
would lie "division of the Department of Public Defense", I understand that the Merit System Council has uniformily construed the law to be that Civil Defense employees are not covered under the 1950 Act.
Without undertaking to resolve the difficult legal question as to whether this determination is correct, I am of the opinion that to remove all .doubt, employees of the Civil Defense Division can be .brought under the System by executive order in accordance with the procedure outlined in Code 40-2242.

STATE GOVERNMENT....,-State Literature Commission (Unofficial)

Normal operating procedure of Commission explained.

Honorable Fitzgerald Bemiss

November. 18, 1959

This will acknowledge. receipt of your rece11t letter in which you request a copy of the Georgia laws dealing; with the sale and distribution of obscene literature.

I am enclosing for your information a copy of the Act creati:ri.g 'the State Literature Commission, approved February 19, 1953 (Ga. Laws 1953, Jan.-Feb. Sess., p. 135), as amended by an Act approved March 25, 1958 (Ga. Laws 1958, p. 301). I also am enclosing a copy of Section 26-6301 of the, Code of Georgia relating to criminal penalties for sale of obscene literature.

By way of commentary, I would like to point out that the criminal section
of Georgia law is very seldom used. I. also w'ould. like to commerit that, ".af-

though the State Literature Commission pnder Section 6 of, its .Act h;;ts author-

ity to enj<Jin the sale, distribution or exhibition of obscene .literature, ,thi~ section has been used only once. We have found that a practical way of. QP~J:ation

of the Commission is for the three (3) members of the Commission to 'meet

at: rekrilar !ni;ervals and review literature upon its own motion or which has

been furnished to it by citizens of the State. The Commission;if it feels justt~

tied,, 'Yill t,hen IJ1.ake a fin.qing that a particular piece of literature is ol;>scene.

It S,i).qu.ld be noted that this find,ing in reference to a m1igazfrie or other periodi-

cal publication is, applicable only to the particular issue involved itl!d does not

condemn :;my further p_ublication of the same periodical.

. ' ; .

. .,.: ".Af~e~ a finding 'of obscenity, the Commission,. through its executive. ~ecre-

a t~ry; distributes to the wholesal~rs and retailers of literature in the State

we c~py of th~ miriu.tes of the Commission, including a list of publicati~ns con-

sidered and actions taken wl.th reference to each.

have found that both

.retailers'and ~hoiesal~rs of this type of literature are ve~y ~illing to cooperate

and remove such publications from display immediateiy without .the necessity

"of resorting to legal 'action~

.

STATE GOVERNMENT-Politic~tl Sub-divisions ,

., ' . 'Municip~lities are not .political sub-divisions of the State of Georgia, as are counties, ,cpngressional districts' and militia districts.

,_ '

<

Hon. Jim L. Gillis, Sr.

June 19, 1959

__ Acknowl~dgement is made of your letter requesting an opmwn regard'lng'

th~ meaning of the word "political subdivision" as used in the Acts of 1950

~lth .referehc~ ~o th~ State High'''ay Department entering into contract with

political s~bdivisions.



. I find the several states quite at variance in 'this matter: Many-states hold. th~t an incorporhted city is a political subdivision: Gthers hold that it defi-

nitely is not.

I, do notJind_ that the matter has ever been passed upon by the Supreme.'

Court of this State; nor is there any clarification to be found in the code.
My own feeling is that a "political subdivision'' is a polit-ical or geographic

division. of the Stateof such nature. that _the aggregate of such divisions "COn-

stitute the entire State.

Such would. include the counties, the congressional districts, - the mHitia

districts, and a few other entities to which the State ha-s delegated a po:rtion

of its sove~eignty.

.

This definition of course would not include municipalities, since it is ob-vious that the ~,gg~e2'ate area of all the municipalities in this State :falls fat short of covering. the ent:lre geographi~al area.

A city p'arta],e.s more the nature of a corporation to which' has been

as deleg_ated some govern'rnental. power. As far cont'nicting with inimicipalities' is concerned, I find' that' the

Constitution of the State in 2-5901 authorizes "the State, State ins-tihiHons, any city, town, or municipality of th:is ~State may contract fo.r any periud} not

exceeding fif'ty years with each other .. , 'provided that such contract :shall deal

with "such activities and transactions as su~h subdivisions may by law. be

authorized 'to undertake."

This authorization would be broad enough to authorize a .contract between

the State Highway Department and any municipality in the State to; furnish

such municipality with any highway service which the, Department is .a-uthorized tiVengage in, such as the' contracts between the cities and. the; D-~part'ment

covering that. Also, a city may furnish to the State or one of its departments

a municipal service under this authority.

However the Department is not authorized to enter. into construction con-

tracts which exceed $1000 in. value without compliance with the provisiop.s of

95~1620.': S:ince I feel that a municipality is not oJ;J.e of the "political. subdivi-

sions" referred to in that section, it follpws that a highway C9n~nw.tion. cqn-.

tract in excess of $1000 in value would not be authorized with a municip.al~ty,,

unless by competitive bid.

The foregoing' has .no application to the Act .of 1958, p. 2~3., et se.q:, author-

izing,the use of funds to be paid directly to the municipalities. ,.of this State for

maintenance performed on State .Aid .roads. by .these municipalities.

Reference is also made to the Acts of 1949, p:.- 373 .and particularly :that

sectiGn of th-at Act codified as 95-1631 of 'the' code .and reading as-"folloWs: "All

contracts, with the exception of contracts w.ith counties to -be' perf-ormed with

convice' labor .or. county forces, shall be let by public "bid with nob less than

three bidders on any one give:h. contract participating. in- the bids,"

330

STATE GOVERNMENT-Public Records-Inspection

Records .of Department of Public Welfare which are made not public by law, are excluded from provision of "Open Records Law."

Judge Alan Kemper

March 25, 1959

This will acknowledge your request for my opinion with reference to the provisions of recently enacted Senate Bill No. 78, which provides for the in spection of public records, and especially to the applicability of this Act to the public assistance records of the State Department of Public Welfare.
More specificially stated today by Honorable Carl H. Harper, Regional Attorney for the Social Security Administration, the question the Administra tion would like to have answered by me is:
Does Senate Bill No. 78, as enacted by the 1959 session of the Georgia Legislature, remove the safeguards concerning confidential status of public assistance records as established by Sedion 992016 of the Georgia Code (Acts of 1952, pp. 15, 23) as same was modified by Sec tion 99511 (Acts 1952, p. 249) of the Georgia Code? Code Section 992016 (Acts 1952, pp, 15, 23) provides that:
"All records of the State and county welfare departments relating to applications for assistance, investigations of such applications, the determinations of assistance, awards, and the names and addresses of assistance recipients, shall be kept strictly confidential and used solely for purposes directly related to the administration olf public assistance and shall not be available for public inspection nor may they be obtained by court subpoena or otherwise, except be treated as a misdemeanor and shall be punishable accordingly."
Code Section 99511 (Acts 1952, p. 249) provides that: "The county welfare boards of each county of this State are hereby
authorized and shall maintain for public inspection a roll book, or card file, giving the amount of money received and the full name and address of each beneficiary of old age assistance, aid to the blind, aid to dependent children, and any other assistance payment or welfare benefit which is now orr hereafter administered or disbursed by or through such county welfare boards, subject to the prohibition against commercial and political use provided herein."
Code Section 99-512 (Acts 1952, p. 249) provides. that: "Any list of names obtained through access to such records shall
not be used for commercial or political purposes." These three code sections were enacted by the General Assembly following the enactment of an Act of Congress, October 20, 1951, C 521, Title VI, Sec. 618, 65 Stat. 569, which provides that:
"No state or agency or political sub-division thereof shall be deprived of any grant-in-aid or other payment to which it otherwise is or has become entitled, pursuant to Title I, IV, X, or XIV of the Social Security Act, as amended, by reason of the enactment or enforcement by such state of any legislation prescribing any condition under which public access may be had to recorrds of the disbursement of any such funds or payments within such state, if such legislation prohibits the use of any list of names obtained through such access to such records for commercial or political purposes."

331
Code Sections 99-511 and 99-512 are the only two attempts by the Legislature to modify Code Section 99-2016. A violation of these sections imposes punish~ent as for a misdemeanor. The Social Security Administration has had knowledge of their existence since their enactment in 1952.
In order to more completely comply with the requirements of the Social Security Administration of Georgia Legislature provided in the Acts of 1945, pp. 196, 197, Code Section 99-144, that:
"To the end of empowering the State Department of Public Welfare to comply with Federal requirements and to effectuate the purposes of such grant-in-aid welfare programs, the State Department of Public Welfare is authorized to promulgate all necessary rules and regulations and to do all things necessary and proper to the securing of the maximum amount of such Federal grants."
and in the Acts of 1945, pp. 196, 197, Code Section 99-145 that:
"In the event that the' Congress of the United States appropriates funds providing for grants-in-aid to the State governments for the purpose of assisting them in the operation of general assistance programs, the State Department of Public Welfare is authorized to cooperate with the Federal Government in such program, to accept funds from the Federal Government in the maximum amounts made available, to disburse same and to comply with all requirements of the Federal Government necessary to the securing of such grant-inaid funds."
These provisions have also been called to the attention of the Social Security Administration since they were adopted in 1945. All of these provisions and the regulations made pursuant thereto limit the disclosure of public assistance information only as to names, addresses and amounts of benefits to be paid.
Senate Bill No. 78, 1959 Session, Section I, as approved by the Governor, does not repeal or modify any of the,se Code Sections. Section I very plainly provides otherwise. It reads:
"All State, County and municipal records, except those which by order of a court of this State or by law are prohibhited from being open to inspection by the general public, shall at all times be open for personal inspection of any citizen of Georgia, and those in charge of suc:q records shall not refuse this privilege to any citizen."
The language of this section of Senate Bill No. 78 so plainly excludes such records referred to in the inquiry as to put the matter to rest without further comment. Any delay employed by the Social Security Administration in allocating to the State of Georgia public assistance funds to be distributed by the State Public Welfare Department under formulas heretofore prescribed because of the adoption of Senate Bill No. '78 would be most unfortunate.

sTiTE GOVERNMENT-Public Records-'-Inspection

'

'

u} , Applicllbility of the. "Open Records Law" to certain records of the De-

partment of Public Safety.

H:ohorable W. P. Trotter

March 31,. 1959

T~hi<f will acjmowledge receipt of your letter in which you inquire as to the effect of the: reccent Act of the General Assembly (Act 83, approved February: 2, }959, SB 78) making all State records open to the public upon certain opera:t;ions of .your,Department. Specifically you inquire concerning the furnishing of: accident reports from y.our office. The question which you ask are as follows:

"1. Does this act make it :mandatory to furnish complete reports for a

fee?

2;.,:Pqes it t?l1per,sede the 'provision;:; of other acts in re: furnishing

"cerfil'icates of involvement orily 'when certain persons deny involve-

.

. t'. {?.

("

. ... .

.

.

.men., .

3: Whether we have to furnish. any copy of a report of accident at all 'I
4:vtf the reports of accidents are, lindm the provision of this new law, ~'~hnsidered public' records or are for the confidential use of the ' . cqnfid~ntii:tl ~se of the Department for statistical purposes?
5:' boes 'the provisions of this new law apply to the reports of operators

and investigators alike or only to the investigaton;' reports?"

. ~~ction 1 of Act No. 83 reads as follow":

"All St;:tte, county and municipal records, except those which by !)!rd~r of a Court of this Stat.e or by law are prohibited from being open to inspection by the general public, shall be open for a personal ip.spection of any ciizen of Georgia at a reasonable tim~ and place and those id 'charge 'of sucli 1;ecords shall not refu$e this privilege to any citizen." (Emphasis supplied)

Section 2 of the Act is concerned with the right of a member of the public

to make copie~ of .public J;ecords and is not directly concerned with your problem.

::J ' .

".

.

: .

'

.

La~ qf the; opinion that Section 1 of Act No.. 83 will have no effect upon

your v.reyious policy of deleting portions of ,accident reports prior to furnishing

them to individuals. In an official opinion of July 25, 1952 to your predecessor,

Colonel George W. Wiison, (Ops. Atty. GeU:. 1952-1953, p. 245) I ruled that the p'r~btice of your Departme1~t of deleting portions of accident r~ports furnished
to inti'i~iduals was a matter of adrhinistrative discretion. I do not believe that
A~t Nq. 83 'of the 1959 Session 'will affect you. The. Act is concerned solely with'

the. rf:ght of a. citizen. of the State 6f Georgia t-o make a personal inspection of

public records. No where 'in the Act is there a requirement that copies of the
records be furn"isb.~d to citi~en~ 'of the State. Hence, my answers to your first

and third questions must be in the negative. In reference t.o your second question

concerning certificates of involvement, I find that the authority for you to

furnish certificates of involvement was repealed when the Uniform Act regulat-

ing traffic on the highways (Ga. Laws 1953, Nov.-Dec. Session, p. 556) was

enacted. In answer to your fourth question, I adhere to the opinion of July 15, 1952 previously rendered to your Departmnet. I beli~:we that the answers fur-

nished to your first four questions render an answer to your fifth question

unnecessary.

STATE OFFICIALS-Auditor-Authority

Authority of State Auditor to approve qr withdraw ap]:lrovaJ from budget requests.

November 20, 1958

Honorable B. E. Thrasher, Jr.

In your letter you point out that you have received a budget request sign~d by the Georgia Ports Committee for an amount of $150,000.00 to be exp~nqe~

for personal services and insurance on the Savannah State Docks-Ocean Termi-

nal. You stat that this budget request has been approved by the Governor and

that while you have no legal authority to question the allotment of funds, you

request my opinion as to the following questioi1:





(1) Whether the purchase of the Savannah State Docks-Ocean Ter-

minal property by the Ports Authority has been made. invl:):lid by tl}e

allotment of state funds in view of the condition on y.rhich you gave

your approval as a member of the Property Acquisitions (joJ,Timittee.

The condition being: "Approval given only to purchase of such proper(;:~;

that the Autl).ority can finance with thei"r own funds and with income

derived from said property";' and

..

(2) Whether you have authority to withdraw your approval of the purchase resolution because of the transfer of the $150,000.00, which, as you state, is to be expended for personal services and insurance. .. ";

My investigation of the matter indicates the following facts: The legal

advertisements as to the bonds were published in the Savannah .Evening Press

on October 15th and 22nd, 1958 in accordance with Code !).8-218. The -Valida-

tion proceeding was filed in the Superior Court of Fulton County on October

17th, 1958. The parties in thiSi suit were the State of Georgia and the Georgia

Ports Authority. In this proceeding, the Solicitor General of Fulton County

acted as legal counsel for the State under Code 87-816. This office has not

particip-ated in the litigation and my name does not appear as counsel of record. A final judgment was entered in the case by the Co{lrt on No.vember 4tlr;''l~f58.

The judgment held that the Ports Authority had the right to)ssue the bonds

for the purpose of acquiring and to acquire the Terminal .property, The. pur-

chase of the Savannah State Docks-Ocean Terminal pr~perty -iyas cons.urrirnated

and the deeds to the same were executed on November 15th, 1958. Titl({ to the

property passed as of that date.

It is clear from the above recital of facts that the que~tion~ posed' in yo;i)_.

request can only be answered by appropriate court action. Once. a law.. s:uit is filed, it is incumbent upon the' judiciary and not the Attorney Ge~eral to ~~nde,t

a decision on the controversy. It has always; been. my policy that n 0 /}pinto~> would be issued by this office on any matter which is in litigation b~fore tli_e

courts.



With respect to any possible contest concerning the issuance of r.evemte bonds by the Authority, Ga. Code Ann., 98-218 provides in part as folluw.s: ,. .
"Any action or proceeding in any court to set aside a resolution
providing for the issuance of revenue bonds. under the provisions of this Chapter or to contest the validity of any such revenue bonds or -of the trust indenture, if any, to the same, must. be cQ.mm,enced within. 20 days after the first publication of the above mentioned notice. After the exp.~ration of uch period of limitation, no right Ilf action. or d~fens~

334
founded upon the invalidity of the resolution or the trust indenture, if any, or of the revenue bonds, shall be asserted, nor shall the validity of such resolution, trust indenture or bonds be open to question in any court upon any ground whatever, except in an action or proceeding commenced within such period."
The date of the first publication of the notice in this matter was October 15th, 1958. However, it should be noted that the Authority also proceeded to validate the bonds under Code Chap. 87-8. Section 87-818 provides in part as follows:
"... any citizen of this State, . so desiring to issue such certificates, may become a party to sai.d proceedings, and if dissatisfied with the judgment of the court confirming and validating the issuance of the certificates, and the security therefor, may except thereto within 20 days from the judgment, as in the case of injunctions, and upon the hearing in he Supreme Court such bill of exceptions shall be heard in accordance with the practice regulating the hearing of bills of exceptions in criminal cases. . .."
There is no judicial decision in this state interpreting the above Code Section. However, while the judgment in the bond validation proceeding was entered on November 4th, 1958, mention should be made of the fact that it is still within the breast O!f the court, i.e., the November-December term of the Superior Court of Fulton County. "Courts of record retain full control over their orders and judgments during the term at which they are rendered, and in the exercise of a sound discretion may revise or vacate them, as the ends of justice may require." Hall v. First National Bank of Atlanta, 87 Ga. App. 142; Hunter v. Gillespie, 207 Ga. 574.

STATE OFFICIALS-Conflict of Interest

There is no violation of the "Honesty Bill" for a member of the faculty of a school in the University System to sell texts prepared by him through the school book store.

Honorable L. R. Siebert

June 25, 1959

This will acknowledge receipt of your letter from Mr. V. V. Lavroff, Comptroller of the Georgia State College of Business Administration. Mr. Lavroff poses a question with reference to the honesty in government bill, Act No. 24, approved February 12, 1959 (Ga. Laws 1959, p. 34). Mr. Lavroff states that there is an occasional practice existing at his school in which a member of the faculty prepares a manuscript or supplementary tex~ material to be used in his classes and sells such through the college bookstore. The question posed is whether this practice is a violation of the Honesty Bill.
The only section of the Act No. 24 which appears to be in any way applicable to this situation, is Section 2 which reads as follows:
"Section 2. Interested persons acting as government agents. Whoe;er being an. officer, agent, or member of, or interested in the pecuntary profits or contracts of any corporation, joint stock company, or

association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and, who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years."
This section in effect prohibits any employee of the State from selling to the State. However, the practice which seems to be described by Mr. Lavroff is that of selling to students at a State college using the facilities of the college bookstore. The state itself makes no purchase of the material. Under these circumstances, there is no violation of the Honesty Bill. However, if the State or the college should purchase such material directly from the faculty member who prepared it, then I believe that the provisions of Section 2 quoted above would be applicable.

STATE OFFICIALS-Revenue Commissioner-Authority

State Revenue Commissioner has authority to sell authomibile registration lists.

Mr. Dixon Oxford

January 30, 1959

This is in reply to your letter requesting my official opinion as to the authority of the State Revenue Commissioner to sell automobile registration lists.
A 1929 resolution of the General Assembly (Ga. Laws 1929, p. 1483) provides as follows:
"Whereas there is a great demand for a list of all the automobile owners orf the State, and considerable revenue may he derived by the State from the sale of the list of such owners:
"Therefore, be it resolved by the House and the Senate concurring that the Motor Vehicle' Commissioner of the State be and is hereby authorized and required to sell said list to the bes't advantage of the State, and that he be further authorized and required to charge for all reports furnished in regard to the license-numbers and motor-numbers on file in this office. That this resolution does not prevent giving information to the peace officers of the State'. That all revenue raised hereunder shall be accounted for as other fees paid in said office." There was litigation involving this resolution, and in Grizzard v. State Revenue Commissioner, 177 Ga. 845, the Suprema Court of Georgia upheld the validity of the resolution and rejected the contention that any one of the general

public had a right to such lists as a public record. This resolution was not brought forward in the Code of 1933, but there is
nothing in th~ Code of 1933, or any subsequent statute, inconsistent with this 1929 resolution, and I am of th() opinion that it is still in force. See McCaffrey v. State, 183 Ga. 827, as one of many decisions holding that a prior statute is not repealed merely by omission from a subsequent Code.

STATE OFFICIALS-Revenue Commissioner-Salary
Salary Act of 1959 interpreted as applies to State Revenue Commissioner.
October 6, 1959
'This is in" reply to your letter in which you reques:t my official opinion construing the longevity pay provisions of Code Section 89-707 as they apply to .the off.ice of State Revenue Commissioner after the amendment of 1959 (Ga. Laws 1959; .p. 177) which gave the State Revenue Commissioner the benefit of the longevity pay authorized therein. You point out that this amendment specifically establishes a base salary for the State Revenue Commissioner of $10,000 per annum, and that while Code Section 89-707 authorizes longevity pay of $800 for each 4 year's service up to a rnaximum of $4,000, it also states that the total base salary and longevity pay shall not exceed $11,500, which in the case of the State Revenue Commissioner would fix his maximum longevity pay at $1,500.
It is my opinion that the General Assembly intended to allow the State ofi)cers specified in _Code Section 89-707, as amended, longevity pay at the rate of $800 for each 4 year's of service up to a maximum of $4,000. The further provision of this section, in my opinion, is but the legislature's illustration of how this limitation should be applied to the base pay of $7,500, prescribed for the officers whose base pay is $7,500. Where the base pay is more than $7,500, the $11,500 limitation. does not apply, but the limitation is the base pay plus $4,000. 'rhis is clear from the General Assembly's action in 1956 (Ga. Laws
1956, pp. 376-377), when the salary of the Commissioner of Agriculture was
increasE?d from $7,500 to $12,000, plus a maximum of $4,000 longevity pay. These various matters of 1egislation should, in my opinion, be read in pari materia to produce a uniform policy. My conclusion is, herefore, that the limitation on the total base salary and longevity pay of the, State Revenue Commissioner is $14,000 per year.

STATE OFFICIALS-Secretary of State

R;eleas.e o.f Bonding company from terms of bond.

Honorable Ben W. Fortson, Jr.

June 6, 1958

. . Referenc:e i,s made to your recent letter regarding the propriety of issuing a :release to ~h~ Hartford Accident and Indemnity Company.
The f::cts; as I understand them, are as follows: George Franklin Parkin-

&3'1
( , , , !',
son, upon being commissioned a special officer under and, ... in accord;;tnce 'f~~h the provisions of Section 94-331 et seq. of the Georgia Code Annotated, gave bond in the amount of $1,000.00 to the, State of Georgia. The bond was written by the Hartford Accident and Indemnity Company through Adams, Holmes & Tharpe in the manner and form required by law. The original b9nd ~has :.b~~ terminated as of Mmch 28, 1958, and another equally acceptable' to you substituted therefor. The Hartford Accident and Indemnity Cmnpany n{l:iN .wishes to be released from further liability on such bond.
In my opinion, the State may properly release the conipan'y in questioti from liability arising from any failure on the part of the officer to faithftill\Y perform his duties after March 28, 1958, but not before. If, as I understand the case to be here, the bond is made to the Governor, the release should be signed by and should be in a form acceptable to the Governor. Since there is apparently no established form extant, I enclose a draft of a letter which you may submit to the Governor through Julian Bennett, Assistant Attoirney Gen(!ral assigned to the Executive, Department.

STATE OFFICIALS-State Superintendent of Schools

The State Superintendent of Schools is not an ex-officio membex of the Georgia Nuclear Advisory Commission and thus not entitled to -annual compensation for an ex-officio office.

Dr. Claude Purcell

September 21, 1959

This will acknowledge receipt of your letter in which you request that I
advise you whether you are entitled to :receive compensation at the rate of $20
per month because of your membership on the Georgia Nuclear Advisory Commission.
Under the provisions of the 1953 Salary Act (Ga. Laws 1953, Jan.-Feb. Sess., p. 613), as amended, various State officials are entitled to- $240 annul!ll compensation "for each ex officio office created by law and held by each' such officer". (Ga. Code Anno., 89-707) The Georgia Nuclear Advisory Comniission was created by Resolution Act No. 17, approved February 15, 1957 (Ga. Laws 1957, p. 60). The Act provides:
"The Commission shall be composed of not less than twenty (20) nox more than forty (40) members, all of whom shall be appointed by the Governor ... The Governor and the Attorney General shall .be 'ex officio members o:f said Commission."
Under the provisions of this paragraph, the Governor and the Attorney General are the only ex officio, members of the Commission. Everi though' you were appointed as a membe,r, this appointment is ari honor conferred upori you personally and not by virttw of your office as State School Superintendent: Hence, I regret to inform you that you are not entitled to any additional coni~ pensation for service on the Georgia Nuclear Advisory Co:inrriissi6ri. -

338

TAXATION-Ad Valorem-Adjoining Tracts (Unofficial)

Adjoining tracts of land may be joined on a tax return.

Mr. R. W. Branch

February 27, 1959

I understand from your letter that you own two tracts of land which you acquired at different times. The two tracks adjoin, and you wish to know know whether or not you are required to return the two tracts sep,arate,Jy, or if the two tracts can be combined and returned as one tract in your tax return.
The two adjoining tracts may be combined in your tax return, however, in filing your return you are required to comply with Code Section 92-6206, which is as follows:
"All lands in this State subject to taxation, whether improved or unimproved, shall be returned by the person owning the same, or by his agent or attorney, to the tax receiver of the county where the land lies. The receiver shall require all persons making returns of lands in his county, to return the same by district, number, and section, if the lands have sucb designation, and when lands have no such designation, then by such description as will enable the receiver to identify them, and receivers shall not receive any returns of land which do not so designate them. The Comptroller General shall not allow any receiver who receives returns in any other manner compensation or percentage, for his services."

TAXATION-Ad Valorem-Exemptions (Unofficial)

If property of a private organization is use for purposes other than purely public charity, it is taxable.

Mr. Whitfield R. Forrester

April 29, 1959

This, is in reply to your letter in which you state:
"The City of Cordele is interested in having private clubs such as Moose, B.P.O.E., American Legion, V.F.W. and others pay ad valorem taxes on the property which they own.
"We would appreciate your opinion as to whether the City may legally levy taxes on property of this kind under the general laws of the State of Georgia."
The Attorney General rendered an official opinion to Hon. W. Harvey Atkinson, Director of the Property and License Tax Unit of the Department of Revenue, on the question of taxation of the property of American Legion clubs. The Attorney General held in this opinion that American Legion clubs are not institutions of purely public charity as contemplated by our statute's, and therefore, are not exempt from taxation. This opinion is found in the Opinions of the Attorney General, 1950-51, pp. 154, 155.
Under Code Section 92-201, all institutions of purely public charity are exempt from taxation. In the case of Tharpe, tax-collector, et al. v. Central

839
Georgia Council of Boy Scouts of America, 185 Ga. 810, the Supreme Court held that the test is whether the property itself is dedicated to charity and used exclusively as an institution of purely public charity. The Supreme Court in the case of Mu Beta Chapter Chi Omega House Corporation v. Davison, taxcollector, et; al., 192 Ga. 124(1), held:
"Property of a corporation, although its petition for charter describes it as an institution of purely public charity, is not exempt from taxation unde,r the Code, 92-201, the property involved being a dwelling purchased for the purpose of being actually occupied as a place of residence by members of the local chapter of a Greek letter college frate,rnity, its use and occupancy limited to those who are active members of the fraternity, who become members by invitation, and each member of the local chapter who resides at said chapter house paying to the local chapter thirty dollars per month for room and board, which charge is identical with the charges made by the educational institution at which said chapter is located for the use of its dormitories where meals are furnished as well as rooms."
It will be observed from the authorities herein cited that the test as to the taxation of property belonging to private clubs depends upon the use to which this property is put. If the property itself is dedicated to and used for purely public charity, it is not taxable. If, on the other hand, the property is used for purposes other than purely public charity, it is taxable.

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

Application of exemption to rented property adjoining homestead.

Mr. Charles T. Gifford

February 12, 1959

This is in reply to your letter in which you state:
"I own two lots immediately adjacent to my residence. The lot in the middle is a vacant lot, however, there is a small house which I rent on the next lot. Am I entitled to Homestead exemption on all three lots, and both houses? Also, does this apply, if the ruling is still in effect, to only State and County Tax Returns, or can it apply to City Tax as well ?"
Under the facts stated in your letter, you are entitled to file application for homestead exemption on the house occupied by yoU! as a home. You are not entitled to include in your application the vacant lot and the adjoining house. The Homestead Exemption Law contains the following provision in Code Section 92-232:
"As used in this law (92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership." The Homeste,ad Exemption Law does not apply to municipal taxes. Code

se-c.tion 92-236 of ;this law is as follows: ' .~'Nothing in this law (92-219 to 92-238, 92-9947) shall affect; alter
O'l': impair the law relating to the assessment of property. by munici:p_alities; nor the coUection of,"costs, fees, and penalities by municipalities."

TAXATION-Ad_ Yalorem-Homcstead Exem1,1tion (Unofficial)
An applicant mtfst live on property' on which seeks homestead exemp-
tion, and if owned jointly with other's, may receive exemption only in proportion to whole.

Mr. Ward E. Rice

May 11, 1959

' This is in reply to your letter in which you request my opinion on the following question:

a "John Doe and brother Richard Doe own a farm together, John
'noe owns farm by himself "Can an exemption for homestead be g-ranted on both farms if
John lives on his farm and Richard lives on the other one.?"

In reply to your question, John, the person who owns and lives on his farm is entitled to claim the full homestead exemption on the farm owned and occupied by him as his residence. Richard, who lives on a farm owned jointly by himself and Jolin,- would be entitled to claim homestead exemption on the farm OGCupi~d by him and jointly owned with another. However, his homestead exeniption would be liniited as is provided in Code Se'ction 92-219.1, which is as foUows:

"Whe<Ie the property on which a homestead exemption is claimed

is jointly owned by the occupant and others, the occupant or occupant$
af- shall be entitled to claim a proportionate exemption of the amount
l~w~d by law in proportion to which 'the interest of the, occupant bears

to the total interest of the property."



TAXATION-Ad Valorem-Homestead Exemption (Un'official)

Eligibility of disabled veterans.
Mr. C. L. McCleskey, Jr. Y>u state: '

March 2@, 1959

"Some questions have misen relative to the eligibility of a disabled veterap. -for ad valorem tax exemptio11 under the provisions of the constit~tional amendment .passed by. vot in the General Election .of 1958, which amendment is contained on page-s 72, 73, and 74 of Georgia Laws , ', ;1957.:_ volume one.

841

"The facts relative to this disabled veteran are: He is a paraplegic, be.ing. permanently paralized from the waist down, as a result of an attack of polio.myelitis beginning July 28, 1944, 'while a. m~mber of the

317th Fighter Control Squadron of the United States Air 'Force then operating in the China-Burma-India theater during World War II. He is rated 100% disabled and is confim:d to a wheel chair, He lives in a home with his family which is owned jointly by himself and his wife."

.The disabled veteran described in your letter is eligible to ql.'uilify for tax ex~mption under the above stated Constitutional amendme~t and mider House Bill #112, approved by the Governor,. March 10, 1959, which states:.

"Any veteTan qualifying for the homestead exemption provided for by an amendment to paragraph four of Section 1 of Article VII of the Constitution of Georgia, approved February 20, 1957 (Ga. Laws 1957, p. 72), as ratified at the General Election November 4, 1958, shall file with the County Tax Receiver 01' Tax Commissioner or other public offidal charged with the duty of receiving returns .of property for taxa: tlon, a letter from the Veteians Administration stating that he is a dis-' abled American Veteran, that he is disabled by paraplegia or permanent paralysis of both legs and l<rlver parts of the body re,srilting. froni traumatic injuries to the spinal cord or brain, or by total blindness, or by the amputation of both legs o'r both arms, as a result of service in any 'war or ari:ned conflict in which any branch of the armed forces
o:f' the 'United States engaged, whether under United States command or
other\:vise: Provided, that each veteran shall file only once in the county of his residence, 'and such exemption shall automatically be renewed from year to year." The Homestead Exemption Law, Code Section !12-219:1, provides:

"Where the property on which a homes:ead exemption is claimed

is jointly owned by the occupant and others, the occupant or' occupants '

shall be 'entitled to claim a proportionate exemption of 'the amount

allowed by law in proportion to vvhich the, interest of the occupant bears

to the total interest of the property."

"u'llder this provision of the genm:al law I am of the opinion that l.n'the cl\s~

an in question the veteran is entitled to claim

exemption of $5000. Incident'~

ally, the veteran's wife who jointly owns the property with him would, under

the general law, be entitled to clnim an exemption of $1000, which would make

a total of $6000 exemption on the property for the veteran and his wife. This

would continue as long as the property is owned and occupied by the veteran

and his wife.

Should the vetera_n acquire. complete title to th~ property i!l question, he would be entitled to claim a homestead exemption of $10,000 on the property. This would entitle the veteran to tax exemption up to the value of $10,000 for

the year 1959, and all subsequent years in which the Veteran owned and 0C'CUpied the premises. The Constitutional amendment herein. referred to granting the homestead exemption of $10,000 was passed by .the General Ass~mbly at its 1957 Sesion and was ratified by the voters in the Genetl'l-l ElE\ction held November 4, 1958. The Constitutional amendment granting the home:;;tead exemption of $10,000 to disabled veterans described therein was i.lf effect on Ja:nua'ry 1, Hl59.

342

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

Application of homestead exemption when property is in more than one county.

Mr. Stanley Fussell

March 17, 1959

The Constitution of the State of Georgia provides in Code Section 2-703 the residence requirements of the voters in this State. This section is as follows:
"To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election."
The Homestead Exemption Law makes no specific provision as to the manner in which a homestead exemption may be claimed where the property lies in more than one county. However, the Homestead Exemption Law does provide that an applicant who owns and occup~es his home is entitled to a homestead exemption up to $2,000.00. The Gourt of Appeals of our State in the case of Jones v. Johnson, 80 Ga. App. 340, stated:
"The owner of a farm located in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tract of land upon which the dwelling house is situated, to a value of $2,000, notwithstanding the fact that he devotes the land to agricultural purposes, as this is not such a use of the land
as to amount to a commercial or busine,ss enterprise within the meaning
of subsection 3 of Gode (Ann. Supp.} Section 92-233 relating to homestead exemption."
It is clearly apparent from the Homestead Exemption Law and the decision of our Court of Appeals in construing this law that the owner of a farm is entitled to claim exemption on the entire farm and, in my opinion, if the farm lies in two counties, the applicant would have a right to file application in each of the counties in proportion to the acreage or value located therein and claim as exempt the property located in each county, so long as the total exemption did not exceed the sum of $2,000.

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

Applicability to a house trailer parked on rented land.

Mr. E. E. Plowden

September 16, 1959

You request an opinion on the following ques,tion:
"When a person lives in a house trailer and the trailer is parked on rented land is this person entitled to homestead exemption on this trailer?"
An applicant is entitled to claim homestead exemption on a house trailer and the land immediately surrounding it provided the applicant owns and occupies the trailer and the land upon which it is located on January 1. A person

343
who owns a house trailer and rents the land on which the trailer is parked is not entitled to claim a homestead exemption on the house trailer.
Georgia Code Section 92-232 is as follows: "'Homestead' defined. - As used in this law (92-219 to 92-238,
92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ovl'nership."
Georgia Code Section 92-233 is as follows: " 'Homestead further defined. - The word 'homes,tead' whenever
used in this law (92-219 to 92-238, 92-9947), shall mean and is defined to be the following:
"(a) The actual permanent place of residence of a person who is the applicant and which constitutes the home of the family.
"
"(c) Where the building is occupied primarily as a dwelling."

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

A family group is entitled to only one exemption.

Mrs. J. Edward Carmichael

March 23, 1959

You asked: "I have a taxpayer with property getting homestead exemption also
a lady taxpayer with homestead exemption. These two married in 1958. The 1st of January, 1959, they each spent January 1, 1959, in their own home. They both want to claim homestead exemption." The word "applicant" for homestead exemption is defined in Code Section 92-234, which is as follows:
"The word 'applicant' whenever used in this law (92-219 to 92-238, 92-9947), shall mean and is defined to be the following:
"(a) A married person living with husband or wife. "(b) A person who is unmarried but permanently maintains a home for the benefit of one or more persons who are morally or through relation to him or her dependent wholly or in part upon him or her for support. "(c) A widow or widower having one or more children and maintaining a home occupied by them. "(d) A divorced husband or wife living in a bona fide state of separation, and having legal custody of one or more of their children, who owns and maintains a home for the said child or children. "(e) A person who is unmarried, or who is a widow or widower, and who permanently maintains a home owned and occupied by himself or herself."
Homestead is further defined in the Homestead Exemption Act in Section 92-233(g) of the Code which is as follows:

344
"In the event a person who is the applicant owns two or more dwelling houses, he shall be allowed the exemption granted by this law only one; and only one homestead shall be allowed to one immediate family group." (emphasis added) The husband and wlfe described in your letter are only entitled to one homestead exemption since they constitute one immediate family group, and also come within the "applicant" as is described in paragraph (a) of Code Section 92-234, herein quoted.

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

Date right to home,stead exemption accrues.

Mr. J. Archie Johnson

January 23, 1959

You state in your letter: "We have cases where one moves into the house prior to January 1
and the loan does not go through until after January 1; is it your opinion that these parties are not entitled to the homestead exemption?" From the facts stated in your letter, I am of the opinion that the applicants described in your letter are entitled to a homestead exemption. The Homestead Exemption Law contains the following provisions:
Code Section 92-232. "As used in this law (92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership."
Code Section 92-233 (b). "Where the person who is the applicant holds the bona fide fee title, (although subject to mortgage or debt de,ed) or an estate for life, or holds under any bona fide contract of purchase providing for the conveyance of title to the applicant upon performance of the said contract . . ."

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

Eligibility for homestead exemption discussed.

Mr. S. A. Clack

June 30, 1959

You asked: "A party who owned property for a number of years in this county
and was entitled to homestead exemption sold this property in 1958, and I understand lived in a hotel in Atlanta the last part of last year. Sometime in 1958, this party bought another tract of property. The

345
house was occupied by a family at the time she bought it. She moved some furniture into the house and occupied part of the house for two or three days the last of December 1958, and one or two days the first of January, 1959. She then returned to a hotel in Atlanta. In 1959 she made a request for home,;tead exemption on this property." Homestead is defined in Code Section 92-232 as follows:
"As used in this law (92-219 to 92-238, 92-9947), 'homestead' means real property owned by the applicant on January 1st of the, taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim of ownership." Homestead exemption is further defined in Code Section 92-233, subsection (h), which is as follows:
"In all the classes above defined, the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemption, and such homestead shall be the legal residence and domicile of such person for all purp,ose whatsoever." To answe,r your question, it is necessary for you as tax commissioner to determine from the facts you have at hand as to whether or not the applicant actually owned and occupied the home covered in the application for homestead exemption on January 1, 1959, and that it was being occupied as a permanent residence and place of abode and was the legal residence and domicile of the applicant for all purposes as provided in subsection (h) of Code Section 92-233 herein quoted.
The eligibility of an applicant for homestead exemption is determined by the official receiving the application, who then transfers the same, to the <:ounty board of tax assessors for final determination by said board as is provided in Code Section 92-228. The applicant doe's, of course, have the right of appeal to the board of tax assessorS! as is provided in Code Section 92-229.
The second question on which you requested an unofficial opinion is as follows:
"A man and his wife lived on property belonging to the husband for a numbe,r of years on which he received homestead exemption. In 1958 they had moved to another property belonging to the wife on which she received exemption. He paid tax on his property as it was four mile's from wife's property.
"In the last part of 19fi8, they claim to have separated and he returned to his property and she remained on hers. In 1959 each is requesting homestead exemption on their respective property as they lived each on their own property on January 1, 1959. They have not started any divorce proceedings and visit each other." Under the facts stated in your letter the parties involved are not each entitled to homestead exemption on their property. Subsection (g) of Code Section 92-233 is as follows:
"In the event a person who is the applicant owns two or more dwelling houses, he shall be allowed the exemption granted by this law on only one; and only one homestead shall he allowed to one immediate family group." (emphasis added) As further authority applicable to your question, subsection (d) of Code Section 92-234 is as follows:

346
"A divorced! husband or wife living in a bona fide state of separation, and having legal custory of one or more of their children, who owns and maintains a home for the said child or children." (a definition for the word applicant) The third question upon which you reque'St an opinion is as follows:
"A party owned a home on which she received homestead exemption. She stored her furniture in one room which she reserved and rented the house. She stays with her daughter in her daughter's home which is about :14 mile from the party's home."
The applicant referred to in this question would not under the facts stated, in my opinion, be entitled to homestead exemption for the reason that she does not live in or occupy the property upon which she seeks to claim homestead exemption. The authorities cited in support of my opinion to your first question are applicable to this question.

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

Eligibility of veterans for homestead exemption.

Mr. Griffin Patrick

February 25, 1959

ThiS! is in reply to .your letter in which you state: "Fulton County has received an application for homestead exemp-
tion, under the new constitutional amendment allowing a $10,000.00 exemption to disabled veterans, from a veteran who lost both arms well above the wrist but below the elbow. Under the aforesaid amendment one of the definitions of a disabled veteran is one who suffers 'loss of both arms!"
The question upon which you request my opinion is at what point an amputation must exist on a person's arm in order to classify such a person within the difinition stated in the constitutional amendment approved February 20, 1957 (Ga. Laws 1957, p. 72), as ratified by the General Election of November 4, 1958, and in accordance with House Bill No. 112, a bill to effectuate said amendment.
Section I of House Bill No. 112 is as follows:
"Any veteran qualifying for the homestead exemption provided for by an amendment to paragraph four of Section 1 of Article VII of the Constitution of Georgia, approved February 20, 1957 (Ga. Laws 1957, p. 72), as ratified at the General Election November 4, 1958, shall file with the County Tax Receiver or Tax Commissioner or other public official charged with the duty of receiving returns of property for taxation, a letter from the Veterans Administration stating that he is a disabled American Veteran, that he is disabled by paraplegia or permanent paralysis of both legs and lower parts of the body resulting from traumatic injuries to the spinal cord or brain, or by total blindness, or by the amputation of both legs or both arms, as a result of service in any war or armed conflict in which any branch of the armed forces of the United States engaged, whether under United States com-

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mand or otherwise: Provided, that each veteran shall file only once in the county of his residence, and such exemption shall automatically be renewed from year to year." The language used by this Act covering the question presented in your letter is the amputation of both arms. The word amputation, as defined by WEBSTER'S NEW INTERNATIONAL DICTIONARY, means:
"2. Surg. To cut off (a limb or portion of a limb, or projecting part of the body);"
Under the definition of "amputation" herein given, I am of the opinion that the amputation of an arm at any point above the hand would come within the definition stated in the constitutional amendment and the effectuating Act in question.
The Court of Appeals in the case of Jones et al., Tax Assessors v. Johnson, 80 Ga. App. 340, a case involving the eligibility of an applicant to claim homestead exemption, used the following language in their decision:
"All reasonable presumptions will be indulged in favor of the homestead right, and the right is to be held to apply to all such cases as are within the equity and spirit of the. statute which has established it."

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

A homestead is not exempt from a levy to pay bond debts.

Mr. Ralph E. Waters

September 11, 1959

This is in reply to your letter wherein you request my opinion on the following question:
"Please give me your opinion on the following: We have two bond issues in this county; one a school bond and the other a county bond. Should! the taxes for these be figured on the individual's gross valuation or on the net valuation; that is alter the personal and homestead exemptions have been allowed."
Taxes levied for the purpose of paying the principal and interest on bonded indebtedness are figured on the gross valuation of the property. Property set aside as a homestead is subject to be taxed for this purpose. Code Section 92-219, which provides for the homestead exemption, contains the following language: ".. andi except to pay interest on and retire bonded indebtedness."
Code Section 92-231, which is a part of the Homestead Exemption Act, is as follows:
"The property declared to be exempted under the terms of this law (92-219 to 92-238, 92-9947) shall not be exempted from the payment of interest on or retiring bonded indebtedness as provided in the Constitution."

348

TAXATION-Ad Valorem-Homestead Exemption (Unofficial)

Effect of merger of independent school system with a county system upon homestead exemption.

Mr. Roy W. Coley

September 10, 1959

This is in reply to your letter in which you request my unofficial opinion on the following questions:
"1. In the event the residents of the City of Cochran would vote as provided in Code Section 32-1201 to repeal the Independent System operated by the City of Cochran would after this vote the Citizens of Cochran be entitled to a homestead exemption on their home from the 15 mill of the county for school purposes.
"2. In the event of a Constitutional Merger, would it require the maj01rity of the votes of the City of Cochran which is an Independent System and a majority of the voters outside of the City of Cochran to carry this constitutional amendment, or would a majority of the voters of Bleckley County as a whole carry the Constitutional Amendment." In answer to your first question, should the Independent; School System of the City of Cochran be merged with the county school system in accordance with Code Sections 32-1201, 1202 and 1203, the homestead exemptions granted to the residents of the City of Cochran would not be subject to the 15 mill tax levied by the county for school purposes. In other words, the residents of the City of Cochran would be on the same basis as residents of the county outside of the municipality with reference to school taxes. The opinion expressed herein is based upon Code Section 92-219, which is as follows:
"The homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied. by the owner primarily as such, but not to exceed $2,000 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness: Provided, however, should the owner of a dwelling house on a farm, who is already entitled to homestead exemption, participate in the program of rural housing and obtain a new house under contract with the local housing authority, he shall be entitled to receive the same homestead exemption as allowed before making such contract. The General Assembly may from time to time lower said exemption to not less than $1,250. The, value of all property in excess of the foregoing exemptions shall remain subject to taxation. Said exemptions shall be returned and claimed in such manner as prescribed by the General Assembly. The exemption herein provided for shall not apply to taxes levied by municipalities." (emphasis added) In answer to your second question, should the proposed merger be made by Constitutional amendment, the amendment would require a majority of the voters of the City of Cochran and also a majority of the voters outside the City of Cochran. This opinion is based upon the provision of the Constitution of this State with reference to Constitutional amendments as set forth in the Supplement to the Code in Section 2-8101. This section contains the following language:

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"... The votes of the electors in each political subdivision affected shall be counted separately in determining whether such proposed amendment is ratified, and it must be rati:[ied by a majority of the electors qualified to vote for members of the General Assembly voting thereon in each such political s:Iodiv'sion before it shall become a part of this Constitution." In the case of Towns et al v. Suttles, Tax Collector, 208 Ga. 838, the Supreme Court held that a Fulton County school district is a poli'jcal subdivision of this State. May I suggest that in the event a merger of the school system is decidGd upon, that the merger take place on December 31 of the year in which the merger becomes effective. By adopting thls date a great deal of confusion can be avoided in the levying and collection of taxes.

TAXATION-Ad Valorem-Imports (Unofficial)

Taxation of imports and "original package" rule explained.

Mr. Franklin Pierce

April 10, 1959

In a letter to you on February 11, 1959, I gave you my opinion as to the right of a state and its subdivisions to levy a tax on goods imported from a foreign country, citing the case of Hooven and Allison Co. v. Evatt, 324 U.S. 652 (1945). I concluded that where a manufacturer, located in this state, imports and stores in the original package goods for use in its manufacturing process, such goods could not be subjected to an ad valorem tax until they were actually withdrawn for processing, or until the original package had been broken.
However, on February 24, 1959, the case of Youngstown Sheet and Tuhe Co. v. Bowers was decided by the United States Supreme Courll and, in effect, modifies Hooven and Allison and the doctrine of immunity of imports remaining in unbroken packages. In the Youngstown case the Court held the following:
"Whatever may be the significance of retaining in the 'original package' goods that have been ... imported for sale, goods that have been ... imported for use in manufacturing are not exempt from taxation, though not removed from the 'original package', if ... they have heen put to the use for which they were imported." The Court then went on to state that although imported goods may remain in the original package or bundle until opened for day-to-day use in manufacturing operations, if such goods are imported for use in the manufacturing process and must be kept on hand to meet current manufacturing needs, they lose their characte,r as imports and, consequently, may be taxed in the same manner as any other property.
The application of the Court's ruling to the facts of a particular situation depends on the surrounding circumstance;;. What portion of a manufacturer's inventory can be considered as supplies to meet his current needs will depend on the nature of the industry. However, I feel that you may safely assume that ordinarily the average manufacturer will stock only supplies currently needed.

850

TAXATION-Ad Valorem-Situs (Unofficial)

Situs of personal property used in business discussed.

Mr. John Camarata

March 17, 1959

This is in reply to your letter wherein you request my opinion as to the tax liability of produce dealers engaged in business at the State Farmers Market, Atlanta, Fulton County, Georgia, on January 1, 1959, and who, subsequent to that date, removed their business to the State Farmers Market, Forest Park, Clayton County, Georgia.
Code Section 92-6202 is as follows: "The individual returns made by tax payers to the tax receiver
shall be for property held and subject to taxation on the first day of January, next preceding."
Personal property is generally taxable at the residence of the taxpayer, however, personal property used in the conduct of a business in a county other than the residence of the owner is taxable in the county where the business is conducted, under Code Section 92-6208, which contains the following provision:
"All persons, companies, and corporations . . . conducting any business enterprise upon realty not taxable in the county in which such persons reside or the office of the company or corporation is located, shall return for taxation their stock of merchandise, raw materials, machinery, . . . and all other personalty employed in the operation of such business enterprises, together with the manufactured goods and all other property of such business enterprises, including all personalty of whatsoever kind connected with or used in such enterprises in any manner whatsoever, in the county in which is taxable the realty wherein such business enterprises are located or carried on: ."
Under the authority herein stated I am of the opinion that dealers who were carrying on their business in Atlanta, Fulton County, Georgia, on January 1, are liable for ad valorem taxes on all personal property of whatever kind, connected with or used, in such business. The fact that the property was moved from Fulton County after January 1 to another city and county would not relieve the owner from taxation in Fulton County, Georgia.

TAXATION-Ad Valorem-Situs

Shrimp boats are personalty, and are taxable in the county in which the owner resides.

Mr. C. G. Campbell

September 18, 1959

This is in reply to your letter wherein you request an official opinion on the following question presented by Mr. J. Archie Johnson, Tax Commissioner of Chatham County. Mr. Johnson states in his letter to you the following:
"We have been having quite a bit of trouble with individual parties and also firms that own shrimp boats and other boats as to their liabil-

351
ity for ad valorem taxes in this county. They contend that these boats were not in Chatham County on January 1 of each respective year. Therefore, are not liable for taxes. I contend that they are liable because the individual owner or the firm lives here the year-round or the greater part thereof, and are registered voters and all of the boats in question are registered at the Custom House as this being their home port. With reference to the firms, the home offices are in Chatham County, and they accept dredging jobs in other states and are not here on January 1, and they are also registered at the Custom House. Shrimp boats are personal property and are subject to taxation in the same manner as other personal property is taxed. Personal property is defined in Code Section 92-102, which is as follows:
"For the purposes of taxation, 'personal property' shall be construed to include goods, chattels, moneys, credits and effects, whatsoever they may be; ships, boats, and vessels, whether at home or abroad, and capital invested therein; bonds and other securities of corporations of this or of other States; stock of corporations of other States; bonds, notes or other obligations of other States, and of the counties, municipalities or other subdivisions thereof; money due on open account or evidenced by notes, contracts, bonds, or other obligations, secured or unsecured." (emphasis added)
Code Section 92-6202 contains the following provision: "The individual returns made by taxpayers to the tax receiver
shall be for property held and subject to taxation on the first day of January, next preceding."
It will be observed from the two Code sections herein quoted that shrimp boats owned by the taxpayer on January 1 of the tax year must be returned for taxation at the place of the residence of the owner of the shrimp boats.
The Supreme Court of our State in the case of Collins, tax collector, et al. v. Mills, et al., 198 Ga. 18(2), held:
"Personal property is ordinarily taxed in the county where the owner resides, and in order for it to acquire a situs for taxation in some other county under the Code, 92-6208, it must be connected with some business enterprise that is situated more or less permanently in a different county as distinguished from an enterprise whose location is merely transitory or temporary." The Supreme Court of our State also held in the case of Wright v. Mayor and Council of Brunswick, 140 Ga. 231:
"Vessels and other water-craft are personal property and are taxable like all other such property within the jurisdiction of a municipality wherein their situs for taxation is located." This Court also held in the case of St. Simons Transit Co. v. Mayor & C. of
Brunswick et al., 141 Ga. 477:
"2. The Mayor and Council of the City of Brunswick 'have the authority and power to levy and collect a tax upon all taxable property within the limits of said city, upon real and personal property, ... not expressly prohibited or exempt by the laws of the State.' Charter of the City of Brunswick, Acts 1872, p. 151, 12; Acts 1889, pp. 1010, 1022.
"3. Where a navigation corporation is chartered under the laws of this State, and it appears that its principal office, and place of doing hl':lsiness (that is, its domicile) is fixed in a named municipality, the tax-

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able situs of a vessel owned by the corporation is in such municipality.
"4. The Saint Simons Transit Company is a navigation corporation, incorporated in 1895, under the provisions of the Civil Code, 2565 et seq. The home office and place of doing; business is fixed by the charter in the City of Brunswick, this State. The corporation owns two vessels which are operated from the City of Brunswick to St. Simons Island and return, the distance between the two points being about eight miles, both places being within the county of Glynn, but St. Simons being beyond the city limits of Brunswick. The vessels remained at St. Simons on an average of about a half hour each trip, and for the balance of the time, except that taken up in making the trip, they were tied up at their docks in the city of Brunswick. Held: The vessels are subject to ad valorem tax levied by the Mayor and Council of the City of Brunswick; and the municipal authorities, under the charter of the city, had the power to issue executions against the corporation for taxes due on such vessels for the years in which they were not returned for taxation, and in which no taxes were paid on them, and in which they were operated as above stated.
"(a) The municipal authorities have no power, however, to issue separate executions against the corporation for any one year for taxes due on each vessel."
The facts in the cases of Wright v. Mayor and Council of Brunswick, 140 Ga. 231, were as follows:
"During 1905 Wright was the part owner of a vessel registered under the acts of Congress, at the port of the City of Brunf:lwick, Glynn county. She made daily trips, except on Sundays, from Brunswick to St. Simons Island, also in Glynn county, and to the City of Darien in Mcintosh county; leaving Brunswick about 8:30 o'clock a.m., arriving at St. Simon's Island about 9:30 a.m., and arriving at Darien about 1:00 p.m. Returning by St. Simons Island, she reached Brunswick about 6:30p.m., where she remained during the night and until the next start to Darien. Wright did not reside within the city limits of Brunswick at any time during 1905, but during all of that year resided: at St. Simons Island."
In this ease the Court held that Wright's interest in the vessel was not subject to ad valorem municipal taxation during the year 1905 for the city of Brunswick. The effect of this decision was to hold that the vessel was subject to be taxed at the residence of the owner which was St. Simons Island.
It will be observed from the cases herein cited that the taxable situs of a vessel is not determined by the place where the owner may have paid taxes or by the place where the vessel is registered, but is determined by the domicile of the owner.
The procedure to be followed in the collection of taxes on shrimp boats is the same procedure which is followed in the collection of taxes on other personal property.

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TAXATION-Ad Valorem-Situs (Unofficial)

Personalty is taxable at residence of owner, and mere fact of absence of owner and personalty temporarily does not relieve from liability for tax.

Larry E. Williams

December 7, 1959

This is in reply to your letter of December 1, 1959.
A legal resident of Georgia is liable for Georgia ad valorem property taxes on personal property owned on January 1, irrespective of the fact that such person is in the Armed Services, and irrespective of the fact that both property and owner were absent from the State on January 1, and the, entire year.
A person does not lose his legal residence (i.e. legal or taxable domicile) merely by being absent from the State while in the Armed Services; nor does the mere purchase of an automobile license plate in another state (that is, a state of tempo,rary residence) change or establish such legal residence of such person to that state; nor does the mere purchase of a license plate in another state subject the vehicle and property of such non-resident se,rviceman to taxation in such state of temporary military re,sidence. See Dameron v. Brodhead, 345 U.S. 322; (Sec. 514, Soldiers' and Sailors' Civil Service Relief Act; 50 U.S. Code Ann., Supp., Section 574).

TAXATION-Ad Valorem-Valuation (Unofficial)

Discussion of proposed "All Share" plan of raising property valuations for tax assessment purposes.

Mr. Andrew J. Ryan, Jr.

January 14, 1959

This is in reply to your letter in which you request our opinion as to the legality of the "All Share" plan proposed in Chatham County for raising valuations of property for tax assessment purposes.
To begin with, we think some general observations are nece,ssary. First, it appears t,o us that under our law three fairly distinct functions are involved in the process of determining the amount of a property tax: (1) the initial return and valuation, (2) the equalization of assessments, and (3) the levy, Undoubtedly, in practice these three functions are not distinct and have been carried out for the most part as a single process by the several county officers involved. However, we think the problem can best be approached by seeing these as separate functions.
Second, Code Section 92-5701 requires that all property be returned at its fair market value, and Code Section 92-5702 defines "fair market value" to mean the cash amount realizable in a normal sales transaction.
The next consideration must be a recognition of the prevalent practice of property being returned at some percentage, say 25%, of fair market value and these returns being accepted by the tax receiver. These returns should be called de facto returns because, while accepted as in compliance with the law, they are not in accordance with the requirement that property be returned at its

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full fair market value under Code Section 92-5701. It is generally conceded that returns on this de facto basis developed as a
sort of tax avoidance practice to minimize the effect of the 5-mill State property tax levy. Now that the property tax has virtually been abandoned as a source of State revenue and is the main source of county revenue, even this practical reason for this practice no longer holds. Indeed, sensible tax adminisration, respect for law and the encouragement of honesty in civic relationships would seem to require that property tax returns be made as required by law that is, at full fair market value. In our oponion, Code Section 92-235 does not legalize these de facto returns; it does not "freeze" into law the practice of returns, at a percentage of fair market value and forbid a return to returns on the basis of Code Section 92-5701. This section, by implication, does recognize the practice, and its purpose is to limit any effect of this practice on the amount of the homestead exemption. If it means anything more, it may be unconstitutional, as dealing with a subject matter not described in the title of the Act.
Now the taxing process, under our law, starts with a return by the property owner, listing the property and stating, under oath, its full fair market value; it takes all of this to make a de jure return (a return as required by law). The tax receiver (or tax commissioner performing the function of a tax receiver) is the official charged by law with getting de jure returns of all property in the county. This entails more than perfunctorily receiving as a return whatever a property owner offers. See Douglas v. Gibbs, Tax Receiver, 147 Ga. 39. Under
Code Section 92-6701 the tax receiver has a duty, not only witih respect to property omitted from any return, but also with respect to property which, though returned, is grossly undervalued on the return. A tax receiver can be compelled by mandamus to do something about returns on omitted property. Richmond County v. Steed, Tax Receiver, 150 Ga. 229. And, in our opinion, he can be compelled by mandamus to do something about returns on which listed property is known to be systematically grossly undervalued. The recent decision in the Supreme Court of Georgia in the case from Chatham County does not hold otherwise, it merely held that the mandamus should have been brought at some time between January 1 and April 10 of the year.
It occurs to us that property which is being returned at 25% of fair market value is per se grossly undervalued. Under Code Section 92-6701 returns on this basis are not de jure returns; the statute expressly states that a property owner who returns his property at a figure grossly below its true value is delinquent and this is the same delinquency as a prope,rty owner who makes no return of his property. It is the duty of the tax receiver to see that de jure returns are filed on all property in the connty, and Code Sections 92-6702 and 6703 prescribe the procedure for accomplishing this.
Notice that we are still talking solely about the first function in the taxing process-getting de jure returns filed-and this is the responsibility of the tax receiver. Neither the board of tax assessors nor the board of county commissioners is involved, and there is no place here for the board of tax assessors, or the board of county commissioners, or both, to get together with the tax receiver to arrive at some percentage figure to be used currently as the basis of valuations.
Putting it another way: 'l'he practice of returning property at a percentage of its fair market value developed originally because tax receivers were willing to accept such valuations as de jure returns when they were not. Just as tax receivers were the cause of it, they can. be looked to for the cure. In our opiniQJa,

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the tax receiver can make such general increases as he deems necessary to' get property returned as required by law. The Supreme Court decision in Green, Tax Assessor vs. Calhoun, 204 Ga. 550, would not apply here because this action would be the action of the tax receiver, pursuant to his statutory duty to get all property returned at its fair market value and not grossly undervalued, and not the action of the tax assessors.
The second function involved in the taxing process is equalization of assessments. This function is performed by the board of tax assessors. Under our law, it appears to be three-fold: (1) getting all taxable property in the county assessed; (2) at just and fair valuations, and (3) valuations fairly and justly equalized. See Code Section 92-6911. It would appear from Green, Tax Assessor
v. Calhoun, supra, however, that the tax assessors' function is primarily equalization and that the other responsibilities are supplementary follow-ups of the tax receiver's functions. Even with regard to de facto returns, there must be no discrimination. Hutchins v. Howard, 211 Ga. 830.
The third function involved in the taxing process is the levy. This function is performed by the governing authority of the county. Code Section 92-3801. The tax receiver and assessors are involved only to the extent of having made up the digest of assessable values in the county. When this is presented to the governing authority of the county, it has the duty to fix a rate for taxation that will produce sufficient funds to defray the county expenses for the year. Bang v. Williams, 211 Ga. 921.
Now, particularly, you have asked our opinion on the legality of the Chat-
ham County Commissioners' adopting 50% of appraisal as a basis for tax
assessment.
Of course, to go to a 50% basis instead of a 25% basis is but to continue de facto returns on a higher basis. In one sense, you are asking for an opinion as to how the county can continue to avoid the law and how to continue in a course of action known to be de facto and not de jure. You realize, of course, that we cannot advise in this situation.
In another sense, however, a change in basis from 25% to 50% is a progress toward full compliance with the requirements of Code Section 92-5701. Viewing your inquiry in this light, we will make some observations.
We would make two general observations: First, the three functions, namely, the intial return and valuations, the equalization of assessments, and the levy or fixing the millage rate should be performed separately by the respective officials charged therewith and in no wise in collaboration with each other. Second, there should be no official adoption or declaration of any basis of valuation except full fair market value.
More particularly, it is our opinion that it is none of the function of the county commissioners to participate officially in any action whatever relating to the valuation, equalization or assessment of property. Their function is with regard to fixing a millage levy. Smith v. Board of Education, 153 Ga. 758, and may have no authority over other similar types of special levies which may prevail in Chatham County. Prior to the time that the digest is completed there can be no official commitment as to what the millage levy will be. Unofficially, about all that should be said is a "pledge" that if the assesed value of property in the county doubles, the millage levy will be halved.
It should be noted from what has been said that the tax receiver has the primary responsibility of seeing that property is returned ,at its full fair

356
market value, and that the tax assessors have a follow-up responsibility in this connection. Properly viewed, a property reappraisal program should be in aid of the tax receiver and his work of getting returns in on a full fair market basis. In making valuations, no one method is exclusive. Hutchins v. Williams, 212 Ga. 754. In our opinion, reconstruction costs as of a certain time, adjusted for prior depreciation and also for subsequent increases in general price levels, is a proper valuation method and may be used as the basis of a reappraisal program. Properly done, a valuation under this method would approximate full fair market value and does not extend to reducing it by some percentage of fair market value.
As we have indicated, we think the tax receiver holds, the best solution to the problem through the exercise of his authority to require new returns when property is returned by the owner grossly undervalued. He could, and should, declare officially that he will accept no returns at less than full fair market value; he could use the results of the reappraisal program to aid him in determining whether property was being so returned; he could use Code Sections 92-6702 and 6703 to compel returns on a basis approximating full market value. Unofficially, he could, and should, say that it is the function of the tax assessors to equalize these valuations on whatever basis they find necessary to effect equalization, and this is all he should say.
When a tax receiver turns his returns over to the tax assessors, they will either be on a full value basis or at some percentage of market value. If the tax receiver has performed his duty under the law and procured returns on a full value basis, it is the function of the assessors to equalize the,se valuations. We doubt if anyone can describe what is involved in equalization. We know that assessing at full fair market value is a secondary consideration to assessing equally. Hutchins v. Howard, 211 Ga. 830. We can guess that many complex factors interact to effect equalization; we can anticipate that any official declaration by the assessors that any single factor is going to control, will invalidate equalizations controlled thereby. Green, Tax Assessor v. Calhoun, supra.
Now, if the tax receiver has not performed his duty under1 the law and has accepted returns on a percentage of fair market value, the returns, being grossly undervalued, are really delinquent returns. Necessarily, then, the followup function of the tax assessors comes into operation. In other words, the tax assessors are forced to begin from scratch and do what the law required of the tax receiver and what he failed to do, that is, to correct the returns to full market value and then proceed to equalization. In doing so the tax assessors, like the tax receiver, could use the results of any tax reappraisal program as an aid to valuation. The results of this reappraisal should, as already pointed out, be in terms of full market value. This, then, would bring the returns up to what the tax receiver should have done. Then, the assessors would proceed to equalize these valuations at whatever level they think necessary to effect proper equalization. We do not see that there can be any official or unofficial declaration on the part of tax assessors committing them to any particular equalization factor in advance of being presented with the returns by the tax receiver.
It is also our opinion that what is done in one year with respect either to returns and valuations, or to equalization, or to the levy, by the respective county officials, does not preclude change in any subsequent year.
In summary, let us say that the "All-Share" plan, if carried out, appears

357
to be progress towards compliance with the law which requires, as stated, that all property should be returned at fair market value. However, returns on a basis of 50% of fair market value will still be de facto returns and, in a strict legal sense, delinquent. If each of the three functions are performed independently by the respective county officials, as outlined herein, and the final result approximately doubles the total assessed valuation of the property in the county, and the county commissioners, the Board of Education, etc., decide that they can afford to halve their millage rate, and do so, we do not think the outcome come can be successfully challenged in court.

TAXATION-Ad Valorem-Valuation (Unofficial)

Realty and personalty being classed separately, they may not be classified together for taxes.

Mr. J. Archie Johnson

October 29, 1959

This is in reply to your letter in which you request my opinion on the following question:
"... do the Tax Assessors have the authority to combine machinery valuation with the real estate vaulation and then arrive at one valuation as real estate only?"
The duties of the tax assessors are' set forth in Chapter 92-69 of the Code of Georgia. Section 92-6911 of this Chapter contains the following provision:
". . . The board shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion o:f the board any taxpayer has omitted from his returns any property that should be returned or has' failed to return any of his property at a just and fair valuation, the board shall correct such returns and shall assess and fix the just and fair valuation to be placed on the property and shall make a note thereof and attach the same to the returns. It shall be the duty of the board to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as between the individual tax payers are fairly and justly equalized so that each taxpayer shall pay as near as may be only his proportionate share, of taxes. . . ."
The board of tax assessors does not have the authority to classify personal property as real estate. Real estate and personal property are classed separately, as is found in Code Section 92-6215, and also under the forms prescribed by the State Revenue Commissioner for the filing of tax returns.

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TAXATION-Board of Compromises and Settlements

Jurisdiction of Board discussed.

Honorable S. Ernest Vandiver

September 28, 1959

This will acknowledge receipt of your letter requesting my official op1mon as to the proper interpretation of Section 92-8411.1 of the Georgia Code Annotated.
Specifically your request is for my official opinion respecting the jurisdiction of the "Board of Compromises and Settlements" to have taken the action which it did Thursday (September 17, 1959) in the Cordell-Green Metor Company of Dublin tax matter.
As pointed out to you, this question of jurisdiction arises with respect to a decision by a majority of the Board, provided for in Code Section 92-8411.1, wherein the Board determined that evidence before it failed to establish sales tax liability on the part of Cordell-Green Motor Company of Dublin, Georgia.
In this connection I have before me a brief resume' of the findings and final action of the Board as submitted by the State Revenue Commissioner.
At the outset, may I emphasize that in responding to your request, I am limiting my opinion to the question presented by your letter, which is whether the Board had jurisdiction to act under the facts and circumstances in the case in question. Therefore, the wisdom of the decision which was reached by the Board will not be commented upon.
The Board of Compromises and Settlements was created by an Act of 1953 (Ga. L., 1953, pp. 185-186), approved February 24, 1953, now codified as Georgia Annotated Code Supplement, 92-8411.1. This statute is as follows:
"BOARD OF COMPROMISES AND SETTLEMENTS. - There is established a board composed of the Attorney General, the State Revenue Commissioner, the Chairman of the House of Representatives Ways and Means Committee, the Chairman of the Senate Finance Committee, and the State Auditor, which is hereby authorized to settle and compromise any proposed tax assessment, any final tax assessment or any tax fi. fa. which because of the insolvency of the taxpayer or the questionable legal position of the State the collection of saili. taxes is doubtful and said settlement or compromise is in the best interest of the State: Provided, however, that a majority of the board shall be em powered to settle and compromise; and, provided further, that the State Revenue Commissioner shall keep a record of all such settlements and compromises made and the reasons therefor." (Underscoring supplied by me.) This Code Section authorizes the Board to settle and compromise tax claims falling under two categories. The first of these involves cases of insolvency of the taxpayer, and the second category authorizes such settlements and compromises in cases involving any proposed tax assessment, any final tax assessment, or any tax fi. fa., which, because of the questionable legal position of the State, the collection of said taxes is doubtful, and said settlement or compromise is in the best interest of the State. It will be noted here that the aforesaid statute further provides:
"... that a majority of the board shall be empowered to settle and compromise" any such tax claims.
Based on the report made to me by the Reveaue Commissioner, there is

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no question of insolvency involved in this case, and hence the question necessarily hinges upon the jurisdiction of the Board as applied to the second category.
It is a well settled rule of law that an agent of the State cannot settle tax claims without express legislative authority of the State (State of Georgia v. Southwestern Railroad, 60 Ga. 403-406). Consequently, whatever authority or jurisdiction the Board had must be found in the quoted statute and in this case limited to the second category as above stated.
Construing the statute in the context as a whole, it is my firm opinion that the Board is not limited to situations where only a question of law is invoJ.ved. It goes further and confers power to settle where the State's "legal position" is "questionable" so as to render collection "doubtful."
A person's "legal position" is ascertained and determined by applying principles and rules of law to the basic facts and circumstances presented by that person's particular case. The term thus involved a mental process embracing both law and fact. As applied to the present case, what Cordell-Green Motor Company did constitutes analytically a question of fact. Having once established that fact, whether or not it constituted a provable conspiracy or otherwise gave rise to tax liability, analytically is a question of law. Determination of the State's "legal position" requires the combining of both these functions in a single unitary process, and involves a mixed question of law and fact. 4 Davis on Administrative Law, Section 30.01.
In other words, the Board must of necessity find and consider facts and likewise must of necessity consider any law question involved which affects the State's "legal position" in order to determine whether the State occupies a "questionable legal position" which makes "the collection of the said taxes doubtful." If this were not true there would be no way for the Board to determine the State's "legal position" in any case.
Therefore, after having determined that the State occupies "questionable legal position" which renders "the collection of said tax doubtful," the Board is authorized and empowered to make such "settlement or compromise" as it determines to be "in the best interest of the State."
Moreover, generally speaking, the word "compromise" is construed to cover both law and fact (David v. Atlantic Co., 69 Ga. App. 643, 647). Any other interpretation would render Section 92-8411.1 virtually meaningless, because it is difficult to conceive of a. case in which there would be only a question of law involved. A legislative body is presumed to mean something by the passage of an act and the act should not be so construed as to render it meaningless (Scott v. Mt. Airy, 186 Ga. 652; Central Railway Company v. State, 104 Ga. 831-839).
In conclusion, there is a rule of law that uniform practice of the State Departments can be looked to in the construing of a State statute (Wright, Comptroller-General v. Hardwick, Governor, 152 Ga. 302, 310). According to the minutes of the Tax Settlement and Compromise Board, numerous decisions of compromise and settlement based on the questionable legal position of the State which might render the collection of the taxes doubtful have been determined since the creation of the Board under the 1953 Act.

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TAXATJON-Collection

Effect of suspension of collection of taxes by Governor.

Mr. Dixon Oxford

November 4, 1959

This is in reply to your letter in which you pose the following questions: (1) When the collection of taxes is suspended by the Governor's executive order under Code Section 40-205 until the next meeting of the General Assembly, and at the next meeting of the General Assembly such executive order fails of legislative ratification, do the taxes which would otherwise have been due and collectible during that period thereupon become due and payable; and (2) when the collection of taxes is suspended by the Governor's executive order under Code Section 40-205, and prior to submission of the matter to the next meeting of the General Assembly a succeeding Governor revokes such executive order, do the taxes which would otherwise have been due and collectible during the period of such executive order thereupon become due and payable,?
Code Section 40-205 provides as follows: "The Governor may suspend collections of taxes, or any part
thereof, due the State until the, meeting of the next General Assembly, but no longer; nor shall he, otherwise interfere with the collection of same."
It is my opinion that liability for taxes arises upon the happening of the taxable event or the expiration of the taxable period in accordance with the taxing statute at that time. The above statute assumes that a tax liability has lawfully accrued and that taxes are legally due the State. The Governor has no authority to extinguish this liability; the extent of his power is to suspend the collection of it until the meeting of the next General Assembly. State v. Southwestern Railroad Co., 70 Ga. 11. The Governor's authority is exercised as the chief Executive; it relates to the enforcement of the law and not its repeal; his action is administrative and not legislative.
The next section of the Code, Section 40-206, until it was repealed in 1943 (Ga. Laws 1943, p. 399), provided, similarly, that the Governor could, under the described circumstances, suspend the State Treasurer or Comptrolle,rGeneral and report his reasons to the General Assembly, the suspension to continue until the General Assembly should direct otherwise. The Supreme Court, in Daniel v. Citizens and Southern National Bank, 182 Ga. 384, in discussing this section, said (p. 296):
"It is a suspension, and not a removal. While in a way it may seem to be equivalent to removal, . . . yet in law it is not a removal, but by the very terms of the law is a suspension. If the legislature otherwise directs, the suspended officer will be restored to office and entitled to compensation as though he had not been suspended."
As I see it, equivalent reasoning applied to Code Section 40-205 would lead to the conclusion that if the General Assembly refused to ratify the suspension of the collection of taxes it would be as though there had never been a suspension; this would mean that taxes not collected because of the suspention would then become collectible. Clearly, suspension of the collection of taxes under Code Section 40-205 is a form of procedural, not substantive, relief. Prior to legislative action, the suspension is temporary and the taxpayer relies upon it at his own risk. The General Assembly may ratify the Governor's

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order and make the relief permanent. If legislative ratification is not forthcoming at the meeting of the next General Assembly the effect of the Governor's order of suspension, by the express language of the statute, terminates, leaving the taxpayer exposed to, and without any relief against, the usual processes of the collection of what had all the time been a legal liability for the taxes.
If, prior to the meeting of the next General Assembly, a succeeding Governor revokes a suspension order of his predecessor, the same result, nevertheless, follows. There is no estoppel; a public official is never estopped from enforcing the law by the acts of his predecessor. Standard Oil Co. v. State Revenue Commission, 179 Ga. 371.
My answers, therefore, to your questions are as follows: (1) When the collection of taxes is suspended by the Governor's executive order, under Section 40-205, until the next meeting of the General Assembly and at the next meeting of the General Assembly such executive order fails of ratification, the taxes which would otherwise have been due and collectible thereupon become due and payable.
(2) When the collection of taxes is suspended by the Governor's executive order under Code Section 40-205, and prior to submission of the matter to the next General Assembly a succeeding Governor revokes such executive order, the taxes which would otherwise have been due and collectible during the period of such executive order thereupon become due and payable.

TAXATION-Federal Excise Taxes (Unofficial)

Authority to issue certificate of exemption.

Mr. W. M. Dewberry

June 30, 1959

In your letter you state: "Please give me a ruling as to who can issue an exemption certifi-
cate for excise tax for purchases at state owned institutions. Please advise if it is proper for an official of this college to issue a certificate."
I assume that your request for an opinion refers to Federal excise taxes. The writer, upon receipt of your letter, contracted Mr. Boland of the Review Staff of the Federal Excise Tax Division, and also the office of the State Supervisor of Purchases.
Any person who is authorized to make purchases in behalf of the State has the authorit,y to execute the Fede~al tax exemption certificate in connection with the purchase.
Chapter 40-19 of the Code of Georgia creates the office of Supervisor of Purchases. Section 1902 of this Chapter outlines the duties of the Supervisor of Purchases, and Section 1906.1, with reference to purchases made by institutions and agencies of the State, is as follows:
"The Supervisor of Purchases shall have the power and authority and it shall be his duty subject to the provisions of this Chapter to contract for the purchase of all supplies, materials and equipment required by the State Government. After sources of supply have been

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established by contract under competitive bidding and certified by the Supervisor of Purchases to the different departments, institutions and agencies of the State as provided for in this Chapter, such institutions, agencies, or departments of State shall make requisition on blanks to be approved by the Supervisor of Purchases for such supplies, materials and equipment required by them from the supply so certified and except as herein otherwise provided for, or unless such departments, institutions and agencies of State obtain written authority from the Supervisor of Purchases to do so, it shall be unlawful for them or any of them to purchase any supplies, materials or equipment from other sources than as certified to them by the Supervisor of Purchases." It will be observed from this section that no official of the Georgia Teachers College would be authorized to issue a certificate of exemption unless the official was authorized by Supervisor of Purchases to make the purchase.

TAXATION-Firearms-Dealer License Tax (Unofficial)

Firearms Dealer license tax discussed.

Mr. Reuben Scruggs

April 1, 1959

You ask: "Please let me know how much special tax to collect on rifles
and cartridges, for 1959." Section 92-2009 of the Supplement to the Georgia Code Annotated is as follows:
"Each and every dealer is pistols, or who deals in pistol cartridges or rifle cartridges, dirks, bowie knives, or metal knucks, shall pay for each place of business in this State, in or near towns or cities of 2,500 population or less, $15; in or near cities of over 2,500 population, and less than 10,000, $25; in or near cities of 10,000 population or less than 50,000, $50; in or near cities of 50,000 and above population, $100; Provided, further, that no person shall be exempted from payment of this tax: Provided, further, that the word 'near' as used in this section or paragraph shall be and is defined to mean within a radius of three miles of the incorporated limited of said town or city referred to in this section."
Section 92-2016 of the Supplement to the Georgia Code Annotated is as follows:
"Each and every dealer in rifles and rifle cartridges shall pay for each place of business in this State in cities of over 200,000 inhabitants, $20; in cities from 75,000 to 200,000, $15; in cities from 40,000 to 75,000, $10; in towns and cities under $40,000, $5: Provided, that any dealer located within a radius of three miles of the incorporated limits of any of said towns or cities shall take the same rate of taxation as the town or city located nearest said dealer." The two Code Sections quoted above contain the only provisions for the licensing of fire arms by the State of Georgia.

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You will observe that Code Section 92-2016 provides for State licenses for the sale of rifles and cartridges. A license tax is also provided for rifle cartridges in Section 92-2009, which section deals with pistols, pistol cartridges and rifle cartridges, dirks, bowie knives and metal knucks.
I am of the opinion that the payment of the license provided for in Code Section 92-2016 would cover all the licenses due for dealers in rifles and rifle cartridges. This section would apply in cases where the dealer sold only rifle cartridges or rifles or sold both items.

TAXATION-Income Tax

Net operating loss carryover.

Mr. Dixon Oxford

April 15, 1959

This is in reply to your letter in which you request an official openion as to whether a net operating loss carryover, under Code Section 92-3109(m), is reducible by the 50% non-taxable portion of a net leng-term capital gain in a subsequent year.
Code Section 92-3109(m(6) (8) provides that a net operating loss carryover shall be further reduced in each subsequent year by the adjustments provided in subsection (m) (3), (A), (C), (D), and (E). The purpose of these adjustments is to limit this type of tax relief and require that losses be absorbed against non-taxable income as well as taxable income. More particularly, Subsection (D) provides:
"The limitations on gains provided for in subsecti&ns (d), (e) and (f) of Section 92-3119 ... shall not apply." Code Section 92-3119 (d) (2) limits the percentage of a net long-term capital gain to be taken into income to 50%, leaving, of course, 50% not taken into account. The above subsection removes this limitation, and the obvious effect is to adjust the net operating loss carryover by setting it off against the 50% net long-term capital gain not tal,en into income, before allowing its deduction against taxable income. Accordingly, it is my opinion that a net operating loss carryover, under Code Section 92-3109(m), is reducible by the 50% non-taxable portion of a net long-term capital gain in a subsequent year.

TAXATION-Income Tax-Depreciation

Depreciation for income tax purposes must be reasonable.

Mr. Dixon Oxford

February 24, 1959

This is in reply to your letter in which you ask an official opinion on the following questions:
"(1) Can the term 'reasonable allowance for depreciation' as used in

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Section 92-3109(f) be construed to embrace the provision of Internal Revenue Code Section 179? "(2) If Georgia cannot, under present law, allow such additional first year depreciation, are we precluded from allowing more depreciation than does the Federal Government on such an asset beginning with its second year of expected life until it is fully depreciated for State purposes? "(3) If answer to (2) is 'yes', is the Commissioner of Revenue empowered to issue regulations which would allow recovery of entire cost of an asset through depreciation allowances in excess of the amount allowed by the Federal Government for the same period? "(4) If answer to (2) is 'no', please indicate circumstances under which the following limitations may be applied.
"'Section 92--3109 (f) . . . Provided, that after the cost has been recovered or restored through depreciation previously allowed for either Federal or State income tax purposes no further deduction shall be allowed. The amount allowed as a deduction for depreciation or depletion shall in no instance exceed the amount so allowed in a return fHed with the Federal Government for the same period... .'."
In answer to question (1), it is my opinion that the term "reasonable allowance for depreciation" as used in Section 92-3109(f) cannot be construed to embrace the provision of Section 179 of the Internal Revenue Code. While it is true that the State Revenue Commissioner has considerable latitude in determining what is a reasonable allowance for depreciation, and can, by rules and regulations, authorize various methods of determining depreciation, he is limited to methods designed to more closely approximate actual depreciation under varying circumstances and thereby to more clearly reflect actual income. The statutory method authodzed by the 1958 amendment adding Section 179 to the, Federal Internal Revenue Code is entirely fictitious and stands in no relationship to actual depreciation. It is really a deducation for a type of amortization considered desirable by Congress as a matter of national policy. Whether such a deduction should be given affect for Georgia income tax purposes is a matter of State policy, and until the General Assembly has enacted a simliar provision, I can only conclude that it is not authorized for Georgia purposes.
Your questions (2) and (3) can be answered together. The power of the State Revenue Commissioner with respect to the determination of a reasonable allowance for depreciation, in order to ascertain as clearly as possible the net income of a taxpayer, is in no wise affected by the enactment by Congress of Section 179 to the Federal Internal Revenue Code.
In answer to your question (4), it is my opinion that that portion of Code Section 92-3109(f) which says that "the amount allowed as a deduction for depreciation or depletion shall in no instance exceed the amount so allowed in a return filed with the Federal Government for the same period" does not mean either that Federal statutes prescribing methods of determining depreciation shall be read into the Georgia law, or that a Georgia taxpayer will be deprived of a full recovery of his adjusted basis because his allowance in later years for Georgia purposes will necessarily exceed his allowance for Federal purposes when he has taken advantage of the Federal statute to claim more than actual depreciation in an earlier year.
The quoted portion of Code Section 92-3109 (f), in my opinion, was intended

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to promote conformity by penalizing non-conformity in the matter of depreciation and depletion allowances, but the conformity sought pre-supposed that the underlying laws of the two taxing jurisdictions enabled conformity. Pri01 to the 1954 Internal Revenue Code there were no statutorily prescribed methods of determining depreciation; both Fedral and State law, in effect, traveled on methods which had been developed as acceptable accounting practices; thus, the underlying laws of the two taxing jurisdictions enabled conformity, and the quoted portion of Code Section 92-3109 (f) was intended to promote conformity by penalizing non-conformity. The 1954 Internal Revenue Code enacted a variety of statutory methods which theretofore had not been developed as acceptable accounting practices. By the. Act approved March 4, 1955 (Ga. Laws 1955, p. 481), these became authorized for Georgia income tax purposes and enabled conformity. Accordingly, the above-quoted Code Section 92-3109(f) became operative to promote conformity by penalizing non-conformity with respect to these methods. Until the method authorized by Section 179 of the Internal Revenue Code becomes authorized by Georgia statute, there is no basis for forcing conformity and, hence, the quoted portion of Code Section 92-3109(f) does not come into operation. Since conformity is not possible, certainly nonconformity cannot be, and should not be, penalized.

TAXATION-Income Tax-Exemptions

Termination date for Korean veteran income exemption.

Mr. Fred L. Cox

September 25, 1958

This is in reply to your request for my official opinion as to whether or not the Korean conflict has ceased, in order that you may be able to determine the eligibility of members of the Armed Forces to receive $1500.00 exemption as provided in the Act approved February 24, 1953 (Ga. Laws, 1953, Jan.-Feb. Sess., p. 187, 188). Section 1 contains the following provision:
"That the income tax returns of all persons serving in the armed forces of the United States. between January 1, 1950 and the termination of the Korean conflict shall be computed or recomputed so as to allow a deduction from gross income for any year of so much of their compensation for such services as does not and did not exceed fifteen hundred ($1500) dollars in addition to all other deducations allowed by law, and to exempt such compensation from income taxes where such deduction was not made either before or after the passage of this Act."
On May 26, 1954, in an official opinion to Han. Kenneth A. Campbell, your predecessor, I ruled that the Korean conflict had not at that time terminated.
Since then, the President of the United States, by Executive Order (No. 10585; 20 F.R. 17; 3 C.F.R. 1955 Supp., p. 51), has designated January 31, 1955, as the date of termination of combatant activities in Korea. This was for the purpose of terminating an exclusion from gross income of servicemen's compensation above for Georgia income tax purposes.
It is my opinion that the General Assembly intended that the Korean con-

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flict be deemed to continue or to terminate according to the official acts or actions of the responsible agency of the United States Government, which in this case was the President of the United States.
It is, therefore, my opinion that the Korean conflict terminated as of January 31, Hl55, and that the $1500.00 exclusion afforded servicemen under the Act of 1953 also terminated at that time.

TAXATION-Income Tax-Who Subject To (Unofficial)

When company doing business in state.

Mr. R. Wilson Smith, Jr.

February 24, 1959

This is in reply to your letter in which you state: "The situation I have before me is where a company desires to
open a store within the State of Georgia and instead of buying the furniture, fixtures and equipment for this store, they desire to lease the same from a corporation in another state. The company which owns the fixtures to be leased is a corporation organized and operated by a group of men, including some of the directors of the corporation who expects to operate the store and procure the property under lease.
"The question here posed is, would the company who owns the property and leases it to the Georgia company be doing business within the purview of the Laws of Georgia so as to subject it to the payment of income tax upon the rent paid by the store owners within the State of Georgia." Please refer to Code Section 92-3113, as follows:
" Every such corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, whether or not such corporation qualifies to do business in this State, and whether or not it maintains an office or place of doing business within this State, and whether or not any such activity or transaction is connected with interstate or foreign commerce." It is, therefore, the opinion of this writer that under the above circumstances in question the company would be doing business in Georgia, so as to subject it to the Georgia income tax laws.

TAXATION-Intangibles Tax (Unofficial

Intangible properly owned by a non-resident may be subject to Estate Tax.

Mr. Robert T. Russell

August 7, 1959

In your letter you state: "A bona fide resident of Florida has physically delivered to his

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Atlanta broker certain securities to be held in safekeeping as a matter of convenience in the handling of his brokerage account. These securities are personal assets and are not associated with, or in any way incidental to, the conduct or operation of a business within Georgia. The securities held by the broker are returned by the Florida owner for intangible taxes to the State of Florida.
"Based upon these facts, are these securities subject to Georgia estate tax at the death of the non-resident owner?"
Georgia Code Annotated, Section 92-3401.1 states:
"It shall be the duty of the legal representative of the estate of any person who may die a non-resident of this State but who owns or controls property located within the State, and whose estate is subject to the payment of a Federal estate tax, to file with the State Revenue Commissioner a duplicate of the return which he is required to make to the Federal authorities and pay a tax thereon as determined by section 92-3401. The amount of the tax to be paid shall be in proportion to the amount of property located in this State as compared to the total amount of property located elsewhere."
It is now well settled that a state may constitutionally impose an inheritance tax only upon that which has a taxable situs within its territorial jurisdiction. As applied to tangible property, the state within which the property has an actual situs may tax even to the exclusion of the state of the owner's domicile. Frick v. Pennsylvania, (1925) 268 U.S. 473, 69 L. ed. 1058, 45 S. Ct. 603. But as applied to intangible property, the state of the owner's, domicile has the power to impose an interitance tax even when the securities or other evidences of such property are physically outside the state. Blodgett v. Silberman, (1928) 277 U.S. 1, 72 L. ed. 749, 48 S., Ct. 410; 42 A.L.R. 327;; 86 A.L.R. 741. Therefore in your presented problem the State of Florida, if there statutes so provide, may validly place an inheritance tax upon the securitie&J physically present in Atlanta, Georgia.
In Curry v. McCanless, 307 U.S. 357, 83 L. ed. 1339, 59 S. Ct. 900, it was established that intangible property may not only be taxed by the owner's state of domicile, but also by the state in which such property has acquired a "business situs". Therefore, the State of Georgia may validly tax the Florida resident's securities located in Atlanta if it can be said that they have acquired a "business situs" here. The fact these securities are not related to the operation of a business in Georgia in the usual sense of the word is not entirely conclusive, as is illustrated by the Curry case in which a trust was involved. There it was decided that the trustee's state had sufficient relationship with the securities held in trust to enable it to tax them along with the deceased owner's state of domicile.
Of course, if the Atlanta broker is' acting purely as a broker, being a mere custodian of the securities, and acting in every situation solely upon instructions of his Florida customer, then these securities have no taxable situs in Georgia. But, if the Atlanta broker has discretion in the handling of the securities, being able to buy and sell them on his own judgment subject only to a general scheme established by the Florida customer, then these securities have obtained a, taxable situs in Georgia, and this State may impose its inheritance> tax upon them.

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TAXATION-Intangible Tax (Unofficial)

United States and certain banks are not subject to intangibles tax.

Hon. Knox Bynum

June 18, 1959

In your letter you state: "I would like to request your opnuon as to whether a long term
Security Deed executed by a borrower to a State Bank (organized under State Banking laws) in conneetion wtth a Small Bnsiness Administration deferred participation agreement with sueh lender Bank, would be subject to the Georgia intangible Recording Tax. The deferred participation agreement referred to in effect provides that S.B.A. shall furnish a portion of the money loaned to the lender Bank upon certain conditions being met by lender and borrower; and upon proper request by lender Bank."
The Small Business Administration is an agency of the United States Government and as such is exempt from the payment of intangible taxes in the State of Georgia. This exemption is provided for in Code Section 92-123, which is a part of the Intangible Tax Act.
The Supreme Court in the case of Washington Loan & Banking Co. v.
Golucke, 212 Ga. 98, held that banks chartered under the laws of the State of Georgia are not subject to the payment of the tax imposed upon long-term notes secured by real estate under the 1953 amendment to the intangible tax laws of this State.
Since the Small Business Administration and banks chartered under the laws of this State are both exempt from the payment of the tax on long-term notes, I am of the opinion that long-term notes held jointly by the Small Business Administration and State banks would also be exempt from the payment of this tax.

TAXATION-Intangible Tax

Situs of intangible tax when security for a long term note is located in another state.

Mr. C. 0. Campbell

May 7, 1958

This is in reply to your request for my official opinion as to the tax liability of a Georgia corporation for the tax on long-term real estate notes, as found in Section 4 of the 1953 Act (1953 Ga. Laws, Nov.-Dec. Sess., pp. 379, 383), when the property securing same is located in Florida. and proof is furnished that a similar intangible tax has been paid on said notes in Florida.
Section 10 of this Act (Ga. Code Ann. 92-170) provides: "Every resident owner of long term notes secured by real estate
outside of this State, including domestic corporations and foreign corporations having their principal places of business in Georgia, shall, in lieu of recording the instrument securing any such note or notes, file at

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such periodic intervals as the State Revenue Commissioner shall by regulation designate, a memorandum thereof with the State Revenue Commissioner, on forms prescribed by him, and, at the same time, pay to the State Revenue Commissioner the amount of the tax required by this law ( 92-161 through 92-184) with respect to such instrument. The revenue from such instrument shall be distributed to the State, counties and municipalities as if the real estate securing such instruments were located in the county of the domicile of the taxpayer, or in the county of the principal place of business of the taxpayer, if a corporation." The tax imposed by Section 4 is not independent of the Intangibles-Classification Act (1937-38 Ga. Laws, Ex. Sess., p. 156), but isi to be read as supplementing it. See Washington Loan & Banking Co. v. 'Golucke, 212 Ga. 98. Section 3 (f) of the 1937 Act (Ga. Code Ann. 92-122) provides:
"Intangible property, including money, owned by a person domiciled in Georgia, which has acquired a taxable situs and is subjected to tax in another State incident to the conduct of business located in the said other State, shall not be deemed to be taxable under tihe provisions of sections 92-116 to 92-122."
The Supreme Court of Florida has held that real estate notes secured by mortgages against Florida land have a taxable situs in Florida, if for no other reason, because of the benefits and protection afforded the obligation through the lein safeguard afforded by the recording of the mortgage in Florida. State ex rei U.S. Sugar Corp. v. Gay (Fla.), 46 Sou. 2d 165 (1950).
Assuming satisfactory proof that the Florida intangibles tax has actually been paid in Florida, it is my opinion that Section 3(f) of the 1937 Act (Ga. Code Ann. 92-122) operates to prevent a second tax on such notes in Georgia against a Georgia resident or corporation.

TAXATION-Intangible Tax-Rate

Rate of intangible tax on bank shares.

Mr. Dixon Oxford

June 26, 1959

This is in reply to your letter in which you request my official opinion concerning the State levy of 5 mills against the value of shares of banks, etc., under the Governor's Executive Order of June 16, 1959, when Code Section 92-2406 provides that shares of banks, ete., shall be taxed "at the same rate provided by law for the taxation of tangible property in the hands of private individuals", which, under the same Executive Order, is 14 of one mill?
The Governor, by Executive Order of June 16, 1959, ordered: "That the following rates of taxation be assessed and collected
from the amounts of taxable property returned by or assessed against each taxpayer, and upon the value of all property in this. State subject to taxation, ad valorem, and for the following purposes: For general purposes including the support of the common schools.
"1. 5 Mills on the full market value of the shares of the stock-

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holders of banks, banking associations or corporations and monied capital in the hands of individual citizens coming into competition with national banks, banking associations or corporations;
2. 14 of 1 Mill on the full market value of all other taxable property; making the whole State tax hereby levied as assessed in the first instance $5.00 for each $1,000 and in the second instance 25c for each $1,000 worth of property to meet the appropriations made by the General Assembly for the above stated purposes for the fiscal year 1959."
This was done pursuant to Code Sections 92-5703 through 5705, which is the General Assembly's implementation of Article VII, Section I, Paragraph II, Subsection 3, of the Georgia Constitution, as amended in 1952 (Ga. Code Ann. 2-5402). This constitutional provision is as follows:
"The levy of taxes on property for any one year by the General Assembly for all purposes, except to provide for repelling invasions, suppressing insurrections, or defending the State in time of war, shall not exceed one-fourth ( 14) mill on each dollar of the value of the property taxable in the State, provided, however, that until some other method permitted by the laws of the United States for the taxation of national banking associations or corporations is enacted by the General Assembly for the taxation of the shares of stock of banking corporations and other monied capital coming into competition with such banking corporations, such property may be taxed at a rate not exceeding five (5) mills on each dollar of the value thereof."
As Code Section 92-5704 prescribes, the property tax levy for State purposes is communicated to the county tax collectors who apply it against the taxable property in the county at the valuations shown on their digests and collect and remit the tax to the State.
This method of levying the property tax for State purposes goes back over one hundred years (Ga. Laws 1851-2, p. 291). As long as all tangible property constitutted a single class for purposes of taxation, there was, and could be, only a single State levy. However, the 1952 amendment to the Constitution, as shown above, specifically enables a levy up.on bank shares different from that upon tangible property generally. This constitutional provision, together with Code Sections 92-5703 through 5705, make up the authority for the June 16, 1959, State levy.
The determination of taxable property and its valuation for tax purposes has always been done at the county level where it serves primarily as a basis against which to apply the county's property tax levy for county tax purposes, and then is adopted by reference as a basis against which to apply the State's property tax levy for State tax purposes. In my opinion, Code Section 92-2406 was intended by the General Assembly primarily to set forth directions. for the taxation of bank shares at the county level and the expression "at the same rate provided by law means the county's millage rate and not the State's :millage rate which has always been determined by the Governor under Code Sections 92-5703 through 5705, limited only by the Constitution.

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TAXATION-Licenses (Unofficial)

Authority of counties and cities to tax salesmen.

Mr. J. P. Jones

March 5, 1959

In your letter, you state: "While I am aware of the licensing power of Muscogee County
with reference to interstate and intrastate commerce, I am wondering if, under certain circumstances, a salesman whose residence is in Muscogee County and acts as an agent for an out-of-County wholesaler could not be licensed in Muscogee County, under the amendment to the Constitution (Code Section 2-5701) granting the Board of Commissioners the power and right to collect license fees."
The Constitutional amendment to Code Section 2-5701 provides that the Board of Commissioners of Roads and Revenues of Muscogee County may levy and assess license fees and occupational ta..xes in the area outside the incorportated limits of municipalities in the County.
Code Section 92-4105 prohibits municipalities from levying a license or tax on traveling salesmen in certain instances. This section is as follows:
"The authorities of any municipal corporation shall not levy or collect any tax or license from a traveling salesman engaged in taking orders for the sale of goods where no delivery of goods is made at the time of taking such orders." The above provision is limited to municipal corporations.
I am .of the opinion that the Constitutional amendment to Code Section 2-5701, referred to in your letter, gives the Board of Commissioners of Roads and Revenues of Muscogee County the right to license and assess an occupational tax on salesmen engaged in the business of taking orders from retail whiskey stores located in Muscogee County outside the municipalities of said county.

TAXATION-Licenses (Unofficial)

County officers are not subject to license for their official status.

Ron. John P. Kelley, Sr.

November 2, 1959

This is in reply to your letter of October 24, 1959, in which you state: "I would like to have your opinion as to whetheT or not a County
SuTVeyor who makes surveys, other than those made by an order of the Ordinary or court, is subject to a city business license."
County suTVeyors are county officers and are not subject to pay a city business license. This opinion is based upon Code Section 23-1101, which is as follows:
"County suTVeyors are elected, commissioned, qualif;ied, and removed as clerks of the superior courts are, and hold their offices for four years."

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and also Code Section 23-1110, which is as follows: "When surveys are made for private or corporate benefit, the fees
are to be paid by the person, or persons, or corporation who orders the survey; when by order of the ordinary, out of the county funds; and when by order of court, unless otherwise agreed upon, they are to be taxed in, the bill of costs, and shall have the effect of a judgment lien upon the land surveyed, if not paid by the party bound for costs."

TAXATION-Licenses (Unofficial)

A license may be required in each city and county where a business may be conducted, but there can be no discrimination between resident and non-residents businesses.

Mr. Harold E. Ward

September 10, 1959

This is in reply to your letter in which you request my opinion on the following question:
"Would a business located in the Town of East Dublin, being a distributor of gasoline and other products sold by truck delivery within the City of Dublin be required to pay a license for doing business within the City of Dublin? If so would this license be the same as like business which are resident within the City of Dublin?"
The question presented in your letter is answered in the case of City of Jeffersonville v. Sinclair Refining Co., 184 Ga. 303. Headnote 1 in this case states the following:
"A wholesale dealer in oil, which made sales and deliveries of its products from its trucks while in a town which levied a license-tax on wholesale dealers in oil doing business by themselves or agents, no previous orders having been given, was subject to the tax." The Court further stated in its opinion:
"1. 'Where an oil company is engaged in one city in selling at wholesale oil, etc., and delivers by truck, upon orders received by telephone or mail, in the quantities required by the terms of such orders, to retail dealers in other towns, the wholesale dealer is not engaged in selling by wholesale in the to~vns at which are located the retail dealers, through the payments are made there by the check of the retail dealers payable to the wholesale dealer, the check at the time of the' delivery being handed to the driver of the truck of the wholesale dealer for the latter. City of Colquitt v. Jeffords Oil Co., 170 Ga. 605 (154 S. E. 140); Wofford Oil Co. v. Boston, 170 Ga. 624 (154 S. E. 145).' Wofford Oil Co. v. Pitts, 178 Ga. 339 (173 S. E. 384). However, where the evidence also discloses that the oil company also makes sales and deliveries from its trucks while in the town levying the license tax, no previous orders having been given, the oil company is subject to the tax levied upon wholesale dealers in oil. Wofford Oil Co. v. Pitts, supra, Cochran v. Pitts, 47 Ga. App. 709 (171 S. E. 312).''
The license on a nonresident would be the same as the license which resi-

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dents of the City of Dublin are required to pay. The Supreme Court in the case of Gould & Company v. The City of Atlanta,
60 Ga. 165, and also 55 Ga. 678, held that there could be no discrimination between residents and nonresidents with reference to business licenses.

TAXATION-Licenses-Professional (Unofficial)

Limitations on professional licenses by municipal corporations.

Mr. Robert M. Heard

February 12, 1959

This is in reply to your letter requesting my opinion as to the proper construction of Code Section 92-307.
The Acts of 1951 (Ga. Laws 1951, pp. 157-163) repealed Code Section 92-1907, which levied a State tax on the practice of law, medicine, and certain other professions named therein. The repeal of this section opened the door for municipalities to impose a license tax on these professions which had heretofore been taxed by the State. A number of municipalities enacted ordinances which required the payment of license fees greatly in excess' of the license fees charged by the State under Code Section 1907. They also, in their municipal ordinances, taxed everyone who practiced the various professions within the corporate limits of the municipality. Such action resulted in a person practicing the profession being subject to a license tax in several countie,s. It was this situation that brought about the passage of the Act of 1953, as is set forth in Code Section 92-307.
I am of the opinion that the two parts of the1 section in question are not in conflict. Section 92-307 is as follows:
"No municipal corporation or county authority of this State, notwithstanding any provision in its charter to the contrary, shall levy or collect any license, occupation or professional tax upon practitioners of law, medicine, osteopathy, chiropractic, chiropody, dentistry, optometry, masseur, public accounting, embalming, funeral directors, civil, mechanical, hydraulic, or electrical engineering or architecture except at the place where any such practitioner shall maintain his principal office: Provided, such levy shall not exceed the levy imposed under the laws of the State of Georgia as the same existed in 1950: Provided, further, that where any such principal office is located within the corporate limits of any municipality no county authority shall have the power or authority to levy any such tax as to that office." (emphasis added)
The meaning of the first portion of this Code section is that the prorfessions in question can only be taxed at the place where the practitioner maintains his principal office. The second portion of the section limits the amount of the levy, in that it cannot exceed the levy imposed under the laws of the State of Georgia as the same existed in 1950.

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TAXATION-Licenses-Veteran Exemption (Unofficial)

When disabled veteran eligible to conduct business without securing license.

Mr. Jerry Goggan

January 13, 1959

This is in reply to your letter in which you request information as to the right of veterans to conduct a business without a license. I assume that you refer to disabled veterans. There is no provision of law which would authorize a veteran to conduct a business without a license. However, there are certain provisions of law which exempt disabled veterans from the payment of certain licenses.
Code Section 84-2012 is as follows: "Same: showing to be made; extent of disability; limit of income;
period of service.- (a) No person shall be entitled to a license to peddle, conduct business or practice the professions or semi-professions under this law ( 84-2011 through 84-2019) until it has been made to appear to the issuing authority that the person making application therefor is a resident of this State; that the income of such person is such that he or she is not liable for the payment of State income taxes.
"(b) Blind persons must furnish satisfactory proof of their blindness to the issuing authority.
"(c) A war veteran must furnish satisfactory proof that he or she has a physical handicap disabling to the extent of 10 per cent or more; that his or her service in the armed forces of the United States was terminated under conditions other than dishonorable; and that his or her service or some part thereof were rendered during a war period as defined by an Act of the Congress of the United States, approved March 20, 1933, entitled 'An Act to Maintain the Credit of the United
States,' and commonly known as Public (Law) # 2, 73rd Congress; or
that some part of his or her service was rendered on or after December 7, 1941 and before December 31, 1946; or that some part of his' or her service was rendered on or after June 27, 1950 and before that date which is fixed by proclamation of the President of the United States as the date of termination of the conflict in Korea. Prood' of such 10 per cent disability shall be established upon the written certificate of two physicians as to such disability, or by a letter or other written evidence from the United States Veterans Administration stating the degree of disability, or written evidence from the branch of the armed forces of the United States in which such veteran served.
"(d) A veteran of peace-time service in the United States armed forces must furnish proof that he or she has a physical disability to the extent of 25 per cent or more incurred in line of duty during the period of said service by a letter or other written evidence from the United States Veterans Administration stating the degree of disability, or by written evidence from the branch of the armed forces of the United States in which such veteran served; that his, or her service in the armed forces of the United States was terminated under conditions other than dishonorable." The law providing for the exemption of disabled veterans from taxation does not place any limitation on the number of businesses which a veteran

375
may conduct, however, Code Section 84-2016 does provide: "All persons eligible for a certificate of exemption to be issued by
the State Revenue Commissioner shall state in their application filed with the State Revenue Commissioner the kind of business to be operated and the place where such business is proposed to be carried on, and only the business described in the application shall be exempt from the payment of State, county and municipal business or occupation license taxes, and no person shall operate in his own name any other business than that described in his application filed with the State Revenue Commissioner as herein provided."
Code Section 84-2012 limits tax exemption certificates to disabled veterans who are not liable for the payment of State income taxes. This section is as follows:
"No pers,on shall be entitled to a license to peddle, conduct business or practice the professions or semi-professions under this law ( 842011 through 84-2019) until it has been made to appear to the issuing authority that the person making application therefor is a resident of this State; that the income of such person is such that he or she is not liable for the payment of State income taxes." The Supreme Court of Georgia in the case of City of Marietta v. Howard, 208 Ga. 719(1), held:
"The provisions of Code (Ann. Supp.) 84-2011 have reference only to fees for exercising rights and do not apply to privileges."

TAXATION-Loan Companies (Unofficial)

Loan comp,anies are subject to ad valorem and intangible taxation.

Mr. Thomas A. Hutcheson

May 13, 1959

This is in reply to your letter in which you request my opinion as tO< what taxes small loan companies are subject to at the county level.
I assume that you have reference to loan companies operating under the provisions of the Georgia Industrial Loan Act. This Act, in Code Section 25-307, provides for an investigation fee of $50 and a license fee of $200, which shall be paid to the State. This Act, in Code Section 25-320, provides that in addition to all other taxes, license fees, interest, insurance premiums and all other charges of whatever kind or nature collected on any loan above the amount actually advanced to the borrower shall be paid to the State of Georgia.
The Act makes no mention of county taxation of companies operating under its provisions.
Small loan companies are subject to ad valorem taxes, on the real and personal property owned by them and located within the county. The intangible property owned by loan companies operating under the provisions of the Georgia Industrial Loan Act is subject to taxation under the Intangible T'ax Act. There is no provision of law whereby a cqunty can levy a tax on the capital stock of these loan companies.

376

TAXATION-Motor Fuel Tax

VVhen kerosene ceases to be subject to kerosene tax.

Mr. Dixon Oxford

April 15, 1959

This is in reply to your letter in which you request my official opmwn as to the application of the 1 kerosene tax imposed by the "Motor Fuel Tax Law," as amended, to kerosene which has been colored darker than No. 16 Saybolt in order to be sold as No. 1 fuel oil for off-highway use and not as kerosene for use with wick, or other type of burner, for household illuminating, heating and cooking purposes.
The kerosene subject to the 1 per gallon tax imposed by the Motor Fuel Tax Law il'! defined as the "the ordinary household petroleum oil sold for use with wick (or other type of burners) for illuminating, heating and cooking purposes." Ga. Code Ann, 92-1402(C). This, of course, is a definition in terms of use and not in terms of physical properties. On the other hand, Code Section 73-216, in effect, defines kerosene in terms of physical properties, and, among other things, prescribes that "the color shall not be darker than No.. 16 Saybolt."
According to the State Oil Chemist, kerosene and No. 1 fuel oil are substantially the same in their physical properties except that No. 1 fuel oil is darker than No. 16 Saybolt. No. 1 fuel oil is not subject to any tax unless it is used for propulsion of vehicles on the public highway, in which case it is taxable at the rate of gasoline with a credit for any kerosene tax which may have been paid prior to blending. No. 1 fuel oil is frequently made by blending kerosene with No. 2 fuel oil. In an official opinion of February 13, 1948, (1948-49 O.A.G. p. 579), I ruled that the blending of kerosene with No. 2 fuet oil was not a use of kerosene so as to incur liability for the 1 tax on the kerosene contained in the blend. In that opinion I expressed a reservation about kerosene blended with a coloring fluid because such a blend would not produce a heavier product than kerosene. Now that I find that kerosene and No. 1 fuel oil are substantially the same in their physical properties, and differ mainly in their color, I am of the opinion that kerosene colored darker than No.. 16 Saybolt ceases to be kerosene subject to the 1c tax and becomes No. 1 fuel oil subject to no tax unless used for the propulsion of vehicles on the public highway, in which case it is subject to the gasoline tax.

TAXATION-Motor Fuel Tax-Refund (Unofficial)

Refund of gasoline tax to persons purchasing twenty-five or more gallons of gasoline for use in operation of boats discussed.

Mr. 0. A. Kitchengs, Jr.

June 18, 1959

Code Section 92-1403(J), authorizing gas tax refunds for gas.oline used in watercraft, provides as follows:
"Any person, who shall purchase gasoline in quantities of 25 gallons or more at any time, and use said gasoline in operating watercraft

877
upon navigable waters, no part of which is used in any vehicle or equipment driven or operated upon the public roads, streets, or highways of this State, shall be entitled to a refund of all of the State tax on such gasoline except one cent per gallon, subject to the condition set f.orth in this subsection. The right to receive any refund under the provisions of this subsection shall not be assignable and any assignment thereof shall be utterly void and of no effect. Nor shall any payment thereof be made by the Treasurer of the State to any person other than the original person entitled thereto using motor fuel as hereinabove set forth in the subsection."
As you say, your organization is a corporation and, as we understand the operation of such organizations, your boat club does not use gasoline itself but sells it to its individual members for their individual use. Under the circumstances the boat club is a dealer and not a user, and only the individual members who use the gasoline in their watercraft are entitled to the refund.

TAXATION-Payment (Unofficial)

Payments of ad valorem tax on realty are payable separately, after fi. fa.

Miss Florine C. Rainey

July 22, 1959

You state: "I realize that if personal property and real estate are returned
together for tax purposes that we do have to prorate this if requested before December 20th; but after a fi.fa. is issued and it bec.omes an execution and is recorded on the execution docket in the Clerk's Office, would I still have to separate the personal from the real estate property if it was requested by the taxpayer? By letting someone pay on the real estate, we could not cancel it off the record in the Clerk's Office. We would also lose tax on cars from pelsons that have moved."
I realize and appTeciate the problem stated in your letter, howeveT, the laws of this State do permit a proportionate payment of taxes after a fi.fa. has been issued as is provided in Code~ Section 92-5712, which is as follows:
"The owner or the holder of any equity, lien, or interest in or on property for taxes shall be allowed to pay the taxes assessed against any one or more pieces of such property, (a) when listed separately by the owner or assessor on the tax return or digest, according to the valuation shown by said return or assessment, (b) when not listed separately on the tax return or digest by the owner or assessor, by paying the proportionate part of the taxes represented by such property according to the valuation in the return or assessment; that is to say, such proportionate part of all of such taxes represented by such return or assessment as the value of such separate piece of property (upon which payment is being made) bears to all of the said property in such return or assessment. The officials charged with the collection of taxes for this State or for any subdivision of this State (including municipalities and all other subdivisions of the State and counties)

378
and/or any transferee of said tax lein shall be required to accept payment of said taxes when tender is made as provided herein, shall issue a receipt showing such payment, and shall execute a release of said property from such lien for taxes, and the official or transferee ac-
cepting said payment and releasing said property shall be paid a fee
of 50 focr issuing said receipt and release. This low shall apply to taxes accruing before its passage as well as to taxes accruing thereafter."

TAXATION-Records-Inspection (Unofficial)

No provision to charge focr inspection of tax records.

Mr. Andy B. Winters

May 13, 1959

The tax receiver's books and reco,rds of any county in the State of Georgia are public records, and any citizen or other interested party, including an official of a municipality located within the county, has a right to inspect these records during the regular office hours of the tax receiver.
There is no provision of law authorizing the county tax receiver or the county to make any charge for the inspection and, taking of information from
said records. Senate Bill # 78, passed by the 1959 General Assembly, states:
"All state, county and municipal records, except those, which by order of a court of this State or by law, are prohibited from being open to inspection by the general public, shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any citizen."
The only provision of law which would authorize any charge in connection with the inspection of the records is the provision in said Bill which authorizes a charge when photographs are made of the records. In this connection the Bill provides:
"... While the said work hereinbefore mentioned is in progress, the lawful custodian of said records may charge the person desiring to make the said photographs for the services of a deputy of the lawful custodian of said records, documents or instruments to supervise the same, or for the services of the said lawful custodian of the same in so doing at a rate of compensation to be ag-re,ed upon by the pe,rson de,. siring to make the said photographs and the custodian of the said records, documents or instruments."

379

TAXATION-Recording Tax (Unofficial)

Timber contracts are subject to intangible tax and to recording tax.

Miss Alma Liles

November 17, 1959

This is in reply to your letter requesting an opmwn as to whether a deed to secure debt conveying "all the trees and timber now standing or growing, ot down, and all hereafter growing or to grow" on certain tracts of land described therein is a security instrument covering real estate, within the purview of Georgia Code 92-164 imposing an intangible tax on the holders of long term notes secured: by real estate.
The question turns on the meaning of the term "real estate" as it appears in the Intangible Property Tax Act (Ga. Laws 1053, pp. 379-390). Since the act does not a.ttempt to define or qualify the term, it should be given the meaning ascribed to it by Georgia Code 85-201. This seetion reads as follows:
"85-201 (3617) Realty defined. - Realty or real estate includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereon. The right of the owner of lands extends downward and upward indefinitely." In numerous decisions of our appellate courts, trees or timber, have been held to constitute a part of the realty and remain such until severed. Once severed, they become personal property.
In Smith, et al. v. Alexander and Bland, 168 Ga. 382, at page 384, the court quoted with approval Powell on Actions for Land, 80, 54:
"That standing timber is realty and may be owned and possessed by one person, while the soil belongs to another, is well recognized in this State. Conveyances of standing timber are treated as deeds, are to be executed with the same formality, and may be recorded as suchin fact, have all the incidents of ordinary deeds to realty."
Also see: Baxt.er v. Mattox, 160 Ga. 334; North Georgia Co. v. Bebee, 128 Ga. 563.
The fact that the subject security deed embraces trees and timber which are down, as well as those standing or growing, does not alter its effect insofar as the Intangible Property Tax Act is concerned. It merely means that the holder has the additional protection of personal property as security for his loan.

TAXATION-Refunds Unofficial)

Refunds and settlements of claims, authority of cities and counties.

Mr. James C. Owen, Jr.

July 13, 1959

This is in reply to your recent letter in which you have raised several questions about the 1958 amendment (Ga. Laws 1958, p. 219) to Code Section 92-6502.
The 1958 amendment repealed Code Sections 92-6502, 6503 and 6504 in their entirety and substituted therefor the following new Code Section 92-6502:

380
"In all cases where the county com1mss10ners or other county authorities, pursuant to the provisions of Code section 92-3812, have authorized the tax collector or tax commissioner of the county to credit or refund any overpayment of property tax in cases where the taxpayer has been overtaxed or has claimed that the tax should be credited or refunded, such authorization to the tax collector or tax commissioner of the county shall be authority to credit or refund the proportionate amount of the state and county school tax represented in such overpayment, and, in the case of refunds, he shall deduct suchJ amounts from his next distribution to the state and county school boards, respectively." Code Section 92-3812 provides as followes:
"County tax may be remitted. - In all cases where a person has been overtaxed or claims for any reason that taxes should be remitted or refunded, the ordinary or other county authority empowered to levy taxes may hear and determine such application to the extent of the interest of the county therein."
In Harrison v. Southern Railway Co., 44 Ga. App. 49, it was held that Code Section 92-3812 does not confer authority upon the county governing authority to compromise a valid claim for taxes.
There is nothing in this Code Section to indicate that a taxpayer is thereby given any legal rights to a refund beyond those otherwise provided for in the law. It appears, as was noted by Judge Bell in the Southern Railway case, to be a means for obtaining a correction of clerical errors and mistakes caused by the taxation authorities; no consent to suit is given and the governing authority appears to be the so,Ie judge of what corrections ought to be made thereunder.
The governing authority of the county in exercising his authority under Code Section 92-3812 is nevertheless subject to the general law set forth in Code Section 20-1007, which is as follows:
"Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule." He is also subject to the limitation prescribed in Code Section 23-1602, which provides:
"All claims against counties must be presented within twelve months after they accrue or become payable. . . ." This section was applied to county taxes in Atlantic Coast Line Co. v. Mitchell County, 36 Ga. App. 47.
Code Section 92-3812 has no reference to city taxes. City governing authorities, in my opinion, can, by ordinance, provide for refunds of city taxes within the scope allowed county authorities under this section.
Code Section 92-3812, as originally enacted, appears to apply only to county taxes and not to taxes collected for county school purposes or for State purposes. However, it appears to be the intent of the 1958 amendment to permit the governing authority of the county to also make corrections with regards to the county school taxes and also for the State levy.

381

TAXATION-Sales and Use Tax-Applicability

Applies to sales of property for use in interstate commerce.

Mr. Dixon Oxford

January 27, 1959

This is in reply to your letter in which you ask for a reappraisal of the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act to tangible personal property used in interstate commerce, in view of the recent decision of the Supreme Court of Georgia in Williams v. Suwanee Longleaf Manufacturing Company, decided January 12, 1959, affirming 97 Ga. App. 431.
The effect of the decision in Williams v. Suwanee Longleaf Manufacturing Company is to say that the Georgia Retailers' and Consumers' Sales and Use Tax Act is not a tax on the use and consumption of tangible personal property i~ this State, but is a tax on the transaction which constitutes a retail sale as defined by the Act with a supplementary tax on use within this State of tangible personal property purchased elsewhere in a transaction which would have been taxable under the Act if the transaction had occurred in Georgia.
Under this decision it appears that the Georgia Retailers' and Consumers' Sales and Use Tax Act is basically a transaction tax; in other words, the taxable event is the transaction which the Act defines as a retail sale. Jurisdiction then is determined by the place where the taxable transaction takes place, and the place of the use, consumption, or employment of the property involved is not a determining factor. Where the subsequent use in interstate commerce does not violate the Commerce Clause. Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S. Ct. 389, 83 L. ed. 586.
Correspondingly, when tangible personal property is purchased outside this State and brought into this State, Section 4 imposes an obligation upon such user to pay a tax thereon equivalent to the sales tax imposed under Sedion 2 subject to the credit provided in Section 10 for taxes paid in some other state on the acquisition or prior use of the' property.
Now, Section 4 also provides: "It is not the intention of this Act to levy
a tax upon articles of tangible personal property imported into this State or produced or manufactured in this State for export, the repairing or storage of such property in the state, for use in another state, nor it it the intention of this Act to levy a tax on bona fide interstate commerce. It is, however, the intention of this Act to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this State of tangible personal property after it has come to rest in this State and has become a part, of the mass of property in this State."
The broad purpose of these provisions is to disavow any legislative intention of imposing the "use tax" in any way that would violate the Commerce Clause of the Federal Constitution. More particularly, the "use tax" is defined to include "the distribution and the storage" of tangible personal property, and these are activities which might, in a proper case, be in the stream of interstate commerce and which, unless exempted, might violate the Commerce Clause. The first clause, then, of the above-quoted provision exempts from the "usa tax" property which is in the stream of interestate commerce and cannot constitutionally be taxed. The second clause of the above-quoted provision has the same purpose with respect to the "use tax" being construed as a license, occupation, or franchise tax on interestate commerce. Such a tax would violate

382
the Commerce Clause of the Federal Constitution. Helson v. Kentucky, 279 U.S. 245, 49 S. Ct. 279, 73 L. ed. 683. This. second clause merely says. that the "use tax" under the Georgia Retailer's and Consumers' Sales and Use Tax Act shall not be so construed. The last clause is a reaffirmation of the intention of the legislature to exhaust its power, as against the Commerce Clause of the Federal Constitution, to apply the "use tax" to the "use, the consumption, the distribution, and the storage" of tangible personal property in this State. See N. C. & St. L. Ry. v. Wallace, 288 U.S. 249, 53 S. Ct. 345, 77 L. ed. 730.
In conclusion, it is my opinion that the Georgia Retailers' and Consumers' Sales and Use Tax applies: (1) to all sales of tangible personal property, the delivery of which takes place in Georgia, irrespective of the subsequent employment or use there of interstate commerce, and (2) to the first use in Georgia of tangible personal property bought elsewhere at a transaction which would have been taxed had the transaction occurred in Georgia, provided such tangible personal property has become a part of the mass of property in this State, and subject to the credit for like taxes paid elsewhere, irrespective of the fact that such property may have been, or may be, used in interstate commerce. My opinion of July 2, 1951, regarding apportionment according to use in intrastate commerce is no longer valid and the above applies whether the taxpayer is engaged wholly or partly in interstate commerce.

TAXATION-Sales and Use Tax-Applicability

Rentals of tangible personal property are subject to Sales and Use Tax.

Mr. Dixon Oxford

March 17, 1959

This is in reply to your letter asking for a reappraisal of the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act to rentals of tangible personal property.
The rentals tax imposed by the Act is, like the use tax imposed by the Act, a supplementary or compensating tax designed to deter sales tax avoidance through renting instead of selling tangible personal property and to equalize the tax treatment of persons engaged in the business of renting with those engaged in selling tangible personal property. The Act treats the rental of tangible personal property as a pro tanto sale, that is, a retail sale to the extent of the rent and for the term of the rental.
With this view of the matter the situs of the taxable event is the place where the tangible personal property is first put under the exclusive control of the rentee for use under the rental agreement (this being considered as the equivalent of delivery were the transaction a sale). Where this taxable event takes place within this State the renter is subject to the tax imposed by Section 2(c) of the Act irrespective oc/1 the fact that, the rented property may be used in Interstate commerce. Where this taxable event takes place outside this State, then, upon the property being brought into this State, whether in interstate commerce or not, the tax imposed by Section 2 (d) applie,s against the rentee as if the tangible personal property had been originally rented within this State, subject to the credit for like taxes paid elsewhere.

383

TAXATION-Sales and Use Tax-Applicability

Sales made to Federal Government are not excluded.

Mr. Dixon Oxford

March 20, 1959

This is in reply to your request for reappraisal of the application of the Georgia Retailers' and Consumers' Sales and Use Act to sales made in this State to the Fede,ral Government and Federal instrumentalities in view of the decisions in Williams v. Bear's Den, Inc., 214 Ga. 240, Williams v. Suwanee Longleaf Manufacturing Co., 97 Ga. App. 431, affirmed 214 Ga. 613, and Novak v. Redwine, 89 Ga. App. 755.
The Georgia Retailers' and Consumers' Sales and Use Tax Act does not grant any exemptions for sale's made to the Federal GovBrnment or to Federal instrumentalities. Section 3(c) 2(d) excludes from the definitions, of "retail sale" and "sale at retail" only "sales which a State would be without power to tax under the limitations of the Constitution of the State or thB United States.
The decisions in Bear's Den, Inc., Novak and Suwanee Longleaf Manufacturing Co., togethe,r, indicate that the Georgia Retailers' and Consumers' Sales and Use Tax Act imposes a tax upon the "dealer" and not upon the purchaser or user of tangible personal property. The tax is a tax on persons engaged regularly in selling tangible personal property at "retail" measured by the gross receipts from "retail sales". The Act provides for "passing on" the amount of the tax, "as far as practicable," not as a tax but as a debt, to the purchaser or consumer.
At the time of the passage of the Georgia Retailers' and Consumers' Sales and Use Tax Act in 1951, the decisions of the Supreme Court of the United States were not clear whether a distributor's tax could consistent with the Constitution of the United States, be measured by the gross rece,ipts from, sales made to the Federal Government. The 1928 decision in Panhandle Oil Co. v. Mississippi, 277 U.S. 218, 48 S. Ct. 451, 72 L. ed. 857, indicated that it could not. In the 1941 decision in Alabama v. King & Boozer, 314 U.S. 1, 62 S. Ct. 43, 86 L. ed. 3, a trend in the other direction appeared. This uncertainty in the decisions was undoubtedly the reason for the equivocation in our Act concerning sales to the United States Government and Federal instrumentalities.
In 1953, in the decision in Esso Standard Oil Co. v. Evans, 345 U.S. U, S. 495, 73 S. Ct. 8001 97 L. ed. 1174, the Supreme Court of the United States appeared to say that a distributor's tax measured per gallon of gasoline stored was valid as applied to gasoline owned by the United States and as to which the United States would have to bear the economic burden of the tax.
Now that the legal incidence of the Georgia tax appears to be established by our appellate courtS! as a tax on the busine,ss activity of a "retailer" measured by gross receipts from "retail sales," it appears that, under the Constitution of the United States, as interpreted in the Esso case, the Federal character of the purchaser does not immunize or preclude such sales from being included in the measure, of thCI tax.
The decision in Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S. Gt. 403, 98 L. ed. 546 (1954) does not hold to the' contrary. There the Arkansas statute granted an exemption for "gross receipts derived from sales to the United States Government" and the question was whether an independent contractor could, under Federal law, be delegated the authority to purchase, and was pur-

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chasing, as an agent of the United States. The Court invalidated the tax because the United States was the real purchaser, not the contractor.
In Federal Reserve Bank of Chicago v. Michigan, 339 Mich. 587, 74 N.W. 2d 639 (1954), the Supreme Court of Michigan held that the Michigan sales tax was a tax on the seller and that the bank's expressed immunity under Federal law had no application to the retailer and the tax on his gross receipts, even though they included receipts derived from sales to the bank. The Court did so on the authority of James' v. Dravo Contracting Co., 302 U.S. 134, 58 S. Ct. 208, 82 L. ed. 155; Alabama v. King & Boozer, supra, and Esso Standard Oil Co. v. Evans, supra, among other cases cited, and distinguished Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 62 S. Ct. 1, 86 L. ed. 65 (1941), on the grounds that the "passing on" involved in the North Dakota Statute was required, whereas under the Michigan Statute it was permissive. In this regard, the Supreme Court of Georgia in Bear's De11 attached significance to the words "as far as practicable" in our statute with respect to the duty of "passing on" the tax.
The Supreme Court of Michigan has followed the Federal Reserve Bank decision in National Bank of Detroit v. Department of Revenue, 340 Mich. 573, 66 N. W. 2d 237, dismissed per curiam 34!) U.S. 934, 77 S. Ct. 781, 99 L. ed. 1264 (1954).
Likewise, the same conclusion was reached by the Supreme Court of Arizona in State Tax Commission v. Garrett Corporation, 79 Ariz. 389, 291 P. 2d 208 (1955).
Earlier, in 1938, the Supreme Court of California had reached a similar result in Western Lithograph Co. v. State Board of Equalization, 11 Cal. 2d 156, 78 P. 2d 731.
In summary, it appears that the legal incidence of the tax determines the question. If the legal incidence of the tax is on the dealer, then the Federal character of the purchaser is immaterial and cannot serve to exclude such sales from the measure of the tax. If the legal incidence of the tax is on the purchaser then, of course, the Federal character of the purchaser provides a constitutional immunity. The decision of the Supreme Court of Georgia in Bear's Den is certainly indicative that the legal incidence of the Georgia tax is on the dealer. The Novak and the Suwanee decisions of the Court of Appeals, likewise, make the dealer the sina qua non of the tax and reject the idea that the sales tax is a mere collection device.
In view of the development of Federal consitutional law since 1951 and the interpretation placed upon the Georgia Retailers' and Consumers' Sales and Use Tax by our appellate courts as to the legal incidence of the tax, I must conclude that, in the determination of the tax to be collected from "dealers" under this Act, sales made to the Federal Government or to Federal instrumentalities are not to be excluded. The incidence of the use tax imposed by the Act is upon the purchaser or consumer and, of course, this tax cannot be assessed and collected from the Federal Government or Pederal instrumentalities. The same conclusions will apply to State banks since the Act, asi amended, provides that State banks shall have the immunity enjoyed by national banks.

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TAXATION-Sales and Use Tax-Penalties (Unofficial)

Penalties may be waived under the Sales and Use Tax Act.

Mr. Joseph Andrews

December 22, 1959

By Executive Order of the Governor dated September 23, 1959, the matter of the waiver of penaltie,s under the Sales Tax Act is' for th~ discretion of the State Revenue Commissioner. We have rendered no opinions on this matter except to say, prior to this Executive Order, that there was no provision in the law authorizing the waiver of penalties.

TAXATION-Sales and Use Tax-Soldiers and Sailors Civil Relief Act (Unofficial)

Soldiers and Sailors Civil Relief Act gives no immunity from imposition of use tax.

Lt. Walter H. Drake, Jr.

May 18, 1959

This is in reply to your letter inquiring as to the liability of non-resident servicemen stationed at Fort Benning for the Georgia use tax on automobile's brought into this State.
It appears that what you have in mind is a situation where the serviceman did not pay any sales tax at the time of purchase of his automobile in some state and has not since paid any use tax on this automobile in any state in which it has been used since its orinigal purchase. And it appears to be your contension that the Soldiers and Sailors Civil Releaf Act (50 App. U.S.C.A. 574) gives an immunity from the Georgia use tax.
If a non-resident serviceman purchased an automobile from a Columbus car dealer, I don't think the Soldiers and Sailors Civil Relief Act would give the sale any immunity because the tax does not in any way turn on the question of residence or domicile, but only on the situs of the transaction. The Georgia use tax is a compensating use tax, which is to say that it applies' to the first use in Georgia of tangible personal property purchased at retail outside this State as if the first use in Georgia constituted a retail sale in this State. Notice the language of the statute. Section 4 (Ga. Code Ann. 92-3405a), in part, provides:
"On all tangible personal property imported, or caused to be imported from other states . . . and used by him, the 'dealer' as thus defined shall pay tax imposed by this Act on all article's of tangible personal property so imported and used, the same as if the articles had been sold at retail for use or consumption in this State. For the purposes of the Act, the use ... of tangible personal property shall . . . be the equilavent to a sale at retail, and the tax shall thereupon be immediately levied and collected in the manner provided herein, provided there shall be no duplication of the tax in any event."
Pertinent definitions of "dealer" are found in the pre,ceding provisions of Section 4 (Ga. Code Ann. 92-3404a):

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"The term 'dealer' is further defined to mean every person . . . who imports or causes to be imported, tangible personal property from any State ... for use ... in this State."
"The term 'dealer' is further defined to mean any person who has . . . used . . . tangile personal property and who cannot prove that the tax levied by this Act has been paid on the sale at retail . . . of said tangible personal property.''
Section 11 (Ga. Code Ann. 92-3413a) provides:
"It is further specifically provided that the 'use tax' shall not apply to tangible personal property owned or acquired in this State, or imported into this State ... prior to the affective date of this Act. But, the 'use tax' will apply to all, tangible personal property imported or caused to be imported into this State on or after the effective date of this Act unless said property has previously borne a sales or use tax in another State equal to cr greater than the tax imposed by this Act.''
The fact that a serviceman is in this State because of military duty and maintains no residence here is immaterial in the determination of liability under the Georgia Retailers' and Consumers' Sales and Use Tax Act. The tax is not determined by residence or domicile in this State; it applies to residents and non-residents alike, and to civilians and servicemen alike.

TAX COLLECTORS, COMMISSIONERS, AND RECEIVERS-Compensation (Unofficial)

Compensation of Tax Collectors and Receivers by commission discussed.

Honorable Lawton Ursrey

May 21, 1958

You request info,rmation as to the compensation authorized for Tax Collectors and Tax Receivers.
Code Section 92-5301, as amended, reads:
"92-5301. The commissions to be allowed to each receiver and collector of State and county taxes shall be as follows viz.: On all net digests up to and including $6,000 ---------------------- 6 per cent Over $6,000 and not exceeding $14,000 __________________________________ 5 per cent Over $14,000 and not exceeding $24,000 _______________________________ 4 per cent
Over $24,000 and not exceeding $36,000 -------------------------------- 3 per cent Over $36,000 and not exceeding $52,000 ____ --------------------------- 2% per cent Over $52,000 and not exceeding $76,000 ------------------------------ 2 per cent Over $76,000 ------------------------------------------------- ----------- ---- ---------------- 114 per cent
"This schedule of commissions shall apply to tax net digests for the years beginning January 1, 1953; Provided that nothing contained herein shall repeal the commission of 10 per cent. above 80 per cent. of the taxes collected on the net tax digest as provided in section 92-5304.
"This section shall not apply to any county where the tax colle,c-

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tor, tax receiver or tax commissioner is on a salary basis only."
Code Section 92-5302 provides:
"92-5902. In arriving at the net amount of the digest, the default list shall be deducted for the receivers, and the insolvent list for the collectors."
Code Section 92-5303 provides:
"92-5303. The tax collectors of the several counties shall, for services rendered in collecting the special taxes which they are required under the general tax law to collect, be paid 10 per centum of the amount or amounts of said special taxes so collected by them; settlements of said taxes and commissions to be made with the Comptroller General as provided by law."
Code Section 92-5304 pro,vides:
"92-5304. As far as the tax collectors and tax commissioners are concerned, the rates and schedules prescribed by section 92-5301 shall apply upon the first 90 per cent of the ad valorem net digests collected by the tax collector. On ail taxes collected in excess of 90 per cent of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission shall be for such taxes 10 pm cent of all such collections, irrespective of the above and foregoing schedule and rates.: Provided, that the board of commissioners of roads and revenues or the ordinary in those counties having no board of commissioners may by appropriate resolution provide that the tax collector's or tax commissioner's commission shall be 10 per cent of all taxes collected in excess of 80 per cent of the total taxes due according to the net tax digest. In those counties where the tax collector or tax commisioner is paid on a salary basis, the commission provided for herein shall be paid to~ the tax collector or tax commissioner in addition to the said salary: Provided, that in counties having a population of 75,000 or more according to the Federal census of 1950 or any future census where the tax collector or tax commissioner is paid on a salary basis, the commission provided for herein shall be paid into the1 treasury of such county: Provided, further, that in all counties having a population in excess of 300,000 according to the 1950 census or any future census, the commission provided for herein to the tax collector or tax commissioner, shall not apply to any part of the taxes collected under the Intangible Property Tax Act, approved December 22, 1953 (sections 92-161 through 92-184) ."
The above cited quoted sections have been amended in many particulars by so called "population" bills, and it is suggested that a thorough check be made to determine whether the provisions of these sections have been modified.

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TAX COLLECTORS, COMMISSIONERS, AND RECEIVERS-Compensation

Additional compensation of tax collectors discussed.

(Unofficial)

Mr. W. J. Jacques, Jr.

December 10, 1959

This is in reply to your letter in which you state: "As County Attorneys for Bacon County, Georgia, we are request-
ing the following for L. W. Taylor, Sr., Tax Collector of this county. "Mr. Taylor has collected in excess of 90 per cent of his Tax Digest
for 1958 including school taxes. Mr. Taylor desires to receive 10 per cent of all taxes collected over 80 per cent of his net Tax Digest as provided and allo'<ved in Section 92-5304 Ga. Code Ann. He specifically desires to receive 10 per cent of the taxes collected above 80 per cent of the net Tax Digest including school taxes.
"Will you render an advisory opinion as to whether or not Code Section 92-5304 applies to the total net Tax Digest including school taxes?"
Under Code Section 92-5304, Mr. Taylor, your Tax Collector, is entitled to receive 10 per cent of the taxes collected in excess of 90 per cent of the net Digest, and if the Board of Commissioners of your county pass the resolution provided for in this Code section, he would be entitled to 10 per cent commission on all taxes collected in excess of 80 per cent of the net Tax Digest. This provision for additional compensation does not ap.ply to taxes levied for school purposes. The tax collector is entitled to receive 2lh per cent of all taxes collected for school purposes as is provided in Code Section 32-1106.

TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Duties (Unofficial)

A County Tax Commissioner is personally liable for any funds lost or stolen.

Mr. Fred G. Webb

January 23, 1959

This is in reply to your letter in which you state: "In the event an authorized person from the County Tax Office,
whose officer is on a salary basis, and who is transferring State, County, and School funds between the tax office and the, bank, is held up and robbed, who is held liable?"
I assume, from the facts stated in your letter, that an employee of your office was held up and robbed while carrying State, county and school tax monies from the tax office to the bank for deposit. There would be no liability on the part of the employee who was transferring the funds, provided the employee was acting under your instructions and was not negligent in the discharge of the duty assigned to him. However, you, as County Tax Commissioner, are liable for the State, county and school tax funds which were lost because of said robbery.

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In the case of American Surety Company of New York v. NeSmith et al., 49 Ga. App. 40, the Court held:
"It is one of the duties of a public official intrusted with public monies to keep them safely; and this duty of safe custody must be performed at the peril of the official. In effect, according to the weight of authority, a public officer is an insurer of public funds lawfully in his possession, and therefore liable for losses which occur without his fault. He is answerable in all events. The liability is absolute, admitting of no excuse, except perhaps the act of God or the public enemy. This standard of responsibility is based on public policy. By the weight of authority a public officer is not, like a trustee or an agent, the mere bailee or custodian of the money in his hands, but he is called on to account according to a much more rigorous standard of responsibility."

TAX COLLECTORS, COMMISSIONERS, AND RECEIVERS-Jurisdiction (Unofficial)

Tax Collectors have exclusive jurisdiction over the issuance of permits for the purchase of explosives.

Honorable Richard W. Watkins, Jr.

August 24, 1959

I have your letter in which you ask if Tax Collectors now have exclusive jurisdiction over the issuing of permits for the purchase of explosives (dynamite) for lawful uses, or whether Ordinaries still have exclusive jurisdiction, or whether there is concurrent jurisdiction in the Tax Collectors and in the Ordinaries.
Prior to 1955, under the provisions of Chapter 88-8 of the Code of Georgia, purchasers of dynamite were required to obtain from the Ordinary a license authorizing the ownership of dynamite and were required to register the amount of dynamite purchased, where same was stored or to be stored, and for what purpose same was to be used. However, in 1955 this Chapter was repealed and a new law was enacted authorizing the Safety Fire Commissioner to promulgate rules and regulations governing the purchase and storage of dynamite. I am informed by the State Fire Marshal that his regulations provide that the Tax Collectors now have exclusive jurisdiction to issue permits for the purchase of such explosives.

TRADING STAMPS - (Unofficial)

Misdemeanor to give away stamps which may be redeemed for some indefinite or undescribed thing.

Mr. Peter E. Pallis

November 9, 1959

The only Code section we have in Georgia with reference to trading stamps

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is Code Section 26-6506, which is as follows: "It shall be a misdemeanor for any person, firm, or corporation to
issue or give away, in connection with the sale of any article of goods, wares, or merchandise, any stamp, commonly called a trading stamp, or other like device which said stamp or other like device would entitle the holder the,reof to receive, from some other person or party than the vendor, any indefinite or undescribed thing, the nature or value of which was unknown to the purchaser at the time of the purchase of said article of goods, wares or merchandise." The State of Georgia has no special legislation dealing with such companies.

TRUSTS-Cy Pres (Unofficial)

Law relating to Gy Pres doctrine in Georgia cited.

Miss Louise Eovaldi

June 18, 1959

Reference is made to your letter in which you requested information concerning the doctrine of cy pres, as applied in the State of Georgia.
Georgia Law provides no person shall devise more than one-third of his estate to charity to the exclusion of a wife or child or decendants, of a child.
Georgia Code 113-815 provides:
"A device or bequest to a charitable use will be sustained and carried out in this State; and in all cases where there1 is a general intention manifested by the testator to effect a certain purpose, and the particular mode in which he directs it to be done shall fail from any cause, a court of chancery may, by approximation, effectuate the purpose in a manner most similar to that indicated by the te,stator."
Georgia Code 108-202 provides: "When a valid charitable bequest is incapable for some reason of
execution in the exact manner provided by the testator, donor, or founder, a court of equity will carry it into effect in such a way as will as nearly as possible effectuate his intention."

UNIVERSITY SYSTEM OF GEORGIA-Board of Regents

Discussion of when "employee status" exists.

Mr. L. R. Siebert

February 24, 1959

I am pleased to acknowledge your request concerning a proprosed compensation resolution directing the Board of Regents to play the sum of $1,150.00 to an individual. The resolution states that the individual's automobile was damaged in the above amount as a result of an accident which was caused by a person alleged to be an employee of the Agricultural Extension Service of

391
the University System of Ge.orgia. Your letter states that the Board of Regents opposes this resolution on the ground that the alleged employee was not on duty at the time of the accident, and because of the manner in which he is paid for his services.
As to the employment status of the alleged employee, the crucial point is the right of control and not the manner in which he is paid. Weiss v. Kling, 96 Ga. App. 618, 619, held:
"The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the emplo.yer of the time, manner and method in the per:formance of the work."
Blair v. Smith, 201 Ga. 747, 718, held:
"Under the Georgia statute and decisions, the test to be applied in determining whether the relationship of the, parties. under a contract for 1lhe per:formance of labor is that of employer and servant or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract."
As to the liability for torts of a servant or employee, Code 105-108, provides:
"Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary."
The word "servant" means employee as well as domestic servant. Andrews v. Norvell, 65 Ga. App. 241, 243. "In the scope of his business" was held in Jump v. Anderson, 58 Ga. App. 126, 128, to mean:
"It is also well settled that 'if a servant steps aside from his master's business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable.' ... Did the servant so deviate. from his employment that for his act the master could not be held liable? 'The test is not that the act of the servant was done during' the existence of the employment, - that is to say, during the time covered by the employment, - but whether it was done in the prosecution of the master's business; whether the servant was at that time engaged in serving his master.' .. .''

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UNIVERSITY OF GEORGIA-Georgia State College for Women.

Use of money specifically bequeathed in a will to Georgia State College for Women.

Mr. L. R. Siebert

March 3, 1958

I am pleased to acknowledge your request concerning an interpretation of a Will.
Article IV of the said Will provides as follows:
"I give, devise and bequeath unto the Georgia State College for Women at Milledgeville, Georgia, the sum of Fifty Thousand ($50,000.00) Dollars in cash upon the condition that the full amount of said sum shall be used by the authorities of said institution for the purchase and installation on the campus of said institution of chimes which shall be installed in an appropriate and adequate building, tower or other enclosure."
The question posed is whether any part of the $50,000.00 may be used to construct the building, tower or other enclosure which will house the said chimes. The devise specifically states that the full amount of the sum shall be USED by the institution FOR the PURCHASE AND INSTALLATION OF CHIMES. The language by inference excludes any other use of the money. In my opinion no part of the money could be used to construct a building, tower or other enclosure. However, installation costs could include the improvements made to a presently existing building, tower or enclosure provided these illltProvements were a necessary part of the expense of adequately installing the chimes.

UNIVERSITY SYSTEM OF GEORGIA-Junior College Act of 1958

Junior College Act of 1958 pertains only to government operated colleges.

Honorable David L. Newton

March 3, 1958

I am in receipt of your letter concerning the applicability of the "Junior College Act of 1958" (Act No. 52, approved February 20, 1958) to Norman Park Junior College.
The Act appears to be designed to provide a State subsidy only to Junior Colleges which are operated by governmental subdivisions of the State of Georgia.
According to your letter, Norman Park is now a Baptist denominational college and is not operated by Colquitt County or the Board of Education of such county. You suggest that the President of the college had in mind a transfer of the college to the Colquitt County Board of Education. There is some constitutional question as to whether the Board of Education of Colquitt County could establish and operate a college. It was for this reason that House Resolution 268-687a was adopted proposing an amendment to the Constitution auth-

393
orizing any county board of education to establish a college. If this amendment is adopted and Colquitt County takes over the operation of Norman Park Junior College, there would be no prohibition in the Junior College Act from the college receiving State aid. However, the Act expressly provides for approval of the Board of Regents prior to any school receiving aid from the State.

UNIVERSITY SYSTEM OF GEORGIA-Liability

Liability of schools and school officials for injuries to students while on field trips sponsored by school.

Honorable L. R. Siebert

April 22, 1958

Receipt is hereby acknowledged of your inquiry as to the liability of the school and school officials for injuries to students while, on field' trips and other projects.
The Georgia School of Technology is a branch of the University of Georgia. Code 32-103. The government, control and management of said institution is in the Board of Regents, Code 32-115, which is a constitutional body, 2-6701. The Board of Regents and all of the institutions under its jurisdiction are manifestly agencies of the State of Georgia through which the State educates its citizens on the higher levels, whatever may be the status of the Regents re the constitutional debt limitation clause. Cf. State of Georgia v. Board of Regents of the University System of Georgia, et al., 179 Ga. 210. Judge Scarlett of the United States District Court for the Southern District of Georgia has so held in the recent case of Spell v. Regents, with which you are familiar. Consequently, it necessarily follows that neither Georgia Tech, the Board of Regents, nor the State itseU would be liable for any injuries received by a student, without regard to whether or not such injuries were caused by the negligence of any instructor, employee or other agent of the school. The sovereign is not liable for the torts of its officers and employees. See Larson v. Domestic & Foreign Corp., 337 U.S., 682 (1949); 49 Am. Jur. 288, 76; 52 Am. Jur. 441, 100; 81 C.J.S. 1137, 130; Townsell v. State Highway Dept. of Georgia, 180 Ga. 112, 116.
In Nabell v. City of Atlanta, 33 Ga. App. 51!5, the plaintiff, a minor paying tuition and attending Tech High, sued the City of Atlanta and an instructor, alleging that while engaged in using a rip saw in the instructor's manual training class which was part of the curriculum, he had injured himself due to the negligence of defendants in permitting him, a 14 year old minor, to use a rip saw without a safety appliance attached thereto.
In holding that the City was not liable, notwithsanding the fact that tuition was paid, it was said:
"The duty of educating its citizenry is one that devolves upon the State of Georgia as a sovereign power, and in the performance of this duty the State is discharging a function of government. If the State performs this function through one of its municipalities, and delegates to the municipality such power as may be necessary for the education of the public, 'the municipal corporation likewise, in the dis-

394
charge of such duty, is in the exercise of a purely governmental function, affecting the welfare not only of the citizens resident within its corporation but of the citizens of the commonwealth generally, all of whom have an interest' in the education and consequent edification of the State's citizenry."
Similarly, it has been held that school authorities are not liable for injuries received by pupils being transported to and from school on school buses maintained and operated by the school. Roberts v. Baker, et al., 57 Ga. App. 733.
In Hale, by next friend, v. Davies, et a1., 86 Ga. App. 126, a high school student brought suit against the Monroe High School Football Coach and the Monroe Athletic Association, alleging that plaintiff was injured in football practice which he was directed to engage in by the defendant Coach, although the latter knew at the time that plaintiff had previously injured himself and had not fully recovered therefrom. The court held that the Coach was not liable on the ground that plaintiff had assumed the risk by engaging in such a hazardous game as football. Some reference was made in the opinion to the fact that football was not required by the school, and that plaintiff's playing it was a voluntary act of his own. The court expressly recognized that an action could not have been maintained against the school itself.
The authorities are in almost unanimous accord that a public school, university, etc., is not liable for the negligence of its teachers or other agents except where the State has expressly consented to suit. See the exhaustive annotations in 1960 A.L.R. 7; 32 A.L.R. 2d 1167. A bill passed both houses of the General Assembly at the recent 1958 Session which would have consented to suit on behalf of the State, but Governor Griffin vetoed it.
With respect to faculty members, they would be subject to liability personally for any negligence committed by them individually. See Roberts v. Baker, supra, where it was held that a school bus driver would be personally liable for his acts of negligence although they could not be imputed to the school on the doctrine of respondent superior.
In other words, if a faculty member should commit some act of negligence while on a field trip, he would be individually and personally liable to the injured party therefor, but the State itself would not be liable for such faculty member's negligence. Nor could vicarious liability be imputed to a department head for the negligence of one of hs faculty members, on the ground that the latter was the agent of the former, for in such a situation, the State, not an intermediate officer is considered the principal. Armacost v. Conservation Commission of West Viringia, 126 F. Supp. 414 (D. C. W.Va. 1954). Of course, this assumes that the department head was not guilty of any negligence himself.
If you desire to protect your faculty members, from liability while on field trips, all students could be required to sign a waiver assuming the risk, although such waiver could not protect the faculty members against malicious r wilful torts.
Nor would the State be liable in damages for any injuries received by faculty members while on such trips, although you would be liable in workmen's compensation, assuming the trip was part of their job and the case was otherwise within the coverage of the Act.
With regard to injuries arising from operation of vehicles owned by the Re~e.nts and .it~ institutions, I understand that you have procured liability policies contammg an e:;;toppel clause, whereby the insurance company can not

395
defend on the ground .that the insured is the State, which is not subject to suit, as was done in the sad case of Ayers v. Hartford Accident & Indemnity Co., 106 F2d 958 (C.A. 5th 1939). In the Spell case, previously referred to, involving this fleet policy, I understand that after Judge Scarlett had dismissed the Board of Regents as party defendant, the insurance company lawyers settled with the injured student with respect to damages against the bus driver (also a student).

UNIVERSITY SYSTEl\>1 OF GEORGIA-Scholarships

Certain types of scholarships are prohibited by the Georgia Constitution as being gratuities.

Honorable L. R. Siebert

October 2, 1959

In accordance with the request of the Board, I have examined your file with reference to the John Milledge scholarship. This re-examination was necessitated by the request of a direct descendent of the late Governor Milledge, that the Milledge scholarship be awarded to her daughter.
To briefly summarize the facts in this long and complicated file, Governor John Milledge, early in the 19th Century, donated to the University of Georgia in Athens 633 acres of land. On November 8, 1955, the trustees of the University of Georgia adopted a resolution tendering to Governor Milledge's grandsons a collegiate education free from tuition and board. None of these grandsons, however, ever took advantage of this scholarship. On August 5, 1873, the Board of TrusteeS! adopted another resolution, the pertinent parts of which reads as follows:
"Whereas Governor John Milledge did donate to the Trustees of the University of Georgia the tract of land on which much of the city of Athens is situated, from which large sums of money have been realized and appropriated to the various uses of the Institution;
"... and whereas it is meet and proper that such acts of beneficence should create a perpretual tie between the donors and this corporation, and scholarships or educational adonorsous present a suitable means of such a tie, Therefore,
"Resolved, "That a scholarship or the right of sending a pupil prepared
to enter the University of Georgia free of tuition fees be and the same is hereby conferred upon the respective families of Governor John Milledge , . ."
This scholarship appears never to have been utilized except during the period 1931-38. Since that time, applications on behalf of Governor Milledge's descendants have been submitted to the Board of Regents and adverse action has been taken thereon. On July 9, 1948, the Honorable Hamilton Lokey, Deputy Assistant Attorney General, rendered an opinion to the Regents to the effect that the Board would not be justified in relieving a descendant of Governor Milledge from, the payment of fees at the University of Georgia because of the Milledge scholarship. On July 8, 1949, Deputy Assistant Attorney General

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G. Arthur Howell, Jr., concurred in this previous optmon of Mr. Lokey. I have examined all of the pertinent documents in this case and I believe that Mr. Lokey's opinion is still controlling upon the Board of Regents. The action of the Board of Trustees in 1875 appears to: have been taken in gratitude for the previou~ donation made to the University by Governor Milledge. I do not believe that this action created a binding contract between the trustees and Governor Milledge's descendants since the element of consideration appears to have been lacking. Consideration by its very definition must be given in exchange for the promise or at least in reliance upon the promise. Accordingly, something which has been given before the promise was made and therefore without reference to it cannot, properly speaking, be legal consideration. (Williston on Contracts, 3d ed., Section on Contracts.)
As was stated by Justice Lamar, "a past transaction, the obligation of which has been fully satisfied, will not sustain a new promise. Davis & Company v. Morgan, 117 Ga. 504, 505 (1803). Hence, I am of the opinion that there was no contract created by the trustees of the University of Georgia and the descendants of Governor Milledge.
Since there was no legal obligation placed upon the trusteeSi by their action in 1873, I am of the opinion that Article VII, Section I, Paragraph II of our Constitution would prohibit the Board of Regents from granting a scholarship at the present time. The above-referred to section of the Constitution, which first appeared in our Constitution of 1877, reads as follows: "The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association."
On March 22, 1948, this office rendered an official opinion to the Honorable C. Arthur Chatham, Director of the Department of Veterans Service, which held the above quoted provision of the constitution prohibited the granting of scholarships to children of deceased war veterans. I believe that the same reasoning would be applicable in the present case.

TRADEMARKS-Cancellation

Trademarks may be cancelled from the register after ten years if they are not renewed.

Honorable Ben W. Fortson, Jr.

November 9, 1959

This will acknowledge receipt of your letter in which you request an opinion as to whether the Secretary of State iSI required to cancel from the register all trademarks not renewed at the end of the ten year registration period.
The law relating to the cancellation of trademarks from the register is contained in 106 Georgia Annotated, Section 108 (Georgia Laws 1952, pp. 140141). That Section constitutes, however, only one portion of the Trademark Act which was passed by the General Assembly in 1952 (Georgia Laws 1952, pp. 134-144) and is codified as 106 Georgia Code Annotated, Sections 101-104. Therefore, in order to construe and apply Section 108, it must be read together with the other sections of the law, particularly Section 105 which deals with the expiration and renewal of trademark registration.

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Section 105 reads as follows: "106-105. Effective Term of registrat.ion; renewals; fees.- Regis-
tration of a trade-mark hereunder shall be effective for a term of 10 years from the date of registration and, upon application filed within six months prior to the expiration of such term, on a form to be furnished by the Secretary of State, the registration may be renewed for a like term. A renewal fee of $5.00, payable to the Secretary of State, shall accompany the application for renewal of the registration.
"A trade-mark registration may be renewed for successive periods of 10 years. in like manner.
"The Secretary of State shall notify registrants of trade-marks hereunder of the necessity of renewal within the year next preceding the expiration of the 10 years from the date of registration by writing to the last known address of the registrants.
"Any registration in force on I<'ebruary 14, 1952, shall expire 10 years from the date of registration or of the last renewal thereof or one year after February 14, 1952, whichever is later, and may be renewed by filing an application with the Secretary of State on a form furnished by him and paying the aforementioned renewal fee therefor within six months prior to the expiration of the registration.
"The Secretary of State shall within six months after February 14, 1952, notify all registrants of trade-marks under previous laws of the date of expiration of such registrations unless renewed in accordance with the provisions of this Chapter by writing to the last known address of the registrants. (Acts 1952, pp. 134, 138.)"
Thus, it is seen that the law distinguishes between trade-mark registrations under prior laws and those made under the present law. It provides that all trademark registrations made initially under this law shall expire when more than ten years old unless renewed in accordance with this law. Section 105 then provides that all trademark registrations made under prior statutes which shall be in force on the effective date of this Act shall expire when they are more than ten years old unless renewed in accordance with the present law; with the exception that all registrations. which should be more than ten years old on February 14, 1953, might be renewed until that time for a further period of ten years. This exception was apparently made in order to allow all registrations which were already, or virtually, ten years old at the time the present law became effective a further period in which to be renewed.
106 Georgia Code Annotated, Section 108, governing cancellation of trademarks from the register reads as follows-insofar as it concerns cancellation for nonrenewal:
"106-108. Cancellation or registrations. - The Secretary of State shall cancel from the register:
"(1) after one year from February 14, 1952, all registrations under prior laws which are more than 10 years old and not renewed in accordance with this Chapter; . . .
"(3) all registrations granted under this Chapter and not renewed in accordance with the provisions hereof; ..."
The language of Section 108 is clear and unconditional. Under Sub-section (1), the Secretary of State is required to cancel all trademark registrations made under prior laws which are more than ten years old and not renewed. Further under Sub-section (3), the Secretary of State is required to cancel all

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trademark registrations obtained under this law which are more than ten years old and not renewed.
The specific case mentioned by you in your letter involves the trademark "KLEENIZE" which was registered on December 18, 1946, and was not renewed before the expiration of ten years. Under 106 Georgia Code Annotated, Section 105, this registration has, therefore, expired, and it is my opinion that the Secretary of State must cancel the trademark registration as directed in 106 Georgia Code Annotated, Section 108.

TRADEMARKS-Registration

Discussed.

Honorable Ben W. Fortson, Jr.

January 13, 1959

Reference is made to your letter in which you inquire whether the word "Transamerica" in Old English type, the first letter being a capital, and the remainder being lower case letters, may be registered. as a trade-mark by the Transamerica Corporation.
It appears that the corporation is a holding company owning outright certain corporations and the controlling stocks in others. The parent corporation, so far as I can learn, manufactures, sells or distributes for sale no commodity whatsoever. The subsidiaries are predominantly insurance companies, though they include among their members Allied Building Credits, a finance company, Columbia River Packers Association, a food processor, and General Metals Corporation, manufacturers of steel, iron and malleable castings. The word sought to be registered, however, is not used upon any such products.
So far as the application and supporting material show, the word soug-ht to be registered\ is used on a gummed label obviously intended for the applicant's own use and a directory of subsidiaries for the applicant and such subsidiaries. There is no indication, claim or evidence of any kind that either of the items are sold, offered for sale or distributed to any one other than sub:oidiaries and no indication that they pay for them directly or indirectly. In any event, there is certainly no showing that the use of the name on either piece of material is designed to or does protect the manufacturer or the public against inferior goods of others in the marts of trade.
The Trade-Mark Law of this Sate (Acts 1952, page 134, et seq., codified as Section 106-101, et seq., Georgia Code Annotated) provides in part as follows:
"Subject to the limitations set forth in this Act, any person who adopts and uses a trade-mark in this State, may file in the office of the Secretary of State, on a form to be furnished by the Secretary of State, an application for registration of such trade-mark ." (Code Section 106-103).
"The term 'trade-mark' as used herein includes any work, name, symbol, or device or any combination thereof adopted and used by a person to identify goods made or sold by him and to distinguish them from goods made or sold by others. (Code Section 106-101 (a).
"For the purposes of this Act, a trade-mark shall be deemed to

399
be 'used' in this State when it is placed in any manner on the goods or their containers or in the tags or labels affixed thereto and such goods are sold or otherwise distributed in this State. (Code Section 106101(a). (Emphasis added.)
"That a trade-mark shall be entitled to registration unless it: "(a) consists of or comprises immoral, deceptive or scanda-
lous matter, ..." (Code Section 106-102.)
To paraphrase or restate the applicable portion of the Statute law of this State on the subject: A trade-mark is a word, name, symbol or device or any combination thereof placed by a person on the goods made or sold by him or on containers or on tags or labels attached thereto to identify them and distinguish them from the goods made or sold by others, and such goods sold or otherwise distributed in this State.
The word "goods" used in the statute in question is not defined therein. Among the definitions given by Webster is the following:
"(3) Wares; merchandise, commodities bought and sold by merchants and traders."
This, in my judgment, is the sense in which it is used in statutes on the 11ubject including our own and by the courts in interpreting such statutes.
It has been said by appellate courts in other jurisdictions that a trade-mark consists of the use in trade of a mark placed upon goods manufactured (or sold) by a particular person and placed in market with such marks' for sale and trade (Adams v. Heisel, 31 F. 279, 280), and does not become a trade-mark until it is actually stamped on or otherwise becomes affixed to goods to be sold. (St. Louis Piano Mfg. Co. v. Merkel, 1 Mo. App. 305, 310). It may be broadly defined as a mark by which the wares of the owner are known in trade and its objects are two-fold: First, to protect the party using it from competition of inferior articles; and, second, to protect the public from imposition of fraud (Shaw Stocking Co. v. Mack, 12 F. 707, 711), and this latter I conclude., is one of the basic concepts of all trade-mark law.
Other cases hold that a "trade-mark" is a distinctive mark, motto, device or emblem which a manufacturer stamps, prints, or otherwise affixes to goods he produces, so that they may be identified in the market and their origin he vouched for. Trade-Mark cases, 100 U.S. 87, 25 L. ed. 550; Buffalo Rubber Mfg. Co. v. Batavia Rubber Co., 90 Misc. Rep. 418, 153 N.Y. S. 779, 783; Iowa Market v. Auto Market & Exchange, 197 Iowa 420, 197 N. W. 321, 322; Tillman & Bendel v. California Packing Corporation, C. C. A. Cal., 63. F. 2d 498, 502. Here again the purpose for which the mark is used, the object to be achieved by its use, are all important.
It can not, in my judgment, be satisfactorily maintained that the word "Transamerica" printed upon gummed labels used by the applicant, a holding company, or upon directories of subsidiary companies used by the said applicant, and such subsidiaries protects the party using it from competition of inferior goods or protects the public from imposition or fraud.
I am therefore of the opinion that the applicant, Transamerica Corporation, has not established any such use of the name "Transamerica" as would entitle it to the registration of such name. as a trade-mark under the existing laws of this State.

400

TRADEMARKS-Registration

Discussed, togather with grounds for refusal.

Honorable Paul D. Boone

August 3, 1959

In reply to your letter in regards to an application to register as a trade mark "COOL ROOF" Georgia Code Section 100-102 sets forth the grounds for refusal of registration of a trade mark and is pertinent to your letter as follows:
"(g) consists of or comprises a trade-mark which so resembles a trade-mark registered in the United States Patent Office by another and not abandoned, as to be likely, when applied to the goods of the applicant to cause confusion or mistake or to deceive: Provided, however, that should applicant prove that he is the owner of a concurrent registration in the United States Patent Office of his trade-mark covering an area including this State, applicant may register his trade-mark hereunder. (Acts 1952, pp. 134, 136.)"
Actually the initiative would be with your client to make application for "COOL ROOF" for registration as a trade mark on one of the forms prepared by the Secretary of State's office for the State of Georgia. However, as is apparent if some other corporation has a previously registered trade mark in the United States Patent Office and if the applications for the trade marks for the two goods might cause confusion, then such would be grounds for refusal for registration of the latter trade mark registration.

TRAFFIC LAWS-Enforcement-Devices (Unofficial)

Only State Highway Board may place traffic-control devices upon State highways: except by Board's permission.

Honorable William Wisse

August 5, 1958

This will acknowledge receipt of your letter in which you pose certain questions concerning the enforcement of traffic laws on State Highway 247 near Robins Air Force Base.
You specificially wish to know what procedure must be taken in order that traffic signs may be legally placed upon the State highway, and what action must be taken in order to confer upon civilian guards employed by Robins Air Force Base the authority to control the taffic.
Youl" question with regard to traffic control devices, I believe, is answered by the Uniform Act Regulating Tra1Tic on the Highways, which appears as Code Chapter 68-16. Code Section 68-1610 reads as follows:
"(a) The State Highway Board shall place and maintain such traffic control devices, conforming to its manual and specifications, upon all State highways including those within all municipalities. and counties, as it shall deem necessary to indicate and to carry out the provisions of this law or to regulate, warn, or guide traffic, and shall remove or direct removal of all traffic-control devices which it shall deem

401
unnecessary. All traffic-control devices shall conform to those adopted under the authority of Section 63-1609.
"(b) No other authority shall place or maintain any traffic-control device upon any State highway under the jurisdiction of the State Highway Board except by the latter's permission." With regard to the other question that you pose, I do not believe that civilian employees of the Federal Government would have any authority as such to enforce State traffic laws. Howeve~', if these individuals were sworn in as Deputy Sheriffs of Houston County, they could enforce any of the laws of the State.

TRAFFIC LAWS-Illegal Passing

Mere act of crossing yellow line is not an offense alone, but upon introduction of regulations designing no passing zones by yellow lines, becomes illegal passing.

Honorable M. L. Shadburn

October 8, 1958

I have your letter requesting an interpretation of several sections of the Uniform Traffic Act, with special reference to an article which appeared recently in the public press headlined: "Yellow Line Void if Not Explained;" and reciting that it was the law that a man was not bound to observe a yellow line as a no-passin~r signal unless some nearby traffic sign explained to him that this was the meaning of the yellow line.
I have examined the opinion of the Court of Appeals in the case of Maxwell v. The State, 97 Ga. App. 334. I have also examined the several sections of Chapter 68 of the Code and especially those parts adopted in 1953 in the November Session and commonly known as ihe Uniform Traffic Control Act.
I am constrained, reluctantly, to the opinion that the mere act of crossing the yellow line from the right to left lane does not, of itself, constitute a criminal offense. It might be different were there in the immediate vicinity a sign, clearly visible, reading (as quoted in Mr. Flynt's letter) "No passing when yellow line is right of centerline."
However, Section 68-1609 authorizes the State Highway Board to adopt a manual and specifications for a uniform system of traffic control devices to be used upon all the highways in this State.
In compliance with such authority, the State Highway Board did no March 24, 1954, adopt such a manual and with relation to the marking of no-passing zones and in setting up criteria for the denomination and the marking of such no-passing zones, the Board used the following language:
"A no-passing zone shall be marked by a solid barrier line placed as the right-hand element of a combination stripe along the center or lane line. The barrier line shall be yellow."
On page 107, the criteria relating to a no-passing zone, substantially conform to those described in the Code, Sections 68-1635, 68-1636, and 68-1637.
Hence, one may conclude, if this manual were placed in evidence, that the

402
crossing of a yellow line marking the zones where the law itself forbids overtaking and passing, would be prima facie evidence that the provisions of Sections 68-1635, 68-1636, and 68-1637, and particularly the latter, were violated.
With this conclusion substantiated by the evidence, Section 68-9926 would make such passing a misdemeanor, punishable as such. Should death result because of an illegal passing, the offense could be involuntary manslaughter.
I emphasize again, however, that the offense would be "passing in a prohibited zone" and not "crossing a yellow line." The first constitutes a legal offense. According to the Maxwell case the se,cond does not.
With relation to civil liability, I am of the opinion that construing Chapter 68-16 in its entirety, the crossing of a yeUow line would, if it resulted in injury or death to other persons or injury to property, be negligence per se. [ED. NO'rE: Ga. Laws 1959, p. 144, amended the Uniform Act regulating
traffic on the highways so as to provide for the marking of no passing zones by the State Highway Department.]

TRAFFIC LAWS-Overweight vehicles

Special permits for overweight vehicles may be issued to vehicle carrying precast members of a bridge if members are bound together for safety.

Honorable Roy F. Chalker

September 12, 1958

I have your letter requesting an opinion as to whether a load for a, motor truck which consists of two precast members for concrete bridges which are tightly banded together for transport constitutes an overweight load which "is a unit which cannot be readily dismantled or separated."
Ordinarily, I would say that where there are two separate members banded together, such a load could be "readily dismantled or separated" for transport; thus dispensing with the necessity for a special permit as provided in Section 68-408 of the Code of Georgia of 1933, as amended.
However, your letter calls attention to the fact that such precast, prestressed, concrete beams or piling, when tightly banded together in pairs for transport, promote safety in such transport. Your letter leaves an inference that it is desirable to transport such precast, prestressed beams and members in pairs.
In view of the fact that the whole1 object of Chapter 68-4 pertaining to the size, length, and weight of motor vehicles is the promotion of highway safety, and inasmuch as the dismantling of a proposed load is based upon a decision whether or not it can "readily" be dismantled and separated, I am of the opinion that the element of safety, under the circumstances outlined, warrants an administrative decision that the proposed load, consisting of two such members tightly banded together, cannot be "readily" dismantled. Since such separation or dismantlement would render the load less safe, it does not meet the definition of being readily dismantled.
In my opinion, you are authorized to issue permits for the transport of such loads.

403

WILLS AND ADMINISTRATION OF ESTATES-Year's Support (Unofficial)

Year's support set aside for widow or child.

Honorable Charles Burgamy

February 20, 1959

I am pleased to acknowledge your recent request ao; to whether the sevenyear limitation found in Ga. Code Ann., 27-2916 and 27-2917 would run against a minor child while said child is a minor. Your letter states that the claim was based upon insolvent court costs due a deceased sheriff and that the: claim was set aside to the widow and a minor child as a year's support.
The existence of infancy at the time of the accrual of the cause of action will postpone the commencement of the running of the period of limitation until the person reached majority. Ga. Code Ann., 3-801. The fact that the infant had a guardian who might have sued in the name of the ward, where the title and the right of action is, in the infant, does not prevent such infant from enjoying the statutory benefit accorded to him by virtue of his disability. Nelson v. Estill, 190 Ga. 235; Munroe v. Simmons, 86 Ga. 344. The law would seem to be different if the legal title to the action is in the guardian. Grimsby v. Hudnell, 76 Ga. 378, held:
"The right of action in this case was in the infant, and although her guardian might maintain the action in the infant's name, the title or right was in her. If the legal title had been in the guardian, and the infant had the beneficial interest in the cause of action, then perhaps, as the guardian would have been barred, the infant would also have been barred. This is the rule applied in cases of executors, administrators and trustees, the beneficial interest being in infants. Wingfield v. Virgin, 51 Ga. 142; 43 Id., 288, 290."
On the basis of the above decisions it would seem that the question of whether the seven-year limitation found in Ga. Code Ann., 27-2916 and 272917 would run against a minor child's interest depends upon the nature of the right held by said minor under the statute providing for year's support to the family. Ga. Code Ann., 113-1002. While Miller v. Miller, 105 Ga. 305, 312, seems to indicate that such year's support may be either set aside jointly or separately to the widow and! child, McCommons v. Reid, 201 Ga. 500, 507, held:
"As to plaintiff's interest, it should be remembered that the office of a year's-support proceeding is, not to make a distribution among heirs at law, but simply to provide a support for the widow and minor children for the prescribed period. Also, where an application for a year's support is made hy a widow fnr herself and her minor child, the law contemplates that an award shall be made to such widow and minor child in gross, and not that awards shall be made to' them separately; so that, although the legal title will vest in them share and share alike, the use of the entire property shall be a joint one for the support of both the mother and the child, and of neither to the exclusion of the other, so long as the widow lives and until the child marries or reaches, majority. . . ."
Other decisions indicate that while the property set aside for year's support vests in. the widow and child, the widow has power to convey not only her interest but also the interest of the child. Swain v. Stewart, 98 Ga. 366, and the cases cited therein.

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WORKMEN'S COMPENSATION-Coverage and Benefits

Partial rejection or waiver of coverage or benefits by an employe9 is not authorized.

Honorable .J. M. Forrester

December 18, 1959

Reference is made to your letter concerning diabetics and the possibility of the State Department of Corrections obtaining an affidavit or waiver of workmen's compensation from an employee who might be found to have diabetes.
After a careful look at the workmen's compensation statutes, I am of the opinion that generally an employee can only elect to reject the entire terms, conditions and provisions of the workmen's compensation law and cannot elect to waive a specific type disability such as we are presented with here. In this connection you are referred to Georgia Code Annotated 114-111 and 114-201.
I am further of the opinion that the General Assembly, in enacting the workmen's compensation law in placing the State of Georgia and all departments thereof under it as an employer, did not intend that same would be counteracted by a waiver or an affidavit from a particular employee. To construe the Act i.n any other way would necessitate putting an employee of the' State of Georgia in a position where he could sue the State by rejecting the Act and proceeding at common law and I do not believe the General Assembly intended to give an employee, at his election, any such right. In this connection, you are referred to Georgia Code Annotated 114-205, which reads as follows:
"114.205. Action of employee who has elected to reject Title. An employe'e who elects not to operate under this Title shall, in any action to recover damages for personal injury or death brought against an employer accepting the compensation provisions of this Title, proceed at common law, and the employer may avail himself of the defenses of contributory negligence, negligence of a fellow servant, and assumption of risk, as' such defenses exist at common law."

---------

WORKMEN'S COMPENSATION-Coverage and Benefits

County employees are covered by Workmen's Compensation as county is required to obtain insurance or qualify as a self insurer.

Mr. Richard W. Best

June 16, 1958

This letter is written pursuant to your request for my opinion as to whether or not counties are now required to obtain workmen's compensation insurance, or also qualify as self-insurers.
The original workmen's compensation act provided that counties would be subject thereto as "employers", but it was held that these provisions were unconstitutional in that the Constitution did not authorize taxation by counties for such purposes. Floyd County v. Scoggins, 164 Ga. 485; Kelley v. County of Newton, 198 Ga. 483 (1). Later the 1945 Constitution expressly authorized

405
counties to tax for this purpose, 2-5701 (15), but in Commr's of Fulton County
v. Davis, 213 Ga. 792, decided February 7, 1958 (which necessarily overruled a contrary holding by the Court of Appeals in Walker v. Wilcox County, 95 Ga. App. 185, decided February 21, 1957), it was held that counties were still not subject to the act because no enabling legislation making them subject had been enacted subsequent to the 1945 Constitution.
As a result of the Davis case, the 1958 General Assembly amended Code 114-101, defining "employers", so as to include in that definition the words "each county within the state." See Ga. Laws 1958, p. 183.
It is thus clear that counties are subject to the act. Secondly, it is likewise clear that counties are under the act involuntarily, and do not have the right to reject as do private employers under Code Chap. 114-2, as Section 114-109 provides as follows:
"Neithe,r any municipal corporation within the State, nor any political subdivision of the State, nor any employee of any such corporation or subdivision, shall have the right to reject the provisions of this Title relative to payment and acceptance of compensation; and the provisions of sections 114-110 and 114-202 to 114-206 shall not apply to them."
See Bartram v. City of Atlanta, 71 Ga. App. 313 (3), and Caruthers v. City of Hawkinsville, 46 Ga. App. 607, int.rpreting this provision as to municipalities, which is now applicable in like manner to counties.
A county is a political subdivision of the state. Hammond v. Clark, 136 Ga. 313; Hines v. Etheridge, 173 Ga. 870; Banks County v. Stark, 88 Ga. App. 368.
With respect to the question of procuring insurance or qualifying as a self-insurer, Code Sections 114-601, 114-602 provide that "Every employer who accepts the compensation provisions of this Title . . ." shall procure insurance, or qualify as a self-insurer, in which latter event the Board may require the deposit of security or bond. These provisions were cons,trued by the Court of Appeals in Petty v. Mayor & C. of College Park, 63 Ga. App. 455, 457, where the superior court had reversed an award of compensation against a city insofar as it imposed penalties under Code 114-603, for failure of the city to comply with the requirements of Sections 114-601, and 114-602 as to posting bond or qualifying with the Board as self insurer. In affirming this holding, the Court of Appeals declared:
"We do not think that the section of the act providing for penalties for failure to comply with the sections relating to insurance has application to municipalities. This is evident for several reasons. The first sentence of the section is: 'Every employer accepting the compensation provisions of this title,' etc. (Italics ours.) This sentence implies that there shall be an opportunity on the part of the employer to make an election as to whether he shali come under the act. This privilege of election is denied municipalities by 114-109, which provides: 'Neither any municipal corporation within the State, nor any political subdivision of the State, nor employee of any such corporation or subdivision, shall have the right to reject the provisions of this title relative to payment and acceptance of compensation.' The rationale of the act is that one can not make an election, where he has that right, to accept the benefits of the act and refuse with impunity to comply with its provisions. Another may be that the ability of municipalities to pay compensation is presumed.

406

*

*

"Thus when a municipality does not take out the required insurance,

we think it is to be presumed that it is a self-insurer, and liable for its pro-rata share of the expenses of the carrying out of the compensation act." It is therefore apparent that a municipality, and by analogy, a county, is

liable for compensation regardless of whether or not it has procured insurance or qualified as a self-insurer under Rule 6 of the Board's Rules.
Moreover, under the reasoning of the court, particularly so much thereof as relied on the language of the Code Sections as indicating their applicability only to employers having an election as to coming under the act or not, it. would

seem to necessarily follow that municipalities are not subject to the insurance of self-insurance provisions of the act.

As further indication of this fact, Code 102-109 provides: "The State is not bound by the passage of a law unless named
therein, or unless the words of the Act should be so plain, clear and

unmistakable as to leave no doubt as to the intention of the legislature." This Section has been held applicable to municipal corporation, City of Atlanta v. Smith, 99 Ga. 462, 467; Lingo v. Harris, 73 Ga. 28, and under the

reasoning of the Lingo case, basing this rule on the fact that municipalities are political divisions of the state exercising a part of its sovereignty, it would also apply to counties.

In any event, even assuming arguendo a county to be subject to the requirements as to qualifying as a self-insurer, there; would be no practical effect therefrom, since the Petty case, supra, held that penalties could not be imposed against a municipality, which apparently is the only means of enforcing the requirements of Sections 114-601 and 114-602. Obviously, a county could not be guilty of a misdemeanor under Code 114-9901.

I observe that Rule 6 of the Board's Rules refer to municipalities and counties' filing self-insurance forms. I see no reason why the Board could not request counties and municipalities to voluntarily file statements indicating how they propose to pay claims, and as you will note from the Petty case, supra, the Board can call upon municipalities (and counties, now) to p,ay their pro rata share of the Board's expenses in carrying out the Act under Code 114-717.

WORKMEN'S COMPENSATION-Coverage and Benefits

Emp,loyees of county and city boards of education are covered by workmen's compensation.

Honorable Claude Purcell

May 29, 1959

This will acknowledge receipt of your letter in which you request my opinion with reference to the following questions:
1. Are employees of county and city boards of education covered under the provisions of the Workmen's Compensation law which cover other employees of local units of government?
2. Is the system board of education responsible for providing such

cove~? If not, what. agency. has this responsibility? Ih :veply to your first question, employees of county boards of education are cwered uder the provisions of Workmen's Compensation law. In 1958, the General Assembly amended Section 114-101 of the Annotated Code so as to provide that. counties were subject to the Workman's Compensation Act. Since employees. of a county board of education are, in fact, employees of the county (see Boord. of. Education v. So. Mich. Bank, 184 Ga. 641; Smith v. Board of Education of Washington. County, 153 Ga. 758; Board of Education of Houston County v. Hunt, 159 Ga. 749; Burke v. Wheeler County, 54 Ga. App. 81), such school employees are now covered under the Workmen's Compensation Act.
In reply to your second question, I would like to refer you tOo Code Sections 32-942 and 94-3708 which specifically provide that public school funds cannot be used for. other purposes than school purposes. See Burke v. Wheeler County, 54 Ga. App. 81. Since school funds cannot be used for Workmen's Compensation coverage,. it is. necessary that the funds for the coverage of school employees be furnished by the governing authority of the county in which the school system is located.
I believe tHat ~ur request was precipitated by a letteT from Mr. James C. Pullin, Secretary of the. Board of Workmen's Compensation, which was sent to the.. various. county. commissioners of the State in which he requested information as to the number of county employees in each county, including school employees. The purpose of this letter was to determine' each county's pro rata share of the expenses of the State Board of Workmen's Compensation as provided in Code Section 114-n7. Since a county school board may not expend public school money for Workmen's Compensation, it is nece.ssary that all the details of the administration of the Workmen's Compensation law, as it effects school employees, be handled through the governing authority of the county involved. Hence, the duty which falls upon the various county boards of education is to report the number of employees which they have to the governing authority of the county who, in turn, will report the total number of county emplbyees to the state Board of Workmen's Compensation.

WORKMAN~S COMRENSATION-Covera.ge (Unofficial)

Distinction between officer and employee discussed.

Hon0orable T. T. Molnar

July 17, 1958

Thank you for your letter making inquiry as to whether a number of persons listed in your letter are county employe.es within the meaning of Act No. 211 of the General Assembly of 1958 amending that portion of the Workmen's Compensation Act set forth in Georgia Code Section 114-101 so as to include within the. definition of employer "each county within the State."
Since the decision in each instance will depend very largely upon the details as to each office and position, and you are much more familiar with those details thll>n: we: aTe, wer think it~ best that you reach the decision in the statute and'decisionsofittie.appellate. courts that we think may be of' some help to you in reaching youl'' oonclusiotls

408
In its decision in the case of City of Brunswick v. Edenfield, 87 Ga. 434, 74 S. E. 2d 133, the Georgia Court of Appeals referred, among others, to the decision of the Court in Elliot v. City Council of Augusta, 49 Ga. App. 568, 176 S. E. 548, in which the Court said in part:
"The officer of a municipality is distinguished from the employee in the gre,ater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or non-feasance in office." By this statement, it appears that the Court intended to indicate in general terms the kind of characteristics which distinguish an official from an employee.
You will also observe that the definition of "employee" in the second paragraph of Georgia Code Section 114-101 requires that the person serve under a contract of hire or apprenticeship, written or implied, and without such a contract the person is not an employee. No doubt you will also want to consider the decision of the same Court on January 21, 1958, in the case of American Automobile Ins. Co. v. Tanner, 97 Ga. App. 122, 101 S. E. 2d 875. The first and second headnotes of this decision as reported in 101 S. E. 2d are as follows:
"Test to be applied in determining whether workman who died from electrical shock received while installing kitchen cabinets for defendant was an independent contractor or an employee was whether contract of employment between decedent and defendant gave, or defendant assumed, right to control time, manner and method of executing installation of cabinets. Code, Section 114-101 et seq."
"It is not necessary that regular hours be worked in order that workman be classified as employee rather than as independent contractor, and it is' also of no consequence that right to control time and manner of work done by him was not exercised. Code, Section 114-101 et seq."
The Court rendered a similar decision a few months earlier in the case of American Casualty Co. v. Harris, 96 Ga. App. 720, 101 S. E. 2d 618. In determining whose employee a particular person may be it would, of course, be important to determine who controls or has the right to control the time, manner, methods, and means of performance of his or her work.
It is believed that an examination of the statute and the above mentioned decisions together with those mentioned in your letter should enable you to determine the answers to the questions stated in your letter.

WORKMEN'S COMPENSATION-Coverage and Benefits

School system employees are covered.

Dr. Claude Purcell

July 16, 1959

This will acknowledge receipt of your letter in which you state that the Counsel for the Chatham County Board of Education has asked whether or not the Act of 1958 amending Code Section 114-101 (Ga. Laws, 1958, p. 183), relat-

409
ing to the definition of employer under the Workmen's Compensation Act, applies to school systems which were chartered before the adoption of the 1877 Constitution.
The 1958 amendment to Code Section 114-101 amends the Workmen's Compensation Act so as to make it apply "to each county within the State." There is no doubt that this would include Chatham County. The employer involved is actually a county and not a local school system, as was pointed out in my opinion to you of May 29, 1959, and in the opmwn of August 22, 1958, to the Honorable James Emory Findley, Attorney for the Savannah-Chatham County School System.

411

INDEX OPINIONS OF THE ATTORNEY GENERAL
1958- 59

Page
ADMINISTRATIVE LAW
Hearings, where held Real Estate Commission ____________________________________ -----------------.------------------------,----- 329
Notice and Hearing Required in law ____________________________________________________________ ---------------------------------------- 1

ADVERTISING
Intoxicating liquors, in dry counties _____________ _ Legal
Newspaper may require cash in advance Legislation
Only local bills must be advertised ________

--------------------------------------------- 202 1
178

AGRICULTURE

Animals

Dead, disposal of __ _________ ______ __

2

Bonding Laws

Amount required livestock dealers

3

Enumerated -----------------------------

3

Commissioner of Agriculture

Duties -------------------------

4

Dairy Processing Plants

License not required of Jekyll Island

5

Dealers in Agricultural products

Bond required ---------------------------------------- _______________ ---------------------------------------------- 3

Extension Service

Liability __________________________ ------------------------------- ------------------------------------------------------- 6

Georgia Food Act

Applies to soft drinks __________ ---------- _

7

Georgia Milk Commission

Authority -------------------------------------------------- ______________ ----------------------------------------------- 8

Compensation of members ____________ ----------------------------------------------------------------- 9

Licenses

Dairy Processing ___________

5

Livestock

Branding and movement Livestock Auctions

------------ ---------- --- ---------------------------------------------- 10

Care required of operators --------------------------------- ---------------------------------------------- 15 Livestock dealers

Amount Bond required ----------------------------------------------------------------- _____________________ 3

Bond required --------------------------------------------------------------------------------------------------------- 3 Nurseries

Stock sales ----------------------------------------------------- _------------------------------------------------------- 11 Poultry

Sales, statutory requirements _____________ ----------------------------------------~--------------------- 12

41~

Page

AGRICULTURE-(Cont'd)

Poisons

Farm use -------------------- ------------------------------------ . _.. ___________ ---------------------------------------- 11 Sales
Fruit trees

Poultry ----------------------------------------------------------------------------------------------------------------- 12 State Warehouse Act

Lumber not included under --------------- ------------------------------------------------------------- 12

Pine cones included under

14

AUCTIONS Livestock Care required of barn operation ------------------------------------------------------------------------ 15

AUTHORITIIES Housing Members may not serve as officer for creating entity ------------------------------ 40

AUTOPSIES See POST MORTEM EXAMINATIONS, this index ----------------------------------- 238

BAILMENTS Care required of bailee --------------------------- _____ __ -------------------------------------- ------------- 15

BANKS AND BANKING
Accounts Survivorship ----------------------------------------------------------------------------------------------------------16, 19
Branch Banks Effect of change in location --------------- ------------ ___ ---------------------------------------------- 17
"Central Charge Plan" __ ------------------------------------------- --------------------------------------------- 17 Corporations
Cannot use word "Bank" in name unless banking corporation ----------------- 32
Deposits Bank with trust power may deposit funds in own bank --------------------------- 20 Service charges ---------------------------------------- -------------- ----------------- ---------------------------- 20 Survivorship --------------------------------------------------------------------------------------------------------- 19
Trust Banks May deposit funds at interest in own bank ------------------------------------------------ 20

BILLS AND NOTES Worthless checks, passing ------------------------------ ----------------------------------------------------- 82

BONDS
Carnivals Extent of coverage ------------------------------------ .---------------------------------------------------------- 22
Limitation on expenditure of monies _------------------------------------------------------------ 115 Payment of
Homestead exemption not applicable from levy to pay bond debts ---------- 347 School Principal bonds
Individual bond required ----------------------------------------------------------------------------------- 112

413
Page
BONDS-( Cont'd) Signatures Method of procuring ---------------------------- _____ --------------------------------------------------------- 245
BUSES See EDUCATION, MOTOR VEHICLES, this index.
CHILD LABOR Regulation Applicable law cited _______________________ -------------------------------------------------------------------- 23
CIVIL DEFENSE See also, STATE GOVERNMENT, Department of Defense, this index. Civil defense agreements reviewed ---------------------------------------------------------------------- 315 Civil Defense Directors --------------------------------------------------------------------------------------- 314
CLERKS See COURTS, this index.
COASTAL WATERS AND TIDELANDS Bouys, erection and maintenance _________________ ------------------------------------------------------- 167
CONSTITUTIONAL LAW Act containing no enacting clause doubtful ---------------------------------------------------- 23 Local Amendments Discussion of when local or general ------------- ----"------------------------------------------ 25 Validity, pertaining to Gilmer County ---------------------------------------------------------- 26 Municipal Corporations No right to punish for state offenses ___ ---------------------------------------------------------- 216 Prohibition against gratuities Resolution for sale of State Property valid ____ --------------------------------------------- 29 Resolution for sale of State property violates ---------------------------------------------- 28 Scholarships --------------------------------------------------------------------------------------------------------- 405 Property condemned must be adequately compensated -------------------------------- 276 Statutory construction ---------------------------------------------------------------------------------'-------- 314 Validity of Resolution to convey property to non-profit organization -------------------------------------------------------------------------------------- 281
CONTRACTS Offer and Acceptance Acceptance of low bid forms binding contract -------------------------------------------- 31 Signatures Facsimile aignatures on contracts -------------------------------------------------------------------- 32 State Acceptance of low bid forms binding contract -------------------------------------------- 31
CORPORATIONS Charters Amendment authorizing increase in capital stock ---------------------------------------- 197 Small Business Investment Act of 1958 ______ --------------------------------------------------- 33 Name Cannot use word "Bank" in name unles~> banking corporation --------------- 32

414

Page

COUNTIES

Board of Registrars

Compensation of chief registrar ___________________________

149

Compensation of Deputy registrar _______________________

151

Board of Tax Assessors

Membership, determining number _____________

34

Members ineligible for any other office _________

34

Buildings

Discretion by Commissioners of building methods _____

35

Commissioners of Roads and Revenues

Authority to construct buildings ____________________ ------------------------------------------------- 35

Expenses, travel allowances ------------------------------------------------- ----------------- 37

Election, not affected by 1956 Act ___________ ---------------,--------------------------------------- 36

May authorize sale of malt beverages in any county ______

205

Must follow recommendations of Board of Education

as to imposing of school tax levies ---------------------------------------------------------------- 37

No supervisory authority over Board of Education _________________ --------------- 94

County Officers

Candidates for other offices --------------------------

146

Coroners, cannot also be deputy sheriff-----------------------

------------------------ 38

Deputy sheriff, cannot also be coroner __ ______ _____ _____

------------------------ 38

Restriction on holding two offices at one time -------------------------------------------- 38

Supplies furnished ---------------------------------

________________ _

39

County Police Arrests outside county ------------------ ----------- _________ ----------------------------------------------- 73

Fire Districts Creation -----------------------------------------------------------------. _________ ------------------------------------------ 39

Housing Authorities Member may not hold other county offices _

----------------------- 40

Insolvent costs and funds Right of counties to participate in ______ ------------------------------------------------------------- 46

Officers

Primaries to nominate

155

Property Disposal by county commissioners authorized -------------- ---------------------------- 40
School Districts Separate political sub-division ---------------- --------------------------------------------------------- 123
School Superintendent Duty on authorities to furnish office space ----------------------------- --------------------- 109

Surveyor Not subject to city business license -------------------------------------------------------------- 371

COURTS City Courts Reducing number jurors below twelve ----------------------------------------------------------- 50
Clerks Costs on bench warrants and cash bonds ----------------------------------------------------- 45 Discretion to approve bond under Vehicle Responsibility law ____________________ 41

415

Page

COURTS Clerks-(Cont'd)

Fees, for copying equity proceedings and bills of exception --------- -

42

Fees, filing in superior court ____________ --------------------------------------------------------------- 42

Qualifications, must be 21 years old __________ ----------------------------------------------------- 43

Superior Court Clerk

Deputy has authority to appoint notaries public ----------------------------------- 60

Constables

Fees, for advertising sales

44

Fees, for criminal warrants

44

Costs Clerk and Sheriff costs on bench warrants and cash bonds ------------------------ 45 Criminal case transferred to another county ----------------------------------------------- 46 Ordinaries, due for year's support _________________________ ----------------------------------------- 61
Peace warrant cases originating in Justice of Peace court ------------------------ 57

Fees Clerks, filing in superior court ________________ ------------------------------------------------------ 42 Constable fee for advertising sale of personalty ---------------------------------------- 44 Constable fees for serving criminal warrants ------------------------------------------------ 44 Ordinaries, where found -------------------~--------------------------------------------------------------- 62 Sheriff fee for arrests, or taking custody -------------------------------------------------------- 70 Superior Court Clerks, for copying equity proceedings and bills of exception ------------------------------------------------------------ 42

Insolvent costs and funds

Claims are barred seven years after accrue ------------------------------------------------ 47

Ordinary Court may establish ____________

------------------------------------------------------ 48

Right of counties to participate in _____________________ ----------------------------------------- 46

Judges Compensation by fee illegal --------------- ______ ------------------------------------------------------- 49

Judgments Recording creates lien on realty ---------------------------------------------------------------------- 49 Rendered other than at regular court site void -------------------------------------------- 54

Juries

City Court

Reducing number below twelve ------------------------------------------------------------------- 50

Grand juror qualifications

51

Jurisdiction Guardians and wards ---------------------------- ____________________ ---------------------------------------- 65 Misdemeanors --------------------------------------------------- _________ . ____ ---------------------------------------- 71 Operating vehicles without license tag ________________ ---------------------------------------- 67 Ordinaries, over motor vehicle violations ________ ----------------------------------------------- 64 Ordinary has none over operating boat under influence ____________________c________ 66
Ordinaries, lunacy hearings when person charged with murder ---------------- 67

Justice of Peace Becoming surety on bond of person arrested under warrant -------------------- 55 Continues in office until successor qualifies ____:______.____________________________________ 54
Costs in peace warrants cases --------------.. --------------.----..-------------~---...---------'- 57

416
Page
COURTS Justice of Peace-(Cont'd)
Dismissal of peace warrants ______________ ----- _________ ---------------------------------------------- 56 Judgments rendered other than at regular site void ------------------------------------ 54 May hold other offices ____________ ---------------- ---"- -------------------------------------------------- 56 May not serve on county board of tax assessors ----------------------------------------- 34 Must meet monthly at fixed time and place -------------------"------------------------- 54 Qualifications -------------------------------------------------------------------------------------------------------- 58 Juvenile Courts Authority to revoke probations -------------- __ ------- --------------------------------------------- 59 Notaries Public Appointment by deputy clerks superior courts ------------------------------------------- 60 May not serve as county tax assessor ________ -------------------------------------------------- 84 Must be a resident of Georgia ------------------------ --------------------------- ---------------------- 60 Ordinaries Costs due for conveying year's support ________ -------------------------------------------- 61 Fees, where found ------------------ ____ -------------------------- ---------------------------------------------- 62 Guardians and wards, jurisdiction ----------------------------------------------------------------- 65 Guardians and wards, sales by ---------- _______________ -------------------------------------------- 63 Insolvent costs, :rnay establish fund __ ------------------------------------..--------------------- 48 Jurisdiction
Lunacy hearings for person charged with murder ------------------------------------ 67 Motor vehicles violations ---------------------------------------------------------------------------'-- 64 None over operating boat under intluence ----------------------------------------------- 66 Operating vehicles without tags _____________ ----------------------------------------------------- 67 Lunacy Hearings May not conduct for person charged with murder ------------------------------------ 67 Marriage license!! Application and issuance -----------------------------------------------------------------------------------90 Return to parties -------------------------- ______________ -------------------------------------------------- 68 Sanity hearings Witness fees ---------------------------------------------------------------c-------------------------------------- 69 Year's Support Costs due for conveying ------------------------- --------- ---------------------------------------------- 61 Probations Authority of Juvenile Court to revoke _____ :_________________,__________________________________ 59
Sheriffs Costs on bench warrants and cash bonds ----------------------------------------------------- 45 Fees, for taking custory or arresting ------------------------------------------------------ 70 Special election to fill vacancies -------------------------------------------------------------------------- 159
Solicitors General Salary, computing for retirement fund --------------------,----,--------:-------------------,--,- 70
Superior Courts Clerk fee for copying equity proceedings and bills of exception ___ ------------------------------ ---- -----------,-,-----------------------------,--- 42 Clerk's discretion approving bond under Vehicle- Responsibilty ------,:+-,') 41 Deputy Clerk has authority to appoint notarie.s ,publi,c -,-,.r-....,..---,-,--------.,;;-cc~~ , 60

417

Page

COURTS Superior Courts-(Cont'd)

Deputy Clerk q~.ust be 21 years old ------------ ---------------------------------------------------- 43

Filing fee for clerk ----------------------------------------------------------------------------------- 42 Jurisdiction, concurrent with all inferior courts on misdemeanors ____________ 71

Warrants

,

Dismissal of peace warrants ------------------------------------------------------------------------------ 56 Witnesses

Fees due for sanity hearing appearances ------------------------------------------------------ 69

CRIMINAL LAW Arrests By County Police outside county ______________ ----------------------------------------------------- 73 "Hot Pursuit'' ------------------------- ___________________ ._____________--------------------------------------------- 72 Outside jurisdiction ------------------------------------------------------------------------------------------------ 74 Blood Tests Samples kept 12 months and destroyed ______ --------------------------------------------------- 302
"Blue Laws" Athletic events -------------------- ________ .------------------------ --------------------------------------------------- 75 Motion Pictures --------------------------- ______________________. _____--------------------------------------------- 75 Perishable Farm products exempted .-------------------------------------------------------------- 76 Retail Food stores -------------------------------------------------------------------------------------------------- 75
Extradition Prisoner wanted in foreign state for misdemeanor ------------------------------------ 251 Waiver of rights ------------------------------------------------------------------------------------------- 252 Waiver of rights ----------------------------------------------------------------------------------------------- 253
Gaming Prohibited, and Bingo included ---------------------------------------------------------------- 77
Identification Fingerprinting ---------------------------- .. ------------------------------------------------------------------------- 78
Larceny Cattle stealing --------------------------------------------------------------------------------------- 79
Municipal corporations No right to punish for State offenses ----,------------------------------------------------- 216
Possession non-tax paid liquor ------------------------------------------:_________________::_____________ 79
Probations Conditions, who may impose ---------------- ____ --------------------------------------------------------- 223 Original sentence subject _to modification during -------------------------------------- 255
Punishments Larceny, known as cattle stealing _________ -------------------------------------------- 79
Representation by counsel Indigent accused ---------------------------------- ----------------------------------------------------------- 80
Sentences Consecutive sentences legal --------------------------------------------------------------------------- 82 Effect receiving new sentence while on parole ------------------------------------------ 259 New, "computed from this date", consecutive when ------------------------------------ 260 Subject to modification during P'eriod of probation ------------------------------- 255 Suspended sentence has effect of probation ____ -------------------------------------------- 255

418

Page

CRIMINAL LAW

Sentences-( Cont'd)

When run concurrently or consecutively ________ ----

258

Computation upon revocation of parole ___________________

258

Trading Stamps Misdemeanor to give away under certain circumstances -- ------------------------- 389
Worthless checks, passing -------------------------------------------------- ----------------------------------- 82

DOMESTIC RELATIONS

Divorce

Grounds, incurable insanity -------------------------------------------------------------------------------- 87

Procedure, same as civil actions ---------------------------------------------------------------------- 85

Service on defendant in prison ______ ---------- ________ --------------- --------------- -------------- 88

Marriage

Common-law marriage essentials ----------- ------------------------------------------------

89

Marriage Licenses

Application and issuance ___________

90

Return to parties by ordinary ___ ----- ------------------------------------------------------- 83

Uniform Support Act

Duty of child to support parents ____

-------------------------------------------------- 83

Wife's Signature

No requirement that "Mrs." be used ._: ___ ---------- -~------------------------------------------- 84

DOMICILE AND RESIDENCE Discussed ________ -------- ------ ,_,_______ _____!!;. ____

------------------------------...91, 92, 160, 169

EDUCATION Athletics

Liability for debts of athletic department ___ ---------------------------------------------------- 100

Colleges and Universities Control by State Board of Education ________

--------------------------------113, 114

County Board of Education

Assignment of pupils ----------------------------------- ----------- -------------------------------------------- 135

Assistant Solicitor General may serve on ------------------------------------------------------ 105 Authority to lease school buildings _________________ ---------------------------------------------- .98

Authority to make temporary loans _________________ ---------------------------------------------- 97

Authority to require vaccinations ----------------------------------------------------------------- 96 Authority to set up school house districts -------------------------------------------------- 90

Authority to suspend married pregnant student ---------------------------------------- 136

Candidates for other offices -------------------------- ----------------------------------------------------- 146 Chairman not entitled expense reimbursement ____________ ------------------------------- 130 Commissioner Roads and Revenues has no authority over ________________________ 94

Conflict with school superintendent, how settled --------------------------------------- 132

Contracts with board members -------------------------------------------------------------------------- 102 County Commissioners must impose tax as recommended by _____ ______________ 37

Employees covered by Workmen's compensation ------------------------------------------ 406

Employing member as teacher or principal ------------------------------------------------ 100

Expenditure of funds --------------------------------- ______ -------------------------------------------------- 129 Funds, not authorized to expend for workmen's comp-ensation __________________ 406

Liability for debts of athletic department ------------------------------------------------------ 100

May contract for school building in independent district ---------------------------- 116

419
Page
EDUCATION-(Cont'd) County Board-(Cont'd)
May select school sites --------------------------------------------------------------------------------------- 117 May supplement secretary salary to county agent --------------------------------------- 127 May supplement Superintendent's salar;r ------------------------------------------------------- 112 Member also teacher ---------------------------------------------------------------------------------------- 140 Members
Residence change does not terminate membership ------------------------------------ 101 Change of residence --------------------------------------------------------------------------- 103 Doing business with board --------------------------------------------------------------------------- 102 No authority to expend funds to collect delinq\lent. taxes -------------------------- 128 Purchases from ---------------------------------------------------------------------------------------------------- 106 Purchase of milk for school lunch rooms-------------------------------------------------------- 100 Resignations Board may eled successor until next grand jury ----------------------------------- 107 Revenue certificates for teacher housing unauthorized ------------------------------ 140 Right to charge tuition --------------------------------------------------------------------------------------- 137 Sale of property ---------------------------------------------------------------------------------------------------- 107 Tribunal for all local controversies ---------------------------------------------------------------- 135 Using board member's bank ------------------------------------------------------------------------------ 105 Vacancies Successor appointed by Grand Jury ------------------------------------------------------------ 107 County School Superintendents Cemmissioner Roads and Revenues has no authority over ------------------------- 94 Conflict with county board, how settled -------------------------------------------------------- 132 Duties ------------------------------------------------------- --------------------------------------------------------------- 108 Office space furnished -------------------------------------------------------------------------------------------- 109 Qualifications -------------------------------------------------------------------------------------------------------- 110 Qualifications set by County board in Coffee County. -------------------------------- 110 Salaries --------------------------------------------------------------------------------------------------------------- 111 Salary Supplement ------------------------------------- ---------------------------------------------------------- 112 Educational leave Department of Public W elfar.e employees ---------------------------------------------------- 317
Independent School Districts May contract with a county board for school buildings ---------------------------- 116
Mergers Amendments must receive majority of votes in both systems -------------------- 348
Minimum Foundation Program 1957 Amendment ------------------------------------------------------------------------------------------------ 141
Principals Bonding --------------------------------------------------------- ___________ ----------------------------------------------- 112
Private Schools Control by State Board of Education --------------------------------------------------------113, 114
State Board Control over private colleges ----------------------------------------------------------------------- 113
Prop~rty
Sale of County: Board property ---------------------------------------------------------------------- 107

420

Pa,ge

EDUCATION-(Cont'd)

Purchasing
From State officials or employees -----------------------------------------------"-------------------- 106 Scholarships
Teacher Scholarship Program ----------------------~~--------------------------------------------------~ 142 School Bonds
Limitation on expenditure of bond nominees ___ --------------------------------------- 115 Not authorized for teacher housing __ __________________ ----------------------- ______________ 140
School Buildings County Board may contract for building in independent district ____________ 116
Sites, county board may choose _______________ -------------------------- ---------------------------- 117

School buses Driver salaries ------------------------------------------------- --------------------------------- _______ ------------- 118 Insurance ------------------------------------------,----------_-,----------------------------------------------------120, 121 Laws affecting ____________________________________________________________:______________:___________________________ 119

Use ------------------------------------------------------------ _______________________________ -- ---------------------------- 122

School Districts Bonded indebtedness limitations ______________ --------------------------------- -------------------- 123
May be sub-divided into schoolhouse districts ------------------- __ ------------------------- 94 Separate political subdivisions of State ___________ -------------------------- ___________106, 123

School employees County Agent's secretary salary _____________ -------------------------------------------------------- 127

School Funds

Allocation -------------------------------------------- ------------------------------------''------- ____________________ 124

Depositories -------------------------------- ------------------------------------------------------------------------- 105

Expenditures

Bookmobile license plates .________________________ . --------------------------------- __________________ 131

Expense reimbursement --------------------------------------------------------------------------------- 130

Fees charged by cities --------------------------------------------------------------------------------- 129

For Home Demonstration Council building ---------------'----------------------------- 129

For lunch room debts ---------------------------------------------------------------------- _______________ 130

School 1unchroom stoves __ ------------------------------------------------------------------------------- 131
To collect delinquent taxes ------------------ ---------------------,,.--.,____________________________ 128 Limitations on loans which would obligate ----------------~---"~-------------------------, 97

May not be used to pay premiums for workmen's compensation _

125

School Lunch Rooms .

Education funds may not be used for ----------------------------------------------------------- 130
Purchase of milk for ------------------------ ______________ ---------------------------------- _____________ ioo

State Board of Education

Control over private schools ____________________ ------------------------------------------------------- 114

Expenses of members --------------------------------- _______ _________________

__________________ 132

Jurisdiction over school matters ________

132

May require and operate television station

143

Old State Farmers' Market --------------------------------------- _________________________

135

Selection of school textbooks ---------------------------------------------------------------------------- 145

Students

Assignment ----------------------------------------------------------------------------------------------------.135, f37
County Board may require vaccinations !.~-----:'--------~---------'-----:-~-----:________:.:__:_ 96

421

Page

EDUCATION Students-( Cont'd)

County-line schools ------------------------------------- __ _____________________ ____________________

137

Married and pregnant ---------------------------------- ___ ---------------------------------------

136

Non-resident, tuition paying, state funds ____ ------------------------------- ___________________ 124

Teachers

As member of local board -------------------------------------------------------

_100, 140

Housing ---------------- ------------------------------------------------------------------------

140

- Salaries -------------------------------------------------------------------------------------------- ------------------------ 141

Teachers Scholarship Program

____________________ ________________

142

Television

State Board may operate _____

143

Textbooks

Selection

145

ELECTIONS

Ballots

Absentee, to whom returned

148

Marking for disabled voter

148

Candidates

Qualifications determined as of date of election ____ _____________ ____________

146

City Council Incumbents hold office until successors qualify ___________________ ________________________ 213

County Board of Registrars

Authority to revise voters' list ------------------------------------------------------------------------ 150

Compensation of chief registrar ----------------------------------------------------------------------- 149

Compensation of deputy registrar _____________ ______________________

151

How appointed ----------------------------------------------------------------------- _______________________

58

Registration cards, where kept ------------------------------------- _________________________________ 147

County Commissioners

1956 Act for General Assembly members does not affect --------------------------- 36

County Unit System

Discussed ________________________________ -------------------------------------------------------------------------

154

Primaries

For county offices ------------------------ ---------------------------------------------------------- ______________ 155

For General Assembly members

_______________ -------------------------- 155, 156

Registration

Cancellations ----------------------------- ___________________________

157

Cancellation, voters entitled to notice ___________________ --------------------------------------- 158

Cannot register after 6 months prior to election ---------------------------------------- 158 School mergers

Must receive majority of voters in both systems

348

Special Elections for sheriffs

Only plurality required in special elections ----------------------------------------

159

Voters' List

Revision by Board of Registrars ______________ ------------------------------------------- ___________ 150

Voter Registration

Registration cards, where kept __________________ ------------------------------------------------------- 147 Voter Qualifications

Residence and domicile requirements discussed -------------"---------------------160, 342

422

ELECTIONS-(Cont'd)
Voting Marking ballot for disabled voter _____________ -----------------------------------------------------"- 148 "Single Shot" voting ____________ ------------------------------------------------------------------------------ 161

EMIMENT DOMAIN

.Compensation must be adequate for realty and personalty ___________________________ 276

-Condemnation

Damages to personalty ------------------------------------------------------------------------ _______________ 271

Relocation of utilities, reimbursement for ---------------------------------------------------- 184

Severance of property, damages for -------------------------------------------------------------- 186

Highways

Disposition of buildings on right of ways ---------------------------------------------------- 182

Valuation

When buildings involved

273

FOOD AND DRUGS

Georgia Food Act

Applies to soft drinks

7

FORESTRY Licensing professional forel!lter by reciprocity _____________ ------------------------------------ 266 Removal sunken timber from streams -----'---------------------------------------------------------- ~220 State Forests
Sale of timber from --------------------------------------- ------------------------------------------------ __ .288 State Forestry Commission
No authority to turn profits over to federal .gove11nment -------------------------- __ 162

GAME AND FISH Bonds

Conditions in live shrimp bonds ---------------------------------------------------------------

163

Employees

Director and employees under Merit System ------------------------------------------- 164

Fish Drops Erection of bouys to mark --------------------------------------------------------------- -------------.-- l-67

Game fish sale ----------------------------------------------------------------------------------------------------------- 168

Licenses Agents liable for loss of fund from sale of ---------------------------------------------------- HiS Non-resident, who may obtain ------------------------------------------------------------------------ 169 State may require special for public shooting preserves --------------------------- 170

Nets Use of power drawn nets to take shrimp for own consumption ________________ 170

Public Shooting Preserves State may require special hunting licenses --------------------------------------------------- 170

Quail

Authority to Sell ------------------------------------------------------------------------------------------------- 173 Commercial breeders may sell live or carcasses -------------------------------------------- 173

Wing clips on carcasses of pen-raised quail -------------------------------------------------- 172

Rangers

Subsistence allowance and ;boaPd bill ----------------------------------------------------- 171

Page
GAME AND FISH-(Cont'd) Shrimp Use of power drawn nets to take -for own ,.ntmsumption ---------------------------- 170 ~idal Waters Closing discussed ---------------------------------------------------------------------------------------------------- 174
GENERAL ASSEMBLY Act containing no enacting clause doubtful constitutionalit ---------------------- 23 .:Authority, prohibited from maki~g gifts ---------------------------------------------------------- 175 Legislation Only "local" bills must be advertised -------------------------------------------------------------- 178 Members Primaries to nominate ---------------------------------------------------------------------------------..165, 156 Resolutions To convey property to non~profit organizations -------------------------------------------- 281 To sell State property for nominal sum, valid -------------------------------------------- .29 To sell State property for nominal sum, unconstitutional --------------------------- 28
GUARDIANS AND WARDS $ee COURTS, ORDINARIES, this index.
HIGHWAYS Appropriations May not be used for projects other than appropriated -------------------------------- Ic78
~onds
Performance and payment bonds, when applicable -------------------------------------- 179 Substitution for Proposal Guaranty check ---------------------------------------------------- 10
Competitive bids Advertising rates -------------------------------------------------------------------------------------------------- 181
Condemnation Compensation must be adequate for personalty and -realty ------------------------ 276 Damages to personalty ------------------------------------------------------------------------------------- 271 Payment of award before final ailjudication ------------------------------------ ___________ 183 Proceedin in rem, interested person may intervene -------------------------------------- 182 Severance of property, damages for -------------------------------------------------------------- 186 Utilities, entitled to reimbursement --------------------------------------------------------------- 14 Valuation when buildings involved --------------------------------------------------- _______________ 273
Department Contracts with political sub-.division of State ----------------------------------------------- 329 Erection of traffic control devices ------------------------------------------------------------------- 400
-Employees Cannot withhold earned compensation _______ ------------------------------------------------------ 186
Liability Effect of judgment against department --------------------------------------------------------- "193
Municipal Streets Option of State to repair or pay maintenance sum ------------------------------------ '187
Options Not invalid because with employees --------------------------------------------------------------- 188
Overweight vehicles
SPQcial -permits ------------------------------------------------------------------------------------------------ 402

424

Page

HIGHWAYS-( Cont'd)

Right of Ways

Disposition of buildings on right of ways ------------------------------------------------------ 182

''Outdoor advertising'' ----------------------------------------------------------------------------------------- 189
Severance of property, damages for -----------------------------------------"------------------- 186 Utilities on railway rights of way ------------------------------------------------------------------- 190 When portion of building on _______________________________________ --------------------------------------- 273

Rural Roads Authority

Bond holders may not interfere with interstate highways ------------------------ 191 State Highway Board

Liability ------------------------------------------------------------------------------------------------------------------- 193 Titles to property

Reimbursement of counties for examing -------------------------------------------------------- 194 Traffic Control

Erection only by Highway Board

____ --------------------------------------------- 400

Yellow lines and their effect ___________________________ ---------------------------------------------- 401

HOUSING AUTHORITIES Members May not serve as officer for entity for which created -------------------------------- 40

INSURANCE

Agents

Defined ________ ---------------------------------------

195

Licensing ------------------------ ----"------------------------------------------------------------------------------------ 195

Companies

Advertising --------------------------------------------- _--------------------------------------------------------------- 196 Charter Amendment authorizing increase in capital stock -----.------------------ 197 Deposits -------------------------------------------------------- __________ -------------------------------------------- 198

. Licensing ----------------------------------.------------------------------------------------------------------------------- 199
Premium tax, $500 per year for default ----------- ---------------------------------------------- 201 Requirements to organize mutual company c___________________________________________________ 200

Liability Insurance
School buses ------------------------------------------------------------------------------------------------------120, 121
License Person selling through vending machine requires ______________,_________________________ 195

Property State property insured --------~~"----------~------~--'-'--------------"----------------------------------------- 287

Radio active contamination -----------------------------'------------------------------------------------------ 199

Vending machines

------------------------------------------------------------------------------------------ 195

INTOXICATING LIQUORS
Advertising In dry counties _______________________________________:_____________________ --~--------------:_______________________ 202

Credit Sales -------------------------------------------------------------------------------------------------------------- 203 Dry Counties
Possession more than one quart tax-paid liqu.or illegal ---.--------------------------- 205 Election to determine sale ., "Void" election --------------------------------------------------------------------------.,.-----'---'---------'--- 204

425

Pagt1

INTOXICATING LIQUORS-(Cont'd)
Malt Beverages County Commssioner may authorize sale in an:r county ________________, --------- 205
Possession More than one quart illegal in dry county --------------------------------------------------- 205 Non-tax paid liquor misdemeanor ______________________ -------------------------------------- . :........: 79
Wines Tax ---------'-------------------------------- -------------------------------------------------~- ----------------------------- 206

JUDGES See COURTS, this index.

JUDGMENTS See COURTS, this index.

JURIES See COURTS, this index.

JUSTICES OF PEACE See COURTS, this index.

LEGAL ADVERTISING See ADVERTISING, this index.

LEGISLATION See GENERAL ASSEMBLY, this index.

LICENSES Business Licenses

Disabled veteran exempt ----------------"--'-----

--- --'---------- ------------------------ 374

City Business County surveyor not subject to -------------------------------------- _______ ------------------------- 371

Commercial Upholsterers License required to renovate sofa beds ------------------------------------------ ________________ 292

Driver's Minors ----------------------------------------------------------: _____________________,____c _____________________________ 207

Non-residents ----------------------------------------------------- ________ --------------------------------------------- 208

Revocation ------------------------------------------------------------------------------------------------------------- 209

Firearms Dealers ----------------------------------------------------------------------------------.--------------- 362

Salesmen Authority cities ~nd counties to tax __________ -------'-----,,----,------------------------------- 371

LIENS Recording judgment creates on realty ---------------------~---~------------~------------------------ 49 -.
MOTOR VEHICLES License Tags Mail order applicants ------------------- ______________ ..... _______________ ----------------------------------- 209
Motor scooters require ----------------------------------------------------------------------------------------- 207 Non-residents --------------------------------------:____________________________________________________________ 211, 212 Penalties for late application __________________________:_:___'____________________________________________ 209
Trailers -------------------------------------------------------------------------------------------------------------------- 211 Where purchased _____:_______________________________________ ---~-------------:-~--------------------------- 212

Page
MOTOR VEHICLES-(Cont'd)
Operator's Licenses Minors -------------------------------------------------------------------------------------------------------------- .207 Non-residents -------------------------------------------------------------------------------------------------- 2:68 Revocation ----------------------------------------------------------------------------------------------------------- 209
Motor Scooters License required to operate ------------------------------------------------------------------------------ - 2t)7 License tags required. ----------------------------- --------------------------------- ____________ --------- 207
Motor Vehicle Safety Responsibility Act Discretion of Superior Court Clerk to approve bond ------------------------------------ 41'
Police Card Marking required ---------------------------------------------------------- --------------------------------------- 212:
Registration Requirements ------------------------------------------------------------------------------------------------------ 213
Sale of auto registration lists by Revenue Commissioner ------------------------~---- 3~5 School Buses
See EDUCATION, this index.
Violations Expired license tags, jurisdiction to try -------------------------------------------------------- 67 Jurisdiction of ordinaries to hear _____ -------------------------------------------------------------- 6'4-i
MUNICIPAL CORPORATIONS
Business Licenses Cannot discriminate between resident and non-resident ___________________________ 372 County Surveyor, not subject to ------------------------------------------------------------------------ 312: Disabled veteran exempt -------------------------------------------------------------------------- 3."1'4 May- be required in each city. or county where conducted --------------------------- 372
Council Members hold office until successors qna;lify-. ----------------------------------------------- 213
Liability Ope-ration of vehicles by city employees>. ------------------------------------------------------- 215
Mayor May- be member of county housing authw-ity. ----------------------------------------------- 40 No- right to try- state offenses. -------------------------------------------------------------------------- 216
Mayor and councilmen Suits against -------------------------------------------------------------------------------------------------------- 2'17
Policemen No authority outside city limits ______________________ --------------------------------------------- 74
Professional licenses Limitations on p_rofessional license taxes. -------------------------------------------------------- 3.'i3
Not political sub-division of State ----------------------------------------------------------------------- 329 Public Revenue
Limination on expenditure to aid private businesses ------------------------------------ 218 Streets
Dedication and acceptance without deed --------------------------------------------------------- 249 State may repair or pay sum for maintenance -------------------------------------------- 187 Taxation County school property not taxable --------------------------------------------------- 129

427

Page

MUNICIPAL CORPORATIONS-(Cont'd)

Zoning

State not bound by ________

219

NAVIGATION Hazards Placing car bodies into ocean ________ ------------------------------------------------------------------- 220 Navigable Streams Sunken timber, removal --------------------------------------------------------------------------------------- 220 Ocean Maintenance of bouys to mark fish drops within 3 mile limit -------------------- 167

NOTARIES PUBLIC See COURTS, this index.

NUISANCES Abatement procedure

--------------------------------------------------------------------------------- 221

PARDONS AND PAROLES

Board of Probation

Authority ----------------------- _______

223

Extradition

Waiver of rights ---------------------------

253

Pardons

Discussion of procedure for obtaining ----------------------------------- -------------------------- 224

Paroles

Effect receiving new sentence while on ----------------------------------------------------------- 259

Revocation, computation of sentence ---------------------------------------- . --------------------- 258

Probations

Conditions, who may impose ------------ --------------------------------------------------------------- 223

Sentences

Computation upon revocation of parole ---------------------------------------------------------- 258

Effect receiving new sentence while on parole -------------------------------------------- 259

PARKS Jekyll Island State Park Authority Not required to obtain dairy processing plant license -------------------------------- 5 State Department
Authority to construct residence for superintendent ------------------------------------ 225 Authority to require insurance by concessionaires ---------------------------------------- 227 Disposition of useless equipment ------------------------------------------------------------------ 227 "Public purpose" includes Forestry Training Programs ---------------------------- 226

PENSIONS AND RETIREMENTS

Employees Retirement Systems

Employee. defined, tag agents not included.---------------------------------------------------- 229

Ordinaries', Clerks, not included ---------------------------------------------------------------------- 232

Persons includable under ___

233

Firemen's Pension Fund

Board Trustees power to approve disability benefits -------------------------------- 236

Procedure fo'l." rejoining ------------------------------------------------------ ----------------------------- 237 Investment of funds

Discussed

235

428

Page

PENSIONS AND RETIREMENTS-(Cont'd) Solicitors' General Retirement Fund Computing salaries for payment into ----------------------------------------------------------- 70

PETROLEUM AND PETROLEUM PRODUCTS

Liquid petroleum gas

Bids required for sale to State _________________________________

313

Sellers to State, Qualifications ____________________________________________________________________ 310

POISONS See AGRICULTURE, this index.

POST MORTEM EXAMINNATIONS

Limitations on ------------------------------------------------------

---- 295

Witnesses, payment of medical examiners as

------------ ------ 238

PRACTICE AND PROCEDURE

Venue, against newspaper for libel in county where published __________________ 223

PRISONS AND PRISONERS

Board of Corrections

Authority None to contract to employ designated person ________________________________ 241

To construct clinic on prison property -------------------------------------- _______________ 239

To contract for natural gas for prison __________________ ------------------------ 240

To contract for plowing of prison lands ________________ ____

_ _____________ 240

To rent facilities from county ______________ ----------------------------------- ______ ______________ 241

Employees

Bonding of wardens and deputy wardens ------------------------------

243

Expenses when subpoenaed to testify in court -------------------- __________________ 244

Procuring signatures on warden bonds ____

______________ 245

Sale of timber from lands of ____________________ ________ _______________

288

Confinement During period of stay of execution _________ -------------------------------------------------------- 245

Convict Labor Use by county to construct public buildings _____ _______________ ______ __________ 35

Use to construct edifice for use by private group ------------------------------------- 246

Use in fire and eradication programs ________________ ________________

247

Use to move buildings for State agencies ___________ ------------------------- ________________ 250

Use on municipal streets ____________________ --------------- ------------------------- ---------------- 249

Use on private land ____

---------------- --------------------------------------------- 248

Use on Soil Conservation projects . ___________________ -------------------------

250

Extradition Waiver of rights ____________ -------------------

------------------------- ___252, 253

Wanted in foreign state for misdemeanor Probation
Original sentence subject to modification during

------------------------- ---------- 251 255

Public Work Camps

Counties may lease -------------------- __________ --------------------

254

Sentences

Consecutive sentences legal __ ----------------------------------------------------------------------------- 82 When run concurrently or consecutively ----------------------------------------------~--- 258

429

Page

PRISONS AND PRISONERS Sentences-( Cont'd)
Computation upon revocation of parole ------------------------------------------------------- 258 Effect receiving new sentence while on parole ___ ------------------------------------- _ 259 New sentence "computed from this date" consecutive when ---------------- ___ 260 Original subjeet to modification during period of probation ________ _____ ___ _ 255
Suspended sentence has effect of probation ____ ---------------------------------- ___ _ 255

PROFESSIONS, BUSINESSES AND TRADES

Barbers ~May not instruct unle-ss properly licensed

Chiropractics

Renewal of license ----------------------------

Employment Agencies

License required of veterans ______________________ ----------------------------------------------------- 263

Must re-register under Ga. Laws 1959, p. 283 ______ -------------------------------------- 264

Foresters

Granting license by reciprocity _______________________ --------------------------------------------- 266

Landscape Architects

Who included ____________ ------------------------- _______________ ------------------------------------------------------ 266

Licenses

Authority of Municipal Corporations to tax

373

Nursing

Wearing of "RDN" ------------------------

268

Real Estate Brokers

Reinstatement of brokers license

269

State Commission meetings, where held

269

Used Car Dealers Act creating discussed ___ ------------------------------------- ----------------------------- ______________ _ 269

PROPERTY

Condemnation

Damages to personalty ------------------- ___________________ ---------------------------------------------- 271

Personalty, adequate compensation required -------------------------------------------------- 276 Valuation when buildings involved ______________ __________________ ___________________ 273

County

Disposal by County Commissioners authorized _______________ _____________

40

County Board of Education

Sale of --------------------------------------------------------- ______________ -----------------------------------

107

Deeds

Forms and requisites ______________________ ---------------------------------------------- ---------------------- 274

Witnesses ------------------------------------------ ----------------------------------------------------------

275

Easements

Over State property, only granted by General Assembly _____ --------,--------- 285

Landlord and Tenant

, Death of Landlord only owning life estate _____ ---------------------------------------------- 275

J.,iens

Recording judgment creates _____________:________________ ------------------------------------------------ 49

-~ife Estates , Jj:ff()Ct on t~nancy by death of holder who is landlord ---------------------------------' 275

431)
Page
PROPERTY-(Cont'd) Personalty Adequate compensation required when condemned -------------------------------------- 276 Purchase by Federal Government ----------------------------------------------------------- ___________ 277 Realty Acquisition by State ---------------------------------------------------------------------------------------- 278 Sale, proceeds from estate for years -------------------------------------------------------------- 279 State Conveyance of property to non-pro!it organization ------------------------------------ '281 Conveyance to County Board of Education by Board of Regents ------------ 280 Conveyance to non-profit organization by Board of Regents ------------------- 280 Disposition useless equipment by Parks Department -------------------------------- 227 Easements over only granted by General Assembly ----------------------------------- 285 Insurance on _________________________________ ----------------------------- ___ .---------------------------------------- 287 Inventory ----------------------------------------------------------------------------------------------------------------- 287 Not necessary for State to acquire title to land county leases -------------------- 254 Old State Farmers' Market under Board of Education ------------------------------- 135 Sale for nominal sum invalid ------------------------------------------------------------------------- 28 Sale for nominal sum valid -------------------------------------------------------------------------- 29 Sale of timber from lands of -------------------------------------------------------------------------- 288 Sale of timber from State Forests ------------------------------------------------------------------- 288 Transfer between departments ----------------------------------------------------------------------- 287 Trespass on, how prohibited ------------------ _________ --------------------------------------------- 289 Trespass, how prohibited on State property --------------------------------------------------- 289 Valuation When buildings on condemned property __________ ---------------------------------------------- 273
PUBLIC HEALTH County Board County Superintendent of Schools is member of ----------------------------------------- 290 Meetings not required to be public __________________ ---------------------------------------------- 291
Hospital Authority Act of 1941 --------------------------------------------------------------------------- 291 Mattresses
Sofa-beds included, license required to renovate ---------------------------------------- 292 Milledgeville State Hospital
Authority a:f State Board of Health over ----------------------------------------------------- 293 Employee benefits ----------------------------------------------------------------------- ------------------- 296 Limitations on autopsies of deceased patients --------------------------------------------- 295 State Board Authority over Milledgeville State Hospital _-------------------------------------------- 293
PUBLIC RECORDS See also STATE GOVERNMENT, this index. County Tax Books and Records open to public ----------------------------------------------- 378
No provision to charge for inspection ------------------------------------------------------------- 378 Inspection
Department of Public Safety ---------------------------------------------------------------------------- 332 Department of Public WeJifare ------------------------------------------------------------------------- 330

431

Page

PUBLIC RECORDS-(Cont'd)
Preservation and Reproduction Laws pertaining to discussed ----------------- ---------------------------- -------------- -------------- 300

PUBLIC SAFETY

Department of Public Safety

Crime Laboratory

Blood test samples kept 12 months and destroyed

302

Police cars

Marking required ______________________ ------- _______________ _

212

PUBLIC SERVICE COMMISSION

Authority

To revoke Certificate of Public Convenience

---- - 303

Jurisdiction None over intrastate shipment of federal property ------------------------- __________ 304

Over city natural gas system portion in county ________________________

----- 305

Mergers

Legal effect of railway company mergers ---------------------------- _____________________ 306

PUBLIC WELFARE

See also STATE GOVERNMENT, this index.

Eligibility of recipients Effect of having illegitimate children _______________ ------------------------------------------- 308

Total Disability Procedure to secure benefits

---- 309

PURCHASES

State

Bids required ------------------- __________________ ---- ---- _______________ ------------- _------------------------- 313

Foreign products _________

311

Supervisor of Purchases

Authority ------------------------------ --------------------------------------------------------- ---------------------- 311

Supplies -------------------------------------------------------------------------- ---------------------------------------------- 313

Qualifications of bidders ___________ ------------------ ___________ ---------------- _______ ------------------ 310

State Department of Insurance not under ------------ --------------------------------------------- 287

RESIDENCE See DOMICILE and RESIDENCE, this index.

SAVINGS AND LOAN ASSOCIATIONS See DOMICILE and RESIDENCE, this index.

SIGNATURES Facsimile signatures on contracts -------------------------- ____ --------------------------------------- 32 No requirement wives use "Mrs." ---------------------------------------------------------------------- 84
SECRETARY OF STATE Bonds Filed by carnivals, extent of coverage ___ -------------------------------------------------------- 22

432

Page

SOLICITORS See COURTS, this index.

SOVEREIGN IMMUNITY

Agriculture Extension Service

6

STATE GOVERNMENT Appropriations May not be used for projects other than appropriated ______ ----------- 178 Contracts Acceptance of low bid forms binding contract ------------------------------- ________________31

Department of Commerce
May receive and expend Federal funds ------------------------------------------------------------- 313 Succeeded to powers and functions of Planning Commission ____________________ 313

Department of Defense

Civil defense agreements reviewed ____________________________________________________________ 315

Local civil defense directors _____________

_________________________________________________ 314

Department of Public Welfare Educational leave for employees ___________________________ ---------------------------------------- 317 Records not under "Open Records Law" ___________ ------------------------ ----------------- 330

Department of Veterans Service Director's authority to modify

Merit System classifications

318

Duties of Director ___________ _

318

Employees

Aliens ---------------------------------------------------------- ___ ----------------------------------------------------------- 320 Cannot withhold earned compensation from -------------------------------------- ____________ 186

Educational leave ---------------------------------------------------- ---------------------------- _______________ 317

Game and fish employees under Merit System -------------------------------------------- 164

Merit system, how invoked ----------------------------- ---------------------------------------------------- 327

State may secure soil options with

------------------------------------------------ 188

Subsistence allowance for wildlife rangers ---------------------------- _______ 171

Expenditure of State funds When authorized to municipalities ___ ---------------------- ___________________ ____________ 321

Georgia Commission on Alcoholism Production of records for court _____ ------------------------------------------------------ 322 Release of patients to arresting officer -------------------------------------------------- 322 Use of faclities --------------------------------------- ---------------------------------------------- 323
Georgia Historical Commission Damage to markers __________ ----------------------------------------------------------------------- 324 Disposition of receipts ------------------------------------------------------------------------------------- 325
Georgia Real Estate Commission meetings, where held ______ ------------------------- 329

Great Seal

Use of ----------------------------------------------------------------------------------------------------------------- 326 Merit System

Game and Fish employees under -----------------------------------------------------------------,----- i64
How invoked ---------------------------------------------------- -------------------------------------------------------- 327 Merit System ---------------------------------------------------------------------------------------------------------- 318

433

) "'.

STATE GOVERNMENT-(Cont'd)

Political Sub-divisions ----------------------------- ______ _____ __ __ ------------- ____ ---

329

Property

Transfer between departments _______

287

Public Records ------------------------------------------ ____

332

Inspection

Department of Public Safety records

332

Department of Public Welfare records

330

State Literature Commission

Operating procedure ------------------------------------- ___________________________________ _

328

State Planning Commission

Abolished --------------- _____ -----------------------------

313

STATE LITERATURE COMMISSION See STATE GOVERNMENT, this index.

STATE OFFICIALS Auditor Authority ___ ------------------------- _____________ ___ _____ ___ ___________ _______ _________________________ __ __ 333

Commissioner of Agriculture See AGRICULTURE, this index.

Qompensation

Georgia Milk Commission ___________

9

Comptroller General

Power to invest retirement funds

235

Conflict of interest

Faculty member selling own texts

--- 334

Ex-officio offices

Superintendent Schools

--- 337

Revenue Commissioner

Authority to sell auto lists ________________ ------------------------------------- ______________________ 335

Salary ---------------------------------------------------------------- -------------------------------

336

Sales to county boards of education by State Officials not prohibited ______ 106

Secretary of State

Release of bonding company from terms of bond _______

336

State Board of Education

Expenses of members ______________ ___________ ___

132

State Superintendent of Schools Not ex-officio member Nuclear Advisory Commission _____________________ --- 337

STATUTES OF LIMITATION Insolvent Costs and Funds Barred after seven years from accrual date ________ ------------------------------------------ 47 Minors, do not normally run against ---------------------------------------------------------------- 403

TAX COLLECTORS, COMMISSIONER AND RECEIVERS Compensation Additional compensation discussed ____________________ ----------------- --------------------------- 388 Commissions discussed ____ ------------------------ ------- ___ ------------------------------ --------------- 386
Duties an dresponsibilities Personally liable for stolen funds ---------------------------------------------------,-----------,--- 388

Page

TAX COLLECTORS, COMMISSIONER AND ;RECEIVERS-(Cont'd)
Jurisdiction Permits to purchase explosives ________________________ ---------------------------------------------- 389

TRADEMARKS Cancellation After ten years if not renewed ___ ______ ___ -------------------------------------------------------- 396 Registration, discussed _______ --------------------------- -------------------------------------------------------- 398 Discussed, with grounds for refusal --------------------------------------------------------------- 400

TRADING STAMPS Misdemeanor to give away under certain circumstances -------------------------------- 389

TRAFFIC LAWS Crossing yellow line _______ _

----------------------------------------------------------------------------- 401

Enforcement

Erection of trafl'ic-control devices _______ ---------------------------------------------------------- 400 Illegal passing

What constitutes _________

------------------------------------------------------------------------------ 401

Overweight vehicles

Special permits ------------------------------------------------------ ---------------------------------------------- 402 Police Cars

Marking required ________________ ---------------------------------------------------------------------------------- 212

TRUSTS Banks with trust powers May deposit funds at interest in own bank ---------------------------------------------------- 20
Cy Pres, law re,lating to cited --------------------------------------. --------------------------------------- 390

UNIVERSITY SYSTEM OF GEORGIA Board of Regents

Agriculture Extension Service, Liability -------------------------------------------------------- 6 Conveyance of property to County Board of Education -------------------------------- 280 Conveyance of property to non-profit organization ------------------------------------ 280 Discussion of "employee status" ---------------------------------------------------------------------- 390

Emp,loyees

Discussion of "employee status" ------------------------------------------------------------------------ 390

Faculties

Member selling own text ---------------------------- .. ________ --------------------------------------------- 334

Georgia State College for Women

Use of specific bequests in a will -------------------------------------------------------------------- 392

Junior College Act of 1958

Pertains only to government operated colleges ------------------------------ __

392

Liability

For injuries to students on field trips ------------------------------------------------ ___________ 393

Scholarships

Certain types prohibited as gratuities ----------------------------------------------------------- 395

TAXATION Ad Valorem
Adjoining tracts may be joined ______________ ------------------------------------------------------- 338

Page
TAXATION-(Cont'd)
Exemp.tions Private clubs for purely public ebarity _____ ----------------------------------------- 338
Homestead Exemption Applicability to house trailer on rented land --------------------------------------------- 342 Applicant must live on property ----------------------------------------------------------------- 340 Application when property in more than one wunty ------------------------------- 342 Date right to exemption accrues --------------------- ---------------------------------------- 344 Effect of merger independent school- system with- county ------------------------- 348 Eljgibilij;y discussed ------------------------------------------------------------------------------- 344 Eligibility of disabled vetel'ans ----------------------- ____ --------------------------------- 340 Eligibility of veterans ___________ ------------------ _______________ ------------------------------------ 346 Family group entitled to only one exemption ---------------------------------------------- 343 Municipal taxes not affected ----------------------------------------------------------------------- 339 Not exempt from levy to WY hozui.debts ____ ------------------------------------------ 347 Rented property adjacent to homestead -------------------------------------------------- 339
'Imports, 'Original package" rule ---------------------------------------------------------------- 349
'Loan companies- subJect to ---------------------------------------------------------------------------------- 375
Payment, on realty, separately after fi.fa. ---------------------------------------------------- :{377
.Personalty Situs of property in business ----------- ---------------------------------------------------------- 350 Situs of shrimp Boats ------------------------------------------------------------------------------------ 350 Valued separately 'from realty --------------------------------------------------------------------- 357
.Realty Valued separately from personalty ------------------------------------------------------------------- 357
Situs Personalty, shrimp boats -------------------------------------------------------------------------------- 350 Personalty taxable at residence 6f owner -------------------------------------------------- 353 Personalty used in business ------------------------------------------------------------------------- 350 Valuation Discussion of "All Share" plan of raising property valuations ------------ 353 Realty and personalty are valued separately ----------------------------------------- .{357
Board of Compromises and Settlements Jurisdiction of board discussed ---------------------------------------------------------------------- 358
Collection Effect suspension of collection by Governor -------------------------------------------------- 360
County Board of Tax Assessors Membership, determining number ---------------------------------------------------------- 34
'County Board of Tax Assessors Membership, determining .number ------------------------------------------------- 34
:County levies for educational purposes Fiscal authorities must follow recommendations of Board of Education ---------------------------------------------------------------- 37
County Tax Books and Records
Open to public --------------------------------------------------------------------------- 378 Estate Tax
Non~residents, sitDS of intaiJgihies iliscllS&ekl ------------------------ 366

486

Page

TAXATION-( Cont'd)

Federal Excise Taxes

Authority to issue certificate of e:l{emption

361

Firearms

Dealer license tax discussed ~~~~~~-~~~~~ -~~~~~~--~~~~~~~~~~~~ ~ ~-~~~~~~~~~~~~~~~-~~~~~~~~~~~~~

362

Homestead Exemption
Applicability to house trailer on rented land ~~ ~~~~~~~~~~~-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 342
Applicant must live on property ~~~-~-~ ---~~~~-~~~------------~-~~~----~----~---~----~-----~-'--~---- 340 Application when property in more than one county -----~-----~---~~---------------~--- 342
Date right to exemption accrues ----------------------------------------~~--------------------- 344 Effect merger independent school system with county system -~~-~------------ 348 Eligibility discussed ---------~~---~-----------~----------- ---~------------------------~---~-~~-----~~-----------~- 344 Eligibility of disabled veterans -~--------~---- ----~~ ------~~-~~~-~~~~-~~~~~~~~~~~~~~~~~~-~~-~~~-~~~-~-~ 340 Eligibility of veterans ----~-------~----~~---~-------------~-------~~~--~~-----~--~~-------~---~ ~~ ----~~--~--- 346 Family group entitled to only one exemption --------~'-~~-----------~----------------------- 343 Municipal taxes not affected ---------------------------~~-----~------'------------------~----------~- 339 Not exempt from levy to pay bond debts --~~------~~---~-~----------~-~---,-----~~------------- 347 Rented property adjacent to homestead -~--------~~---~~------------~------------~------------- 339

Incme Tax Depreciation, must be reasonable ---~-----~- -~-- ----~-~ --~~-----~-------~------~----~----~---------- 363 Exemptions, Korean veterans -------~-----------------~----------~~----~--~~~~~~~~~-~-~~~~~----~~--~-- 365 Net operating loss carry over -------~----------~~----~-----------~------~------~~------------------- 363 When company doing business in state --------------------------------------~-------------------- 366

Insurance Companies Premium tax $500 per year for default --~~-~~--------~--~----- -----~---~-~----~~~~-~-~~---~~---- 201

Intangible Tax , Rate for bank shares ---------~~--~------~--~~~ ---~---~~~--~-~-~----~-~~~~~--~~~---~~~---~~~~~~-~~~--~~~---~~~- 369
Situs when property securing note is located in another state . ~~-~~~~---~~~----~ 368 Timber contracts subject to ------------------~-~~~~-~~--~------~~----~~---~-~~-~~~--~--~~-~--~~-----~--- 379 United States not subject to ----------~--- -----~--------------------~-----~~----~-----~~-----~--------- 368 Banks not subject to ---~----------------------------~~-----------~ ----~~----------~~~-----~~----~~----~~ ______ 368

Intangibles

Loan Companies subject to -------------------- --------~------------

~- -~~-----~----- 375

Owned by non-resident, may be subject to estate tax

~~------------- 366

Intoxicating liquors

Wine ------------~-----------------~-------------------------~-------------------------~-----~~~----~~------~--------------- 206

Licenses
City may not discriminate between resident and non-resident ~-----~-------~~~- 372 County Officers not subject to -----------------------------~-------~------~~-----~-----~---------------- 371 May be required in each city or county where conducted ------~~~-----~~----~~~----- 372 Professional, city and county authorized but limited ---~------~~~-------~~-------------~ 373 Salesmen, authority cities and counties to tax ------~~-------------~~~-------------------- 371 Veterans Exemption
When .applicable -------~----------------------------~--~------~---------~--------------------------~~------------- 374
License Tags

See MOTOR VEHICLES, this index.

Loan Companies Subject to ad valorem and intangible .-tax~ ----------'-------C----------------------------'- 375

"437

Page

TAXATION-(Cont'd)

Motor Fuel Tax Refund for use

in

boats

-----------------------------------"--------------------"---~-:__________________________ 376

When kerosene ceases to be subject to -------------------------------------------------------0---- 376

Motor Vehicles

Registration requirements -------------------------------- ------------::------------,----------- ------------ 213

-Payment

,

Ad valorem on realty, payable separately ---------------------------------------------------- 377

Penalties May be waived under Sales and Use Tax ------------------------------------------------------~ 385

Professional, see Licenses.

Recording Tax Banks exempt __________________________ -------------------------------------------,----------------- _________ ------~ 368 Situs where security not in state -------------------------------~------------------------------------ 368 Timber contracts subject to ____________ ------------------------------------------------------------------ 379

United States exempt ----------------------------------------------------------------------------------------- 368

Records Inspection

No provision to charge for inspection

378

Refunds Authority of cities and counties _______________ -------------------------------------------------------- 379

Sales and Use Tax

Act discussed -----------------------------------------------------------------------------------------------

381

Applicability Rentals of tangible personal property ------------------------------------------------------- 382 Sales made to Federal Government included ------------------------------------------- 383
Sales of property for use in interstate commerce ---------------------------------------- 381 Soldiers and Sailors Civil Relief Act gives no immunity ----------------------- 385 Penalties, may be waived ---------------------------------------------------------------------------------- 385

Settlement of claims

Authority of cities and counties ------------------------------------------------------------------------- 379 Jurisdiction of Board of Compromises and Settlements ---------------------------- 358

VENUE Against newspaper for libel is country where published _________ ---------------------- 223

VETERANS Licenses Disabled veteran exempt -------------------------------------------------------------------------------- 374
Eligibility for homestead exemption ----------------------------------------------------------340, 346 Veterans' certificate of exemption does not relieve
from payment of regulatory license fees -------------------------------------------------------- 263

WAREHOUSES See AGRICULTURE, this index.

WILLS AND ADMINISTRATION OF ESTATES Year's Support
Costs due ordinary for conveying -------------------------------------------------------------------- 61 For widow or child --------------------------------------------------------------------------------------------- 403

Page
WORKMEN'S COMPENSATION Counties, Required to obtain insurance ---------------------------------------------------------------------------- 404 Coverage Distinction between officer and employee discussed ------------------------------------ 407 Coverage and Benefits County employees covered --------------------------------------------------------------------------------- 404 Employees of County or city school boards covered ---------------------------------- 406 Partial waiver or rejection not autliorized by employee --------------------------- 404 School system employees covered ----------------------------------------------------------------- 408 Schools Education funds may not be used for----------------'--------------------------------------------- 125
ZONING AND PLANNING See MUNICIPAL CORPORATIONS, this index.