Opinions of the Attorney General 1960-61

OPINIONS
of
THE ATTORNEY GENERAL
1960-61
EUGENE COOK
ATTORNEY GENERAL
BENJAMIN L. JOHNSON AND P. T. McCUTCHEN, JR. Compilers
Printed by LONGINO & PORTER, INCORPORATED
PRINTERS HAPEVILLE, GEORGIA

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 1960-61.
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 OF GEORGIA
WILLIAM CLIFTON____________________________________________________Nov. 12, 1754-1764 THOMAS BARRINGTON, pro tern (absence of Clifton) ______1758 CHARLES PRYCE ------------------------------------------------------------------ ___1764-1776 WILLIAM GRAEME (absence of Pryce) _______________________________1768 JAMES HUME (absence of Pryce) __________________________________________1770-1776 JAMES ROBERTSON (absence of Hume) ______________________________1776 WILLIAM STEPHENS _____ --------------------------------------- ___________________1776-1780 JOHN MILLEDGE ----------------------------------------------------------------------1780-1781 SAMUEL STIRK __________________________________________________________________________1781-1785
NATHANIEL PENDLETON------------------------------------------------------1785-1786 MATTHEW McALLISTER ________________ ------------------------------- _______1786-1791 GEORGE WALKER ___________________________________________________________________1792-1795 DAVID B. MITCHELL_______________________________________________________________1796-1806
ROBERT WALKER --------------------------------------------------------------------1807-1810 J 0 HN FORSYTH____________________________________________________________c___________1810 RICHARD H. WILDE__________________________________________________________________1811-1815 R 0 BERT L. GAMBLE________________________________________________________________1816-1819
(From 1819, the Solicitor General of the Middle District served as .acting Attorney General. The office was revived in 1868.) HENRY P. FARROW___________________________________________________________________1868-1872
N. J. HAMM0 ND--------------------------------------------------------------------------1872-1877 R 0 BERT N. ELY-----------------------------_____________________________ _______________1877-1880 CLIFFORD L. ANDERSON________________________________________________________1880-1890 GEORGE N. LESTER__________________________________________________________________1890-1891
W. A. LITTLE------------------------------------------------------------------------------1891-1892 J. M. TERRELL----------------------------------------------------------------------------1892-1902 B0 YKIN WRIGHT ----------------------------------------------------------------------1902-1910 J 0 HN C. HART____________________________________________________________________________1902-1910 HEWLETT A. HALL__________________________________________________________________191 0-1911 TH0 MAS S. FELDER__________________________________________________________________1911-1914
WARREN GRICE -------------------------------------------------------------------- ___1914-1915 CLIFFORD WALKER -------------------------------------------------- _____________1915-1920 R. A. DENNY________________________________________________________________________________1920-1921 GEORGE M. NAPIER ________________________________________________________________1921-1932 LAWRENCE S. CAMP________________________________________________________________1932-1932
M. J. YE0 MANS-------------------------------------------------------------__________ __1933-1939 ELLIS G. ARNALL_____________________________________________________________________1939-1943
GRADY HEAD ______C---------------------------------------------------------------------1943-19 45 EUGENE CO0 K -------------------------------------------------------_____________________1945
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PREFACE
" ... the second duty of the sovereign [is] that of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice . . . Upon the impartial administration of justice depends the liberty of every individual . . . in order to make every individual feel himself secure in the possession of every right which belongs to him . . ."
Adam Smith, in The Wealth of Nations.
An exact administration of Justice will perhaps never be truly realized. But among the major tools in any labor towards that goal is consistency in interpretation and application of laws enacted by men to better govern and protect themselves. To be consistent there are two alternatives. First, the same person must always and under all circumstances interpret the same section of law. It requires no reflection to conclude immediately this is impossible in our complex civilization of today. The second alternative stems from the admitted failure of the first. If the same person cannot always decide that law, and if others must, we may only gain comsistency by having the decisions and opinions of the original interpreter made available to others. They may then accept or reject these, depending upon the situation, but certainly the previous ideas expressed in the opinions will be persuasive. The formal name for such a system, as has been oversimplified in this illustration, is "stare decisis," and it is defined usually as the adherence of courts to a principle once it has been established. It is because of this respect for precedent that we may confidently proceed in business negotiations, in drawing a will for disposition of our wealth and protection of our survivors, in the purchase of a home. Moreover the stare decisis principle lends stability to a Republican form of government such as ours, subject to modifications to meet changing conditions as reflected by appropriately enacted legislation.
In deciding cases (interpreting law as applied to a particular factual situation), appellate courts render opinions which are later bound and published so as to be available to contemporaries and to future jurists. The office of Attorney General of the State of Georgia does not decide cases. However, as a legal and judicial arm of the State's Government, it is constantly called upon to interpret laws and their applications. These opinions, though subject to modification, change
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or repeal by appellate courts or the General Assembly, are accepted as persuasive by the courts, and are binding upon State officials to the extent they would be without legal protection should they act contra the holdings expressed in the opinions. Their impact is not limited solely to governmental interest but reach every facet of law. For this reason they are requested by many persons- the Governor, State Department heads, members of the General Assembly, county officials, attorneys and citizens.
Some years ago it became the practice of the Attorney General to compile from among the hundreds of opinions rendered each year those with sufficient general interest to warrant publication, and have these bound and made available for the edification of the citizens of the State. Since this practice was begun, these volumes of Opinions of the Attorney General have taken their place as standard references on the shelves of every department of the State Government, and have gained widespread acclaim and usage in thousands of other offices, private, professional and academic, throughout the State.
Also included in each volume is a short discussion of the office of Attorney General and the State Department of Law. It is hoped the material included in this volume will assist the reader in better understanding the work and responsibilities of this office.
Many thanks are extended to John Tye Ferguson, a former Assistant Attorney General, and to the Harrison Company, and I wish to gratefully acknowledge their permission to use material from the Encyclopedia of Georgia Law in preparing the history for this volume. I wish to also express my thanks to Ted McCutchen and Ben Johnson who spent long hours in compiling the Opinions.

Atlanta, Georgia January, 1962

THE ATTORNEY GENERAL

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EUGENE COOK Attorney General
Georgia's only Attorney General to be elected President of the National Association of Attorneys General- 1954.

THE ATTORNEY GENERAL AND THE DEPARTMENT OF LAW
History of the Office of Attorney General
During the period immediately after being established in 1732, Georgia enjoyed a rather unique status in the annals of modern judicial history. Under the government of the Colony by the Trustees, local courts were called lawyerless courts- no practitioners of law were permitted in the colony- 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".
Though the Trustees permitted no lawyers in Georgia, they did 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.
Eventually, after expiration of the proprietary charter and reversion of the colony to the British Crown on June 20, 1752, the Colonial method of government was changed and a governor was appointed for the Province of Georgia. One of the powers granted to the Governor was to constitute the courts and define their powers. At this time, the King, on August 6, 1754, appointed William Clifton, Esquire, a distinguished English lawyer, to be Attorney General of Georgia. He reached Savannah on November 12, 1754, and immediately took the oath of office. Prior to arrival, Clifton had also been appointed to the Governing Council by the Governor, and upon learning of this at their November 12 meeting, he asked for additional time to consider this second appointment, fearing the duties of the two offices might be conflicting and overburdensome. Thereafter, no conflict appearing, Clifton also took the oath as a member of the Council.
On November 13, only one day after Clifton's arrival, it was proposed in the Council that consideration be given to the constituting of Courts for the new Crown Colony of Georgia. Clifton, as Attorney General, was requested to study the matter and render his opinion on the subject to the Governor and the Council. 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"
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and for a separate Court of Chancery to be held before the Governor and Council for determining all matters of equity.
Clifton had a short leave of absence in 1758, during which time Thomas Burrington, Esquire, acted as Attorney General Pro Tern. On returning to Georgia, Clifton resumed his duties, and evidently gave great satisfaction, for in 1764, when he was appointed Chief Justice of Florida (then in control of the British), the Common House of Assembly of the Province of Georgia resolved, "That the thanks of this House be given to the Honorable William Clifton, Esquire, late 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."
Thus it is seen that the first lawyer authorized to practice in Georgia was its own first Attorney General, and we have every reason to be proud of this first lawyer on our long and lengthening Court Roll.
The infant state in its first constitution in 1777 made no mention of the office of Attorney General, although records indicate there was in fact such an official. In subsequent constitutions, adopted prior to 1868, reference is made to an official called "Attorney-General" or "State's Attorney." However, the duties of this official seem to have been more akin to that of a present day solicitor general than either the common law attorney general or the present day attorney general in Georgia. See Constitution of 1789, Art. II, V; Constitution of 1798, Art. III, III; Constitution of 1861, Art. IV, III; Constitution of 1865, Art. IV, III.
Beginning with Sir Clifton, some thirty-seven individuals have held the office of Attorney General or Attorney General Pro Tern. The actual time served in office by each individual has varied from less than one year to almost seventeen years. (See page iii.)
The foundation of the present office of Attorney General in Georgia was set down in the Constitution of 1868 which authorized the establishment of the office of Attorney General and defined the constitutional duties of the official in terms which have been altered very little through a period of over ninety years and three constitutions.
The office of Attorney General is what is known as a constitutional state-house office. The Attorney General is one of that group of officials who, being in control of certain departments or functions of state governments, are directly answerable to the people of the State rather than holding their office by virtue of appointment by the governor or election by the General Assembly. Moreover, the office of Attorney General differs from that of other constitutional state-house
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offices in that it is a judicial as well as an executive office. Wood v. Arnall, 189 Ga. 362, S.E.2d 722 (1939).
The office of Attorney General was the fourth constitutional statehouse office created, being ante-dated only by the offices of Secretary of State, Comptroller General, and State Treasurer. Under common law the office of Attorney General predates even the office of Governor by virtue of the commission from King George in November 1754, at which time the Colony was governed by Trustees.
Qualifications, Election and Tenure of the Attorney General
The Constitution of the State of Georgia prescribes the qualifications required for a person to hold the office of Attorney General. See Georgia Constitution of 1945, Art. VI, XIII, Paragraph I (Ga. Code Ann., 2-4801) and also Georgia Constitution, Art. V, II, Paragraph IV (Ga. Code Ann., 2-3104). These requirements are the same as those prescribed for Justices of the Supreme Court and Judges of the Court of Appeals, and Judges of the Superior Courts-that an individual be at least thirty years of age, a citizen of the state for three years, and shall have practiced law for seven years.
The Attorney General is elected by the persons qualified to vote for members of the General Assembly at the same time, for the same terms and in the same manner as the Governor, i.e., for a four-year term. Rules governing the election of the Attorney General are the same as those governing elections for members of the General Assembly. He may succeed himself and cannot be removed from office except by legislative impeachment.
The compensation of the Attorney General was very recently revised by Ga. Laws, 1961, p. 131 (Ga. Code Ann., 40-1612.1). The act provides a base salary with increments based upon length of state service. Additionally, a predetermined expense allowance is awarded in lieu of any furnished automobile transportation, or other expenses and services usually made available to state officers, and compensation is also awarded for service on each of several state boards, agencies and commissions.
Powers and Duties of the Attorney General
The Constitution of Georgia imposes three specific duties upon the Attorney General, and in addition requires him to "perform such other services as shall be required of him by law." The specific duties imposed are: (1) to act as the legal adviser of the executive department; (2) to represent the State in the Supreme Court in all capital felonies; and (3) to represent the State in all civil and criminal cases in any
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court when required by the Governor. Most of the statutory duties imposed upon the Attorney General are found in Chapter 40-19 of Georgia Code Annotated, and these are, in the main, an elaboration of the duties imposed by the constitution.
However, one important additional duty imposed by statute is the authorization for the Attorney General to conduct investigations into the affairs of agencies of state government, and to prosecute persons for violations of any criminal statute in dealing with the State. The Attorney General also has the duty of advising with the General Assembly, either branch thereof or any committee of the same, and to aid in the preparation of proposed legislation.
It should be noted the duty of the Attorney General in legal matters is complete and exclusive as to every department of the State other than the judicial and legislative branches. Other departments of state government are prohibited from employing counsel in any manner whatsoever and no money may be spent for legal services other than that appropriated to the Department of Law.
In addition to performing the legal services required of him by law, the Attorney General also functions as a member of some thirty-odd state boards and agencies, varying from membership on boards of trustees of retirement systems to approving the acquisition of land by the State.
History and Organization of the Department of Law
The Department of Law was created in 1931 as a part of Governor Russell's re-organization of state government, for the purpose of consolidating all legal services performed for the state in one department under the direction of the Attorney General.
In the years immediately preceding this much needed overhaul of the governmental framework, different departments employed counsel and legal assistance pretty much as they chose. Enormous sums were spent for legal services, and some wag once jestingly observed there were perhaps more lawyers on the state payroll than members of the General Assembly. Conflicting legal advice and resulting cross directions and purposes between departments abounded. This was terminated by the re-organization which finally consolidated legal services of the State under one authority.
The act creating the department was extensively amended in 1943 Wa. Laws 1943, p. 284 (Ga. Code Ann., 40-1612 thru 40-1620)], and it is under this latter act, as amended, that the department presently functions, although some portions of the original 1931 act are still in effect.
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The Department of Law is headed by the Attorney General and consists of such number of Assistant Attorneys General as the Governor, with the approval of the Attorney General, shall deem to be needed. The Assistants devote their full time to the duties of their office and are prohibited from otherwise engaging in the practice of law. All of the Assistants are appointed by the Governor with the approval of the Attorney General, and subject to being confirmed by the Senate, with the exception of one Assistant- who is appointed by the Attorney General. Assistants may be removed by the Governor with the approval of the Attorney General, or by the Attorney General with the approval of the Governor. All Assistants are of equal rank, and the compensation of each is determined by the Attorney General.
In addition to the Assistants, other legal personnel present in the Department of Law include Deputy Assistant Attorneys General, Attorneys and law clerks, ranking in that order of duties and responsibilities. The Department of Law normally has approximately twenty experienced practicing attorneys serving in these capacities from Assistant to Attorney, and such law clerks as are required.
Though the Attorney General and the personnel of the Department of Law normally handle all legal work of the state, provision has been made by statute for appointment by the Governor of special deputy assistant attorneys general. Resort is at times made to appointments under this law (Ga. Code Ann., Section 40-1614) when work of a highly technical and specialized nature is required, or when, infrequently, the operating staff of the Department of Law is so burdened as to be unable to assume an unexpected additional legal problem and give it adequate attention. In instances of jury trials in a strange jurisdiction, local attorneys are sometimes employed under this law to assist in jury selection, gauging local temperament and such related aspects of properly and successfully presenting a case to the jury. These special deputies are not full-time, but are employed only for specific tasks and assignments, and their compensation is fixed by the Governor for the job rather than an annual or monthly stipend. They are often confused with the regular full-time Deputy Assistants, and for this reason the latter rank is used sparingly.
The Department of Law is vested "with complete and exclusive authority and jurisdiction in all matters of law relating to every department of the State other than the judicial and legislative branches thereof. The several departments, commissions, institutions, officers and boards of the state government are hereby prohibited from employing counsel in any manner whatsoever." In addition to this prohibition, the appropriation acts of the State provide that the appropriation to the law Department shall be the sole source of compensation
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for assistance necessary to carry on the legal duties of the state in the executive branch of government, and no other agency is authorized to expend funds for legal services unless such expenditure is made 100 per cent from federal funds.
The law specifically requires that an Assistant Attorney General be assigned to the Georgia Highway Department, one to the Georgia Revenue Department, an9- one to the Georgia Public Service Commission. With this statutory mandate as a nucleus, the Department of Law has been organized with an Assistant Attorney General being assigned to one or more of the various departments and agencies of state government. The Assistant so assigned has the primary responsibility for the legal affairs of his department, with the Attorney General himself exercising supervisory control over all activities of the Law Department, and appearing as chief counsel in all litigation.
In addition to strict departmental assignments, at least one attorney is engaged solely in the task of representing the State in capital felonies in the Supreme Court as required by the Constitution and laws of Georgia. In the Department of Law, there also exists a criminal division, the function of which is to conduct investigations into the affairs of the various departments of state government under the direction of the Attorney General, and which will be discussed later.
Statutory Powers and Duties of the Attorney General and the Department of Law
In addition to the powers and duties prescribed by the constitution for the office of Attorney General, the General Assembly has seen fit to prescribe certain additional functions and to elaborate upon those contained in the constitution. These functions are generally of two types; i.e., those involving services not strictly concerned with law, and those involving legal services which are generally performed through the Department of Law. The latter functions are generally found in Georgia Code Annotated, Chapter 40-16. The duties imposed by this chapter upon the Attorney General are to give opinions in writing on any question of law connected with the interest of the State, to prepare contracts in relation to any matter in which the State is interested, to attend criminal causes in any circuit when the solicitor general is prosecuted, to act as the legal adviser of the executive department, to represent the State in the Supreme Court in all capital felonies, and to represent the State in other cases in other courts when required by the Governor.
The Attorney General as head of the Department of Law is authorized to institute and conduct investigations into affairs of any department or agency of state government, and to prosecute persons violat-
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ing any criminal statute in dealing with or for the State. The Attorney General is also authorized to maintain civil recovery actions against any person for violation of any statute in dealing with the State which results in loss to the State.
The Attorney General functions strictly in accordance with statutory mandates. Contrary to many other jurisdictions, there are no "common law" powers of the Attorney General. "Where the constitution creates an office and prescribes the duties of the holder thereof, and declares that other duties may be imposed on him by statute, he has no authority to perform any act not legitimately within the scope of such statutory and constitutional provisions." Walker, Attorney General, ex rei. Mason v. Ga. Ry. and Power Co., 146 Ga. 655.
Specific Functions Performed
In addition to the general powers and duty imposed upon the Attorney General and the Department of Law to perform legal services for the departments and agencies of the executive branch of state government, the General Assembly has seen fit to impose certain additional duties of a legal nature. Three departments are specifically required to have an Assistant Attorney General assigned to represent them, and the Attorney General is specifically required by law to represent all these and all other departments and agencies of state government. Also, in addition to his function of providing legal counsel and assistance for the State, the Attorney General has some twenty other duties imposed upon him by law. Among these are such diverse functions as prescribing traffic docket forms, preparing and approving contracts, instituting suits to recover the value of military property upon request of the Adjutant General, bringing action at the direction of the Governor to restrain a foreign corporation from exercising powers not granted to corporations of this State, approving bond of the Inspector of Naval Stores, and representing the interest of the State as parens patriae and of the beneficiaries of charitable trusts in any attack upon them. Some of these, such as the duty to represent the State and beneficiaries in charitable trusts, are outgrowths of common law duties imposed upon an attorney general, while others, such as acting as an information agency under the Uniform Reciprocal Enforcement of Support Act were imposed because of the convenience of location of the office of Attorney General, and the potential legal problems involved in relationships with other states.
Notwithstanding these specific impositions of duties, in actual practice, the primary function of the Attorney General and the Department of Law is to be an attorney, representing the State of Georgia as its exclusive client. To perform this function, as with all lawyers,
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it is necessary to advise one's client as to legal consequences of his acts and to represent the client in litigation.
In addition to these activities, the Department of Law performs certain functions because of the public nature of the office of Attorney General, including representation of the State in all capital felonies in the Supreme Court, conduct of investigations into the affairs of the various departments of state government, and providing of assistance to the members and committees of the General Assembly.
Civil Litigation
As is true with most attorneys, an integral part of the duties of the Department of Law consists of representation of the various departments, boards and agencies of state government before the courts and administrative tribunals of Georgia and the nation. The Attorney General is required by both the Constitution and the Georgia Code to represent the state in all civil and criminal cases in any court when required by the Governor. In addition, the Attorney General is specifically directed to represent the state in all cases before the Supreme Court of the United States and to represent the Georgia Public Service Commission before the United States Interstate Commerce Commission.
The Governor is authorized to direct the Department of Law to institute and prosecute in the name of the State such matters, proceedings and litigation as he shall deem to the best interest of the people of the State. The Attorney General is empowered to prosecute in the courts of the State any official, person, firm or corporation for violation of any criminal statute in dealing with the state, and to file civil recovery actions in the name of the State against any person, firm or corporation, for violation of any statute in dealing with the State which results in loss, damage or injury to the State, any of its departments, adjuncts or taxpayers. The Governor also is authorized to direct the Attorney General to file and prosecute such civil and criminal actions.
As a practical matter, the office of the Attorney General very seldom engages in criminal prosecutions on the trial level. Most of the litigation handled by the Department of Law is civil or administrative in nature. This includes condemnation suits, tax proceedings, and numerous other suits necessary to secure an efficient operation of state government.
In addition to litigation in which the State or one of its departments is a party, the Attorney General is required to be served with a copy of the proceedings and given an opportunity to be heard in
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any case brought under the declaratory judgment law in which a statute or regulation of the State is alleged to be unconstitutional. The Attorney General also is required to be notified of any pending indictment against any state official charging him with malfeasance or malpractice in office, before such indictment is laid before a grand jury.
The Attorney General and the Department of Law are governed in litigation by the same rules that apply in ordinary law suits, with one important exception. In any case in which the State or an official of the State in his official capacity is a party defendant, intervenor, respondent, appellee or plaintiff in fi. fa., any verdict, decision, judgment, decree, order, ruling or other judicial action by any court in this state is void unless it appears as a matter of record that (a) the Attorney General was given five days advance written notice by the adverse party or his attorney, of the time set for the particular trial, hearing, or other proceeding at which the order involved was entered, or (b) that the Attorney General or an Assistant Attorney General was present at such trial, or (c) that the Attorney General or an Assistant Attorney General has, in writing, waived such notice.
Criminal Cases in Supreme Court
The Attorney General is specifically required by the Constitution and the Georgia Code to represent the State in all criminal cases in the Supreme Court which involve capital felonies. The Supreme Court has defined capital felony cases as those cases in which the death penalty might have been imposed, whether it is actually inflicted in a particular case or not.
The Department of Law files a brief in the Supreme Court in every capital felony case which is appealed to that court. In order that this constitutional duty of the Attorney General may be performed, the clerks of the superior courts of the state are required to furnish the Attorney General with an exact copy of the bill of exceptions and transcript in all capital felony cases at the same time as the bill of exceptions and transcripts are transmitted to the Supreme Court. A rule of the Supreme Court also requires that a copy of briefs filed in a capital felony case be served upon the Attorney General. The Attorney General represents the State in criminal cases in the Supreme Court of the United States.
Opinions
One of the statutory duties specified for the Attorney General to perform is "to give his opinion in writing, or otherwise, on any
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question of law connected with the interest of the state or with the duties of any of the departments" when required to do so by the Governor. As a practical matter, the Attorney General will render an official written opinion upon the receipt of a request thereof from the Governor or the head of any of the various departments of state government. These opinions deal not only with the specific laws governing the operation of state government, but also with the appli-
. cation of general principles of law.
In addition to official opinions, the Department of Law renders "unofficial" opinions as fully and adequately as time and official duties will permit. The Attorney General receives numerous inquiries from county, municipal government and other local officials, and from other public and private organizations, both within and without the State. The Department of Law has adopted the policy of replying to these requests for information as fully as possible, consistent with the fulfillment of official duties. 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.
Investigations
The Attorney General has been given statutory authority to institute and conduct investigations into the affairs of any department of the State. In the conduct of such an investigation, he is authorized to require the services and assistance of any state official. He is also authorized to compel evidence subpoena witnesses, inspect the records of any state department, and to require the production of books and records of any private person, firm or corporation which relate directly to dealings with the State. Any person, firm, corporation or state official who fails or refuses to submit documents or testify before the Attorney General shall be guilty of a misdemeanor.
As a result of these investigations, the Attorney General is authorized not only to prosecute criminal actions against persons violating criminal statutes in dealing with the State, but also to institute and maintain civil actions where loss, injury or damage has resulted to the State or its taxpayers. The Governor is authorized to direct the
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Attorney General to conduct an investigation into the affairs of any state department or official, and direct the institution of either criminal or civil action. However, except for sedition and subversive investigations, it should be noted that the power of the Law Department to conduct investigations is restricted to times other than when the General Assembly is in session.
In addition to these criminal investigations for criminal purposes the 1953 Sedition and Subversive Activities Act gave great responsibility to the Attorney General for making investigations into the background of prospe.ctive employees and possible subversive activities. Under this Act the Governor is authorized and directed to appoint a special assistant attorney general who shall work under the supervision of the Attorney General and the Governor and Attorney General are authorized and directed to call on all prosecuting attorneys, the director of public safety, sheriffs, county and municipal police authorities to furnish assistance as may from time to time be required. These authorities are specifically directed to furnish information and assistance. Failure to comply with these requests can result in convictions for misdemeanors.
At the present time, the investigatory powers of the Attorney General and the Department of Law are exercised by a criminal division with a staff of trained investigators.
Assistance to General Assembly
Another statutory duty of the Attorney General, through the Department of Law is, upon request, "to advise with the General Assembly, either branch thereof, or any committee of same, and to aid in the preparation of proposed legislation." In addition to this statutory duty to directly serve the General Assembly, the Attorney Gen-
. eral is also an adviser to the Legislative Counsel. Since the drafting of complicated legislation calls for legal knowledge of a highly technical nature, the Department of Law has always, to a certain extent, drafted legislation. Increasing calls for this service prompted the Attorney General to establish on an unofficial basis, in 1948, a Bill Drafting Unit as part of the Department of Law. Beginning as a comparatively small endeavor and growing rapidly, it met with enthusiastic response from members of the General Assembly. In 1951, an Act was passed officially creating the Bill Drafting Unit as a statutory part of the Department of Law. This arrangement made it possible for bill drafting to be done by specially trained attorneys, under the direction of the Attorney General, relieving members of the General Assembly of the necessity of seeking outside legal assistance. By developing specialists of this type, even though no claim to infalli-
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bility is made, the possibility of legislation being declared unconstitutional by the courts was greatly :r:educed.
Demands upon the bill drafting unit increased until there were several attorneys, in addition to the deputy director, who were engaged throughout the entire year in the study, research and preparation of legislation. Thus in 1959, the General Assembly, having become aware of the multitudinous duties and aspects of the unit, removed it as a section of the Department of Law, and created the office of Legislative Counsel to assume these duties. The deputy director of the bill drafting unit was chosen to fill this office, which is now a segment of the legislative arm of our state government. This did not end the involvement of the Department of Law in the preparation of legislation since it still prepares legislation for the various departments as requested, advises the Legislative Counsel, and reviews legislation to determine its possible effects upon the various departments. Extremely close cooperation is maintained between the Legislative Counsel and the Department of Law under the Attorney General, as they continue to discharge the duties imposed upon them by law.
Other Duties of the Attorney General
In addition to the duties performed by the Attorney General as head of the Department of Law, the General Assembly has seen fit to impose certain additional duties upon the person holding the office of Attorney General. These consist, in the main, of membership on many boards and agencies, which, as a survey of the following representative list will indicate, are of a widely divergent nature. These duties differ from the functions of the Attorney General heretofore discussed in that they are primarily performed by the Attorney General as an individual, rather than through his assistants in the Department of Law. Some of the statutes imposing these duties authorize the Attorney General to delegate a representative to meet and counsel with these groups, and in addition, some are temporary in nature, being created for limited purposes or for a limited time.
(a) Department of Public Safety, Ga. Code Ann., 92A-101.
(b) Board of Commissioners of Peace Officers' Annuity and Benefit Fund, Ga. Code Ann., 78-902.
(c) Board of Commissioners of the Superior Court Clerks' Retirement Fund, Ga. Code Ann., 24-2732.
(d) Commissioners of the Ordinaries' Retirement Fund of Georgia, Ga. Code Ann., 24-1701a.
(e) Election laws study committee, Acts 1957, p. 257.
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(f) Commission on Interstate Cooperation, Ga. Code Ann., 471104.
(g) Nuclear Advisory Commission, Ga. Code Ann., 43-1001. (h) Georgia Seed Development Commission, Ga. Code Ann., 5-
2703. (i) Governor's Commission on Constitutional Government, Acts
1959, p. 5. (j) Hospital Advisory Committee, Ga. Code Ann., 99-1704. (k) Seed Advisory Committee, Ga. Code Ann., 5-2410. (I) Stone Mountain Memorial Association, Acts 1958, p. 61. (m) Board of Trustees of Superior Court Judges' Retirement
Fund, Ga. Code Ann., 24-2608a. (n) Board of Trustees of Superior Court Solicitors G~neral Re-
tirement Fund, Ga. Code Ann., 24-2907a. (o) Council to investigate incapacity of Comptroller General or
State Treasurer, Ga. Code Ann., 40-2071. (p) Council to investigate suspension of State Revenue Commis-
sioner, Ga. Code Ann., 92-8403. (q) Elections Commission, Ga. Code Ann., 34-1925. (r) Mineral Leasing Commission, Ga. Code Ann., 91-118. (s) Properties Acquisition Committee, Ga. Code Ann., 36-1117. (t) Refunding Bond Commission, Ga. Code Ann., 87-501a. (u) Tax Settlement Board, Ga. Code Ann., 92-8411.1. (v) Farmers' Market Authority, Ga. Code Ann., 65-304. (w) Jekyll Island State Park Authority, Ga. Code Ann., 43-604a. (x) Hospital Authority, Ga. Code Ann., 99-1403. (y) Office Building Authority, Ga. Code Ann. 91-502a. (z) School Building Authority, Ga. Code Ann., 32-1402a. (aa) University System Building Authority, Ga. Code Ann., 32-
102a. (bb) Various Agriculture Commodity Commissions, Ga. Code Ann.,
5-2901 et. seq.
xxi

THE LAW DEPARTMENT STAFF 1960- 1961
Assistant Attorneys General
Richard L. Chambers Joe S. Champion* Ariel V. Conlin* John E. Deah John T. Ferguson*
Clifford Carter Goode A. Frank Grimsley* William L. Harper G. Hughel Harrison
JohnS. Harrison A. J. Hartley*
Earl L. Hickman Rubye G. Jackson F. Douglas King Louis F. McDonald
W. Paul Miller Lamar Murdaugh
Henry G. Neal J. R. Parham Donald E. Payton William P. Rodgers, Jr. Ezekiel J. Summerour James Hamilton Therrell Joel S. Thwaites* Howard P. Wallace John B. White* John L. York*
:xxii

Deputy Assistant Attorneys General A. R. Barksdale John M. Bowling*
B. Daniel Dubberly, Jr. Robert W. Goodman*
Robert H. Hall* Ben F. Johnson, Jr.* E. Freeman Leverett Robert H. Walling* Broadus B. Zellars*
Attorneys John A. Blackmon Sheldon C. Dorough* Benjamin L. Johnson P. T. McCutchen, Jr.
*Personnel no longer affiliated.
xxiii

SUMMARY OF ACTIVITIES DEPARTMENT OF LAW
1960-1961
Cases in which the Department of Law participated _______________________1947 Cases terminated favorably to the State____________________________________1492 Cases terminated unfavorably to the State_______________________________ 41 Cases pending December 31, 196L______________________________________________ 414
Opinions rendered during 1960 Official: PubIished ----------------------------------------------------__ _________ 128 Unpublished -------------------------------- ___________________________ 75
Total ---------------------------------------------------------------- 203 Unofficial:
Published ---------------------------------------------------------------- 173 Unpublished ------------------------------------------------------------ 224
Total ------------------------------__________________________________ 397 Total opinions rendered________________________________________________________ 600
Opinions rendered during 1961 Official: Published ---------------------------------------------------------------- 116 Unpublished ------------------------------------------------------------ 62
Total ---------------------------------------------------------------- 178 Unofficial:
Published ---------------------------------------------------------------- 150 Unpublished ------------------------------------------------------------ 207
Total ---------------------------------------------------------------- 357 Total opinions rendered_____ ____________________________________________________ 535 Total opinions rendered 1960-1961___________ ________________________________________1135 Total opinions published 1960-1961______________ ------------------------------------- 567 Total resolutions and bills drafted for the Governor, State Departments and Legislators during 1960-61__________________ 631
xxiv

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AGRICULTURE-Apples (Unofficial)
Fiber separators used in packing apples may not be re-used. September 29, 1961
Mr. Richard M. Durall
This will acknowledge receipt of your letter requesting information concerning the re-use of fiber separators used between layers of apples.
Georgia Code Annotated, Section 42-310(a) (4) and (6) which relates to adulterated foods, provides:
"A food shall be deemed to be adulterated:
"If it has been produced, prepared, packed or held under unsanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered diseased, unwholesome or injurious to health;" ...
(6) "If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health."
If not specifically otherwise provided by law, it would appear that the above quotations would be sufficient to prohibit the re-use of fiber separators unless adequate provisions had been made to sterilize or otherwise render the separators suitable for use.
I further direct your attention to the provisions of Georgia Code Chapter 5-8 which relate to the grading, packing and shipping of apples.
AGRICULTURE-Commissioner
Upon determination by the Commissioner of Agriculture that the proceedings. of the National Association of State Departments of Agriculture are of interest to the agriculture of this State, he is authorized to publish such proceedings for distribution.
June 30, 1960 Honorable Phil Campbell Commissioner of Agriculture
This will acknowledge receipt of your request for my opmwn whether you, as Commissioner of Agriculture, may publish the proceedings of the National Association of State Departments of Agriculture for distribution to the various agricultural interests.
Article V, Section II, Paragraph I, of the Constitution of the State of Georgia of 1945 (Georgia Code Annotated, Section 2-3101), provides for the election of a Commissioner of Agriculture. Article V, Section II, Paragraph II of the Constitution (Georgia Code Annotated, Section 2-3102), provides:

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"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."
The General Assembly of Georgia, by Code Sections 5-107, 5-110 and 5-204, has enumerated in part the duties of the Commissioner of Agriculture. Code Section 5-102, in part, provides that the Department of Agriculture for the State of Georgia "... shall be under the control and management of one officer, who shall be known as the Commissioner of Agriculture, "
Code Section 5-107 (5), in part, provides:
"5. The Commissioner shall have under his especial charge the diseases of the grain, fruits, and other crops of this State, and shall, at various times, report upon any remedy for said diseases or any useful information upon the subject, ... and other business that he may deem of importance to advance the purposes for which this Department was created."
Code Section 5-107 (7) provides:
"The Commissioner shall report, as is hereinbefore set forth, upon any matter of interest in connection with dairying that he may deem of interest to the people of this State."
Code Section 5-107 (12) provides:
"The Commissioner may report, in the manner as is hereinbefore set forth, upon any matter or subject that he may deem of interest to the agriculture of this State."
The above quotations from this Code Section are utilized to show the broad discretion that is placed in you as Commissioner of Agriculture as to promoting the agriculture of this State.
Code Section 5-110, in part, provides:
"It shall be the duty of the said Commissioner to collate and arrange in systematized order, in his office, full and accurate information as to . . . and as to any and all other matters which he may deem of interest to homeseekers, investors, and the general public: Provided, that all such information shall be arranged according to counties, as far as practicable, and be so arranged as to be readily accessible and intelligible to all parties seeking information along the lines herein indicated."
Code Section 5-111 imposes upon you as Commissioner of Agriculture, a duty to "correspond with all bureaus, societies, corporations, and organizations having for their purposes the development of this State and of the Southern States of these United States, the bringing of capital, homeseekers, and acceptable immigrants to this and to the said Southern States; to advise them as to the resources and advantages of this State; to communicate, correspond with, and furnish all information to all persons seeking same along the lines indicated."
Code Section 5-204, which imposes certain duties upon you pertaining to markets, provides in part:
"(a) Investigate methods and practices in connection with the production, handling, standardizing, grading, classifying, sorting, weigh-

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ing, packing, transportation, storage, inspection and sale of agricultural products of all kinds within this State and all matters relevant thereto."
Subsections (b), (f), and (i) are further elaborations of the duties pertaining to subsection (a), as quoted above. Subsection (i), in part, provides:
"(i) Take such other measures as shall be proper for carrying out the purposes of this Chapter: ..."
It is my information that the proceedings of the National Association of State Departments of Agriculture relate to the duties which you are charged as performing as Commissioner of Agriculture of this State. Therefore, from the above, it is my opinion that upon your determination the proceedings of the National Association of State Departments of Agriculture will be of interest to agriculture of this State, you would be authorized to publish such proceedings for distribution to the various agricultural interests.

AGRICULTURE-Fencing Laws (Unofficial)

Fencing and stock range laws discussed.

Mr. C. H. Whorton

September 22, 1960

This will acknowledge receipt of your letter requesting information relative to the Stock Range Law in Georgia and in particular in the counties of Rabun and Towns.
By an act found in Georgia Laws 1953, page 380, as amended, the General Assembly found and declared the necessity for a state-wide livestock law embracing all public roads in the State of Georgia and all other property, and further found and declared that it was necessary that the 3pplication of such law be uniform throughout the state. This act is found in Georgia Code Annotated as Chapter 62-16.

Georgia Code Annotated Section 62-1604 provides:
"No owner shall permit livestock to run at large on or stray upon the public roads of this State, or any property not belonging to the owner of the livestock unless by permission of the owner of such property."

The Act places a prohibition upon the permitting of livestock to run loose or stray upon the public roads or the property of another. Public roads as defined in the act is very broad. The result of the prohibition appears to be the prohibiting of the free ranging of cattle.

The views expressed herein could very well be altered if the ownership of the property being used as an open range is in some person other than the people residing and particularly if it is public land. This statement is made to remove any doubt as to the use of public lands under any agreement relative to the grazing of livestock thereon.

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The act provides the machinery for the impounding and selling of livestock and a procedure in connection therewith that seems adequate to enforce the provisions of the act. Specific reference should be made to the act by the particular parties affected.

AGRICULTURE-Milk and Dairy Products (Unofficial)

Laws relating to oleomargarine discussed. Honorable Richard Seaborn

July 28, 1960

Your letter relative to oleomargarine has been referred to me for reply.
By an Act approved September 21, 1883 (Georgia Laws 1882-1883, page 124, Georgia Code, Sections 42-9909 and 42-9910), the sale of oleomargarine without posting a notice thereof, and without labeling the same as oleomargarine, was prohibited. This Act was repealed by an Act approved March 8, 1945 (Georgia Laws 1945, page 342). There are no annotations to these sections to indicate any appellate court decision thereon.
Chapter 42-10 of Georgia Code Annotated, based upon 1935 Georgia Laws, page 81, imposes an excise tax of 10 per pound on all margarine sold, offered or exposed for sale, or exchanged in the State of Georgia, containing any fat and/or oil ingredients other than any of the following fats and/or oils: oleo oil from cattle, oleo stock from cattle, oleo stearine from cattle, neutrol lard from hogs, peanut oil, pecan oils, corn oil, cotton seed oil, soya bean oil, or milk fat. The Commissioner of Agriculture is authorized to promulgate rules and regulations consistent with this Code Chapter.
I am not aware of any records that would be available concerning the debates in the General Assembly pertaining to the necessity nor the desirability of this legislation. Neither am I aware of any information of such nature pertaining to the coloring of oleomargarine.
You might consider asking the United States Department of Agriculture or the Food and Drug Administration for such information, as I am sure that the question has arisen in the not too distant past.
For your information, the sale of colored oleomargarine in Georgia has occurred since the 1945 legislation, and while not knowing the exact date, I am sure that it has been offered for sale only within the last 10 to 12 years.

AGRICULTURE-Milk and Dairy Products
A milk processing plant not operated as part of or in conjunction with a military installation of the United States is subject to the laws of this State.
January 5, 1960 Honorable Clifton A. Ward
This will acknowledge receipt of your. request for my opmwn whether a milk processing plant in the State of Georgia processing milk only for sales to

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military installations comes under the sanitary regulations and jurisdiction of the State Department of Agriculture.
Georgia Code Section 15-201 provides:
"The sovereignty and jurisdiction of this State extend to all places within the limits of her boundaries, except so far as she has voluntarily ceded the same to the United States or adjacent States over particular localities."
Code Section 15-202 provides:
"The jurisdiction of this State and its laws extend to all persons while within its limits, whether as citizens, denizens, or temporary sojourners."
Code Chapter 15-301 relates to lands acquired by the United States within this State and the jurisdiction over such lands.
Article I, Section VIII, Clause 17, of the Constitution of the United States (Georgia Code Annotated, Section 1-125), provides:
"The Congress shall have Power .... To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Ports, Magazines, Arsenals, Dockyards, and other needful Buildings; . . . "
There is nothing in your request to indicate that the milk processing plant will be operated as a part of or in conjunction with a military installation of the United States in this State. Accordingly, I am of the opinion that under such circumstances, a person operating a milk processing plant in this State is subject to the sanitary regulations and jurisdiction of the State Department of Agriculture of this State under the provisions of Georgia Code Annotated, Chapter 42-4 and the other statutes of this State relating to such establishments, notwithstanding the fact that he processes only for sales to military installations.
You realize, of course, that this opinion is based upon the facts stated herein, and in the event of other intervening factors that would establish some connection with the operation of the milk processing plant with the operation of the military installation, a different opinion would of necessity apply.

AUTHORITIES-Area Planning Commissions

Establishment of Area Planning Commissions discussed.

Honorable Jack J. Minter Director Georgia Department of Commerce

October 28, 1960

This will acknowledge receipt of your letter in which you state that it is the intention of several counties and county seats in the Coosa Valley region

6
to pool their efforts toward sound growth and development by establishing an area Planning Commission. To your letter you attached two documents, (1) a proposed resolution entitled "A County Resolution To Establish An Area Planning Commission" and (2) a proposed ordinance entitled "A Municipal Ordinance To Establish An Area Planning Commission". Regarding the proposed resolution and the proposed ordinance you have requested my official opinion on the following question:
"If the county governing authorities and the governing authorities of the county seat of each of the counties involved adopt the enclosed resolution and ordinance respectively, would the resulting area Planning Commission be legally constituted?"
Article III, Paragraph XXIII of the Georgia Constitution, found in Section 2-1923 of Georgia Code Annotated, states as follows:
"2-1923. Paragraph XXIII. Zoning ,and planning laws.-The General Assembly of the State shall have authority to 'grant the governing authorities of the municipalities and counties authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvements on real estate therein."
In carrying out the preceding constitutional prov1s1on, the General Assembly enacted, among others, the following Code Sections, 69-1201, 69-1202, and 69-1229 of the Code of Georgia, as amended, which read as follows:
"69-1201. Creation and appointment of planning commissions.-The governing authority of each municipality in this. State is authorized to create by ordinance a municipal planning commission. The governing authority of each county in this State is authorized to create by resolution a county planning commission. Any two or more municipalities are authorized to create a joint planning commission. Any two or more counties are authorized to create a joint planning commission. Any one or more counties and any one or more municipalities in any one or more of these counties are authorized to create a joint planning commission. Wherever the terms, 'municipal planning commission,' 'county planning commission,' or 'municipal-county planning commission,' are used hereinafter, they shall be construed to mean and shall include any planning commission established hereunder. The governing authorities of the political subdivision or subdivisions creating a planning commission shall select the name of the commission, but such name must include the term 'planning commission.' A planning commission shall be composed of not less than 5 nor more than 12 members, to be appointed by the governing authority or authorities of the political subdivision or subdivisions creating the commission. A majority of the members of a planning commission shall be persons who hold no other public office in the municipality or county from which they are appointed. Ex-officio members of the commission who hold public office shall serve on the commission during the time they hold such public office. Other members of the commission shall be appointed for overlapping terms of three, four or five years and shall serve until their successors are appointed. Origi-

7
nal appointments may be made for a lesser number of years so that the terms of said members shall be staggered. The compensation of the members, if any, shall be determined by the governing authority or authorities of the political subdivision or subdivisions creating the commission. Any vacancy in the membership of a planning commission shall be filled for the unexpired term in the same manner as the original appointment. The governing authority or authorities of the political subdivision or subdivisions creating the commission are hereby authorized to remove any member of the commission for cause after written notice and public hearing. (Acts 1957, pp. 420, 421; 1958, p. 169; 1959, p. 335.)"
"69-1202. Organization, rules, officers, staff, and finances.-The municipal planning commission, the county planning commission, or the municipal-county planning commission shall elect one of its appointive members as chairman who shall serve for one year or until he is reelected or his successor is elected. A second appointive member shall be elected as vice chairman, and he shall serve for one year or until he is re-elected or his successor is elected. The planning commission shall appoint a secretary who may be an officer or an employee of the governing authority or of the planning commission. The planning commission shall meet at least once each month at the call of the chairman and at such other times as the chairman or board may determine, shall adopt rules for the transaction of business and shall keep a record of its resolutions, transactions, findings, and determinations, which record shall be a public record. The planning commission may appoint such employees and staff as it may deem necessary for its work. In the performance of its duties, the planning commission may cooperate with, contract with, or accept funds from Federal, State, or local, public or semi-public agencies or private individuals or corporations, may expend such funds, and may carry out such cooperative undertakings and contracts. It may make expenditures for the purchase of required equipment and supplies. The expenditures of the planning commission, exclusive of gifts to the commission or contract receipts, shall be within the amounts appropriated for the purpose by the governing authority or authorities who are empowered to determine, agree upon, and appropriate funds for the payment of the expenses of the planning commission or their respective shares thereof. (Acts 1957, pp. 420, 422; 1959, pp. 335, 337.)"
"69-1229. Effect on existing planning and zoning authorization.This Chapter shall become effective upon its adoption by the governing authority of a municipality or a county, as the case might be. Any municipality which, prior to January 31, 1946, had the power and authority under its charter as originally granted or amended to engage in planning and zoning, as authorized by the Constitution of Georgia, and any municipality or county which now has the power and authority to engage in planning and zoning under the provisions of an Act relating to zoning and planning, approved January 31, 1946 (Chapter 69-8), or under the provisions of any local or special Act, or under the provisions of the Constitution of Georgia may continue to operate thereunder until the governing authority of such municipality or county shall declare this Chapter to be effective.

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"Any county resolution or municipal ordinance legally enacted under the authority of any such statute or Constitutional Provision shall remain in force and effect after this Chapter becomes effective until the county or municipality has brought such resolution or ordinance into conformity with the provisions of this Chapter: Provided, however, that after this Chapter becomes effective in any municipality or county, such resolutions and ordinances shall be administered under the provisions of this Chapter and any amendment to any such county resolution or municipal ordinance shall be made under the provisions of this Chapter. (Acts 1957, pp. 420, 422; 1959, pp. 335, 338.)"
After reading the preceding Code Sections and applying them to the proposed resolution and the proposed ordinance, I fail to see any legal reason why the proposed Resolution and the proposed Ordinance would not be valid when properly enacted. Therefore, I am pleased to advise you that your question is answered in the affirmative.
AUTHORITIES~Georgia Ports Authority (Unofficial)
Discussion of power of Ports Authority to enter into a lease with a private corporation for more than fifty years.
May 22, 1961
Mr. Anton F. Solms, Jr.
This is in reply to your letter in which you request a ruling as to whether the Georgia Ports Authority can enter into a lease with a private corporation for more than fifty years.
Since we do not know the nature of the proposed contract, we assume, since you specifically referred to Code Section 2-5901, it is for the use of public facilities.
Initially, we believe that the question presents itself as to whether or not the Georgia Ports Authority can contract with a private corporation for the use of public facilities.
Georgia Code Section 2-5901 (a) permits "the State, State institutions, any city, town, municipality or county of this State" to contract, not exceeding fifty years, for the use of public facilities "with each other or with any public agency, public corporation or authority now or hereafter created.... "
This code section permits public bodies created by the General Assembly to contract for the use of public facilities with other public bodies only. It does not give agencies of the State the right to contract with private concerns for the use of public facilities. In State of Georgia v. Blasingame et al. 212 Ga. 222 (1956), the Georgia Supreme Court held that Section 2-5901 authorized contracts for the use of public facilities between the "State, counties, cities and State agencies, and public corporations and authorities and includes only such public authorities created by the General Assembly of Georgia, . . . . ."
Code Section 2-5901 applies only to contracts for the use of public facilities

9
and in no way restricts the general contractual powers of the Georgia Ports Authority set out in Georgia Code Section 98-201.
If you desire that we go into further detail in this matter, please send us more information with reference to the nature of the lease involved here.

AUTHORITIES-Housing Authorities (Unofficial)
There is no prohibition against members of the General Assembly, city attorneys, or county attorneys being employed as attorney for a housing authority.
June 1, 1960
Honorable Knox Bynum
I am pleased to acknowledge your letter and your attention is called to the provisions of Code Section 99-1112 of Georgia Code Annotated wherein it provides:
"An authority ... may employ a secretary (who shall be executive director) ... and shall determine their qualifications, duties and compensations ... an authority ... may employ its own counsel and legal staff . . An authority may delegate to one or more of its agents or employees such powers or duties as it may deem proper."
Code Section 99-1110 provides that no commissioner of an authority may be an officer of the city or the county for which the authority is created. The secretary or executive director employed by an authority is not a commissioner or a member of the authority, but merely an employee thereof.
A State Representative in the General Assembly is not a county officer, but is an official of the Legislative Branch of the State Government as a representative of a county, and I know of no statute which would prevent such a representative from being an employee of a city or county housing authority. A housing authority is not a department of a municipality or county government, but is an instrumentality for carrying on governmental functions, and is a separate and distinct public corporation from the city or county government.
There is no prohibition in the Housing Authority Act which would prohibit a city or county attorney from being employed or used by a housing authority.

AUTHORITIES-Housing Authorities (Unofficial)

Housing authorities are exempt from ad valorem taxation.

Mr. Steve M. Hall

July 25, 1961

This is in response to your recent letter.

Code Section 99-1132, entitled "Tax exemption and payments in lieu of taxes", in the Chapter on Housing Authorities reads as follows:

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"The property of an authority is declared to be public property used for essential public and governmental purposes and not for purposes of private or corporate benefit and income, and such property and an authority shall be exempt from all taxes and special assessments of the city, the county, the State or any political subdivision thereof: Provided, however, that in lieu of such taxes or special assessments, an authority may agree to make payments to the city or the county or any such political subdivision for improvements, services and facilities furnished by such city, county, or political subdivision for the benefit of a housing project, but in no event shall such payments exceed the estimated cost to such city, county, or political subdivision of the improvements, services or facilities to be so furnished."
Under the provisions of this Section a housing authority is exempt from ad valorem taxes, in my opinion, but it may agree to make payments to a political subdivision which may be handled in the form of a property tax assessment in payment for services rendered it by the political subdivision. I presume that the agreement between each housing authority and the city to pay the five and one-half mills tax is based upon services and facilities furnished the housing authority by each respective city.
AUTHORITIES-Housing Authorities (Unofficial)
Housing authorities may not use the condemnation procedure before a special master in condemning property under the Urban Redevelopment Law.
June 27, 1961
Honorable Frank S. Cheatham, Jr.
In your letter you asked the following question:
"Whether or not a housing authority has the right to use the condemnation procedure before a Special Master (Georgia Code 36-6A) in condemning property under the Urban Redevelopment Law of Georgia (Georgia Code 69-1101)."
By reference to Section 69-1108 of Georgia Code Annotated (Ga. Laws 1955, p. 363) and Section 36-601 (a) of Georgia Code Annotated (Ga. Laws 1957, p. 388), it appears that the "Urban Redevelopment Law" (Ga. Laws 1955, pp. 354, et seq., Chapter 69-11, Ga. Code Ann.), confers the power of eminent domain upon municipalities to permit condemnation of property for redevelopment purposes, and provides that a municipality may exercise the power of eminent domain in the manner provided in Title 36 and any Acts amendatory thereof or supplemental thereto or in the manner provided by any other applicable statutory provisions for the exercise of the power of eminent domain, while the "Special Master" Act (Chapter 36-A, Ga. Code Ann., Ga. Laws 1957, pp. 387, et seq.) expressly provides that municipalities may condemn under its provisions.
As to the right of a housing authority to condemn under the "Special Master" Act, a housing authority is not a political subdivision of the State, within

11
the meaning of Sections 1 and 2 of the Act. (Ga. Laws 1957, p. 388, Ga. Code, Ann., Sections 36-601 (a), 36-602 (a). Stegall v. Southwest Georgia Housing Authority, 197 Ga. 571 (4); Culbreth v. Southwest Georgia Housing Authority, 199 Ga. 183, 189. By the same sections, the Act is made supplementary to and cumulative of existing condemnation laws where the State branches of the government of the State, counties, municipalities, or other political subdivisions of the State are concerned.
I am, therefore, of the opinion that a municipality may condemn property for the purposes set out in the "Urban Redevelopment Law" under the provisions of the "Special Master" Act, but that a housing authority may not condemn under the Act for any purpose.
AUTHORITIES-Housing Authorities (Unofficial)
Discussion of provisions for appointment of members.
April 5, 1961
Honorable Albert L. Bagley, Jr.
This will acknowledge receipt of your request for my opinion as to the effect of Act No. 35, Georgia Laws, 1961, page 54, amending the "Housing Authorities Law", 1937 Georgia Laws, page 210, as amended, and the "Housing Corporation Law," 1937 Georgia Laws, page 697, as amended. You specifically request my opinion concerning the appointment of members of the Authority.
The "Housing Authorities Law" is codified as Chapter 99-11 of the Georgia Code Annotated. The specific provision relative to the appointment of members of such an Authority is found in Georgia Code Annotated, 99-1110, which primarily is Section 5 of the original Act as amended.
Section 5 of the 1961 Act enumerates the effect of the amendment to the above cited Acts and specifically, after abolishing the State Housing Authority Board and the office of the State Director of Housing, provides:
". . . and to divest all such offices and officers, boards and board members of all legal powers and authority, and said laws are amended
in these particulars and for these purposes only ..." Thereafter follows a provision preserving the authority of the Housing Authorities and officers created under these Acts.
Section 5, as amended, provides that the mayor, as to cities, and the governing authority of a county, as to counties, shall, with the consent of the State Director of Housing, appoint the commissioners of the Authority. The effect of the 1961 Act seems to be to remove the State Director of Housing from the provisions of this Section and therefore placing the appointive power in the mayor and the governing body of the county, thereby resulting in appointments being made by local officers without the approval or consent of State Officers.

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AUTHORITIES-Housing Authorities (Unofficial)
Steps necessary for compliance with the housing authorities law.
July 19, 1961
Honorable J. Roy McCracken
This will acknowledge receipt of your request for information concerning changes in the law that would permit the Town of Stapleton to qualify under the provisions of the "Housing Authorities Law," Georgia Code Annotated, Chapter 99-11, Georgia Laws 1937, page 210.
I have been unable to find any changes in the law either in the definition of "city" as used in Code 99-1103, or otherwise.
For your information, there appears to be two solutions, or avenues of approach, so as to enable the Town of Stapleton to comply. One of these is to amend the Act by changing the definition of the word "city" to include municipal corporations. This, of course, would be by a general bill. The other method would be to amend the charter of the Town of Stapleton by a local bill so as to change its name from the "Town of Stapleton" to the "City of Stapleton." The latter appears to be the simpler method in that legislative courtesy simplifies the enactment of local bills.
AUTHORITIES-Property
Property of Authorities may fall within the requirements that the Governor keep insured all insurable property of the State.
June 2, 1961
Honorable Alvan C. Gillem, Jr. Supervisor of Purchases
This will reply to your letter in which you ask if property owned by the various authority-type departments of the State falls within the purview of the provision of the Act of March 23, 1960, (Ga. L. 1960, p. 1160) that: "The Governor shall keep insured all the insurable property of the State of Georgia, including, but not limited to, the public buildings and contents thereof."
You further ask would each authority have the option of (a) being included in a self-insurance program being developed by the State, (b) self-insuring independently or (c) purchasing insurance from commercial carriers?
Section 1 of the Act of March 23, 1960 provides:
"Section 1. The Governor shall keep insured all the insurable property of the State of Georgia, including, but not limited to public buildings and the contents thereof. The Governor is authorized to draw his warrant upon the Treasury annually for such sums as may be necessary to keep the insurable property of the State adequately protected by insurance. The Governor shall in keeping insured the State's property implement a sound program of self-insurance as hereafter provided which may include

13
assuming by the State some, or all, of the various risks or hazards under such plan of self-insurance."
Without attempting to enumerate all of the State authorities, or to examine the language of each of the Acts creating same, I am of the opinion that State authority owned property comes within the purview of the Act above quoted.
Section 2 of the Act authorizes the Supervisor of Purchases to formulate and initiate a plan of self-insurance for State property. He shall cause: (a) a complete appraisal to be made of all the State's existing insurable property as to value; (b) a complete classification of all of the State's insurable property by type of risk; and (c) a determination and recommendation to be made of the amount and extent of self-insurance which the State can assume, the necessary reserves, the minimum claim to be paid on each risk, and the type of additional or excess coverage that may be required.
I am of the further opinion that the Act of 1960 (Ga. L. 1960, p. 1160) to which you refer, contemplates a self-insurance plan for all of the State's insurable property, including the property owned by the various authorities which have been created by the Legislature. Furthermore, that said Act contemplates that the Supervisor of Purchases use his best discretion and judgment in the formulation of the self-insurance plan which he recommends to the Governor for adoption; and that in formulating such plan of self-insurance he analyze the property of each authority and determine what, in his best judgment, is to the best interest of the particular authority and the people (taxpayers) of Georgia. In formulating the plan it is suggested that the Supervisor of Purchases confer with the members of each authority.
While it may be necessary for State authorities to insure a part or all of their property with commercial insurers pending the formulation of the selfinsurance plan and during the time required to build up the necessary reserves, the Act contemplates one overall comprehensive plan covering all of the State's insurable property, and not a plan broken up into components of the various State departments and authorities.
A VIATIQN:._Airports
Establishment of authorities to operate airports owned by municipalities discussed.
September 13, 1960
Honorable Jack J. Minter Director Georgia Department of Commerce
I am pleased to acknowledge your letter in which you ask my opinion upon the following questions:
(1) Whether a city or county may jointly establish an authority to make policies and regulations in regard to the operation of an airport when the authority is not to have any source of income, and;

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(2) Whether a city and county may establish an authority to operate an airport when the said authority is to receive money from the county and city and to operate in accordance with the provisions of Sections 11-205 and 11-206 of the 1933 Code of Georgia, as amended.
Your questions would appear to be governed by the provisions of Chapter 11-2 of the 1933 Code of Georgia, as amended, which is the codification of the Uniform Airports Law and is as follows:
"11-201. Municipalities, etc., may acquire airports.-Municipalities, counties, and other political subdivisions are hereby authorized separately or jointly, to acquire, establish, construct, expand, own, lease, control, equip, improve, maintain, operate, regulate and police airports and landing fields for the use of aircraft, either within or without the geographical limits of such municipalities, counties, and other political subdivisions, and may use for such purpose or purposes any available property that is now or may at any time hereafter be owned or controlled by such municipalities, counties, or other political subdivisions. All counties in the State of Georgia which are located on the boundary line between the State of Georgia and any other State, as well as all municipalities and other political subdivisions which are located in such boundary counties, are hereby authorized, separately, jointly with each other or jointly with any county, municipality or political subdivision of any such border State, to acquire, establish, construct, expand, own, lease, control, equip, improve, maintain, operate, regulate and police airports and landing-fields for the use of aircraft, either within or without the geographical limits of such border counties and the municipalities or other political subdivisions therein contained in the State of Georgia or within the geographical limits of any county, municipality or political subdivision of any such border State other than the State of Georgia. (Acts 1933, p. 102; 1941, p. 380.)
"11-202. Public purpose in acquisition of lands by municipalities, etc.-Any lands acquired, owned, leased, controlled, or occupied by such counties, municipalities, or other political subdivisions for the purpose or purposes enumerated in section 11-201, shall and are hereby declared to be acquired, owned, leased, controlled, or occupied for public, governmental, and municipal purposes. (Acts 1933, pp. 102, 103.)
"11-203. Private property may be acquired by purchase, condemnation, etc.-Private property needed by a county, municipality, or other political subdivision for an airport or landing field or for the expansion of an airport or landing field, may be acquired by grant, purchase, lease, or other means, if such political subdivision is able to agree with the owners of said property on the terms of such acquisition, and otherwise by condemnation in the manner provided by the law under which such political subdivision is authorized to acquire real property for public purposes. (Acts 1933, pp. 102, 103.)
"11-204. Purchase price may be paid from bond issue or otherwise. -The purchase price or award for real property acquired, in accordance with the provisions of this Chapter, for an airport or landing field may be paid for by appropriation of moneys available therefor, or wholly or partly from the proceeds of the sale of bonds of said county, munici-

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pality, or other political subdivision, as the legislative body of such political subdivision shall determine; subject however, to the adoption of a proposition therefor at a regular or special election, if the adoption of such a proposition is a prerequisite to the issuance of bonds of such political subdivision for public purposes generally. (Acts 1933, pp. 102, 103.)
"11-205. Authority to equip, improve, establish fees and charges, lease, etc.-Counties, municipalities, or other political subdivisions which have established or may hereafter establish airport or landing fields, or which acquire, lease, or set apart real property for such purpose or purposes, are hereby authorized:
"(a) To construct, equip, improve, maintain, and operate the same, or to vest authority for the construction, equipment, improvement, maintenance and operation thereof, in an officer, board, or body of such political subdivision. The expense of such construction, equipment, improvement, maintenance, and operation shall be a responsibility of said political subdivision.
"(b) Subject to existing contracts, to adopt regulations and establish charges, fees, and tolls for the use of such airports or landing fields, fix penalties for the violation of said regulations, and establish liens to enforce payment of said charges, fees, and tolls.
"(c) To lease such airports or landing fields to private parties for operation or to lease or assign to private parties for operation, space, area, improvements, and equipment on such airports or landing fields: Provided in each case that in so doing the public is not deprived of its rightful, equal, and uniform use thereof. (Acts 1933, pp. 102, 104.)
"11-206. Funds for operation, etc., may be raised by tax,lttion and otherwise.-The local public authorities having power to appropriate moneys within the counties, municipalities, or other public subdivisions, acquiring, establishing, developing, operating, maintaining, or controlling airports or landing fields under the provisions of this Chapter, are hereby authorized to appropriate and cause to be raised by taxation or otherwise, in such political subdivisions, moneys sufficient to carry out therein the provisions of this Chapter; also to use for such purpose or purposes moneys derived from said airports or landing fields. (Acts 1933, pp. 102, 104.)
"11-207. Authority to acquire easements, etc., for lights and markers.-Counties, municipalities, and other political subdivisions are hereby authorized to acquire the right or easement for a term of years, or perpetually, to place and maintain radio and other equipment, and suitable marks for the daytime, and to place, operate, and maintain suitable lights for the nighttime marking of buildings, or other structures or obstructions, for the safe operation of aircraft utilizing airports and landing fields acquired or maintained under the provisions of this law. Such rights or easements may be acquired by grant, purchase, lease, or condemnation in the same manner as is provided in Section 11-203 for the acquisition of the airport or landing field itself or the expansion thereof. (Acts 1933, pp. 102, 105.)

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"11-208. Authority to police airports.-Counties, municipalities, or other political subdivisions acquiring, establishing, developing, operating, maintaining, or controlling airports or landing fields under the provisions of this Chapter without the geographical limits of such subdivisions are hereby specifically granted the rights to enforce police regulations on such airports or landing fields. (Acts 1933, pp. 102, 105.)
"11-209. Construction and intent of this Chapter.-It is the intent and purpose of this Chapter that all provisions herein relating to the issuance of bonds and the levying of taxes for airport purposes, and the condemnation for airports and airport facilities, shall be construed in accordance with general provisions of the law governing the right and procedure of municipalities to condemn, issue bonds, levy taxes, etc. (Acts 1933, pp. 102, 105.)"
The preceding Code Sections authorize municipalities, counties, and other political subdivisions of the State either separately or jointly to establish, construct, maintain, and control airports. However, there is no express nor clear delegation of authority to the political subdivisions of the State to establish an authority for the purpose of building and maintaining airports. An authority by its inherent nature is a body, at least in some degree, separate and distinct from a political subdivision. The aforementioned Code Sections authorize cities and counties themselves to construct, maintain, and operate airports or to vest such authority in an officer, board, or body of such political subdivision. An authority by its very nature not being an integral part of the city or county government could not lawfully be vested by any political subdivision with power to maintain and operate an airport belonging to that political subdivision.
In the absence of statutory authority authorizing a city or county to create an authority to control and operate its airport, it would seem that no such authority could be established whether or not it is to be financially supported by such political subdivision.
AVIATION-Registra.tion of Aircraft (Unofficial)
It is unlawful to operate an aircraft in Georgia unless it is licensed by the United States.
September 21, 1960
Mr. Bruce N. Whitman
You request a copy of our statutes which have application to the registration of aircraft.
The only code section with reference to the registration of aircraft I find in the Georgia Code is Section 11-102, which is as follows:
"Aircraft construction, design and airworthiness; Federal license.The public safety requiring, and the advantages of uniform regulation making it desirable in the interest of aeronautical progress, that aircraft operating within the State should conform, with respect to design,

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construction, and airworthiness, to the standards prescribed by the United States Government with respect to navigation of civil aircraft subject to its jurisdiction, it shall be unlawful for any person to operate or navigate any aircraft, unless such aircraft has an appropriate effective license, issued by the Department of Commerce of the United States and is registered by the Department of Commerce of the United States: Provided, however, that this restriction shall not apply to military aircraft of the United States or possessions thereof, public aircraft of any State or Territory, or to aircraft licensed by a foreign Country with which the United States has a reciprocal agreement covering the operation of such licensed aircraft."
Aircraft are taxable as other personal property, the situs for taxation being the residence of the owner unless the aircraft is permanently situated in another county in connection with a business enterprise being conducted therein.
BANKS AND BANKING-Charters.
Any provisions in a bank charter in conflict with the general laws of this State are of no force and effect, and a bank must thus comply with the banking laws to increase its capital stock.
January 19, 1960
Honorable A. P. Persons, Superintendent, State Banking Department
You requested an official opinion whether the Blackshear Bank, Blackshear, Georgia, a State banking corporation whose charter was granted by special Acts of the General Assembly under date of September 11, 1891, should comply with provision of the Banking Act of 1919 to amend its charter in the case of a capital increase.
As I understand it, the bank's original charter granted September 11, 1891, renewed on July 7, 1922, and on July 7, 1952, having been approved by the Superintendent of Banks, under provisions of the Banking Act of 1919, contained the following provision:
"Sec. III. Be it further enacted by the authority aforesaid, that the capital stock of the corporation shall be fifty thousand dollars ($50,000), to be divided into shares of fifty dollars ($50) each, but it shall have the privilege or power, after said stock shall have been paid up, to increase its capital, from time to time, to any sum not to exceed two hundred thousand dollars ($200,000), whenever it may be deemed expedient by the stockholders in meeting assembled, two-thirds of the entire stock being voted in favor of such increase before the same can be effected... "
As I interpret your letter the question involved is: Would the stockholders of the Blackshear Bank be permitted to increase its capital from $50,000 to $100,000 by a vote of two-thirds or more of the stockholders without getting approval of the Superintendent of Banks and complying with the Acts of 1919, page 172, Ga. Code, Chapter 13-11 dealing with amendments to charters.

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Although our courts have never settled the exact question posed by you, there are two Georgia cases which lead me to conclude that the Blackshear Bank may not increase its capital in any manner other than by strict compliance with the Acts of 1919. It has been held by the Supreme Court of Georgia that:
"Where a bank chartered by special Legislative Act in 1870 for thirty years (Acts 1870, p. 114) renewed its charter in March, 1900, for thirty years, as provided by the Act of 1893 (Ga. L. 1893, p. 88; Code of 1910, Sees. 2193 et seq.), authorizing the renewal of special bank charters, and again renewed its charter before its expiration in 1930, under existing laws providing for a renewal of special charters granted to banks by the General Assembly or by the Secretary of State (Acts 1919, pp. 135, 172, 173, 174; Code of 1933, Sees. 13-1101, 13-1106), such bank by thus renewing its charter in 1930 adopted the provisions of the Banking Act of 1919, supra, as to the liability of stockholders." Gormley v. Searcy, 182 Ga. 675.
"Where upon the expiration of the charter of a bank which was chartered in 1901 under the Banking Act of 1893, application for renewal of the charter in terms of the Banking Act of 1919 is approved and the charter renewed, the bank thereby becomes a bank chartered under the Banking Act of 1919." Federal Deposit Insurance Corporation v. Beasley, Superintendent of Banks, 193 Ga. 727.
The language in the later case is directly applicable to the question involved in the present matter. Quoting from page 730 of that case which was a full bench decision wherein all justices concurred, it states:
"1. Article 10 of the 1919 Banking Act authorizes any bank to renew its charter for a period of thirty years by filing application for such renewal with the Secretary of State six months before the expiration of its charter. It requires that the application be published for four weeks, that a copy of same be transmitted to the superintendent of banks, and that he make an examination of the condition of the bank and make his recommendation to the Secretary of State. The Act authorizes the superintendent to recommend that the renewal be granted, or to recommend that it be not granted, either because of the unsatisfactory condition revealed by his examination, or because he thinks it inexpedient; and the renewal of the charter is granted or denied depending upon the recommendation of the superintendent of banks. These provisions of the Act clearly indicate a legislative purpose and intention that all banks char tered before 1919 must look to the 1919 Act for a renewal of their charter. It is manif-est that the legislature sought by such provisions to obtain a uniform banking system in this State. Since by virtue of the provisions of this Act the continued existence of every bank upon the expiration of its charter depends entirely upon the terms and conditions set forth in this Act, any bank the charter of which is renewed by meeting these conditions is in reality chartered under the 1919 Act." (Emphasis added.)
Therefore, it is concluded that the Blackshear Bank would be in violation under the Acts of 1919 if by a mere vote of two-thirds of its stockholders it sought to increase its capital stock even though such a provision had been granted in its original charter and included in its renewal thereof. Any provision of any charter in conflict with the general laws of this State are of no force and effect.

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BANKS AND BANKING-Credit Unions
A change of corporate name by a credit union must be accomplished in the same manner as the original formation and approval of the credit union.
June 16, 1960
Honorable Ben W. Fortson, Jr., Secretary of State
I am in receipt of your letter wherein you requested my opm10n as to whether or not a credit union can change its corporate name by amending the by-laws on vote of the stockholders or whether or not the charter must be amended under the banking laws as codified in Georgia Code Section 13-10.
I am of the opinion that although credit unions must be under the supervision of the Superintendent of Banks that an amendment to a charter would be affected the same as other corporations. Therefore, I do not believe that by amending the by-laws on vote of the stockholders a credit union could change it corporate name.
Although the law is not specific in regard to change of corporate name of the credit union, I am of the opinion that such an application of amendment to charter having been transmitted. to you should be approved in writing by the Superintendent of Banks in the same manner that by-laws are approved when a credit union is initially formed.

BANKS AND BANKING-Loans "Lines of credit" are not to be confused with loans.

Honorable W. D. Trippe, Superintendent of Banks

December 29, 1961

You submit information concerning "lines of credit". The Banking Act of Georgia, as amended through the years, does not in any section touch on "lines of credit". It does, however, regulate "loans".

The sections of the Banking Act regulating "loans" were set out in previous opinions to you dated November 14 and 16, 1961. These sections, as you will recall, use the word "loans," not the words "lines of credit."

I see no objection to the directors establishing periodically, "lines of credit" for customers. However, this does not relieve them of the legal obligations imposed by the pertinent aforementioned statutes.

Section 13-2013 states that loans in excess of 10 per cent. "shall be secured ... , and made with the approval of a majority of the directors, or of a committee of the board of directors.... " That this statute fixes an obligation on the directors, see Mobley, Superintendent of Banks v. Faulk, cited in the aforementioned opinion rendered November 16, 1961, page three thereof.

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The Texas Civil Court of Appeals has defined "Line of Credit" as a margin or fixed limit of credit granted by one to another, to the full extent of which the latter may avail himself in his dealings with the former, but which he must not exceed. 151 S.W. 2d 922. Pittinger v. Southwestern Paper Co.
Further, it would not seem improper to state that a "line of credit" is a statement of policy of the directors regarding a customer and his "loan" potential.
F'urther, for your edification, the Court of Appeals of Georgia has stated that four of the elements of a "loan" are:
" ... a principal sum, a placing of the sum with a safe borrower, an agreement that interest was to be paid, and a recognition by the receiver of the money of his liability for the return of the principal amount with accrued interest." McLendon v. Johnson, 71 Georgia Appeals 424.
In lieu of this judicial statement as to what a "loan" constitutes, or, actually is, it is difficult to confuse the same with a "line of credit."
BANKS AND BANKING-Loams
The Directors of a bank may not legally authorize or approve overdrafts by officers and employees in an amount not to exceed the amount due for earned salary on the date of the overdraft.
November 14, 1961
Honorable W. D. Trippe, Superintendent of Banks, Department of Banking
This will acknowledge your letter asking whether the Board of Directors of a bank can legally, at any annual meeting, authorize and approve overdrafts of officers and employees of their bank in an amount not to exceed the amount due any such officer or employee for earned salary on the date of the overdraft.
The Sections of the Banking Act which control this question are as follows:
"Sec. 11. (13-2011) Borrowing for Personal Use by Officers and Employees Prohibited Except by Permission of the Directors.-No officer, director, agent, or employee of any bank shall use or borrow directly or indirectly for himself, or for any firm or partnership of which he is a member, any money or other property belonging to any bank of which he is such officer, director, agent or employee without the express authority and permission previously obtained of a majority of the directors or of the members of a committee of the board of directors authorized to act, which permission shall be evidenced by the written signatures of such directors, the borrower not voting or participating in any way in passing upon any loan or discount in which he may be interested."
"Sec. 12. (13-2012) Loans to Officers.-No bank shall lend any officer, director, agent, or employee any amount whatever except upon

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good collateral or other ample security; and no such loan shall be made until after it has been approved by a majority of the directors, or by the members of a committee of the board of directors authorized to act as in the preceding Section provided."
"Sec. 19. (13-9919) Overdrafts of Officers, Agents, and Employees. -Any officer, agent, director, clerk, teller, or other employee of any bank who wilfully and knowingly, and without authority from the board of directors, overdraws his account with such bank, and thereby obtains moneys or funds of any such bank, shall be guilty of a misdemeanor."
For the directors to provide such approval at the annual meeting when no specific loan was in mind would be to obviate the purpose and intent of the statute that each loan be separately approved. In this respect, note the language used by the legislature that no officer, etc., shall borrow without "the express authority and permission.... " If there is some question, it is interesting to note that Webster's New Collegiate Dictionary defines the adjective "express" as meaning "directly and distinctly stated; definite; clear; explicit; exact; precise; adapted to or intended for a particular purpose." In other words, the express "authority" must contain and encompass the details and particulars of the specific loan. It does not seem that this could be done in blanket form annually.
I am of the opinion that loans to officers and employees can be made only after separate approval in the above manner.
Further, as to the security provided for in Section 13-2012, if the directors "expressly" approve a loan, the same would have to be secured by a properly executed assignment of the earned salary.
BANKS AND BANKING-Loans
Prior approval is required of a majority of the directors before each loan to any one entity in excess of ten per cent. of the capital and surplus of the bank.
November 16, 1961
Honorable W. D. Trippe, Superintendent of Banks, Department of Banking
This will acknowledge your letter in which you ask the following question:
"In the event that a loan or loans to any one person, firm or corporation aggregate an amount in excess of 10% of the capital and surplus of the bank, would not each loan require the prior written approval of a majority of the directors or of a committee of the board of directors authorized to act in order to conform with the above provisions of the Act?"
The statute controlling this question is Section 13-2013 of the Georgia Code, the pertinent part of which reads as follows:

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"Sec. 13. (13-2013) ... No bank shall be allowed to lend any person, firm, or corporation more than 20% of its capital and unimpaired surplus; and in the event that a loan, or loans, to any one person, firm or corporation aggregate an amount in excess of 10% of the capital and surplus, the entire amount of such loan or loans shall be secured by good collateral or other ample security, and made with the lllpproval of a authorized to act, which approval shall be evidenced by the written signaauthorized to act, which ap,proval shall be evidenced by the written signature of said directors or the members of said committee.... "
As noted in the underlined portion of the above Code Section, the General Assembly has provided for the approval by the directors of loans made above a certain percentage of the capital and surplus of the bank to one person, firm, or corporation.
In Mobley, Superintendent of Banks, v. Faulk, et al., 42 Georgia Appeals 314, at page 317, the Court of Appeals of Georgia had the following to say with reference to the liability of directors of banks for loans:
" . . . it is nevertheless incumbent upon the directors, in the exercise of ordinary care and diligence, to retain a general supervision over the acts and doings of such agents and officers in making such loans, and to keep sufficiently informed about them to enable themselves from time to time to pass intelligently upon the value of such loans and the condition of the 'bank which they are charged with the duty of supervising. Accordingly, directors are not justified in absolutely relinquishing to any officer or agent unlimited discretion, and thereafter acquiescing blindly in all that he does, but under the general duty devolving upon them to manage the bank's affairs, they must retain and exercise reasonable control and supervision over such officers, amounting to the exercise on their part of ordinary care and diligence. Thus, should it ap,pear that the directors had absolutely surrendered and relinquished their control and supervis,ion over the agents: and officers in the making of such. loans, there would be a failure on their part to perform the functions devolving upon them by law, which would necessarily amount to a lack of ordinary care and diligence on their part as directors. If, however, in the determination of the issue as to whether or not the directors had ceased to function as such by absolutely surrendering their supervision over the officers and agents in the making of such loans, it appears that the acts of the cashier, financial agent, or such officer who was authorized by the by-laws to make such loans, were not only from time to time supervised by the directors, but that prior to the making of all such loans the directors, in each case, actually passed upon the lllp.plication proposed by th.e financial agent, and approved the making of the loan by th,e cashier, it can not be said, beyond dispute and as a matter of law, that the directors had surrendered their function to the financial agent for the reason that in almost all cases they adopted the judgment of the financial agent as their judgment in approving the loans proposed by such agent.... "
Though this case is not precisely in point, it clearly indicates (note the emphasized language) what the Court feels to be the legal obligation imposed by the statute upon the directors.

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I, of course, concur in the language used by the Court of Appeals and am of the opinion that, in the language of said cited case, "prior to the making of all such loans the directors, in each case," should actually pass upon the applications.
BANKS AND BANKING-Names
Use of the name of a city, town or county by a private bank generally violates law unless under exception within Act.
June 23, 1960
Honorable W. M. Jackson
I am in receipt of your letter in which you refer to a portion of the banking law as codified under Georgia Code 13-204 concerning the use of the name of a city, town, or county by a private bank. As you pointed out in your letter, Acts 1919, page 136, prohibited the use of the name of any city, town, or county by a private bank provided that the Act would not apply to banks already in existence and using such a name prior to its passage.
Also you refer to an Act passed by the General Assembly in 1960, approved March 24, 1960, whereby the legislature repealed Georgia Code 13-204 in its entirety and substituted in lieu thereof a new law, which in this regard is virtually the same, that is, the use of such a name is prohibited. The new law contains the following provision: "Provided that no private bank engaged in business at the time of passage of this Act shall be required to change the name adopted and in use by it."
It is my opinion, without reference to any penalty for violations prior to the passage of the new Act, that any bank adopting the name of any city, town, or county subsequent to the Act of 1919 and prior to the date of approval of the 1960 Act may continue to use a name and not be in violation of the law as it exists today and further that it would be proper for you to accept for registration private banks with such names acquired prior to March 24, 1960.

BANKS AND BANKING-State Banks

Authority and methods of borrowing by State Banks discussed.

Mr. W. D. Trippe, Superintendent of Banks

November 4, 1960

I am pleased to reply to your letter requesting an opinion as to the legality of such temporary financing by a State bank under the supervision of the State Banking Department, as is fully explained in detail in your letter and the attachments affixed thereto.

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In addition, you asked what restrictions, if any, are imposed upon a bank in its distribution and use of funds derived from the sale of such subordinate Capital Debentures as are involved in this matter.
At the outset, let me state that it seems quite clear, though the Legislature did not precisely so state or expressly provide, that a State bank has the authority to borrow money and issue evidences of such debt.
Code Section 13-201, in providing a definition of the term "bank", reads in part as follows:
"Sec. 1. (13-201) Definition of term 'bank'.-The term 'bank', as used in this Title, means any moneyed corporation authorized by law to receive deposits of money and commercial paper, to make loans, to discount bills, notes and other commercial paper, to buy and sell bills of exchange, and to issue bills, notes, acc.eptances or other evidences of debt, and shall include incorporated banks, ... "
"The well-settled rule that a private corporation organized for pecuniary profit may, unless forbidden by its charter, borrow money whenever the necessity of its business requires and may issue evidences of debt therefor is applicable to a bank corporation; expressed power to borrow is not necessary." American Jurisprudence, Vol. 7, Banks, Section 173, at page 133.
"Banks have power to borrow money under authority either implied from their general banking powers or expressly granted by statute; nor, except as such power may be restricted by express statutory limitation, is there any limitation as to the person or corporation from whom they may borrow, ... " G.J.S., Banks and Banking, Vol. 9, Section 170, at page 362.
The General Assembly of Georgia, it would appear, recognized that this authority existed when it enacted the following statutes limiting and regulating banks' indebtedness:
"Sec. 25 (13-2025) Restriction of Bank's Indebtedness.-No bank shall at any time be indebted to an amount exceeding double the amount of its capital stock actually paid in and remaining undiminished by losses or otherwise, plus the amount of the unimpaired surplus and undivided profits, except on account of the following:
"(1) Moneys deposited with or collected by the bank.
"(2) Bills of exchange or drafts drawn against money actually on deposit to the credit of the bank or due thereto.
"(3) Liabilities to the stockholders of the bank for dividends and reserve profits.
"(4) Commercial paper rediscounted.
" (5) Acceptances as herein authorized.
"(6) Liabilities incurred by the bank on account of the endorsement of checks, drafts, and bills of exchange, received by the bank on deposit, cashed or purchased by it, and endorsed by the bank:

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"Provided, however, that in case of temporary emergency, or to pay its depositors, temporary loans, in excess of the amount hereinabove fixed, may be made, when approved in advance by the Sup,erintendent of Hanks.''
"Sec. 26 (13-2026) Purchase of Hank's Obligations.-No bank, nor any of its directors, officers, agents or employees, shall directly or indirectly purchase or be interested in the purchase of any promissory note, certificate of deposit, or other evidence of debt issued by it, for a less sum than shall appear on the face thereof to be due thereon: Provided that a bank may discount its unmatured obligation at no more than the legal rate, which obligation shall be cancelled and satisfied forthwith."
The Supreme Court, in the case of Crawford, trustee, v. Roney, 130 Ga. 515, at page 521, made the following statement:
"A debenture is a writing acknowledging a debt."
It is therefore my opinion that a State bank has authority, incidental to the banking business, to borrow money, in the manner set out in your letter.
As you will note, from Code Section 13-2025 above-quoted, a bank may in case of a temporary emergency and with prior approval of the Superintendent of Banks, borrow money in excess of the "ceiling" placed upon the indebtedness which it might ordinarily incur.
In conjunction with the grant of such prior approval, the Superintendent has authority to require that certain conditions be met; otherwise he may decide to grant approval. This authority is found in Code Section 13-318, which reads in part as follows:
"The Superintendent of Banks shall make such rules and regulations to carry out the provisions of this Act as he may consider of value to the Department of Banking."
In reply to your second question, I cite the first paragraph of Code Section 13-2027:
"13-2027. Every bank whose deposits are subject to check shall at all times maintain a reserve of fifteen (15) per cent of the amount of its demand deposits, and five (5) per cent of the amount of its savings and time deposits. Savings banks and trust companies whose deposits are not subject to check without note shall maintain a reserve of five (5) per cent of the amount of their deposits. Such reserve shall consist of lawful money of the United States, gold certificates, silver certificates, Federal Reserve or National Bank notes, in the office and vaults of the bank, and of moneys on deposit subject to call with other banks or bankers, such banks or bankers to be approved by the Superintendent of Banks; Provided that the reserve against savings and time deposits may be invested in bonds of the United States or of this State at the market value thereof: Provided that any bank which is a member of the Federal Reserve System may in lieu of the reserve herein required keep and maintain such reserve as is required under the Acts of Congress relating to Federal Reserve Banks. Demand deposits within the meaning of this section shall comprise all deposits payable within thirty days,

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and time deposit shall comprise all deposits payable after thirty days and all savings accounts and certificates of deposit which are subject to not less than thirty days notice before payment: and, Provided that a bank shall have the right to pay checks drawn upon it when presented by any bank, banker, trust company, or any agent thereof, either in money or in exchange, drawn on its approved reserve agents, and to charge for such exchange not exceeding one-eighth of one (1) per cent of the aggregate amount of the checks so presented and paid."
In respect to this second question, it is my opinion that the borrowing of money by a bank does not alter the effect of Code Section immediately abovequoted, nor does it alter the application of any of the general banking statutory provisions governing the use and distribution of funds of a bank. These requirements may, however, be augmented by rules and regulations of the Superintendent of Banks under Code Section 13-318 heretofore quoted, and as a condition to the granting of prior approval for excess borrowing under the last. paragraph of Code Section 13-2025 also hereinbefore quoted.
BANKS AND BANKING-State Banks
State banks may purchase stock in qualified small business investment companies.
March 1, 1960
Honorable Harry Phillips
I am in receipt of your letter in which you inquire if there is any legal reason why State banks chartered under the laws of Georgia cannot have the same right to purchase stock in Federally licensed Small Business Investment Companies as national banks now enjoy.
Georgia Code Section 13-2023 (f) provides:
"... shares of stock in Small Business Investment Companies incorporated and organized under and pursuant to the Acts of Congress, and doing business in this State, shall be eligible for purchase and ownership by banks incorporated under the laws of this State, which are members of the Federal Reserve System, and non-member insured banks; except that in no event shall any such banks hold shares in Small Business Investment Companies in an amount aggregating more than one per cent. of its capital and unimpaired surplus."
"Nothing in this section is to be construed as applying to savings banks doing a savings business only; or as applying to securities actually owned by a bank on January 1, 1920; or as applying to securities actually owned by a bank at the time this section becomes effective."
Therefore, in view of the above code section, I see no reason why a state bank in Georgia cannot purchase stocks in Small Business Investment Companies that are qualified.

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BILLS AND NOTES-Negotiability
Discussion of notes and their negotiability.
September 11, 1961
Honorable Ben W. Fortson
Thank you for your letter requesting an official opinion whether a note containing the following provisions:
"THIS IS TO CERTIFY THAT John Doe whose mailing address is 2400 Peachtree Street, Atlanta, Georgia, has deposited with X CORPORATION, a Georgia corporation, the sum of Five Thousand DOLLARS to utilize as the Board of Directors deems proper.
X CORPORATION, for value received hereby guarantees to pay the holder above named, his personal representatives or heirs, at the office of the corporation in Atlanta, Georgia, said sum Eight Months after date hereof and guarantees payment of interest at the rate of eight per cent (8%) per annum, payable monthly.
This certificate may be called in by X CORPORATION, for payment any time before maturity at par plus the full guaranteed interest.
In case of default in any payment of interest or principal the Investor may proceed at once to levy against any property of X CORPORATION, for the collection of the principal, accrued interest, court costs, and reasonable attorneys' fees.
IN WITNESS WHEREOF the corporation has caused this instrument to be executed by its authorized officer and its corporate seal to be affixed this 8th day of September, 1961.
/s/ Richard Roe President"
constitutes commercial paper within the meaning of Section 97-106(g) of the Code of Georgia.
In formulating an opmwn in this matter, I will initially define the term "commercial paper" and then determine whether or not the above note is included in the definition.
The quest for the meaning of commercial paper involves statutory construction and, consequently, I will preface this aspect of the opinion by referring to two recognized rules of statutory construction. The first rule is contained in Code Section 102-102 (1) and provides that the following rule shall govern the construction of all statutory enactments: "The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject-matter." The term "commercial paper" is obviously connected with a particular trade or subject-matter and, therefore, should have the signification attached by experts. The other rule requires that exceptions to general provisions must be strictly construed, particularly where the purpose of the general provision is remedial in character, consequently, commercial paper, constituting an exception to the Georgia Securities

28
Act of 1957, should receive a strict construction. Dalton Brick & Tile Co. v. Huiett (1960) 102 Ga. App. 221, at p. 224, 115 S.E. 2d 748; Williams v. Seaboard Air-Line Railway Co. (1924) 33 Ga. App. 164, at p. 165, 3d par., 125 S.E. 769; Crawford on Statutory Construction (1940) Sec. 299, p. 610, 2d par. Furthermore, the intention of the legislature that exceptions under the Georgia Securities Act of 1957 should be strictly construed is evidenced by Code Section 97-115 (a) which provides that "In any action, civil or criminal, where a defense is based upon any exemption provided for in this Act, the burden of proving the existence of such exemption shall be upon the party raising such defense."
With this background, we shall now seek the definition of commercial paper. An eminent authority defines the term as follows:
The terms "commercial paper" and "negotiable paper", are synonymous, and embrace more than is covered by the expression "bills and notes." Commercial paper has been defined to be "bills of exchange, promissory notes, bank checks and other negotiable instruments for payment of money, which, by their form and their face, purport to be such instruments as are by the law merchant recognized as falling under designation of commercial paper." Again it is defined to comprise "negotiable paper given in due course of business, whether the element for negotiability be given it by the law merchant or by statute." Joyce on Defenses to Commerci:al Paper (1924) 2d ed., vol. 1, chapt. 1, subd. I, sec. 1, p. 1.
Another authority defines commercial paper as follows:
Commercial paper is a term synonymous with negotiable paper. It includes bills of exchange, promissory notes, bank checks, and all other negotiable instruments. It has been defined as any negotiable instrument given in due course of business, whether the element of negotiability be given it by the law merchant or by statute. This definition assumes negotiability as the essential element of negotiable paper. Eaton and Gilbert on Commercial Paper (1903) sec. 1, p. 2.
These definitions are in harmony with a host of others. 10 C.J.S. Bills and Notes, Sec. 3, p. 406; 7 Cyc., 521; Black's Law Dictionary (1951) 4th ed., p. 338, 1. col.; Ballentine's Law Dictionary (1948), p. 237, r. col.; Sup'p,lement to Ballentine's Law Dictionary (1954), p. 47, r. col.; Bouvier's Law Dictionary (3d rev.-1914) vol. I, p. 546, 1. col.; Webster's New International Dictionary (1951), 2d ed., p. 538, cen col.; Encyclopaedia Britannica (1954), Vol. 6, p. 115, 1. col.; The Encyclopaedia Americ~na (1957) Vol. VII, p. 387, r. col.; The Floyd Acc.eptancesPierce v. United States (1869) 74 U.S. 666, at p. 675, 3d par., 19 Law Ed. 169, at p. 173, 1. col., 1. par.; In re Sykes (1870) 23 Fed. Cas. 582, r. col., 2d par., Case No. 13,708; In re Nic.kodemus, 18 F'etl Cas. 222, at p. 224, 1. col., 3d par., Case No. 10,254; In re Hercules Mut. Life Assur. Soc. (1872) 12 Fed. Cas. 12, at p. 15, r. col., 1st par., Case No. 6,402; Martin v. McAvoy (1924) 130 Wash. 641, 228, p. 694, r. col., 5th par.; F'armers' National Baltk of Oskaloosa v. Stanton (1921) 191 Ia. 433, 182, N.W. 647, at p. 649, 17 A.L.R. 857, at p. 860, r. col.; Chase Nat'l Bank v. Faurot (1896) 149 N.Y. 532, 44 N.E., 164 at p. 165, r. col., 1. par., 35 L.R.A. 605; Bank of Newport v. Cook (1895) 60 Ark. 288, 30 S.W. 35, at p. 38, 1. col., 1st par.; McCurdy v. Bowes (1883) 88 Ind. 583; and Brainerd v. New York and Harlem Railroad Co. (1862) 25 N.Y. 496. An examination of these authorities reveals that the essence of commercial paper is negotiability.
Negotiability in the State of Qeorgia i,s fixed by the Negotiable Instruments Law codified as Title 14. Code 'Section t4c201 provides that an instrument to be

29
negotiable must be payable to "order" or to "bearer" which requirement is in accord with the law merchant. See also Code Sections 14-208, 14-209 and 14-210. An instrument failing to contain such words of negotiability is non-negotiable under the Negotiable Instruments Law. Mackin v. Blalock (1909) 133 Ga. 550 (1), at p. 552, 1. par., 66 S.E. 265; Ryals v. Johnson County Savings Bank (1899) 106 Ga. 525 (1), at p. 528, 1st par., 32 S.E. 645; Adams v. Robinson (1882) 69 Ga. 627 (1), at p. 629, 1. par.; Hamilton v. The Grangers' Life & Health Ins. Co. (1880) 65 Ga. 750 (2-a); Cohen v. Prater (1876) 56 Ga. 203; Reed v. Murphy (1846) 1 Ga. 236 (1); Broughton v. Badgett (1846) 1 Ga. 75 (2); Behrens v. Universal C.I.T. Credit Corp. (1956) 93 Ga. App. 406, 92 S.E. 2d 37; Mutual Investment Corp. v. Friedman (1951) 83 Ga. App. 544 (1-a), at p. 547, 1. par., 64 S.E. 2d 298; Suddath v. Blanchard & Calhoun (1931) 44 Ga. App. 149 (1), 160 S.E. 686; Metropolitan Discount Co. v. Wardlaw (1927) 37 Ga. App. 423 (2), 140 S.E. 525; and Barrow v. Blasingame (1907) 1 Ga. App. 358 (1), 57 S.E. 926.
An examination of the note in question reveals it is not payable to "order" or to "bearer" and that it does not contain equivalent words of negotiability, hence, the note is non-negotiable. In view of these considerations, it is my opinion that the note does not constitute commercial paper within the meaning of Code Section 97-106 (g).
BOATS AND BOATING-Crimes (Unofficial)
Violation of the Georgia Motorboat Numbering Act is punishable as for a misdemeanor.
May 30, 1961
Mr. Louis E. Johnson
This will acknowledge receipt of your letter relative to the charges made against you and the disposition thereof in the Dougherty County City Court.
As to the charges that were made against you, the General Assembly has provided that it shall be a misdemeanor to violate the provisions of the Georgia Motorboat Numbering Act (Georgia Laws 1960, page 235). I direct your attention to the provisions of Section 13 thereof, which provides the misdemeanor punishment.
For your further information, unless a different punishment is provided in the legislation defining the punishment for a violation, the maximum punishment is a fine of $1,000.00, imprisonment for twelve (12) months, and in addition thereto, confinement in the common jail for six (6) months, any one or all in the discretion of the court having jurisdiction.

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BOATS AND BOATING-Registration (Unofficial)
Non-resident servicemen are required to register their boats under the Motorboat Numbering Act after 90 days in State.
May 24, 1961
Mr. Luther C. Hames, Jr.
This is in reply to your inquiry requesting an opinion whether a non-resident member of the Armed Forces is required to purchase Georgia license plates for his automobile and his boat trailer and whether he is required to register his boat under the provisions of the "Georgia Motorboat Numbering Act" (Title 17, Ga. Code).
Non-resident servicemen who have current license plates issued by the State of their legal residence are not required to purchase Georgia license tags for either their automobile or their boat trailer, unless they are being used in a trade or business. Soldiers' and Sailors' Civil Relief Act, Title 50 574, U.S.C.: Opinions of the Attorney General 1957, p. 186 (June 25, 1957).
However, the "Georgia Motorboat Numbering Act" is not a revenue measure, but is a numbering system for regulating purposes. The Soldiers' and Sailor's Civil Relief Act does not, therefore, apply to this Act and servicemen, resident and non-resident, must register their privately owned boats. In this connection, attention is directed to Acts 1960, pp. 235, 237 (Code 17-605) which provides:
" ... a motorboat shall not be required to be licensed and numbered under this Chapter if it is:
(1) Already covered by a number in force and effect which has been awarded to it pursuant to Federal law or a federally approved number system of another State: Provided that such boat shall not have been within this State for a period in excess of 90 consecutive days."
BOATS AND BOATING-Registration
Registration of boats is not required when the lake is privately owned and not open to the general public.
June 14, 1960
Honorable Fulton Lovell, Director State Game and Fish Commission
You ask my advice regarding two conditions relative to the registration of boats. The first proposition is:
"Is the registration of a boat necessary on a private lake or pond when the definition of this private lake or pond does come under the prescribed definition as established in our laws?"
The definition of a private pond or lake prescribed under the laws of this State other than the Georgia Motorboat Numbering Act does not affect the ques-

31
tion of the registration of a boat because the Act, in Section 2, numbered paragraph 3, defines waters of the State, and then makes the exception in these words:
"Except privately-owned ponds or lakes not open to the general public."
The criteria in this instance is whether or not the pond or lake is privately owned.
The second proposition upon which you request advice is:
As to the registration of boats on ponds that are privately owned by one ownership where the owner, as a real estate developer, sells lots and the owners of these lots have lake privileges, such as placing their boats on the lake: Do these boats have to be registered under the new boating Act established by the General Assembly?
As was stated in reply to question number one, the criteria stated by the General Assembly is that waters of the State include all waters, fresh and salt, except privately-owned ponds or lakes not open to the general public. Therefore, where the privilege of using the pond or lake is limited to those persons owning lots someway connected with the ownership of the lake, then the pond or lake is not open to the general public within the meaning of the Georgia Motorboat Numbering Act. I deem it unnecessary to distinguish between the different methods by which such a right or privilege could be acquired, in that notwithstanding how the use was obtained, the fact that it was restricted would preclude use by the general public.
BOATS AND BOATING-Regulation
State rules and regulations adopted pursuant to the Georgia Motorboat Numbering Act are only applicable on public lakes and navigable streams.
April 4, 1961
Honorable Fulton Lovell, Director State Game and Fish Commission
This will acknowledge your request for my official opinion whether Section 1, subsection (g), of the Rules and Regulations relative to boating safety is applicable on water other than public lakes and navigable streams.
The Georgia Motorboat Numbering Act, 1960 Georgia Laws, page 235, defines "Waters of this State" to "include all fresh and salt waters in this State and the marginal sea adjacent to this State and the high seas when navigated as a part of a journey or ride to or from the shores of this State except privatelyowned ponds or lakes not open to the general public."
Section 10 A of that Act authorizes the Commission to adopt, promulgate and enforce safety rules and regulations relative to boat equipment, operation, lights and navigation rules as the Commission shall deem necessary. That Section also provides that such rules and regulations shall remain in force and effect until the next regular session of the General Assembly, at which time the General Assembly shall confirm or reject said rules and regulations. The 1961 General Assembly, by House Resolution No. 144-415, adopted said Rules and Regulations,

32
the Senate having taken action thereon on March 6, 1961, subsequent to action by the House of Representatives.
Section 1, subsection (g), of the Rules and Regulations so promulgated so provides:
"Section 1. Any person operating a boat, vessel, or watergoing craft on the waters of this State shall observe the following rules and regulations:
"(g) The operators of all motorboats and the operator of any watercraft on the public lakes and the navigable streams shall have aboard one life preserver, buoyant vest, ring buoy or buoyant cushion, of the type approved by the U. S. Coast Guard, in good and serviceable condition for each person on board."
You will note that subsection (g), while being a part of Section 1, is limited in its application to public lakes and the navigable streams.
Code Section 85-1303 defines a navigable stream. The Appellate Courts have construed this Code Section on several occasions. In Brantley v. Lee, 139 Ga. 600, which involved the authority to build a bridge across the Ogeechee River between the Counties of Screven and Bulloch, the Court stated:
" ... The testimony showed that the Ogeechee River at those points was not a navigable stream according to the Civil Code, Section 3631 (now Code, 85-1303), which defines a naviga'ble stream as one capable of bearing upon its bosom either for a whole or a part of the year, boats loaded with freight in regular course of trade."
The Supreme Court, in Charleston and Savannah Railway v. Johnson, 73 Ga. 306, held that Knoxboro Creek, which was 75-200 feet wide, and 14 feet deep at the bridge (point of controversy), and with a 3lh-foot tide, to be a navigable stream within the meaning of this Code Section.
From the above, I am of the opinion that the language used in subsection (g) qualifies, the language set forth preceding that Section and that the rule and regulation as to the use of life preservers, buoyant vests, and similar equipment as enumerated in subsection (g), is applicable only on public lakes and navigable streams.
BONDS-Authorities (Unofficial)
Authority bonds are not direct obligations or debts of the State of Georgia.
February 9, 1961
Mr. Irvin T. Ragsdale
With respect to your letter concerning an amendment to the Georgia Constitution (Ga. Laws 1960, p. 1273), it is my opinion that this amendment has no effect upon the question of whether authority bonds are a direct obligation of the State of Georgia.

33
The Supreme Court of Georgia has stated that authority bonds of the State School Building Authority and the State Bridge Building Authority are not direct obligations or debts of the State of Georgia. These authorities are instrumentalities of the State, but they are not the State, nor a part of the State nor an agency of the State. Their obligations "are first, last, and always a corporate debt of the authority and in no sense a debt of the State." McLucas v. State Bridge Building Authority, 210 Ga. 1, 6; Sheffield v. State School Building Authority, 208 Ga. 575.
The Constitutional Amendment of 1960 to which you refer merely provides that appropriations shall be made to each department, agency or institution of the State in sums sufficient to satisfy the payments required to be made in each year under lease contracts now or hereafter entered into between the State and any State authority. These lease contracts are authorized under Article VII, Section VI, Para. I of the Georgia Constitution of 1945. Obligations of the lessor cannot be made obligations of the lessee by merely providing that funds will be appropriated to meet the payments of the lessee under the lease contracts.

BONDS-Gash Bond Act (Unofficial)

The Cash Bond Act is not applicable to offenses under the Water Safety Act.

Honorable Sidney 0. Smith, Jr.

September 20, 1960

You ask whether the Cash Bond Act, Georgia Laws, 1953, page 331, permits cash bonds to be made by persons charged with offenses under the Water Safety Act, Georgia Laws, 1960, page 235.

Although the Cash Bond Act does not specifically limit the cases in which such bonds may be made to cases arising out of violations of the highway traffic laws, it appears that the requirement set out in Section 2 of the Act, that a triplicate copy of every receipt for a cash bond must be mailed to the Director of the Department of Public Safety, would indicate strongly that the Legislature intended "traffic" as used in the Cash Bond Act to refer to motor vehicular highway traffic. Therefore, cash bonds would seem to be authorized only in cases arising out of violations of the highway traffic laws. Thus, I feel compelled to answer the question posed by you in the negative.

BONDS-County Bonds

The fee due the Clerk of the Superior Court of a county for his "certificate and seal" on general obligation bonds explained.

Dr. Claude Purcell, State Superintendent of Schools

November 7, 1961

I am pleased to acknowledge receipt of your request for an official opinion regarding the following question:

34

"Is the fee due the clerk of the court in a county 'for his certificate and seal' on general obligation bonds limited to 75 cents per bond?"
It is my understanding that the question asked pertains to validation of general obligation bonds issued by a county pursuant to provisions contained in the Georgia Constitution, Article VII, Section VII, Paragraph I, and Code Chapters 32-14 and 87-3, and not to validation of bonds issued under Code Chapters 32-14A and 87-8, which chapters provide therein for payment of court clerk fees in certain specified amounts.
Code Section 24-2727 provides in part as follows:
"Fees enumerated.-The Clerks of the Superior Courts of this State shall be entitled to charge and collect the following fees for official duties performed by them: Provided, that in all counties in this State where the Clerk of the Superior Court is on a salary basis the fees herein provided shall be paid into the county treasury, to wit:

Civil Cases

* * *
Certificate and seal, each_________ ----------------------------------------------------_-----$ .75

* * *
In Walker v. Sheftall, 73 Ga. 806, the Georgia Supreme Court stated:

"Acts providing for costs and salaries are to be strictly construed, and the measure of the compensation cannot be increased by construction, or in any indirect manner, beyond the amount specified by law."

See also, McAlpin v. Chatham County, 26 Ga. App. 695 and Owens v. Maddox, et al., 80 Ga. App. 867.

The fee to be paid a court clerk for placing his certificate and seal on validated general obligation bonds is not without ambiguity, but after consideration and in light of the principles stated in the foregoing cases I have come to the conclusion that the proper fee to which the clerk is entitled is limited to $.75 for his combined "certificate and seal" and not $.75 each for the certificate and for the seal for a total of $1.50. A Superior Court Clerk may be called upon on occasion to place his certificate and seal on many varied types of documents, court records, etc., and, in some cases possibly, on a number of copies of such documents and records. In this regard, therefore, I am of the opinion that the word "each" as contained in the foregoing code section is to be construed as referring to each combined "certificate and seal" which a clerk may be called upon to place on a document or record or a duplicate or triplicate copy thereof.

The foregoing appears to be strengthened more so when the aforementioned code section is considered and construed in pari materia. with other code sections specifying fees chargeable in certain instances. It might be noted that a Justice of the Peace may charge a fee of only $.25 for affixing his "seal" per Code Section 24-1601. By Code Section 24-1716 an ordinary is allowed the following relevant fees:

"For seal and certificate, each.____________________________

$1.00

* * *
For certified copies of letters administration, letters testamentary, or guardianship, including certificate and seaL__________________________$2.00"

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If the word "each" in the above-stated ordinary's fees for certificate and seal referred to the words individually, then his fee therefor would be $2.00, which fee would not appear to be logical in my opinion in light of the second of the abovestated ordinary's fees which provides merely for a $2.00 fee for his furnishing of a certified copy of the records enumerated complete with his seal and certificate. I am of the opinion, therefore, that the word "each" as here considered refers to the ordinary's or the court clerk's combined "certificate and seal" when placed and affixed by him on documents as required by law.
BONDS-County Industrial Revenue Bonds
Discussion of Quitman County Industrial Revenue Bonds.
May 30, 1961
Honorable Jack J. Minter
This will acknowledge receipt of your letter in which you ask in essence the procedure to be followed in order to secure a final judgment as to the legality of revenue bonds to be issued by Quitman County, Georgia, to finance the building of industrial plants and facilities.
The General Assembly of Georgia by Resolution, 1960 Georgia Laws, pages 1253-1255, approved the submission of a proposed constitutional amendment to the voters of Quitman County. This Resolution proposed amending Article VII, Section 7, Paragraph 5, of the Constitution of Georgia in order to authorize Quitman County to issue revenue bonds for the purpose of securing funds to purchase, construct, or enlarge plants, equipment, and facilities suitable for use by manufacturing industries. The proposed amendment was favorably acted upon by a majority of the voting electors of Quitman County at the General Election held on 8 November, 1960. Thus, this amendment is now a part of the State Constitution.
This constitutional amendment sets out the procedure to be followed in validating the bonds to be issued. Section 1 specifies that, after authorization of the bonds by the governing body of the County, they shall be validated, issued, and delivered in accordance with the Revenue Bond Law (1937 Georgia Laws, page 761) as amended, (Chapters 87-8, Georgia Code Annotated Supplement), as if said obligations had been originally authorized to be issued under that Act.
Turning to the applicable statute, the Revenue Bond Act of 1937, as amended, it will be noted that Section 9-18 establish the procedure to be followed in validating bonds to be issued under the Act. Since photostatic copies of the Act are enclosed, I shall not set out in detail the steps to be followed, but will merely summarize them. The Act requires that within six (6) months after the passage of the Resolution authorizing the issuance of the bonds, the Solicitor General of the Judicial Circuit in which the political subdivision issuing said bonds is located, or the Attorney General, if he be absent, must be notified of the passage of the Resolution. Within twenty (20) days from the date of service of said notice the Solicitor General, or the Attorney General, must file in the office of the Clerk of the Superior Court of the County issuing the bonds a petition setting out that the bonds involved are sought to be issued and obtain from the Judge of the

36
Superior Court an order requiring the officers of the political subdivision involved to show cause within twenty (20) days why the bonds should not be validated. On the trial of the case, the Judge must hear and determine all questions of law and fact and render judgment thereon. His judgment confirming and validating said bonds, if not excepted to, is made final and forever conclusive as against the political subdivision issuing them. If the judgment of the Superior Court validating the bonds is excepted to by any party, taken to the Superior Court, and there affirmed, the judgment of that Court becomes final and forever conclusive as to the validity of the 'bonds as against the political subdivision issuing them.
It therefore seems clear that the proper procedure to be followed in securing a final judgment as to the legality of the revenue bonds to be issued by Quitman County in pursuance of the constitutional amendment above referred to is that set up under the Revenue Bond Act of 1937, as amended.
BOUNDARIES-Georgia-Alabama Boundary (Unofficial)
Georgia-Alabama boundary recited.
June 1, 1960
Mr. W. Fred Robison
This will acknowledge receipt of your request for information concerning the State line between Georgia and Alabama.
The Georgia Code, Section 15-101, in part, provides:
"The boundaries of Georgia as deduced from the Constitution of Georgia, the Convention of Beaufort, the Articles of Cession and Agreement with the United States of America entered into on the 24th of April, 1802, the Resolution of General Assembly of December 8, 1826, and the adjudications and compromises affecting Alabama and Florida, are as follows:
" . . . thence on said line of said 35th parallel, from said point of intersection, and on and along said line west, to a point where it merges into and becomes the northern boundary line of Alabama- it being the point fixed by the survey of the State of Georgia, and known as Nickajack; thence in a direct line to the great bend of the Chattahoochee River, called Miller's Bend-it being the line run and marked by said survey; and thence along and down the western bank of said Chattahoochee River, along the line or limit of high-water mark, to its junction with Flint River; ... including all the lands, waters, islands, and jurisdictional rights within said limits, and also all the islands within 20 marine leagues of the seacoast."
Section 15-104 of the Georgia Code provides:
"The boundary line between Georgia and Alabama shall be the line described from Nickajack to Miller's Bend on the Chattahoochee River. and down said river to its junction with the Flint River."

37
CIVIL DEFENSE-Fall-out Shelters (Unofficial)
Liability for personal injury incurred in privately owned fall-out shelters discussed.
December 11, 1961
Mr. John S. Gilmore
Your letter relating to community fall-out shelters and the feasibility of "shelter districts" for equipping and maintaining this type fall-out shelter has been referred to the undersigned for reply.
It seems your request is a two fold proposition one of which is a request for an opinion as to the legal feasibility and problems of shelter districts in Georgia and the other is in relation to the question of liability where an injury occurs to some person visiting the shelter in a privately-owned building.
In answer to the first proposition, it does not appear that we have similar legislation as the undersigned has found no statute setting up "Shelter Districts" such as you seem to have in Colorado. To encompass the entire State with such a plan would in the opinion of this writer require an Amendment to the State Constitution. One of the main reasons for this requirement would seem to be the idea of taxation to supply and maintain these shelters on a shelter district basis.
The question of liability in certain situations for injuries occurring in privately-owned buildings is covered by statute and in this connection below is quoted for your reference, Ga. Code Ann., 86-1822:
"When any person, firm or corporation owning or controlling any real estate or other premises shall authorize and permit any civil defense agency, board or other authority of this State, or of any political subdivision of this State, to use such premises without charge therefor for the purpose of sheltering persons during an actual or practice attack or raid as contemplated by this Chapter, such person, firm or corporation, at such times and for such periods during which said premises are so occupied and actually employed for purpose of civil defense, shall be clothed with the sovereign immunity of the State; and no civil action shall be brought or maintained against any such person, firm, or corporation to recover damages for personal injuries or death of any person while on said premises during an actual or practice attack or raid, or for the loss or destruction of personal property brought upon said premises by any person seeking shelter thereon during an actual or practice attack or raid."

38
CIVIL DEFENSE-Local Organizations
Effect of Executive Order issued November 1, 1960, relating to establish~ent of local organizations for civil defense discussed.
December 1, 1960
Major General George J. Hearn, Director, Department of Defense
My opinion has been requested on two questions, which follow:
1. Does the Executive Order issued November 1, 1960, relating to establishment of local organizations for Civil Defense require that cities having a population of 1,000 or more obtain a certification from the Director of Public Defense within three months so as to have their own local organization under the Georgia Civil Defense Act?
The answer to this question would, in my opinion, be no, in that the statute pursuant to which the Executive Order was written specifically authorizes and directs the establishment of a local organization for Civil Defense in each city of this State having a population of 1,000 or more. The Act further provides that 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. This is, in my opinion, what has been done by the Executive Order. Exclusion number (3) of the last paragraph thereof pertains only to cities or towns in the State of Georgia having less than 1,000 population. In view of the above, the requirement set forth in the last mentioned part of the Executive Order would, in my opinion, only require those cities and towns of less than 1,000 that desire to have their own organization under the Georgia Civil Defense Act to obtain the certification from the Director of the Department of Public Defense.
2. Are county and city civil defense organizations that were organized prior to the above-referenced Executive Order organized pursuant to the Georgia Civil Defense Act?
In this connection, I can only say that I know of no action by the Governor, or the Director of the Department of Public Defense at the request of the Governor, establishing local organizations in cities of less than 1,000 population or in the counties of this State. However, this should not be taken as indicating that no such action has been taken as there may be records relating to same of which I would have no knowledge. The cities of this State having a population of 1,000 or more would not be affected by the Executive Order in that they are directly provided for by the Act. In further answer to this question, I refer you to an opinion dated June 9, 1959, copy of which is attached.

39
COASTAL WATERS AND TIDELANDS-Tidewaters (Unofficial) Discussion of tidewaters. May 18, 1960
Honorable Will Wilson Attorney General of Texas
To my knowledge the question posed in your letter concerning the public's right to free access and use of the sandy area of the coast of Georgia has never come up for discussion. I am setting out below various statutes in Georgia that might be of some assistance. Also, I am enclosing an opinion of the Attorney General of Georgia in 1890 concerning "Head Rights".
Georgia Code Annotated, 15-101, states that the boundary of the State of Georgia is as follows:
"... extending therein three English miles from low-water mark ..." up the entire Atlantic coast. Georgia Code Annotated, 85-1309 provides as follows:
"Rights of owners of land adjacent to navigable tidewaters.-For all purposes, including among others the exclusive right to the oysters and clams (but not to include other fish) therein or thereon being, the boundaries and rights of owners of land adjacent to or covered in whole or in part by navigable tidewaters, as defined in the preceding section, shall extend to low-water mark in the bed of the water. . . ." Georgia Code Annotated, 85-1308 provides as follows:
"Navigable tidewater defined.-A navigable tidewater is any tidewater, the sea, ..."
CONSTITUTIONAL LAW-Amendments (Unofficial) Advertising intention to introduce local constitutional amendments dis-
cussed. December 16, 1960
Honorable Carl E. Sanders Thank you for your letter in which you requested an opmwn construing
Local Constitutional Amendment No. 70 permitting through enabling legislation the consolidation of city and county governmental functions in Richmond County, Georgia, which was ratified by the electors in the General Election held on November 8, 1960. The construction you requested specifically related to whether or not the Amendment's initial phrase "Any other provision of this Constitution notwithstanding, the General Assembly shall have power ... " exempted such enabling legislation from the effect of the first two sentences of Paragraph XV

40
of Section VII of Article III of the Constitution of the State of Georgia (Code Section 2-1915) concerning the necessity of publishing notice of intention to ask for local legislation, which is hereafter referred to as the notification provision.
In order to determine the effect vel non of Amendment No. 70 upon the notification provision, I shall review some of the fundamental principles of construction which are controlling in this matter. The different provisions of the constitution should be harmonized if practicable. Hammond v. Clark (1911) 136 Ga. 313 (lOa), at p. 328; McLucas v. State Bridge Building Authority (1953) 210 Ga. 1, at p. 13, first para. Distinct constitutional provisions are repugnant to each other only when they relate to the same subject, are adopted for the same purpose and cannot be enforced without substantial conflict. 16 C.J.S. Const. Law, Sec. 24, p. 97. An amendment should not be construed as affecting any greater innovation on the existing constitution than is reasonably necessary to accomplish the object of its enactment. 16 C.J.S. Const. Law, Sec. 26, p. 99, rt. col., last para.; id., Sec. 42, p. 132, rt. col.; DeJarnette v. Hospital Authority of Albany (1942) 195 Ga. 189, at p. 204. No implication of intention with respect to one part of the instrument can be justified which does violence to a plainly expressed intention to be found in another part. 16 C.J.S. Const. Law, Sec. 38, p. 117. See also Asp,ironal Laboratories Incorporated v. Mallinckrodt Chemical Works (1935) 180 Ga. 544 (1).
In view of these well-established principles of constitutional construction, it is my opinion that the intention to introduce enabling legislation to implement Amendment No. 70 should be advertised pursuant to the notification provision. Furthermore, to opine otherwise would not only countenance an improper exemption from the effect of the salutary notification provision, but would also provide a sophistical basis for exempting the Amendment from the effect of numerous other constitutional safeguards.
CONSTITUTIONAL LAW-Legislation
Period of time allowed for Governor to approve Bills passed by General Assembly discussed.
February 7, 1961
Honorable Ernest Vandiver, Governor of the State of Georgia
I am pleased to acknowledge your request concerning the question of the period of time allowed for you to sign Bills that have been passed by the General Assembly of Georgia prior to their adjournment on February 2, 1961 but have not been formally presented to you for your approval or disapproval.
Article V, Section I, Paragraph XV of the Constitution of 1945, as amended in 1952 (Ga. Laws 1952, p. 522) provides as follows:
"The Governor shall have the revision of all Bills passed by the General Assembly before the same shall become laws, but two-thirds of each House may pass a law notwithstanding his dissent; and if any Bill should not be returned by the Governor within five days (Sundays excepted) after it has been presented to him, the same shall be a law;

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unless the General Assembly, by their adjournment, shall prevent its return, in which event the Governor shall have thirty days (Sundays excepted) from the date of adjournment in which to approve the same, and if not approved within that time, the same shall not become a law. He may approve any appropriation, and disapprove any other appropriation, in the same Bill, and the latter shall not 'be effectual, unless passed by two-thirds of each House.''
The Resolution adopted by the House and Senate on February 2, 1961, is as follows: "Be It Resolved By The General Assembly Of Georgia that the House and Senate adjourn at 3:00 o'clock p.m., Thursday, February 2, 1961. ... "
It is my opinion that under the above Constitutional provision all Bills that have been passed by the General Assembly of Georgia prior to their adjournment on February 2, 1961 but have not been formally presented to you for your approval or disapproval must be acted upon by you within thirty days (Sundays excepted) from February 2, 1961 in order to become law.
The legal basis for this opinion is set out in an opinion by me dated February 23, 1953 to the Honorable Herman E. Talmadge a copy of which is attached hereto. (Opinions of the Attorney General, 1952-1953, p. 368).
CONSTITUTIONAL LAW-Legislation
The classification of "population" Acts must be nonrestrictive so there is more than a remote possibility counties may later remove from its applicability, or come under such applicability.
May 20, 1960
Honorable Claude Purcell, State Superintendent of Schools
Receipt is acknowledged of your letter asking my opinion as to the legality of paying $20 per diem to the members of the Long County Board of Education.
Code Section 32-904, as amended by the General Assembly at the 1959 Session (Ga. Laws 1959, p. 231), provides 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 ten dollars ($10.00) for each day of actual service. The accounts for such service shall be submitted for approval to the county superintendent of schools. In all counties the compensation of the members of county boards of education shall be paid only from the local tax funds available to county boards of education for educational purposes. Provided, however, that nothing herein contained shall affect a county board of education or school system created prior to the Constitution of 1877.''

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An Act of the General Assembly of 1956 (Ga. Laws 1956, p. 3267) provides as follows:
"Section 1. In all counties of this State having a population of not more than 3,700 and not less than 3,585, according to the 1950 Federal Census, or any future such census, the members of the county boards of education shall be compensated in the amount of $20 per day for each day's actual service, but not to exceed twenty-four days service in any one calendar year."
Article I, Section IV, Paragraph I, of the Constitution of Georgia (Code Sec. 2-401) provides, in part, as follows:
"Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law."
As you will note by Code Section 32-904 above, there is a general law relating to the compensation of members of the various county boards of education. It therefore becomes necessary to ascertain whether a 1956 Act is a special or general law. It will be noted that the population figure used in the 1956 Act restricts its application to one county, that being Long County, which, according to the official Federal Census of 1950, had a population of 3,598.
It is interesting to note that a very similar Act, which was dealt with in the case of Goodson v. Hood, 185 Ga. 426, provided that in all counties having a population of not more than 4,350 nor less than 4,340, according to the official census of the United States of 1930 or any future census, the county board of education was to be appointed by the Superior Court Judge of the county. The only county affected was Towns. That Act was held unconstitutional and the first headnote of that case reads as follows:
"1. The possibility of other counties having such population by any subsequent census is too remote to form a basis for a reasonable classification on the subject of territorial generality of the Act; and in passing on its constitutionality the Act will be construed as applying only to Towns County, and consequently it is a special law within the meaning of the constitution inhibiting the passage of special laws for which provision has been made by an existing general law. The Act is more restricted, relatively to the generality of its application, than the Acts involved in Thomas v. Austin, 103 Ga. 701 (30 S. E. 627), which were held not to be the general laws."
Another similar Act was dealt with in the case of Estes v. Jones, 203 Ga. 686. In this case the court said, at p. 689, the following:
" ... the classification must be open to let in counties subsequently falling within the class, as well as open to let out a county which, either by increase or decrease of population, ceases to have the required population; and must not be so 'hedged about and restricted that the Act applies only to one county.' Sumter County v. Allen, 193 Ga. 171, 176. In the instant case, the classification of counties having a population of 'not less than 85,000, and not more than 90,000, according to the United States Census of 1940 or any future census', meets the requirement as to being open so as to be applicable to all counties coming within the prescribed classification; ... "

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The last above cited case is also authority for the proposition than an Act of the General Assembly is clothed with a presumption of constitutionality.
As you will note under Code Section 32-904, as amended in 1959, the compensation of members of county boards of education, can now be set by a local Act.
The 1956 Act above quoted cannot be treated as a local Act as it does not meet the requirements of Article III, Section VII, Paragraph XV of the Constitution (Code Sec. 2-1915) because "Notice of Publication of Intention to Introduce Local Legislation" and the affidavit of the author or certificate of the publisher to that effect was not attached to the enrolled Bill.
Whether or not the 1956 Act is unconstitutional as too restrictive to be a general law is a question for determination by the courts as they are the final authority with regard to declaring an Act of the General Assembly unconstitutional.
What action, if any, that should be taken in order to have a judicial determination, is a matter of local concern, and addresses itself to the county authorities and the county attorney.

CONSTITUTIONAL LAW-Prohibition Against Gratuities

Expenditure of State funds to furnish secretarial service to a non-state agency would violate prohibition against gratuities.

Honorable Pete Wheeler Director of Veterans Service

December 23, 1960

You request my opinion whether you may legally expend State funds to furnish secretarial service to the Disabled American Veterans as set forth in your letter to me.

The Constitution of the State of Georgia is very clear as to the purposes for which taxes may be levied. They are enumerated in Article VII, Section II, Paragraph I (Georgia Code Annotated Section 2-5501) thereof.

Article VII, Section I, Paragraph II of the Constitution, subparagraph 1 (Georgia Code Annotated Section 2-5402) provides:

"1. The General Assembly shall not by vote, Resolution or order, grant any donation or gratuity in favor of any person, corporation or association."

Further, Article VII, Section II, Paragraph III of the Constitution (Georgia Code Annotated Section 2-5503) provides in part:

" ... and shall be appropriated therefrom, as required by this Constitution, for the purposes set out in this Section and for these purposes only."

Without more, these provisions of the Constitution prohibit the expenditure of funds for the purpose outlined in the information submitted.

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CONSTITUTIONAL LAW-Prohibition Against Gratuities
House Resolution No. 61-151 of 1961 General Assembly violates and is invalid.
April 10, 1961
Honorable S. Ernest Vandiver, Governor, State of Georgia
This will acknowledge receipt of your request for my opinion concerning the constitutionality of House Resolution No. 61-151, 1961 General Assembly.
On its face, the Resolution raises the question as to its constitutionality in view of Article VII, Section I, Paragraph II, Subparagraph 2 of the Constitution (Georgia Code Annotated, 2-5402), which reads:
"2. 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."
The above quoted provision of the Constitution is applicable particularly in view of the second paragraph of the Resolution, which reads:
"Whereas, the work of removing and relocating the utility facilities contemplated by said item of said contract and all other work called for in said contract has been completed by the contractor; and".
Thereafter follows a statement, to-wit:
" ... and the authority of the State Highway Department of Georgia to make payment of said amount is in question."
It therefore follows that if the authority of the State Highway Department to contract for such work was non-existent at the time the contract was entered into, the above quoted provision of the Constitution would be applica'ble in that the work actually performed and that has been completed that was without the authority of the Highway Department to contract for would be within the prohibition of this constitutional provision.
Article I, Section IV, Paragraph I of the Constitution (Georgia Code Annotated, 2-401), prohibits special legislation in any case for which provision has been made by an existing general law. If we accept the proposition that the Resolution merely authorizes the Highway Department to enter into such an agreement, the Resolution falls within the prohibition contained in this provision of the Constitution in that the existing general laws of the State prescribe the duties and authority of the State Highway Department. No one can seriously
question the fact that this authority is purported to be granted in a specific case
under specific circumstances and would be applicable only to the work that has been completed and for which compensation is sought to be provided. Further, no one could say that this Resolution purports to grant to the State Highway Department any authority to contract except as enumerated in the Resolution, which, without more, is special legislation.
Article III, Section VII, Paragraph XX of the Constitution (Georgia Code Annotated, 2-1916), specifies the manner of amending or repealing existing laws. If it be seriously contended that this Resolution is an Amendment to the general laws of the State relative to the authority of the State Highway Depart-

45
ment to contract, then the Resolution on its face shows that it does not purport to amend any existing law. Further, if the Resolution be construed as authorization to the State Highway Department to make the payment, then the question arises as to why the language was used therein directing the State Highway Department to pay to the contractor a specified sum.
All of the above quoted provisions of the Constitution and the expressions in relation thereto must be construed in light of the power conferred on the General Assembly by Article III, Section VII, Paragraph XX (Georgia Code Annotated, 1920), which 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."
Of course the presumption is present until disproven that the General Assembly has acted within the authority conferred upon that body. However, after careful analysis of the Resolution, I am of the opinion that the Resolution is unconstitutional in that it is violative of Article VII, Section I, Paragraph II of the Constitution (Georgia Code Annotated, 2-5402), and Article I, Section IV, Paragraph I of the Constitution (Georgia Code Annotated, 2-401).
I realize,, of course, that a construction should be placed upon an Act of the General Assembly that will uphold its validity wherever possible. However, in view of the language used and the purpose sought to be accomplished by thi!s Resolution, I can arrive at no firm opinion other than that expressed hereinabove.
CONTRACTS-Minors (Unofficial)
Law pertaining to capacity of minors to contract cited.
March 1, 1961
Mr. G. E. Brown
This is to acknowledge receipt of your letter of recent date making inquiry as to an infant or minor making contracts. You mention in your letter that a minor eighteen years of age is allowed to vote, yet is not bound for his contracts, and ask an explanation.
The Constitution of Georgia bestows upon every person who has reached the age of eighteen the right to vote, provided, of course, he is otherwise qualified.
A person in this State is considered an infant or minor as far as being able to contract is concerned until he has reached the age of twenty-one.
Section 20-201 of the Code of Georgia of 1933, reads as follows:
"20-201. Infants' contracts.-Generally the contract of an infant is voidable except for necessaries. In order to charge an infant for necessaries, the party furnishing them must prove that the parent or guardian fails or refuses to supply sufficient necessaries for the infant. If, how-

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ever, the infant receives property, or other valuable consideration, and after arrival at the age of majority retains possession of such property or enjoys the benefits of such valuable consideration, such a ratification of the contract shall bind him. (Acts 1858, p. 58; 7 Ga. 568; 33 Ga. App. 203 (125 S.E. 787) ."
Section 20-202 of the Code of Georgia reads as follows: "20-202. Infancy a personal exemption.-The exemption of the in-
fant is a personal privilege. The party contracting with him may not plead it, unless he was ignorant of the fact at the time of the contract; nor may third persons avail themselves of it as a defense."
Code Section 20-203 reads as follows:
"20-203. Infant doing business by permission bound.-If an infant, by permission of his parent or guardian, or by permission of law, practices any profession or trade, or engages in any business as an adult, he shall be bound for all contracts connected with such profession, trade or business."
Code Section 20-205 reads: "20-205. Loan of educational trust fund to minors.-Any contract,
promissory note, written obligation or other evidence of indebtedness made and executed by a minor for a loan from any trust fund for educational purposes to any educational institution shall be as valid and binding as if said minors were at the time of making such contract or other obligation sui juris and otherwise capacitated to contract. (Acts 1911, p. 163.)"
To be able to contract marriage the male must be at least seventeen years of age, and the female at least fourteen years of age.
Section 20-204 of the Code reads:
"20-204. Marriage contracts and settlements of infants.-Marriage contracts and settlements made by infants, but of lawful age to marry, are binding as if made by adults."
Marriage contracts and settlements of infants' marriage contracts, and settlements made by infants of lawful age to marry, are binding as if made by adults.
CONTRACTS-State
Discussion of procedure in case of deficiencies under construction contracts for the State.
February 7, 1961 Honorable H. E. Ruark, Director Georgia Forest Research Council
I have your letter with attachments relating to the window wall deficiencies on the Southern Forest Fire Laboratory. You ask that I study the case and give you an opinion as to what course of action is open.

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It appears from the attachments to your letter that the Engineer on the job has recommended that the owner make good the window wall deficiencies and deduct the cost thereof from the payments due the contractor; as provided under Article 21, Section 5, page 5 of the Specifications. Nothing appearing to the contrary, I, therefore, assume you desire to follow these recommendations and that your request to me is for my opinion as to the legality of doing same and for my further opinion as to the procedure that should be followed.
It would appear that the owner could after three days' written notice to the contractor make good the deficiencies and deduct the cost thereof from the balance due on the contract, provided both actions have the approval of the engineer, which I suggest be in a written form. For your convenience and consideration, I am attaching a suggested form for giving the contractor the three days' notice, copy of which should also go to the bonding company. This notice should be served as provided in Article 1, paragraph (d), Section 5, page 5 of the Specifications. I further feel that under Georgia Code Annotated, Section 43-808 relating to the records and proceedings of the Board of Commissioners, their decision and the authority for you to give the notice, if you are to give same, in this matter should be reflected as provided therein.
Upon following the above and allowing at least the three days' notice, I am of the opinion that it would then be appropriate for the owner to make good the deficiencies.
The next question. that seems to appear is the contracting for the corrective work. The recommendation to you by the engineer was that a contract for this purpose be negotiated with the window wall manufacturer. His reasoning in this connection, as set forth in his "Information Statement on Window Wall Deficiencies", seems to be sound, particularly in that the reputation of the window wall manufacturer would be involved. As you know, construction contracts are generally let after competitive bidding; however, I know of no statute that would prohibit the Georgia Forest Research Council from negotiating a contract in this type situation. It should be noted in this connection, however, that public policy would have to be considered along with the rules and regulations set up by the Budget Bureau. In this connection, it will probably appear that an estimate or bid from one or more other window wall manufacturers should be obtained and compared either on an overall cost basis or on a cost plus percentage basis. However, as you indicated in your letter that you would consult with an official of the Budget Bureau, I will only suggest that you obtain their approval as to method prior to entering into a contract for this corrective work.
CONTRACTS-State
The State may enter into a contract with an individual though contract executed in registered trade name.
March 17, 1960
Hon. Charles A. Collier, Director Department of State Parks
I am in receipt of your letter of March 16, 1960, wherein you state that a low bid was submitted for a swimming pool filter system by "Frank M. Flanders &

48
Company" on February 10, 1960, and that Frank M. Flanders & Company also furnished a bid bond at that time. On March 14, 1960, you received a contract and performance bond, both signed in the name of "Frank M. Flanders." You state that you are reluctant to proceed with the awarding of the contract under the circumstances and that Mr. Flanders has supplied you with a notarized letter in which he stated that "Frank M. Flanders & Company" is a registered trade name. You request my opinion as to the propriety of executing the referred to contract under the circumstances.
It has been held that an individual, or an unincorporated association, operating under a trade name should sue and be sued in the same manner as any other person or unincorporated association. Thus, the individuals are the parties. Martin v. Weltman, 82 Ga. Apps. 375.
Therefore, I conclude that if the courts recognize that there is no distinction between an individual and an individual doing business under a registered trade name, you are within authority to execute the contract as outlined.
CORPORATIONS-Charters
Georgia law does not require a certified abstract of the stockholders' meeting as a part of an application for charter.
April 15, 1960
Honorable Ben W. Fortson, Jr. Secretary of State
I am pleased to acknowledge your request in which you asked the following
two questions:
"1. Does the Code intend that the certified abstract be considered a part of the application filed with the Secretary of State, a copy forwarded with the application to the Superintendent of Banks and a copy certified with the application and returned to the petitioner for publication?
"2. If petitioner, by his own choice, files exhibits in addition to the certified abstract, in triplicate, and attaches them to his application, (though not specifically stated as 'made a part of the petition') is the Secretary of State to certify their receipt with the application and return a copy with the application for publication?"
It is my opinion that the law of Georgia does not incorporate the certified abstract of the stockholders' meeting as a part of the application itself. Therefore, only the application itself need be filed in triplicate. One copy of the application itself must be forwarded to the applicant and another copy of the application forwarded to the Superintendent of Banks for investigation. The single copy of the certified abstract of the stockholders' meeting is apparently intended merely to show the Secretary of State as a matter of record that the preliminary requirements have been met. This single copy then goes in the Secretary of State's files.
As to your second question, although the law of the State of Georgia does not

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make the certified abstract or pertinent exhibits a part of the application for amendment or renewal itself, and, therefore, does not require either to be filed in triplicate, yet if they are so filed by the applicant himself I fail to see any reason why the additional documents might not be received, one copy being sent to the Superintendent of Banks and the other being certified by the Secretary of State for publication. However, should the Secretary of State find such an administrative policy in relation to the handling of the extra copies of the minutes of the stockholders' meeting to be unnecessarily burdensome rather than helpful, then it would be altogether appropriate to return said extra copies to the applicant.
CORPORATIONS-Foreign CorporationS'
The Secretary of State is not authorized to accept service of process upon foreign corporations doing business in this State which maintain either an agent or a place of business in this State.
September 2, 1960
Honorable Ben W. Fortson, Jr. Secretary of State
This is in response to your letter requesting my official oprmon upon the question whether Section 22-1509, Georgia Code Annotated, authorizes the Secretary of State to accept service of process upon a foreign corporation which maintains a place of business but does not maintain an agent in this State.
Section 22-1509, Georgia Code Annotated, is the codification of Section 4 of the Foreign Corporation Act of 1946, Georgia Laws 1946, pages 687, 689. The Act as a whole is codified as Section 22-1506 through Section 22-1511, Georgia Code Annotated. Section 22-1509 reads as follows:
"22-1509. Same; venue of suits against; service by second original. -A foreign corporation, doing business in this State, and which does not maintain a place of business or agent in this State upon whom service may be perfected, shall be suable hereunder in any county of this State in which the contract sued upon or any part or modification thereof was made or to be performed, or in which the tort sued for or any part thereof was committed, or in any county in this State wherein the person or persons designated by such corporation under section 22-1507 to accept service shall reside. In the event suit is brought in a county in which the contract sued upon or any part or modification thereof was made or to be performed or in which the tort sued for or any part thereof was committed, and in which the person or persons designated by such corporation under the provisions of section 22-1507 to accept service shall not reside, service of said summons or process may be perfected upon such corporation by a second original served upon such person or persons in any other county of this State designated by such corporation as its agent to receive service of summons and process under section 22-1507 and in the absence of a person or persons designated by the corporation to receive service as provided in section 22-1507 summons and process may be served upon the Secretary of State as provided in section 22-1508. (Acts 1946, pp. 687, 689.)"

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The language of this Code Section, divorced from the remainder of the statute of which it is a part, would seem to imply that the Secretary of State is authorized to receive service of process upon any foreign corporation doing business in this State which does not maintain an agent or place of business. However, upon reading the entire statute it will be noted that Section 22-1509 differs from Section 22-1507 and Section 22-1508 in this regard. Section 22-1507 authorizes the Secretary of State to receive service of process upon those foreign corporations doing business in this State which do not maintain a place of business and agent; Section 22-1508, which sets out the details for service of process upon the Secretary of State also refers to foreign corporations doing business in this State which do not maintain a place of business and agent in this State as the subjects of the legislation. The question is then whether Section 22-1509 is to be interpreted to authorize the Secretary of State to receive service of process upon a class of foreign corporations different from the class named in Sections 22-1507 and 22-1508.
In order to arrive at the proper meaning of Section 22-1509 in this regard, it is necessary to refer to the rules of statutory construction. The cardinal rule of statutory construction, of course, is to ascertain and effectuate the intention of the Legislature. The other rules of statutory construction merely contribute toward this end. The application of that rule of construction which requires that an entire statute be read as a whole, the various sections being understood in their proper relation to one another, whenever the meaning of any portion of the statute is in doubt permits us to see the purpose the Legislature intended to achieve and the part which each section plays in effectuating that purpose.
Applying the rule stated above, the entire 1946 Statute should be read as a whole, Section 22-1509, Georgia Code Annotated, being viewed as merely a section of that law and not as a separate entity. Section 22-1507, Georgia Code Annotated, or Section 2 of the 1946 Act, deals primarily with the question of service of process and names the foreign corporations for which the Secretary of State may receive service of process. Section 22-1507 specifies in unmistakably clear language that the Secretary of State is agent to receive service of process for those foreign corporations doing business in Georgia which do not maintain a place of business and agent. Section 22-1508, which relates to the details of serving process upon the Secretary of State, also sets out in language as to the meaning of which there can be no doubt, that the Secretary of State is to receive service of process for those foreign corporations doing business in Georgia which do not maintain a place of business and agent. Section 22-1509 is not concerned primarily with service of process but sets the venue of suits which may be brought against foreign corporations doing business in Georgia. Reading the statute as a whole, there can be little doubt that Sections 22-1507 and 22-1508 reflect the intention of the Legislature so far as service of process upon the Secretary of State is concerned. Section 22-1509 was apparently meant to refer to the same class of corporations, mentioned in Sections 22-1507 and 22-1508, because as an integral part of the statute it could hardly have been intended to set the venue for suits against corporations different from those already named. The entire context of the 1946 Statute renders it reasonably certain then that Sections 22-1507, 22.-1508, and 22-1509 refer to and encompass the same class of foreign corporations. It follows then that the word "or" which joins "place of business" and "agent" in Section 22-1509, Georgia Code Annotated, must be construed to be a grammatical or typographical error and that the conjunction "and" was intended, thus rendering

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Section 22-1509 in conformity with Section 22-1507 and Section 22-1508, Georgia Code Annotated.
Having reached the conclusion that Section 22-1509, Georgia Code Annotated, refers to and embraces only those foreign corporations doing business in Georgia which do not maintain a place of business and an agent in this State, it necessarily follows that the Secretary of State is not authorized to accept service of process upon foreign corporations doing business in this State which maintain either an agent or a place 6f business in this State. Your question must then be answered in the negative.
CORPORATIONS-Mergers
Merger fee required for merger of Georgia corporations not applicable to merger of foreign corporation into a foreign Georgia-domesticated corporation.
February 7, 1961
Honorable Ben W. Fortson, Jr. Secretary of State
Thank you for your letter in which you state that a foreign corporation had merged into a foreign Georgia-domesticated corporation, the survivor, under and pursuant to the laws of its domiciliary state and that the surviving corporation has requested that a copy of its merger documents be filed in your office; and in which you requested an official opinion as to whether or not the surviving corporation should pay the same merger fee as a Georgia-created corporation which is the survivor of a merger under Code Section 22-1837 et seq.
The key to answering your question lies entangled primarily within the somewhat obscure language of Code Section 22-1601 which provides as follows:
"22-1601. All foreign corporations doing business in this State, or which may hereafter do business in this State, and whose business is not against the public policy of this State, shall have the power to become domesticated in the manner hereinafter pointed out; and upon being domesticated such corporations and the stockholders thereof shall have the same powers, privileges, and immunities as similar corporations created under the laws of this State, and the stockholders thereof have, subject to the same obligations, duties, liabilities and disabilities as if originally created under the laws of this State, and shall no longer have that power of removing causes to the United States courts which inheres in foreign corporations: Provided, however, that the votes, consents, and other conditions requisite to any action by any such domesticated foreign corporation, and all rights and obligations as between the corporation and its stockholders, or any class of them, and of the stockholders of any such corporation as between themselves, shall be determined by the laws of the home State, and any amendment of the charter of any such domesticated foreign corporation in accordance with the laws of the home

52
State shall be effective for all purposes under the laws of this State, upon the filing in the office of the Secretary of State of this State of a certified copy of such amendment, and the payment to the Secretary of State of the fee required by Section 22-1606 as amended, on any increase in authorized capital stock provided for by such amendment." (Emphasis supplied).
In order to grasp the full significance of the fee provision contained in the latter part of this Code Section, we shall examine it in conjunction with certain other similar fees. The fee of the Secretary of State provided for in Code Section 22-1606 amounts to ten cents per $1,000 of the authorized capital stock which equals the fee of the Secretary of State provided for in (1) Code Section 22-1809 concerning the original creation of a Georgia corporation, (2) Code Section 22-1824 concerning the amendment of the charter of a Georgia-created corporation which increases the authorized capital stock, or (3) Code Section 22-1842 concerning the merger of a Georgia-created corporation. Code Section 22-1885 prohibits the Secretary of State from collecting a fee in excess of $5,000 for the filing of any corporate document. The significance of this fee structure is that Code Section 22-1601 expressly provides for the payment of such increased capital stock amendment fee, but omits any reference to a merger fee analogous to the one provided for in Code Section 22-1842. Consequently, the applicability of the merger fee provided for in Code Section 22-1842 to the foreign Georgia-domesticated corporation under consideration is negated by the maxim "Expressio unius est exclusio alterius" meaning the express mention of one thing implies the exclusion of another. City of Macon v. Walker (1949) 204 Ga. 810 (2), at p. 814 and The Atlanta Street Railroad Company v. The City of Atlanta (1880) 66 Ga. 104(3), at p. 108, last par.
Another significant aspect of this fee structure is that it is graduated up to a maximum of $5,000 and to that extent is related to the valuation of the authorized capital stock involved, but bears no relation to the service rendered by the Secretary of State. Therefore, it appears that the fees are in essence revenue or tax measures (84 C. J. S. T'axation, Sec. 1, p. 34, r. col., 2nd par.; see also Gunb\Y v. Yates (1958) 214 Ga. 17, at p. 19) and, hence if they are not clear and positive in their terms, or if they are open to different interpretations through indefiniteness of their provisions, they are to be construed most strongly against the State and in favor of the subject and their provisions are not to be extended by implication beyond the clear import of the language used. Thompson v. Georgia. Power Company (1946) 73 Ga. App. 587 (2) at p. 597 and Mystyle Hosiery Shops Inc. v. Harrison (1930) 171 Ga. 430 (1) .
Also, in considering the applicability of the fees provided for in Code Chapter 22-18 to a foreign Georgia-domesticated corporation, we should note the following Code Section:
"22-1882. Nothing in this Chapter shall be deemed to alter or affect in any way the right to or the procedure for the domestication of a foreign corporation as same existed under the laws of this State prior to the passage of this Chapter. Nor shall this Chapter affect the rights, privileges or liabilities heretofore or hereafter acquired under existing domestication laws."
The Courts in construing Code Section 22-1601 have with unvarying unanimity held that the domestication of a foreign corporation thereunder is not equiva-

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lent to incorporation and does not create a Georgia corporation. Redwine v. The Southern Company (1950) 206 Ga. 377 (1); Forrester v. Continental Gin Company (1942) 67 Ga. App. 119 (1); and Foy & Sheimwell v. Georgia-Alabama Power Co. (1924) 298 Fed. 643, at p. 646, 3rd par. Nevertheless the Courts in their construction have equated foreign Georgia-domesticated corporations with Georgia-created corporations in the exercise of the right of eminent domain (Perry v. Folkston Power Company (1935) 181 Ga. 527), in the enjoyment of certain tax immunities (City of McCaysville v. Tri-State Electric Cooperative (1954) 211 Ga. 5 (1, 2); Redwine v. The Southern Company, supra; Head v. Rich (1940) 190 Ga. 680 (1); Head v. Rich (1939) 61 Ga. App. 293) and in attachment proceedings (MitcheU v. Union Bag & Paper Corporation (1947) 75 Ga. App. 5).
However, the Courts in construing an occupation tax statute, classifying corporations to be taxed for the privilege of doing business in this State as (1) corporations incorporated under the laws of Georgia and (2) corporations incorporated or organized under the laws of any other State, have recognized the distinction between Georgia-created corporations and foreign Georgia-domesticated corporations and have placed the latter corporations in the latter classification which imposes a lesser tax burden. Forrester v. Interstate Hosiery Mills Inc. (1942) 194 Ga. 863; National M.anufacture and Stores Corporation v. Head (1942) 67 Ga. App. 114; and Forrester v. Continental Gin Company (1942) 67 Ga. App. 119. The value of this distinction iis apparent when we utilize it to interpret an Act of the General Assembly, approved March 17, 1960 (Ga. Laws 1960, pp. 11111113), amending Code Section 22-1837 and creating a new section codified as Code Section 22-1843.1. Code Section 22-1837, prior to amendment, read as follows:
"22-1837. Any two or more corporations, incorporated either under the laws of this State or under the laws of any other State or Country, except banks and trust companies, may merge or consolidate into a single corporation in the following manner:"
and after amendment it read as follows:
"22-1837. Any two or more corporations, incorporated under the laws of this State, except banks and trust companies, may merge or consolidate into a single corpor-ation in the following manner:"
The legislature in eliminating the reference to corporations incorporated under the laws of any other State or Country evinces the intent to impose a limitation upon such corporations in the employment of the merger procedure provided for by Code Section 22-1837 et seq. Under the criterion established by the Courts in the occupation tax cases, a foreign Georgia-domesticated corporation would clearly be classified as a corporation incorporated under the laws of another State and, hence, would suffer the same limitation. This legislative intent is further illuminated and defined by Code Section 22-1843.1 which provides as follows:
"22-1843.1. Any corporation, except banks and trust companies, chartered under the laws of this State, may consolidate or merge with one or more other corporations organized under the laws of any other State or Country.
"If the merger or consolidation results in only one surviving corporation, and said corporation is to be a Georgia corporation, the laws of Georgia shall govern in all matters pertaining to mergers or consolidations of corporations, and the merger shall be accomplished according to the provisions of sections 22-1837 through 22-1843.

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"If the merger or consolidation results in creating only one surviving corporation, and said surviving corporation shall be a corporation of a State or Country other than the State of Georgia, the laws of such State or Country shall determine the formal requirements called for in the merger or consolidating procedure: Provided, however, that if the Georgia corporation so merged was one chartered by the superior courts of this State, a copy of the agreement to merge or consolidate so authorized, adopted, approved, signed, and acknowledged in the manner hereinbefore set out, shall be filed with the Secretary of State, as well as with the clerk of the superior court of the county in which the Georgia corporation had its principal place of business. If the Georgia corporation was of the type chartered by the Secretary of State, a copy of the above mentioned agreement to merge or consolidate shall be filed in the office of the Secretary of State.
"If the corporation resulting or surviving such consolidation or merger is to be a corporation of this State, the charter fee required for the chartering of a new corporation shall be paid to the Secretary of State or the clerk of the superior court at the time the agreement is filed in his office; however, if it is to be governed by the laws of any State other than the laws of this State, the said charter fee shall not be collected, but the Secretary of State and, if applicable, the clerk of the superior court shall collect a filing fee of $5 at the time the agreement is filed in his office.
"All mergers or consolidations of foreign corporations into domesticated corporations which were executed in conformity to the existing laws of this State in effect before the passage of this section are hereby expressly ratified and confirmed."
The tenor of this Code Section, taken in conjunction with Code Section 22-1837 and the proviso of Code Section 22-1601, unmistakably demonstrates the legislative intent to deny availability of the merger procedure provided for by Code Section 22-1837 et seq. to mergers resulting in foreign Georgia-domesticated corporations or other foreign corporations.
In view of our examination of the above legislative fabric and the cases interpretive thereof, it is my opinion that the merger fee provided for by Code Section 22-1842 is not applicable to the filing in your office of a merger document reflecting the merger of a foreign corporation into a foreign Georgia-domesticated corporation, the survivor, under and pursuant to the laws of its domiciliary state.

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COUNTIES-Commissioners (Unofficial)
1. The chairman of the commissioners may not serve as county convict warden.
2. The clerk of commissioners is not entitled to a contingent expense allowance.
3. The board of commissioners may not pay county funds to a commissioner as rental for use of heavy machinery to move county equipment.
November 27, 1961
Honorable W. R. Mixon
In your letter you presented three questions: First, may the Chairman of the Board of Commissioners of Irwin County also serve as the County Convict Warden, and receive compensation for each office? Second, can the Commissioners legally pay the Clerk of the Board of Commissioners $25.00 per month as an expense account in addition to his salary of $175.00 per month? Third, can the Commissioners legally pay county funds to two of the Commissioners as rental for heavy machinery (low-boy) for the purpose of moving county equipment, said machinery being owned by the two Commissioners?
You are, of course, aware of the following provisions of Georgia Code, 89103:
"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."
I can find no cases which hold that the County Convict Warden is a county officer, as is unquestionably the status of a County Commissioner. However, a basically similar question arose in Hall County in 1952, and at that time I gave an unofficial opinion (Opinions, Attorney General, 1952-53, page 20) from which the following is an extract:
"There is no prohibition in the Act of 1935, supra, against one of the members of the board being employed as the clerk. However, there is no authority given for such employment. Where there is no such recognition or no such power given then it is necessary to detern1ine the intention of the General Assembly by the wording of the Act.
"It is my opinion that since Section Eight states as follows: 'The term of office of said Clerk shall be at the pleasure of the Board,' that the answer to the problem is found in that sentence. It would seem likely that one of the members of the board could vote himself into the office of clerk and be one of the controlling factors in maintaining that position. Particularly would this be true in Hall County where two of the three members of the Board are given the power to transact business, being a majority of the three members constituting the Board. In the absence of one other member, if the clerk of the board was also a member of the board, then the clerk and one other member could employ or discharge him, inspect and supervise his work, etc., all of this manifestly would be unreasonable, inefficient, and unsatisfactory.

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"It is, therefore, my opinion that the clerk of the Board of Commissioners of Roads and Revenues of Hall County cannot be a member of the Board."
I feel the same reasoning must necessarily apply in this situation, and from an examination of your legislation, we find no prohibition, but neither do we find any authorization which would enable the Chairman to serve additionally as County Convict Warden. We do find in Section 11 (Ga. L. 1933, p. 577) that the Superintendent of Roads and Bridges may also be the Convict Warden, and further, that the Chairman of the Board of Commissioners shall be ex officio the Road Superintendent, if none is elected. In Section 20 as amended (Ga. L. 1935, p. 696), we find authorization of a dual role for the Chairman to also serve as Road Superintendent, but nowhere do we find any reference to anyone serving as County Convict Warden in addition to other offices held, except in Section 11, and then only the Superintendent of Roads is mentioned. I feel the lack of authorization is fatal, for the Act has specifically defined the instances in which an official may serve in two capacities at the same time, and therefore no other dual roles must have been intended, or they would also have been set forth as clearly as these two.
Further, in Section 12 (Ga. L. 1933, p. 578), we find certain phrases which negate any intention that the Chairman might also serve as the Convict Warden:
" . . . The County Convict Warden of Irwin County shall together with the chairman of the Board of Commissioners . . . The warden and the road superintendent, jointly or separately, shall give his receipt in writing to the chairman of the Board ... " (Emphasis added.)
The implication is clear there was an intention that separate persons serve in the offices of Chairman and of Convict Warden. I therefore feel that the Chairman of the Board of Commissioners cannot serve as the County Convict Warden and draw compensation for each office, both of which are intended as full-time and exclusive offices except as specifically authorized in the Act.
Regarding the second question presented, the Section which provides for the clerk is an amendment to the original Act and has itself been amended. The latest expression is found in Georgia Laws 1957, page 2279, a portion of which reads:
"... The salary of said clerk shall not exceed the sum of $175.00 per month which salary shall be paid by warrant issued by said board as other warrants for county costs and expenses are paid."
This Section has been amended several times for the purpose of raising the salary of the clerk, and would have to be amended again in order to legally raise the salary from its present figure. Of course expenses of the clerk could be paid by the Commissioners. From an opinion to Polk County (Opinions, Attorney General, 1952-53, page 290):
"... the Board of Commissioners of Roads and Revenues for Polk County may authorize their Clerk to employ such clerical help as is necessary to handle the business of his office and pay for such services out of the revenue allocated for the purpose of operation of the office.... Of course they would not be authorized to employ an additional clerk since this authority is restricted to one."
It is my opinion that a set sum for expenses each month, which is analogous to a contingent expense allowance, would be improper. However I believe the Com-

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missioners would be well within their authority in paying any items of expense submitted by the clerk which were incurred in connection with fulfilling his duties as clerk.
In regard to your third question, Hulgan v. Gledhill, et al., 207 Ga. 349, (5), held:
"The common-law rule, that no public agent may make a profit out of public business entrusted to his care, is the rule in this State. Montgomery v. City of Atlanta, 162 Ga. 534, 546, (2)."
Section 17 of your Commissioner Act (Ga. L. 1933, p. 582) reads in part:
"... that it shall be unlawful for any member of said board to have any financial interest in the sale or purchase of any article to or from the county, or to receive any rebate, expense account, transportation, or valuable considerations in connection with or through the purchase of any equipment or supplies for the county or awarding of any contract for said county; ..."
The questioned transaction here was a rental, but even this is construed as a contract, though it may have been an oral c.ontract. In Montgomery v. City of Atlanta, 162 Ga. 534, 546, the Court said:
"By the common law and independently of statute, this contract is contrary to public policy and illegal. One who is entrusted with the business of others will not be allowed to make out of the same a pecuniary profit to himself. This doctrine is based upon principles of reason, morality, and public policy. No public agent shall have the opportunity to be let into the temptation to make profit out of the public business entrusted to his care, by contracting with himself, directly or indirectly, in respect to such business. . . . (Citing numerous cases.) It does not alter the case that Inman did not vote for the ordinances relating to the laying of this pavement, and that he did not use his influence to induce other members of the general council to vote therefor. The fact that he did not take any part in securing this contract for his corporation does not change the situation.... This principle applies, although the contract is fair and free from fraud. Public policy will not uphold it. . . . The contract will not be upheld by reason of the fact that the public has received a benefit thereunder."
And additionally in Twiggs v. Wingfield, 147 Ga. 790, 795:
"The application of the rule may in some instances appear to bear hard upon individuals who have committed no moral wrong; but it is essential to the keeping of all parties filling a fiduciary character to their duty, to preserve the rule in its integrity, and to apply it to every case which justly falls within its principle."
Many other cases have reached the same results. One case, Robitzsch v. State, 189 Ga. 637, attempts to enumerate certain transactions which would be within the powers of the commissioners in that particular case but it too acknowledges the rule stated above.
From these cases, and the factual situation as presented in your letter, I am of the opinion that the rental transactions were questionable. Extenuating or mitigating circumstances, such as immediate and compelling need, the nonavaila-

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bility of any other equipment which would fill the requirements of the situation, whether this was an isolated incident as contrasted with regular and repeated transactions, and whether there was a profit involved, might lead a court to find there was no irregularity. However this is but mere conjecture, for from the facts as sketched in your letter, there is a strong possibility the transaction would be considered a violation of Section 17 of your Act, as well as a violation of the general laws of Georgia.
COUNTIES-Commissioners (Unofficial)
County commissioners may not sign as a guarantor of a financial instrument with a hospital authority.
September 14, 1961
Mr. J. W. Singleton
I wish to acknowledge receipt of your letter in which you request me to give an unofficial opinion as to the legal right of Commissioners of Roads and Revenues of Baldwin County to act as cosignors or guarantors of a financial instrument with the Baldwin County Hospital Authority.
Code Section 99-1507 of the Georgia Annotated Code provides for the issuance by county hospital authorities of revenue anticipation certificates, which shall be paid:
"... (a) exclusively from incomes or revenues of the operation of the authority financed with the proceeds of such certificates or together with such proceeds and grants from the Federal Government or any instrumentality or other person or corporation in aid of such projects; ... or (c) from revenues of the authority generally."
Code Section 99-1508 of the Georgia Code Annotated specifically provides:
"... The certificates and other obligations of an authority shall not be, and shall so state on the face thereof, a debt of the city, the county, the State of Georgia or any political subdivision thereof nor of any combination of subdivisions acting jointly as hereunder provided." (Emphasis added)
I think that the last mentioned code section would specifically prohibit the County of Baldwin from acting as a cosignor or guarantor of a financial obligation of the Baldwin County Hospital Authority, particularly since there are other provisions in the law providing for financial assistance from the County to the Hospital Authority.
Code Section 99-1512 of the Georgia Annotated Code provides:
"An authority shall have no power to tax, but upon the adoption of the resolution by the governing body or bodies of participating units or subdivisions as herein provided [which would include the County] ...",
the County is specifically authorized to make a contract with an Authority (1) for the payment of services or facilities of the Authority used by the participating

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unit or residents thereof out of the general funds of the participating unit, and for that purpose the County is authorized to levy an ad valorem tax not exceeding five mills exclusive of all other taxes; (2) that in addition to the aforesaid five mill levy, counties are authorized to levy annually an additional ad valorem tax not exceeding two mills exclusive of all other taxes from which revenues when realized there shall be appropriated sums to be used exclusively to pay for the cost of acquiring, construction, equipping, altering, modernizing or repairing by authorities of any project, pursuant to the contract between the participating subdivision and the Authority.
From the code sections above cited, I do not think that the County Government can act as a cosignor or responsible party for a short term loan, but that it would be necessary to levy an ad valorem tax in compliance with the law for the particular purposes as prescribed by the code sections.

COUNTIES-Commissioners (Unofficial)
A county commissioner may also be a member of the County Democratic Executive Committee.
February 10, 1960
Mr. W. W. Warnock
I am pleased to acknowledge your letter relative to a member of the Montgomery County Democratic Executive Committee being eligible as a candidate for one of the positions of "Commissioner of Roads and Revenues of Montgomery County".
Membership on a county Democratic executive committee is a political position and not a county office, and unless the Act creating the Board of Commissioners of Roads and Revenues of Montgomery County specifically prohibits and disqualifies a person holding such political position, there is no general law of this State which will prohibit or disqualify a member or officer of a political party from holding a county office.

COUNTIES-Commissioners (Unofficial)

A member of the board of commissioners may not be employed to perform duties which his office requires him to supervise.

Honorable Steve M. Hall

December 22, 1960

Thank you for your letter in which you stated that an Act of the General Assembly of the State of Georgia (Ga. Laws 1959, pp. 2010-2021), approved February 13, 1959, had created a new Board of Commissioners of T'oombs County, Georgia, and in which you also inquired as to the legality of a member of such Board becoming employed by it for the purpose of operating certain machines in connection with the building, maintenance and improvement of the roads of the County under the jurisdiction of the Board.

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Apparently, the Board is under a duty to exercise general supervisiOn over its employees for the purpose of seeing that their work is faithfully performed. Therefore, an incongruity would result when a Commissioner, whose official duty it is to supervise such work, also participates as his own employee in the execution of the work. He in effect would be a judge of the quality of his work and the fidelity of its execution. Such a relationship was eloquently denounced in 1878 by the Supreme Court of Georgia in the case of City of Macon v. Huff, 60 Ga. 221 (1), wherein the Court opined as follows:
"The fundamental principle which will be found to underlie all adjudications made in this state on similar questions, and which, we think, has not been upset by any well considered case anywhere, is that no officer or agents, public or private, whose duty it is to supervise a contract in behalf of his employers or principal, can himself undertake to do that thing which his office or agency makes it his duty to supervise for others, and to see to it for them and it is well and faithfully done. The reason is too plain and palpable for serious dispute. The man becomes a judge in his own case. He agrees to perform work himself, and yet is to judge whether or not it is well done. So tender is our law of bias on the part of the noblest and purest in behalf of self-interest, that no judge is permitted to sit in a cause in which he has any interest." id., p. 224, last par.
"So that the current of Georgia policy, both in legislative and judicial channels, runs steadily in one direction and to one point, that no man who is agent or trustee for another, whether a private or public agent or trustee, shall have the opportunity or be led into the temptation to make profit out of the business of others entrusted to his care, by bargaining with himself, directly or indirectly, in respect to that business." id., p. 228, last par.
The steadiness and direction of this current, so well defined by the Court in 1878, has continued undiminished and undeflected to this day, as evidenced by the following authorities: Trainer v. City of Covington (1937) 183 Ga. 759 (1); Montgomery v. City of Atlanta (1926) 162 Ga. 534, at p. 546, last par; Turner v. City of Atlanta (1925) 160 Ga. 216 (2); Twiggs v. Wingfield (1918) 147 Ga. 790(2), at p. 795; Hardy v. Mayor and Council of Gainesville (1904) 121 Ga. 327(1); Dorsett v. Garrard (1890) 85 Ga. 734 (1, 2); and Doyal v. City of Rome (1933) 48 Ga. App. 664, at p. 666, last par. See also Sections 2-101, 4-205, 20-504 and 108-429 of the Code of Ga., Ann.; 20 C.J.S. Counties, sec. 192, p. 1028; 63 C.J.S. Mun. Corp., sec. 988, p. 551; 14 Am Jur. Counties, sec. 42, p. 211; and 10 McQuillin on Mun. Corp. (3rd ed.) sees. 29.97 and 29.98, pp. 387 and 392, resp.
In view of these authorities, I am of the opinion that no official or agent, whose duty it is to supervise a contract in behalf of his employer or principal, can himself undertake to do the thing which his office or agency makes it his duty to supervise.

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COUNTIES-Commissioners (Unofficial)
Though selected county-wide, commissioners must reside in the district for which elected to serve, unless the act establishing the commissioners provides otherwise.
June 29, 1960
Honorable Charles Burgamy
I am pleased to acknowledge your letter relative to the Acts of 1957, pages 2327 and 2328, relating to the election of County Commissioners of Schley County, and to advise that Section I of said Act provides:
"The voters of the entire county shall vote on all candidates for commissioners, but persons becoming candidates for commissioners shall become candidates for commissioners for the particular district or districts and section in which they reside ...."
It is my view that the above statute is the controlling statute in the election of the Board of Commissioners of Roads and Revenues of Schley County, and that while the whole county must vote on all of the candidates for Commissioner, that a candidate as a Commissioner for a designated District must reside in said District in order to be qualified as a candidate from said District.
It is the general rule that a candidate must be qualified to hold the office for which he seeks at the time of the election. Therefore, it is my further view that if a person did not reside in the District for which he is a candidate at the time of the election, he would not be eligible for the office.
COUNTIES-Coroners (Unofficial)
Coroners have power to investigate deaths occurring during anesthesia.
June 7, 1961
Dr. CarlS. Wasmuth
I have studied the provisions of the Georgia Post Mortem Examinations Law of 1960, set out in the Georgia Laws of 1960, at page 1009, and also in the Georgia Annotated Code at Chapter 21-201. I think that a reasonable interpretation of this law commensurate with the broad concept of the statute gives the coroner power to investigate deaths which occur during anesthesia.
Code Section 21-205 of the Annotated Code of Georgia, provides in part as follows:
"Coroners shall require post mortem examinations and/or autopsy to be performed and inquest in their respective counties as follows:
"(1) When any person shall die as the result of violence, or suicide, or casualty, or suddenly when in apparent health, or when unattended by a physician, or within 24 hours after admission to the hospital without having regained consciousness, or in any suspkious or unusual manner:
" (Emphasis Added)

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COUNTIES-County Police (Unofficial)
Arresting powers of county police are confined by Statute to the county of their appointment or election.
June 29, 1961
Honorable Mitchell E. Owens
I am in receipt of your letter in which you requested my opinion as to what effect Act 231, passed by the 1961 General Assembly, had upon the arresting powers of county police.
Act 231 (Ga. Laws 1961, p. 217) amends Code Section 23-1403 so as to read as follows:
"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 in the county of their election or appointment only, 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." Approved March 28, 1961.
The above amendment imposes a limitation upon the arresting powers of county police in that it confines such power to the county of appointment or election of each particular county policeman.
My previous opinion, which was rendered in 1959 at the request of Mr. Ed Liles, County Attorney of Glynn County, was based upon Acts 1914, p. 142, which did not include the limitations imposed by the 1961 Act.
COUNTIES-Exp,enditures (Unofficial)
County authorities have no authority to levy taxes or expend funds for recreational and industrial opportunities in absence of a constitutional amendment.
August 30, 1960
Honorable Robert E. Knox
You request my opinion on the following questions:
"(1) Can the taxing authorities of a county in Georgia include in the tax assessments thereof any millage for the purpose of promoting the recreational and industrial opportunities of the county by means of membership in or financial support to a 'Chamber of Commerce' of which said county is a part?"
"(2) Can the officials charged with the responsibility of handling the fiscal affairs of any county in Georgia use any surplus county funds to promote the recreational and industrial opportunities of the county by means of membership in or financial support to a 'Chamber of Commerce' of which such county is a part?"

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"(3) What would be the answer to each of the foregoing questions if the taxes were levied or funds spent toward the support of a 'development corporation' of which the county is a part rather than a 'Chamber of Commerce'?"
The taxing authorities of the counties of this State with the exception of Brantley, Coffee and Rabun Counties do not have the authority to levy taxes for the purpose of promoting recreational and industrial opportunities of the county. The taxing powers of the counties are limited by our State Constitution. The Constitution, (Ga. Code Ann., Section 2-5701,) states the General Assembly shall not have the power to delegate to any county the right to levy a tax for any purpose except those named herein.
County officials do not have the authority to use surplus funds to promote recreational and industrial opportunities. Code Section 92-3708 provides that taxes raised for any specific purpose shall be used for such purpose and none other.
The answer to each of these questions would be the same as if the funds were levied and spent toward the support of a development corporation of which the county is a part rather than a "Chamber of Commerce."
Brantley County, Coffee County and Rabun County each proposed constitutional amendments giving them specific authority to levy taxes in promoting new industries and in the development of agriculture. See Ga. Laws 1953, page 217, 544 and 222. Should the counties named in your letter desire the right to levy a tax for the purpose of promoting recreational and industrial opportunities of their respective counties, they could, of course, offer a constitutional amendment similar to the amendments offered by Brantley, Coffee and Rabun Counties.
COUNTIES-Expenditures (Unofficial)
Tax monies levied for a specific purpose can be expended only for such purpose.
August 10, 1960
Hon. C. Winton Adams
You request my opinion on the following amendment:
"Provided, however, that Brantley County is authorized to levy a tax in addition to those already provided for by law, not to exceed one mill, on all the taxable property in the county for the purpose of creating and setting aside a fund to be used in assisting, promoting and encouraging the location of new industries and the development of agriculture in Brantley County, and the county officers of said county are authorized to select a committee of citizens of the county to sit with them and advise them in the handling and distribution of such funds for the purposes stated." Ga. Laws 1953, Nov.-Dec. Sess., page 218.
You state in your letter that Brantley County has, since the adoption of this Constitutional amendment, levied the one mill tax provided for in the

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amendment and the county has taken the position that by permitting the road crew to dig irrigation ponds and allowing them to push from the fields some stumps and the like that they have complied with the purposes for which the tax levy was made in that such action was encouraging agriculture to some degree.
The one mill levy provided in the Constitutional Amendment affecting Brantley County is for the purpose of creating and setting aside a "fund" to be used in promoting new industries and development of agriculture. As I understand this amendment this fund may be allowed to accumulate over a period of several years in order that the county might be in a position to use it in the development of new industry or agriculture. The fact that the county is allowing the road crew to dig irrigation ponds and remove stumps would not, in my opinion, comply with the purposes for which the one mill tax levy was authorized.
"Taxes raised for educational purposes, the support of the poor, or any specific purpose,' shall be used for such purposes, respectively, and none other." Georgia Code Section 92-3708.
The proper procedure to follow, should the county continue to levy the one mill tax provided for in the amendment would be for the commissioners to set aside the entire amount received from the one mill levy and place it in a fund each year to be used by them in accordance with the provisions of the Constitutional amendment.
COUNTIES-Officers (Unofficial)
Placing county officers on fee basis rather than salary basis discusesd.
March 3, 1961
Honorable W. Frank Branch,
This will acknowledge receipt of your request for information concerning the placing of county officers on a fee basis in lieu of a salary basis.
Article XI, Section II, Paragraph II of the Constitution (Georgia Code Annotated, 2-7902), provides:
"County officers may be on a fee basis, salary basis, or fee basis supplemented by salary in such manner as may be directed by law."
The above quoted provision of the Constitution clearly places within the General Assembly the authority to provide the compensation of county officers as the General Assembly may provide within the constitutional limitations.
Article VII, Section IV, Paragraph I of the Constitution (Georgia Code Annotated, 2-5701) provides the purposes for which the General Assembly may authorize a county to levy a tax. Paragraphs I and V thereunder clearly authorize taxation for the purpose of compensating county officers.
Article III, Section XI, Paragraph I of the Constitution, as amended (Georgia Code Annotated, 2-2301), authorizes the General Assembly to prescribe other and different salaries for all of the elective officers provided for by the Con-

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stitution. This. Section of the Constitution, however, is not applicable to county officers. Therefore, the General Assembly is given broad authority in fixing the compensation of county officers.
In conjunction therewith, I direct your attention to the cases of Laurens County v. Keon, 214 Ga. 32, which relate to the compensation of the Tax Commissioner; Barnett v. Boling, 214 Ga. 401, relating to Sheriffs; Lewis v. Gay, 215 Ga. 90, relating to Sheriffs; and Gay v. Lewis, 215 Ga. 317, relating to the distribution of funds derived from fines and forfeitures in the City Court.
As to the policy of determining the effective date of a local Act placing county officers on a salary basis, such a matter is vested in the discretion of the General Assembly, and in view of the practice of legislative courtesy in the General Assembly of Georgia, the eventual determination as to policy must be made by the Representative or Senator introducing the legislation.
It is our observation that in most cases similar to yours, the Representatives and Senators make provision for the effective date to be at the end of the incumbent's term of office. This is considered by most Representatives and Senators to be a matter of courtesy and respect for incumbents who were elected under a non-salary or fee basis, and who probably would be unhappy under a new Bill adopted during that tenure that changed their financial position.
As to the disposition of the funds paid into the Treasury of Tift County by the officers placed on a salary basis in lieu of a fee basis where such officers are required to collect the fees and pay them into the Treasury of Tift County, I direct your attention to the authority vested in the Commissioners of Tift County by virtue of an Act approved August 9, 1917 (Georgia Laws 1917, page 396), as amended, and in particular, Section 8 thereof. This authority is quite comprehensive and inclusive. Also, I direct your attention to the provisions of Chapter 23-7 of the Code, which relates to the authority of the Ordinary, where sitting for county purposes, which the Commissioner of Roads and Revenues in your case would be vested with the same power, to the end that the Commissioners have vast powers in regard to the finances. of the county.
COUNTIES-OfficerS! (Unofficial)
Duties of county treasurer and commissioner discussed.
February 7, 1961
Honorable H. K. Dacus
I wish to acknowledge receipt of your letter making inquiry with respect to general and specific duties of the Commissioner of Roads and Revenue of Webster County and the County Treasurer.
I have examined all of the special statutes dealing with Webster County, as well as the general law dealing with duties in general of county treasurers, and I am pleased to submit, unofficially, the following:
Georgia Laws of 1921, at page 588, specifically provide that the duties of the Treasurer of Webster County shall be the same as set out in the general law.

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Code Section 23-10 of Georgia Code Annotated deals with county treasurers, their election, qualifications, duties and powers.
Code Section 23-1015, under "Duties, in general", provides in part as follows:
"It is the duty of the county treasurers -
"1. To diligently collect from all officers and others all moneys due the county.
"2. To examine the minutes and execution dockets of the different courts of the county, to demand and receive all moneys appearing to be due thereon, and to institute proceedings against defaulters.
"3. To pay without delay, when in funds, all orders (or other debts due) according to their dates;
"4. To take a receipt on each order when paid and carefully file it away.
"5. To keep a well-bound book in which shall be entered all receipts, stating when received, who from, and on what account, and all amounts paid out, stating when paid, to whom, and on what account.
"6. To keep a well-bound book in which shall be entered a full description of all county orders, or other forms of indebtedness, as they are presented; to record a copy of the orders of the ordinary levying county taxes."
Code Section 23-1016, under "County funds", provides as follows:
"All county funds are to be paid to, and disbursed by, the county treasurer, except such as may be specifically excepted by law, and then to be collected and disbursed as specially directed."
Code Section 23-1017, under "Deposits in State depositories", provides as follows:
"The treasurers of the several counties are hereby authorized to deposit in any bank or banking institution which has been designated by law as a depository for the funds of the State, the county funds which may come into their hands as county treasurers."
The Georgia Laws of 1931, page 597, dealing specifically with the Commissioner of Roads and Revenue for Webster County, provides, among other things, that the Commissioner shall examine and audit all claims and accounts of officers having the care, management, keeping, collection or disbursement of money belonging to the county or appropriated for its use and benefit, and bringing them to a settlement, and especially is he charged with frequently examining and auditing the books of the county treasury or depository.
At page 603 of the 1931 Georgia Laws, it states that the Commissioner shall keep on file an accurate book of county vouchers, wherein shall appear in detail all orders and warrants drawn by him on the county treasurer or depository, for what purpose and on what fund.
It further provides:
"He shall also keep a cash book in which he shall daily enter any

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cash item received by him, from whom received, and for what purposes received."
It further provides:
"He shall keep such other books and records as may be necessary. Said books and records shall be so kept as to show at all times the financial condttion of the county."
It further provides:
"Said Commissioner, at the end of each quarter, shall make up an itemized statement showing all amounts collected and expended on behalf of the county during that quarter."
From the above quoted authority and from the practices observed and followed in other counties, I think that it would be your duty as Commissioner to keep a record of and withhold United States Withholding Taxes, Social Security Taxes, and Georgia Withholding Taxes, deposit the same in the name of the County Treasurer, in a separate special fund so designated for the specific purposes of the deposit; said funds to be drawn upon only by the County Treasurer subject to the order and warrant of you as County Commissioner.
Likewise, any payments coming to you as the Commissioner of Webster County, should be received, receipted and recorded in your records and then deposited in the depository with the funds and in the name of the County Treasurer of Webster County, subject to withdrawal upon the signature of the County Treasurer to be disbursed upon your order and warrant.
I would think that for your records and in order to comply with the provisions of Georgia Laws 1931, specifying your duties as Commissioner of Webster County, that you should receive and receipt for any funds or moneys payable to "Webster County" or "Treasurer of Webster County", and have your clerk make due entry and record and receipt of the same and then deposit such funds in the depository with the funds of the Treasurer of Webster County.
Likewise, I think that you or your clerk should compute all tax withholdings on salaries of county employees, deposit the withholdings as set out above, and then issue warrants to the Treasurer for the net payment to each employee, subsequently issuing an order to the County Treasurer for the disbursement of the withholdings to the proper governmental authorities.
COUNTIES-Officers (Unofficial)
No person may hold more than one county office except by special enactment.
October 26, 1960
Dr. J. H. Miller
Thank you for your letter in which you inquired whether it is legal for a person to simultaneously hold a plurality of county offices.

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In connection with your inquiry, I wish to call your attention to Section 89-103 of the Code of Georgia, Annotated, which provides as follows:
"89-103. No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, e:xcept by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissioned officer, e:xcept by such special enactment."
COUNTIES-Officers (Unofficial) County officers are not authorized leaves of absence in absence of
express statutory provision.
July 25, 1960
Honorable Lawton W. Gi<;ldens
I wish to advise that I am not familiar with any statutory law providing for a leave of absence for an elective office.
Code Section 89-501 of the Code of Georgia provides that an office may be vacated by the holder abandoning the office or ceasing to perform his duties.
Code Section 21-222 of the Annotated Code of Georgia as codified from the Acts of 1953, pp. 602, 612, provides the procedure where a coroner is absent or fails to perform functions, and reads as follows:
"When there is no coroner in a county or he is absent from the county when needed or will not or cannot perform the duties required under this Chapter, a judge of any court having county-wide jurisdiction other than the Superior Court may act as coroner or the ordinary of the county may designate someone to act as coroner. In counties having a coroner with a full-time assistant or assistants paid out of county funds, any such assistant may be designated to act as coroner under the provisions of this Section and when so designated shall receive no compensation for acting in such capacity other than that regularly allowed him as assistant to the coroner. (Acts 1953, pp. 602, 612.)"
COUNTIES-Officers' (Unofficial) The county governing authority is required to furnish county officials
with supplies for their offices. September 15, 1961
Mr. W. J. Jacques, Jr.
You request my opinion as to what items should be furnished to the Sheriff, Ta:x Collector, Ordinary, Clerk of Superior Court, and Tax Receiver for Bacon County, Georgia, by the Commissioners of Roads and Revenue. You particularly inquired about such items as telephones, stationery and supplies, equipment,

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repairs to equipment, office furniture, files and records, etc., for the operation and maintenance of these county offices.
The Act creating the Bacon County Commissioners of Roads and Revenue, Georgia Laws 1927, page 488, as amended by Georgia Laws 1937, page 1237, and Georgia Laws 1950, page 2672, gives exclusive jurisdiction over and control of all county matters to the Commissioners. There is nothing in these Acts which would exclude the Bacon County Commissioners from being governed by Georgia Laws 1902, page 62 (found in Georgia Code Annotated, 91-704), which reads:
"It shall be the duty of the ordinary or board of county commissioners, or other county authority having the management of the revenue 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."
This statute seems to cover most of the items you inquired about. While telephones are not included specifically, in Floyd County v. Graham, 24 Ga. App. 294, it was held that telephones are included in "office supplies generally" where it appears that their installation is reasonably necessary to carry on legitimate business of the county offices.
You did not define equipment in your inquiry, but I have assumed you intended it to cover the same general area as other items listed. If so, it would appear that the Board of Commissioners of Bacon County, Georgia should furnish such items and also any repairs to such items as might be necessary to keep them in a useful condition.
COUNTIES-Tag Agent (Unofficial)
Requirements for appointment as tag agent discussed.
September 12, 1961
Mr. J. Clifton Muse
This is in reply to your letter in which you ask for an opinion concerning the duration of an appointment as County Tag Agent and whether the County Tax Commissioner has the right to require an appointment as Tag Agent at any time.
Georgia Code Section 68-244 provides:
"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

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made, and/or perform the objects of this law [ 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 subject 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, or upon the resignation or failure of any agent to serve as agent within a calendar year, the State Revenue Commissioner may, if deemed necessary, provide for the registration of motor vehicles and issuance of license plates for such county, at the State Capitol. ... "
It is my opinion, based upon the above Code Section, that an appointment as Tag Agent is for a calendar year. The County Tax Commissioner is entitled to such appointment provided he accepts it in writing by December 1 of the preceding year. Should he fail to accept the appointment, it may be given to another for that calendar year. A Tax Commissioner who refuses an appointment for the calendar year 1961 is, even so, entitled to such appointment for the calendar year 1962 should he desire the same.
COUNTIES-Taxation (Unofficial)
County employer contributions to social security for teachers and other county employees must come from general funds of the county, and no specific tax may be levied solely for that purpose.
July 26, 1960
Mr. F. D. Leake
This is in reply to your inquiry with reference to the legality of the local tax referendum through the county commissioner's office to tax the people; a special tax for social security coverage on teachers and other county employees.
The following quoted matter is the Constitutional Amendment which was necessary in order that employees of the State or political subdivisions of the State may be covered by social security:
"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 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

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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."
Code Section 92-3701 (Georgia Code Annotated), providing for what purposes county taxes may be levied does not include a provision authorizing a special tax for social security purposes.
In addition to this, a thorough search has revealed no statutory authority of any sort for a special tax for the specific purpose of paying the employer contribution for social security. Chapter 99-21 of the Code of Georgia Annotated sets out the method for securing social security for employees of the State or any political subdivision of the State. Nowhere in this Act is authority conferred upon the county to tax for this specific purpose.
Specifically, Section 99-2111 provides as follows:
"99-2111. The social security coverage for employees of the State as provided in this Chapter, shall be the sole and exclusive method for obtaining such coverage regardless of the source of funds used for payment of salaries or wages." (Emphasis supplied.)
From the above cited authorities, and from the absence of any specific statutory authority for a specific tax for the purpose of county employer contribution for social security, it must be assumed that county employer contribution must come from the general funds of the county.
COUNTIES-Treasurer (Unofficial)
The office of county treasurer and its duties discussed.
October 18, 1960
Honorable Roy D. Powell
This will acknowledge your request for information concerning the office of Treasurer of Johnson County.
Article XI, Section II, Paragraph I of the Constitution of the State of Georgia (Georgia Code Annotated, Section 2-7901) relates in general to county officers.

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Article XI, Section I, Paragraph VI of the Constitution (Georgia Code Annotated, Section 2-7806) provides that:
"Whatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for Commissioners of Roads and Revenues in any county, may abolish the office of County Treasurer in any county, may fix the compensation of County Treasurers, . . . "
Code Chapter 23-10 relates to county treasurers in general, and in the absence of a local law, is controlling.
As to the question of a county officer holding more than one office, Code Section 89-103 provides:
"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment." (Emphasis added.)
The General Assembly, by an Act approved August 11, 1923, (Georgia Laws 1923, p. 261), abolished the office of County Treasurer of the County of Johnson. This Act, which contains eleven sections, deals comprehensively with the procedure to be followed by the governing authority of the county in handling the fiscal affairs and money of the county. I am sure that a copy of this Act may be found in the Ordinary's office or the Clerk's office, but I am enclosing a copy of this Act for your convenience.
Section 2 of the Act authorizes the governing authority to appoint and designate some regularly chartered bank in Johnson County to receive county funds handled, received, and collected by county treasurers prior to the effective date of the Act. Section 3 of the Act provides a procedure for the commissioners to ask for bids from the banks as to the payment of interest on the average daily balance of county funds.
Section 9 of the Act provides that the commissioners, upon the failure or refusal of the depository to qualify to act as the depository, shall have the right to name some "individual resident" of Johnson County to act as county treasurer, and to perform the duties performed by the county treasurer. This Section also provides the compensation of the treasurer. There is nothing in this Section or in any other part of the Act to restrict the commissioners in appointing a person under the provisions of this Section to act as treasurer. A serious question would be raised as to the authority of the commissioners to appoint one of their number as treasurer, in view of the language used in Section 9. This could be corrected by a special enactment in that it appears that a special law could authorize any county officer to serve as treasurer in view of the provisions of Code Section 89-103 (above quoted).

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COURTS-Clerks (Unofficial)
Compensation of Superior Court Clerk while serving as ordinary pending call of special election.
February 26, 1960
Mr. John R. McCannon
I am pleased to acknowledge your letter requesting an opinion from the State Department of Law on the following question:
"Can the Clerk of a Superior Court, while serving as Ordinary, Acting, during the interim of time between the resignation of an Ordinary and the, election and qualification of his successor, receive the normal compensation allowed under law for both his office as Clerk of the Superior Court of the circuit and the amount allowed for the Ordinary of the County?"
It appears that Code Section 24-1707 is the controlling statute of the question propounded, and this statute provides that in the event of a vacancy in the office of Ordinary that it shall be the duty of the Clerk of the Superior Court to order an election, and that until the vacancy is filled the Judge of the City or County Court shall serve as Ordinary. You state that there is no City or County Court, so therefore, this part of the statute would not be applicable. The statute further provides that if there be no such judge the Clerk of the Superior Court shall serve as Ordinary, and that if the Clerk of the Superior Court cannot serve as Ordinary the Judge of the Superior Court shall appoint a person to serve as Ordinary.
The statute further provides that the Board of County Commissioners, and if there is no county commissioner, the Judge of the Superior Court shall fix the compensation of the person who serves as Ordinary until a vacancy is filled, and that such compensation shall be paid from the general funds of the county, and that the fees collected during such period of time shall be paid into the general funds of the county.
You will note that the statute in question provides that the County Commissioners shall fix the compensation of the "person" who serves as Ordinary until the vacancy is filled. It does not refer to the officials which are named specifically to have certain duties connected therewith. Therefore, it is not clear as to the intention of the General Assembly in using the word "person" without referring to the officials specifically named to perform certain duties during the interim period of the vacancy insofar as paying said officials' compensation other than that fixed by law for the performance of the duties imposed upon such person by law. Did the General Assembly in the enactment of the above statute intend that only the "person" who served as Ordinary outside of the officials named therein to be the only one to receive compensation, or did they intend for the word "person" to apply to the officials named in said Act? It is my view that since it is not clear that it would be a question which must be determined by a declaratory judgment in the court of competent jurisdiction.

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COURTS-Clerks
The Clerk of the Superior Court may only charge $1.00 as fee for furnishing the Director of Corrections with copies of accusation, bill of indictment and sentence.
July 27, 1961
Honorable Jack M. Forrester Director State Board of Corrections
This will acknowledge and reply to your letter asking whether or not the Clerk of the Superior Courts may charge counties any more than the $1.00 fee from funds of the county to pay for copies of sentences, bills of indictment and accusation as provided in Acts of the General Assembly 1956, Page 172, Paragraph
c.
Your letter indicates that the question concerned a county where the Clerk is not on a salary 'basis.
Georgia Laws 1956, p. 161 at 172, Paragraph (c) provides in part as follows:
" ... the clerk of the court shall immediately notify the Director of Corrections of the sentence, and shall forthwith dispatch therewith, by mail, a complete history of such person upon forms provided by the Director. Such history shall include a certified copy of the indictment, accusation, or both, a certified copy of sentence, and such other information as the Director may require. For such service, the clerk shall receive a fee of $1.00 from funds of the county, except where such clerk is on a salary."
The above-quoted provision of law clearly compels the Clerk to furnish a copy of the indictment, accusation and certified copy of sentence. This same provision clearly states the fee of $1.00 which may be charged by the Clerk.
I find no further statutory provision which would alter or enlarge upon the above provisions.
COURTS-Clerks (Unofficial)
Use of photostatic equipment by Superior Court Clerks discussed.
November 3, 1960
Mrs. Lois B. Mays
This letter will acknowledge receipt of your letter wherein you state that your County is considering a change in the method of recording in the Clerk's office from typing to photo-copying, and that you are planning on buying a Photorapid machine which is manufactured by Burogerate A. G. Zunich in Switzerland. You request that you be advised if there is any law governing the type of process used in recording permanent records.

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While we are not familiar with the make and model of the machine which you are proposing to buy and therefore do not know the sort of reproduction by such machine, there does exist a law concerning the use of photostatic or photographic equipment by the Clerk of a Superior Court. The law was enacted by the General Assembly in 1957 (Acts 1957, page 121), and is codified in Georgia Code Annotated as Section 24-2747, which we quote:
"24-2747. Use of photostatic or photographic equipment by clerkThe Clerk of the Superior Court of any county of this State may install and use photostatic equipment or other photographic equipment, excluding micro equipment, in recording, copying and furnishing copies of any and all instruments, records and proceedings or parts of the same, of record or on file in said office, with the consent and permission only of the governing county authority. Such equipment and supplies for the same may be provided by the proper and respective county authorities out of county funds. The provisions of this Section for the installation and use of such equipment shall be construed to be permissive only, and are cumulative of existing provisions of law: Provided, however, that such equipment be purchased as authorized herein, the use of such equipment shall be mandatory insofar as practical.
"All provisions of existing law relating to the filing, docketing, recording, keeping, copying, binding, indexing, certification and the furnishing of copies of record, including certified copies, and those relating to the amount of fees of officers in connection therewith, shall, as far as may be consistent with the provisions of this Section, apply to such photostatic and photographic records and copies.
"No provision of this Section shall be construed to change or repeal any rule of court or provision of law relating to records on appeal or review in the courts of this State. (Acts 1957, p. 121.)"
From the above quoted Code Section it would appear that so long as the proposed photo-copying machine is not micro equipment, and so long as it produces actual copy, the same would be of use in compliance with this Section. However, this letter is in no way to be construed in such manner as to approve or disapprove any specific equipment, nor to approve or disapprove the photocopying of specific documents as pertains to the duties of a Clerk of a Superior Court as prescribed by law.
COURTS-Clerks (Unofficial)
Vacancies in the office of Clerk of the Superior Court are filled by the ordinary while awaiting special election called by ordinary.
June 16, 1960
Honorable Bethel Salter
I am pleased to acknowledge your letter in which you inquire whether you are required to call an election to fill the unexpired term of the Clerk of the Upson County Superior Court.

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Section 24-2704 of the Code of Georgia provides:
"Vacancy.-If a vacancy occurs (or will shortly), the ordinary of the county where it happens shall give notice in one or more of the public newspapers of said county (if any) and at the courthouse, and at three or more of the most public places of said county, 20 days previous to the day of election, which shall be appointed by him."
Section 24-2705 of the Code of Georgia provides:
"Term of one elected to fill vacancy.-The person elected on said day shall hold his office for the unexpired term of his predecessor. The returns of the election must be made to the Governor, who must commission the clerk."
Section 24-2707 of the Code of Georgia provides:
"Appointment pending filling of vacancy.-As. soon as a vacancy occurs, or in anticipation of it, said ordinary must appoint some qualified person to discharge the duties of clerk until the vacancy is filled." Section 24-2708 of the Code of Georgia provides:
"Vacancy from sudden emergency.-If from any sudden emergency there is a vacancy, and it is not immediately supplied, the ordinary or his clerk shall act as clerk."
Section 24-2709 of the Code of Georgia provides:
"How long appointee to fill vacancy holds.-When a vacancy occurs, and it is not more than six months from the time the election can be appointed by said ordinary and held until the existing term will expire, the person or persons appointed shall discharge the duties of the office for the balance of the term, and there shall be no special election."
The above sections of the Code are clearly and plain in setting forth the procedure in the filling of a vacancy in the office of the Clerk of the Superior Court.
It is incumbent upon you to make an appointment to fill the office of Clerk of the Superior Court until an election is called by you under Code Section 24-2704. I have constantly felt that an election to fill a vacancy must be called within a reasonable period of time after the vacancy occurs.
Your attention is specifically called to Code Section 24-2709 wherein it provides that when a vacancy occurs, and it is not more than six months from the time the election can be set and held by the ordinary, until the existing term will expire, the person or persons appointed by the ordinary shall discharge the duties of the office for the balance of the term, and there shall be no special election.
COURTS-Constables (Unofficial)
Office of constable discussed. March 15, 1960
Honorable Harold E. Ward
I am pleased to acknowledge your letter and to advise that a constable is an elective office for a four year term by the people of the district in which they

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offer, Georgia Code Section 24-801. However, any person who is at the time a resident of the district may be appointed constable to fill a vacancy or answer some emergency. See Georgia Code Section 24-803. Therefore, a constable could not be an employee of the Justice of the Peace since his is a separate elective office to perform the functions specified by statute.
It is my view that a constable would be a self-employed official in that he is on strictly a fee basis, and the fact that certain of his fees may be paid from an insolvent costs fund would not make him otherwise since an insolvent costs fund is not general funds of the county.
COURTS-Insolvent Funds (Unofficial) Fees due for service in the Superior Court may not be paid from in-
solvent fund of fines from traffic cases in ordinary's court. July 19, 1960
Honorable George D. Lawrence You ask that I give you my view on the following question: "If there is an insolvent fund in the hands of the county which has been accumulated from fines and forfeitures in traffic cases in the Court of Ordinary, ma,y a sheriff be paid therefrom for cases arising in the Superior Court when the fines and forfeitures in the Superior Court are not sufficient to pay the total due him." It is my view that fees due from the cases arising in the Superior Court
could not be paid out of the fines and forfeitures fund accumulated from cases in the Court of Ordinary. This same view would apply to any office of the county involving the two funds.
COURTS-Judges (Unofficial) Salary of Superior Court Judges in Augusta Judicial Circuit. April 4, 1961
Honorable Franklin H. Pierce This will acknowledge receipt of your request for my opinion relative to the
supplement of salary from the funds of Richmond County that is payable to the Judges of the Superior Court of the Augusta Judicial Circuit.
Subsequent to the receipt of your written request, I have been advised the question primarily concerns whether or not the $2,000.00 supplement provided by Article VI, Section XII, Paragraph I of the Constitution (Georgia Code Annotated, 2-4701), insofar as it relates to Richmond County, is in addition to the amount

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provided by 1951 Georgia Laws, page 779, as amended by 1957 Georgia Laws, page 458.
The answer to your inquiry is found in Section 2 of the 1951 Act, which provides:
" ... and shall be in addition to the $20,000.00 per annum now being paid by Richmond County ... "
The net effect of the 1957 amendment was to increase the figure in Section 1 of the Act from $700.00 to $3,270.00 per year, which, in the language of Section 2 of the Act, is an additional supplement payable from the funds of Richmond County.
The General Assembly having authorized the governing authorities of Richmond County to supplement the salaries of the Judges of the Superior Courts of the Augusta Judicial Circuit from the funds of Richmond County, and the governing authorities having exercised the grant of authority, I am of the opinion that the supplement payable to said Judges from the funds of Richmond County is the $3,270.00 authorized by Section I of the 1951 Act, as amended, and in addition thereto, the $2,000.00 provided by the Constitution.
COURTS-Judges Emeritus (Unofficial)
There is no provision in the laws of this State for a Judge Emeritus of a city court.
October 3, 1960
Honorable John E. Drake
This is to acknowledge your letter in which you inquire as to the existence of a State law by which you are entitled to become a Judge of the City Court of Bainbridge Emeritus.
There is no law in the State of Georgia for the appointment to or the creation of such position of City Court Judge Emeritus. The laws of this State provide for the creation and appointment to the position Judge Emeritus for Justices of the Supreme Court, the Court of Appeals, Judges of the Superior Court and other specifically designated positions in the State Government, but not for Judges of the various City Courts of the State.
I am advised, however, that the City Court of Bainbridge did qualify to elect and come under the Employees' Retirement System, and that you are eligible to retire under said system.

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COURTS-Juries (Unofficial)
The authority of Grand Juries in assisting county officials is advisory only.
November 22, 1961
Honorable Kenneth Goolsby
You request the authority of the Grand Jury either as a body or by means of a committee appointment to aid and assist the County Commissioners in the selection of the county police.
Code, Title 59, relates to the authority of juries and Code Chapter 59-3 in particular relates to the powers and duties of a grand jury. Section 59-301 provides:
"The duties of a Grand Jury shall be confined to such matters and things as by the law they are required to perform." Code Chapter 23-14 relates to county police, and Code Section 23-1401 provides for the appointment thereof. The Supreme Court of Georgia in the case of Levine, v. Perry, et al, 204 Ga. 323, headnote 3, holds that the authority conferred upon county commissioners to appoint county police, to fix their salaries, and to perform other acts in relation thereto, involve the exercise of judgment and discretion, and that such powers may not be delegated by the count.y commissioners. In Barge v. Camp, 209 Ga. 38, at 48, reference was. made to the Levine case and apparently distinguished between the authority to delegate power to a governmental subdivision and distinguished the upholding of the apparent delegation in the Barge case as against that prohibited in the Levine case. In view of the above, it would appear that the governing authority would be authorized to receive and give effect to recommendations of the Grand Jury or a committee thereof as the governing body deemed expedient. On this basis it would appear that the only thing the Grand Jury could do would be to make a recommendation. It does not seem that the Grand Jury has any authority to make any binding selection nor to participate in any manner as a part of the governing authority of the county in performing the duty and responsibility placed upon the governing authority by Code Section 23-1401. In summary, it would appear that the only authority of the Grand Jury would be to make a recommendation, the weight of the recommendation to be determined by the governing authority in the performance of the duty imposed upon them by law.
COURTS-Juries (Unofficial)
Persons excused or exempted from jury service enumerated. April 5, 1960
Honorable R. J. Marshburn
I am pleased to give you the following information as requested in your letter:

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Code Section 59-201 of the Annotated Code of Georgia provides:
"59-201. Qualifications of Grand Jurors; incompetency of certain public officers to serve.-All citizens of this State, above the age of 21 years, being neither idiots, lunatics, nor insane, who have resided in the county 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 county 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. (Acts 1887, p. 53; 1953, Nov. Sess., pp. 284, 287.)"
Section 59-113 of the Annotated Code provides:
"59-113. Member of General Assembly excused.-Any person summoned to serve as a juror in any court of this State shall be excused from such service during his absence from such court, when his absence is caused by his attendance as a legislature upon the General Assembly. (Acts 1905, p. 93.)"
Code Section 59-112 provides:
"59-112. Persons exempt from jury duty.-The following persons shall be exempt from all jury duty, civil and criminal:
"Ministers of the gospel, engaged regularly in discharging ministerial duties. (Acts 1872, p. 33; 1878-9, p. 171.)
"All physicians (Except as provided in sections 49-604 and 49-615) and apothecaries in the practice of their professions. (Acts 1873, p. 31; 1878-9, p. 171.)
"School teachers engaged in teaching school. (Acts 1878-9, p. 171.)
"Millers and ferrymen engaged in their occupation. (Acts 1875, p. 98.)
"All railroad employees whom the superintendent of a railroad shall certify to the judge are necessary and are actually engaged in the work of running railroad trains. (Acts 1878-9, p. 171; 1875, p. 98; 1876, p. 16.)
"All persons over 60 years of age. (Acts 1875, p. 98; 1878-9, p. 171; 1953, Nov. Sess., pp. 284, 286.)
"All nurses engaged in the practice of their profession. (Acts 1953, Nov. Sess., pp. 284, 286.)
"All mothers engaged in the rearing of children under 16 years of age. (Acts 1953; Nov. Sess., pp. 284, 286.)
"All telegraph operators. (Acts 1874, p. 46; 1878-9, p. 171.)
"Officers and members of each fire company to the number of 25, doing actual duty as firemen, whose names shall be filed in the office of the Clerk of the Superior Court by the secretary Qf such company on or

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before the first day of January of each year. (Acts 1871-2, pp. 29, 30; 1878-9, p. 171.)
"Clerks connected with the several State departments at the capital. (Acts 1875, p. 96.)
"Persons employed at the Milledgeville State Hospital. (Acts 1874, p. 91.)
"Persons practicing dentistry: Provided, that this exemption shall not operate to disqualify those dentists who may wish to serve as jurors. (Acts 1920, pp. 132, 143.)
"Regularly licensed pilots, together with one boatkeeper for each pilot boat, actually engaged in the regular management of their boats. (Acts 1880-1, p. 114.)
"Members of the various police forces and town marshals of the several cities and towns, while so employed on such police forces. (Acts 1884-5, p. 94.)
"Telegraph line repairers whom the manager or superintendent of the telegraph company shall certify to the court to be line repairers and actually engaged in repairing telegraph lines. (Acts 1884-5, p. 102.)
"Regularly licensed stationary engineers actually engaged in the regular management of engines at their places of occupation. (Acts 1890-1, pp. 219, 220.)
"Railway postal clerks. (Acts 1899, p. 69.)
"Special pay members of any company of the volunteer forces of this State, whose certificate of membership, signed by the company commander and attested by the first sergeant, when produced in any court, shall be evidence of the right to the exemption. (Acts 1884-5, pp. 83, 85.)
"Licensed embalmers actually engaged in the practice of embalming. (Acts 1905, p. 105.)
"Any person admitted to practice law in this State is hereby exempt from all jury duty, civil and criminal, in any of the courts of this State: Provided, however, that this exemption shall not operate to disqualify those attorneys at law who may wish to serve as jurors. (Acts 1953, Nov. Sess. p. 328.)
"Nothing herein contained shall be construed to work a disqualification of any of the classes named, or to exclude them from the jury box. (Acts 1875, p. 98; 1890-1, pp. 219, 220. 141 Ga. 82 (80 S. E. 850.)"
Code Section 59-102 of the Code provides:
"59-102. (814 P. C.) Same; ineligibility of members of board of roads and revenues and county commissioners.-No person while serving as a member of the board of roads and revenues or as county commissioner shall be eligible to serve as jury commissioner, and the acts of either as jury commissioner shall be illegal and void. (Acts 1899, p. 78.)"

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Code Section 59-212 of the Annotated Code of Georgia provides:
"59-212. 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 consanguinity or affinity to any party interested in the result of the case of matter, within the sixth degree, as computed according to the civil law, and relationship more remote shall not be a disqualification. (Acts 1935, p. 396.)"
COURTS-Justices of the Peace (Unofficial) Abolishing the office of justice of the peace in a county may only be done by Constitutional Amendment.
January 18, 1961
Honorable J. Henry Howard
I am pleased to acknowledge your request concerning the question of whether it would be possible to abolish the office of justice of the peace in your county and have this jurisdiction conferred upon some other officer of the county.
The general provision of the Constitution concerning the office of justices of the peace is found in Article VI, Section VII, Paragraph I of the Georgia Constitution of 1945. This provision contains certain exceptions as to when the General Assembly may abolish justice courts under certain conditions. It is noted that in Georgia Laws 1958, p. 526 an amendment was attempted to this provision for the purpose of adding the County of Spalding to that of Glynn. However, this proposed amendment failed of ratification.
In my opinion the proper way for your county to transfer the jurisdiction of your justice courts to some other county officer would be by a general amendment to the above constitutional provision or by a local constitutional amendment which would be voted on only by the electors of your county. See Georgia Code Annotated, Section 2-8101.
COURTS-Justices of the Peace (Unofficial) A Justice of the Peace may not bind a person charged with a traffic
vioaltion over to the ordinary.
October 3, 1960
Honorable L. Cecil Rhodes
This is to acknowledge receipt of your letter in which you ask: "Can a Justice of the Peace commit or bind over under bond a defendant charged with a traffic violation to the Court of Ordinary?"
Code Section 92A-502, Code of Georgia Annotated, deals with the question about which you make inquiry, and reads as follows:

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"92A-502. Jurisdiction of ordinary.-The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under this Title, and other traffic laws of the State, in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts in incorporated cities and municipal court judges, for offenses arising within their respective jurisdiction. (Acts 1937-38, Ex. Sess. pp. 558, 559.)" It is my opinion that the Code Section above referred to was never intended by the Legislature to authorize one committing court to bind a defendant over to another committing court. It is further my opinion that it is the duty of the committing court, when there is evidence sufficient to authorize the committing court to bind a defendant over, to bind the defendant over to a court which has unconditional authority to try the defendant for the offense charged.
COURTS-Justices of the Peace (Unofficial) Justices of the peace may not charge for collecting bills. January 27, 1961
Judge Jimmy Townsend This is in response to your letter in which you request to know the amount
which a Justice of the Peace may properly charge as his fee for collecting bills. No judicial officer may collect fees for service rendered other than those
specifically provided for by law. Section 24-1601, Georgia Code Annotated, sets out the services for which a Justice of the Peace may charge fees and the amount of the fee which may be charged in each instance. There is no provision for a Justice of the Peace to charge and collect a fee for merely collecting a bill. Therefore, a Justice of the Peace may not lawfully charge a fee for collecting a bill.
COURTS-Notaries Public (Unofficial) A Notary Public must have a seal for authentication of his notarial acts. June 15, 1960
Mr. L. B. Oglesby I am pleased to acknowledge your letter and to advise that Section 71-107
of the Annotated Code of Georgia provides: "For the authentication of their notarial acts each notary must pro-
vide a seal of office, which shall have for its impression his name; the words, 'Notary Public'; the name of the State and the county of his residence, or shall have for its impression his name and the words 'Notary

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Public, Georgia, State at Large'. A scrawl shall not be a sufficient notary seal. No seal is required to his attestation of deeds."
The above statute is clear that a Notary Public must have a seal for the authentication of his notarial acts.
COURTS-Ordinaries (Unofficial)
When the Ordinary is disqualified or absent, the Judge of the City Court shall act and exercise all powers and duties of the ordinary.
October 28, 1960
Judge John W. Harrell, Sr.
This will acknowledge receipt of your letter in which you ask whether your son, John W. Harrell, Jr., who is your official Clerk, may assume the duties of Ordinary when you are temporarily absent.
Section 24-1710 of the Code of Georgia, as amended, states:
"24-1710. (4785) Proceedings when ordinary disqualified.-Whenever an ordinary is disqualified to act in any cause or because of sickness, absence, or for any other reason is unable to act in any cause, the judge of the city court or the county court, as the case may be, shall exercise all the jurisdiction of the ordinary in such cause. If there be no judge or if for some reason such judge cannot serve in such cause, the clerk of the superior court shall exercise all the jurisdiction of the ordinary in such cause. If for any reason the clerk of the superior court cannot serve in such cause, the judge of the superior court shall appoint a person to serve and exercise the jurisdiction of the ordinary in such cause. The compensation of the person serving as herein provided shall be fixed by the board of county commissioners, or, in those counties which have no county commissioners, by the judge of the superior court. Such compensation shall be paid from the general funds of the county. All fees collected during such service shall be paid into the general funds of the county. (Acts 1889, p. 100; 1897, p. 52; 1907, p. 106; 1951, pp. 129, 131; 1953, Nov. Sess., 182, 183.)"
From reading the preceding Code Section it is clear that when an Ordinary is disqualified to act in any cause because of absence, the Judge of the city court or county court, as the case may be, shall exercise the powers and duties of the Ordinary. Of course, you have stated in your letter that you do not have a county court; therefore, I believe the framers of Section 24-1710 of the 1933 Code of Georgia, as amended, envisioned such a condition when they provided that the Clerk of the Superior Court shall assume the duties and powers of the Court of Ordinary. The General Assembly also went one step further and said that in the event the Clerk of the Superior Court is unable to serve then the Judge of the Superior Court shall appoint a person to serve. Therefore, I am constrained to the conclusion that your son would be unable to act as Judge of the Court of Ordinary in your temporary absence even though he is your official Clerk and is under bond, unless appointed by the Superior Court Judge in accordance with the preceding Code Section.

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COURTS-Ordinaries (Uoofficial)
1. Ordinaries have the power to bind over an accused under the Uniform Traffic Act.
2. Fees due may be paid out of an insolvent fund.
July 25, 1960
Honorable Walter E. Taylor, Jr.
This is in response to your letter with reference to the power of an Ordinary to bind over an accused within his own Court under the provisions of the Uniform Traffic Act, as to when the fees of the Ordinary and Sheriff become collectable from the insolvent fund, and further, as to whether or not fees of the Ordinary and Sheriff in traffic c,ases are collectable out of the insolvent fund when the accused pays no fine.
In answer to your first question, it seems that an Ordinary has the power to bind over an individual for trial in his Court at a later date, assuming, of course, that the case is one properly within his jurisdiction under the State Constitution and the traffic laws of this State.
In response to your second question, the general rule seems to be that the right of a court officer to fees vests at the time he completes the performance of the duties giving rise to the fees, but that, except in cases in which a fine is imposed and paid by the accused, the actual collection of the fee is deferred. In those cases in which the accused is acquitted of the charge against him it would seem that the officer's claim against the fund may be filed immediately. However, in those cases in which the accused is freed on bond, it would appear that presentation of the claims of the court officers for fees must be postponed until final disposition of the case because it is not until that time that it will be known whether the fees will be satisfied from a fine imposed should the defendant be found guilty and able to pay said fine or whether the fees will be satisfied from the insolvent fund, should the defendant be acquitted or unable to pay the fine imposed should he be found guilty.
In reply to your third question, it appears that in all cases in which the accused pays no fine because he is acquitted, or though found guilty, is financially unable to pay, the usual fees of the Ordinary and Sheriff are collectable out of the insolvent fund. Let me refer you in this regard to Section 92A-507, Georgia Code Annotated, which provides for the payment of costs out of fines imposed by the Court of Ordinary and for the payment of all fine money in excess of costs into the Court Treasury. By implication this establishes an insolvent fund out of which must be paid the fees of court officers in all cases in which the accused is financially unable to pay the fine imposed or else is acquitted. As has been pointed out above, this insolvent fund should, according to the general rule, constitute a fund subject to be drawn upon only for the payment of court costs in those cases where the accused is unable to pay the fine imposed which would otherwise cover the court costs.

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It is fundamental, of course, that no officer of any Court may receive fees other than those established by statute nor in amounts greater than those set by statute. Georgia Code Annotated, Section 92A-512, stipulated that the Sheriffs of the several counties of the State shall be entitled to the usual arresting fee in all cases in which a State Patrolman arrests any person charged with having committed a criminal offense and delivers him into the custody of the Sheriff or his lawful deputy. Section 24-2823, Georgia Code, provides that a Sheriff is entitled to a fee of six ($6.00) dollars for each arrest, if the suspected person is committed or held to bail. Thus, the Sheriff in this particular case should receive a fee of six ($6.00) dollars for receiving into his custody the person arrested by the State Patrolman.
Section 24-2823, Georgia Code, also provides that the Sheriffs of the several counties of the State shall be entitled to a fee of four ($4.00) dollars for taking cash bonds when such bonds are later forfeited. In the instant case then, it would appear that the Sheriff is entitled to an additional fee of four ($4.00) dollars.
Since I gather from your letter that the defendant in the case cited by you was not actually committed to jail but was permitted to make cash bond immediately after his arrest, it would follow then that no question is raised as to further fees which might have resulted from incarceration of the defendant.
It appears that under the circumstances of this particular case, the Ordinary would not be entitled to a fee. Section 92A-505, Georgia Code Annotated, sets out that an officer issuing a warrant shall be entitled to a fee of one dollar and twenty-five cents ($1.25); since none was issued in this particular case, apparently, by the Ordinary or any other magistrate authorized to issue warrants, neither the Ordinary nor any other magistrate would be entitled to this fee. Section 92A-505, Georgia Code Annotated, also provides that an Ordinary shall receive a fee of three ($3.00) dollars for the entire service of entering a case on the docket, receiving a plea of guilty or holding a trial on a plea of not guilty, and imposing sentence. Since no plea was received nor a trial held and sentence imposed, the function which the statute required to be fulfilled in order to give rise to the fee has not been performed. This is true even though the Ordinary, in pur:mance of the Cash Bond Act of 1953, has exercised his discretion to enter a judgment forfeiting the bond and declaring the case settled because there would still have been no plea entered and no imposition of sentence.
In conclusion then, it would appear that the Sheriff is entitled to fees in the total amount of ten ($10.00) dollars.
COURTS-Ordinaries (Unofficial)
Ordinaries are required to issue a fi fa for use of the county surveyor.
August 18, 1960
Honorable Roger Vincent
This is to acknowledge receipt of your letter which reads as follows:
"Please give me your unofficial opinion on Georgia Code Section 23-1111. Is the Ordinary required by law to issue a Fi. Fa. in his name

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for the use of the County Surveyor for the amount of his services for making a survey, but which is not an official survey under Court Order?"
The Code Section, as to the meaning and effect of which you make inquiry, reads as follows:
"23-1111. (601) Execution for fees.-If after a county surveyor has made a survey for any p,erson, who neglects to pay him, such surveyor upon making oath before the ordinary of his county of the performance of such service and its value, such ordinary shall issue a fi. fa. in the name of the ordinary, for the use of such surveyor, against such defaulter, who may defend himself therefor, in the same manner as persons against whom executions issue who detain county funds." (Emphasis added.)
This Code Section seems to be clear and unambiguous and makes it the duty of the Ordinary to issue a Fi. Fa. when the surveyor has complied with the provisions of the Section.
COURTS-Ordinaries (Unofficial)
Discussion of court of ordinary and naming of guardians by ordinary.
January 12, 1961
Miss Bertha Blasingame
This will acknowledge receipt of your inquiry in which you asked certain questions with reference to the Court of Ordinary and the jurisdiction of the court in naming a guardian.
The Court of Ordinary is a constitutional court. See Article VI, Section I, Code Sec. 2-3601. And our courts have held that the Court of Ordinary is a court of record. Wofford et al., v. Vandiver, 72 Ga. App. 623 (1). There is of course adequate provision for appeal to the Superior Court from decisions of the Court of Ordinary and the answer to your first question is that the Court of Ordinary being a constitutional court operates under state law.
Now you refer apparently to a desire for guardianship of a mature person who is perfectly rational but is afflicted with arthritis and so unable to attend physically to financial affairs. First let us call to your attention Chapter 24-19 of the Code of Ga. Ann. on the subject of jurisdiction of the Court of Ordinary which provides that Courts of Ordinary have authority to exercise original, exclusive and general jurisdiction of the following subject matters: "(5) the appointment and removal of guardians of minors and persons of unsound mind", and, "(6) all controversies as to the right of guardianship." You will note that the Court of Ordinary is authorized to appoint a guardian of a minor or a person of unsound mind and that under (6) jurisdiction vests in the Court of Ordinary covering all controversies as to the right of guardianship. The Court of Ordinary as you probably know is held on the first Monday in each month under provision of Sec. 24-2101, Code of Ga. Annotated.

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The appointment of a guardian by the Court of Ordinary follows the statutory law and the Court's decisions with reference to the need for a guardian. Your attention should be called to Sec. 49-601, Code of Georgia, covering for whom guardians may be appointed and which Section reads as follows:
"For whom guardians may be appointed.-The ordinaries of the several counties may appoint guardians for the following persons, viz.: Insane persons, deaf and dumb persons when incapable of managing their estates, habitual drunkards, and persons imbecile from old age or other cause and incapable of managing their estates. (Acts 1818, Cobb, 342. Acts 1840, p. 345.)"
The Supreme Court of Georgia has held that blindness is no ground for the appointment of a guardian for an adult, 122 Ga. 102(1). The Supreme Court has also held that limited education is no ground for the appointment of a guardian for an adult, 122 Ga. 102 (1). In a similar case, the Supreme Court of Georgia in the case of Sargent v. Burdett, 96 Ga. 118, has indicated that the words "capable of taking and managing property" related to the mental and not to the physical capacity. The Court has also held that where a person though very weak in mind, has enough capacity to understand the nature of a particular cause of action, and well enough to desire to bring suit thereon, he may do so without a next friend or a guardian. 111 Ga. 641. 148 Ga. 612 (1).
It is apparent therefore that the Court of Ordinary would have no authority to name a guardian for a person who is perfectly rational but is only afflicted with arthritis, unless of course this condition is also accompanied by some other condition as described in Sec. 49-601 of the Code of Ga. Ann. quoted above. Of course the Court of Ordinary is held with usual legal formality and more or less routine procedure, and any person aggrieved has recourse by appeal to the Superior Court.
COURTS-Ordinaries (Unofficial)
Procedure to be followed with respect to the insolvent fund when an ordinary is placed upon a salary.
February 8, 1961
Honorable Richard W. Watkins, Jr.
This is in reply to your letter in which you raise certain questions concerning the procedure that should be followed with respect to the Ordinary's Insolventcost Fund, in view of the provisions of the Acts approved by the Governor on January 27, 1961, placing the Ordinary and the Sheriff of Butts County on the salary system (House Bills Nos. 77 and 79, 1961 Session).
These Acts contain essentially similar provisions, in that they place the Ordinary and the Sheriff on salaries and provide that such salaries shall be in lieu of all monies heretofore received by either officer from every source. The Acts further provide that the officers shall collect all such monies, for the benefit of Butts County, and shall furnish the Butts County Authorities with monthly statements of amounts collected, together with full payment of such amounts. The

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Acts further provide that existing procedures as to collection and distribution of the monies, which the salaries replace, shall remain the same.
In view of the provisions of the Act and of the opinion of the Supreme Court in the case of Cooper v. Lunsford, 203 Ga. 166, amounts received by the Ordinary and the Sheriff from the Ordinary's Insolvent-cost Fund should be included in the monthly statements and turned over to Butts County. It does not appear that any change in existing procedure for handling the fund and making payments therefrom is contempl'ated in either Act,
In view of the special directions in the Acts, I am of the opinion that payments should be made to the Board of Commissioners of Roads and Revenues of Butts County. I interpret the provisions of the Acts as being "special exceptions" and "special directions", within the meaning of Section 23-1016 of the Georgia Code.
COURTS-Ordinaries (Unofficial)
All monies collected over costs in traffic violation and truck weight cases must be paid into an insolvent fund.
October 30, 1961 Honorable John W. Harrell, Sr.
I am pleased to acknowledge your letter which asks the following questions:
What becomes of fines in traffic cases such as speeders and other traffic violations, including truck-weighing cases, after all costs are paid?
Do they go into the insolvent cost fund?
In answer, I refer you to the case of Cooper v. Lunsford, 203 Ga. 166:
The Court in that case determined that an insolvent cost fund was established by the Act of the General Assembly approved February 16, 1938 (Ga. Laws 1937 through 1938, Extraordinary Session), which grants to the Ordinary the power to assess fines in highway traffic violations. The Court further cites Section 27-2902 (Ga. Code 1933), which requires that insolvent cost funds be placed in the County Treasury, and also Section 27-2904 (Ga. Code 1933), which requires that such funds be kept separate and distinct from funds arising from other sources.
Under this authority it appears, therefore, that the fines assessed by the Ordinary must go into an insolvent cost fund after all costs are paid.
COURTS-Ordinaries (Unofficial)
Jurisdiction of ordinaries over drunk driving cases and issuance of warrants discussed.
June 29, 1960 Honorable John W. Williamson, Jr.
Your letter addressed to the Honorable S. Ernest Vandiver, Governor of Georgia, in which you request to know whether or not an Ordinary may issue

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criminal warrants, and further, whether or not an Ordinary may try persons charged with drunken driving has been referred to this office for reply.
Allow me to refer you to the Constitution of Georgia, (Section 2-4102, Georgia Code Annotated,) which deals with both questions you raised and which reads:
"2-4102. (6521) Paragraph II. Powers.-The courts of ordinary shall have such powers in relation to roads, bridges, ferries, public buildings, paupers, county officers, county funds, county taxes and other county matters as may be conferred on them by law.
"The court of ordinary shall have j"\lrisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, and in all cases arising under the Compulsory School Attendance law in all counties of this State in which there is no city, or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges for offense arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State within their respective jurisdiction." (Emphasis added.)
COURTS-Ordinaries (Unofficial)
There is no prohibition against an ordinary trying a traffic offender whose offense occurred within the jurisdiction and in the presence of an arresting constable.
March 15, 1961
Judge W. G. Durden
You desire to know if there is any legal reason why you, as Judge of the Court of Ordinary, may not try a defendant charged with a traffic offense over which your Court has jurisdiction when the arresting officer was a constable and the alleged offense was committed in the constable's presence.
In Glaze v. The State, 156 Georgia Reports 807, at headnote 2 (b) the Court holds:
"2 (b) A town marshal has a right without a warrant to arrest a person violating a criminal municipal ordinance, the violation occurring in his presence; and a constable of this State has authority without a warrant to arrest a person violating a penal statute of this State in his presence."
From reading the preceding headnote I believe your question should be answered in the negative.

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COURTS-Ordinaries (Unofficial)
A supporting affidavit must be received and a warrant issued by a judicial officer in all criminal cases coming under the jurisdiction of an ordinary.
January 25, 1961
Honorable, Joe T. Lane
This will acknowledge receipt of your letter in which you ask in essence the following question:
In all criminal cases properly coming under the jurisdiction of the Court of Ordinary for disposition is it mandatory that a judicial officer receive a supporting .affidavit and issue a warrant?
The answer is in the affirmative. Section 27-212 of the Code of Georgia, as amended, provides as follows:
"27-212. Duty of person arresting without warrant.-In every case of an arrest without warrant, the person arresting shall, without delay, convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose."
From the preceding Code Section it is apparent that the laws of Georgia envision that a warrant be issued in all cases involving a violation of the penal laws of the State. Such warrants may be issued by any judicial officer authorized to do so under Section 27-102 of the Code of Georgia, as amended, such as any Judge of a Superior Court or county court, or Justice of the Peace, or any municipal officer clothed by law with the powers of a Justice of the Peace or the Ordinary in traffic cases in pursuance of Chapter 92A-5 of the Code of Georgia as amended.
COURTS-Ordinaries (Unofficial)
Authority of ordinary to appoint an attorney and pay fees in lunacy hearings discussed.
June 22, 1960
Honorable W. L. Abney
This will acknowledge your letter inquiring if you have authority to appoint an attorney to represent a patient in the process of being examined by a lunacy commission functioning under the law of the State of Georgia, and if you have authority under Sec. 20 of Act No. 618 of the Georgia General Assembly, approved March 17, 1960 to pay said attorney for such service.
First let us call to your attention that the 1960 Act repeals in its entirety the Act No. 485, approved March 26, 1958, and codified as Chapter 99-24 and Sedions 99-9909 and 99-9910 of the Georgia Code. We believe this is what you refer to in your letter as the "present law", which law will no longer be applicable in any respect after the effective date of the 1960 Act, which is July 1, 1960. We find a

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provisiOn in Section 99-2406 (f) as follows: "An opportunity to be represented by counsel shall be afforded to every alleged patient, and if neither he nor others provide counsel, the court shall appoint counsel". However, as stated this is now being repealed by the 1960 Act.
You will please note that the 1960 Act is specific in providing that Georgia Code Title 49 is expressedly retained. This chapter includes the general subject of jurisdiction of the ordinaries of the several counties in appointing guardians of insane or deaf and dumb persons and persons non compos mentis, and provision is found in Sec. 49-613 authorizing the Ordinary to draw a warrant upon the treasurer of the county for certain expenses of the proceedings. And see Sec. 49-610.7 covering fees of ordinary and commissioners in restoration proceedings.
Of course you are familiar with the provisions of Sec. 24-1901 (9) which confers jurisdiction on the Court of Ordinary for the issuing of commissions of lunacy in conformity with law.
Consideration has been given to provision of the Constitution of the State of Georgia found in Sec. 2-105 of the Code of Georgia Annotated under which every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel. We do not find, however, that this provision is applicable to trial of insanity cases as provided in Chapter 49 of the Code of Georgia or in the 1960 Act to which you refer. Sec. 20 of the 1960 Act provides for payment of expenses of the hearing before the Ordinary, providing a sum to be paid to the members of the examining committee and provides for costs of appeal to the Superior Court. In this connection please see the schedule of fees found in Sec. 24-1716 of the Code. It is apparent that the 1960 Act gives to ordinaries the authority to take jurisdiction, Sec. 6, to appoint an examining committee, Sec. 6 (d) to consist of two physicians and the county attorney, or an attorney appointed by the county attorney, and the Act in several instances refers to "the patient, or his attorney or guardian ad litem". Sec. 6 (d) (j), Sec. 13 (f).
The writ of habeas corpus is provided for in Sec. 17 of the 1960 Act but nowhere do we find, either in Sec. 20 or anywhere else in the Act, authority of the Ordinary to appoint an attorney at law to represent the patient in the event the patient does not have an attorney, nor do we find any authority to pay such an attorney an attorney's fee from public funds from the treasury of the county in payment for such services. The members of the examining committee may be paid as provided for in Sec. 20 of the 1960 Act and such committee under Sec. 6 (d) includes either the county attorney or an attorney appointed by the county attorney, and the duty of the examining committee is covered in detail in the Act.
COURTS-Ordinaries (Unofficial)
Duties of ordinary in recording of lunacy hearings and proceedings discussed.
May 26, 1960
Honorable Victor B. Jenkins, Jr.
Your letter regarding the question of recording lunacy proceedings has been received and has had our careful attention. You will note that Code Sec. 49-604, covering examination of capacity to manage estate and the concurrent duties

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and responsibilities of the ordinary, is expressly retained by 1960 Act 618, page 853.
You call to our attention the case of Verdery et al., v. the Savannah, Florida & Western Railway Company, and vice versa, 82 Ga. 675 (5), and the comment on page 686 of that decision that there is no law requiring papers to be recorded in a lunacy proceeding. This case was decided at the March Term, 1889, of the Supreme Court of Georgia. Subsequent to the above decision, the Code of Georgia of 1933 was adopted by the General Assembly of the State of Georgia. Please note especially Sec. 24-2105 which reads as follows:
"24-2105 (4812) Application to ordinary; notice and proceedings.Every application made to the ordinary for the granting of any order shall be by petition in writing, stating the ground of such application and the order sought. If notice of such application, other than by published citation, is necessary under the law or in the judgment of the ordinary, he shall cause a copy of such application, together with a notice of the time of hearings, to be served by the sheriff, or some lawful officer, upon the party or parties to be notified, at least 10 days before the hearing, and an entry of such service made on the original. In extraordinary cases, where it is necessary to act before such notice can be given, the ordinary shall so direct the proceedings as to make no final order until such notice has been given. (Acts 1859, pp. 33, 35.)"
Then see Code Sec. 24-2109, which reads as follows:
"24-2109. (4815) Proceedings must be filed and recorded.-The proceedings shall always be kept on file, and whenever the order is granted the proceedings shall be recorded in a book to be kept for that purpose, for which the ordinary shall receive the same fees as are allowed Clerks of the Superior Courts for similar services."
You will also note that the ordinary as required under Sec. 24-2110 of the Code to keep a regular book of minutes of the preceedings of his court on which he shall enter all the applications refused as well as those granted.
It is true that Sec. 24-1804 of the Code prescribing the duties of the clerk or ordinary acting as such tabulates certain records to be kept by the clerk or ordinary, or by the ordinary acting as clerk, which tabulation in Sub-Sec. 8 does not specifically provide for a suitable book for lunacy proceedings; nevertheless, it appears that Sec. 24-2,109 of the Code does require the Court of Ordinary to have recorded in a book to be kept for that purpose those proceedings enumerated in Sec. 24-2105 of the Code, and it appears that these code sections are sufficiently adequate to give direction that such proceedings shall be recorded in a book to be kept for that purpose.
You will note that the 1960 Act No. 618, of the Georgia General Assembly, approved March 17, 1960 contains nothing contrary to the above general law on the subject. The 1960 Act in Sec. 20 provides an increased schedule of the total costs to be paid to the ordinary in such a hearing.
You will note that the Court of Ordinary is a constitutional court, Art. VI, Section 1, (Code Ann. 2-3601), and our courts have held that the Court of Ordinary is a court of record. Wofford et al., v. Vandiver, 72 Ga. App. 623 (1). Art. VI, Section VI, of the Constitution of the State of Georgia of 1945, (Code Ann. 2-4101), provides for appeals from the ordinary to the Superior Court,

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and there is statutory law found in Code Sec. 6-201 for appeal from the Court of Ordinary to the Superior Court, all of which lead to the inescapable conclusion that proceedings in lunacy matters in the Court of Ordinary should be handled in observance with the provisions of Sec. 24-2105 and Sec. 24-2109 of the Code, including that they be recorded in a book to be kept for that purpose, thereby conforming to the general rule that the Court of Ordinary is a court of record from which appeals may be had as provided by law, and the appropriate keeping of such records in the Court of Ordinary being necessary for this and other general purposes.
COURTS-Ordinaries (Unofficial)
An ordinary may not act as coroner when the coroner is absent from the county.
May 23, 1961 Judge W. G. Durden
This is in response to your letter requesting advice as to whether the Coroner of Montgomery County, having removed from the county, may still act as Coroner of Montgomery County and whether it is proper for you, as Ordinary, to act as Coroner because of the Coroner's absence from the county.
Section 89-501 (5), Georgia Code Annotated, provides that all public offices in this State shall become vacated by the incumbent's ceasing to be a resident of the county for which he was elected. However, the vacancy exists only from the time the removal of the incumbent from the county is judicially ascertained. Thus, in answer to your first question, it seems clear that the Coroner of Montgomery County is required to live in that county and that upon ascertainment of his removal from the county by a court of competent jurisdiction, the office of Coroner becomes vacant.
You also inquire whether or not you, as Ordinary, may act as Coroner at inquests. The answer is clearly that you may not. Section 89-103, Georgia Code Annotated, provides that no person may hold more than one county office at the same time. However, Section 23-701 (5), Georgia Code Annotated, provides that the Ordinary in those counties in which he sits for general county purposes, must supply by appointment aU vacancies in county offices until those vacancies can be filled by the election of permanent officers. Thus, if you sit for general county purposes in Montgomery County, you are authorized to appoint a person to fill temporarily the office of Coroner after it is judicially ascertained that the office is presently vacant, your appointee to hold office until a Coroner can be elected for the remainder of the term.

COURTS-Ordinaries (Unofficial)

Records of the ordinary's office are public records.

February 14, 1961

Mrs. Lauretta Russell

This is to acknowledge receipt of your letter of recent date making inquiry as to the records in the Ordinary's office.

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It is my opinion that the records of the Ordinary's office are public records, and also that any citizen interested may go personally to the Ordinary's office and examine such records, and if he desires, make copies thereof. (See Ga. L. 1959, p. 88.) It is further my understanding that the Ordinaries of this State are authorized by law to give certified copies of any public record in their office.
You state that you are coming to Georgia in the near future and it is your intention to check certain public records. I am sure that you will have no trouble in this respect.
COURTS-Ordinaries (Unofficial)
Participation of the ordinary in insolvent funds arising from traffic violations discussed.
February 26, 1960
Honorable John W. Harrell, Sr.
Replying to your question as to the length of time funds shall be held in an insolvent-cost fund your attention is called to the provisions of Code Sections 27-2915, 27-2916, 27-2917, 27-2918, 27-2919, 27-2920 and 27-2921, and the other provisions of "Chapter 27" of the Annotated Code of Georgia relating to the limitations of actions of claims against a fine and forfeiture fund, and your particular attention is called to Code Section 27-2921 which relates to disposition of surplus funds of a fine and forfeiture fund. This section should be construed in connection with Code Sections 27-2915, 16 and 17 which are the statutes which relate to actions on claims against said funds.
Relative to your question as to the ordinary being authorized to participate in the insolvent-cost fund arising from traffic cases in the Court of Ordinary, your attention is called to the decision of Cooper, et al. v. Lunsford, Ordinary, 203 Ga. at page 169 in which the Supreme Court of Georgia held:
"Having construed the Act as contemplating the creation of an insolvent-cost fund in order to pay the sheriff costs in accordance with its provisions, and the Act by its terms making the ordinary an officer of the court and specifying the amount of costs he is to receive in each case, the General Assembly necessarily intended that the ordinary would participate in the insolvent-cost fund."

COURTS-Ordinaries (Unofficial)

Discussion of operation of recorder's courts.

February 19, 1960

Honorable B. T. Mauldin

This office is in receipt of your letter requesting answers to certain questions which have arisen in your work as Chief of Police of Springfield, Georgia. I am glad to render any assistance which I can.

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Your first question asks whether the Springfield Recorder's Court may try persons charged with driving under the influence of alcohol. In answering your question, let me first point out that as a general rule police courts, recorder's courts, and other inferior judicatories are constitutionally unable to try persons charged with violations of the criminal laws of the State. However, the situation with regard to the trial of persons charged with offenses against Section 68-1625, Georgia Code Annotated, which makes it unlawful for any person to drive while under the influence of intoxicants, is a limited exception to the general rule. The State Constitution, Section 2-4102, Georgia Code Annotated, provides that in all counties which do not have a county or city court, the police courts of the incorporated cities and judges of the municipal courts may try persons charged with offenses against the traffic laws of this State in any case in which the offense charged is a misdemeanor and the defendant is willing to waive a jury trial. Since Section 68-9925, Georgia Code Annotated, punishes the crime of driving under the influence of intoxicants as a misdemeanor, it is clear that if there is no county or city court in your county, the Recorder's Court of Springfield may try those persons charged with the commission of that offense who waive a jury trial. If there is a city or county court, all persons charged with the offense must be bound over to that court for trial. However, even if there is no city or county court, should the defendant refuse to waive his right to a jury trial, he must be bound over to the Superior Court for trial.
Your next question asks whether the Judge of a recorder's court may issue warrants. He may. Section 69-705, Georgia Code Annotated, provides that all police court recorders shall have power in all criminal cases as ex officio justices of the peace. Under Section 27-102, Georgia Code Annotated, this power includes the authority to issue warrants for the arrest of offenders against the penal laws of this State. Every warrant must be supported and accompanied by affidavit. The form in which the affidavit and warrant must be rendered will be found in Sections 27-103, 27-104, and 27-105, Georgia Code Annotated.
You further inquire as to where warrants which have already been served should be filed. Generally, after the commitment hearing, the warrant is filed with the clerk of the court which tries the accused person. Thus, warrants issued by the Judge of the Springfield Recorder's Court for the arrest of persons who are to be tried in his Court should be filed with the Clerk of the Recorder's Court. Warrants for the arrest of persons charged with offenses against the criminal laws of the State, with the possible exception of those charged with driving while intoxicated as explained above, should be filed, after commitment, with the Clerk of the Superior Court or other higher judicatory which is empowered to try such cases.
In response to your third question, let me advise you that the Springfield Recorder's Court is without jurisdiction to try larceny cases. As I have noted above, the jurisdiction of police and recorder's courts is limited to cases arising out of violations of municipal ordinances and does not extend to violations of the criminal statutes of the State, except that, under certain circumstances, it encompasses those cases involving offenses against the traffic laws of the State. Generally speaking, jurisdiction over violations of the criminal laws of the State is vested exclusively in the Superior Courts, except that misdemeanors may be tried in the city and county courts in those counties which have them. Larceny, of course, is a crime and, therefore, persons charged with that offense can be tried only in the Superior Court unless the larceny involved is a misdemeanor, in which case it may be tried by the county or city court.

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Your fourth question asks whether a person convicted of an offense in a Recorder's Court may appeal this judgment, and if so, under what conditions such an appeal may be taken. Section 19-203, Georgia Code Annotated, provides that when any party to a case before a police court or other inferior judicatory shall be dissatisfied with the judgment of that court, he may obtain a writ of certiorari by petition to the Superior Court. This writ may be granted, however, only where the judgment complained of is erroneous as a matter of law, and a petition seeking such writ must set forth the legal errors committed in the police court or other inferior tribunal and pray their correction by the Superior Court.
You next request information as to how your Recorder's Court shall handle cases involving persons accused of driving without a license and failure to display a license plate. These acts constitute offenses against the traffic laws of this State and thus, under the State Constitution, Section 2-4102, Georgia Code Annotated, may be tried by your Recorder's Court if there is no city or county court in your county and, further, if the persons accused of violating these laws waive a jury trial. If there is a city or county court in your county, persons accused of either of these offenses must be bound over to that court for trial; but, even if there is no such court in your county, should any person accused of these offenses refuse to waive a jury trial, your Recorder's Court would be without jurisdiction of the case and should bind over such person to the Superior Court for trial.
Lastly you ask whether you are responsible for the keeping of all records concerning the Peace Officers Fund and also whether you are responsible for all monies which are by law required to be collected and sent to that Fund. Under Section 78-909, Georgia Code Annotated, it is the duty of the person or authority charged with the collection of fines imposed for the violation of State statutes or municipal ordinances in any court in this State to pay over a specified portion of that fund to the Peace Officers Fund. Under the same Code Section it is likewise made the duty of the person or authority collecting and sending these monies to keep accurate records of the amounts due the Fund. Therefore, if you are charged with the duty of collecting fines from those persons convicted of offenses against municipal ordinances or State laws then you are required to send to the Peace Officers Fund the amounts due under the scale contained in Section 78-909, Georgia Code Annotated, on the date prescribed therein, and further, to keep accurate records of the amounts due the Fund.
COURTS-Sheriffs (Unofficial)
Arrest fees for sheriffs.
September 27, 1960
Honorable Eugene Horne
You request my unofficial opinion whether a Sheriff is entitled to only one fee for each arrest regardless of the number of offenses charged against the defendant.
In an unofficial opinion dated January 24, 1946, (Opinions of the Attorney General, 1945-47, page 92), I stated "a second or more arrests cannot be made

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on a person while he is in actual custody of the court, under the warrant originally executed." Therefore, it logically follows that the Sheriff is entitled to only one fee for each arrest regardless of the number of offenses against the defendant.
COURTS-Sheriffs (Unofficial) Fee to which sheriff entitled for assisting at an inquest. April 20, 1960
Honorable A. Newell NeSmith This is to acknowledge receipt of your letter in regard to Sheriff's fee or
pay for assisting in inquest. The second paragraph of your letter reads as follows: "The question propounded to me is as follows: The Sheriff is called upon to do numerous running around preparatory to the holding of an inquest. He is likewise charged with being at an inquest and serving jurors, etc." The third paragraph of your letter mentions the fees set up and provided for in Code Section 24-2823.
This seems to be the fee that the Sheriff is entitled to under the law. I have been unable to find any law providing for the paying of the Sheriff for other services save those mentioned in Code Section 24-2823.
You also state, "The only other possible solution that I find might be under Code Section 24-110 whereby the Sheriff might be paid under these circumstances."
Of course, if there is no law which authorizes the payment or fixes the fee for a Sheriff attending and assisting in the holding of an inquest, it seems to me he could be paid under Code Section 24-110.
COURTS-Sheriffs (Unofficial) Records of the Sheriff's Office are open to inspection by the public. September 2, 1960
Honorable D. T. Espy This will acknowledge receipt of your letter requesting information as to
access to the records in the Sheriff's Office of Chattooga County. Code Section 89-601 of the Code of Georgia, provides: "All books kept by any public officer under the laws of this State shall be subject to the inspection of all the citizens of this State, within office hours, every day except Sunday and holidays." Georgia Laws, 1959, page 88, approved February 27, 1959, provided for the
inspection of public records. Section 1 of that Act provides:

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"Section 1. 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 tho 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."
Code Section 91-708 relates to the inspection of public buildings and records by the Grand Jury and provides a procedure in the event the Grand Jury reports a failure to comply with the laws relating to the same.
Code Section 24-2810 provides:
"Sheriffs must keep their offices at the same places and on the same terms as Clerks of the Superior Court are required to do." From the above, it is apparent that public records are open for inspection.
COURTS-Solicitors (Unoffid~l)
Discussion of appointment of Solicitor General Emeritus.
August 24, 1960
Honorable W. Glenn Thomas
This will acknowledge receipt of your letter relative to your appointment as Solicitor General Emeritus.
Code Section 24-2903(a) provides:
"The Governor shall appoint to such position anyone eligible under the provisions of this Chapter, who shall advise the Governor in writing that he desires to resign from the office of Solicitor General and accept appointment as Solicitor General Emeritus. Upon such appointment being made by the Governor, and the commission issued by the Governor, the resignation shall automatically become effective."
From the above, it is apparent that you would be eligible to resign as Solicitor General and be appointed Solicitor General Emeritus at any time up to the expiration of your term of office. This, of course, assuming that you are otherwise eligible for appointment to the office.
Article VI, Section XI, Paragraph I of the Constitution (Georgia Code Annotated Section 2-4601), relates to the numbers of Solicitors General, their terms of offices, and vacancies.
Section 2 of 1909 Georgia Laws, page 94, which created the Waycross Judicial Circuit and divided the Brunswick Judicial Circuit, provided for a Judge and a Solicitor General for each of the Circuits. That Section in part provides:
" ... and the present Solicitor General of the Brunswick Circuit shall continue to serve both Circuits as Solicitor General until January 1, 1911, or until his successor is elected and qualified, the successors of said Judge and Solicitor General to be elected by the people at the next

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general State election to be held on the first Wednesday in October 1910, and be qualified on January 1, 1911, for the full term of four years, and succeeding Judges and Solicitors General of said Circuit to be elected regularly thereafter for succeeding terms of four years as required by the Constitution and laws of this State." It accordingly appears that you would continue to serve until January 1st following the general election, and the fact that the primary is tantamount to an election would make you continue to serve as Solicitor General until December 31st. It further appears that you could submit your resignation and be appointed at any date including December 31, 1960, as Solicitor General Emeritus, provided your appointment was made before you actually left office.
COURTS-Solicitors (Unofficial) Fee to which solicitor general entitled for acting as counsel for escheator. September 6, 1961
Honorable Andrew J. Ryan, Jr. I have your letter in which you request my unofficial opinion as to what fee,
if any, is allowable when a solicitor general acts as counsel for the escheator. I direct your attention to Georgia Code Section 24-2904 which states in part: "... Service's in cases not mentioned, where the State is interested party, at discretion of Governor, not exceeding ... 50.00." We point out that this provision is applicable only to solicitors general who
are paid on a fee basis. When a solicitor general is paid on a salary basis, such salary would include compensation for the performance of all his duties required by law. However, since there are no cases that have been decided on this point, we suggest that you might consider having the court fix a fee subject to approval by the Governor.
COURTS-Superior Courts Appointees to the offices of Judge of Superior Court, Judge of Superior
Court Emeritus, Solicitor General, and Solicitor General Emeritus do not have to be submitted to the Senate for confirmation.
January 4, 1960 Honorable S. Ernest Vandiver Governor, State of Georgia
I am pleased to acknowledge your request whether the names of individuals appointed by you to the office of Judge of Superior Court, Judge of Superior Court Emeritus, Solicitor General and Solicitor General Emeritus should be submitted to the Senate for confirmation.

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Art. V, Sec. I, Par. XIII of the Georgia Constitution of 1945 provides that "When any office shall become vacant, by death, resignation, or otherwise, the Governor shall have power to fill such vacancy, unless otherwise provided by law; and persons so appointed shall continue in office until a successor is commissioned, agreeably to the mode pointed out by this Constitution, or by law in pursuance thereof." Code Setcion 40-301 provides that "The Governor shall appoint all officers and fill all vacancies unless otherwise prescribed by the Constitution and laws. . . ."
While the law formerly provided that all appointments made by the Governor should be made subject to confirmation by the State Senate, this provision was repealed by Ga. Laws 1941, p. 289. This latter Act now provides that "No appointment by the Governor shall be subject to confirmation by the Senate unless the statute under which such appointment is made requires confirmation or confirmation is otherwise required by law."
There are two general statutes which require that appointees of the Governor are made subject to the confirmation of the State Senate. One is limited to appointments to boards, commissions and bureaus. Ga. Laws 1943, p. 208. The other is with respect to a vacancy in an office the full term of which, by the Constitution, is to be filled by the Governor with the advice and consent of the Senate. Code Section 40-302. This statute applies to an appointive, rather than an elective office. Britton v. Bowden, 188 Ga. 806.
The offices of Judge of the Superior Court and Solicitor General of the Superior Court are elective offices under the Constitution and laws of this State. Art. VI, Sec. III and Sec. XI of the Georgia Constitution of 1945; Code Sections 24-2602 and 24-2902.
Ga. Laws 1945, p. 362, as amended, provides that Judges of the Superior Court Emeritus shall be appointed by the Governor. Likewise, Ga. Laws 1949, p. 780, as amended, provides that Solicitors General Emeritus shall be appointed by the Governor. Neither of these Acts specifically require that these appointments are subject to confirmation by the State Senate.
On the basis of the above authority it is my opinion that individuals who are appointed by the Governor to the office of Judge of the Superior Court, Judge of the Superior Court Emeritus, Solicitor General and Solicitor General Emeritus do not have to be submitted to the State Senate for confirmation.
CRIMINAL LAW-Arrests
Law enforcement officials must accept a guaranteed arrest bond certificate when offered in compliance with 27-513 of the Code of Georgia.
May 18, 1960
Honorable S. Ernest Vandiver Governor
You request my opinion as to whether law enforcement officials must accept the guaranteed arrest bond certificates referred to in Section 27-513 of the 1933

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Code of Georgia, as amended, when offered in compliance with said Code Section in lieu of cash bail or other bond.
Section 27-513 of the 1933 Code of Georgia, as amended, provides as follows:
"27-513. Guaranteed arrest bond certificates to be accepted in lieu of cash; not to exceed $200; exceptions.-Any guaranteed bond certificate to which an insurance, fidelity insurance or surety company has become surety, as herein provided, shall when posted by the person whose signature appears thereon, be accepted in lieu of cash bail or other bond in an amount not to exceed $200, as a bail bond, to guarantee the appearance of such person in any court in this State, including all municipal courts in this State, at such time as may be required by the court, when the person is arrested for. violation of any motor vehicle law of this State or any motor vehicle ordinance of any municipality in this State, except for the offense of driving under the influence of intoxicating liquors or drugs, or for any felony. Any such guaranteed arrest bond certificates so posted as bail bond in any court in this State shall be subject to the forfeiture and enforcement provisions with respect to bail bonds in criminal cases as provided by law or as may hereafter be provided by law. Any such guaranteed arrest bond certificate posted as a bail bond in any municipal court of this State shall be subject to the forfeiture and enforcement provisions of the charter or ordinance of the particular municipality pertaining to bail bonds. (Acts 1956, pp. 338, 339.)"
It is clear that the preceding Code Section makes a guaranteed arrest bond certificate acceptable in lieu of cash bail or other bond for violation of any motor vehicle law of this State or any motor vehicle ordinance of any municipality in this State except for the offense of driving under the influence of liquors or drugs or for any felony so long as it does not exceed the amount of two ($200.00) dollars.
It logically follows that since the statute makes a guaranteed arrest certificate the equivalent of cash bail or other bond that it should be treated in the same manner. Therefore, your question is answered in the affirmative.

CRIMINAL LAW--.Crimes (Unofficial)

Bigamy defined and its punishment set out.

June 6, 1961

Mr. Wm. Earl Turner

This is to acknowledge receipt of your letter in which you inquire as to the punishment for bigamy.

Section 26-5601 of the Code of Georgia, reads as follows:

"26-5601. Definition.-Polygamy or bigamy consists of knowingly having a plurality of husbands or wives at the same time."

Code Section 26-5602 reads as follows:
"26-5602. Punishment, if before married.-Any person being married who shall marry another person, the lawful husband or wife being

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alive, and knowing that such lawful husband or wife is living, shall be punished by confinement at labor in the penitentiary for not less than two years nor more than 10 years, and the second marriage shall be void."
Section 26-5603 reads:
"26-5603. Exceptions: five years' absence.-Five years' absence of the husband or wife, and there being no information of the fate of such husband or wife, shall be sufficient cause of acquittal of the person indicted under the preceding section; and the issue of such second marriage, born before the commencement of any prosecution for polygamy or within the ordinary time of gestation thereafter, shall, notwithstanding the invalidity of such marriage, be considered as legitimate."
Code Section 26-5604 reads:
"26-5604. Punishment, if before unmarried.-Any unmarried man or woman who shall knowingly marry the wife or husband of another, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than three years."
CRIMINAL LAW-Crimes (Unofficial)
Blue laws cited.
March 6, 1961
Miss Betty Skalla
This is to acknowledge receipt of your letter, the last paragraph of which reads: "I would appreciate any information you might have on the 'blue' laws of your state."
Code Section 26-6905 of the Code of Georgia reads as follows:
"26-6905. Violating the Sabbath day.-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. (Cobb, 853, Acts 1865-6, p. 233.)"
Punishment for a misdemeanor is fixed by Code Section 27-2506 as follows:
"27-2506. Misdemeanors, how punished.-Except where otherwise provided, every crime declared to be a misdemeanor shall be punished by a fine not to exceed $1,000, confinement in the county or other jail not to exceed six months, to work on the public works in such public works camp or other appropriate institution under the jurisdiction of the State Board of Corrections not to exceed 12 months, any one or more of these punishments in the discretion of the trial judge. (Acts 1865-6, p. 233; 1878-9, p. 54; 1895, p. 64; 1908, p. 1119; 1956, pp. 161, 168; 1957, pp. 477, 482.)"
This would be the punishment for anyone convicted of violating Code Section 26-6905, as abo'Ve quoted, there being no lesser punishment provided than that above stated in Code Section 27-2506.

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CRIMINAL LAW-Crimes (Unofficial)
Bribes in sporting events discussed.
May 12, 1961
Mr. Bernie Moore
This is to acknowledge receipt of your letter enclosing a copy of the Alabama law in regard to bribing, or attempting to bribe, officials and so on in sporting events. You say that you are interested to learn if there is such a law in the other states.
Georgia has a similar law to that set out in your letter, which is in force in the state of Alabama. The Georgia law upon the subject is set out in the following sections of the Code of Georgia.
Code Section 26-6411 of the Code reads as follows: "26-6411. Bribes to win or lose athletic contests; giving or promis-
ing, felony.-It shall be unlawful for any person to give, offer or promise any reward, money or thing of value to anyone who participates in or expects to participate in any sport, game or athletic contest or to any coach, trainer, manager or official in such sport, game or athletic contest with intent to influence such person to lose, try to lose or cause to be lost or to limit his or his team's margin of victory in such sport, game or athletic contest. Any person convicted of violating this section shall be deemed guilty of a felony, and upon conviction, shall be punishable by imprisonment in the penitentiary for not less than five nor more than 20 years. (Acts 1947, pp. 1139, 1140; 1952, p. 303.)"
Code Section 26-6412 reads as follows:
"26-6412. Same; soliciting or accepting, felony.-Anyone who participates or expects to participate or any coach, trainer, manager or official in any game, sport or athletic contest who solicits or accepts any reward, money or thing of value with intent to influence him to lose, try to lose or cause to be lost or to limit his or his team's margin of victory in such sport, game or athletic contest shall be deemed guilty of a felony, and upon conviction, shall be punishable for not less than five nor more than 20 years. (Acts 1947, pp. 1139, 1140; 1952, p. 303.)"
CRIMINAL LAW-Crimes (Unofficial)
Burglary and its punishment discussed.
December 29, 1960
Miss Judy Stone
This is in response to a letter from you addressed to the House of Representatives, State Capitol, Atlanta, Georgia, which has been referred to this office for reply. Your letter reads as follows: "In the January, 1960, issue of Coronet Magazine I read an article on capital punishment and it stated that in your state bur-

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glary at night is (or can be) punishable by death. Burglary during the day earns the burglar a jail sentence. Can you please tell me the cause of such severity for a night offense while you are so lenient with a day-time offender?"
Section 26-2401 of the Annotated Code of Georgia defines Burglary and reads as follows:
"26-2401. Definition; outhouses and hired rooms as part of dwelling.-Burglary is the breaking and entering into the dwelling, mansion, or storehouse, or other place of business of another, where valuable goods, wares, produce, or any other article of value are contained or stored, with intent to commit a felony or larceny. All outhouses contiguous to or within the curtilage or protection of the mansion or dwelling housg shall be considered as parts of the same. A hired room or apartment in a public tavern, inn, or boarding house shall be considered as the dwelling house of the person occupying or hiring the same. (Cobb, 790. Acts 1866, pp. 141, 152.)
Section 26-2402 of the same Code fixes the punishment for Burglary, and reads as follows:
"26-2402. Punishment. Burglary shall be punished by imprisonment in the penitentiary for not less than one year nor more than 20 years. (Cobb 790, Acts 1878-9, p. 65.)"
The case of Ashton v. The State of Georgia, 68 Ga., p. 25, headnote 2, reads as follows:
"The Act of 1879, p. 65, did not alter the law of Burglary otherwise than to put Burglary, whether committed in the day-time or night on the same plane in respect to punishment."
Section 27-2501 of the same Code above referred to provides that Burglary may be reduced to a misdemeanor upon the recommendation of the jury trying the case when such recommendation is approved by the judge presiding on the trial. If upon the trial of the case the jury recommends misdemeanor punishment and the judge approves such recommendation, he may then sentence the defendant as for a misdemeanor, and a misdemeanor is punished by a period of 12 months on the public works, 6 months in the common county jail, and a $1,000 fine. This, of course, is the extreme penalty for a misdemeanor. The judge may in his discretion give a lighter sentence and a smaller fine, the amount of punishment being in the discretion of the trial judge.
CRIMINAL LAW-Crimes (Unofficial)
Fraudulent use of credit cards discussed.
December 14, 1960
Mr. Joe H. Allison
We have your letter requesting information concerning Georgia law regulating fraudulent use of credit cards.

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From your letter, it is believed that you have reference to a law enacted by our General Assembly and approved March 17, 1960 (Georgia Laws 1960, pages 1113-1115), pertinent parts of which follow:
"Section 1. The term 'credit card' as used herein means an identification card, credit number, credit device, or other credit document issued to a person, firm or corporation by a business organization which permits such person, firm or corporation to purchase or obtain goods, property or service on the credit of such organization.
"Section 2. Any person who knowingly uses for the purpose of obtaining credit, or for the purchase of goods, property or services, (1) a credit card which has not been issued to such person and which is not used with the consent of the person to whom issued or (2) a credit card which has been revoked or cancelled by the issuer of such card and notice thereof has been given to such person, or (3) a credit card which has expired or (4) a credit card which is false, fictitious or counterfeit is guilty of a misdemeanor and punishable by a fine of not more than one hundred dollars ($100.00) or imprisonment for not more than thirty (30) days if the amount of the credit or purchase obtained by such use does not exceed fifty dollars ($50.00) or by both such fine or imprisonment, or by a fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00) or imprisonment for not more than one (1) year if the aggregate amount of the credit or purchase obtained by such use exceeds fifty dollars ($50.00), or by both such fine and imprisonment.
"Section 3. The presentation of an expired or revoked credit card for the purpose of obtaining credit ... shall be prima facie evidence of knowledge that the credit card had expired or had been revoked, if the purchaser shall not have paid to the issuer of the credit card the total amount of the credit purchase within ten (10) days after notice that such credit card had expired or had been revoked at the time the purchase was made, which notice shall also state the amount due on such purchase."
CRIMINAL LAW-Crimes (Unofficial)
Disturbance of a worship service discussed.
September 30, 1960
Mr. Jesse G. Moore
You state that several days ago in a newspaper article you saw something about a law which makes it unlawful to disturb a public gathering such as a Church Worship Service; and you ask if this is a Georgia law and if so, the citation and quotation of the statute, and the penalty for violation of such law.
From your letter it is possible that Section 26-6901 of the Georgia Code is the statute referred to, which we quote:
"26-6901. Interfering with religious worship. - Any person who shall, by cursing or using profane or obscene language, or by being

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intoxicated, or otherwise indecently acting, interrupt, or in any manner disturb, a congregation of persons lawfully assembled for divine service, and until they are dispersed from such place of worship, shall be guilty of a misdemeanor."
Also, Section 26-6913 of the Georgia Code provides in part:
"Any person who shall wilfully interrupt or disturb any ... Sunday school, or any assemblage or meeting of any such school, lawfully and peacefully held for the purpose of . . . religious improvement, either within or without the place where such school is usually held, shall be guilty of a misdemeanor."
Section 27-2506 prescribes how misdemeanors are punished, as follows:
"... misdemeanor shall be punished by a fine not to exceed $1,000, confinement in the county or other jail not to exceed six months, to work on the public works in such public works camp or other appropriate institution under the jurisdiction of the State Board of Corrections not to exceed 12 months, any one or more of these punishments in the discretion of the trial judge."
CRIMINAL LAW-Crimes (Unofficial)
Laws pertaining to driving under the influence discussed.
February 25, 1960
Mr. E. M. Staup, Jr.
This will acknowledge receipt of your letter in which you ask for the State law that prohibits driving while under the influence of intoxicants.
Section 68-1625 of Georgia Code Annotated, as amended, provides as follows:
"68-1625. Persons under the influence of intoxicating liquor or of drugs prohibited from driving.-(a) It is unlawful and punishable as provided in section 68-9927 for any person who is under the influence of intoxicating liquor to operate or drive any vehicle.
"(b) In any criminal prosecution for a violation of subdivision (a) of this section relating to operating or driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood, urine, breath, or other bodily substance shall give rise to the following rebuttable presumptions: Provided, however, that the failure of such arrested person to demand such a test or to consent to such a test shall not be admitted in evidence in the trial of such person:
"1. If there was at that time 0.05 per cent. or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
"2. If there was at that time in excess of 0.05 per cent. but less than 0.15 per cent. by weight of alcohol in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not

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under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;
"3. If there was at that time 0.15 per cent. or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor;
"4, Any person who is arrested for driving or operating a vehicle while under the influence of intoxicating liquor shall have the right to demand a blood test to determine the amount or weight of alcohol in his blood, and it is mandatory upon the officials in whose custody he shall have been placed after arrest to have such a blood test made immediately after demand by the arrested person, provided the facilities for making such a test are available in the county of his confinement. The Director of Public Safety shall designate one or more physicians or certified hospital technicians for each county to perform such tests upon the request of any person so arrested. The costs of such test shall be borne by the person so arrested and shall be only the actual costs but in no event more than $10.
"5. The foregoing provisions of this subdivision shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor.
"6. Nothing in this section shall be construed as requiring any person to take such examination against his wishes.
" (c) It is unlawful and punishable as provided in section 68-9927 for any person who is a habitual user of, or under the influence of, any narcotic drug, or who is under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle, to drive a vehicle within this State. The fact that any person charged with a violation of this subsection is or has been entitled to use such drug under the laws of this State shall not constitute a defense against any charge of violating this subsection: Provided however, it shall be the duty of the arresting officer, if it shall become necessary to incarcerate a person suspected of violating the provisions of this subsection, to summon as soon as possible a qualified physician or doctor to examine the party so apprehended. The expense of such examination shall be borne by the court having jurisdiction of said alleged offense. (Acts 1952, Nov. Sess. pp. 556, 575.)"
Proof required to convict under this law would be the same as in any other criminal case except for the presumptions as set out in the preceding Code Section.

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CRIMINAL LAW-Crimes (Unofficial)
Carrying a firearm in an automobile may be legal.
September 14, 1960
Mr. E. L. Barrett
Your letter reads as follows:
"I would appreciate it very much if you would fully explain to me the state law pertaining to the carrying of pistols and revolvers in an automobile. Is it against the law, or isn't it?"
In reply to your letter I call your attention to Section 26-5101, Code of Georgia, Annotated, which reads as follows:
"26-5101. (347 P.C.) Carrying concealed weapons.-Any person having or carrying about his person, unless in an open manner and fully exposed to view, any kind of metal knucks, pistol, dirk, sword in a cane, spear, bowie knife, or any other kind of knives manufactured and sold for the purpose of offense and defense, shall be guilty of a misdemeanor. (Cobb, 848-849. Acts 1882-3, p. 48; 1898, p. 60.)"
Code Section 26-5103 makes it unlawful for any person to have or carry about his person, or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the Ordinary of the county in which the party resides. Of course, this section would not authorize a person even though licensed to carry a pistol concealed.
Also, I call your attention to the case of Hayes v. The State, 28 Ga. App. 67, which holds as follows:
"Broyles, C. J. It was not a violation of the act of 1910, penalizing the carrying of a pistol on or about one's person, or having a pistol in his manual possession outside of his own home or place of business, (Park's Ann. Code, Vol. 6, 348 (a)), for the owner of a pistol, while driving a horse and buggy, to have the pistol under the seat of the buggy where it was not in contact with his hands or any other portion of his person. Under this ruling the defendant's conviction was unauthorized by the evidence, and the court erred in overruling the motion for a new trial. Judgment reversed. Luke and Bloodworth, J. J., concur. Decided January 17, 1922."
CRIMINAL LAW-Crimes (Unofficial)
Laws relating to possession and carrying of firearms discussed.
September 27, 1960
John M. Linsenmeyer, Sgt.
You asked:
"As many of the members of this Association are interested in hand guns, I wonder if you would be so kind as to send me a copy of the Geor-

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gia State law concerning the possession and carrying of pistols and revolvers. I would also be interested in knowing if there are any special provisions in the law affecting members of the armed services, or affecting carrying such weapons for purposes of target practice."
In reply to your letter, I call your attention to the following Code sections:
"26-5101. Carrying concealed weapons.-Any person having or carrying about his person, unless in an open manner and fully exposed to view, any kind of metal knucks, pistol, dirk, sword in a cane, spear, bowie knife, or any other kind of knives manufactured and sold for the purpose of offense and defense, shall be guilty of a misdemeanor. (Cobb 848, 849. Acts 1882-3, p. 48; 1898, p. 60.)"
"26-5102. Carrying of deadly weapons at courts, etc.-Whoever shall carry about his person any dirk, bowie knife, pistol or revolver, or any kind of deadly weapon, to or while at a court of justice or an election ground or precinct, or any place of public worship, or any other public gathering, except militia muster grounds, shall be punished as for a misdemeanor. This section shall not apply to a sheriff, deputy sheriff, coroner, constable, marshal, policemen, or other arresting officer, or posse, acting in the discharge of their official duties. (Acts 1870, p. 421; 1878-9, p. 64; 1909, p. 90.)"
"26-5103. Carrying pistols without license.-It shall be unlawful for any person to have or carry about his person or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the ordinary of the county in which the party resides: Provided, that nothing in this law shall be construed to alter, affect, or amend any laws now in force relative to carrying of concealed weapons on or about one's person: and Provided further, that this law shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or the United States, who are now allowed, by law, to carry revolvers; nor to any of the militia while in service or upon duty; nor to any students of military colleges or schools when they are in the discharge of their duty at such colleges. (Acts 1910, p. 134.)"
"26-5104. License, how obtained. Record of licensees.-The ordinary of the county in which the applicant resides may grant such license, either in term time or during vacation: Provided, that the applicant shall be at least 18 years old, and shall give a bond payable to the Governor in the sum of $100, conditioned upon the proper and legitimate use of said weapon, with a surety approved by the ordinary of said county, and the ordinary granting the license shall keep a record of the name of the person taking out such license, the name of the maker of the firearm to be carried, and the caliber and number of the same. (Acts 1910, pp. 134, 135.)"

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CRIMINAL LAW-Crimes (Unofficial)

Law pertaining to fireworks cited. Honorable John E. Seba"

September 28, 1960

Your letter reads as follows:

"Would you kindly advise us if since June, 1954, Georgia has passed any legislation pertaining to or in connection with the display of fireworks. If so, we would appreciate your advising us of same."
A law was passed in 1955 pertaining to fireworks, Georgia Laws, 1955, p. 550, (codified in Section 92A-801 of Georgia Code Annotated,) which is here set out:
"92A-801. Definition of term "fireworks".-The term "fireworks" shall mean and include any combustible or explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation, and shall include blank cartridges, toy pistols, toy cannons, toy canes, or toy guns in which explosives are used, the type of balloons which require fire underneath to propel the same, firecrackers, torpedoes, skyrockets, Roman candles, Daygo bombs, sparklers, or other fireworks of like construction and any fireworks containing any explosive or flammable compound, or any tablets or other device containing any explosive substance, except that the term "fireworks" shall not include toy pistol paper caps in which the explosive content does not average more than .25 of a grain per cap and toy pistols, toy cannons, toy canes, toy guns or other devices using such paper caps. (Acts 1955, pp. 550, 551.)"
"92A-802. Sale prohibited; permit for public displays; promulgation of rules and regulations by Fire MarshaL-It shall be unlawful for any person, firm, partnership or corporation to offer for sale, expose for sale, sell, use, ignite, or explode any fireworks except as hereinafter provided. The State Fire Marshal is hereby authorized to adopt reasonable rules and regulations for the granting of permits for supervised public displays of fireworks for counties, municipalities, fair associations, amusement parks, and other organizations or groups of individuals. Every such display shall be supervised by a qualified operator who shall be approved by the State Fire Marshal. Application for permits shall be made in writing to the State Fire Marshal at least 20 days in advance of the date of the display. No permit shall be granted by the State Fire Marshal without the concurrent approval of the governing authority of the municipality involved, in the event the display is to be presented within the corporate limits of a municipality, or of the governing authority of the county involved, in the event the display is to be presented in an unincorporated area of a county. The application for a permit shall state the type display which is planned to be presented, the date of such display, the time involved, the location, and such other information as may be required by the State Fire Marshal. If a permit is granted, the sale, possession, use and distribution of fireworks for such display shall be

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lawful for that purpose only. No permit granted hereunder shall be transferable. (Acts 1955, pp. 550, 551.)"
"92A-803. Permits; bond required.-The State Fire Marshal shall require a sufficient bond from the person to whom a permit is granted, in a sum not less than $1,000, conditioned for the payment of damages which may be caused either to persons or property by reason of the display. (Acts 1955, pp. 550, 552.)"
"92A-804. Wholesalers, dealers, jobbers; sale out of State; sale in State for railroad, agricultural, ceremonial, etc., purposes.-Nothing in this Chapter shall be construed to prohibit any resident wholesaler, dealer, or jobber from selling such fireworks as are not herein prohibited; or the sale of any kind of fireworks if the same are to be shipped directly out of the State; or the use of fireworks by railroads or other transportation agencies for signal purposes or illumination; or the use of blank cartridges for a show or theater, or for signal or ceremonial purposes in athletics or sports, or for use by military or police organizations. (Acts 1955, pp. 550, 552.)"
"92A-805. Seizure of fireworks or combustibles offered for sale in violation of Chapter.-The State Fire Marshal shall seize, take, remove, or cause to be removed at the expense of the owner, the fireworks or combustibles offered for sale, exposed for sale, stored or held in violation of this Chapter. (Acts 1955, pp. 550, 552.)"
"92A-806. Application of Chapter; high explosives not covered.The provisions of this Chapter shall not apply to the high explosives covered under the provisions of Chapter 88-8 of the Code of Georgia of 1933, as amended, nor to those over which the Georgia Safety Fire Commissioner has regulatory control by virtue of the provisions of section 92A-716. (Acts 1955, pp. 550, 552.)"
"Editorial Note: There are certain local laws of general application providing for licensing of fireworks sales by counties. These Acts have not been specifically repealed, but are probably repealed by implication, insofar as they are inconsistent with this Chapter. Among these Acts are: Acts 1946, p. 139, as amended by Acts 1951, p. 61, and Acts 1951, p. 83."
CRIMINAL LAW-Crimes (Unofficial)
The State does not attempt to exercise jurisdiction over transportation of gambling devices in interstate commerce.
May 11, 1960
Mr. B. H. Smith
Your letter poses the question whether the laws of Georgia govern interstate transportation of gambling devices into the State, out of the State, or through the State.

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Section 26-6502 of the Georgia Code makes the carrying on of any lottery or other scheme or device for the hazarding of money unlawful. Section 26-6507 prohibits the use of vehicles and conveyances for the transportation of gambling devices and declares vehicles and conveyances so used to be contraband. Section 26-6508 of the Georgia Code requires that all vehicles and conveyances used to transport gambling devices of any kind shall be seized and condemned. Thus, it is clearly illegal for any person to maintain gambling devices in this State, and it is likewise illegal under the laws of this State to transport gambling devices within this State in intrastate commerce. However, this State does not attempt to exercise jurisdiction over the transportation of gambling devices in interstate commerce.
CRIMINAL LAW-Crimes (Unofficial)
Devices known as pin-ball machines may be lottery or gambling devices.
July 19, 1960
Sheriff K. C. Sanders
This is in reply to your recent communication with reference to the ownership and operation of pin-ball machines in the State of Georgia.
Code Section 26-6502 with reference to carrying on a lottery is as follows:
"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."
Under Georgia law, all lottery and gambling devices are contraband and as such may be seized by any sheriff or other arresting officer in the state. In the case of Elde.r v. Camp., 193 Ga. 320, the Supreme Court held:
"The mere keeping of a device for the hazarding of money being prohibited by law, and a device so kept being contraband, it is unnecessary, in showing the illegality of the device, to allege and prove a further violation of law by its actual operation."
The Court of Appeals in the case of Childs v. the State, 70 Ga. App. 99, held that it was not unlawful to own or operate a machine in which the player in the operation of the machine, got no prize, money, or thing of value, where there was no return of value of any kind or character to the person who has inserted a nickel in the machine, all the player got was the pleasure of operating the machine to ascertain what grand total score he could make by playing the balls.
On the other hand, the Supreme Court in the case of Jenne'r v. The State, 173 Ga. 86, stated:
"The owner and operator of a machine so arranged and contrived that when a person inserted therein a five-cent coin and pulled a lever, a package of candy mints worth five cents was ejected, and 'sometimes, but not always, small metal tokens, varying from 1 to 20 tokens, were also ejected with the mints,' which could be used by inserting them back into

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the machine and thereby securing for the person playing it 'a horoscopic message or pretended fortune,' which was displayed in printing inside the machine, was guilty of a violation of section 398 of the Penal Code of 1910, which provides that 'No person, by himself or another, shall keep, maintain, employ, or carry on any lottery in this State, or other scheme or device for the hazarding of any money or valuable thing,' although the metal tokens referred to were plainly marked 'For amusement only,' and had no redemption value in money or merchandise."
The effect of this decision is to hold that a machine which pays off in free games is a gambling device, free games for amusement being determined something of value. Of course, any machine which would on occasion pay to the player money or other prizes of value would be a gambling device and the owner or operator of such a machine would be subject to punishment for violation of the lottery laws of this State.
CRIMINAL LAW-Crimes (Unofficial)
Discussion of law pertaining to handguns and their possession.
September 12, 1960
Honorable K. C. Alvarez
Your letter reads as follows:
"A citizen of the City of Ocala, who is planning a trip into North Carolina, has asked me to inquire of you as to the provisions of Georgia law as relate to the carrying of weapons in an automobile within your State.
"It is proposed that this elderly citizen, traveling alone, will carry a revolver in the glove compartment of her car for the purpose of personal protection. She does not, hwoever, wish to violate any laws in your State, and has asked that we assist her in this regard.
"We shall appreciate your attention to this matter so that we may comply with this request."
Section 26-5101, Code of Georgia, reads as follows:
"26-5101. (347 P.C.) Carrying concealed weapons.-Any person having or carrying about his person, unless in an open manner and fully exposed to view, any kind of metal knucks, pistol, dirk, sword in a cane, spear, bowie knife, or any other kind of knives manufactured and sold for the purpose of offense and defense, shall be guilty of a misdemeanor. (Cobb, 848, 849. Acts 1882-3, p. 48; 1898, p. 60.)"
Code Section 26-5103 makes it unlawful for any person to have or carry about his person, or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the Ordinary of the County in which the party resides. Of course, this section would not authorize a person even though licensed to carry a pistol concealed.

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In the case of Hayes v. The State, 28 Ga. page 67, headnote held as follows: held as follows:
"Broyles, C. J., It was not a violation of the act of 1910, penalizing the carrying of a pistol on or about one's person, or having a pistol in his manual possession outside of his own home or place of business, (Park's Ann. Code, Vol. 6, 348 (a)), for the owner of a pistol, while driving a horse and buggy, to have the pistol under the seat of the buggy where it was not in contact with his hands or any other portion of his person. Under this ruling the defendant's conviction was unauthorized by the evidence, and the court erred in overruling the motion for a new trial. (Judgment reversed. Luke and Bloodworth, J. J., concur. Decided January 17, 1922."
Upon receiving your letter I discussed this matter with one of the Solicitors of the Criminal Court of Fulton County and he stated to me that they did not draw acquisitions where the pistol was found in the pocket of the car.
CRIMINAL LAW-Crimes.
An Act seeking to prohibit the making of threats or the use of indecent language over a telephone is not unconstitutional because vague or indefinite.
March 15, 1960
Honorable S. Ernest Vandiver Governor
I am pleased to acknowledge your request seeking an official opinion on the question of the constitutionality of House Bill #690, enacted at the 1960 Session of the General Assembly of Georgia. Section 1 of said Act provides as follows:
"No person shall, while communicating with any other person over a telephone, threaten to do bodily harm or use or address to such other person any words or language of a lewd, lascivious, or indecent character, nature or connotation. No person shall telephone any other person repeatedly for the sole purpose of harassing or molesting such other person or his family. Any use, communication, or act prohibited by this Section may be deemed to have occurred or to have been committed at either the place at which the telephone call was made or received. Any person violating these provisions shall be guilty of and punishable as for a misdemeanor."
Six other states have passed similar laws. The first being Louisiana in 1954, followed by Delaware, Mississippi, Tennessee, Indiana (1957) and Ohio (1959). The Indiana law is now in litigation before the Supreme Court of Indiana.
The first sentence of Section 1 of House Bill #690 is similar to the language found in Georgia Code 26-6301 and 26-6901 with regard to using abusive or obscene language and Code Section 26-1401 with regard to an assault or threat thereof. However, Code 26-6303 only prohibits the use of such language in the presence of a female. McClung v. State, 62 Ga. App. 892, held this included the

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use of such language over the telephone. As to threats of assaults, see Rutherford v. State, 5 Ga. App. 482.
Certain doubts have been expressed as to the constitutionality of the second sentence on the basis that it is vague and indefinite. Particular reference is made to the case of Mayes v. State, 11 Ga. App. 371, which held:
"A penal law which is of doubtful construction and is which the act denominated as a crime is described in terms so general and indefinite as to make the question of criminality dependent upon the idiosyncrasies of the men who may happen to constitute the court and jury, and is of such a nature that honest and intelligent men are unable to ascertain what particular act it seeks to condemn, is incapable of enforcement, and will be held to be null and void...."
The Supreme Court has held in Cantrell v. Davis, 176 Ga. 747, that "a statute can not be declared unconstitutional because it is vague, meager, or indefinite. Such defects may be urged as a ground of demurrer, on the theory that the allegations of the indictment are insufficient to constitute a crime." It is a cardinal rule in Georgia that a penal statute must be so worded that men of common intelligence are not forced to guess at its meaning, nor should it be so worded that everything is left to the court and jury. Manley v. State, 166 Ga. 563. If the vagueness is due to a technical term that would be understood by those within its reach it will be upheld. Farrar v. State, 187 Ga. 401. If the vagueness is due to a term that has a well defined common law meaning, it will be upheld. Fowler v. State, 189 Ga. 733.
The Mayes case struck down a statute prohibiting the driving of a car "at a rate of speed greater than is reasonable and proper." However, the Mayes case has been criticized in later decisions. Ray v. State, 47 Ga. App. 22, held that the requirement that the driver shall "turn his vehicle to the right, as far as reasonably possible" was not invalid because of vagueness. See also Gaines v. State, 80 Ga. App. 512; Lester v. State, 51 Ga. App. 146. As to the argument that different juries might make different findings under the same set of facts, the Gaines case stated: "... if the fact that a jury might decide a case one way and another jury another way upon the same set of facts rendered laws void for uncertainty, then we would have to disregard not only many rules of civil law, but also many criminal laws."
The elements of the crime enumerated in the second sentence are that a person telephone another repeatedly for the sole purpose of harassing or molesting. Webster's New International Dictionary, 2nd Edition, defines "repeated" as "that is repeated; said, done, performed, etc., again or frequently." The word "repeated" is used in equity cases to authorize the issuance of an injunction in a trespass case. Martin v. Pattillo, 126 Ga. 436.
The word "harass" is defined in Webster's New International Dictionary, 2nd Edition, as "to fatigue; to exhaust; to tire with repeated and exhausting efforts; to weary by importunity; to cause to endure excessive burdens or anxieties." "Molest" is "to interfere with or meddle with unwarrantably so as to injure or disturb," with synonym of "bother, incommode, pester, tease."
It would appear therefore, that the words "repeated, harassing and molesting" would be understood by those within reach of the law. This sentence could not be applied to a situation in which a person was telephoning for the purpose of

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collecting a debt, urging a political point of view or any other valid legal purpose. It applies only where used for the "sole purpose of harassing or molesting." It is elementary in our law that a party can not raise a constitutional question in a case by placing a factitious or incorrect interpretation upon a law and basing the alleged unconstitutionality on the effect of such an inte,rpretation. Kent v. State, 18 Ga. App. 30; Tooke v:. State, 4 Ga. App. 495.
The second sentence of Section 1 of the Act presents a problem to Solicitors General in the drafting of an indictment for the reason that it would have to be very specific as to the "sole purpose" of the telephone call. However, it is my opinion that this sentence is not unconstitutional on its face.

CRIMINAL LAW-Crimes (Unofficial)

Laws p,rohibiting trading stamps recited.

Honorable Tom Whitaker, Jr.

September 6, 1960

You asked:
"Will you please advise me the requirements in the State of Georgia for the qualification of a company to engage in the business of handling and selling merchandising or trading stamps, as well as the requirements of the Georgia law in regard to the redemption of such stamps. In other words, what I desire to know is whether or not there is a requirement of law that any bonds be posted guaranteeing the redemption of such stamps, and if so, the amount of such bond and with whom same shall be posted, as well as any taxes or other regulations regarding the distribution, sale and handling, and redemption of trading or merchandising stamps."

I have been unable to find any statutes dealing with the question about which you make inquiry, except Code Section 26-6506, Code of Georgia, 1933, which reads as follows:

"26-6506 (404 P.C.) Trading stamps, issuance, etc.-It shall be a misdemeanor for any person, firm, or corporation to issue or give away, in connection with the sale of any article of goods, wares, or merchandise, any stamp, commonly called a trading stamp, or other like device, which said stamp or other like device would entitle the holder thereof to receive, from some other person or party than the vendor, any indefinite or undescribed thing, the nature or value of which was unknown to the purchaser at the time of the purchase of said article of goods, wares or merchandise." (Acts 1909, p. 153.)

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CRIMINAL LAW-Procedure (Unofficial)
Expenses in preparation of amended motion for new trial and appeal to Supreme Court in capital case discussed.
February 9, 1960
Mr. Vickers Neugent
I am pleased to acknowledge your letter relative to the construction of that portion of Code Section 27-3001 which provides:
"... plus such sums as have been actually and prudently expended or incurred in the necessary preparation and investigation of the case."
Specifically, you are concerned- with expenses incurred in the preparation of an amended motion for a new trial, and expenses incurred in connection with an appeal of a capital case in the Supreme Court.
You will note that Code Section 27-3001 is restricted to those duties of the attorney in preparing and trying the case in the Superior Court, whereas C<>de Section 27-3002 deals with capital felony cases appealed to the Supreme Court of Georgia.
It is my view that the preparation of an amended motion for a new trial would fall in the category of Code Section 27-3001, and that expenses incurred in connection with an appeal of a capital case to the Supreme Court would fall in the category of Section 27-3002.
You will further note that the fee for services and the sums actually and prudently expended and incurred in the preparation and investigation of the case under Code Section 27-3001 would be determined and fixed by the Judge of the Superior Court, and that in aU such cases where an appeal is filed and attorneys are appointed to prosecute said appeal, the Supreme Court or the Chief or Presiding Justice thereof would determine the reasonable compensation to be allowed for the services rendered in the appeal of said case within the limitations as provided in said Code Section.
CRIMINAL LAW-Punishments (Unofficial)
Discussion of crimes for which capital punishment is prescribed.
March 23, 1960
Mr. David Levine
This is to acknowledge receipt of your letter making inquiry as to capital punishment in this State, which reads in part as follows:
"I would appreciate knowing your State's stand toward capital punishment. Any pamphlets or information you have pertaining to this controversial subject will also help a great deal."
The statutes of this State designate several different crimes as capital felonies which, of course, means that such crimes are punishable by death, among

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them being murder, rape, castration, robbery by open force and violence, treason, insurrection or an attempt to incite insurrection, burning of railroad bridge or attempting to burn railroad bridge, kidnapping for ransom, having sexual or carnal intercourse with a female child under the age of fourteen years unless such person shall have previously become lawfully married to such female child, the wilfull killing of an unborn child so far developed as to be ordinarily called "quick" by any injury to the mother of such child, which would be murder if it resulted in the death of such mother. If any person shall counsel, advise, or direct a woman to kill the child with which she is pregnant, and after she is delivered of such child she shall kill it, every person who advised or directed shall be deemed an accessory before the fact to such murder and shall have the same punishment as the principal, which is death.
CRIMINAL LAW-Sentences (Unofficial) There is no provision under laws of Georgia for results of pre-sentence
investigations to be made available to a jury prior to its determining the sentence.
February 26, 1960
Honorable Sol Rubin
This will acknowledge receipt of your letter in which you request information regarding the use of pre-sentence investigations in cases in which the jury sets a sentence.
There is no procedure under the laws of Georgia, at the present time, whereby the results of pre-sentence investigations are made available to a jury prior to the setting of a sentence. The jury returns a verdict of guilty or not guilty, and at the same time as a verdict of guilty is found, the sentence is set. Hence, it would probably be reversible error for there to be presented to the jury's consideration evidence of prior convictions, etc., which might appear in a pre-sentence investigation report.
CRIMINAL LAW-Trials (Unofficial) Because of the prohibition against double jeopardy, the State cannot
appeal a conviction or acquittal.
January 4, 1960
Honorable Avery W. Thompson ,
This is to acknowledge receipt of your letter which reads as follows: "May I inquire if there is included in the law of Georgia any provision for the appeal by the State in criminal cases for the purpose of determining the law, without placing the defendant in double jeopardy? If there is such a provision, I should like to know substantially its provisions and how it works in practice."

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It is my understanding of the law in Georgia that when a person is convicted in a criminal case the State does not have an appeal, nor do they have an appeal in case of an acquittal in a criminal case.
The defendant in a criminal case may file special pleas to an indictment or an accusation such as demurrer, plea in abatement, plea to the jurisdiction, etc. This special plea would be heard before the Court, and should the defendant or the State desire to have any order of judgment of the Court reviewed by the Appellate Court, the Trial Court in its discretion could then take the main case off of the calendar and allow the Appellate Court to review the Trial Court's ruling before placing the defendant in jeopardy.
It is my understanding that a defendant in a criminal case cannot twice be placed in jeopardy for the same offense except in the case of a mistrial or in the case of a new trial granted at the defendant's request.
DOMESTIC RELATIONS-Adoption (Unofficial)
Discussion of adoption and proceedings.
September 26, 1961
Mr. K. J. Foreman, Jr.
This will acknowledge your letter inquiring with reference to the laws of the State of Georgia covering the adoption of children. Your letter has been carefully read and it is concluded that you wish information with reference to method of adoption, who may adopt, the extent necessary for consent of parents, and the role of the Welfare Department or other appropriate agency. You also ask if an adoption in another jurisdiction would be recognized in the State of Georgia.
The principle statute in which you appear interested is found in Ga. Code Ann., 74-401, 402 and for your convenience assuming that law books where you are now situated are not available, we quote these two sections for you verbatim as follows:
"74-401. Jurisdiction and venue.-The superior courts of the several counties shall have exclusive jurisdiction in all matters of adoption, except such jurisdiction as may be granted to the juvenile courts. All petitions for adoption shall be filed in the county in which the adopting parent or parents reside, except that upon good cause being shown, the court of the county in which the adoption is sought, in its discretion may allow the petition to be filed in the county of the child's domicile, or in the county in which is located any licensed child-placing agency having legal custody of the child sought to be adopted. (Acts 1941, p. 300; 1956, pp. 695, 696.)"
"74-402. Who may adopt.-Any adult person may petition for leave to adopt a child if such person is (1) at least 25 years of age, or (2) married and living with husband or wife. If a person is married, the petition must be filed in the name of both husband and wife, except where the child is the step-child of the party seeking to adopt, in which event

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the petition may be filed by the stepparent alone. The petitioner must be at least 10 years older than the child, a resident of this State and financially able and morally fit to have the care of the child. (Acts 1941, p. 300.)"
Usually it may be noted that adoptions are initiated by a petition to the court by the persons who wish to adopt the child. There is provision for the consent of living parents or guardians, and the consent of the child 14 years of age or over except in certain unusual instances which are provided by statute. We believe it well to quote to you Ga. Code Ann., 74-403 in order to give you a better outline regarding the role of the parent, which section reads as follows:
"74-403. Consent of living parents or guardian and child of 14 years or older.-(1) Except as otherwise specified in the following subsections, no adoption shall be permitted except with the written consent of the living parents of a child. Said consent when given freely, voluntarily, may not be revoked by the parents as a matter of right. In the case of a child 14 years of age, or over, the consent of such child also shall be required, and must be given in writing in the presence of the court.
(2) Exemption where child abandoned or parental custody terminated.-Consent of the parents shall not be required where a child has been abandoned by its parents, or where the parents of the child cannot be found, after a diligent search has been made, or where a parent is insane or otherwise incapacitated from giving such consent, and the court is of the opinion that the adoption is for the best interest of the child, or where the parents have surrendered all of their rights to said child to a licensed child-placing agency, or court of competent jurisdiction for adoption, or to the State Department of Public Welfare through its designated agents, or in the case of parents whose parental rights have been terminated by order of a juvenile or other court of competent jurisdiction, or where both parents are dead. Where a decree has been entered by a superior court ordering the father to support the child and the father has wantonly and wilfully failed to comply with the order for a period of 12 months or longer, consent of said father shall not be required and the consent of the mother alone shall suffice.
(3) Illegitimate children.-If the child be illegitimate, the consent of the mother alone shall suffice. Such consent, however, shall not be required if the mother has surrendered all of her rights to said child to a licensed child-placing agency, or to the State Department of Public Welfare.
(4) Guardian.-If the child has a guardian of its person, the consent of such guardian shall be required, or if the child has been surrendered or committed by court order to a licensed child-placing agency, the consent of such agency shall be required.
(5) Minor parents.-The parental consent, when required by this section, may be given by the natural parents or parent of the child sought to be adopted irrespective of whether such natural parent, or either or both of them, have arrived at the age of 21 years. The parental consent given by minor natural parents shall be as binding upon them as if such parents were in all respects sui juris. (Acts 1941, p. 301; 1950, pp. 289, 290; 1960, pp. 791, 792.)"

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In appropriate circumstances provision is made for investigation of the status of the child by the State Department of Public Welfare through its own agencies or through one of its licensed child-placing agencies. See Ga. Code Ann., 74-410. There is also provision that in certain circumstances the superior court may transfer jurisdiction to the juvenile court, Ga. Code Ann., 24-2409.
You ask about adoptions in other states being recognized in Georgia. Status acquired by adoption, like that acquired by marriage, is a personal one, and its validity is conclusively determined by the law of the state creating it. If validly created there, it will be recognized and given effect in Georgia, though procedure by which it was created under the foreign law is different from that required in Georgia. 208 Ga. 512, 517.
DOMESTIC RELATIONS-Adop,tion (Unofficial)
Discussion of Georgia laws on adoption.
March 8, 1960
Hon. Francis E. Walter
This will acknowledge your letter in which you enclose a copy of a House Committee print including certain provisions of Public Law 85-316, as amended by Public Law 86-253, the subject matter being the Adopted Orphans Immigration Law. We have read this print with interest, and will undertake to answer the questions propounded by you covering applicable provisions of State law in the State of Georgia.
1. Persons who may adopt. Section 74-402 of the Code of Georgia Annotated covers this inquiry and reads as follows:
"Any adult person may petition for leave to adopt a child if such person is (1) at least 25 years of age, or (2) married and living with husband or wife. If a persxm is married, the petition must be filed in the name of both husband and wife, except where the child is the step-child of the party seeking to adopt, in which event the petition may be filed by the stepparent alone. The petitioner must be at least 10 years older than the child, a resident of this State and financially able and morally fit to have the care of the child. (Acts 1941, p. 300) ."
You will note the provision that the petitioner must be a resident of this State, and there appears to be no requirement that the petitioner be a .United States citizen. We find no provision to prohibit a single, divorced, or widowed person to adopt a child.
2. Persons who may be adopted. This topic may be answered by first quoting to you Section 74-403 of the Code of Georgia Annotated, which reads as follows:
"Consent; living parents and child of 14 years or older.-Except as otherwise specified in the following sections, no adoption shall be permitted except with the written consent of the living parents of a child. Said consent when given freely, voluntarily, may not be revoked by the

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parents as a matter of right. In the case of a child 14 years of age, or over, the consent of such child also shall be required and must be given in writing in the presence of the court. (Acts 1941, p. 301; 1957, p. 367.)"
You will note that consent is required with certain exceptions which are outlined in Section 74-404 of the Code. Consent of parents is not required where a child has been abandoned by its parents, or where the parents cannot be found, or where a parent is insane or otherwise incapacitated from giving consent or where the parents surrender the rights to a licensed child placing agency or a court of competent jurisdiction or to the Department of Public Welfare. Other stipulations in this section are effective in which you may be interested and you may wish to refer to this section and the several following sections for elaboration.
Adults may be adopted. Reference is made to Section 74-420 of the Code of Georgia Annotated for further details.
Answering your question if alien children may be adopted, your attention is called to Section 99-309 of the Code of Georgia Annotated which prohibits a child being brought into the State for the purpose of placement or procuring his adoption without first filing a notice with the State Department of Public Welfare and filing a bond for each child in the penal sum of $1,000 covering various contingencies. We would say that subject to the provisions of this section an alien child may be adopted in the State of Georgia.
3. Investigation. Provision is found in Section 74-410 of the Code of Georgia Annotated for investigation by the Department of Public Welfare or other agency. Provision is made for a report and for an interlocutory hearing and a final order in Sections 74-411, 412, 413, and 414. Jurisdiction is in the Superior Court, except for such jurisdiction as may be granted to the juvenile courts. (See Section 74401)
With reference to pre-adoption requirements, particularly if the child is not residing in the United States, we refer you again to Section 99-309 of the Code of Georgia Annotated, which we believe would be pertinent in such situations, especially the requirement for a bond to be given for each such child.
4. Legal effect of adoption. In the case of Watson v. Watson, 208 Ga. 512, it has been held by the Supreme Court of this State substantially that status acquired by adoption, like that acquired by marriage, is a personal one, and its validity is conclusively determined by the law of the State creating it; if validly created there, it will be recognized and given effect in Georgia, though procedure by which it was created under the foreign law is different from that required in Georgia. This decision covers the status in Georgia of adoptions, and we believe that the procedure outlined and cited in the Code in the above sections, and particularly Section 99-309, should be followed in the State of Georgia before an alien child can enjoy all the legal rights as a natural child would. We do not find that the appellate courts in Georgia have had occasion to pass upon the recognition of an adoption of a child accomplished in a foreign country, but we feel that such an adoption following the laws of a foreign country recognized by the United States would no doubt be given due consideration in the State of Georgia. Prospective parents resident of Georgia would, of course, use the courts of Georgia in the processing of any adoption.
In this connection, reference should be had to Section 102-110 of the Code

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of Georgia Annotated on the subject of Comity of States. This section reads as follows:
"Comity of States.-The laws of other States and foreign nations shall have no force and effect of themselves within this State, further than is provided by the Constitution of the United States, and is recognized by the comity of States. The courts shall enforce this comity, unless restrained by the General Assembly, so long as its enforcement is not contrary to the policy or prejudicial to the interests of this State." See also Section 102-108 of the Code of Georgia on the subject of when Lex loci governs, and see the case of Rodale, et al. v. Grimes, et al., 211 Ga. 50,
in which the validity and effect of an oral contract as to custody of a child was
held governed by the laws of Iowa where all parties to the contract lived at the time the contract was made.
Under the laws of Georgia, every child adopted in complete conformity to the law of this State enjoys the same legal rights as a natural child.
DOMESTIC RELATIONS-Marriage (Unofficial)
Common law marriages are recognized in Georgia.
March 10, 1961
Mr. Leonard B. Sachs
This is to acknowledge receipt of your letter which reads as follows: "Please send the undersigned a certified copy of the Georgia mar-
riage laws existing and in effect November 1, 1957, and a certified copy of the laws in effect today, if there is a difference." While we do not have a statute specifically authorizing marriage without a license and ceremony, common law marriage, nevertheless, is recognized and held to be binding in this State. For your information, I cite the following cases:
84 Ga., p. 466, 468 (10 S.E. 1087) 83 Ga., p. 283, h-note 2 (9 S.E. 541) 113 Ga., p. 121, h-note 2 (38 S.E. 137) 161 Ga., p. 867 (132 S.E. 85).
There are many other cases to the same effect that may be found cited under Code Section 53-101 of the Annotated Code of Georgia. Of course, before a common law marriage would be recognized by the courts as being valid, it would have to appear that the parties thereto were able to contract.

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DOMESTIC RELATIONS-Marriage (Unofficial)
When necessary to post notice of applications for marriage licenses.
March 13, 1961
Honorable Bertie B. Stembridge
Thank you for your letter inquiring as to the necessity of posting notice of applications for marriage licenses made by minors acting under parental consent.
In connection with your inquiry, please note the following Sections of the Code of Georgia, which I believe are self-explanatory:
"53-204. In cases where the parties applying for a license shall not have reached the age of 21 years, their ages to be proved to the ordinary as hereinafter provided, the ordinary immediately upon receiving the application, shall post in his office a notice giving the names and residences of the parties applying therefor and the date of the application; except that where the parents or guardian of the female appear in person before the ordinary and consent in writing to the issuance of the license, the posting may be dispensed with."
"53-205. In cases in which notice of the application is required to be posted, no license shall be issued earlier than five days following the date of the application therefor, within which five-day period objections to the proposed marriage may be entered; except that in case of an emergency or extraordinary circumstance the ordinary may authorize the license to be issued at any time before the expiration of the five days."
"53-206. When the applicant claims that the parties are 21 years of age or over, the ordinary to whom application is made shall satisfy himself that the applicant's contention as to their ages is true. If the ordinary does not know of his own knowledge that both parties for whom a marriage license is sought are 21 years of age, or over, he shall require applicants to furnish birth certificates or, in lieu thereof, affidavits from at least two persons showing the ages of both parties to be 21 years, or over; and upon failure of applicant to convince the ordinary that both parties are of such age, the ordinary shall post notice of said application for the period of five days, as hereinbefore provided."
DOMESTIC RELATIONS-Sup.port (Unofficial)
Contribution to support of parents is required of children under Uniform Reciprocal Enforcement of Support Act.
August 29, 1961
Mr. Thomas J. Sikes
This will acknowledge your letter asking for information with reference to provisions of our State law covering support and care of parents by their children. It appears from your letter that your mother is living in the State of Georgia

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and you want to determine the amount which you should contribute as compared to your earning capacity. You do not give us any information with reference to your earning capacity, the number of children who may be involved, or the financial circumstances of your mother.
The last law enacted in Georgia which might have a bearing on this matter is the Uniform Reciprocal Enforcement of Support Act, Acts 1958, pp. 34-47. This enactment is found in Chapter 99-9A of the Code of Georgia Annotated.
Parents and children of paupers in Georgia are bound to support them. See Georgia Code Ann. 23-2302, which reads as follows:
"23-2302. The father, mother or child of any pauper contemplated by the preceding section, if sufficiently able, shall support such pauper. Any county having provided for such pauper upon the failure of such relatives to do so may sue such relatives of full age and recover for the provisions so furnished."
In the rare instances where Code 23-2302 has been invoked, it has usually been done by a petition in equity brought by the parent. In these instances, a full disclosure of all facts and circumstances may be required by the Court. Since you appear to be a resident of the State of Florida, it may be that the Florida law imposes more rigid requirements upon you for the support of your parent, and I am sure you would prefer to consult a Florida attorney about this.
If your inquiry stems from your mother, a resident of Georgia, being a recipient of old age assistance in this State, then your attention should be called to Code of Ga. 99-626 and 99-627, which sections read as follows:
"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."
"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."
You will note that Code of Ga. 99-909 (a), of the Uniform Reciprocal Enforcement of Support Act provides how duties of support are enforced.

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DOMESTIC RELATIONS-Support (Unofficial)
Duty to support under Uniform Reciprocal Enforcement of Support Act discussed.
August 25, 1960
Mr. Gaston H. Gage
You request information whether it is possible under the Uniform Reciprocal Enforcement of Support Act to compel an adult sister to support her mother.
The URESA, Georgia Laws 1958, page 34, defines "duty of support" as follows:
" '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 specifically included for the purpose of this Act, the following: ... "
Section 2 (7) provides:
"(7) 'Obligor' means any person owing a duty of support." Section 2(5) defines "law" to include both common and statute law. Section 9, in part, provides:
" ... Provided, however, that no cause of action shall arise unless the obligee is in need of support or the obligor has failed and refused to support said obligee."
From the above, it appears that the criteria is whether or not there is a duty to support. If there is a duty, which could very well be a factual situation as well as a legal proposition, then it appears that the procedure provided by the URESA could be utilized to obtain compliance with that duty to support.
DOMICILE AND RESIDENCE-Non-citizens (Unofficial)
Non-citizens of the United States may acquire a domicile in Georgia for purposes of attending a State supported college or university.
July 8, 1960
Mr. William S. Patrick
This will acknowledge receipt of your letter in which you ask my oprmon whether any person who is not a citizen of the United States can be considered domiciled in the State of Georgia for purposes of attending a State supported college or university.
Article I, Section I, Paragraph XXV of the Georgia Constitution of 1945, provides:
"Paragraph XXV. Citizens, p'rotection of.-All cit:izens of the United States, resident in this State, are hereby declared citizens of this State,

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and it shall be the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges and immunities due to such citizenship."
Section 79-201 of the 1933 Code of Georgia, as amended, provides:
"79-201. (2161) Who are citizens of State.-All citizens of the United States, residents in this State, are hereby declared citizens of this State."
Under the Georgia State Constitution and Law of Georgia there is no express provision for an individual to have the status of a citizen of the State of Georgia without also having the status of a citizen of the United States. However, citizenship is not the controlling factor in questions of domicile although it is a factor to be considered with others in ascertaining intention.
The question of what place shall be considered a domicile of an individual i.s one of fact rather than law.
Section 79-401 of the 1933 Code of Georgia, as amended, provides:
"79-401. (2181) Pla,ce of.-"The domicile of every person of full age, and laboring under no disability, is 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. (Act 1838, Cobb, 530.)" Section 79-404 of the 1933 Code ?f Georgia, as amended, provides:
"79-404. (2184) Minors.-The domicile of every minor shall be that of his father, if alive, unless such father shall have voluntarily relinquished his parental authority to some other person. In such event the domicile of the minor shall be that of the person to whom parental authority has been relinquished, or, his master, if an apprentice, or his employer; if neither master nor employer, then the place of his own choice; if the father shall be dead, then the domicile of the minor shall be that of his guardian, if he has one in this State; if no guardian, then of his mother, if alive; if no mother, then of his employer; if no employer, then of his own choice. The domicile of an illegitimate child shall be that of his mother." Section 79-406 of the 1933 Code of Georgia, as amended, provides:
"79-406. (2186) Change of domicile; intention.-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."
Some of the factors you might consider in determining a person's intention to make a certain place his home would be the physical characteristics of the residence itself, the amount of time the individual spends there,, the things he does there, who lives there with him, what possessions he keeps there, his mental attitude towards his residence, his intention when absent to return there, and his attitude towards other places with which he has contact.
In your factual situation you stated that the daughter has resided with her parents in the State of Georgia for one year and nine months and that the

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daughter graduated from North Fulton High School. The clear interference is that the parents and daughter have definitely abandoned the old residence in Hungary and taken up an entirely new place as the home.
From the preceding principles it is apparent that an individual may be a citizen of another country and yet be domiciled in the State of Georgia for purposes of attending a State supported college or university. Therefore, it logically follows that my answer to your question be in the affirmative.

EDUCATION-Bible Reading (Unofficial)

Bible reading is required daily in the public schools of this State.

Miss Stella Emerson

July 18, 1960

You ask what the laws of Georgia say about Bible reading in the public school classroom.

The code section relating to this matter is as follows:

"32-705. Health and hygiene, the nature of alcoholic drinks and narcotics, the elements and principles of agriculture, and the elements of civil government shall be taught in the common or public schools as thoroughly and in the same manner as other like required branches, and the board of education of each county and local system shall adopt proper rules to carry the provisions of law into effect: Provided, however, that the Bible, including the Old and the New Testaments, shall be read in all the schools receiving State funds, and that not less than one chapter shall be read at some appropriate time during each school day. Upon the parent or guardian of any pupil filing with the teacher in charge of said pupil in the public schools, a written statement requesting that said pupil be excused from hearing the said Bible read as required by this section, such teacher shall permit such pupil to withdraw while the reading of the Bible is in progress. Such request in writing shall be sufficient to cover the entire school year in which said request is filed."

EDUCATION-County School Superintendents (Unofficial)

Qualifications and eligibility of county school superintendent set forth.

Mr. J. E. Nichols

July 25, 1960

I am pleased to acknowledge your letter relative to a school principal running for the office of county school superintendent, and to advise that the qualifications of a county school superintendent are set forth in Section 32-1004 of the Code of Georgia which provides as follows:

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"32-1004. Qualifications of county superintendents. - Before any person shall be qualified or eligible to the o:fjice 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.)"
The nomination of a person for a county office by a county political party, such as by a Primary, is controlled by the County Executive Committee of such political party in conformity with the rules and regulations of said party where such rules and regulations do not conflict with statutory provisions.
If a person possesses the qualifications of an elector in this State and the qualifications set forth in Code Section 32-1004 of the Code above cited, and has complied with the rules and regulations of a County Executive Committee, he would be eligible to be a candidate in the primary election.
EDUCATION-County School Superintendents
County School Superintendents are within the Military Forces Reorganization Act of 1955 (Ga. Laws 1955, p. 10), and are permitted to have a leave of absence when called into active military service.
September 29, 1961
Dr. Claude Purcell, State Superintendent of Schools
I am pleased to acknowledge and answer your letter wherein you request an official opinion regarding the status of a county school superintendent who, as a voluntary member of the organized militia or reserve component of the United States Armed Forces is, without his consent, ordered to report for military duty in the armed forces of the United States for an indefinite period of time pursuant to recent mobilization orders issued by the President of the United States and the Department of the Army. In particular you wish to know whether such a public officer may have a leave of absence from or must otherwise resign his elective office upon entering military service under such conditions and, if the law permits such leave of absence, the method or manner by which an interim successor may be chosen.
In my opinion your first question is answered by provisiOns contained in Section 86 of the Military Forces Reorganization Act of 1955 (Ga. Laws 1955,

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pp. 10-120). This lengthy section is codified in Georgia Code Annotated, Title 86, Public Defense, as Section 86-1109.
It is my opinion that a duly elected county superintendent of schools is a public officer within the terminology and definitions contained in Section 86-a (1) of said law. See Saxon v. Bell, 201 Ga. 797; Board of Education v. Southern Michigan National Bank, 184 Ga. 641 and Bower v. Avery, 172 Ga. 272. I am further of the opinion that such public officer is, under the factual situation above stated, being placed on "ordered military duty" within the meanllng of said term as used and defined in Section 86-a (2) of said law, provided said public officer does not come within the prohibited classifications contained in Section 86-g of said law. It follows from the foregoing therefore, pursuant to Section 86-b of said law, that such public officer is entitled by law to absent himself and have a leave of absence from performance of his duties as sueh public officer while away and engaged in the performance of such "ordered military duty" and need not therefore resign such position, and further that pursuant to Section 86-d, he is not to "be prejudiced, by reason of such absence, with reference to continuance in office or employment, reappointment to office, re-employment, reinstatement, transfer or promotion." Such leave of absence however, and the rights of such officer in regard to a public office as referred to above and enumerated in Section 86-b and d, are, in the case of elected public officials, necessarily to be construed as being limited to the particular public office held at the time such public officer is placed upon "ordered military duty" and, in point of time, limited to the duration of the term of the office of such public officer.
In reference to the second question stated above respecting the method or manner by which an interim county school superintendent pro tempore is to be selected or chosen, the Military Forces Reorganization Act appears to be silent and does not furnish a ready answer.
The office of county school superintendent is an elective constitutional office. See Georgia Constitution, 1945, Article VIII, Section VII, Paragraph I, (Code
Section 2-6901), Code Section 32-1002, and Saxon v. Bell, 201 Ga. 797. I find no
constitutional or statutory appointive power vested in any particular person or body of persons regarding the office of county school superintendent, with the exception of the minor provision contained in Ga. Code Ann., Section 32-1003, as amended. Code Section 32-1003, as amended, in so far as the same may relate to the problems respecting the subject office, the term of which began on January 1, 1961, provides in part as follows:
"32-1003. Vacancies, how filled.-In the event of a vacancy by death, resignation, removal from office, or from any cause whatever, in the office of county superintendent of schools in any county ... the vacancy shall be filled as follows:
"2. In the event that there is more than six months remaining in the unexpired term, the county board of education shall appoint an acting county superintendent of schools to serve for a period of 30 days and until the vacancy can be filled as herein provided. In such event, it shall be the duty of the ordinary to issue a call within 10 days after the vacancy occurs for an election to fill the unexpired term. Such election shall be held not less than 10 days nor more than 20 days after the issuance of the call therefor. The person receiving the highest number of votes at such election shall serve as county superintendent of schools

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for the remainder of the unexpired term. In the event of a tie vote in any such election, the ordinary shall call, within five days thereafter, an election to be held within 10 days after the call until a choice is made."
I am of the opinion the method for filling a vacancy in the office of a county school superintendent as provided by terms of the foregoing code section should be applied and followed in the situation here presented wherein it is necessary to select an interim county school superintendent pro tempore to serve during the period of an indefinite leave of absence provided by terms of law to the duly elected county school superintendent, which indefinite leave of absence might very possibly extend to the expiration date of said term of office, to wit, December 31, 1964. Noting that Section 86-d of the Military Forces Reorganization Act of 1955 provides that "Time during which a public officer or employee is absent pursuant to the provisions of Subsections b and c of this section shall not constitute an interruption of continuous employment ... ", it might be said that the office of a county superintendent on an indefinite leave of absence under provisions of Section 86 of said Act is not "vacant" within the meaning of the word "vacancy" as used in Code Section 32-1003, and that the latter code section is hence not applicable to the situation here presented. I am of the opinion that such a limited and restricted meaning need not be applied to the word "vacancy", but that such word should be given a broad construction so as to accord with the words "or from any cause whatever" that are contained in the same sentence of said code section, and so as to apply to a situation wherein from a common sense and realistic viewpoint, and as a practical matter, such public office is in the true sense of the word and for all practical purposes, vacant, and. the duties thereof not performed by the duly elected public official. The word "vacancy" has been given a varied construction in cases arising throughout the country, as such word is used in differing respects in various statutes. In a decision rendered in this jurisdiction, Cason v. Harn, 161 Ga. 366, wherein construction of the statutory words "in case of a vacancy by death or resignation or otherwise" was involved, a phrase similar to that found in Code Section 32-1003, Chief Justice Russell said:
"A vacancy might be caused after the commissioner had qualified, by removal from office for any sufficient cause provided by law. Therefore it cannot be implied from the use of the word 'otherwise' that the word 'vacancy' as used in Section 15 was intended to include all vacancies, so as to exclude vacancies which might not be ejudem generis with 'death' or 'resignation'. In a generic sense the word 'vacancy' as applied to official positions means an absence of anyone to hold the office and discharge its duties." (Emphasis added.)
See also Pittman v. Ingram, 184 Ga. 255. Further, Code Section 89-501(5) provides that all offices in the State shall be vacated by the encumbent ceasing to be a resident of the State or of the county, circuit, or district for which he was elected to serve.
In the current situation as presented in your letter,. a situation where the holder of the subject public office knows and has given notice that he is to report to military duty beyond the confines of both this State and the county wherein he was elected to serve, it is reasonable to conclude that Code Section 32-1003 is applicable in these circumstances and that the subject public office does thereby become vacated. The procedure there enumerated should therefore be followed.

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It is by virtue of the foregoing cited prov1s10ns of the Military Forces Reorganization Act that the encumbents continuing and future rights to and interest in said public office are sought to be protected and preserved. In reconciling and attempting to apply these provisions of law therefore, absent consideration of the existence or validity of any constitutional question, it is my opinion that the required election should be called and that the ordinary's call for such election should clearly specify that said election is called for the purpose of electing a county school superintendent p'ro tempore to serve during the leave of absence provided by law to the duly elected superintendent in the present emergency, said interim county school superintendent pro tempore to serve in said capacity until such time that said leave of absence expires by terms of law or said term of office expires in point of time, whichever may first occur.
EDUCATION-Independent School Systems
Effect of extension of city limits upon independent city school system.
August 24, 1961
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge receipt of your letters pertaining to the extension of the city limits of Trion, Georgia and the effect this extension has upon the Trion independent city school system.
The Trion independent school system was established by the Georgia Legislature in 1805. See Georgia Laws 1895, p. 326. The Georgia Legislature, in 1897, repealed the Act of 1869 incorporating the town of Trion (Ga. Laws 1897, p. 352) and, at the same Session, passed a new act incorporating the town of Trion which is likewise found beginning on page 352 of the Laws of 1897. The purpose of the latter Act, as stated in its caption, was, in part, "to define its limits ... (and) to create a free school system for said town.... " Section 1 of this Act defined the corporate limits of the town of Trion as follows:
"The corporate limits of said town shall embrace an area of one mile in every direction from the center of the rock pier of the iron bridge commenced to be built in the year 1897 in said town.... "
Section 11 of the latter Act provided that the aforementioned Act establishing a system of free schools in the town of Trion "be and the same is, hereby adopted, and shall become a part of this Act of incorporation.... "
In 1953 the State Legislature passed an Act amending the foregoing Act incorporating the town of Trion, providing as follows (Ga. Laws 1953, p. 2545):
"The council of the town Of Trion may admit into the public school system of the town of Trion such pupils not residents within its corporate limits if the council may, in its discretion, think proper, and may impose as a condition to such admission a reasonable charge for tuition."
From the foregoing it is clear the territorial limits of the independent school system were co-extensive with the city limits of said town.

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In 1960 the State Legislature amended the foregoing Act incorporating the town of Trion, extending and redefining the corporate limits of said town as described fully in said Act. See Georgia Laws 1960, p. 2710. At the same Session the Legislature passed a further Act extending to a greater extent the corporate limits of the town of Trion, including therein property as follows: (See Ga. Laws 1960, p. 2715.)
"All that tract or parcel of land situated, lying and being parts of land lots numbered 101 and 116 in the 6th district and 4th section of Chattooga County, Georgia, and being that area known as Trion Heights, which is more particularly described as follows:
(Description here omitted)"
This latter Act however provided that the terms thereof were not to become effective except by approval of the local electorate in an election to be had as provided for in said Act. It is my understanding that an affirmative vote was had in the referendum held and that the described area did thereby comi! within the corporate limits of the town of Trion.
The question presented is whether or not the extension of the city limits in the foregoing manner automatically includes such area within the independent school system for educational and taxation purposes.
The situation and question presented above is a novel one. I find no decisions of the courts within this State directly in point.
Article VIII, Section VII, Paragraph I (Code Annotated, Section 2-7001) of the Constitution of 1945 provides:
"Authority is hereby granted to municipal corporations to maintain existing independent school systems, and support the same as authorized by special or general law, and such existing systems may add thereto colleges. No independent school system shall hereafter be established."
The Supreme Court, in the fairly recent case, Bailey v. County Board of Education, Elbert County, 213 Ga. 308, states that the intent of the foregoing constitutional provision was to prohibit creation of independent school systems after adoption of the Constitution of 1945, and to preserve those in existence until consolidated or merged in the manner provided by law.
Although the intent of the foregoing constitutional provision is clear in so far as the creation of any independent school systems is concerned, I find no provisions of law or court decisions rendered in this State dealing with the question of whether or not the territorial limits of an e;_isting independent system may be increased by the State Legislature, or whether such territorial limits are automatically increased through an Act or Referendum vote extending the corporate limits of a city. The decision rendered in Board of Education of Fulton County v. Board of Ed,ueation of College Park, 147 Ga. 776, though rendered in 1918, prior to adoption of the present Constitution, sets forth certain principles which in my opinion are still applicable and persuasive authority on the point. Based upon the foregoing decision, I rendered you an opinion in 1954 wherein I stated my opinion as follows: '
"Where the corporate limits of a municipality are extend,ed so as to take in an area where a county school is located, the school authorities

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of the independent municipal system succeed to the control of all educational matters in such area and also to title to real estate held as public school property, in the absence of expressed intent on the part of the Legislature or in the absence of an agreement between the interested parties."
(See Ops. of the Atty. Gen. 1954, p. 168.)
At a later date in 1954 your Department submitted to me the following question:
"If the Pulaski County Board of Education purchases property near Hawkinsville to build a school and it is later incorporated into the municipality of Hawkinsville, can the municipality obtain ownership and operation of this school, as a part of the independent system?"
Again citing the foregoing College Park case, I stated:
"Under authority of the above case an independent school system would have control of all educational matters and title to all real estate held as public school property within its territory. In the absence of an agreement between the county and the city and where the Legislature fails to expressly provide for the manner of division, it is my opinion that (such) question would be answered - yes."
The foregoing opinions, though dealing with acquisition of title to real estate, likewise referred to "educational matters" within the territorial areas involved and are, in my opinion, applicable to the question presented by you in relation to the Trion independent school system. It is my opinion therefore that inasmuch as the Trion corporate limits have been extended the territorial limits of the independent school system, heretofore co-extensive therewith, remain co-extensive therewith and that jurisdictional taxing powers, so far as general tax levies for school purposes are concerned, of the extended municipal school system likewise extend to the area herein involved. In so far as the taxability of property in the subject area on any existing, outstanding bonded indebtedness is concerned, I feel that Code Chapter 32-14, and the decisions rendered in Board of Education of Paulding County v. Gray, 203 Ga. 583, Chappel v. Small, 194 Ga. 143, Bond v. Patillo, 174 Ga. 571, Barber v. Cummings, 167 Ga. 289, and other similar cases, will answer all of your questions in this regard, to wit that property heretofore subject to taxation for bonded indebtedness according to the bond indenture remains subject thereto.
EDUCATION-Independent School Systems
Extension of the city limits to include a high school would serve to bring that high school under the city school system.
April 3, 1961
Honorable Claude Purcell State Superintendent of Schools
I am in receipt of your letter in which you request my opmwn whether Central High School in Carroll County would be incorporated into the independent

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city school system in the event the City of Carrollton extended its city limits to include Central High School.
In my opinion, given April 13, 1954, at the request of Dr. M. D. Collins, I stated:
"Where the corporate limits of a municipality are extended so as to take in an area where a county school is located, the school authorities of the independent municipal system succeed to the control of all educational matters in such area, and also to title to real estate held as public school property, in the absence of express intent on the part of the legislature or in absence of an agreement between the interested parties. Board of Fulton v. Board of College Park, 147 Ga. 176."
Also, in Bailey v. County Board of Education of Elbert,. 213 Ga. 308, the Supreme Court of Georgia cited the above case of "Board of Fulton v. Board of Education of College Park as being controlling authority, and held that upon the merging of the Board of Education of the City of Elberton with the Board of Education of the County of Elbert title to all property previously owned by the city board became vested in the county board.
In view of the above, it is my opinion that in the event the City of Carrollton extends its city limits to include Central High School, that high school would become a part of and under the jurisdiction of the Board of Education of the City of Carrollton.
EDUCATION-Local Boards (Unoffichd)
Law concerning appointment of trustees for local schools by local boards of education cited.
May 5, 1961
Mr. Idus Harrison
This will acknowledge receipt of your letter asking my advice as to whether it is in compliance with laws governing the Department of Education for the county school board, and/or the County School Superintendent to appoint a citizen of the county who is not a resident of the school district as a trustee of the school.
For your benefit, I set out hereunder a copy of the law relating to the appointment of local school trustees:
"32-1104. The county board of education of each county, exclusive of those counties having local school systems created prior to the adoption of the Constitution of 1877, may within 30 days from the enactment of this law appoint not less than three nor more than five local school trustees for each school in the county. Each person so appointed shall be a freeholder and manifestly interested in education, and be a resident of the county where he is appointed. Each person so appointed shall have a term of four years, and should any vacancy occur due to death, resignation, change of residence from the county where appointed, or

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otherwise the county board of education shall, at its next regular meeting after such vacancy occurs, appoint a successor to fill said vacancy. The trustees so elected or appointed shall elect one of their members as chairman and another as secretary. All trustees shall serve without compensation: Provided, nevertheless, the trustee of each school district as constituted prior to August 7, 1945, shall be the trustees of each school in said district until their respective term expire."
EDUCATION-Local Boards
Discussion of county boards of education borrowing money to buy school buses.
July 21, 1961
Dr. Claude Purcell State Superintendent of Schools
This is in reply to your letter which was delivered to this office from the Department of Education.
I note that your letter is at the request of a county superintendent inquiring about counties or county boards of education borrowing money to buy buses.
This question involves consideration of numerous provisions of the Constitution of the State of Georgi.a and various Acts of the Legislature pursuant thereto.
There are four principal constitutional provisions to be considered. They are as follows:
"2-6001. The debt hereafter incurred by any county, municipal corporation or political division of this State except as in this Constitution provided for, shall never exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality or division shall incur any new debt except for a temporary loan or loans, to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of a majority of the qualified voters of the county, municipality or other political subdivision voting in an election for that purpose to be held as prescribed by law; and provided further that all laws, charter provisions and ordinances heretofore passed or enacted providing special registration of the voters of counties, municipal corporations and other political divisions of this State to pass upon the issuance of bonds by such counties, municipal corporations and other political divisions are hereby declared to be null and void; and the General Assembly shall hereafter have no power to pass or enact any law providing for such special registration, but the validity of any and all bond issues by such counties, municipal corporations or other political divisions made prior to January 1, 1945, shall not be affected hereby; provided, that any county or municipality of this State may accept and use funds granted by the Federal Government, or any agency thereof, to aid in financing the cost of archi-

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tectural, engineering, economic investigations, studies, surveys, designs, plans, working drawings, specifications, procedures, and other action preliminary to the construction of public works, and where the funds. so used for the purposes specified are to be repaid within a period of ten years."
"2-6002. Any county, municipal corporation or political division of this State which shall incur any bonded indebtedness under the provisions of this Constitution, shall at or before the time of so doing, provide for the assessment and collection of an annual tax sufficient in amount to pay the principal and interest of said debt, within thirty years from the date of the incurring of said indebtedness."
"2-6003. In addition to the debt authorized in Paragraph I of this Section, to be created by any county, municipal corporation or political subdivision of this State, a debt may be incurred by any county, municipal corporation or political subdivision of this State, in excess of seven per centum of the assessed value of all the taxable property therein, upon the following conditions: Such additional debt, whether incurred at one or more times, shall not exceed in the aggregate, three per centum of the assessed value of all the taxable property in such county, municipality or political subdivision; such additional debt shall be payable in equal installments within the five years next succeeding the issuance of the evidences of such debt; there shall be levied by the governing authorities of such county, municipality or political subdivison prior to the issuance of such additional debt, a tax upon all of the taxable property within such county, municipality or political subdivision collectible annually, sufficient to pay in full the principal and interest of such additional debt when as due; such tax shall be in addition to and separate from all other taxes levied by such taxing authorities, and the collections from such tax shall be kept separate and shall be held, used and applied solely for the payment of the principal and interest of such additional indebtedness; authority to create such additional indebtedness shall first have been authorized by the General Assembly; the creation of such additional indebtedness shall have been first authorized by a vote of the registered voters of such county, municipality or political subdivision at an election held for such purpose, pursuant to and in accordance with the provisions of this Constitution and of the then existing laws for the creation of a debt by counties, municipal corporations, and political subdivisions of this State, all of which provisions, including those for calling, advertising, holding and determining the result of, such election and the votes necessary to authorize the creation of an indebtedness, are hereby made applicable to an election held for the purpose of authorizing such additional indebtedness."
"2-6004. 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 all such loans of such county, municipality, political subdivision or county board of education outstanding at any one time shall not exceed 75 per cent of the total gross income of such county, munici-

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pality, 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 payable on or before December 31st of the calendar year in which such loan is made. No loan may be made in any year under the provisions of this paragraph when there is a loan 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."
Many of the counties of Georgia have had proposed and have ratified local Constitutional Amendments affecting their particular county or political subdivision's constitutional authority to borrow money or incur indebtedness.
That a school district is a political division of the State has been determined in the affirmative by the Supreme Court of Georgia. See in this respect, Campbell v. Red Bud, 186 Ga. 541, 548.
By constitutional provision county boards of education are a part of county government.
"2-6801. Authority is granted to counties to establish and maintain public schools within their limits. Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education.... "
To answer your qestion, as plainly as it is asked, I am of the opinion that county boards of education can borrow money to purchase buses. However, the borrowing or incurring of the indebtedness must be done in accordance with the constitutional restrictions set out above. If the loans are of a temporary nature, and not to supply "casual deficiencies of revenue" as provided in 2-6001 above, then the provisions of 2-6004 must be complied with.
The Supreme Court, in Hall v. County of Greene, 119 Ga. 253, at page 254, said:
"The meaning of the expression 'casual deficiencies' is no longer open to question in this State. In the case of Lewis v. Lofley, 92 Ga. 804, the present Chief Justice, speaking for this court, said: 'We can not conceive how a debt incurred for the building of a courthouse can be regarded as a debt incurred to supply casual deficiencies of revenue.' The word 'casual' means that which happens by accident or is brought about by an unknown cause; and we think the framers of the constitution, in using this language, meant some unforeseen or unexpected deficiency, or an insufficiency of funds to meet some unforseen and necessary expense.' "

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EDUCATION-Local Boards (Unofficial)
When a City Board of Education may incur indebtedness discussed.
October 19, 1960
Mr. William B. Greene
This letter is in reply to a request made to this office for an opmron as to whether the Board of Education of the City of Cartersville can incur an indebtedness in its name in the amount of $25,000.00. It is my understanding that this is to be a temporary loan.
Section 126 of the Charter of the City of Cartersville, as amended, provides the authority for the Board of Education to incur "indebtedness within the bounds of the approved budget of the then current year of operations."
This provision of said Charter is, of course, subordinate to certain limitations upon the authority of municipalities and political subdivisions to incur indebtednesses found in the Constitution of Georgia.
Article VII, Section VII, Paragraph IV of the Constitution of Georgia (Code Section 2-6004) 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 all such loans of such county, municipality, political subdivision or county board of education outstanding at any one time shall not exceed 75 per cent of the total gross income of such county, municipality, political subdivision or county board of education, from taxes collected by such county, municipality, political subdivision or county board of education in the last preceding year. Such loans shall be payable on or before December 31st of the calendar year 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."
It is my opinion that the authorities cited above are sufficient to enable the City Board of Education to incur such indebtedness as said Board determines necessary within the limitations therein above set out.

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EDUCATION-Local Boards
1. Local Boards may assign a pupil to any school within that district.
2. Local Boards may charge nonresident students tuition.
3. Local Boards may contract with other boards for tuition payments, and State Board should respect contract if otherwise legal.
October 20, 1960
Dr. Claude Purcell State Superintendent of Schools
This is in reply to your request for an opinion relating to nonresident pupil tuition and distribution of State funds to a school system charging nonresident pupil tuition.
At the outset, let me state that both the Constitution of 1945 and the Code of Georgia state that the control and management of the public schools of a county school district shall be by the County Board of Education. Georgia Code Annotated, 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 Boards of Education." Dower v. Stevens, 194 Ga. 598; Boney v. Board of Education of Telfair County, 203 Ga. 152; Keever v. Board of Education of Gwinnett County, 188 Ga. 299.
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 grounds 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 gratuitous to all children between the ages of six and 18 years residing in the districts in which the schools are located." Ga. Code Annotated, 2-6401, 32-937. The Supreme Court has held that "A charge for matriculation cannot 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 cannot be seriously doubted." Edalgo v. Southern Railway Co., 129 Ga. 258, 266; Irvin v. Gregory, 86 Ga. 605.
The Supreme Court in Edalgo v. Southern Railway Company cited above had the following to say:
"The Constitution declares that the public schools shall be free to all the children of this State. When a system is provided where any child may be admitted free to a school in the territory where such child is domiciled, the mandate of the Constitution is satisfied. If a child desires to enter a school in any other territory, it is permissible to charge such child tuition for the privilege."

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The above authorities clearly indicate that the local school boards may charge a tuition for nonresident pupils.
In determining the residence or domicile of a child, suffice it to say, that as a general proposition, such child's residence is that of his parents, real or adoptive, or any one else legally charged with his welfare and education. A child, not being sui juris cannot, of and by himself, establish a residence, for legal purposes, different from that of his parents.
"79-404. The domicile of every minor shall be that of his father, if alive, unless such father s h a 11 have voluntarily relinquished his parental authority to some other person. In such event the domicile of the minor shall be that of the person to whom parental authority has been relinquished. . . . "
It would be my opinion that in order for a child to "reside" with someone other than his parents, within a school district, and not be subject to a tuition fee, some legal action must be taken, or circumstances be present which have the legal effect of securing to the persons with whom the child is living some legal obligation as to his welfare and education. That is, some legal action or circumstances which in law vest in such persons with whom the child is living parental duties and obligations. It is in this respect that it often becomes necessary for a factual determination (perferrable at the local level) in order to determine whether the circumstances warrant a finding that the child is a resident of or domiciled in a particular school district.
Your request also raises the question as to the distribution of State school funds by the State Department of Education, where a child is a resident of one county and is a tuition paying pupil of another county. If the two local school districts enter into a contract with respect to who shall receive the State money allotted for the education of said child (as provided by law, 32-938, 2-7201, 2-5901), it is my opinion that under the Constitution and laws of Georgia the State Department of Education should disperse the said money in accordance with the terms of such contract. However, it would be presumed since there is no legislation in addition to that above referred to (inclusio unius est exclusio alterius), that the General Assembly did not intend, in the absence of a contract between the local school district, that the district in which the child is a tuition paying pupil should receive the money.
EDUCATION-Local Boards
1. Taxes levied to pay off a bonded school indebtedness may only be levied on property located within the territorial limits of the system issuing such bond as those limits existed at time of issuance of the bonds.
2. Any contract on the part of an independent school system covenanting to maintain existence and operation for a certain period of time would be ultra vires and not enforceable.

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November 22, 1961
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge and answer your request for an opinion regarding the Chattooga County Board of Education and the City of Trion independent school system. The first question asked by you is:
"After the Board of Education has constructed a new school building (by bond issue) if the independent school system of Trion was voluntarily abandoned and their system thereby turned back to the Chattooga County Board of Education, would the property that is now embraced within the independent school system be subject to a then existing bond indebtedness for the new high school building?"
Your first question must be answered in the negative. When a county school system votes to incur a bonded indebtedness for the purpose of building and equipping needed school buildings within the county school district, persons resident within an independent school district are not entitled to vote in such an election and properties owned by such persons and located within such independent school district are not subject to taxation for the purpose of retiring such school bonds. By the same token, should such independent school system cease to exist at some later date subsequent to approval and issuance of such bonded indebtedness by the county school system, and by merger or consolidation become a part of the county school system in the manner provided by law, real property located within the bounds of the previously existing independent school district is still not subject to being taxed for the purpose of paying off the bonded indebtedness previously incurred by the county school system. The same is true regarding taxation to pay off bonded indebtedness incurred by an independent school system which later merges with the county school system, to wit, that only the property located within the independent school district at the time the bonds were voted and issued is subject to taxation for the purpose of paying off such bonded indebtedness. The rule may thus be simply stated as follows: Taxes levied for the purpose of paying off a bonded school indebtedness may be levied only on property located within the territorial limits of the school system or district issuing such bonds, as such territorial limits existed at the time the bonds were originally voted and issued. See Barber v. Cummings, 167 Ga. 289; Bond v. Pattillo, 174 Ga. 571; Chappel v. Small, 194 Ga. 143; 121 ALR 834; Georgia Code Annotated, Sections 32-1402 and 32-1403; and Opinions of the Attorney General 1954, p. 214; 1955, p. 217; and 1956, p. 240.
The second question asked by you is:
"Whether or not Chattooga County Board of Education could enter into a binding contract with the Town of Trion for a period of 25 years assuring Chattooga County Board of Education that Trion would maintain its school system during this period of time; the question being whether or not such a contract would be binding on the future councilmen of the Town of Trion."
I am of the opinion your second question must be answered in the negative.
A local, independent school system, as is true of a municipality or a county, is a creature of the legislature and, absent some constitutional prohibition, is

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subject to the will of the legislature. The Town of Trion and the Trion inde~ pendent (free) school system were created by Act of the Georgia Legislature in 1895 and 1897. (See Ga. Laws 1895, p. 326; 1897, p. 352.) The Act creating the independent school system provided for a referendum vote by the voters of the town. (See also, Ga. Laws 1953, p. 2545, and 1960, p. 2710 and 2715.)
The Constitution of 1945, Art. VIII, Sec. VII, Par. I (Code Ann. Sec. 2-7001), authorizing municipal corporations to maintain existing independent school systems, gives constitutional recognition to such systems, but it provides that no new independent school system shall hereafter be established and it does not require that then existing independent school systems remain in existence. Article VIII, Section V, Paragraph I (Code Sec. 2-6801) of the Constitution provides that each county, exclusive of any independent school system existing in the county, shall compose one school district confined to the control and management of the county board of education, and of course it is recognized that if an independent school system goes out of existence its territory and school property becomes a part of the county school system and education of pupils within its realm a duty of the county board of education.
An independent school system might cease to exist either by adoption of a local constitutional amendment or act of the legislature (generally providing for a referendum vote as was generally initially provided for at the time of creation of such systems) or by following the procedure set out in Code Chapter 32-12. In an opinion rendered in 1952 (Ops. of the Atty. Gen. 1952, p. 67) this office ruled:
"... in my opinion there is no reason why an independent school system cannot merge with the county school system in any respective county under the terms and provisions of Code Section 32-1201 of the 1933 Code of Georgia. Of course, as you well know this merger may also be done by a local constitutional amendment, which procedure has been followed by several counties as shown in Georgia Laws, 1952. These local constitutional amendments usually carry a referendum provision allowing the voters of the city and county to vote on the proposed merger. But, as previously stated, there is no reason why an independent school system already existing by virtue of local or special laws cannot merge under the procedure outlined in Code Section 32-1201, for it is my opinion that this code section was not superseded or repealed by the Constitution of 1945."
This opinion was further amplified in an opinion rendered to Mr. T. E. Hill in 1953, (Ops. of the Atty. Gen. 1953, p. 335):
"It is my unofficial view that no existing county board of education and an independent school system could merge except either by following the present statutory procedure, as set forth in Sections 32-1201, 1202 and 1203 of the 1933 Annotated Code, or through the adoption of a constitutional amendment changing the existing systems.
"It is also my personal view that no legal contract or agreement could be entered into by either a county board of education or an independent school system whereby either system attempted to assume any of the powers of an administrative nature granted either board by statute.
"It is my further personal view that a county board of education could not assume the operation of an independent school system pending

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the adoption of a constitutional amendment or the procedure outlined in Sections 32-1201, 1202 and 1203 of the Code relative to merging of such systems."
You will note that an independent school system may cease to exist by following either of the procedures mentioned above, and that in neither case is any judgment or discretion in the matter vested in the city councilmen or other governing body of the city or of the independent school system. Since an independent school system may be dissolved either by legislative action, with a referendum vote thereon, or by petition and vote of the qualified voters of such system, I am of the opinion that a contract entered into by the city councilmen or other governing body of the independent school system, covenanting to maintain existence and operation of such school system for a certain period of time, would be ultra vires and not enforceable.
I am not unaware of the provisions contained in Article VII, Section VI, Paragraph I (Code Sec. 2-5901) or Article VIII, Section IX, Paragraph I (Code Sec. 2-7201) of the Constitution. In my opinion these provisions would not be applicable to a contract of the nature and substance here discussed.
EDUCATION-Local Boards (Unofficial)
Date and time of meetings of local boards of education discussed.
August 14, 1961
Mr. B. G. Way
I am pleased to ackncwledge receipt of and answer your question pertaining to the date and time of meetings of a county board of education.
Georgia Code Annotated, Section 32-908, as amended in 1955 (Ga. Laws 1955, pp. 625, 626) provides:
"32-908. Sessions.-It shall be the duty of the county board of education to hold a regular session between the 1st and 15th of each month at the county seat for the transaction of business pertaining to the public schools, with power to adjourn from time to time, and in absence of the president or secretary, they may appoint one of their own number to serve temporarily. The county board of education shall annually determine the date of the meeting of said board and shall publish same in the official county organ for two consecutive weeks following the setting of said date: Provided further that said date shall not be changed oftener than once in 12 months."
In reference to the question posed by you, it is my opinion that the word "date" is to be construed to mean the day of the week or month on which county board meetings are to be held to include the time for such meetings. In this regard therefore once the date, to include time, for county board meeting is established through proper board action, and between the 1st and 15th of the month and published as required by the above cited code section, then such date, to include time, cannot be subsequently changed oftener than once in 12 months.

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Assuming that the date and time of your local board meetings had been established prior to June 6, 1961, and that your board action validly changed the time for such meetings when your board was in session on June 6, 1961, then it would be my opinion that the action of your board on August 1, 1961, again changing the time for such meetings is invalid. Although I find very little legal authority in point, I feel that the decision rendered in Ellis v. Stokes, 207 Ga. 423, and the definition of the word "date" contained in Burrills Law Dictionary are indicative that the above construction of the word "date" is correct.
EDUCATION-Local Boards A member of a county board of education may not provide services for
buses owned by the Board. January 11, 1960
Honorable Claude Purcell State Superintendent of Schools
This will acknowledge receipt of your letter in which you enclose a letter from the Honorable J. W. Threatte, Lanier County Superintendent of Schools. Mr. Threatte inquires whether Mr. W. D. Murray, a new board member, may continue to provide services for buses owned by the Lanier County Board of Education.
Georgia Code Section 32-949 provides as follows: "32-949. 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." Criminal sanctions for violations of this Code Section are found in Code Section 32-9908. Under these provisions, I am of the opinion that Mr. Murray, if he continues as a member of the Lanier County Board of Education, cannot do business with the Board.
EDUCATION-Local Boards (Unofficial) Members selected by the grand jury must be freeholders at the time the
grand jury makes its presentments. March 31, 1961
Honorable Vickers Neugent In your letter you request my opinion as to the legality of a selection by the
Grand Jury of Clinch County of a member of the Board of Education of that county.
As stated in your letter, the facts are:

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The Grand Jury of Clinch County, before noon on March 6, 1961, elected as a member of the County Board of Education a citizen of the county who was not at the time a freeholder, but who was otherwise qualified for a term to begin in May, 1961. Thereafter, on the same day the citizen became a freeholder. The Grand Jury on a later date returned its presentments in which the election was reported.
The requirement that persons selected by a Grand Jury as members of a County Board of Education be freeholders is contained in Article VIII, Section V, Paragraph I of the Constitution of the State of Georgia of 1945 (Section 2-6801 Ga. Code Ann.). The same provision is contained in Code Section 32-902.
The law does not require that minutes of Grand Jury proceedings be kept. The official record of performance by a Grand Jury of its civil duties is found in the general presentments of the body signed and returned into court, and entered on the minutes.
In the case of Kerby v. Long, 116 Ga. 187, at page 188, the court says:
"The private deliberations of the grand jurors and the votes taken by them are but tentative. A conclusion reached by them, but not returned into court, may be changed upon a reconsideration of the matter. It is only by the return that it becomes the final action of the grand jury."
I am of the opinion that the foregoing quotation from the Kerby case is applicable to the set of facts now under consideration and that if the citizen was a freeholder when the presentments of the Grand Jury were returned into court, his selection is legal and valid and he is entitled to be commissioned as a member of the Board of Education.
EDUCATION-Local Boards (Unofficial)
Duties and responsibilities of members of local boards of education discussed.
July 6, 1961
Mr. J. J. Balchin
I respectfully acknowledge receipt and thank you for your letter requesting information pertaining to duties and responsibilities of members of a county board of education.
In regard to whether it is legal or proper for members of a county board of education to be related to each other, I find no provision of law touching upon this. As to the qualifications of board members, Ga. Code Ann., Sec. 32-903 provides that the Grand Jury in selecting members of the county board of education shall not select one of their own number then in session, nor any two from the same militia district or locality, nor anyone located within limits of a local independent school district, but shall elect men of good moral character, who shall have at least a fair knowledge of the elementary branches of an English education and be favorable to the common school system.

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I find no provision of law prohibiting county boards of education from meeting at night. Georgia Code Ann., Sec. 32-908 merely provides that it shall be the duty of the county board of education to hold a regular session between the 1st and 15th of each month at the county seat for the transaction of business pertaining to the public schools, with power to adjourn from time to time.
In reference to your question pertaining to board meetings and public inspection of the official proceedings of said meetings, Code Sec. 32-907 provides that the County School Superintendent shall be ex-officio secretary of the board, attend board meetings, and record in a book all their official proceedings which shall be a public record open to the inspection of any person interested therein.
In reference to your question pertaining to the distance which a school pupil may be required to walk to school, Georgia law merely provides that pupils who live beyond 1 and lh miles, according to the nearest practical route by school bus, of the school which they are eligible to attend shall be eligible to be counted as transported pupils for State-aid purposes provided such pupils are transported by school busses or other vehicles authorized by the county board of education.
You pose a number of questions regarding the legality of board members doing business with county schools or the county board of education, writing insurance on school houses and busses, selling supplies to schools, and pertaining to monetary loans obtained by county boards from banks wherein a board member is a director or stockholder. The following Code Sees. are relevant to these questions.
"32-428. No member of the State Department of Education or county school superintendent or member of the county board of education shall be financially interested in procuring and operating means or facilities for school bus transportation or in selling school buses, school bus equipment, or school bus supplies to county boards of education."
"32-949. 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."
"32-9908. Any member of any county board of education violating the provisions of section 32-949, forbidding any member of a county board of education to sell to any county board of education any supplies or equipment used, consumed, or necessary in the operation of any public school, shall be guilty of a misdemeanor and, upon conviction shall be punished as for a misdemeanor."
In reference to the above, I have ruled in past years that it is illegal for a county board of education to do business with a private enterprise, corporation or partnership either partly or wholly owned by a member of the county board of education. See Op. of Atty. Gen. 1954, pages 186-189 and 1956, page 192.

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EDUCATION-Local Boards (Unofficial)

Members of a local board of education may serve on traverse juries, but should not serve on grand juries during their term of office.

Mr. T. G. Scott, Jr.

June 22, 1961

I am pleased to acknowledge and answer your letter in which you request an opinion pertaining to the eligibility of members of the County Board of Education for jury duty under existing law.

Article VI, Section XVI, Paragraph II of the Constitution of Georgia (Ga. Code Ann. Sec. 2-5102) provides:
"The General Assembly shall provide by law for the selection of the most experienced, intelligent and upright men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors. Nevertheless, the grand jurors shall be competent to serve as traverse jurors. The General Assembly shall have the power to require jury service of women also, under such regulations as the General Assembly may prescribe."

Ga. Code Ann., Chapter 59, contains the codification of the enactments of the General Assembly of Georgia pertaining to the selection of jurors, exemptions, and their duties. Code Sec. 59-106 as amended in 1953 and 1955 (Ga. Laws 1953, Nov. Sess., pp. 284, 285; 1955, p. 247) provides for the qualifications of jurors and their selection by the board of jury commissioners. This Code Section provides, "The jury commissioners shall select from the books of the tax receiver upright and intelligent citizens to serve as jurors...." I call your attention particularly to Code Sec. 59-112 as amended in 1953 (Ga. Laws 1953, Nov. Sess., pp. 284-286 and p. 328) which section lists by classification certain persons that are exempt from all jury duty, both civil and criminal. This section, of course, applies to the traverse jury in civil and criminal cases. This Code Section does not provide any exemption from such duty for members of a county board of education. Such board of education members, therefore, unless such members as individuals come within one of the exempt classifications of the above stated Code Section, are e.ligible for service on the traverse jury in civil and criminal matters.

I further refer you however to Code Section 59-201 as amended in 1953 (Ga. Laws 1953, Nov. Sess., pp. 284, 287) which provides as follows:
"59-201. Qualifications' of grand jurors; incompetency of certain public officers to serve.-All citizens of this State, above the age of 21 years, being neither idiots, lunatics, nor insane, who have resided in the county 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 county 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."

The above Code Section establishes more stringent qualifications for grand jurors than otherwise established by law for traverse jurors and specifically provides that members of the county board of education are incompetent to serve as grand jurors during their respective terms of office.

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It is my personal and unofficial opinion that members of a county board of education are eligible and not exempted by law from serving on a traverse jury but are incompetent to serve as a grand juror during their term of office, and that the above code provisions and enactments of the Georgia Legislature do not contravene the provision of the Constitution of the State of Georgia set out above.
Members of a county board of education are not otherwise exempted or prohibited from serving on a traverse or grand jury by virtue of Section 89-103 of the Ga. Code of 1933, which section provides that, "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. . . ." In this regard I respectfully refer you to an unofficial opinion rendered by this office on November 5, 1951, (Ops. of the Atty. Gen. 1950-51, p. 274) wherein it was ruled that although a member of a county board of education is a "county officer" a member of a grand jury is not a "county officer".

EDUCATION-Local Boards (Unofficial)

The grand jury in selecting members of the county board of education may not select two from the same militia district or locality.

Miss Annie M. Grier

April 28, 1960

Receipt is acknowledged of your letter asking whether the Georgia Constitution of 1945 has been changed so that two members of the County Board of Education may reside in the same militia district if a County has more than five militia districts.

The General Assembly of Georgia in 1919, at page 321, enacted the following statute, which is now Code Section 32-903:

"The grand jury in selecting the members of the county board of education shall not select one of their own number then in session, nor shall they select any two of those selected from the same militia district or locality...."

This Code Section has not been amended or changed by the Legislature through the 1960 Session. The Georgia Constitution of 1945 in no way changed the effect of Code Section 32-903.

EDUCATION-Local Boards
A citizen resident of an independent school district is not disqualified from participating in the selection of a member of a county board of education by a Grand Jury of which he is a member.
November 2, 1961 Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge and answer your request for an official opinion on the question whether a citizen resident in an independent school district and

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a member of a forthcoming Grand Jury can participate in the Grand Jury's selection of a member of the county board of education in a county where the board members are selected by the Grand Jury.
The Constitution of Georgia of 1945, in various sections and paragraphs of Article VIII, recognizes and authorizes two types of school systems, to wit county school systems and independent school systems then in existence. Section VII, Paragraph I thereof (Code Section 2-7001) recognizes and authorizes then existing independent school systems to continue existence and operation as originally provided for by city charter or as otherwise provided for by law, but prohibits establishment of any new independent school system after ratification of said Constitution.
Insofar as county school systems, county boards of education, and the question asked by you in regard thereto are concerned, the following provisions of the Georgia Constitution and Georgia laws must be considered.
Article VIII, Section V, Paragraph I of the Georgia Constitution provides in part as follows:
"Paragraph I. Establishment and maintenance; Board of education; election, term, etc.-Authority is granted to counties to establish and maintain public schools within their limits. Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education. The Grand Jury of each county shall select from the citizens of their respective counties five freeholders, who shall constitute the County Board of Education. Said members shall be elected for the term of five years except that the first election of Board members under this Constitution shall be for such terms that will provide for the expiration of the term of one member of the County Board of Education each year. In case of a vacancy on said Board by death, resignation of a member, or from any other cause other than the expiration of such member's term of office, the Board shall by secret ballot elect his successor, who shall hold office until the next Grand Jury convenes at which time said Grand Jury shall appoint the successor member of the Board for the unexpired term. The members of the County Board of Education of such county shall be selected from that portion of the county not embraced within the territory of an independent school district."
Article VI, Section XVI, Paragraph II of the Constitution (Code Section 2-5102) provides in part as follows:
"Paragraph II. Selection of jurors.-The General Assembly shall provide by law for the selection of the most experienced, intelligent and upright men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors...."
In connection with the foregoing you will note that the General Assembly has provided, in Code Section 59-101 for the appointment of a six man Board of Jury Commissioners by the Superior Court Judge, and for their selection of members of the Grand Jury in Code Section 59-106, wihch provides in part as follows:
"The jury commissioners shall select from the books of the tax receiver upright and intelligent citizens to serve as jurors, and shall

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write the names of the persons so selected on tickets. They shall select from these a sufficient number, not exceeding two-fifths of the whole number, of the most experienced, intelligent, and upright citizens to serve as grand jurors, whose names they shall write upon other tickets...."
Insofar as the qualifications of the Grand Jury members are concerned, the General Assembly has provided in Code Section 59-201 as follows:
"59-201. Qualifications of grand jurors; incompetency of certain public officers' to serve.-All citizens of this State, above the age of 21 years, being neither idiots, lunatics, nor insane, who have resided in the county 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 county 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."
Regarding selection of members of the county board of education by the Grand Jury, please note the provisions of Code Section 32-902 which provides as follows:
"32-902. Membership in county boards.-The grand jury of each county (except those counties which are under a local system) shall, from time to time, select from the citizens of their respective counties five freeholders, who shall constitute the county board of education. Said members shall be elected for the term of four years, and shall hold their offices until their successors are elected and qualified; Provided, however, that no publisher of schoolbooks, nor any agent for such publisher, nor any person who shall be pecuniarily interested in the sale of schoolbooks, shall be eligible for election as members of any board of education or as county superintendent of schools: Provided, further, that whenever there is in a portion of any county a local school system having a board of education of its own, and receiving its pro rata of the public school fund directly from the State Superintendent of Schools, and having no dealings whatever with the county board of education, then 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 covered by such local system."
Qualifications of board members are set out in Code Section 32-903:
"32-903. Qualifications of members.-The grand jury in selecting the members of the county board of education shall not select one of their own number then in session, nor shall they select any two of those selected from the same militia district or locality, nor shall they select any person who resides within the limits of a local school system operated independent of the county board of education, but shall apportion members of the board as far as practicable over the county; they shall elect men of good moral character, who shall have at least a fair knowledge of the elementary branches of an English education and be favorable to the common school system. Whenever a member of the board of education moves his residence into a militia district where another member of the

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board resides, or into a district or municipality that has an independent local school system, the member changing his residence shall immediately cease to be on the board and the vacancy shall be filled as required by law."
(To the extent that provisiOns of the foregoing Code Section 32-902 and 32-903 conflict with Article VIII, Section V, Paragraph I of the Constitution, the latter constitutional provision controls, but such conflict does not otherwise render other provisions contained in said code sections invalid. See McCollum v. Bass, 201 Ga. 537 and Harrison v. Anderson, 207 Ga. 759.)
From the foregoing provisions of Georgia law and the Georgia Constitution it is quite clear that a citizen resident within an independent school district can not be a member of a county board of education. See Ops. of the Atty. Gen. 1954, p. 174. Many counties have adopted a local constitutional amendment providing for election of the county board members by the voters within the county school district. In such cases, citizens resident within an independent school district can not vote for such board members in such elections. See Ops. of the Atty. Gen. 1954, p. 175. For comparison purposes it might be further noted that a citizen resident within an independent school district could not vote in an election held for the purpose of electing a county school superintendent. See Code Section 32-1002 and Ops. of the Attorney General 1954, p. 194-197.
In light of the foregoing it appears somewhat incongruous for a citizen resident within an independent school district, he being a member of a county grand jury, to be permitted to participate as a grand juror in the selection of a county board of education member, but I am nevertheless compelled to the conclusion that there is no legal disqualification, exemption or incompetency provided for in law prohibiting such participation.
From the foregoing constitutional and statutory proviSIOns of law it seems clear to me that the framers thereof contemplated the question and resolved that such person might serve on a grand jury without being disqualified, exempt or declared incompetent, except as may be provided by the Legislature. The Constitution manifestly provides that such county, exclusive of an independent school district, shall compose one school district confined to control and management of a county board of education whose members are selected from the county not within the independent school district but by a grand jury whose membership is not confined in such a territorial manner. The same is true of the foregoing code sections providing for selection and qualifications of grand jurors and selection of county board members. Clearly the framers must have been cognizant of the fact that grand jury members are selected from the entire county at large.

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EDUCATION-Local Boards (Unofficial)
A grand jury may not vary the term of a member during his appointment.
June 23, 1961
Mr. A. C. Dickey
I am pleased to acknowledge and answer your request for an opinion regarding the appointment of a member of the county board of education.
In your letter you state that the Putnam County Grand Jury meets on the third Monday in September and March of each year; that the term of office of a member of the Putnam County Board of Education will expire on March 15, 1962, four days before the March meeting of your Grand Jury; that by law this upcoming vacancy must be filled by the September Grand Jury, and you ask whether or not the September Grand Jury can provide that the next five-year term of said member shall run until April 1, 1967, so as to enable a future vacancy to be filled by a March Grand Jury rather than a September Grand Jury.
Georgia Code Annotated, Section 32-902 (Ga. Laws 1919, page 320) provides as follows:
"The grand jury of each county (except those counties which are under a local system) shall, from time to time, select from the citizens of their respective counties five free holders, who shall constitute the County Board of Education. Said members shall be elected for the term of four years and shall hold their offices until their successors are elected and qualified."
The Constitution of Georgia adopted in 1945 provides, in Article VIII, Section V, Paragraph I (Ga. Code Ann., Section 2-6801), as follows:
"... The Grand Jury of each county shall select from the citizens of their respective counties five free holders, who shall constitute the County Board of Education. Said members shall be elected for the term of five years except that the first election of Board members under this Constitution shall be for such terms that will provide for the expiration of the term of one member of the County Board of Education each year."
The above constitutional provision, to the extent that it conflicts with the above code section, supersedes the terms thereof, and said code section must be read in conjunction with and pursuant to said constitutional provision. McCollum v. Bass, 201 Ga. 537.
You will note that neither of the above proviSIOns of law established any particular date for the commencement or ending of the term of office of any member of a County Board of Education. Subsequent to adoption of the Constitution of 1945, which increased the term of office of Board of Education members from four to five years, questions arose regarding expiration dates of the then four-year terms then in existence, the commencement dates of new five-year terms of office, and the procedure whereby appointments for five-year terms under the above constitutional provision could be made so that the term of office of one member of the five member County Board of Education would expire each year.

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On August 29, 1945 this office, on request of the State Superintendent of Schools, rendered an official opinion regarding the above matters, as follows:
"The Grand Jury of the county is the appointing power of officers to fill the membership of the county board of education. The Constitution does not name any time for the beginning or expiration of any member to be appointed to succeed the present membership of the county board of education. There is no statute fixing the date for the commencement or ending of the term of any member. The Grand Jury of the county, the appointing power under the statute and Constitution, is clothed with the power to fix the beginning and ending of the term of the first appointees made after the adoption of the Constitution and thereafter all subsequent terms are to conform with the beginning of the term of the first appointee. The courts of our State in a number of cases have declared that the appointing power is clothed with such power. See Talmadge, commissioner, et al. v. Cordell, vice versa, 167 Ga. 594 (4).
"Under the authority cited above it is my opinion that the Grand Jury should take into consideration the existing terms of the present members of their county boards of education and at the end of the terms for which they. are commissioned make their appointment so as to put into effect the provisions of the Constitution that the term of one member shall expire each year. No perfect formula can be given which will apply to each county in the State. If the first member appointed after the adoption of the Constitution and the appointment is made during the present year to expire in 1950, the next appointment should be made to expire in 1951 and so on."
The above ruling was based on principles set forth in Talmad.ge v. Cordell,
Supra, McCleskey v. Zimmer, 144 Ga. 834, and Thoop. on Public Officers, Section 318.
In the McCleskey case, the Supreme Court of Georgia stated:
"A term of office is for a definite time; it remains invariable, always the same, and is not subject in its duration to the wishes or agreements of any person whomsoever; while tenure of office may be terminated by his resignation and his acceptance. During one term there may be several
tenures, but there can not be several terms in one tenure. * * * In some
jurisdictions it has been held that in the case of appointive offices the beginning of the term of the first appointee determines the limits of the
terms of successive appointees. * * * The underlying reason is, that the
appointive power, in the absence of legislation fixing the beginning of the term, is delegated with the power to fix the beginning of the term of the first appointee; and that thereafter all subsequent terms are governed by the beginning of the term of the first appointee."
You state in your letter that the term of office of the Putnam County Board of Education member that is here in question will expire on March 15, 1962. In conformance with the above authorities cited, I must assume that the term of this particular Board of Education position was, subsequent to adoption of the Constitution of 1945, first made to commence on March 15. If this is true, then all five-year terms of office for this particular Board of Education position must commence on March 15 of the appropriate year involved, and run for a period of five years subsequent thereto.

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I find no provision in the law whereby a County Grand Jury can elect a member to the County Board of Education, commencing with the expiration of a preceding member's term of office, for a period of time either greater or less than that prescribed by law. The Constitution of Georgia requires that Board of Education members be elected for a term of five years and this provision must be strictly construed and applied by County Grand Juries, and in conformance with the commencement of the term of office of the first appointee made to such Board position subsequent to adoption of the 1945 Constitution.
I call your attention to the decision of the Supreme Court in Conley v. Brophy, 207 Ga. 30, involving an oppointment of trustees by a County Board of Education under Georgia Code, Annotated, Section 32-1104, wherein the Court held that a term of office fixed by statute cannot in any manner be changed by the appointing power, and that a Board's attempt to make an appointment for a one-year period rather than for four years as required by law was not authorized. I likewise refer you to Stephenson v. Powell, 169 Ga. 406, wherein the Supreme Court held that a commission issued by the Governor to a duly elected member of a County Board of Education, stating a term of office and a designated date of expiration, does not prevent the Court from looking behind the commission and determining when the term of such officer legally begins and ends.
It is my personal and unofficial opinion that your September Grand Jury cannot vary the established terms of office of members of your County Board of Education, but must adhere to same in accordance with the principles set forth above.
EDUCATION-Local Boards (Unofficial)
A county board of education cannot deny a pupil right to attend public schools because pupil is married.
August 10, 1960
Mr. Marcus B. Calhoun
On February 3, 1955, the Attorney General rendered an opinion holding that a local Board of Education cannot deny a pupil the right to continue attending the public schools of Georgia on the ground that said pupil was married. (Opinions of the Attorney General 1954-56, p. 276).
In a more recent opinion to Dr. Claude Purcell, State Superintendent of Schools, dated June 9, 1958, I find the following language:
"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 extracurricular activities merely on the basis of marriage alone."

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EDUCATION-Local Boards (Unofficial)
Board may purchase insurance from the wife of a member of the board when there is no direct or indirect benefit gained by the member.
October 6, 1961
Mr. Peyton Miles
I am pleased to acknowledge your letter in which you request an unofficial opinion in regard to a question which, from the statements made in your letter, might be worded as follows:
Is it illegal under Code Section 32-949 for a county board of education to obtain insurance on county school property from an insurance agent who is the wife of a member of the county board of education, and who owns and operates the insurance agency through which such property insurance is acquired?
You state further that the subject board member, husband of the insurance agent, is himself a licensed insurance agent but that he received no commission or fee on the subject transactions between his wife and the county board of education. It will be further assumed that the county board member has no legal right to directly or indirectly receive, share and/or participate in the distribution or the use of the commissions earned by his wife in these particular transactions or the overall pecuniary net profits of the insurance agency itself, and that the only benefits received by him by virtue of the operation of said business by his wife are those gained solely through commissions or fees earned on insurance business written by himself as a licensed agent. The following is premised on the foregoing facts and assumptions.
Georgia Code Annotated, Section 32-949, provides:
"Sale of supplies or equipment by members of county board of Education, for public school use, prohibited.-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."
Code Section 32-9908 provides criminal penalties for those violating the foregoing code section.
The foregoing code sections cited by you and quoted above are not applicable however to the situation presented and questions asked by you. Code Section 32-949 is limited in its application to the sale of "supplies and equipment" to schools or school systems and has been construed by this office as being not applicable to the sale or procurement of "insurance" on school property. See Opinions of the Attorney General 1956, p. 192.
Foregoing further consideration therefore of the above cited code sections, there are other code sections contained in the Georgia Code, and certain established common law principals of force in this State, which should be considered by you, your local board and individual board members in connection with the above type transactions, and any future similar transactions, for what light they may shed and guidance grant. Statutory provisions of law, though possibly not directly applicable to county offices or officers of political subdivisions, might at

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some time come to influence the interpretation and application of established common law principles which are applicable to public officers in the latter category. In this regard you might consider provisions contained in the Georgia Code, Title 26, Chapter 50, and Title 89, Chapter 9 in particular. One particular code section coming within this category, which might be considered as being potentially applicable to the above factual situation, is Section 23-1713, which provides:
"Certain purchases p,rohibited.--No ordinary, county commissioner, board of county commissioners, or any other county officer authorized or empowered by law to use public or county funds for the purchase of goods or property of any kind for public or county purposes, shall purchase said goods or property from any store in which he is an employee, or in which he is directly or indirectly interested, or from any person or partnership of which he is a member, or by whom he is employed, unless by sanction of the majority of the board of county commissioners of the county, or unless it shall be made clearly to appear that the said individual, partnership or owner of the store offers and will sell the goods or property as cheap as or cheaper than it can be bought elsewhere."
The term "goods or property" is somewhat broader than the term "supplies and equipment" contained in Code Section 32-949. This is the only closely relevant code section which I have found that contains within it the words "directly or indirectly interested", which latter two words could be very broadly construed. Insofar as the last quoted code section is concerned, the Supreme Court of Georgia has held that a county board of education is a political subdivision of the State and an agency through which the county acts in school matters, Board of Education of Candler County et al. v. Southern Michigan National Bank, 184 Ga. 641, and that the members composing said board of education are "public officers." Clarke et al. v. Long et al., 152 Ga. 619.
Also worthy of note is the following prov1s1on of the State Constitution, Article VII, Section III, Paragraph VI (Code Section 2-5606):
"Profit on public money.-The receiving, directly or indirectly, by any officer of State or county, or member or officer of the General Assembly of any interest, profits or perquisites, arising from the use or loan of public funds in his hands or moneys to be raised through his agency for State or county purposes, shall be deemed a felony, and punishable as may be prescribed by law, a part of which punishment shall be a disqualification from holding office."
To the extent that the subject board member is or may become directly or indirectly interested in the operation of his wife's insurance business while a member of the county board of education, certain established principles. applicable to statutes such as the foregoing should be considered. In 47 American Jurisprudence, Section 49, pp. 330, 331, it is said:
"... Where the statute makes it illegal for the school officer to be 'directly or indirectly' interested, relationship to a contracting party has been held not a disqualifying interest. But interest in a partnership or corporation contracting with the school district has been held to constitute an indirect interest within the meaning of such ,a statute."
See also Thompson v. School District, 252 Mich. 629, 233 N. W. 439.

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Regardless of the foregoing statutory and constitutional provisiOns of law, the common law courts did long ago fashion a body of common law applicable to public officers and conflicts between their private interests and performance of their public duties. Illustrative of the fact that public duties are first to be enforced and esteemed wherever such conflicts may occur is the provision contained in Article I, Section I, Paragraph I of our State Constitution (Code Section 2-101), to wit:
"Origin and foundation of government.-All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are the trustees and servants of the people, and at all times, amenable to them."
The case of Ha.rdy v. Gainesville, 121 Ga. 327, held that "a stockholder in a private corporation clearly has an interest in its contracts; and if the city can not make a contract with the officer himself, it can not make it with a corporation in which such officer is a stockholder." Montgomery v. Atlanta, 162 Ga. 534.
Georgia has always followed the common-law rule that no public agent may take a profit out of public business entrusted to his care. Hulgan v. Gledhill, 207 Ga. 349; Trainer v. City of Covington, 183 Ga. 759. Any such contract is invalid, although the official did not vote for its approval or exercise his influence in procuring other officials to vote for its approval and although it is fair and free from fraud and was based on the lowest and most advantageous bid submitted. Trainer v. City of Covington, 183 Ga. 759; Montgomery v. Atlanta, 162 Ga. 534; Twiggs v. Wingfield, 147 Ga. 790; Hardy v. Gainesville, 121 Ga. 327; Mayor & C. of Macon v. Huff, 60 Ga. 221.
See further, along this line, the statement of principles contained in 67 C.J.S. Section 116, page 406.
Based upon the foregoing principles of law, the above stated facts and assumptions made, the assumption that the contract and board action thereon was proper and is valid in other respects, then I am of the opinion that no clear violation of statute law exists in the premises, being mindful of the fact that the difference between violation and nonviolation of the law within such areas of inquiry is often, particularly as to common law liability, a question of degree only and dependent upon every act, influence. and surrounding circumstance. Any change in the aforestated facts might well invalidate such insurance contract and/or create liability.
The standard of responsibility for public officers is, in the final analysis, generally dependent upon and dictated by sound considerations of public policy. As stated in our Constitution, "Public officers are the trustees and servants of the people, and at all times amenable to them." We must always be mindful of this.

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EDUCATION-Local Boards
Discussion of levies on local boards or school superintendents for Federal Income Taxes owed by a teacher.
July 6, 1961
Dr. Claude Purcell State Superintendent of Schools
The question of whether the Federal government might properly make a levy on a county board of education or county school superintendent for payment from the salary of a county school teacher of Federal Income Taxes owed by such school teacher has arisen on other occasions. I communicated with the United States Treasury Department in regard to this matter in 1958 and was furnished a copy of a Treasury Department opinion in regard thereto. This opinion upheld the Treasury Department position that political subdivisions of a state are legally bound to honor a Notice of Levy served by the Federal government in an attempt to collect unpaid taxes from the accrued salaries or wages of employees.
I do not at all concede the correctness of the Treasury Department opinion, but at the present time I am not prepared to take a position in favor of or against the stated opinion. The Treasury Department states that although such levies are filed and made, it is Department policy subsequent to the filing thereof to make every attempt to resolve such tax problems by then obtaining cooperation of all parties concerned, and that they have been very successful in reaching such mutually satisfactory arrangements. In light of this policy, I respectfully suggest that Mr. Guill, in conjunction with the teacher involved and Federal authorities, attempt to reach such a satisfactory solution in this case. See opinion of the Attorney General dated April 3, 1958.
EDUCATION-School Buses (Unofficial)
Payment of school bus drivers discussed.
June 7, 1960
Mr. W. A. Dixon
You state that all Glascock County school buses are privately owned, and that under contract the owners received a minimum of $223.00 per month.
The 1958 Act which you refer to is in part as follows:
"The State Board of Education shall annually fix a schedule of minimum salaries which shall be paid to the drivers of school buses in all counties of the State. Said schedule of minimum salaries shall apply to drivers of all types of ownership, joint, private or county. This schepule of minimum salaries shall be determined annually and shall not be less than $100.00 per month for ten (10) months. This salary schedule shall be uniform for all bus drivers of a 24 passenger bus and over, and shall be considered separate and apart from the expenses in purchasing,

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maintaining and operating the vehicle itself. The said minimum salary schedule shall not apply to the drivers of cars and other vehicle of less capacity than a 24 passenger bus. County school authorities shall not pay to any bus operator in its employment operating a 24 passenger bus or over, a salary less than the minimum salary prescribed by the State Board of Education as provided above. County school authorities may supplement the salaries of any of its bus operators. Notwithstanding any of the provisions of this Act to the contrary, that upon the passage and approval of this Act, 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 $100.00 per month for ten (10) months whichever is greater; and all contract school bus drivers, joint ownership or otherwise, shall continue to receive as a minimum salary the amount paid during the 1956-5:7 school year. Provided, further however, that no driver of either joint, private or county owned school buses shall receive less than $100.00 for the tenth month." (Emphasis added.)
As you will note from the emphasized language in the next to last sentence, contract school bus drivers shall continue to receive as a minimum salary the amount paid during the 1956-57 school year. Then, after this language the legislature saw fit to use the following language: "Provided, further however, that no driver of ... private ... school buses shall receive less than $100.00 for the tenth month."
It would appear that it was the intention of the General Assembly that in addition to what a contract bus driver was receiving under his 1956-57 contract, he was to receive an addition of $100.00 for the tenth month.
This law was again amended in 1960 (Ga. Laws 1960, p. 770). I might suggest that in considering your 1960-61 contracts, you might study this 1960 amendment as it provides for payment of $100.00 for the tenth, eleventh and twelfth months.
EDUCATION-School Buses
Discussion of school bus driver salaries under the Appropriations Act of 1961.
July 11, 1961
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge and answer your request for an opinion pertaining to bus drivers' salaries to be paid under the Appropriations Act of 1961.
Georgia Code Ann., Section 32-611, and the fifth unnumbered paragraph thereof as amended by the Acts of 1957, p. 380 and 1958, p. 329, provides in part as follows:
"32-611. Calculation of amount of funds made to P'ay expenses of transporting pupils.
* * *
The State Board of Education shall annually fix a schedule of

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mmrmum salaries which shall be paid to the drivers of school buses in all counties of the State. Said schedule of minimum salaries shall apply to drivers of all types of ownership, joint, private or county. This schedule of minimum salaries shall be determined annually and shall not be less than $100 per month for 10 months. This salary schedule shall be uniform for all bus drivers of a 24 passenger bus and over, and shall be considered separate and apart from the expense of purchasing, maintaining and operating the vehicle itself. The said minimum salary schedule shall not apply to the drivers of cars and other vehicle of less capacity than a 24 passenger bus. County school authorities shall not pay to any bus operator in its employment operating a 24 passenger bus or over, a salary less than the minimum sal:;try prescribed by the State Board of Education as provided above. County school authorities may supplement the salaries of any of its bus operators. Notwithstanding any of the provisions of this Chapter to the contrary, that upon the passage and approval of this Chapter, 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 per month for 10 months whichever is greater; and all contract school bus drivers, joint ownership or otherwise, shall continue to receive as a minimum salary the amount paid during the 1956-57 school year: Provided, further however, that no driver of either joint, private or county owned school buses shall receive less than $100 for the lOth month."
Section 2 of the above Act provided that said Act "Shall become effective when and if funds are available." This provision meant that the Act was to become effective in its entirety only when funds were available and that absent the availability of funds the Act would not become effective at all. See, in this regard, Op. of the Atty. Gen. 1957, p. 112. Subsequent to the passage and approval of said Act funds did become available and the provisions of said Act thereby became effective.
In 1960 the State Legislature amended the aqove stated paragraph of Code Section 32-611 by striking therefrom the word and figure "ten (10)" and inserting in lieu thereof the word and figure "twelve (12) ", and by striking the word "tenth" and inserting in lieu thereof the words "tenth, eleventh and twelfth." See Ga. Laws 1960, p. 770.
The effect of the 1960 amendment to Code Section 32-611 was to provide that the minimum bus driver salary to be established by the Board of Education pursuant to the provisions thereof was to be not less than $100 per month for a period of 12 months rather than 10 months, or the salary for the basic period stated, whichever was the greater, and that all bus drivers were to receive not less than $100 per month for the lOth, 11th and 12th months of the school year.
Section 3a of the 1960 Act amending Code Section 32-611 provided that said Act was "To become effective when and if funds were available." I am now informed that during the 1960-61 school year funds did not become available to effectuate the above provisions of the Act of 1960.
The State General Assembly, in the annual Appropriations Act of 1961 (Ga. Laws 1961, p. 356), provided as follows:
"Be it enacted ... that the sums of money hereinafter set out are appropriated for the fiscal year beginning July 1, 1961 and ending

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June 30, 1962 and for each and every fiscal year thereafter until repealed or modified by law."

EDUCATION

* * *
$184,000,000.00

"Provided further that the State Board of Education, in making the allotment of funds to be paid to the local school systems shall allot sufficient money for the fiscal year beginning July 1, 1961 ... to pay each local school system the amount of funds required to pay each school bus driver employed by each local school system a salary increase of $200 per year, effective July 1, 1961."

In light of the above. farts, the above enactments of the State Legislature, and the sequence in which such enactments came about, it is my opinion that the State Legislature in specifically providing in the General Appropriations Act of 1961 for a school bus drivers' salary increase of $200 per year effective July 1, 1961, and in specifically allotting necessary funds therefor, intended to effectuate the above stated provisions of the 1960 amendment of Code Section 32-611. Inasmuch as funds are now available, by specific appropriation, to effectuate the 1960 amendment, Code Section 32-611 as amended by the 1960 amendment is now, in my opinion, the effective and controlling law regarding establishment of a schedule of minimum bus drivers' salaries throughout the State.

In reference to your specific question, the State Department of Education must apply Code Section 32-611 as amended, and as effectuated by the 1961 General Appropriations Act, and must establish a schedule of minimum salaries in conformance therewith and allot such necessary funds to local units of administration. Code Section 32-611 provides that local units of administration may supplement these minimum school bus drivers' salaries, but neither this section nor any other provision of State law requires such local units of administration to supplement such salaries or maintain such supplements once established. They may supplement such salaries to the extent deemed necessary or advisable, but will be in conformance with the law so long as they comply with the minimum salary schedule prepared by the State Department of Education in conformance with the above code section.

EDUCATION-School Buses
Ordinary medical payment insurance does not satisfy the requirement of insurance for school buses unless the policy provides for both bodily injury and death coverage.
October 4, 1961
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge and answer your letter wherein you request an official opinion regarding the type and amount of insurance local school boards are required to obtain under Ga. Code Section 32-429, and whether or not regular medical payment insurance satisfies the requirements of this code

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section. I note that it is also stated in the letter to you from a local school board, a copy of which was attached to your request, that that particular school board has not been able to purchase liability insurance that will insure against bodily injury or death to school bus passenger children resulting from a school bus accident wherein the operator of the school bus was not himself negligent.
Georgia Code Annotated, Section 32-429 (Ga. Laws 1949, p. 1155) provides:
"Liability insurance on school buses; requirement; amount.-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."
The foregoing code section answers both questions asked regarding the type and the amount of insurance required under said code section. By terms of the foregoing code section, all county and independent school systems are required to obtain insurance coverage on school children riding school busses to and from school. Said insurance must insure said school children against both bodily injury and/or death which might result from any accident or collision in which such school bus may become involved. These provisions of the code are mandatory-they are not merely permissive, and no discretion in regard thereto is vested in local boards of education. Insofar as the amount of insurance to be obtained is concerned however, the last sentence of the foregoing code section does vest discretion as to this matter in the local boards of education. The legislative intent and desire in this regard must have been that local boards of education should and would provide that amount of insurance protection, in the respects required, as ordinarily prudent men would deem necessary and advisable after considering all surrounding circumstances, to include of course financial ability of the individual local school system, bearing in mind that by law such insurance is required to some extent. The premium for such insurance is to be paid by the local board as to county or system owned school buses, and by the owner of privately owned school buses privately operated for and pursuant to contract with local systems. Ga. Code, Section 32-429. The insurance coverage required by Code Section 32-429 above is to be effective and is to insure against bodily injury or death resulting from any school bus accident or collision, whether or not the driver or operator thereof is or is not in any manner negligent in regard thereto. Where the provisions of a policy of insurance issued pursuant to these laws reads contrary to the requirements of said laws, said requirements are read into the policy of insurance by operation of law. See, in this regard, the authorities quoted below. Pursuant to the above, I am of the opinion that ordinary medical payment insurance does not satisfy the requirement of Code Section 32-429 unless the policy of insurance provides for both bodily injury and death coverage.
The foregoing is in accordance with and based upon a number of recent court decisions rendered interpreting Code Section 32-429. Please see, General Accident, Fire & Life Assurance Corporation v. Fountain, 100 Ga. App. 802; State Farm Mutual Automobile Ins. Co. v. Jones, 98 Ga. App. 46; Cotton States Mutual Ins. Co. v. Tabor, 100 Ga. App. 844; Jones v. State Farm Mutual Auto-

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mobile Ins. Co., 100 Ga. App. 727; Cotton States Mutual Ins. Co. v. Keefe, 100 Ga. 715. In the Fountain case, the Court of Appeals held:
"1. Under the provisions of Section 1 of the 1949 act of the General Assembly (Ga. L. 1949, p. 1155), it became mandatory upon the members of the Board of Education for the City of Savannah and the County of Chatham to cause policies of insurance to be issued insuring school children riding to and from school in school buses. The law presumes that the members of said board of education did their duty under the mandate of said act.
"2. Wherever the language or provisions in an insurance policy are in conflict with the language or provisions of the act of the legislature, which required the purchase of the insurance policy, the language or provisions of the act take precedence, and must prevail over the policy.
"3. Where, as in this case, the language used conclusively shows that the legislature intended to require the various school boards to insure the school children against injuries while being transported to and from school regardless of whether there be negligence on the part of the school employees, agents or servants in the operation of the school buses, the policy of insurance so issued is an accident policy and not a liability policy."
EDUCATION~School Districts
A school district is not liable in tort for injuries to students except to the extent insurance has been procured under the provisions of Georgia law.
January 4, 1960
Honorable Claude Purcell State Superintendent of Schools
This will acknowledge receipt of your letter concerning public school liability insurance. You made reference to litigation pending in the courts relative to this matter and then stated that you understand that certain insurance companies have refused to pay losses until the plaintiff files suit.
I am not aware of which particular cases are involved in this matter. I have examined the case of General Accident Fire and Life Assurance Corporation v. Fountaine, decided by the Court of Appeals November 13, 1959, but this appears to be a different subject matter. If you could furnish me with citations to the pending litigation, I would be glad to review them and advise you on their contents.
With reference to the general questions which you asked, a school district is not liable in tort for injuries to students except to the extent that insurance has been procured therefor under the provisions of Georgia Code, Sections 32-429 through 32-433. Under these Sections, a school district is required to secure insurance covering school children riding on school buses to and from school

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against bodily injury. Also, a school board is authorized, but not required, to secure additional insurance to cover members of the general public who are injured as a result of negligent operation of school buses.
EDUCATION~School Funds
Discussion of use of school funds for maintenance and operations of lunchrooms by independent school systems.
July 13, 1961
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge receipt of and answer your request for an opinion relative to authority of independent city school systems to use State and local funds for maintenance and operation of school lunchrooms, particularly under the 1960 constitutional amendment.
You will recall that I have rendered your office a number of opinions relating to this matter during past years, dating from November 8, 1937 to September 15, 1958. Each of these opinions stated as follows:
"Article VII, Section II, Paragraph I of the Constitution of 1945 authorizes the State to levy taxes 'for educational purposes.' Article VII, Section IV, Paragraph I 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 opinion that the providing of school lunches for children is not included within the quoted Constitutional language.''
In an unofficial opinion rendered July 22, 1958, this office held that "It is illegal to use public funds for the purpose of purchasing supplies or employing personnel for school lunchrooms in the public school.''
The 1958 General Assembly proposed two constitutional amendments, to wit House Resolutions 165-519b and 164-519a, which would have, respectively, empowered the General Assembly "to authorize any county the right to levy a tax for school lunch purposes" and which would have extended "the power of taxation over the whole State exercised by the General Assembly to include a tax for school lunch purposes.'' (Ga. Laws 1958, pp. 428 and 563). At the same time the General Assembly passed an Act to amend Code Section 92-3701, relating to the purposes for which counties may levy taxes so as to authorize counties to levy a tax for school lunch purposes, by which the following provision was included in said code section: (Ga. Laws 1958, p. 370),
"3. For educational purposes, including school lunch purposes, upon property located outside of independent school systems, as provided in Article VIII of the Constitution of Georgia, as amended.''
During the off-year election held in 1958 the electors of this State defeated both proposed constitutional amendments.

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During the 1960 Session of the General Assembly, the General Assembly proposed one constitutional amendment so as to empower the General Assembly to authorize any county the right to use public funds for school lunchroom purposes. This proposed amendment provided that Article VII, Section IV, Paragraph I of the Constitution of 1945 be amended by adding at the end thereof a new subparagraph to read as follows:
"Subparagraph 17. For school lunchroom purposes."
This proposed constitutional amendment was adopted by a substantial majority of the electorate in the 1960 general election.
You will note that each of the provisions of the State Constitution and code sections referred to above specifically refer to the levying of taxes "for educational purposes upon property located outside of independent school systems." It is my opinion that none of these provisions. relate to the operations of independent school systems and that the most recent constitutional amendment referred to above, enabling the General Assembly to authorize counties to use public funds for school lunch purposes, does not confer any authority or enable the General Assembly to confer any authority upon independent school systems to use public funds for such purposes.
You will recall that Article VIII, Section X, Paragraph I of the State Constitution (Code Section 2-7301) provides that the Constitution of 1945 shall not affect public school systems established prior to the adoption of the Constitution of 1877, and that Article VIII, Section VII, Paragraph I of the Constitution of 1945 (Code Section 2-7001) provides further that municipal corporations may continue to maintain then existing independent school systems and support the same as authorized by special or general law. See Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323. I know of no general law applicable to and authorizing independent school systems to use school or education funds for school lunchroom purposes. Whether or not any of the existing 39 independent systems might use such funds for such purposes can best be determined by the attorney for each system checking special laws applicable thereto and city charters controlling the operation of such schools.
EDUCATION~School Funds
School funds are not to be used to pay premiums for workmen's compensation insurance on public school employees.
November 21, 1961
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge and answer your request for an opmwn regarding legality of a local board of education expending public school funds in payment of workmen's compensation insurance premiums on public school employees.
The definition of the term "employer" contained in the original Workmen's Compensation Act (Ga. Laws 1920, p. 167, Code Section 114-101) was held

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unconstitutional insofar as the same related to counties for the reason that the State Constitution did not, at that time, authorize counties to levy taxes for such purposes. See Floyd County v. Scoggins, 164 Ga. 485, and Kelly v. County of Newton, 198 Ga. 483 (1). The 1945 Constitution subsequently adopted specifically provided authority for the General Assembly to delegate to any county the authority to levy taxes for payment of workmen's compensation insurance coverage on county officers and employees. See, in this regard, Code Section 2-5701. The General Assembly subsequently passed enabling legislation putting into effect the constitutional taxing provisions applicable to counties, providing in Code Section 92-3701, in part, as follows: (See Ga. Laws 1946, p. 87.)
"Purposes of county tax in generaL-County taxes may be levied and collected for the following purposes:
* * *
"3. For educational purposes, including school lunch purposes, upon property located outside of independent school systems, as provided in Article VIII (Section 2-6401 et seq.) of the Constitution of Georgia as amended.
* * *
"15. To provide for workmen's compensation and retirement or pension funds for officers and employees."
Due to the decisions rendered in the aforementioned cases, subsequent case history of the Workmen's Compensation Act, and particularly the decision rendered in Commissioners of Fulton County v. Davis, 213 Ga. 792, the 1958 General Assembly amended the Workmen's Compensation Act, Code Section 114-101,
defining the term "employer", so as to reinstate or otherwise include in such
definition the phrase "each county within this State." In light of such legislative action this office has ruled, in an opinion rendered the Honorable Richard W. Best, on June 16, 1958, that counties are now subject to the Workmen's Compensation Act, and included in the definition of the term "employer," and that county officers and employees must be provided workmen's compensation insurance protection.
The Supreme Court has held on numerous occasions that a local board of education is merely the designated agency through which a county acts in its school matters. See Board of Education v. Southern Michigan 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. Public School employees, or employees of a local board of education, are in fact, therefore, to be considered as being employees of the county in some respects and as such they are now covered by the Workmen's Compensation Act (Code Section 114-101) in the same manner as are other county employees. The premiums to be paid for workmen's compensation insurance for public school employees cannot, however, be paid out of education funds but must be paid out of general tax funds raised by the county under the foregoing constitutional provision and Code Section 92-3701 (15). In Murphy v. Constitution Indemnity Co. et. al., 172 Ga. 378, the Supreme Court held that the constitutional provision and applicable statutory provisions authorizing a county to tax for "educational purposes" does not authorize a county to levy a tax for the purpose of providing workmen's compensation insurance coverage to public school employees. 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

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Co. v. Butler, 154 Ga. 569 and Pace v. County Board of Education, 150 Ga. 777, 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 provisions of law establishing authority in counties to levy a tax for the purpose of providing workmen's compensation insurance coverage on county officers and employees, as now found in the Constitution of 1945 as amended and the aforementioned statutory provisions, do not in any way change or affect the decision rendered by the Supreme Court in the Murphy case. Further, Code Sections 32-942 and 94-3708 likewise specifically provide that public school funds cannot be used for any purpose other than school purposes and, in accordance with the Murp,hy case, expenditures for workmen's compensation insurance purposes do not constitute expenditures for public school or educational purposes. The Murphy case does nothing more than follow the well-established principle of law that taxes levied in accordance with constitutional authority authorizing levy of a tax for a specific enumerated purpose cannot be expended for any purpose other than such enumerated purpose. Atlanta Chamber of Commerce v. McRae, 174 Ga. 590; Burke v. Wheeler County, 54 Ga. App. 81.
In view of the foregoing, I am of the opinion that legal responsibility for complying with the Workmen's Compensation Act, insofar as the same applies to employees of local county school system or county board of education, rests with the governing authority of the county in which such school system is located, generally the board of commissioners of roads and revenues, and not with the local county board of education. As to such county employees, the governing authority of the county should provide the required workmen's compensation insurance coverage and provide for payment of the premiums thereon from taxes levied and raised pursuant to Code Section 92-3701 (15). See Opinions of the Attorney General 1958, to Honorable James Findley dated August 22, 1958, and Opinions of the Attorney General 1959 to Honorable Claude Purcell dated May 29 and July 15, 1959.
EDUCATION-School Property (Unofficial)
Lease of school property by local boards of education discussed.
July 11, 1961
Honorable W. M. Murrah
I am pleased to acknowledge receipt of and answer your request for an opinion pertaining to a lease of school property by the Stewart County Board of Education and the obtaining of insurance thereon.
In reference to leasing of a school building by the County Board of Education in and from the city of Richland, the Court of Appeals in Burke v. Wheeler County, 54 Ga. App. 81, stated that "public funds cannot be expended unless such expenditure is authorized by law, and money belonging to the public school fund cannot be used for any purpose other than school purposes." See Ga. Code Ann., Sections 32-942 and 92-3708.

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Article VII, Section VI, Paragraph I (A) of the Constitution of 1945 (Ga. Code Ann., Sec. 2-5901) provides that a county may contract with another county or city for any period not exceeding 50 years for the use by the county or city for the residents thereof of any facilities or services of the county or city, provided such contracts shall deal with such activities and transactions as such counties and cities are by law authorized to undertake. The Supreme Court, in Walker v. McKenzie, 209 Ga. 63 and in Sheffield v. State School Building Authority, 208 Ga. 575, held that the above authority vested in counties included county boards of education.
Georgia Code Ann., Section 32-909 provides in part as follows:
"The county boards of education shall have the power to purchase, lease, or rent school sites; build, repair or rent school houses . . . and make all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title, care and custody of all school houses or other property . . . with power to control the same in such manner as they think will best serve the interest of the common schools. . . ."
Under the authority of the above provisions of law, it is clear that a county board of education has the authority to lease or rent such school sites and/or school houses for educational purposes as may, in their discretion be deemed necessary for the efficient operation of county schools. See Op. of the Atty. Gen. 1950, p. 39.
In regard to expenditure of tax funds for the purpose of insuring school property, to wit materials, supplies and equipment owned by the county board and located on such leased premises, this office has consistently ruled that such an expenditure is one for "school purposes" or "educational purposes" under the above provisions of law. See Op. of the Atty. Gen. 1957, p. 99 and 1955, p. 261.
In regard to the expenditure of school tax funds for the repair, maintenance and \!Pkeep of leased premises, this office has ruled that such an expenditure is one for school or educational purposes under the above provisions of law and is authorized under the provisions of Code Section 32-909 set out above. See Op. of the Atty. Gen. 1948, p. 112. I do not believe however that it is legal for county school funds to be expended for the purpose of paying insurance premiums on school buildings owned by and leased from a city, as was ruled in an official opinion rendered to Dr. M. D. Collins, then State Superintendent of Schools, on September 20, 1946. In a subsequent opinion given Dr. Collins on the same point, dated September 21, 1948, this office ruled that such an expenditure was legal but in that particular situation the lease of the subject city property by the county board there involved and the insurance on such property provided that the county board was the assured and entitled to collect all insurance for damage or destruction of said property. Although in your situation the county board of education should not acquire and pay the insurance premiums on the subject property being leased such fact may be taken into consideration in determining the lease or rental consideration.
It is not made clear in your letter whether the leased property in question was property of a local school district at the time of the 1945 Constitution with title vested in local school district trustees. If such was the case, and if such local school district was merged into and became part of the county-wide

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school district as a result of the Constitution of 1945, (see Article VIII, Section V, Paragraph I of the Constitution of 1945 and the Act of the Legislature approved February 1, 1946, Ga. Laws 1946, p. 206; Ga. Code Ann., Sees. 2-6801, 32-901 and 32-1101) then the subject property and title thereto may have become vested by operation of law in the county board of education. See, in this regard, Ga. Code Ann., Sec. 32-1401; Duffee v. Jones, 208 Ga. 639; Board of Education Paulding County v. Grey, 203 Ga. 583; Nelms v. Stephens County School District, 201 Ga. 274, and Board of Fulton COunty v. Board of GoHege Park, 147 Ga. 776. The same would be true regarding merger of an independent city school system. Ga. Code Ann., Sec. 32-1203; Op. of the Atty. Gen. 1955, p. 266. This is a matter that you might consult your local attorney about.
EDUCATION-School Property (Unofficial)
School property may be sold at private sale.
October 9, 1961
Miss Barbara Head
Thank you for your letter pertaining to the. proposed sale and disposition of the Dry Pond Elementary School by your local board of education.
I am of the opinion that the following provisions of Georgia law and cited decision of the Georgia Supreme Court answers the questions asked by you 1'egarding the above subject.
Georgia Code, Annotated:
Section 32-901. School Districts.-Each and every county shall compose one school district, and shall be confided to the control and management of a county board of education."
"Section 32-909. School term. School property and facilities.-The county boards of education shall have the power to purchase, lease, or rent school sites; build, repair, or rent school houses, purchase maps, globes, and school furniture, and make all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title, care and custody of all schoolhouses or other property, with power to control the same in such manner as they think will best serve the interest 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 foregoing code section vests very broad discretionary power in local boards of education as regards control, management and disposition of schoolhouses and school property, and the propriety of and manner of sale of such property is a matter as to which the local board should exercise proper discretion and judgment on behalf of the citizens and taxpayers of the county. The foregoing code section does not specify in detail the manner in which school

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property is to be disposed of. It is to be inferred therefrom that the local school boards will act to the best interest of local citizens and taxpayers and after thoughtful consideration of such interest. Insofar as a private or public sale is concerned, the Supreme Court of Georgia in Duffee v. Jones, 208 Ga. 639, 644, said:
"Consequently and pursuant to this, a county board of education has power to and may sell at private sale 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."

EDUCATION-School Property (Unofficial)

Sale of school property discussed.

Honorable W. E. Anderson

May 12, 1960

Receipt is acknowledged of your letter requesting an opinion as to the sale of school property.

Georgia Code Annotated, Section 32-909, provides in part as follows: "The county boards of education sha!J have the power to purchase,
lease, or rent school sites; build, repair or rent schoolhouses, purchase maps, globes, and school furniture, and make all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title, care and custody of all schoolhouses or other property with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board."

The case of Duffee v. Jones, 208 Ga. 644, held:

"... 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 ..."

While the Constitution prohibits gratuities (i.e., a gift of school property) the sale price for such school property lies within the discretion of the county board of education.

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EDUCATION-State Board
!-Activities of State Board are exempt from both federal and state taxation.
2-Board may accept gifts and donations.
August 16, 1961
Dr. E. A. Crudup
You request my opinion on the following questions:
1. Is the State Board of Education required to pay federal income, gift, estate, and inheritance taxes?
2. Is it required by the laws of Georgia to pay State income, gift, estate, inheritance, sales and use taxes?
3. Is it entitled to receive gifts or donations?
Among the matters implied in the Constitution of the United States, though not expressed, is that the Nation may not, in the exercise of its powers, prevent a State from discharging the ordinary functions of government. South Carolina v. United States, 199 U. S. 437, 50 L. ed. 261, 26 S. Ct. 110.
It has been customary to express the implied limitation upon the federal taxing power in terms of governmental functions of the State. Thus, it has many times been said that the taxing power of the United States does not extend to the means or agencies through which the States perform their governmental functions, at least their essential, strictly traditional, or usual governmental duties or functions. Among the essential governmental functions held to be immune from federal taxation is the maintenance of public schools. Allen v. University System, 304 U. S. 439, 82 L. Ed. 1448, 58 S. Ct. 980.
Therefore, the State Board of Education, a constitutionally created agency charged by law with the duty of exercising general supervision over the State Department of Education, is not subject to the federal income and gift tax laws. Of course, the estate tax law has no application, and there is no federal inheritance tax law.
Although it has been said, in the absence of constitutional prohibition, a State having general powers of taxation may tax its own property, if it sees fit to do so, in the absence of a manifest intention otherwise, it is a generally accepted principle that the property of a particular body politic, whether used for public purposes or held for the income to be derived therefrom, is not taxable by the same body politic. 51 Am. Jur., Taxation 559. This principle seems to have been recognized in the case of Penick v. Foster, 129 Ga. 217, where headnote one reads:
"1. The general rule is that public property and the various instrumentalities of government are not subject to taxation. This immunity rests upon the most fundamental principles of government; being necessary in order that the functions of government be not unduly impeded, and that the government be not forced into the inconsistency of taxing itself in order to raise money to pay over to itself."
In Newton v. City of Atlanta, 189 Ga. 441, the Court held, in effect, that this rule applied in the absence of express legislative authority to the contrary.

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There being no such authority in the Georgia Income Tax Act of 1931, as amended, no effort has ever been made to subject the Board of Education to its terms, and it is not, in my opinion, subject thereto.
The Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended, expressly exempts sales to the State of Georgia. Sales to the Board of Education are, of course, covered by such exemption.
Georgia has no gift or inheritance law, at the present time, and, as indicated, its estate tax law could have no application.
With respect to the question of whether the Board is entitled to receive gifts or donations, a reference to Georgia Code 32-413 would appear to be sufficient. It provides, in part:
"Said Board is hereby authorized and empowered to receive, accept, hold, and operate, on behalf of the State of Georgia, donations, grants, gifts, devises and bequests of real, personal and mixed property of every kind and character, to lease, manage, and otherwise administer the same for the use, benefit and behoof of the common school system of Georgia. . . ."
EDUCATION-State Board
The State Superintendent of Schools as chief executive officer may legally recommend the retirement of the Director of the Division of Vocational Education.
September 15, 1960
Dr. Claude Purcell State Superintendent of Schools
In your letter you propound the question, "Did the Department Head act within his authority in retiring the former Director of the Division of Vocational Education, as related to the following statement of facts:
"The Director of the Division of Vocational Education is elected by the State Board of Education upon the recommendation of the State Superintendent of Schools, who is the Chief Executive Officer of the State Board of Education.
"The services of the former Director of the Division of Vocational Education were terminated as of June 30, 1960 under the authority as provided for in the Acts of 1957, page 465 of the Amendment to the Employees Retirement Act. He was a member of the Employees Retirement System and had paid his pro rata share of retirement fees as provided by Law. He was nearing his 70th birthday. The Department had recommended to the proper authorities that he be retired as of July 1, 1960, but was to be retained as a consultant to the new Director for a period of 60 days from July 1, 1960."
Section 32-2304a of Georgia Code Annotated provides as follows:
"Division of vocational education service, establishment.-There is hereby created within the State Department of Education a division that

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shall be known as the Division of Vocational Education Service with a director responsible directly to the executive officer, and through him to the State Board."
Code Section 32-2305a of Georgia Code Annotated provides in part as follows:
"Executive officer of vocational education; duties.-The State School Superintendent shall serve as executive officer...."
Code Section 32-2306a of Georgia Code Annotated provides in part as follows:
"Director of Division of Vocational Education Service; duties.-The State Board shall employ upon the recommendation of the executive Director, a director of Vocational Education Service ..."
Code Section 40-2505 of Georgia Code Annotated, Section 1 (b) of Employees Retirement System provides in part as follows:
"Who may retire.-... From and After June 30, 1957, every employee covered under the provisions of this chapter shall, upon recommendation of his department head to the Board of Trustees, be retired on the first day of the calendar month next succeeding that on which he attains the age of 65 years. . . ."
Pursuant to the foregoing statement of facts and laws cited, applicable thereto, it is my opinion that the State Superintendent of Schools as chief executive officer and as the department head of the Division of Vocational Education may legally recommend to the Board of Trustees of the Employees' Retirement System the retirement of the Director of the Division of Vocational Education.
EDUCATION-State Board (Unofficial)
A company, of which a member of the State Board of Education is a shareholder, may submit competitive bids on automobiles to be used by the Highway Department.
August 4, 1961
Honorable Sam J. Gardner, Jr.
I am pleased to acknowledge and answer your request in which you ask whether or not a person who is a member of the State School Board, receiving a per diem allowance and expenses for attendance at meetings of the State School Board, and who is also a stockholder in and the president of an automotive company, may, on behalf of such company, submit a competitive bid to the State Purchasing Department on automobiles and trucks needed by the State Highway Department without violating provisions of the 1959 Georgia laws regarding such matters.
Section 2 of the 1959 Act of the General Assembly, entitled, "Transactions

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with State-Actions Constituting Crimes" (Ga. Laws 1959, p. 34, et seq.) which became effective on January 1, 1961, provides 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 t,o 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."
It is my opinion that a person such as described in your letter comes within the class of persons described in the foregoing section of the 1959 Laws cited. I construe such section, however, to mean that such p,erson individually "shall not for himself or in behalf of any of the" business entities described, sell any goods, wares or merchandise, personal property or other chattels, to the State or any agency thereof. In this regard, therefore, I believe the section to be applicable to persons individually rather than business entities as such. It is my opinion that an individual serving on a State Board or Commission, such as the State School Board, may be a stockholder in some company which submits competitive bids to the State Purchasing Department on items to be procured by some department of the State government without being in violation of the above quoted section of the 1959 Laws so long as such person is not associated with the management of the Company and is in no way connected with preparation and submission of such bids and acquisition of such contracts. The effect of Section 2 of the 1959 Laws cited is to prevent any person within the class of persons therein described from acting in any manner as agent for the business entity in connection with procurement of State contracts such as described by you.
In answer to your specific question, therefore, it is my unofficial opmwn that the automotive company as such will not be in violation of the quoted laws where it submits a competitive bid such as described by you merely because some one of its stockholders is a member of some State Board or Commission, and where such person is unassociated with the management of such company and not connected with preparation and submission of such bids and procurement of such contracts with the State government. To the contrary, however, a person such as described by you, acting as President of the Company and actively connected with preparation and submission of such bids will be, in my unofficial opinion, acting in violation of these laws.

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EDUCATION-State Department
The Director of the Division of Vocational Rehabilitation is legally entitled to receive compensation fixed by the Federal Social Security Board in addition to his State salary.
May 19, 1961
Dr. Claude Purcell State Superintendent of Schools
In reply to your request regarding S. B. #38, Act #282, of the 1961 General Assembly, it is my opinion that the Director of the Vocational Rehabilitation Division of the Department of Education is legally entitled to receive the compensation fixed by the Federal Social Security Board in addition to his State salary, and that such payment from funds allocated by the Federal Social Security Board would not be charged against the State salary approved by the State Personnel Board.
It is my further opinion that it is not necessary for the State Personnel Board to concur in the payment of this additional compensation before payment is made.
It is my suggestion that inasmuch as the federal compensation will be deposited in the General Treasury, though specifically allocated for salary compensation to the Director, that separate checks be issued to the Director for the State and federal compensation.
EDUCATION-State Department
Establishment of vending stands on state property by Division of Vocational Rehabilitation discussed.
November 7, 1960
Dr. A. P. Jarrell State Department of Education
This is in reply to your letter relating to the establishment of a vending stand by the State Department of Education, Division of Vocational Rehabilitation, under the Vending Stand Act of 1956, in the State Capitol. You asked the advice of this office as to whether there is any State law that conflicts with the provisions of this Act.
I am unable to find any statutory prohibitions affecting the establishment of such a "vending stand" as you refer to in your letter, on State property.
I must point out, however, that in Section 2 of the Vending Stand Act the following language vests discretion in the agency or department or custodian of such State property as to whether or not such a stand can be established without undue inconvenience to the operation being carried on in such State building or property:
"Section 2. To effectuate the purposes of this Act it is declared to be public policy of the State of Georgia that on any State property

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where the Director of Vocational Rehabilitation determines it to be feasible to establish a vending stand to be operated by a licensed operator as herein provided, and the agency or department or custodian of such property determines that such stand can be established without undue inconvenience to the operation being carried on in such State building or property, ..." (Emphasis supplied)
EDUCATION-State Dep,artment
Repair of a water tank is not within the purview of the Purchasing Act, and a contract for such repair may be negotiated or let by competitive bids as deemed necessary and advisable by the circumstances.
June 21, 1961
Honorable Claude Purcell State Superintendent of Schools
I am pleased to acknowledge and answer your request for an opmwn pertaining to whether the State Department of Education may negotiate a contract for the repairing of a water tank located at the South Georgia Trade and Vocational School, Americus, Georgia.
I call your attention to Georgia Code Ann., Sections 32-2218 and 32-2219, which provide as follows:
"32-2218. State area trade, vocational, and industrial schools; authority of State Board of Education to establish.-The State Board of Education of Georgia, for and on behalf of the State of Georgia, is hereby authorized and empowered to locate, set up, establish, operate, maintain and carry on State area trade, vocational and industrial schools for teaching vocational, industrial and trade subjects."
"32-2219. Same; purchase of land, buildings, and equipment.-To better enable said State Board of Education to properly locate and carry on said State area schools as provided in section 32-2218, said Board is hereby empowered and authorized to contract for and purchase real estate and building sites, to build, construct and properly equip and maintain, for teaching and boarding students all necessary buildings and houses, and to contract for and to purchase, maintain, repair and supply all necessary machinery, equipment, instructional supplies and maintenance equipment."
Pursuant to the above Code Sections, the State Board of Education is clearly authorized and empowered to locate, set up, establish and operate State area trade, vocational and industrial schools, and is, in regard to such established and operating schools, authorized to contract for the proper maintenance and repairing of such schools and the installations that are a part thereof, to include machinery and equipment. The duty to operate, repair and maintain such schools and the installations that are a part thereof is properly an administrative matter for the Board of Education, such duty to be performed through a proper exercise of discretion by the Board of Education and within the re-

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quirements of law wherever prescribed and set out. From the facts outlined in your request for this opinion, no supplies, materials or equipment for the abovestated school are sought to be purchased or obtained, but only services connected with the scraping, reconditioning and repairing of the water tank referred to above, which work, as you stated, is specialized work requiring the services of a contractor that is a skilled expert in the field. Such a contract for necessary skilled services in repairing and maintaining such school equipment and installations does not, in my opinion, come under Georgia Code. Ann., Chapter 40-19 requiring a competitive bid through the office of the State Supervisor of Purchases, but may be negotiated or let by competitive bid by the Board of Education as may be deemed necessary and advisable under the particular circumstances. I find no statutory prohibition against the letting of a contract for expert services through negotiation, such contract complying of course with all other standard provisions of law pertaining to the contractor providing bond, property insurance coverage, and other matters of such nature.
EDUCATION-State Funds
Disposition and payment of State funds to local boards and agencies discussed.
January 12, 1961
Dr. Claude Purcell State Superintendent of Schools
This is in reply to your request in which you asked the following question: "Can the State Board of Education make payments to the Georgia School Boards Association, or other agencies, from State funds allotted to local school systems on assignment from boards of education of such systems for services and materials as authorized in Code Section 32-953 ?"
The Minimum Foundation Act (Ga. Laws 1949, p. 1406, et seq.), as amended, after providing for the calculation and allocation of funds to the various local school units, provides in part as follows:
"... State funds to meet the operating expenses provided for by such school budgets shall be withdrawn from the State treasury <in executive warrants based on requisitions signed by the State Superintendent of Schools, and shall be disbursed to the various local units by the State Treasurer upon the order of the State Superintendent of Schools. Transfers of funds within their budets may be made by local boards providing such transfers do not conflict with the provisions of this Act."
In view of this provision, specifically the underlined portion thereof, I am of the opinion that the answer to your question must be in the negative.

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EDUCATION-Students (Unofficial)
There is no prohibition against school children working after school hours to raise monies for a class trip.
August 10, 1960
Honorable George W. Boutwell
Governor Vandiver has referred your letter to this office for handling.
I am pleased to inform you that a thorough search of the statutes of Georgia reveals no law which prohibits any school child earning money after school hours to pay for a class trip or for any other purpose which concerns the school or is connected to the school in any fashion. There is likewise no law which prohibits a class from making a trip after the school term is expired.
It is my understanding that the State Board of Education has adopted a policy not allowing class trips to be made during the 180 day school year.
EDUCATION-Students
A local board of education has certain inherent powers of pupil placement.
June 15, 1961
Honorable George L. Smith II Speaker, House of Representatives
This will acknowledge receipt of your letter requesting my opmwn relative to the application of Miss Sandra K. Melkild before the Atlanta Board of Education for transfer from the North Side High School to Dykes High School.
More specifically you request whether or not "any state law prohibits a young white girl from transferring from one school to another to maintain her freedom of association . "
The ultimate issue raised by your letter relates to the pupil placement powers of local boards of education. As to such questions, the Georgia law is silent.
However, as stated by Judge Hooper in the Atlanta case, school boards possess inherent pupil placement powers. Calhoun v. Members of Board of Education of Atlanta, 188 F. Supp. 401, 408 (D. C. Ga. 1959). See also, in accord, 70 C. J. S. 360, Sec. 450; Op. Atty. Gen. 1950-51, p. 41.
In the exercise of this inherent authority, the Atlanta Board of Education has adopted a pupil placement plan setting forth criteria and procedures to govern the application for transfer by pupils. See the final draft of the plan, as amended, in 5 Race Rei. L. R. 66-70.
This plan, as approved by the court, sets forth 18 criteria which will govern the Board's discretion in acting on transfers. Two such criteria which the court permitted to remain in the plan as against objection of the Negro plaintiffs

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are, "the psychological effect upon the pupil of attendance at a particular school", and "the maintenance or severence of established social and psychological relationships with other pupils and with teachers." See Calhoun v. Members of Board of Education of Atlanta, supra. As stated by Judge Hooper,
"It is true that 'psychological qualifications' and 'psychological effect' are broad and general terms. Psychology covers a vast field. 'Psychological test' has been defined as 'any method used for measuring an individual's mental characteristics, as memory, intelligence, emotionality, intelligence or speed of reaction.' See Webster's New International Dictionary, 2nd Ed. Certainly the foregoing factors would be relevant and material in Pupil Placement and there is no reason why they should be applied in a discriminatory way. The fact that the language is general does not mean that it can be made to encompass a test which would not be valid.
"Should the defendant Superintendent of Schools interpret such factors in a way that wou~d be discriminatory the pupil involved would have the right of review. A finding against a pupil based upon psychological tests should be sufficiently definite so that the ruling upon review could be understood.
"Indeed the Supreme Court in deciding the case of Brown et al. v. Board of Education of Topeka, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873, based its decision in part upon the psychological effect which certain practices may have upon the students involved."
Of course, I presume that the Board considers all the criteria set forth in their plan in making their decision. With respect to whether or not a transfer of a white pupil might be based solely on racial considerations, there is certainly nothing in the Georgia statutes to prohibit same., but the federal courts are divided as to whether such action violates the Fourteenth Amendment. Compare Kelly v. Nashville, 270 F2d 209 (C.A. 6th 1959), cert. den. 361 U. S. 924; Goss v. Board of Education of Knoxville, 186 F. Supp. 559 (D. C. Tenn. 1960) with St. Helena Parish School Board v. Hall, 287 F2d 376 (C.A. 5th 1961); Boson v. Rippy, 285 F2d 43, 46 (C. A. 5th 1960); McCoy v. Greensboro Board of Education, 283 F2d 667 (C. A. 4th 1960); Evans v. Buchanan, 172 F. Supp. 508 (D. C. Del. 1959), S. C., 173 F. Supp. 891 (D. C. Del. 1959). The Supreme Court declined to resolve this conflict between the circuits by denying certiorari in the Nashville case.
In the foregoing I have endeavored to set forth certain general principles governing pupil placement in all cases.
Turning to the pursuant case, however, it appears that Miss Melkild has made application for transfer. That application has been denied. Under the pupil placement plan adopted by Atlanta, she is afforded certain procedural rights. The 1961 General Assembly clarified existing law so as to make sure that appellate remedies in such cases would be complete. See Ga. Law 1961, p. 39. I have no knowledge of all the evidence and facts presented in Miss Melkild's case. Presumably, her case is now pending.
Under the circumstances, it would be entirely inappropriate for me to express an opinion on the particular facts of Miss Melkild's application.
The Georgia Constitution vests primary jurisdiction in school matters in local boards and on a.ppeal to the State Board. See Sees. 2-6501; 2-6801; 32-910.

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It would be an unwarranted usurpation of jurisdiction on my part to wrest control of a school controversy before a local board in the middle of its administrative process, particularly, as here, where the Board has not requested my opinion.
Should I undertake to do so for either a white or Negro applicant, it might be seized upon by the federal courts as a reason for excusing Negro plaintiffs from exhausting the administrative remedies provided by pupil placement plans, thereby destroying whatever value such plans might otherwise have.
Miss Melkild has her remedies under the Atlanta plan. If these are unavailing, she may seek relief from the courts. Until she has done so and failed, the other questions proposed by your letter are premature.
In the event any problems referred to in your letter should arise in the future, you may be sure that I will consult with you and other responsible legislative leaders for your wise counsel and advice as I have always done in the past.
EDUCATION-Students (Unofficial)
Local boards of education may adopt rules prohibiting married students from attending public schools.
October 26, 1961
Honorable J. Willis Conger
I am pleased to acknowledge receipt of and answer your request made on behalf of the Decatur County Board of Education for an unofficial opinion pertaining to whether or not a county board of education may promulgate a rule prohibiting attendance in the county public schools of married students.
The question asked by you has arisen a number of times during years past. I have heretofore been of the opinion, based upon a construction of Georgia Code Annotated, Section 32-937 and a consideration of McLeod v. State, 122 So. 737, 154 Miss. 468, 63 A. L. R. 1161, and the general provisions of 79 C. J. S. Section 466, page 370, that a county board of education may not promulgate a rule prohibiting married students from attending county public schools. See Opinions of the Attorney General 1955, p. 276. There is no court decision of record on this point in Georgia. The last General Assembly, however, amended Georgia Code Annotated, Section 32-937 (Ga. Laws 1961, p. 201), by adding thereto the following provision:
"The board of education of any county, city or independent school district is hereby authorized to promulgate rules and regulations concerning the right of married students to attend the common schools of this State."
I am of the opm10n that the foregoing amendment to Code Section 32-937, absent, of course, consideration of any question of constitutionality of such amendment, does now permit a county board of edu~ation to promulgate a rule or regulation prohibiting married students from attending the public schools of a county.

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EDUCATION-Taxation
County fiscal authorities must levy taxes for education as recommended by county board of education,
October 3, 1961
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge and answer your letter of recent date wherein you request an opinion in regard to the following question:
"Is it mandatory upon the fiscal authority of a county to levy taxes for the support and maintenance of education as recommended by the county board of education, so long as the recommended levy is within the constitutional limitations?"
The Constitution of the State of Georgia, Article VIII, Section XII, Paragraph I, as amended (Ga. Code Ann., 2-7501), provides in part as follows:
"Taxation by counties for education.-The fiscal authority of t,he several counties shall levy a tax for the support and maintenance of education not less than five mills nor greater than twenty mills (as recommended by the county board of education) upon the dollar of all taxable property in the county located outside independent school systems. . . ."
Georgia Code Section 32-1118, enacted pursuant to the above provision of the State Constitution, reads as follows:
"Other p1rovisions tp.ade applicable. County Board to recommend school tax rate to fiscal authorities.-All of the other provisions of Chapter 92-27, so far as they can be applied are applicable to the assessment and collection of taxes of all such companies and corporations which are required by law to make their returns to the State Revenue Commissioner by and for school districts upon the property and franchises of such companies located in such school districts and upon the rolling stock, franchises and other personal property distributed under the provisions of this Chapter. The county board of education shall annually recommend to the fiscal authorities of the county the rate of levy to be made for taxes for the support and maintenance of education in the county (exclusive of property located in independent school districts), and likewise notify the State Revenue Commissioner of the rate of the levy to be made on such property in said county for the support and maintenance of education."
In an early case involving a similar provision contained in the Constitution of 1877, as amended, to wit Smith et al v. Board of Education of Washington Co., 153 Ga. 758, Headnotes 1 and 11, the Supreme Court held:
1. " ... Under a proper construction of the foregoing provision of the constitution the Board of Education of Washington County is vested with the power and authority to recommend to the Board of Commissioners of Roads and Revenue of said county the levy of a tax not less than one nor more than five mills on the dollar of all taxable property of the county outside of independent local systems, for the sup-

185
port of public schools under its control. Likewise, under said provision, the recommendation of the board of education is mandatory upon the board of commissioners.
* * *
11. "Under the constitutional provisiOn quoted, power and authority is vested in the board of education to fix the rate of taxation, and said authority is not conferred upon the board of commissioners of roads and revenue of the county. The entire local control of schools is placed in the hands of the board of education, and the responsibility and authority is upon said board to determine what taxation is necessary for the support of the schools, and they are required to recommend accordingly to the board of commissioners of roads and revenue, who must levy the tax as recommended, no discretion being vested in the board of commissioners as to the rate of taxation."
In County Board of Education of Wilcox County v. Board of Commissioners of Roads and Revenues, 201 Ga. 815, a later case arising under the 1945 constitutional provision, the Supreme Court held in Headnote 1, as follows:
"Under the provision of art. 8, sec. 12, par. 1 of the Constitution of 1945, it is mandatory upon county boards of commissioners of roads and revenues, or other fiscal authorities levying taxes for the county, to follow the recommendation of county boards of education as to the tax levy to be made for the support of education, where such recommendation is within the limitation defined by the Constitution."
Both of the above cited cases involved petitions for mandamus brought by the respective county boards of education against county fiscal authorities to require compliance with the cited provision of the State Constitution, which is the proper course to follow in those situations where such action is necessary.
Under the authorities above cited, I am of the opinion that the question asked by you must be answered in the affirmative. See Opinions of the Attorney General 1957, p. 96 and 1954-56, pp. 252 and 254.
EDUCATION-Teachers (Unofficial)
Local boards may supplement teachers' salaries.
November 15, 1960
Dr. Claude Purcell State Superintendent of Schools
I am pleased to reply to your letter, in which you request an opinion from this office as to the legality of the State Board of Education requiring local administrative school units to pay salary supplements to teachers.
In reply to this question, I cite Section 32-606 of the Code of Georgia which is the only Code Section dealing with supplements to the salaries of teachers by local units.
"32-606. The State Board of Education shall annually fix a schedule of minimum salaries which shall be paid to the teachers of the

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various classes prescribed by the State Board of Education, which salary schedule shall be uniform for each of the classes fixed by the State Board of Education with no differentiation being made because of subjects or grades taught. A local unit of administration may not pay to any teacher in its employment a salary less than the minimum salary prescribed by the State Board of Education for the class to which such teacher belongs. A local unit may supplement the salaries of any of its teachers, and in fixing the amount thereof may take into account the nature of the duties to be performed, the responsibility of the position, the experience and the individual worth of the teacher."
As you will note, the language of the above statute only provides that a local unit may supplement the salaries of any of its teachers.

EDUCATION-Textbooks

The State Board of Education may expend funds for the purchase of textbooks to be used in training schools.

June 8, 1960

Dr. Claude Purcell State Superintendent of Schools

I am pleased to acknowledge your letter requesting an opm10n relating to the expenditure of funds for textbooks in training schools operated by the Welfare Department.

The following Code sections relate to the questions you asked:

"32-707. 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 regulation, 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.

"32-708. The State Board of Education may provide for the selection and purchase of free textbooks either by multiple listings or uniform adoption or by any other method that will enable the acquiring of acceptable books at the lowest possible cost: Provided, such adoption or multiple listings shall in no event constitute a binding contract until ratified in writing by the Board of Education. None of said books so purchased shall contain anything of a partisan or sectarian nature.

"32-710. The State Board of Education is hereby authorized and

directed to inaugurate and administer a system of free textbooks for

the public schools of the State of Georgia. The State Board of Educa-

tion shall have authority to promulgate and enforce such rules and regu-

lations as may be necessary for that purpose.



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"32-711. The State Board of Education shall, under such rules and regulations as it may deem advisable, provide for purchasing, covering, repairing and furnishing such free textbooks for use by the pupils in all of the elementary and high school grades in the public schools of this State. The State Board of Education may contract for, and provide rules and regulations for, the covering with book covers of such books as are supplied under the provisions of this Chapter.
"32-716. The State Board of Education may, in its discretion, e~x tena the p~rovisions of this' law, under such rules and regulations as it may adopt to the Georgia Training School for Boys, the Georgia Training School for Girls, the Academy for the Blind, the School for the Deaf and the other public eleemosynary institutions operated by this State, where textbooks prescribed by the State Board of Education in conformity with this Chapter are used." (Emphasis supplied.)
Under these Code sections, I am of the opinion that the State Board of Education may expend funds for the purchase of textbooks in the training schools above enumerated, "and the other public eleemosynary institutions operated by this State."
EDUCATION-Trade Schools (Unofficial)
A county may levy a tax to support a vocational trade school.
January 17, 1961
Honorable E. P. McCollum
I am pleased to acknowledge your request concerning a question of law that has arisen in your county concerning a proposed Thomasville-Thomas County Area Vocational Trade School.
As you state in your letter, the county board of education does annually recommend to the fiscal authorities of the county the rate of levy to be made for taxes for the support and maintenance of education in the county and these taxes are exclusive of the property located in an independent school district such as the City of Thomasville. Georgia Code Ann. 32-1118.
However, your attention is called to the fact there is a recent constitutional amendment regarding area vocational schools, which was adopted in November of last year. Ga. Laws 1960, p. 1259. This amendment allows two or more counties, two or more municipalities, or a county and a municipality to jointly establish such an area school. It makes no reference to a county board of education which is a political subdivision of the State separate and apart from the county itself. Board of Education v. Co. Mich. Bank, 184 Ga. 641. This would indicate that these schools are to be established by the Commissioners of Roads and Revenues of a county and the Mayor and Council of a municipality.
The county and/or city is specifically authorized to levy taxes for the support of such area school and apparently this would be a separate tax levy for this specific purpose. This is separate and apart from the general provisions regarding a county tax for educational purposes.

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Therefore, it is my opinion that once a county establishes such an area vocational trade school it may levy a tax for the support of such school as to all property located in the county including that which lies within an independent school district.
EDUCATION-Tuition Grants
Discussion of Tuition Grants Act (Ga. Laws 1961, p. 35) .
September 13, 1961
Dr. Claude Purcell State Superintendent of Schools
Receipt is hereby acknowledged of your letter requesting my official opinion on four questions relating to interpretation of the 1961 Tuition Grants Act (Ga. Laws 1961, p. 35).
The first question you pose is as follows:
"(1) Are all children who apply who indicate they are going to a non-sectarian school eligible for the grant? If not, which of the applicants are eligible?"
Pretermitting any word-by-word analysis of the Act, it is clear that there are only three requirements which must be met in order for an applicant to qualify for a grant, viz:
(a) The grant is available only for attending a school which is "non-sectarian" and "private" in nature.
(b) The grant is available only for attending a "school"-a term which connotes some semblance of an established institution, as distinguished from private tutoring or informal classes conducted on a street corner. In this respect, it should be noted that the 1961 enabling legislation is not as broad as the 1954 Constitutional Amendment (Section 2-7502), which authorizes legislation providing grants for "educational purposes". This difference in terminology was obviously designed to produce some difference in effect. The local school officials must dete,rmine, on all the facts available, whether any particular educational operation constitutes a "school".
(c) The applicant must be between the ages of six and nineteen, resident in the system, not already finished or graduated from high school, and must otherwise be entitled to attend the public schools in the system to which application is made.
The second question you pose is as follows: "(2) Once a child has been determined, by the local board, to be
eligible for the grant, is such grant mandatory on the part of the school system board of education?"
Section 2 of the, Act declares that the child "shall be entitled". This renders the making of the grant mandatory. See 39 Words and Phrases, p. 118. If the

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requirements discussed above are met, the school authorities no longer have any discretion.
Your third question states:
"(3) Is it legal for local boards of education, through the administrative officer, to use operating funds of the public schools in paying these tuition grants?"
Reading Section 2 of the Act, it is clear that the grants are paid from educational funds consisting of both State funds made available under MFPE, and local funds derived from the local educational ad valorem tax, which would include funds available for "teachers' and other school personnels' salaries, pupil transportation and other items of current expense...." (Section 2). The only exception relates to capital outlay and other funds already obligated under bonded indebtedness, but even here, capital outlay funds not obligated may be included by the local board in computing the grant. As the 1961 Act expressly declares that it is designed to implement the 1954 Amendment, any contrary statutory or constitutional provisions must yield, as the latter declares "notwithstanding any other provision of this constitution...."
Your fourth question states:
" (4) What is my responsibility, as State Superintendent of Schools, under Section 4 of the act, if local boards refuse to pay tuition grants for eligible pupils?"
Section 4 of the Act provides:
"Section 4. If the State Superintendent of Schools determines that any local school system wrongfully fails or refuses to pay any grant as hereinbefore provided, he may direct the payment from state funds of such grant in the same amount and manner as if such grant had been made by the local system, and all such sums so paid shall be deducted from the state funds to which such local system otherwise would have been entitled under applicable law."
Under this provision, it is your duty, in case you find that a local system wrongfully withheld a grant, to compute the grant according to the formula in Section 2, and to pay such grant in its entirety, both as to the State and local share, and to deduct such amount from State funds allocated to the local system in question.
Section 4 does not undertake to set forth the procedure which you should follow in making these determinations. It therefore follows that the details of administration are reserved to you. By its very nature, the Act can not execute itself. I presume that you will wish to devise an administrative procedure somewhat similar to that applicable to appeals to the State Board. Before you can intelligently determine whether a local system has "wrongfully fail (ed) or refuse(d) to pay any grant", you necessarily must have some means of getting before you the application, evidence and other proceedings upon which the local board based its decision.
I might also add, that it would seem desirable from a procedural standpoint, that local boards adopt rules and regulations, governing their procedures in implementing this Act. I understand that your office has already prepared a suggested resolution for adoption along these lines.

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EDUCATION-Tuition Grants (Unofficial)
Discussion of operation of tuition grants.
June 23, 1961
Mr. Arthur E. Justice
We are in receipt of your letter in which you request information concerning the legal aspects of tuition grants of public tax money to students enrolling in private, non-sectarian schools.
For whatever assistance it may afford you, we call your attention to three cases reported in the Race Relations Law Reporter. The first case is found in Volume 5, Number 3, pages 741, Francis H. Snyder et ,al. v. Town of Newton et al. In this case the electors of Newton, Connecticut, voted to contribute public funds for transportation of students who attended a Roman Catholic parochial school. Other citizens of the town objected by filing suit in the Superior Court, contending that this action required the taxpayer to support a religious group which was forbidden by the Federal and State Constitutions. In deciding the case, the Court rejected this contention, holding that the purpose was a public one, even though only a limited number of persons benefited, and that the action does not amount to governmental support of a church. However, the Court held that the action was unlawful insofar as it purported to allocate certain funds specifically set aside by statute for public schools. One Judge dissented, contending the entire action to be unconstitutional.
In the case of Alden W. Squires et al. v. Inhabitants of the City of Augusta et al., Volume 4, Number 4, page 885, a city ordinance authorized the city to make available at public expense transportation to and from private schools. The question of the legality of this ordinance was brought before the courts which decided that although there was a constitutional provision imposing on the legislature a duty to promote the cause of education, which had been interpreted as giving the legislature full power over the subject, the city had only such authority as given it by the legislature, and since there was no charter provision or act of the legislature enabling the city to pass such an ordinance, it was unlawful and of no effect.
In the case of Ap,plication of Board of Education of Central School District No. 1 of Towns of Balliston, Clifton Park and Charlton et al. v. Allen et al., Volume 4, Number 4, page 886, at a meeting of a New York school district, motions by certain individuals that public transportation be provided for children attending parochial schools were defeated. Mr. Allen, the State Commissioner of Education, reversed this on appeal. The Supreme Court of New York, on appeal from the ruling of the State Commissioner of Education, held: (1) the voters, by amending the State constitutional prohibition against use by the State of property, credit or public money in aid or maintenance of denominational schools, so as to permit the legislature to "provide for the transportation of children to and from any school or institution of learning", had determined that public funds may be constitutionally spent for transportation to known public schools; (2) the Federal constitution was not violated by the orders under the decision in Everson v. Board of Eduoation.

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EDUCATION-Tuition Grants
Tuition grants are only for common schools and not for colleges or universities.
March 10, 1961
Chancellor Harmon Caldwell University System of Georgia
I have your letter in which you enclose a copy of a letter from Mr. Robert A. Blackwood of Atlanta, applying for a grant-in-aid for the purpose of providing financial assistance to his son to attend a "non-integrated non-sectarian school". Mr. Blackwood's letter further sets out that his son has made application to the undergraduate school at both Dartmouth College and the University of Virginia, "both of which are non-integrated schools".
From our examination of the recent laws enacted by the Legislature pertaining to grants-in-aid for education, we find that Senate Bill 48, which provides for grants for state and local funds, applies only to the common school system for school children' between the ages of six and nineteen, who have not finished or graduated from high school.
We are further advised by the Southern Educational Reporting Service that the University of Virginia first admitted Negroes by court order in 1950, and now has six Negro undergraduates and sixteen Negroes in the graduate schools. We are also reliably informed that Dartmouth College has been integrated since 1941.
Mr. Blackwood should be advised that there are no grants-in-aid for the purpose of providing financial assistance to college and university students in the first instance, and in the second instance, the University of Virginia and Dartmouth College are not "non-integrated and non-sectarian schools".
ELECTIONS-Ballots (Unofficial)
Procedure to obtain absentee ballot.
October 3, 1960
Mrs. Viola M. Rickerson
Thank you for your letter requesting that the Governor notify the registrars or the ordinary of your county of your intention to vote by mail in the General Election to be held on November 8, 1960.
The law has not supplied the Governor with the authority to grant your request, but it has provided an easy method for such notification to be given by you or a member of your immediate family. Section 34-3301 of the Code of Georgia Annotated, provides that "Any voter, when required to be absent from the city or county, ward or district in which he is registered ..., may vote by mail: Provided, that he or some member of his immediate family, -viz., husband or wife, father or mother, sister or brother, or son or daughter-shall give notice

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in writing of such intention to the registrars or the ordinary of his county, not less than three days or more than 60 days prior to the primary or general election in which he may desire to participate ..."
ELECTIONS-Ballots (Unofficial) Voting and counting of Absentee Ballots. November 18, 1960
Mrs. Erdelle W. Rocchi Thank you for your letter addressed to the Governor, which was forwarded
to the Attorney General for reply. In your letter, you inquired as to the casting and counting of absentee ballots.
In connection with your inquiry, please note Sections 34-3312 and 34-3313 of Georgia Code Annotated, which provide as follows:
"34-3312. On the day of the election the registrars shall deliver the box containing the sealed ballots, together with the letters of application and return coupons attached, with a list of the same in triplicate, sealed, to the managers of the election, at the ward or district in which the ballots are to be cast, and shall take receipt for said box and sealed papers ..."
"34-3313. At the close of the regular balloting the box shall be opened by the managers of the election, and the ballots deposited in the regular ballot box, as follows: As each envelope shall be removed from the box, the name of the voter shall be called and checked as if the voter were voting in person. If found entitled to cast his vote, the envelope shall then, but not until then, be opened, and the ballot deposited in the regular box without examining or unfolding it."
ELECTIONS-Ballots (Unofficial) When citizens may vote by absentee ballots. October 3, 1960
Mr. E. C. Helfrick Thank you for your letter, inquiring as to whether Georgia law grants its
citizens the right to vote by mail in the General Election to be held on November 8, 1960, when they are absent from the city or county in which they are registered.
The answer to your inquiry is in the affirmative. Section 34-3301 of the Georgia Code Annotated provides that "Any voter, when required to be absent from the city or county, ward or district in which he is registered ..., may vote by mail: Provided, that he or some member of his immediate family,-viz., hus-

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band or wife, father or mother, sister or brother, or son or daughter-shall give notice in writing of such intention to the registrars or the ordinary of his county, not less than three days or more than 60 days prior to the primary or general election in which he may desire to participate ..."
ELECTIONS-Ballots (Unofficial) Use of a sticker affixed to a ballot bearing the name of a "write-in"
candidate is not invalid per se. October 24, 1960
Honorable William D. Turner Thank you for your letter in which you inquired as to the legality of making
a "write-in" vote by affixing to the ballot a sticker bearing the name of the "write-in" candidate.
In my opinion, the use of such stickers would be legal, provided that they are placed in the "write-in" column on the ballot and indicate clearly who and for what office the voter is voting for. Also, the voter must strike the name of the candidate for such office whom he desires to vote against. This same view was expressed in the Opinions of the Attorney General 1952-53, at page 93.
ELECTIONS-Ballot Boxes (Unofficial) Ballot boxes are required to be locked. March 9, 1961
Mrs. Charlie Horton Thank you for your letter inquiring as to the use of locked ballot boxes in
primary and general elections participated in by the voters of Evans County, Georgia.
In connection with your inquiry, please note that Chapter 34-19 of the Code of Georgia, Annotated, provides, in general, for the rules and regulations governing all elections and Code Section 34-1922 therein provides as follows:
"34-1922. The ballot boxes provided for in Chapter 34-19 shall be so constructed that they may be locked and cannot be opened or the contents thereof tampered with." Also, Code Section 34-3202, concerning primary elections, provides in part as follows:
"Section 34-3202. Before any ballots are received at such primary elections, and immediately before opening the polls, the managers shall open each ballot box to be used in the election, and shall exhibit the same publicly, to show that there are no ballots in the box. They shall then

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close and lock or seal the box, except the opening to receive the ballots, and shall not again open the same until the close of the election.... "
ELECTIONS-Candidates A Notary Public Ex-Officio Justice of the Peace need not resign his
office before qualifying to run as a Justice of the Peace in the general election.
September 2, 1960 Honorable Ben W. Fortson, Jr., Secretary of State
This is in response to your letter on the question whether it is necessary for a Notary Public Ex-Officio Justice of the Peace to resign his office before qualifying to run as Justice of the Peace in the coming general election.
There is no constitutional or statutory provision which requires that one holding the office of Notary Public Ex-Officio Justice of the Peace must resign in order to qualify as a candidate for Justice of the Peace. The answer to the question propounded by you must, therefore, be answered in the negative.
ELECTIONS-Candidates A minimum 9f 45 days must intervene between the day of filing notice of
candidacy with the Secretary of State and the day of the General Election. September 28, 1960
Honorable Ben W. Fortson, Jr., Secretary of State
Thank you for your letter requesting an official opinion specifying the last day in which candidates for National and State offices, to be filled in the General Election to be held on November 8, 1960, may file notice of their candidacy with the Secretary of State pursuant to the 45 day provision contained in Section 34-3608 of the Code of Georgia, Annotated.
In my opinion, the phrase "at least 45 days prior to the general election" means that a minimum of 45 days must intervene between the day of filing such notice and the day of the General Election. Counting backwards from November 7, 1960, we find that September 24, 1960, is the 45th day which means that such notice must be filed on or before Friday, September 23, 1960. This same view was expressed in the Opinions of the Attorney General 1957, p. 125.

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ELECTIONS-Candidates
Candidates for office in judicial circuit need only secure five per cent petition in circuit though required to be on State-wide ballot.
September 29, 1960
Honorable Ben W. Fortson, Jr., Secretary of State
Thank you for your letter. You request an official opinion as to the meaning of the term "territory", as used in the five per cent petition provision of Section 34-1904 of the Code of Georgia, Annotated, in connection with such a petition having been filed with the Secretary of State by an independent candidate for the office of Judge of the Superior Court to be filled in the General Election to be held on November 8, 1960. You pointed out that a candidate for such office runs State-wide irrespective of the fact that the office is restricted to its judicial circuit.
In my opinion, the term "territory" as used in such a context means the geographic area covered by the office under consideration. Consequently, when the term "territory" is applied to determine the propriety of such a petition filed by a candidate for the office of Judge of the Superior Court, it means the judicial circuit of such office and not the entire State of Georgia. This same view was expressed in the Opinions of the Attorney General 1950-51, page 68.
ELECTIONS-Candidates (Unofficial)
Candidates for the General Assembly should qualify with the ordinary.
July 12, 1960
Honorable Walter C. Stevens
Your letter states that the Sheriff of Bibb County had announced that there would be Republicans or Independents to oppose the Democratic nominees for members of the General Assembly and for county commissioners in Bibb County in the General Election in November of 1960.
Code Section 34-1904 of the Annotated Code of Georgia provides the manner, method and procedure for a candidate to have his name listed on the ballot in the General Election of 1960. This statute is clear and unambiguous as to the manner, method and procedure set forth therein.
On March 4, 1960 I advised you by letter that the five per cent rule as stated in Code Section 34-1904 of the Annotated Code of Georgia applied to candidates for National and State officers and did not apply to candidates for county officers.
County officers must qualify with the county ordinary of the county in which they propose to be a candidate either by themselves or the political party selecting them as their candidates, and the five per cent rule does not apply to them.
On the question whether a member of the General Assembly should qualify with the ordinary or the Secretary of State, your attention is called to an opinion

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rendered by the Attorney General on October 18, Hl40 to Honorable S. J. Flanders, Ordinary of Emanuel County, found in the Opinions of the Attorney General 193941 at page 296, wherein it is stated that it has been the unbroken custom for candidates for the House of Representatives to qualify with the ordinary and not with the Secretary of State.
The Appellate Courts of Georgia have not ruled upon the question relating to members of the General Assembly; therefore, I am unable to cite to you any judicial authority on this issue. I regret that we do not have at our command some constructive methods of giving you an answer to this complex question as to whether a member of the House of Representatives of the General Assembly of Georgia is a State officer, or a county officer, or a representative of the people of his county in the Legislative Branch of the State Government. A member of the General Assembly is not commissioned by the Governor, and for over onehundred years he held no written evidence in the form of a commission that he was even a member of the General Assembly. Only since 1951 have the members of the General Assembly been able to have a certificate showing membership in the Legislative Branch of the State Government, and this only authorizes the Secretary of State to issue a certificate under his signature stating that a person is a member and has served for so many years.
The Constitution of the State of Georgia, Article III, Section VIII, Paragraph 1, provides that each House of the General Assembly shall be the judge of the election, returns, and qualifications of its members. The Supreme Court of Georgia in the case of Rainey v. Taylor, 166 Ga. 476, held that the Superior Court did not have jurisdiction to hold, in quo warranto proceedings, that a member of the General Assembly of Georgia, who had been elected to that position and who had been sworn in as a member, was ineligible or disqualified for membership in that body; and the demurrer raising the contention that the Court was without jurisdiction should have been sustained.
It has been the custom and practice for longer than I can remember, for candidates aspiring to be a member of the House of Representatives of the General Assembly of Georgia to qualify with the ordinary of the county in which he proposes to be a candidate. Therefore, it is my view that a candidate for membership in the House of Representatives in the General Assembly of Georgia should qualify with the ordinary of the county in which he is a candidate for such position, since he is a representative of the people of only one county and voted on by only the people of his county and represents only his county in the General Assembly of Georgia.
ELECTIONS-Crimes (Unofficial)
There is no law prohibiting publication or broadcasting of political announcements on election day.
August 29, 1960
Mr. Glen Broughman
You asked:
"We would like to know if the State of Georgia has any law for-

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bidding the publication or broadcast of political announcements on election daY'."
I have checked the Index in the Georgia Annotated Code and have been unable to find any law that would forbid the publication or broadcasting of political announcements on election day. Of course, we have local statutes that prohibit the soliciting of votes within certain distances of voting places on election day.

ELECTIONS-Crimes (Unofficial)

Sale of beer on election day is prohibited.

August 24, 1960

Honorable Buckner F. Melton

You request information about the sale of malt beverages or beer on election

day.



The Court of Appeals of the State of Georgia in the case of Kaminsky v. The State, 96 Ga. App. 505 held that Code Section 58-609 which prohibited the sale of malt liquors within two miles of an election precinct on an election day was not repealed by implication by the passage of the Act of 1938, Ga. Laws 1937-38, page 103.

However, the Supreme Court in the case of Mosley v. Lanier, Solicitor General, 213 Ga. 373 held that Code Section 58-601 which prohibits the sale of malt liquor within a radius of three miles of any church or school was repealed by the Malt Beverage Act of 1937, Ga. Laws 1937, page 148.

The State Revenue Commissioner has a regulation which has been in effect for a number of years prohibiting the sale of malt beverages within two miles of a voting precinct on election days. This is regulation No. 13 and is as follows:

"No licensee shall sell or offer for sale any malt beverages at any time on Sunday or at any time in violation of a county or municipal ordinance or regulation, or a special order of the Commissioner and at any time on any day during which a voting precinct or polling place is within two miles of his place of business, during any State, County or Municipal primary, or general or special election."

Under the law as it now stands, Code Section 609 is still the law. However, in view of the decision of the Supreme Court in construing Code Section 58-601, I am inclined to believe that the court might now hold that Section 58-609 was repealed by implication. If this should be true then the sale of malt beverages on election day within two miles of a voting precinct would be a violation of the regulations of the Commissioner of Revenue and the licensee could be dealt with by the Commissioner for violation of Rule 13 herein quoted.

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ELECTIONS-General Elections (Unofficial)
Freeholders qualified to manage elections of Justices of the Peace may also manage general elections, and the general elections may be held at the same place as elections for Justices of the Peace.
October 26, 1960
Honorable Cecil Conner
Thank you for your letter in which you inquired as to (1) whether the freeholders superintending the Justice of the Peace election in a district may also manage the other General Election being held in such district, and (2) whether or not these two elections may be held at the same place.
In answer to your first inquiry, it is my opinion that if the freeholders described in Section 34-2702 of the Code of Georgia possess the requirements prescribed for managers of elections in Code Section 34-1201, then such freeholders may manage both elections.
In answer to your second inquiry, it is my opinion that if the place contemplated for holding both elections coincides with .the requirements prescribed in Code Sections 34-1301 and 34-2701, then both elections may be held at such place.
ELECTIONS-Hours for Holding (Unofficial)
Hours for holding elections discussed.
February 10, 1960
Mr'. J. A. Wall
I am pleased to acknowledge your letter and to advise that the general law relating to the hours for holding all elections is codified under Code Section 34-200la, which provides as follows:
"34-200la. Hours provided for holding general, special, and primary elections other than municipal elections.-The hours for holding all general, special and primary elections in the State of Georgia shall be from 7:00A.M. to 7:00P.M., according to the legal time prevailing in the State of Georgia, at all of the polling places where said elections are held. The provisions of this section shall not apply to municipal elections. (Acts 1943, pp. 480, 481; 1957, pp. 71, 72.)"
The above provisions of the general laws of this State apply to all counties in all elections and primaries, but do not apply to municipal elections.

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ELECTIONS-Justices of the Peace
Elections of Justices of the Peace discussed.
May 5, 1960
Honorable Ben W. Fortson, Jr., Secretary of State
I am pleased to acknowledge your letter in which you ask the following questions:
"(1) Do Justices of the Peace have to run in the September Primary and thereby be nominees for the November election7
"(2) If they do run in the primary, will they be required to pay an entrance fee7
"(3) Will the names of candidates for the offices of Justice of the Peace and Constable be on the same ballot as other candidates in the General Election, or will there have to be a separate ballot?"
Since the Acts of 1869, page 22 and the Acts of 1898, page 42, there has been no change in the time, place and manner of the election of the Justices of the Peace and Constables except that which is contained in the Acts of 1937, pages 102, 117 and 118, which repealed old Code Sections 34-2701 and 34-2702 and enacted in lieu thereof the new Code Sections.
"34-2701. (115) Time and place of election of Justices of the Peace. -Justices of the Peace shall be elected quadrennially on the Tuesday after the first Monday in November, for terms of four years beginning on January 1 following their election, by the voters of their respective districts: Provided, they have resided in the district for 30 days immediately preceding the election, and are otherwise qualified. The election must be held at the place of holding Justices' Courts for the district; if none, then at the election precinct; if no precinct, then at some place in the district named by the ordinary, of which 10 days' written notice must be given in the district. (Acts 1869, p. 22; 1898, p. 42; 1957, pp. 117, 118.) "
The above cited Code Section merely changed the time of election of Justices of the Peace from the first Saturday in December to "Tuesday after the first Monday in November", and provided that the first election under this new statute would be held on November 8, 1960, and further provided that if the Justice of the Peace had no opposition he would be eligible to be a poll holder in such election.
"34-2705. (119) Time of Constables' Election.-Constables shall be elected at the same place and by the same class of voters as Justices of the Peace. The elections for constables shall be held quadrennially on the Tuesday after the first Monday in November, for terms of four years beginning on January 1 following their election. (Acts 1898, p. 43; 1957, p. 102.),
The above cited Code Section also merely changed the election date to "Tuesday after the first Monday in November", and provided further that the first election thereunder would be held on November 8, 1960.

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In answer to your first question, it is my opinion that a Justice of the Peace election is a general election and has so been held by the Appellate Courts of this State, and anyone possessing the qualifications provided by statute for such office may be a candidate by qualifying with the ordinary within the time prescribed to have his name placed on the ballot. However, as has been the custom in some counties of the State a political party may hold a primary for a Justice of the Peace, or they may include a Justice of the Peace in the county primary in order to select a nominee of the political party to run in the Justice of the Peace election when held, and of course the only way a candidate could be the nominee of a political party would be to be selected at a primary or convention of such party and if he received the nomination of the party, he would be entitled to be placed upon the ballot of the Justice of the Peace as the sole nominee of that political party.
In answer to your second question, political parties have the legal right to require an entrance fee to be paid by the persons entering the primary of the political party, and on the county level the county committee would be authorized to fix the entrance fee for a Justice of the Peace candidate if it so desired, and if the political party did so a person qualifying to run in said primary of said political party would have to pay the entrance fee in order to participate in said primary. Of course you understand that all entrance fees are used for the payment of the cost of holding all primaries by the various political parties.
In answer to your third question, it is my opinion that there was no change made in the manner and method of holding Justice of the Peace and Constable Elections except that the election dates for such offices was changed from the first Saturday in December to the "Tuesday after the first Monday in November", and that the first election under the new statute shall be held on November 8, 1960, and that if an incumbent Justice of the Peace had no opposition, he would be eligible to be a poll holder in such election. Therefore, the election would be a separate election as has always been heretofore with separate ballot boxes, separate ballots and separate voting lists.
ELECTIONS-Justices of the Peace (Unofficial)
Where elections for Justices of the Peace are held and persons authorized to superintend the elections discussed.
October 26, 1960
Judge Bertha McElhannon
Thank you for your letter in which you inquired as to the identity of the persons authorized to superintend an election for Justice of the Peace on November 8, 1960, and the proper place for holding such election.
In connection with your inquiry, I wish to call your attention to Section 34-2702 of the Code of Georgia which provides as follows:
"34-2701. The election must be held at the placeof holding Justices' of the district, who shall be appointed by the ordinary of the county, and upon the failure of one or more of the freeholders appointed to act,

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the place or places shall be filled by any other freeholder or freeholders of the district, who shall take the oath required in Section 34-1202." Also, I wish to call your attention to Code Section 34-2701 which provides in part as follows:
"34-2701. The election must be held at the place of holding Justices' Courts for the district; if none, then at the election precinct; if no election precinct, then at some place in the district named by the ordinary of which 10 days' written notice must be given in the district."
ELEC.TIONS-Managers (Unofficial) Appointment of managers for elections discussed.
November 1, 1960
Honorable W. 0. Vaughters Thank you for your letter addressed to the Secretary of State, which was
transferred to the Attorney General for reply. In your letter you inquired as to the identity and appointment of the managers of Elections.
In connection with your inquiry, please note Section 34-1201 of the Code of Georgia which provides as follows:
"34-1201. The persons qualified to hold elections for members of the General Assembly are ordinaries, Justices of the Peace, and freeholders. There must be three managers, and one must either be an ordinary or a Justice of the Peace, except that if by 10 o'clock A.M. on the day of election there is no proper officer present to hold the election, or there is one and he refuses, three freeholders may superintend the election, and shall administer the oath required to each other, which shall be of the same effect as if taken by a qualified officer. Persons who cannot read and write shall not be competent to serve as managers of elections."
Also, Professor Albert B. Saye in his monograph entitled "Election Laws of Georgia" (1959), at page 183, states that in practice the Election managers are appointed by the Ordinary!.
ELECTIONS-Petitions
The voter registration lists employed in the last General Election should be utilized in ascertaining the five per cent figure necessary to place a name on the ballot by petition.
November 17, 1961
Honorable Ben W. Fortson, Secretary of State
Thank you for your letter requesting an official opmwn of the Attorney General as to whether or not a petition naming several candidates for State

202
offices as petitioners would comply with the five per cent petition provisiOn of Section 34-1904 of the Code of Georgia, Annotated, and specifying the voter registration lists to be utilized in ascertaining the five per cent figure necessary to determine the numerical sufficiency of the signatures on a petition submitted for filing under the five per cent provision.
The five per cent petition provision you have reference to provides as follows:
"All candidates for national and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, . . . Provided, further, that such candidate shall also file a petition for that purpose signed by not less than five per cent. of the registered voters in that territory ... Provided, further, that any political party or candidate desiring to have' a name or names placed upon the general election ballot and subject to the requirements of this section as to the percentage of votes cast in the last general election and as to a petition signed by five per cent. of the voters, shall accompany said petition with a sworn statement to the effect that each of the names appearing in said petition were duly qualified and registered voters at the last general election.... "
In connection with your inquiry as to the legality of a composite petition for candidates, please note that the provision laconically provides that a candidate shall file a "petition for that purpose". Manifestly, a petition naming several candidates as petitioners and designating the political affiliation, if any, of each and the office he is seeking would be a "petition for that purpose" as to each candidate. Consequently, it is my opinion that such a composite petition submitted in proper form would be a legal compliance with the five per cent. petition provision.
In connection with your inquiry as to the voter registration lists to be utilized in ascertaining the five per cent. figure necessary to determine the numerical sufficiency of the signatures on the petition, please note that the provision states that the petition shall be "signed by not less than five per cent. of the registered voters in that territory." Standing alone this quotation is ambiguous because it does not specify a particular time for the totalization of the registered voters and, therefore, it could be construed as requiring that such totalization be made at the time of filing the petition with the Secretary of State. However, the legislative intent is illuminated when we construe such quotation in conjunction with the requirement that the petition be accompanied with a "sworn statement to the effect that each of the names appearing in said petition were duly qualified and registered voters at the last general election." If we construe the provision as requiring that the five per cent. be computed on the totality of registered voters at the time of filing, then that would mean that while voters registered subsequent to the last general election would be included in the totality of registered voters, they would not be eligible to sign the petition. This construction would of course produce an illogical and inharmonious result. However, if we construe the provision as requiring that the five per cent. be computed on the totality of registered voters at the last general election, then the two phrases would be harmonized. It is a well recognized canon of construction that every part of a statute must be reviewed in connection with the whole, so as to harmonize all its parts if practicable, and that a sensible and intelligent effect must be given to each and that where a general term in one part of a statute is

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inconsistent with a more specific provision in another part, the latter must govern. (Washington v. Kemp (1959) 99 Ga. App. 635, 639, 1st par., 109 SE 2d 294; Twentieth Century-Fox Film Corp. v. Phillips (1948) 76 Ga. App. 825, 831, 1st par., 47 SE 2d 183; State Revenue Com. v. AleXiander (1936) 54 Ga. App. 295, 296, 2d par., 187 SE 707; Kiser & Co. v. Doyal (1935) 51 Ga. App. 30, 33, 179 SE 578, affd. 182 Ga. 175, 184 SE 860; 82 CJS, Statutes, Sec. 348, p. 723.) Furthermore, due to the incessant variation in voter registration, substantial practical difficulties would ensue from a construction requiring a five per cent. computation from the totality of registered voters at the time of filing. The Secretary of State would have to procure the number of registered voters from each county and consolidate same prior to computing the five per cent. figure and of course the petitioners would not know the minimum number of signatures required until the time of filing. On the other hand, the harmonious construction provides an easily ascertainable five per cent. figure well in advance of the time of filing. In view of these considerations, it is my opinion that the five per cent. figure should be computed from the totality of the "duly qualified and registered voters at the last general election."
Next, we must construe the phrase "duly qualified and registered voters at the last general election." Does this phrase require that the five per cent. figure be computed from the totality of registered voters eligible to vote in the last general election or from the totality of registered voters at the time of the last general election? The answer to this question lies in determining the meaning of the preposition "at". The word "at" should be construed in relation to the context and it has frequently been held to be equivalent to or synonymous with the word "in". (Upson v. Almand (1940) 190 Ga. 376, 379, 3d par., 9 SE 2d 662, 665; Farmers Cotton Oil Co. v. Brooke & Co. (1914) 14 Ga. App. 778, 782, 2d par., 82 SE 372; Jenkins v. State (1908) 4 Ga. App. 859 (1-a), 861, 62 SE 574, 576; People v. Quilici (1941) 33 NE 2d 492, 494, r. col., hdn. 2, 309 Ill. App. 466. See also Code Sec. 102-103.) Therefore, it is apparent that the voters contemplated by the Legislature are those that are duly qualified and registered for voting in the last general election. Obviously, those persons registering to vote within the six months period immediately preceding the last general election, exclusive of military registrations, would have no more right to vote in the general election than those unregistered. (Code Sec. 34-111, Ga. Laws 1958, pp. 269, 276.) Consequently, it is my opinion that the voter registration lists employed in the last general election should be utilized in ascertaining the five per cent. figure necessary to determine the numerical sufficiency of the signatures on a petition submitted for filing under the five per cent. provision.

ELECTIONS-Petitions

The term "Territory" used in the five per cent. petition law means the geographic area enveloped by the office under consideration, and signatures may be procured from any area within that geographic area.

Honorable Ben W. Fortson, Secretary of State

October 18, 1961

Thank you for your letter requesting an official opmwn whether a geographical or political dispersion is required in the procurement of the signatures

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of not less than five per cent. of the duly qualified and registered voters of the territory involved upon a petition circulated by a candidate for the office of Governor pursuant to the five per cent. petition provision of Section 34-1904 of the Code of Georgia Annotated.
The Code provision you refer to provides in part as follows:
"All candidates for national and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State ... Provided, further, that such candidate shall also file a petition for that purpose signed by not less than five per cent of the registered vot,ers in that territory or that such political party shall have cast no less than five per cent. of the votes in the last general election next preceding for the election of such officer; ... Provided, further, that any political party or candidate desiring to have a name or names placed upon the general election ballot and subject to the requirements of this section as to the percentage of votes cast in the last general election and as to a petition signed by five per cent. of the voters, shall accompany said petition with a sworn statement to the effect that each of the names appearing in said petition were duly qualified and registered voters at the last general election.... " (Emphasis supplied)
The term "territory" as used in such context means the geographic area enveloped by the office under consideration. Op. Atty. Gen. to Sec. of St., dated Sept. 29, 1960; Op. Atty. Gen. 1954-56, p. 308; and Op. Atty. Gen. 1950-51, p. 68. Applying this criterion to the office of the Governor, we find that the term "territory" signifies the State of Georgia because the Governor is elected by the people of the State and his executive power is State-wide. Const., Art. V, Sec. I, Pars. I and II (Code Sections 2-3001 and 2-3002).
Manifestly, the term "territory" does not expressly or impliedly require a geographical or political dispersion in the procurement of signatures upon the petition. Therefore, it is my opinion that such procurement may he achieved in any area or areas within the State of Georgia capable of producing the requisite number of such signatures.
ELECTIONS-Precincts (Unofficial)
Precincts may be established, changed or abolished only by the Ordinary.
June 8, 1960
Honorable Harold F. Richards
This will acknowledge receipt of your letter in which you asked the following questions:
"(1) Does the Board of Commissioners of Roads and Revenues of Taliaferro County, or the Ordinary of Taliaferro County have the right to re-establish a voting place in this District?"

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"(2) If the Board of Commissioners of Roads and Revenues has this authority, what is the legal procedure to establish a voting place in this District other than entering this on the minutes?"
Section 34-1301 of the 1933 Code of Georgia, as amended, provides as follows:
"Elections for members of the General Assembly shall be held at the courthouse of the respective counties, and if no courthouse, at some place within the limits of the county site and at the several election precincts thereof, if any, established or to be established. Said precincts must not exceed one in each militia district, except in militia districts lying in whole or in part in incorporated cities, towns and villages, in which militia districts as many precincts may be established as may be necessary and convenient for ~he holding of such elections. In the event that an incorporated city, town or municipality is divided by a militia district line, and there are no wards, then a person residing within the incorporate limits of such city, town or municipality may vote in another militia district election precinct located in said incorporated city, town, or municipality upon taking the following oath: 'I swear that I have not nor will I vote elsewhere in this election.' The registrars will furnish the election managers in such an incorporated city, town or municipality with a list of the registered voters in each of the militia districts that divide the incorporated city, town or municipality. Such precincts shall be established, changed, or abolished by the ordinaries at regular terms of their courts, descriptions of which precincts must be entered on the minutes at the time. (Acts 1893, p. 29; 1945, pp. 387, 388.)"
From reading the preceding Code Section and particularly the last sentence, it is clear that the precinct will be established, changed or abolished only by the Ordinary, as the Board of Commissioners of Roads and Revenues has no such authority. In view of the fact that the Ordinary is the proper official to change, establish or abolish the precinct, and not the Commissioners of Roads and Rev~nues, it makes it unnecessary to answer your second question.
ELECTIONS-Precincts (Unofficial)
There is no law prohibiting or establishing segregated voting precincts in Georgia.
April 27, 1960
Honorable Walter C. Stevens
I am pleased to acknowledge your letter relative to separate voting precincts for white and colored.
The law of Georgia is silent as to whether election officials may or may not set up separate election precincts for the white and colored. races. The law neither expressly authorizes such practice nor prohibits it. Code Section 34-1301 of the Annotated Code of Georgia provides how election precincts may be established, changed or abolished as follows:

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"34-1301. (79) Election precincts.-Elections for members of the General Assembly shall be held at the courthouse of the respective counties, and if no courthouse, at some place within the limits of the county site and at the several election precincts thereof, if any, established or to be established. Said precincts must not exceed one in each militia district, except in militia districts lying in whole or in part in incorporated cities, towns and villages, in which militia districts as many precincts may be established as may be necessary and convenient for the holding of such elections. In the event that an incorporated city, town or municipality is divided by a militia district line, and there are no wards, then a person residing within the incorporate limits of such city, town or municipality may vote in another militia district election precinct located in said incorporated city, town or municipality upon taking the following oath: 'I swear that I have not nor will I vote elsewhere in this election.' The registrars will furnish the election managers in such an incorporated city, town or municipality with a list of the registered voters in each of the militia districts that divide the incorporated city, town or municipality. Such precincts shall be established, changed, or abolished by the ordinaries at regular terms of their courts, descriptions of which precincts must be entered on the minutes at the time. (Acts 1893, p. 29; 1945, pp. 387, 388.)"
You will note that the authority to make provisions for election precincts is largely a matter of administration which is vested in the ordinary.
I will not undertake to express an opinion as to whether there has been any violation of Federal laws in your county, first, because I understand the matter is now being investigated by the Justice Department, and, second, because the United States Supreme Court has demonstrated such a disrespect for precedent that it is difficult to determine from day to day what the United States Constitution will be interpreted to mean.
ELECTIONS-Primaries (Unofficial)
Primaries are political matters handled exclusively by the local party executive committee and Ordinaries have no power or duties in that connection.
July 25, 1960
Honorable K. P. Lowe
I wish to advise you that a County Democratic Primary is a political matter handled exclusively by the County Democratic Executive Committee. A primary is held to nominate a candidate to run in the General Election in November 1960.
The Ordinary of a county under the law has no powers or duties in connection with a primary of a political party. The Ordinary handles elections and you are charged with the duties and responsibilities in connection with the General Election in November of 1960; that is, the placing of names on the ballot of those who have been nominated by a political party and those who desire to be Independent candidates for a particular specified county office.

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ELECTIONS-Records (Unofficial)
The keeping of separate voting records and polling places by race is illegal.
July 12, 1961 Honorable H. G. Rawls
This letter is written pursuant to our conversation of last week wherein you stated that the election officials maintain separate voting lists and polling places in the City of Albany and that suit has been instituted seeking the integration of such faciliti;es; and requested that I furnish you with citation of any Federal cases concerning specifically the integration of voters' lists and polling places.
My research reveals a paucity of Federal cases concerning this matter. However, please note the case of United States v.. Raines, 189 F. Supp. 121 (1960), instituted by the Attorney General of the United States pursuant to the provisions of 42 USCA, Sec. 1971, wherein the United States District Court for the Middle District of Georgia, Americus Division, Judge Bootie opining, held as illegal the keeping of separate registration and voting records for whites and Negroes according to race, id., p. 133, 'r. col., 1. par., and permanently enjoined the Board of Registrars of Terrell County, Georgia, from failing to accord any Negro citizen of said county, in a fair, impartial and nondiscriminatory manner, each and every ;right such citizen has or may have under the election laws, customs, usages and regulations of the State of Georgia and under the Constitution and laws of the United States pertaining to suffrage. id., p. 136, 1. col., 2d par.
ELECTIONS-Recounts (Unofficial)
When a recount is required, and whom is entitled thereto.
February 15, 1960
Honorable Holmes W. Giddens
Pursuant to your request relative to the number of votes necessary for a recount in a county primary your attention is called to the provisions of Section 34-3225 of which is codified from the Acts of 1941, pp. 432, 433, and which the pertinent parts thereof provide as follows:
"34-3225. What candidates may demand recount.-Any defeated candidate in any such primary election who received thirty-three and one-third per cent. of the total vote cast in any county for the particular office for which he was a candidate, as determined by the result of the first count or canvass of the votes cast at any such primary election ... shall have the right to demand of the county executive committee of such county ... a recount of the ballots cast in any such election for the particular office for which he was a candidate. . . . "
Under the clear provisions of the above statute a defeated candidate for nomination in a county election must have polled thirty-three and one-third per cent. of the total votes cast in said primary in order to be entitled to a recount. If a defeated candidate for nomination in said primary does not receive thirtythree and one-third per cent. of the total votes as above stated such person would not be legally entitled to a recount.

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ELECTIONS-Registrars (Unofficial)
Compensation of Registrars and how determined.
September 16, 1960
Mr. K. E. (Kent) Jones
You request me to advise you regarding the payment of the Board of Registrars for their services.
Under the 1958 Act, the "Chief Registrar" shall be compensated in an amount not less than $10.00 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.
As an alternative this law also provides that the per diem compensation of the Chief Registrar may be not less than $75.00 per month, and the other Registrars not less than $50.00 per month. It also provides that whatever compensation per diem the Chief Registrar and other Registrars receive s1hall be fixed subject to the within limitations by the governing authority of each county and shall be paid from county funds.
It is obvious that the amount to be paid the Chief Registrar and the other Registrars is a matter of discretion with the governing authority who is the Board of Commissioners, and that these authorities have a mandate from the Legislature through the 1958 Act to fix such compensation as they may deem fair in the premises, and to pay the same within a reasonable time.
It is also obvious that the 1958 Act authorizes the Chief Registrar and the other Registrars to conduct their business as many days each week as they deem necessary and advisable under the circumstances, in which case their compensation will be determined according to the within maximum and minimum limitations.
ELECTIONS-Registrars (Unofficial)
The county board of registrars may change its time of meeting.
August 8, 1961
Honorable J. S. Martin
Thank you for your letter addressed to the Secretary of State and forwarded to the Attorney General for reply, wherein you stated that the voter registration meetings of the Board of Registrars of Lamar County, Georgia, are scheduled six weeks apart, that the next meeting is scheduled for August 26, 1961, and that certain citizens of the County have requested that such meeting be accelerated to August 25, 1961, for the purpose of facilitating the registration of voters for an impending municipal election of the City of Barnesville; and inquired as to the propriety of such request.
In my opinion, it would be proper for the Board of Registrars to comply

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with the request for the August 25 meeting. Furthermore, please note Sections 34-110 and 34-111 of the Code of Georgia, Annotated, which provide as follows:
"34-110. Same place of keeping; maintaining office where applications for registration will be taken.-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. (Acts 1958, pp. 269, 276.)"
"34-111. Applications for registration; suspension six months before general election and while general election list being prepared.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 application. (Acts 1958, pp. 269, 276.)"
ELECTIONS-Registrars (Unofficial)
Applicability of statutory advertisement proVISions to action of Grand Jury in naming candidates for county registrars.
January 3, 1961
Honorable Stephen Pace, Jr.
Thank you for your letter inquiring as to the applicability of the advertisement provisions of Sections 59-318 and 59-319 of the Code of Georgia Annotated, to the action of the Grand Jury in submitting the names of six citizens to the Judge of the Superior Court as candidates for the three offices composing the County Registrars as provided in Code Section 34-103.
The advertisement provisions of Code Section 59-318 are applicable whenever "the Grand Jury of any county shall elect, select or appoint any person to any office." The six citizens recommended by the Grand Jury pursuant to Code Section 34-103 acquire no office by such recommendation but only a candidacy. Obviously, three of the six candidates will not be appointed to the office of County Registrar. Consequently, it is my opinion that the advertisement provisions of Code Sections 59-318 and 59-319 are not applicable to the recommendations of the Grand Jury provided for in Code Section 34-103.

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Also, in connection with this matter, please note the case of Smith v. Walker (1959) 215 Ga. 385.
ELECTIONS-Registrars (Unofficial)
There is no minimum amount of time which is required to be spent with each applicant in performance of the duties of registrar.
November 14, 1961
Honorable F. H. Boney
Thank you for your letter inquiring as to whether or not the Voters' Registration Act of 1958, Chapter 34-1 of Georgia Code Annotated, specifies a minimum amount of time which must be devoted by the County Registrars to the performance of their duties under the Act and whether or not it is mandatory that the County Registrars conduct an examination of each applicant for registration, either on the basis of literacy or on the basis of good character and understanding of the duties and obligations of citizenship under a Republican Government.
In answer to your first inquiry, it is my opinion that the Act specifes no minimum amount of time which must be devoted by the County Registrarslto the performance of their duties, however, please note the following Code Sections:
"34-110. 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. (Acts 1958, pp. 269, 276.)"
"34-111. 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. (Acts 1958, pp. 269, 276.)"
"34-142. The registrars shall meet at the court house during voting hours of each election day for the purpose of considering the qualification of voters whose names may have been omitted by inadvertence of mistake from the list of registered voters. The registrars shall be authorized to place the names of such voters on the registration list. (Acts 1958, pp. 269, 292.)"

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In answer to your second inquiry, it is my opinion that Code Sections 34-114 and 34-117 require that the County Registrars conduct an examination of each applicant for registration and that each successful applicant must qualify for registration either on the basis of literacy or on the basis of his good character and his understanding of the duties and obligations of citizenship under a Republican Government. The basis of qualification is, of course, selected by the applicant. (Code Section 34-117.)
ELECTIONS-Registrars (Unofficial)
Tax commissioners or collectors are not entitled to any additional compensation for service as a deputy to the board of registrars.
July 19, 1960
Honorable J. H. Cason
I am pleased to acknowledge your letter relative to the compensation for a tax commissioner for the performance of duties in the registration of voters.
Code Section 34-106 of the Annotated Code of Georgia provides:
"34-106. Same; deputies.-The tax commissioner or tax collector of the county shall be a deputy to the board of registrars and shall perform the duties required of him under this Chapter. 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. (Acts 1958, pp. 269, 273.)" Code Section 34-103 of the Annotated Code of Georgia provides:
"34-103. County registrars; designation; appointment; terms of office; compensation; duties of chief registrar.-The chief registrar shall be the chief administrative 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, the chief registrar may be compensated 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 Chapter 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. (Acts 1958, pp. 269, 270.)"
The above Code Section is the only Code Section which provides for the compensation of registrars. There is no reference to deputy registrars as to com-

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pensation. It does provide for compensation for other officers and employees appointed and employed under the provisions of Chapter 34-100. However, the tax commissioner is not appointed by the board of registrars but is delegated the duties as set forth in Code Section 34-106 as a part of his office and there is no reference to any compensation for such services.
I do not find any Appellate Court decision on this question; therefore, it appears that it would be one which directs itself to the General Assembly.
ELECTIONS-Registration (Unofficial)
Cancellation of registration for non-voting discussed.
March 15, 1961
Honorable Irene B. Scott
Thank you for your letter requesting an interpretation of the cancellation of registration for non-voting provisions of Section 20 of the Voters' Registration Act of 1958 (Ga. Laws, 1958, p. 269) as the same was amended at the last Session of the General Assembly. A copy of this amendment is enclosed herewith.
As you know, the amendment to Section 20 became effective February 27, 1961, and the date for the next biennial cancellation of registration provided for by Section 20 is April 1, 1961, and, consequently, all voters whose registrations are cancelled for non-voting on April 1, 1961, must not have voted in a Federal, State or County, general or primary election within the three-year period immediately preceding January 1, 1961. The next cancellation of registration for nonvoting under Section 20, subsequent to the one on April 1, 1961, will not occur until April 1, 1963.
ELECTIONS-Registration (Unofficial)
Determination of date on which county registrars are to cease taking applications for voter registration.
November 22, 1961
To All County Registrars
The purpose of this Memorandum is to determine the dates on which the County Registrars shall cease taking applications from persons desiring to vote in the 1962 General Election and any primary to nominate candidates for the offices to be filled at such General Election. Obviously, such a consideration is essentially dichotomous in character and, therefore, we shall devote the following paragraph to determining the registration cessation date for the 1962 General Election and thereafter several of the succeeding paragraphs to the possible registration cessation date for any primary prefatory thereto. It should be noted at the beginning that the salient authority governing our consideration of this matter is the 1958 Registration Act (Acts, 1958, pp. 269-295, as amended) which is codified as Chapter 34-1 of the Code of Georgia, Annotated.

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The law provides that the next General Election for the Governor, the State House Officials, United States Senator, members of Congress, Justices of the Supreme Court, Judges of the Court of Appeals, Judges of the Superior Courts and Solicitors General shall be held on Tuesday, November 6, 1962, herein referred to as the 1962 General Election (Code Sections 2-1602; 2-3002; 2-3101; 2-3703; 2-3708; 2-3802; 2-4501; 2-4601; 2-6601; 34-1302; 34-2302; 34-2401) and that the County Registrars shall cease taking applications from persons desiring to vote in such General Election at the close of the Registrars' business on Saturday, May 5, 1962 (Code Section 34-111; Acts 1958, pp. 269, 276; Op. Atty. Gen. 1957, p. 129; id., 1952-53, p. 355; id., 1950-51, p. 69). The County Registrars, not later than Friday, April 20, 1962, must begin the preparation of a list of the qualified voters of their county to be used in the 1962 General Election and must complete such list not later than Wednesday, August 1, 1962 (Code Section 34-122; Acts 1958, pp. 269, 283). Within five days after completing said list, the County Registrars must file certified copies of same with the Clerk of the Superior Court of their County and the Secretary of State and, consequently, the latest said list can be legally filed is on Monday, August 6, 1962 (Code Section 34-123; Acts 1958, pp. 269, 284). It should also be noted that the earliest said list can be filed is on Monday, May 7, 1962, because the registration cessation date for the 1962 General Election is on Saturday, May 5, 1962.
In turning our consideration t<> determining the registration cessation date for any primary to nominate candidates for the offices to be filled at the 1962 General Election, we should first recognize that whenever any political party shall hold a primary for the nomination of candidates for the offices of Governor, State House Officials, United States Senator, members of Congress, Justices of the Supreme Court, Judges of the Court of Appeals, Judges of the Superior Courts and Solicitors General, prefatory to the 1962 General Election, the said primary shall be held on one and the same date throughout the State, which date shall be fixed by the State Executive Committee of such party, but shall not be earlier than Friday, June 1, 1962, nor later than Saturday, September 15, 1962 (Code Section 34-3608; par. 2; Acts 1953, pp. 244, 247; 1953, Nov. Sess. pp. 335, 336; 1961, p. 432). Next, we should construe Code. Sections 34-101, (Acts 1958, pp. 269, 270), 34-123 (Acts 1958, pp. 269, 284) and 34-124 (Acts 1958, pp. 269, 284) which provide as follows:
34-101. ... Unless the context clearly indicates otherwise, 'election,' as used in this Chapter, 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. (Emphasis Supplied.)
34-123. Within five days after completing said list of qualified voters, the registrars shall file with the clerk of the superior court of their county a certified list as prepared and determined by them. Within the same time, the registrars shall furnish the Secretary of State a certified copy of such list.... the said list shall be the list of the registered and qualified voters for the general election to be held in said year for members of the General Assembly. No person whose name does not appear on said list shall vote or be allowed to vote at said general election or at any party primary to nominate candidates for the offices to be filled at said general election, except as hereinafter provided.
34-124. Each person whose name appears on said list, and who is

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not found to be disqualified subsequent to the filing of said list, shall be entitled to vote in any election held during the period subsequent to the filing of said list and before the filing of the next such list.... (Emphasis Supplied.)
The registration lists prepared by the County Registrars for the 1962 General Election are governed by the above Code Sections and, furthermore, the term "election" as used in the latter Code Section manifestly includes a primary because of the definition stated in Code Section 34-101. Therefore, any person whose name appears on the registration list prepared for the 1962 General Election may vote in any primary prefatory thereto held subsequent to the filing of such registration list. As we have noted above, the latest such registration list can be filed is on Monday, August 6, 1962, therefore, if a primary prefatory to the 1962 General Election was held after that date, then the registration cessation date would be the same as for such General Election, to-wit, Saturday, May 5, 1962.
We should now recognize that the interval from Monday, May 7, 1962 (the earliest that the registration list for the 1962 General Election can be filed), to Monday, August 6, 1962 (the latest such list can be filed), is a transitional period for the Registrars of Georgia's 159 Counties. If a primary prefatory to the 1962 General Election is held during this transitional period, then the counties which had filed the registration list for such General Election prior to the primary would use such list based on a registration cessation date of Saturday, May 5, 1962, and the counties which had not filed such list prior to the primary would use the registration list for the 1960 General Election, as purged and supplemented, based on a registration cessation date six months before the primary, pursuant to Code Section 34-125 (Acts 1958, pp. 269, 285) which provides as follows:
34-125. If any person whose name is not on said registration list desires to vote at any election subsequent to the general State election, whether in said year or in the succeeding year, he shall at least six months before the election at wh.ich he desires to vote, apply to be registered as a voter, and his application shall be processed in the same manner as the applications of persons qualifying to vote in the general election. The registrars shall, six months before such election other than the general State election, cease taking applications to qualify persons to vote in such election and shall within 25 days thereafter pass upon such qualifications in the same manner as in other cases and file with the clerk of the superior court a supplemental list showing the names of additional voters who are entitled to vote at such election subsequent to the general election. Any person whose name appears upon said list may vote at such election: Provided, that the registrars shall purge said list before filing it of the names of all persons who will not be qualified to vote at said election. All voters on said list shall have the same rights as to elections subsequent to such election as persons on the list for the general election: Provided, that at any special election the provisions of the next succeeding section shall be followed as to registration and voting.
It is obvious that during the transitional period the County Registrars are the controlling factor in determining the registration cessation date for any primary prefatory to the 1962 General Election held in their county because they can schedule the filing of the registration list for such General Election on any

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date they desire within the transitional period by accelerating or decelerating their work of preparing such list.
It should also be noted that the 1958 Registration Act (Code Chapter 34-1) is the direct descendant of the 1949 Registration Act (Acts 1949, pp. 1204-1227) as is evidenced by the strong hereditary bond between the two. Significant in this bond is the obvious similarity between Code Sections 34-123, 34-124, and 34-125 and Sections 28, 29 and 30 of the 1949 Act, respectively. The construction placed on such Code Sections in this Memorandum is consistent with the construction placed on such Sections of the 1949 Act in an opinion of the Attorney General reported in the Op. Atty. Gen. 1954-56, at page 321.
Registrations by members of the military service and their dependants pursuant to Code Chapter 34-36 (Acts 1953, pp. 244-251, as amended) are excepted from this Memorandum.
The opinion of the Attorney General to the Secretary of State, dated March 9, 1960, insofar as it is in conflict herewith, is hereby overruled.
ELECTIONS-Registr~tion
Persons obtaining employment in another county but maintaining legal residence in home county do not have to appear personally before county registrars to execute affidavit under oath of maintaining residence.
May 26, 1960
Honorable Ben W. Fortson, Jr. Secretary of State
This is in reply to your letter in which you pointed out that the Elections Commission has received an inquiry from the Chief Registrar of Liberty County as to whether or not, in pursuance of Act No. 585 of the 1960 General Assembly, the Registrars of Liberty County are authorized to prepare and mail to those persons on the voting list of the County who actually reside outside the County affidavits to be sworn to and returned to the Registrars. You request my official opinion on this question.
Act No. 585 of the 1960 General Assembly is an amendment to the Voters' Registration Act of 1958 and constitutes paragraph (c) of Section 36 of that Act. It reads as follows:
"(c) In the event that a person obtains employment in a county other than the county of his residence but does not intend to move his legal residence to such county, the registrars are hereby authorized to retain such person's name on the voting list if such person's name would be kept on such list except for the question of residence, provided such person makes an affidavit under oath to the registrar that he does not intend to move his legal residence from the county and desires that his name be retained on the voting list."
Paragraph (c) plainly requires that in order that a person who actually resides in a county other than the county of his legal residence may retain his

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name on the voting list of the county of his legal residence, he must make an affidavit under oath to the registrar that he does not intend to move his legal residence from the county and desires to continue voting there. The language of paragraph (c) does not require in express terms that the affidavit must be made in person before the registrar, nor does it indicate an intention on the part of the Legislature that a person making such an affidavit must do so personally before the registrar.
It is my opinion, therefore, that the Board of Registrars of Liberty County in complying with the provisions of paragraph (c) may prepare and mail affidavits to those persons on the voting list of the County who actually reside in other counties and require the affidavit to be sworn to before an officer authorized to administer oaths and returned to the Registrars in order that those persons may be retained on the voting list in Liberty County.
ELECTIONS-Regist11~tion
The 1958 Voters' Registration Act does not repeal the previous provision for registration of servicemen codified as Chapter 34-36 of Code Annotated.
March 16, 1960
Honorable Ben W. Fortson, Jr. Secretary of State
I am pleased to acknowledge your request for my opinion whether the 1958 Voters' Registration Act repealed the law known as the "Participation in Elections by Men and Women in the Military Service Act" as codified under Chapter 34-36 of the Annotated Code of Georgia.
I have reviewed the 1958 Voters' Registration Act, and nowhere therein is contained a specific repeal of the "Participation in Elections by Men and Women in the Military Service Act" as set forth in Chapter 34-36 of the Georgia Code; therefore, it is my opinion that the 1958 Voters' Registration Act did not repeal said law.
It is my opinion that it is the duty of the tax collectors, tax commissioners and registrars of the several counties of the State to provide for members of the military of the United States who are citizens of Georgia as provided in said Act (Chapter 34-36) a registration card as prescribed in said Act upon request of any member of the military of the United States, his relative or friend, who come under the provisions of said Act.
It is my further opinion that such citizens of Georgia in the military service as defined in said Act are entitled to register and vote at any time prior to an election or primary to nominate candidates for such election.
This law was enacted as an exception to the Voters' Registration Act in effect at the time of its enactment, and was for the purpose of allowing the citizens of Georgia who were in the military service of the United States throughout the World and were unable to be present in their State to register and vote in elections and primaries. Today citizens of Georgia are serving in the military service of their Country throughout the World, the same as when the law in question

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was enacted. As of this date the General Assembly of Georgia has not "repealed or modified" this law as provided specifically in Code Section 34-3621, and it is my opinion that said Act is continued in force until the General Assembly specifically repeals or modifies the same.
ELECTIONS-Registration (Unofficial)
Registration of persons to vote in a school district bond election.
March 30, 1961
Honorable Bethel Salter
This letter is written in connection with the registration of persons to vote in a special election held pursuant to Chapters 32-14 and 87-2 of the Code of Georgia Annotated to determine the question of whether the School District Upson County shall incur any bonded debt for the building and equipping of schoolhouses.
The polestar authority governing the registration of persons to vote in such an election is Paragraph I of Section VII of Article VII of the Constitution of the State of Georgia of 1945 (Code Annotated Section 2-6001) which provides as follows:
"2-6001. The debt hereafter incurred by any county, municipal corporation or political division of this State except as in this Constitution provided for, shall never exceed seven per centum of the assessed value of ail the taxable property therein, and no such county, municipality or division shall incur any new debt except for a temporary loan or loans, to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of a majority of the qualified voters of the county, municipality or other political subdivision voting in an election for that purpose to be held as prescribed by law; and provided further that all laws, charter provisions an ordinances heretofore passed or enacted providing special registration of the voters of counties, municipal corporations and other political divisions of this State to pass upon the issuance of bonds by such counties, municipal corporations and other political divisions are hereby declared to be null and void.; and the General Assembly are hereafter have no power to pass or enact any law providing for such special registration, but the validity of any and all bond issues by such counties, municipal corporations or other political. divisions made prior to January 1, 1945, shall not be affected hereby; provided, that any county or municipality of this State may accept and use funds granted by the Federal Government, or any agency thereof, to aid in financing the cost of architectural, engineering, economic investigations, studies, surveys, designs, plans, working drawings, specifications, procedures, and other action preliminary to the construction of public works, and where the funds so used for the purposes specified are to be repaid within a period of ten years." (Emphasis supplied.)
The registration provisions emphasized in the above Paragraph of the Constitution originated from an amendment of its predecessor, Paragraph I of Sec-

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tion VII of Article VII of the Constitution of the State of Georgia of 1877 (Section 2-5501 of the 1933 Code), proposed by the General Assembly in 1918 (Ga. Laws, 1918, p. 99) and ratified by the people on November 5, 1918.
The Supreme Court of Georgia has defined the forbidden special registration in the following terms:
"... A special registration as distinguished from a general registration is one designed for a particular election and which becomes functus officio when the election under which it was held has been had, that is to say, when the registration can not be used for any other purpose. A general registration is one made up under general rules...." Brown v. City of Atlanta (1921) 152 Ga. 283 (2), at p. 294, 1st par. See also Foster v. City of College Park (1922) 153 Ga. 112(1), at p. 116, 2d par.; CoWtart v. City of Waycross (1924) 159 Ga. 589(2), at p. 592, 2d par.; and Terreii v. Forest Park Consolidated School District (1932) 175 Ga. 88(1), at p. 90.
The above registration provisions have been construed by the Attorney General in several opinions which are reported in the Opinions of the Attorney General 1945-47, at p. 237; id., 1939-41, at pp. 221 and 223; id., 1935-36, at p. 44; and id., 1933-34, at p. 148.
ELECTIONS-Special Elections (Unofficial)
A special election is required to determine whether a school district shall incur a bonded debt.
May 1, 1961
Mr. Weldon McNair
Thank you for your letter making certain inquiries as to voting in a special election held pursuant to Chapters 32-14 and 87-2 of the Code of Georgia Annotated, to determine the question of whether a certain school district shall incur any bonded debt for the building and equipping of schoolhouses.
In connection with your inquiry, please note Paragraph I of Section VII of Article VII of the Constitution of the State of Georgia of 1945 (Code Section 2-6001) which is self-explanatory and provides as follows:
2-6001. (6563) Paragraph I. Debts of counties and cities.-The debt hereafter incurred by any county, municipal corporation or political division of this State except as in this Constitution provided for, shall never exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality or division shall incur any new debt except for a temporary loan or loans, to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of a majority of the qualified voters of the county, municipality, or other political subdivision voting in an election for that purpose to be held as prescribed by law; and provided further that all laws, charter provisions and ordinances heretofore passed or enacted providing special registra-

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tion of the voters of counties, municipal corporations and other political divisions of this State to pass upon the issuance of bonds by such counties, municipal corporations and other political divisions are hereby declared to be null and void; and the General Assembly shall hereafter have no power to pass or enact any law providing for such special registration, but the validity of any and all bond issues by such counties, municipal corporations or other political divisions made prior to January 1, 1945, shall not be affected hereby; provided, that any county or municipality of this State may accept and use funds granted by the Federal Government, or any agency thereof, to aid in financing the cost of architectural, engineering, economic investigations, studies, surveys, designs, plans, working drawings, specifications, procedures, and other action preliminary to the construction of public works, and where the funds so used for the purposes specified are to be repaid within a period of ten years.
ELECTIONS-Special Elections (Unofficial)
Registration and qualifications of voters for special elections discussed.
November 4, 1960
Honorable R. B. Maxwell
This letter is written pursuant to your inquiry as to the registration of persons to vote in a special election called pursuant to Section 58-1003 of the Code of Georgia Annotated.
In connection with your inquiry, please note Code Section 34-126 which provides as follows:
"34-126. Any person who has registered for a general election, if otherwise qualified to vote at any special election before the next general election, shall be listed and entitled to vote at such special election. Five days after the call of said special election, the registrars shall cease taking applications from persons desiring to register and qualify to vote therein, and proceed to examine into the qualifications of the applicants in the same manner as herein provided with reference to applicants desiring to qualify to vote in general elections. The registrars shall then prepare a supplemental list showing the names of additional voters who are entitled to vote at such special election, and any person whose name appears on said list may vote at such special election, but the registrars shall purge said list before filing it of all persons who will not be qualified to vote, in the same manner as provided with reference to the list for the general election. A certified list so prepared and arranged alphabetically and divided according to districts, precincts and wards as in the case of general election lists, shall be filed in the office of the clerk of the superior court within 10 days after the call of said special election. Within the same time, a certified copy of such list shall likewise be furnished to the Secretary of State. It shall be the duty of the registrars upon the call of a special election to purge the list of registered voters prepared for the last general election of any names subsequently disquali-

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fied for any reason and to furnish the managers of such special election two lists, one composed of the names of voters entitled to vote by reason of their registration and qualification for the last general election, and the other made up of the names of those entitled to vote by reason of their subsequent registration as hereinbefore provided, and no one shall be entitled to vote in said special election unless his name is on one of the lists furnished by the registrars. The registrars are hereby authorized to combine said lists."
ELECTIONS~Voter Qualifications (Unofficial)
Conviction of a misdemeanor may or may not disqualify a voter.
January 15, 1960
Honorable Charles M. Cork
This office is in receipt of your letter in which you ask whether an individual who has been convicted of a violation of Section 54-9916 of the Code of Georgia, as amended, which provides punishment as for a misdemeanor would disqualify that individual from registering to vote.
As you know, Article II, Section II, Paragraph I, of the Georgia Constitution provides as follows:
"Paragraph I. Registration of electors; who disfranchised.-The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such person shall have been pardoned. 2nd. Idiots and insane persons."
Since the individual in this particular case has been convicted of a misdemeanor, the problem then arises as to whether the person so convicted could be punished with imprisonment in the penitentiary. My opinion is that the individual could not for the reason that Section 102-103 of the Code of Georgia, as amended, states:
"The following meaning shall be given to the following words in all statutes, unless a different meaning is apparent from the context: ...
"Penitentiary means any place where felony convicts are confined at hard labor, under the authority of any law of this State."

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ELECTIONS-Voter Qualifications (Unofficial)
Qualifications of voters discussed.
August 5, 1960
Mrs. Joseph A. Remley
Your letter concerning voting qualifications in the State of Georgia has been referred to this office for reply.
In response to your first question whether the State of Georgia has a poll tax, I am pleased to advise you that the State of Georgia does not have a poll tax.
In your second question you asked whether the State of Georgia requires that a literacy test be given. The answer is in the affirmative provided those applicants that apply for registration seek to qualify on the basis of literacy. An applicant is to appear before the Board of Registrars for an examination and the Board submits to him a section of the Constitution of Georgia or of the United States and the applicant shall be required to read it aloud and write it in the English language. If the applicant applies for registration and seeks to qualify on the basis of his good character and his understanding of the duties and obligations of citizenship under a republican form of government, he shall be given an examination based upon a standard list of questions as hereinafter provided.
"34-119. Standard list of questions.-The standard list of questions which shall be propounded to each applicant is as follows:
1. What is a republican form of government?
2. What are the names of the three branches of the United States government?
3. In what State Senatorial District do you live and what are the names of the county or counties in such district?
4. What is the name of the State Judicial Circuit in which you live and what are the names of the counties or county in such circuit?
5. What is the definition of a felony in Georgia?
6. How many Representatives are there in the Georgia House of Representatives and how does the Constitution of Georgia provide that they be apportioned among the several counties?
7. What does the Constitution of Georgia prescribe as the qualifications of Representatives in the Georgia House of Representatives?
8. How does the Constitution of the United States provide that it may be amended?
9. Who is the Chief Justice of the Supreme Court of Georgia and who is the Presiding Justice of that court?
10. Who may grant pardons and paroles in Georgia?
11. Who is the solicitor general of the State Judicial Circuit in

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which you live and who is the judge of such circuit? (If such circuit has more than one judge, name them all.)
12. If the Governor of Georgia dies, who exercises the executive power, and if both the Governor and the person who succeeds him die, who exercises the executive power?
13. (a) What does the Constitution of the United States provide regarding the suspension of the privilege of the writ of Habeas Corpus? (b) What does the Constitution of Georgia provide regarding the suspension of the writ of Habeas Corpus?
14. What are the names of the persons who occupy the following State offices in Georgia? (1) Governor (2) Lieutenant Governor (3) Secretary of State (4) Attorney General (5) Comptroller General (6) State Treasurer (7) Commissioner of Agriculture (8) State School Superintendent (9) Commissioner of Labor
15. How many Congressional Districts in Georgia are there and in which one do you live?
16. What is the term of office of a United States Senator?
17. What is the term of office of a State Senator?
18. What is the county site of your county?
19. How does the Constitution of Georgia provide that a county site may be changed?
20. What are the qualifications for jury service in Georgia?
21. What are the names of the persons who occupy the following offices in your county? (1) Clerk of the Superior Court (2) Ordinary (3) Sheriff
22. How may a new state be admitted into the Union?
23. On what day and how often is the general election held in Georgia at which members of the General Assembly of Georgia are elected?
24. What does the Constitution of the United States provide regarding the right of citizens to vote?
25. In what Federal Court District do you live?

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26. What are the names of the Federal District Judges of Georgia?
27. Who are citizens of Georgia?
28. What is treason against the State of Georgia?
29. In what body does the Constitution of the United States declare that the legislative powers granted in such Constitution shall be vested?
30. How many electoral votes does Georgia have in the electoral college? (Acts 1958, pp. 269, 279.)"
Your third question asked if there are any other qualifications except residence and registration. The answer is yes. You must take an oath to the effect that you are at least eighteen (18) years of age; that you have resided in this State for one (1) year and in the county for six (6) months immediately preceding the date of the oath; that you believe you possess the qualifications of an elector required by the Constitution of the State of Georgia; that you are not registered in any other county; and, that you are not registered under any other name.
There are several other questions that are propounded to the applicant, but they are rather lengthy and of such a standard nature that I do not believe that you meant to have all of them stated. They are such questions as the date of birth, place of birth, etc. Should you have any further questions, the Law Department will be more than h"appy to answer them for you.
ELECTIONS-Voter Registration (Unofficial)
Registration books must be closed six months before the election.
April 18, 1960
Mr. B. M. Jones
Your letter in which you request to know when the law requires that registration books must close prior to a county election has been referred to this office for reply.
The answer to the question you posed is found in Section 34-111, Georgia Code Annotated, as construed in the light of Section 34-101, Georgia Code Annotated. Section 34-111 requires that, in each year in which there is a general election for members of the General Assembly, the registrars shall cease taking applications from person desiring to register to vote in the general election six (6) months prior to said election. That this provision refers to county elections is made clear by Section 34-101 which specifies that the word "election" as used in the Voter Registration Act of 1958 shall refer to any federal, State, or county election for any purpose whatsoever, unless the context of a particular provision of the Act indicates otherwise. Further, the election of county officers, by virtue of Section 34-2602, Georgia Code Annotated, coincides with the general election of the members of the General Assembly and is an integral part of the general election every fourth year. Since it clearly appears .that Section 34-111 which

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governs the registration of voters for general elections, is applicable to the registration of voters for county elections, the registrars of your county are therefore required to cease taking applications from persons desiring to register to vote in said county election six (6) months prior to the date of that election.
ELECTIONS-Voter Registration (Unofficial)
History of laws pertaining to voter registration discussed.
March 4, 1960
Honorable L. C. Rhodes
I am pleased to acknowledge your letter in which you cite Code Sections 34-109 and 34-9902.
The Constitution of 1945 changed the organic law relating to registration (Code Section 2-701 to 2-706 and 2-801), and the General Assembly in 1949 (Acts 1949, p. 1204) enacted a completely new law, the expressed intent and purpose of which was to "provide for a new and exclusive method of qualifying voters, such revision being necessary in order to make the laws of the State conform to the requirements of the Constitution of Georgia adopted in the year 1945." For this declaration of intent, see Section 55 of the Act, p. 1227.
The evident purpose of the General Assembly was to repeal all the prior registration laws contained in the main part of this work, with all subsequent amendments.
The Act of 1949 was, in turn, superseded by Acts 1958, p. 269. Since the new law is a unified whole it was deemed best to codify all of it in one chapter, instead of splitting it into separate chapters in the manner in which the prior law was codified. Therefore, all the Act of 1958 is codified as Chapter 34-1, except that the penal sections are codified in Chapter 34-99, as Sections 34-9901, 34-9902, and 34-9903, replacing the sections of the former law codified in the main work under those numbers.
Code Section 34-109 now reads as follows:
"34-109. Same; custody; administration and attestation of oath required of elector.-The registrars shall have charge of the registration cards. Any registrar or any deputy registrar may administer the oath required of a person applying for a registration and attest the same. (Acts 1958, pp. 269, 275.)"
Code Section 34-9902 now reads as follows:
"34-9902. Violations by registrars of provrswns of Chapter 34-1 relating to signing oath on registration card.-Any registrar, or any deputy registrar, who shall permit any person to sign the voters' oath on the registration card, unless such person shall have actually made the oath before him as provided by Chapter 34-1 shall be guilty of a misdemeanor. (Acts 1958, pp. 269, 294.)"

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ELECTIONS-Voter Registration Purging or voter registration lists discussed.

May 6, 1960

Honorable Bill Westbrook
Replying to your letter requesting information concerning the purging of the registration list, your attention is called to the provisions of section 34-127 of the Annotated Code of Georgia, codified from the Acts of 1958, pages 269-286, which is known as the "Registration of Voters' Act of 1958", and which reads as follows:
"34-127. Right of registrars to re-examine qualifications of electors listed.-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 section 34-128, codified from the above cited statute, which reads 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."
Your attention is also called to section 34-129 of the Annotated Code of Georgia, codified from the above cited statute, which provides as follows:
"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."
Your attention is further called to the provisions of code section 34-130 of the Annotated Code of Georgia, codified from the above cited Act, which provides as follows:

"34-130. Notice of hearing to voter 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."

You will note that every person is entitled to receive a written notice of the time and place of a hearing to be set by the Board of Registrars to determine whether or not such registered voter may be removed from the voting list, and that said person must be served as provided in the above cited statutes.

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Your attention is also specifically called to the general law of this State that once a person has established his legal residence, then the question as to whether or not he has removed his legal residence is a question of fact under which intent is the principal determining factor. A person may be a legal resident of one place and an actual resident of another; he may reside in one county without surrendering his legal residence in another if he so intends. In this connection see Hardman v. Hardman, 179 Ga. 34(7); Knight v. Bond & Brother, 112 Ga. 828(5); Bush v. The State, 10 Ga. App., 644; Alvaton Mercantile Company v. Caldwell, 34 Ga. App. 151(a).
Your attention is also called to Section 79-406 of the Annotated Code of Georgia, which provides:
"The domicile of a person sm 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."
ELECTIONS-Voters (Unofficial)
Qualifications and places of voting for military personnel and dependents.
July 11, 1960
Miss Lucille B. Wood
I am pleased to acknowledge your letter in which you ask the following questions:
"1. Are members of the armed forces residing on a military reservation qualified voters? ...
"2. If a member of the armed forces, and his wife, resides in the county, and beyond the boundaries of a military reservation, if he has lived in Georgia a year, and Liberty County six months, he and she may register at any time and vote in any election subsequent to his proper registration.
"3. If a member of the armed forces had his legal residenc3 in Liberty County, his wife's was in Glynn County, they were in Germany on assignment and returned to Fort Stewart, in Liberty County, his right to vote was not questioned. His wife should apply to the Registrars of Glynn County to restore her name to the voters' list, then transfer to Liberty County, her husband's legal residence.
"4. A member of the armed forces was a registered voter in the State of Georgia. He is transferred to Fort Stewart, and assigned to housing on the Post. May he transfer his voting right to Liberty County; must he continue to vote in the county where he is registered, or is he disqualified for the reason of residing on a military reservation?"
Article II, Section I, Paragraph 3 of the Constitution of Georgia provides:

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"No soldier, sailor or marine in the military or naval services of the United States shall acquire the rights of an elector by reason of being stationed on duty in this State." (Code Section 2-702)
The above provision of the Constitution is very clear in providing that a nonresident does not acquire voting rights by being stationed in Georgia on a Federal military reservation.
In answer to your question "1.", it is my view that a member of the armed forces of the United States residing on a Federal military reservation who is not a resident of the State of Georgia would not be authorized to register in your county based upon the length of time that he was stationed on said Federal military reservation. If a member of the armed forces of the United States residing on a Federal military reservation was a citizen of Georgia prior to the time of his going into the armed forces of the United States, he would be entitled to register and vote under the Military Voters' Act of Georgia.
In answer to your question "2.", it is my view that if a member of the armed forces and his wife both reside in your county off and beyond the boundaries of a Federal military reservation, and if he has lived in Georgia one year and in Liberty County six months off of said reservation, he and she may register and vote as any civilian not in the armed forces may register and vote.
In answer to your question "3.", you are correct in your assumption of the procedure.
In answer to your question "4.", wherein a member of the armed forces of the United States was a registered voter in the State of Georgia at the time that he went into military service and that since he has been transferred to Fort Stewart in Georgia and assigned to housing on the United States military reservation, it is my view that he could vote an absentee ballot or register and vote under the Military Voters' Act of Georgia.
ELECTIONS-Voter List (Unofficial)
Number of lists of voters and voting lists to be kept and compiled during an election discussed.
April 22, 1960
Honorable Edgar Blalock
This office is in receipt of your letter requesting that an opinion be rendered to you in regard to the number of voters' lists that are required by Georgia law to be compiled at both general and primary elections in the various counties in the State.
After a review of the various election laws of this State, I find that there are five Code Sections which refer to the keeping of voters' lists by the managers of the polling stations. One of these Code Sections is concerned, apparently, solely with general elections, two are concerned solely with primary elections while two other Sections apply to both general and primary elections. Let me mention indi-

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vidually those Code Sections dealing with general elections first, and follow with a listing of the Sections dealing with primaries:
(1) Section 34-138, Georgia Code Annotated, requires that a checked list of registered voters, showing those who vote, shall be compiled by the official in charge of each precinct and shall then be transmitted to the registrars of the county.
(2) Section 34-1303, Subsection (2), requires that the managers of each polling station shall make up three (3) lists of voters, the names of the voters to be numbered in the order of their voting. Subsection (7) of the same Code Section requires that, after the votes have been counted, the managers of each precinct shall make up and sign a certificate showing the number of votes each candidate has received and also sign each of the three lists of voters mentioned in Subsection (6). Subsection (8) of Code Section 34-1303, Georgia Code Annotated, requires that the certificate, voters' lists, and other election papers together with the ballots, shall be transmitted from each precinct to the county site where the election returns of the entire county are to be consolidated. Subsection (9) of the same Code Section stipulates that the managers who consolidate the votes of the entire county shall make two (2) certificates, each stating the total number of votes each candidate received in the county. One of the certificates must be sent to the Secretary of State accompanied by one list of voters and one tally sheet from each precinct in the county, and the other certificate must be transmitted to the Clerk of the Superior Court of the county, likewise accompanied by a list of voters and a tally sheet from each precinct.
(3) Section 34-1918 requires that a voters' identification book must be kept by the managers of each precinct in which every voter must write his name before being furnished a ballot. Incidentally, Code Section 34-1919, Georgia Code Annotated, provides that this voters' identification book must be filed by the managers along with the returns of the election.
It appears from the foregoing that a total of five (5) lists of voters, of one type or another, are required to be compiled at each voting precinct at general elections.
The law relating to the number of lists of voters which must be made at the precincts at primary elections does not seem to be quite so clear. The following Code Sections deal with this matter:
(1) Section 34-138, Georgia Code Annotated, requires that a checked list of registered voters, showing those who vote, shall be compiled by the official in charge of each precinct and shall then be transmitted to the registrars of the county. As pointed out above, this Section is also applicable to general elections.
(2) Section 34-3202 requires that managers of precincts shall keep a list of all voters who vote at each precinct.
(3) Section 34-3207 requires that managers of precincts shall file tally sheets, lists of voters, and ballots with the Clerk of the Superior Court within four (4) days after final declaration of the results of the

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primary elections. However, there is no clear statement in this Code Section of the number of voters' lists which are to be kept. It is possible that this Code Section intends that the same number of voters' lists and tally sheets shall be compiled as are required to be compiled in general elections, which, of course, would mean three (3) of each.
(4) Section 34-1918, previously cited above in regard to general elections, is also applicable to primary elections and requires the keeping of a voters' identification book in which each voter must sign his name before being furnished a ballot.
If it be assumed that Section 34-3207 requires three (3) voters' lists to be filed, then the total number of lists of voters which apparently must be kept at the precinct at primary elections is six (6).
ELECTIONS-Voting (Unofficial)
A civilian employed by the Armed Forces is not within the intent of the law for participation in elections by men and women in military service.
October 3, 1960
Miss Hazel E. Barton
Thank you for your letter requesting that the Governor grant you the right to register for and vote in the General Election to be held on November 8, 1960, pursuant to Chapter 34-36 of the Code of Georgia Annotated, wherein is codified the Act known as the "Participation in Elections by Men and Women in Military Service". You stated that you are a resident of Hall County, Georgia, and that you are employed as a civilian overseas by the United States Air Force.
The applicability of this Act is defined in Code Section 34-3604 as follows:
"The term 'military' as used in this Chapter shall mean enlisted and commissioned members, male and female, of the Army of the United States, the United States Air Force, the United States Navy, the United States Marines Corps, the United States Coast Guard or any of their respective components who are citizens of Georgia.
"This Chapter shall also apply to the spouse and dependents of any member of the military, as defined herein, ..." Please note that this definition clearly does not include a civilian employed by the military of the United States, unless such a civilian is a spouse or dependent of a member of such military. Consequently, neither the Governor, nor any other public official possesses the authority to grant your request.

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ELECTIONS-Voting (Unofficial)
A voter may vote for only one candidate when there are four candidates for two offices.
February 10, 1960
Mr. Price Harper
I am pleased to acknowledge your letter relative to the election to fill three places as associate commissioners for roads and revenues of your county.
You state there are four candidates for three places, and that the question which you propound is whether or not a vote for only one candidate is valid.
I call your attention to the case of Griffin v. Trapp, found in Volume 205 of the Georgia Reports, at page 176, in which the Supreme Court of Georgia held in part:
"One of the most important and sacred rights possessed by an American citizen is to vote for whom he pleases, and to have that vote counted. It is so important and sacred that it is written into the fundamental law of our State in article II, section I, paragraph 11 of the Constitution (Code, Ann., 2-702), that 'Every citizen of this State who is a citizen of the United States, eighteen years old or upwards, not laboring under any of the disabilities named in this Article, and possessing the qualifications provided by it, shall be an elector and entitled to register and vote at any election by the people.'
"In referring to this provision of the Constitution, this court, in Stewart v. Cartwright, 156 Ga. 192, 197, said: 'The words "shall be an elector and entitled to register and vote at any election by the people," are unequivocal, and the entire provision amounts to a constitutional guaranty of the right of suffrage, which, though subject to reasonable regulation, can not be absolutely denied or taken away by legislative enactment. There can not be any doubt that a statute providing for an official ballot for use at a general public election, which prescribes the form to be of such character as will deny the voter his right to vote for whomsoever he pleases, would be violative of the above provision of the Constitution.' And in that case and in Adair v. McElreath, 167 Ga. 294, 314, this court has approved the doctrine that 'the legislature c1an not restrict an elector to voting for some one of the candidates whos,e names have been P'rinted upon the official ballot. He must be left free to vote for whom he pleases, and the Constitution has guaranteed to him this right.
"As pointed out above, we have been cited to no provision of the law which undertakes to require an elector to vote for a specified number of persons in order to be able to vote for one particular person for whom he chooses to vote for a particular office, ...
"The Code, 34-1903, in making provision for official ballots to be used in primary elections, provides: 'On the ballot shall be printed such words as will enable the voter to express his choice, such as "Vote for one," "Vote for two," and the like'; but there is no requirement there, or elsewhere, that' the voter must vote for the total number of persons to be elected in order to have his vote for one particular candidate

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counted. On the contrary, this same Code section p,rovides: 'and the voter or elector shall erase, mark out or cancel the name or names of the candidate or candidates for whom he does not wish to vote.' . . .
"... The requirements that the ballot carry the information, '"Vote for one," "Vote for two," and the like,' are for the information and benefit of the elector in exercising his free choice, and the right of the voter or elector to erase, mark out, or cancel the name or names of the candidates for whom he does not wish to vote is there recognized. The right to vote against some one is held as sacred by some as the right to vote for another, and the fact that an elector exercises both rights at the same time, where the opportunity to do so is afforded, would not render his ballot illegal, and prevent it from being counted. 29 C.J.S. 328, 227, declares the general rule to be, 'All votes cast in the manner specified by law by duly qualified voters must be counted.'" (Underscoring supplied)
Your attention is further called to Section 34-1917 of the Annotated Code of Georgia, which provides, in part, with reference to the provisions of Section 34-1903:
" .. The provisiOns of section 34-1902 through 34-1912, ... shall, except those parts thereof which are in conflict with the provisions of this law, also apply in every county of this State and to all elections by the people including State and to all elections by the people including general, special, and primary elections. No action by any grand jury shall be necessary to make the same effective."
A voter has a legal right to vote for one of the candidates you mention and strike out the other names, or he may vote for two and strike out the others, or he may vote for three and strike the fourth, or he may vote for all as his conscience and desire may dictate.
ELECTIONS-Voting (Unofficial)
The proper method of executing write-in votes discussed.
November 1, 1960
Honorable Louise Wood
Thank you for your letter in which you inquired as to the proper method for making a "write-in" vote.
In my opinion, the proper method for making such a vote is to place the name of the "write-in" candidate in the "write-in" column on the ballot and to place an "X" mark in the space provided for voting the "write-in" column. The "write-in" vote should indicate clearly the identity of the candidate and the office the voter is voting for. Also, if the voter places an "X" mark in the space provided for voting a straight party ticket, he must strike out the name of any candidate for office on such ticket whom he desires to vote against in order that his vote for a "write-in" candidate may be counted.

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ELECTIONS-Voting Booths (Unoffici~l)
Location of voting booths is determined by the ordinary.
April 14, 1961
Honorable Frank McRee
Thank you for your letter requesting information concerning the location of voting booths for primary elections.
In connection with your request, please note Section 34-1902 of the Code of Georgia, Annotated, which provides as follows:
"34-1902. Whenever any election, whether general, special or primary, State, county, municipal, city, town or village, or any election to determine any matter or question which is or may be referred to the vote of the people of the State, of a county, or of a city, town or village, or any election of any kind or character is to be held, it shall be the duty of the ordinary of each county at the expense of the county, or in a case of a purely municipal election, at the expense of the municipality, to provide at each polling place, a private room or rooms, a booth or booths, or an enclosure or enclosures, with such compartments therein as may be necessary to accommodate the persons qualified to vote at such polling places, and shall furnish each compartment with a shelf or table for the convenience of the electors in the preparation of their ballots. Each booth or compartment shall be so arranged that it will be impossible for one elector at a shelf or table in one compartment, or anyone else, to see an elector, at a shelf or table in another compartment in the act of marking his ballot. Each voting shelf or table shall be kept supplied with conveniences for marking the ballots. No person or persons, other than the voter himself while occupying the booth or while in the immediate act of voting, shall come within 10 feet of said booth or booths while said polls are open. This section shall not apply to any of the officers in charge of holding said election."
In view of this Code Section, I believe that the proper location for the voting booths can best be determined by conferring with your Ordinary.
ELECTIONS-Voting Places (Unofficial)
Ordinaries may establish extra or additional voting places if necessary.
May 1, 1961
Honorable Robert G. Walther
Thank you for your letter stating that the Courthouse of Floyd County is a voting place within the 919th Militia District and inquiring as to the authority of the Ordinary to establish an additional voting place within the District.
In connecton with your inquiry, please note Section 34-1301 of the Code of Georgia Annotated, which provides as follows:

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"34-1301. Election precincts.-Elections for members of the General Assembly shall be held at the courthouse of the respective counties, and if no courthouse, at some place within the limits of the county site and at the several election precincts thereof, if any, established or to be established. Said precincts must not exceed one in each militia district, except in militia districts lying in whole or in part in incorporated cities, towns and villages, in which militia districts as many precincts may be established as may be necessary and convenient for the holding of such elections. In the event that an incorporated city, town or municipality is divided by a militia district line, and there are no wards, then a person residing within the incorporate limits of such city, town or municipality may vote in another militia district election precinct located in said incorporated city, town or municipality upon taking the following oath: 'I swear that I have not nor will I vote elsewhere in this election.' The registrars will furnish the election managers in such an incorporated city, town or municipality with a list of the registered voters in each of the militia districts that divide the incorporated city, town or municipality. Such precincts shall be established, changed, or abolished by the ordinaries at regular terms of their courts, descriptions of which precincts must be entered on the minutes at the time."
In view of this Code Section, it is my opinion that the Ordinary possesses the authority to establish an additional voting place within the 919th Militia District.
EVIDENCE-Recordings (Unofficial)
Use of a properly recorded telephone conversation in a judicial proceeding would be doubtful without more.
September 22, 1960
Mr. Hardy A. Kemp, M.D.
Your letter reads as follows:
"We would like your opinion concerning the use of properly recorded telephone conversations in granting permission for autopsy proceedings. Would such recording of a telephonic authorization from the nearest relative of a deceased patient be acceptable in a judicial proceeding under applicable State laws?"
It is very doubtful whether the record of a telephone conversation standing alone would be admissible in any judicial proceeding in this State. It is further my opinion that should it become necessary and relevant to prove a conversation between two individuals in any court procedure, it would first be necessary for some witness to testify that he heard the conversation and that he can swear to the voices of the people carrying on such conversation.

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FAIR TRADE LAWS-History (Unofficial)
History of Fair Trade Laws and invalidity discussed.
October 31, 1960
Dr. Bithel Wall, M.D.
This will acknowledge receipt of your letter in which you ask the present status and the likely future of fair trade price legislation at the State level in regard to the retail merchandising of pharmaceuticals and allied products, and in particular, prescription and non-prescription items which would include over the counter drugs and patent medicines.
I am sure that you are aware that pharmacists are regulated under the provisions of Georgia Code Annotated, Chapter 84-13, as amended. In addition, Chapter 42-1 of the Code relates to the inspection of drugs. Chapter 42-7 relates to the sale of poisons and narcotics. The Uniform Narcotic Drug Act is found in Georgia Code Annotated, Chapter 42-8. These authorities in general relate to the sale of drugs and narcotics and pharmaceuticals. I do not find in any of them any provision relative to fair trade prices.
By analogy, the history of fair trade Acts has been very clear in this State and has followed the pattern of being struck down in every appearance before the Supreme Court of Georgia.
An Act found in 1953 Georgia Laws, November-December Session, page 549 (Georgia Code Annotated 106-4), known as the Fair Trade Act, was declared unconstitutional by the Supreme Court of Georgia in the case of Cox v. General Electric Co., 211 Ga. 286. This follows, the same pattern of Georgia Laws 1937, page 800, which was held unconstitutional by the Supreme Court in GraysonRobinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613. Thus, in every test of fair trade Acts they have been declared unconstitutional by the Georgia Supreme Court.
Along the same lines, efforts to regulate the price of milk in this State have been unsuccessful. In Harris v. Duncan, 208 Ga. 561, the Supreme Court held the milk control law "insofar as it provides for the board to fix the prices of milk" to be in violation of the Constitution of this State. There has been no test of the legislation enacted along the same lines subsequent to the decision in the Harris case.
To the same effect there have been efforts to regulate the price of cigarettes. The Unfair Cigarette Sales Act, Georgia Laws 1949, page 695 (Georgia Code Annotated, Chapter 84-28) was held to be unconstitutional in Williams v. Hirsch, 211 Ga. 534. This is true notwithstanding the provisions found in Georgia Code Annotated, 92-2204, subparagraph (h), which prohibits a distributor or dealer from selling cigars or cigarettes below their cost price, the cost price being determined by the Commissioner of Revenue.
The above illustrates that the Supreme Court of Georgia has without exception held unconstitutional each and every Act brought before it which has had the effect of directly or indirectly fixing prices. The decisions of the Supreme Court indicate that such will be the disposition of any future case coming before it involving the fixing of prices directly or indirectly.

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GAME AND FISH-Fishing (Unofficial)
Fishing in lakes adjoining rivers discussed.
June 7, 1960
Mr. William V. Kennedy
This is in answer to your request concerning fishing in lakes adjoining the Altamaha and Ohoopee Rivers. You stated that these lakes can be reached from the main stream in a rowboat without touching either bank. Then you ask whether these lakes are considered private property.
Georgia Code, Section 105-1401 provides:
"The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie."
Georgia Code, Section 85-1303 defines a navigable stream as follows:
"A navigable stream is one capable of bearing upon its bosom, either for the whole or a part of the year, boats loaded with freight in regular course of trade. The mere rafting of timber or transporting of wood in small boats shall not make a stream navigable."
Your attention is directed to the annotations found under this Section in Georgia Code Annotated, relative to the different rivers and streams of this State that have been involved in litigation.
Code Section 85-1304 provides:
"The rights of the owner of lands adjacent to navigable streams extend to low-water mark in the bed of the stream."
Code Section 85-1302 provides:
"The beds 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." Code Section 85-1305 provides:
"The owner of a stream not navigable is entitled to the same exclusive possession thereof as he has of any other part of his land; and the legislature has no power to compel or interfere with him in its lawful use, for the benefit of those above or below him on the stream, except to restrain nuisances."
Our Courts have on several occasions dealt with the rights of persons to fish in the waters of this State. The Supreme Court of Georgia in the case of Bosworth v. Nelson, 170 Ga. 279, dealt with the problem of fishing in three creeks in Dougherty County, Georgia, and in particular, after an impoundment by a power company. The Court, at page 286 stated:
"By the common law the right to take fish belongs essentially to the right of soil in streams where the tide does not ebb and flow. If the

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riparian owner owns upon both sides of the stream, no one but himself may come within the limits of his land and take fish there. The same right applies so far as his land extends to the thread of the stream, where he owns upon one side only. Within these limits, by the common law, his rights of fishery are sole and exclusive. Washburn on Easements (4th ed.), 561. This is the law in this State. Lee v. Mallard, 116 Ga. 18 (42 S. E. 372); Thompson v. Tennyson, 148 Ga. 701 (98 S. E. 353)." The Court in the same case, at page 290 stated:
"In the next place it is urged that the public and Bosworth had acquired the right to fish and boat in these waters by reason of prescription. The right to fish and take fish is not an easement, and can not be claimed under the designation of an easement. It is a right of profit in lands. Wickham v. Hawker, 7 Mees. & W. 63; Lloyd v. Jones, 6 Com. B. 81; Bland v. Lipscomb, 4 El. & B. 714; Waters v. Lilley, 4 Pick, 145 (16 Am. D. 333); Cobb v. Davenport, 33 N. J. L. 223 (97 Am. D. 718). The only mode of acquiring the right of taking profit from another's land or soil is by grant or prescription. Cobb v. Davenport, supra. Right of public and common fishery is one so universal and unqualified that it can not exist in the soil of a private proprietor, either by custom or by prescription. Mellor v. Spateman, 1 Saund, 343; Wilson v. Willes, 7 East, 121; Fitch v. Rawlings, 2 H. Bl. 398; Clayton v. Corby, 5 Q. B. 415; Cobb v. Davenport, supra. The>. right of fishing in unnavigable waters over or upon the soil of a private proprietor can only be acquired in this State by grant or by an uninterrupted and exclusive occupation and enjoyment, adverse to the owner of the soil, and continued for 20 years. There must be an actual and exclusive occupation and enjoyment of the fishery, adverse to the riparian proprietor. Since certainty of person as to the grantee is necessary to the validity of a grant, the general public can not acquire a right of fishery by grant or by prescription which presupposes a grant. Nor can a license to enter on land and take fish be implied from a custom or usage in the country at large, since the public generally can not accept the license. The right to take fish in any water which is not navigable, although it belongs prima facie to the owner of the soil, follows the ownership of the water if that is separated from the ownership of the soil. A right to take fish in another's fishery, being a right of profit in lands, as distinguished from an easement, can not be claimed by custom, for the reason that if such a custom were allowed it might and probably would result in the destruction of the subject-matter to which it applies. Turner v. Hebron, 61 Conn. 175 (22 Atl. 951, 14 L.R.A. 386); Shulte v. Warren, 218 Ill. 108 (75 N. E. 783, 13 L.R.A. (N.S.) 746); Waters v. Lilley, supra; Cobb v. Davenport, supra; 26 C.J. 601 (14) b; Id. (15) c; Id. (16) d; 11 R. C. L. 1034, 21. Where the owner of a fishery does not himself work it for profit but suffers the public to fish in it without objection, a user by an individual, which is not distinguished from that of the public, will be considered permissive, and not adverse, unless there is evidence that it was a claim of right in himself, and that the owner, knowing of such claim, acquiesced in it."
The Supreme Court in the case of Purvis v. Tipp,ins, 193 Ga. 251, dealt with the question of whether or not two ponds were "private" ponds. The Court there held that under an agreed statement of facts, during periods of freshets, fish

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might travel from the Altamaha River into said lakes, but nevertheless that the two lakes involved were private lakes within the meaning of the statutes. This case arose in Tattnall County and was tried before Judge Grice in 1941. Its reasoning would seem to be applicable to the facts you submit.
The Supreme Court of Georgia in the case of Sp,ivey v. Barwick, 157 Ga. 853, Headnote 3, stated:
"The owner of land adjoining a nonnavigable stream is the owner of the soil to the center of the thread of the stream, and of the fishing rights to the center of the thread on his side of the stream. If one proprietor owns the land on both sides of the stream, he has the exclusive right of fishing therein."
Based on the above, I am of the opinion from the information submitted by you that the lakes in question are nonnavigable streams and probably come within the definition of "private ponds," as now provided by law. Under any circumstances, it not appearing that the lakes in question are navigable, the right to fish therein belongs to the owners of the adjoining land and the fact that you can enter this lake without touching either bank would not have the effect of rendering these lakes navigable waters.
GAME AND FISH-Fishing (Unofficial)
Fishing in streams from banks or boats should only be with permission of land owners adjoining stream.
September 22, 1960
Mr. L. D. McMillan
You ask:
"(1) Is it legal for a property owner to bar public fishing in a fresh water stream on that portion of stream that runs through land held by the property owner, although the stream is navigable by small boats?"
The Supreme Court of Georgia, in the case of Thompson v. Tennyson, 148 Ga. 701, Headnote 1., stated:
"1. The owner of land adjoining a nonnavigable stream is the owner of the soil to the center of the thread of the stream, and of the fishing rights to the center of the thread on his side of the stream. If one proprietor owns the land on both sides of the stream, he has the exclusive right of fishing therein."
At page 704, the Court stated:
"We will first deal with the question of who possesses the exclusive right of fishing so far as the right is dependent upon the conveyances of the respective parties. Under the common law the owner of land bordering on a nonnavigable stream owned the soil to the center or thread of the stream, and likewise had the exclusive right of fishing on

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his side of the stream. If the same person owned the land on both sides of the stream, he was entitled to the exclusive right of fishing. Carter v. Murcot, 4 Burr. 2162; 12 Eng. Rul. Cas. 166. And the doctrine of the common law has been adhered to by the courts of this country. Beckman v. Kreamer, 43 Ill. 447 (92 Am. D. 146); Hooker v. Cummings, 20 Johns. (N. Y.) 43 (11 Am. D. 249); Commonwealth v. Chapin, 22 Mass. 199 (16 Am. D. 386); Beach v. Morgan, 67 N. H. 529 (41 Atl. 349, 68 Am. St. R. 692); Griffith v. Holman, 23 Wash. 347 (63 Pac. 239, 54 L.R.A. 178, 83 Am. St. R. 821.)"
To the same effect is the third headnote of Spivey v. Barwick, 157 Ga. 853. Section 85-1301 of Georgia Code Annotated provides:
"Ownership of running water.-Running water, while on land, belongs to the owner of the land, but he has no right to divert it from the usual channel, nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner."
As to whether or not a stream is navigable, I direct your attention to the provisions of Code Sections 85-1303, 1304, and 1305; and Code Section 85-1308 which defines navigable tidewater.
From the above, I am of the opinion that the answer to your first question, as posed, is in the affirmative.
Your second question is:
"(2) Is it legal to bar public fishing in a fresh water stream, lake, or back water that is adjoining a public stream such as the Savannah River, and may be reached by boat without crossing land, simply because the adjoining land is owned or leased privately."
Code Section 85-1304 provides:
"Rights of owner of lands adjacent to navigable streams.-The rights of the owner of lands adjacent to navigable streams extend to low-water mark in the bed of the stream."
Therefore, the answer to your second question would appear to be dependent upon the ownership of the land and a determination of whether or not this ownership extends to or beyond the low-water mark in the bed of the stream.
Your third question is:
"(3) Must permission be obtained to fish a stream from each individual whose land adjoins the part of a fresh water stream a person intends to fish by boat?"
The answer to question number 3, again, is dependent upon a determination of the ownership of the land and whether or not the stream is in fact navigable.
Your fourth question is:
"May a Georgia resident legally fish beyond the State boundary in the Savannah River, or any other boundary river, if his boat is moving, or non-stationary?"
It is assumed that this question is based upon whether or not the Georgia license would entitle a person to fish in any part of a boundary river.

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The boundaries of the State of Georgia are clearly defined by statute and the license to fish issued by the State of Georgia is valid beyond the State of Georgia boundaries only to the extent that the boundary States recognize the validity of that license. In other words, a Georgia fishing license is not valid in South Carolina except to the extent provided in an agreement between South Carolina and Georgia, as the jurisdiction of the State of Georgia extends only to its boundaries.
GAME AND FISH-Hunting (Unofficial)
Posting of lands against hunting and fishing illegally and personal liability for hunting or fishing on private lands discussed.
June 5, 1961
Honorable Fred Stanberry
We are in receipt of a letter from Mr. Leonard E. Foote, Field Representative of the Wildlife Management Institute, to Mr. Fulton Lovell, Director of the Game and Fish Commission of the State of Georgia, which was turned over to this office to be answered, and in which he requested the following information be sent to you.
With reference to the first question concerning the powers of this State in regard to illegal posting of lands for hunting and fishing, we call your attention to the following Code Sections:
"45-527. Penalty for hunting on lands of another without permission.-Any person who shall hunt upon the lands of another, or enter upon the lands of another in pursuit of wildlife, with or without a license, without first obtaining permission from such landowner or lessee of the land or lessee of the game rights of the land, shall be guilty of a misdemeanor and punished as provided by law. It shall be the duty of wildlife rangers, sheriffs and deputy sheriffs to enforce the provisions of this section. (Acts 1955, pp. 485, 519.)"
"45-701. Penalty for fishing on lands of another without permission.-Any person who shall fish in the waters or from upon the lands of another with or without a license, without first having obtained permission from such landowner or person in charge, shall be guilty of a misdemeanor and punished as provided by law. Wildlife rangers, sheriffs and deputy sheriffs, and all other peace officers of this State, any county or municipality thereof, shall enforce the provisions of this section. (Acts 1955, pp. 483, 523.)"
Former Code Sections 45-301 through 45-303, which dealt with "Posting Lands and Registration," were repealed by Acts 1956, pp. 590, 594, as they were considered no longer necessary due to the provisions of Sections 45-527 and 45-701.
Other pertinent Code Sections are:
"45-702. Owner of private pond allowed to fish therein without license; license necessary for others.-The owner of a private pond, his

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family or tenants with the owner's consent, shall be permitted to fish within the bounds of said pond at at any time and in any manner, without a fishing license: Provided, however, that all other persons shall be required to obtain fishing licenses therefor as in other cases as required by this Title. (Acts 1955, pp. 483, 524.)"
"45-1004. Conditions for license; restrictions as to land; fences; posting; game to be released; banding of game; records.- ...
"(b) The property comprising such preserve shall be adequately enclosed by fence, said fence to consist of not less than one strand of barbed wire, and the boundary lines of said premises shall be marked by signs located not more than 400 feet apart, indicating that they are boundary line signs in letters not less than two inches in height, and shall further indicate that said premises are posted as against trespassing according to the laws of Georgia for posting lands, which shall have been complied with prior to the issuance of the license."
In connection with the second question referring to liability under varying degrees of hunter-fisherman use of private forest lands, please note the following Code Sections:
"105-1404. Bare title, action for trespass by person having.-The person having title to lands, if no one is in actual possession under the same title with him, may maintain an action for a trespass thereon; and if a tenant is in possession, and the trespass is such as injures the freehold, the owner, or a remainderman or reversioner, may still maintain such action."
"105-401. Owner or occupier bound to keep premises safe, when.Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe. (80 Ga. 148 [4 S. E. 759].)"
"105-402. Licensees; definition; liability for injuries to.-A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience or gratification. The owner of such premises is liable to a licensee only for wilful or wanton injury. (30 Ga. App. 490 [118 S. E. 697] .) "

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GAME AND FISH-Licenses (Unofficial) Persons under 16 years of age or 65 years of age or over are not
required to have hunting or fishing licenses.
March 15, 1960
Honorable Ed Goble
We are in receipt of your letter which relates to hunting on your own property without a license. It appears that Georgia Laws 1955, page 483 deleted the exemption that formerly applied to land owners. However, persons 65 years of age and over, and persons under 16 years of age, are by law exempted from obtaining hunting and fishing licenses.
Another question you ask relates to the hunting on private property out of season. In this connection, I am enclosing for your information and guidance a regulation promulgated by the Game and Fish Commission relating to hunting preserves. As you will note in that regulation a season still is applicable although it appears the, same is extended if the provisions relating to hunting preserves are followed.
A third possible question that you may have in mind relates to fishing on your own property. This is also covered in Georgia Laws 1955, page 483, Section 82, which provides:
"Section 82. The owner of a private pond, his family or tenants with the owner's consent, shall be permitted to fish within the bounds of said pond at any time and in any manner, without a fishing license; provided, however, that all other persons shall be required to obtain fishing licenses therefor as in other cases as required by this Act."
GAME AND FISH-Game Fish (Unofficial) Sale of game fish discussed. April 3, 1961
Honorable Whitfield R. Forrester Your letter to the Director of the State Game & Fish Commission relative
to the sale of game fish in this State has been forwarded to me for reply.
You state that the specific question you have is whether fresh water game fish can be sold at a fish market by a wholesale or retail dealer. You further ask if there is any regulation of the Game and Fish Commission which changes the provision of Georgia Code Annotated, 45-705, which relates to the sale of game fish.
I am sure you are familiar with the provisions of Georgia Code Annotated, 45-705, but I would call your attention particularly to the paragraph thereof which reads:

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"All game fish transported within this State for the purpose of barter, sale or purchase or delivery on a barter, sale or purchase shall be accompanied by a permit to sell issued by the State Game and Fish Commission or its agent or by proof that they were taken outside the geographical boundaries of this State."
I am sure that you are also familiar with the provisions relative to the manner in which owners of private ponds sell the game fish therefrom. At the present time, I know of no regulation changing the provisions of 45-705 relative to the sale of game fish in this State.
GAME AND FISH-State Commission
The Game and Fish Commission cannot legally indemnify the United States Government against loss or damage resulting from an Aquatic Plant Control project.
February 15, 1960
Honorable Fulton Lovell, Director, State Game & Fish Commission
This will acknowledge receipt of your request for my opmwn whether the Game & Fish Commission can legally indemnify the United States Government against loss or damage resulting from the Government's prosecution of an expanded project for Aquatic Plant Control. It is my information one of the conditions is that the State enter into an agreement to "Hold and save the Government free from claims arising from the project".
Article VII, Section III, Paragraph I of the Constitution (Georgia Code Annotated, Section 2-5601), specifies the purposes for which a debt of the State of Georgia may be contracted. There is no provision in this paragraph of the Constitution authorizing the State to enter into any such agreement.
In Barwick v. Roberts, 188 Ga. 655, Headnote 2, the Supreme Court stated:
"2. The State Constitution, art. 7, sec. 3, par. 1 (Code Section 2-5101), declares all the purposes for which debts may be assumed by or on behalf of the State, and expressly prohibits the State from assuming any other debts. An agreement between the Commissioner of Agriculture and an individual, whereby the Commissioner in consideration of an assignment to him of a number of leases to lands on which the State farm market is located, promises to pay the assignor, in addition to the consideration expressed in the assignment, $100 per month for a period of several years, is a debt inhibited by the above provisions of the Constitution, and can not be enforced."
To the same effect, see Roberts v. Barwick, 187 Ga. 691, and Barwick v. Roberts, 192 Ga. 783. These cases are cited to illustrate the application of the above Constitutional Provision to agreements by State departments.
From the above, I am of the opinion that the Game and Fish Commission may not enter into any agreement to hold and save the United States Government free from claims arising from the prosecution of the Aquatic Plant Control project.

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GENERAL ASSEMBLY-Apportionment (Unofficial)
The first session of the General Assembly after official announcement of the last federal census considers reapportionment of the House of Representatives.
June 8, 1950
Mr. Cooper Etheridge
I am pleased to acknowledge your letter and to advise that Article III, Section III, of the 1945 Constitution of Georgia provides as follows:
"Paragraph I. Number of representatives.-The House of Representatives shall consist of representatives apportioned among the several counties of the State as follows: To the eight counties having the largest population, three representatives each; to the thirty counties having the next largest population, two representatives each; and to the remaining counties, one representative each.
"Paragraph II. Apportionment changed, how.-The above apportionment shall be changed by the General Assembly at its first session after each census taken by the United States Government in accordance with the provisions of Paragraph I of Section III of this Article."
You will note that the Constitution provides that the apportionment of the House of Representatives based on a new census shall be made by the General Assembly at its first session after each census taken by the United States Government. Therefore, the answer to your question would be that the first session of the General Assembly after the official announcement of the Federal Census would consider the question of reapportionment.
GENERAL ASSEMBLY-Resolutions
A Resolution for the sale of property for "a consideration to be agreed upon between the Governor and the Company", is not violative of the State Constitution.
June 8, 1960
Honorable S. Ernest Vandiver, Governor
You request my opinion as to whether House Resolution 411-913 (Act No. 128), which was passed by the most recent session of the General Assembly, is constitutional insofar as it authorizes you, as Governor, to "negotiate with the South Georgia Telephone Company for the sale of the aforesaid lines for a consideration to be agreed upon between the Governor and the Company".
It is the general rule that all Acts of the General Assembly are presumed to be constitutional unless declared otherwise by a court of competent jurisdiction.
The Resolution shows that the General Assembly has exercised its legislative function in authorizing the sale of the property. You, as Governor, are merely

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authorized to carry out the technical details to consummate the sale, such as arriving at the exact consideration to be paid and executing conveyances of title.
A careful reading of House Resolution 411-913 shows that there are no quasi legislative powers or duties imposed, but rather only ministerial responsibilities.
Therefore, it is my opinion that your question should be answered in the affirmative.
GUARDIANS AND WARDS-Insane Persons
Authority of Ordinaries to appoint guardians for persons hospitalized for mental treatment or adjudged insane discussed.
August 2, 1960
Dr. John H. Venable, Director, Department of Public Health
This will acknowledge your letter asking for our opmwn with reference to the use of the newly prepared form M H 1.5, Act No. 618, Ga. Laws 1960, pp. 837 et seq. This form appears to have been prepared to be used in the administration of Sec. 13 (a) of the 1960 Act. Your question substantially is whether this form and the procedure in 13 (a) of the 1960 Act is the proper procedure to obtain discharge of a patient who has been committed to the Institution under the law which existed prior to July 1, 1960, this date being the effective date of the 1960 Act.
In our opinion to you dated June 27, 1960 (p. 2) we state that furloughed patients automatically come under the new law when the new law goes into effect. This was in connection with the repeal by the Legislature of a good portion of Chapters 35-2 of the Code, including 35-202 and 35-239, and it appears to be the legislative intent that the 1960 Act supersede or supplement previous law with reference to readmission of furloughed patients after July 1, 1960. We see no reason why a patient committed to an institution prior to July 1, 1960 should not be permitted to take advantage of the 1960 law after July 1, 1960 in an effort to obtain his discharge from the institution if he so desires.
You ask us the question, "Could a patient be hospitalized under Act 618, Ga. Laws 1960, and at the same time have a guardian under Chapter 49-604, Ga. Code Annotated?"
We have given careful consideration to the provision of the 1960 Act 618, pp. 837, 856. We find nothing in the caption of this law or the body of the Act having to do with the appointment of guardians of mentally ill persons, except the provision found in Sec. 24 of the 1960 Act which provides that Georgia Code Title 49 is expressly retained. This section of the 1960 Act retaining Title 49 of the Code reads as follows:
"Section 24. Georgia Code Title 49 expressly retained. Title 49 of the Code of Georgia, as amended, relating to guardians and wards, the

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powers, duties, and liabilities of guardians, settlement, resignation, and letters dismissory, foreign guardians, county guardians, guardians of insane or deaf and dumb persons and persons non compos mentis, ordinaries as custodians of minors' or insane persons' moneys, and guardians of incompetent World War Veterans is hereby expressed retained and shall not be construed as being repealed by the provisions of this Act."
Therefore Chapter 49-6 of the Code continues to be the law and the prescribed procedure for the appointment of a guardian for insane persons and for persons non compos mentis. Guardians will continue to be appointed by the Court of Ordinary under this chapter and there is provision in the 1960 Act, Sec. 4(a) and Sec. 13(a) for the legal guardian to act in behalf of the ward.
Your next question is: "Does the Ordinary have authority under Code Sec. 49-604 or Sec. 49-614 to appoint a guardian on the basis of the finding required by Act 618, Ga. Laws 1960 1"
The answer to this question is that the ordinary of the county shall carefully follow the provision of Sec. 49-604 or Sec. 49-614 in naming guardians for insane persons and persons non compos mentis. Especially do we call to your attention the last sentence in Sec. 49-604 of the Code which reads as follows:
"No guardian shall be appointed for the estate of such person, nor shall such person be committed to the Hospital, without the unanimous verdict of such commission."
You will note that Sec. 49-614 provides that the Ordinary is authorized to appoint guardians for an insane person without a trial, as provided in Sec. 49-604, when it shall be made to appear to them that such insane person is in the Milledgeville State Hospital upon commitment thereto, as provided in Sec. 49-604, or it shall be shown by the certificate of the Superintendent of the Milledgeville State Hospital that such person is hopelessly insane and that it is necessary for such person to have a guardian to take charge of his property.
Please note that Code Chapter 49-6 provides for the appointment of a commission, and no guardian shall be appointed for the estate of such person without the unanimous verdict of such commission. On the other hand, the 1960 Act, pp. 837, 856, provides in Sec. 6(d) for the appointment of an examining committee. This committee must submit an unanimous report to get an order from the Court of Ordinary requiring said patient to be hospitalized, but the Ordinary could not appoint a guardian for the patient upon the examination of the examining committee provided for in the 1960 Act. There is nothing in the 1960 Act with reference to the appointment of a guardian, except to provide that Georgia Code Title 49 is expressly retained.
This brings us to your last question which reads as follows: "Shall it be necessary to appoint lunacy commission in addition to the examining committee required by Act 618, Ga. Laws 19601" We assume that you meant to inquire if it would be necessary to appoint a lunacy commission in order to have a guardian appointed, and we refer you to the last sentence in Code Sec. 49-604 and our answer to your last question is yes, a lunacy commission shall be appointed by the Ordinary and the procedure in Chapter 49-6 followed in the appointment of guardians.

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HIGHWAYS-Contracts
Standard Specifications of the Highway Department are part of any contract for highway construction, and the Department may withhold payment until defects are corrected.
April 28, 1960
Honorable Jim L. Gillis, Sr., Chairman, State Highway Board
You request advice as to the course of action to be taken by the State Highway Department of Georgia in a situation where materials accepted by a State Highway Department Inspector and used in highway construction have been ascertained to be below contract standards, prior to final acceptance of the finished work and final payment under the contract.
The "State Highway Department of Georgia Standard Specifications, Construction of Roads and Bridges", dated May 1, 1956, constitute a part of the contract between the State Highway Department of Georgia and Henry Newton Company, executed April 4, 1958.
The provisions of these Standard Specifications are binding upon the contractor. See: State Highway Dep,artment v. M.acDougald Construction Co., 189 Ga. 490; MacDougald Construction Co. v. State Highway Department, 59 Ga. App. 708.
It is provided in the Standard Specifications that the intent of the plans, specifications, and special provisions is to prescribe a work or improvement which the contractor undertakes to do, complete in every detail, in accordance with the contract (Article 4.01); failure to reject defective work or material shall not prevent later rejection when the defect is discovered (Article 5.08a) ; the payment of any current or final estimate or the acceptance of any portion of the work as provided in the specifications shall in no way affect the obligation of the contractor, who at his own expense and cost shall repair, correct, renew, or replace all defects and imperfections in the construction, strength, or quality of materials used in or about the construction of the work under the contract and this payment shall in no way affect his responsibility for all damages due or attributable to such defect or imperfections which may be discovered before final acceptance of the whole work (Article 9.04); the Department shall not be precluded or estopped by any measurement, estimate, or certificate made either before or after the completion and acceptance of the work and payment therefor, from showing the true amount and character of the work performed and materials furnished by the contractor, or from showing that any such measurement, estimate, or certificate is untrue or incorrectly made, or that the work or materials do not conform in fact to the contract (Article 7.16) ; authority of inspectors is limited (Article 5.07c).
The State Highway Engineer is authorized to reject defective work, under Articles 5.09 and 5.13 of the Standard Specifications. By the provisions of Article 5.01a, he is required to decide promptly all questions related to the quality and acceptability of materials furnished and work performed. The same article provides that his decision shall be final as to the acceptable fulfillment of the contract by the contractor.

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You are, therefore, advised that the State Highway Engineer should make or cause to be made such inspections and tests as may be necessary to determine whether work done and materials furnished which are to be paid for under the contract are acceptable in fulfillment of the contract. In the event any work or materials is not so acceptable, the contractor and the surety on his performance bond should be notified of the deficiency and to remedy the deficiency promptly. Should the contractor fail to remedy the deficiency promptly, the engineer should cause the necessary work to be done at the cost of the contractor or surety. In the meantime, no further payments under the subject contract should be made.
HIGHW A YS~Maintenance
The State Highway Department is authorized to enter into a contract for a portion of expenses in painting the Talmadge Memorial Bridge.
May 11, 1960
Honorable Jim L. Gillis, Sr., Chairman, State Highway Board
In your request referring to the Talmadge Memorial Bridge on State Route No. 25 Alternate, U. S. Route No. 17 Alternate, you inquire whether it is proper that the State Highway Department of Georgia participate in the cost of painting this bridge, under contract with the Coastal Highway District of Georgia, or with Chatham County.
You state that the department is desirous of protecting its investm?nt in this facility and proposes to participate in the expense of painting to the extent of $25,000.00, or approximately 20% of the painting cost, which is approximately the same percentage the department contributed when the bridge was originally constructed.
Under the authority to maintain the State Highway System, contained in Chapters 95-16 and 95-17 of the Code (Ga. Code Ann.), and specifically in Sections 95-1616, 95-1701, and 95-1714, such expenditure is authorized. The State Highway Department of Georgia is authorized to enter into a contract with the Coastal Highway District of Georgia for painting the bridge. Article VII, Section 6, Paragraph 1 (a) of the Constitution of the State of Georgia of 1945, (Section 2-5901, Ga. Code Ann.).
HIGHWAYS-Right-of~way (Unofficial)
A county may obtain rights-of-way to lands owned by minors by process of condemnation.
March 13, 1961
Honorable Leon Courson
We have received a letter inquiring whether there is any procedure by which a county can obtain a right-of-way to lands owned by minors other than by

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condemnation proceedings. In his letter Mr. Knight states that the minors in question have guardians and agree to give the right-of-way land for a road.
Under the provisions of Sections 49-205 and 113-702 of the Code, it appears that any sale of a ward's property by a guardian must be at public outcry. This, of course, is not practicable in the case of right-of-way for road purposes. The only possibility I see for making any exception would be under the provisions of Georgia Laws 1943, pages 236, et seq. (Sections 113-1\725, 113-1731, inclusive, Ga. Code Ann.).
The Act of 1943 provides that, "An administrator, executor, or other trustee, may convey rights-of-way and easements upon, across and/or under estate or trust property . . .". While the word "trustee", used in the broad sense, includes guardians (see Georgia Railroad Bank & Trust Co. v. Liberty National Bank & Trust Co., 180 Ga. p. 4 [4 d]), I do not believe that the language of the Act will permit other than a strict construction of the word, which will not include a guardian.
Compare the language in Section 113-1732, Ga. Code Ann., authorizing sale of listed stocks and bonds at private sale: "Any guardian, administrator, executor, trustee, or other fiduciary, may sell at private sale stocks or bonds held by them in their representative capacity . . ."
It appears, therefore, that resort must be had to condemnation to acquire right-of-way under circumstances outlined in Mr. Knight's letter.
HIGHWAYS-Roads (Unofficillll)
Closing and discontinuance of roads discussed.
March 29, 1961
Mr. George S. Birch
Your letter has been referred to me for reply, inasmuch as I represent the State Highway Department of Georgia, and am generally familiar with the laws pertaining to roads.
I believe that the situation to which you refer will be governed by Sections 95-207 and 95-203 of the Georgia Code.
Section 95-207 provides:
"95-207. Discontinuance of roads.-Applications for the discontinuance of an old road, in whole or in part, shall be made to the ordinaries or other county authorities having charge of county affairs in writing, and published as provided in Section 95-203, before the discontinuance shall be effective."
Section 95-203 provides:
"95-203. Persons in possession to be notified.-All persons, their overseers or agents, residing on land through which such road runs, except the applicants for the road or alteration, shall at the same time

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be notified in writing, personally or by leaving notice at their most notorious places of abode, that they may put in their claim for damages or be forever after estopped."
In view of the statements made in your letter, it appears that the service referred to is all that is required.
HIGHWAYS-State Dep,artment
A contract with a county for condemnation by county does not preclude expenditure of funds to protect the State's interest by assisting the County Attorney in prosecuting the condemnation cases.
September 14, 1960
Honorable Jim L. Gillis, Sr., Chairman, State Highway Board
You make the following request:
"Your official opinion is hereby requested on whether the wording of the attached contract for acquisition of right-of-way prohibits the State from expending funds to protect the State's interest in condemnation cases by assisting the County Attorney in prosecuting the condemnation cases or in the employing of professional appraisers in addition to the three appraisers furnished by the county in accordance with our approved right-of-way acquisition procedure."
The pertinent portions of the contract attached to your letter are as follows:
"The County will, as required by law, proceed within fifteen (15) days after being notified by the State Highway Department of Georgia to acquire the right-of-way for said project free of all encumbrances, by gift, deed, easement or condemnation in accordance with the approved plans and deed as prepared by the State Highway Department of Georgia.
"The County will furnish free of cost to the Department all supervisory or administrative personnel to procure the right-of-way, including cost of appraisers, assessors, legal services, title examinations and certificates, court costs and recording fees.
"The County will prepare at no expense to the Department all condemnation suits and . pleadings and prosecute, in the name of the State Highway Department of Georgia and the attorney for the State Highway Department, to judgment all proceedings and defend the Department in any and all suits arising out of or resulting from the acquisition of the right-of-way where secured by gift, deed, easement, condemnation or otherwise."
The contract, which is authorized by Article VII, Section 6, Paragraph 1 (a) of the Constitution of the State of Georgia of 1945 (Section 2-5901, Ga. Code, Ann.) states as a premise that the Department and the County are desirous of

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acquiring right-of-way for a project on the State Primary System, for which the cost is in excess of the County's ability to finance without assistance from the State Highway Department. It is thus apparent that the substantial purpose which influenced the contracting governmental divisions was apportioning the cost of right-of-way acquisition for that portion of a State Highway located within the boundaries of the contracting County.
Although not stated in your request, I believe that by the expression "our approved right-of-way acquisition procedure" you refer to a procedure which has been reduced to writing and approved by the United States Bureau of Public Roads as adequate for Federal participation in right-of-way costs. I also believe that the acquisition procedure requires one or more appraisals, under circumstances set forth in detail in the procedure, and that the maximum number of appraisals under the procedure is three. Although not stated in the subject contract, I believe that the County in acquiring right-of-way is required to follow this approved right-of-way procedure. I do not believe that such procedure makes any provision for the furnishing of legal services beyond those within the capabilities of the County Attorney and any regularly employed assistants.
Inasmuch as contracting counties are required to comply with the approved right-of-way acquisition procedure, and contract with this requirement in view, I am of the opinion that such procedure must be taken into consideration in any construction of the subject contract.
The Constitutional provision already referred to does not confer upon any Governmental division the power to engage in any activity not otherwise authorized by the Constitution and Laws. However, either the State Highway Department of Georgia or a County can employ any pay professional appraisers to appraise right-of-way during the acquisition process.
Answering one part of your question, it is my opinion that under the subject contract the County is not obligated to employ professional appraisers other than those required under the approved right-of-way acquisition procedure, and that if the Department desires additional appraisals it is authorized to employ additional appraisers and to pay such appraisers from State funds.
The other question actually relates to the assignment of Assistant Attorneys General and Deputy Assistant Attorneys General to prepare and try litigated condemnations brought in the name of the State Highway Department of Georgia for the purpose of acquiring right-of-way on a project covered by the subject contract.
Section 40-1614 of Georgia Code Ann. (Acts 1943, p. 284-285) vests the Department of Law with complete and exclusive authority and jurisdiction in all matters of law relating to every Department of the ~tate other than the Judicial and Legislative branches thereof. This same section expressly prohibits the other Departments from employing counsel in any manner whatsoever. These provisions vest exclusive jurisdiction over all legal matters in the Attorney General, as head of the Department of Law. No agency of the State Government is authorized to employ an attorney to represent it unless such attorney is deputized by the Governor with the approval of the Attorney General. By these provisions the Attorney General is given authority and responsibility which can not be contracted away by him, and neither can any Department make a contract which ousts the Attorney General of his statutory authority and responsibility. Con-

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demnation actions brought in the name of the State Highway Department to acquire right-of-way on a project which is the subject of such a contract as that now under consideration must be brought by the Attorney General. In the case of State Highw,ay Department v. Sumner, 102 Ga. App. 1, decided June 15, 1960, where the identical contract provision was involved, the court held that 40-1614 does not prohibit the Attorney General from accepting legal services from a County Attorney for which the State is under no obligation to pay. It should be borne in mind that the County Attorney is acting by authority of the Attorney General and not by authority of the contract. I am of the opinion that, properly construed, the quoted provisions of the contract simply require the County to make available to the Attorney General the county land acquisition organization (the County Attorney and his Assistants) at the sole expense of the County. Further, that the County is not obligated to augment the existing land acquisition organization other than as may be required by the right-of-way acquisition procedure, and that when a County has complied with the right-of-way acquisition procedure as to employment and qualifications of counsel it has complied with its obligation under the subject contract.
Since the Department cannot employ additional counsel, in the event the work load arising from preparation and trials of condemnation cases becomes too great for the County Attorney to handle within limitations of time which may result from Department or Bureau of Public Roads requirements, or if for any other reason the Department believes that additional counsel would be desirable to adequately protect the State's interest, it is in order for the Department to request the Attorney General to assign additional counsel to the project. The Attorney General is authorized upon such request to assign legal personnel of the Law Department or to request action by the Governor to appoint for assignment to the project one or more Deputy Assistant Attorneys General under the authority in Section 40-1614 of the Code, which further provides that the Governor, with the concurrence of the Attorney General, in specific instances and on special causes may appoint therein and thereto for such temporary and specific services Deputy Assistant Attorneys General to be compensated therefor as the Governor may direct.
The Attorney General may take such action without a request from the Department, when in his judgment necessary to protect the State's inte,rests.
Such additional counsel may be compensated from State funds. If regularly employed personnel of the Law Department are assigned, reimbursement by the State Highway Department may be claimed under the authority of Sections 95-150,7 and 95-1508 of Georgia Code Ann. (Acts 1958, pp. 118-119). If Deputy Assistant Attorneys General are appointed under the provisions of Section 40-1614 of the Code, they are to be compensated as the Governor may direct.
In an opinion of November 26, 1947 (Qp,inions of the Attorney General, 1945-47, p. 292) I held that restrictive provisions in the General Appropriations Act then in effect would not prevent the Governor from directing that legal fees for duly appointed Deputy Assistant Attorneys General appointed under the provisions of Section 40-1614 be paid from funds available to the Department concerned. The General Appropriations Act of 1956, which is now in effect, contains a similar restrictive provision (Acts 1956, pp. 753, 775). I remain of the same opinion with respect to action by the Governor under 40-1614.
I am therefore of the opinion that the portion of your question relating to

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whether the subject contract prohibits the State from expending funds to pay legal fees for Deputy Assistant Attorneys General, or salaries of Assistant Attorneys General and Deputy Assistant Attorneys General who are assigned by the Attorney General to prosecute condemnation cases on the project covered by the contract, must be answered in the negative. Such expenditures are authorized.
I believe that this opinion finds support in the practically uniform construction placed upon this and other contracts in the same form by the State Highway Department, the United States Bureau of Public Roads, Counties, Cities, and by the Department of Law.
HIGHWAYS-State Department
The State Highway Board may by Resolution authorize the Highway Department to construct, improve and repair roads in Stone Mountain Memorial Park.
March 13, 1961
Honorable Willis N. Harden, Member, State Highway Board
I have your letter inquiring whether the State Highway Department has authority to expend its funds for the construction and maintenance of roads within the limits of the Stone Mountain Memorial Park.
Section 43-126 of the Code reads as follows.
"43-126. Highway Department expenditures for parks.-The State Highway Department is hereby authorized and directed to expend State Highway funds in the construction, re-construction, improvement, repair and maintenance of roads within the boundaries of any land embraced within the State parks system, and to re-locate, construct, re-construct, improve, repair and maintain roads leading from the State highway to any land or other property embraced within the State parks system, and said roads shall become a part of the highway system of Georgia and be so designated. Such roads are to be re-located, constructed, improved, repaired and maintained in such manner as may be agreed upon between the Commissioner and the State Highway Department."
My interpretation of this Code Section is that any portion of the Stone Mountain Memorial Park, which constitutes a part of the State Park system, falls within the purview of the Code Section; and roads within that portion of such park, and access roads leading thereto, may, by Resolution of the State Highway Board, accepted and approved by the Commissioner of Conservation, become State highways within the meaning of the Code Section; and State funds may be thereafter expended in the construction, re-construction, improvement, repair and maintenance thereof.
The content of your letter implies that some comment is desired respecting the authority of the department to contract with the Stone Mountain Memorial Association for the expenditure of these funds and the construction of the pro-

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posed roads by that association at State Highway expense. With respect to such contracts, I am of the opinion that they would be authorized by the provisions of Article VII, Section VI, Paragraph I, of the Constitution (Code Section 2-5901). However, in the construction of such roads by the Stone Mountain Memorial Association, the limitations of Code Section 95-1620 apply; the applicable part of which is as follows:
"95-1620. Highway Board prohibited from contracting debts; purchase of materials, equipment and supplies; contracts with State Bridge Building Authority and Georgia Rural Roads Authority; competitive bids.-The State Highway Board in the administration of the State Highway Department is hereby expressly prohibited from making or contracting any debt or entering into any contract, for which it does not have funds on hand to pay at the time of making said debt or entering said contract; except that the State Highway Board in the administration of the State Highway Department is hereby expressly authorized to enter into lease contracts with the State Bridge Building Authority and the Georgia Rural Roads Authority, and may obligate the Department to pay lease rentals for the use of projects according to the provisions of the 'State Bridge Building Authority Act' and the 'Georgia Rural Roads Authority Act' provided that the total of such lease rentals contracted to be paid at any time shall never exceed $2,500,000 per annum for such lease contracts with State Bridge Building Authority, and $8,500,000 per annum for such contracts with Georgia Rural Roads Authority. For the purpose of paying said lease rentals such funds as may be received by the State Highway Department for the cost of maintaining, improving and reconstructing the roads and bridges on the State highway system and the cost incident thereto, may be pledged by the State Highway Board in the administration of the State Highway Department for the payment of such lease rentals. The chairman of the Highway Board shall advertise for competitive bids on all road contracts, bridge contracts, and all other construction contract, involving funds in the amount of $1,000 or more, all of which must be approved by the State Highway Board or a majority thereof in writing and no contract shall be made or let without two or more bids from reliable individuals, firms or corporations, except contracts with political subdivisions or other departments of the State which shall be let at the average bid price of the same kind
of work let to contract after advertisement during the period of 60
days prior to the, letting of the contract."
It would be quite in order to let such contract to DeKalb County upon the same terms, or under the terms of Section 95-1630.

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HIGHWAYS-State Department The State Board has authority to fix the salary of the Treasurer of the
Highway Department. November 13, 1961
Honorable Jim L. Gillis, Chairman, State Highway Board
I have your letter requesting my opinion on the question of the authority of the State Highway Board to fix the salary of the Treasurer of the State Highway Department of Georgia in accordance with the Act of the General Assembly approved March 12, 1953, published in Georgia Laws, Jan.-Feb. Session, 1953, beginning on page 613.
It is my opinion that the State Highway Board of Georgia has the authority under this Act to fix the salary of the Treasurer of the State Highway Department of Georgia, notwithstanding the provisions of Code Section 95-1606.
Section 5 of the Act specifically confers upon the State Highway Board, as one of the boards named in that Act, power to fix the annual compensation and allowances of all officials and employees in the Highway Department, whose compensation is not regulated under the rules of the State Personnel Board. The office of Treasurer falls within this clarssification and is one of the offices whose salary and compensation may be fixed by your Board.
Section 6 of the Act of March 12, 1953 specifically suspends the provisiOns of all laws, Resolutions, executive orders, and budget approval in effect on that date and in conflict with the Act; and provides that such provisions shall remain suspended until the Act of March 12, 1953 is repealed or amended.
This section, in my opinion, suspends the limitation imposed by Code Section 95-1606 placed upon the salary of the Treasurer of the State Highway Department of Georgia.
HIGHWAYS-Traffic Control The power to regulate traffic and parking on streets and roads which
lie within municipalities but are also part of the State-Aid system or FederalAid system is absolute in the State Highway Department.
June 20, 1960 Honorable Jim L. Gillis, Sr., Chairman, State Highway Board
I have your letter requesting my official opinion regarding the right of the Highway Department to control traffic on roads and streets which constitute part of a State-Aid system of roads, or Federal-Aid system of roads. This opinion

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was requested in connection with Instructional Memorandum 21-10-60 issued by the Bureau of Public Roads relating to the requirements of that Bureau with respect to proposed control of parking and traffic in urban areas, upon submission of a project for approval.
It s.eems to be the gist of the Instructional Memorandum that prior to approval of project plans for the improvement of streets and roads in urban areas which are also part of the State-Aid system, the Bureau desires that the plans submitted contain a statement regarding the proposed control of traffic and control of parking on such streets and highways. The memorandum also requires that the statement regarding traffic and parking control on the proposed improvements should also include evidence of the State's authority to adopt and enforce the measures proposed in the plans, or in connection with the plans.
I construe your request to mean, therefore, that you want information regard-
ing applicable statutes as to the degree of control over such roads and streets
now vested in the State Highway Department or in the municipality concerned.
And I further construe your request to envisage an analysis of the legal effect of the proposed "Form C". This form appears to be designed to clarify and supplement the willingness of the municipality to subject its parking and traffic plan to the overall control of the State Highway Department, in addition to rightof-way acquisition for the use of the Department.
The State Highway Board is vested with full and complete authority over the streets, roads, and highways which constitute the State-Aid system of highways. (Sections 95-1504; 95-1605, 95-1610, and 95-1618, Georgia Annotated Code.)
In construing the extent of this authority the court has used the following language as long ago as 1922 in the case of Lee County v. Mayor, etc. of Smithville, 154 Ga. 550, 556:
"The State, through its legislature, has as much power and control over the laying out, construction, maintenance, and closing of the highways, streets, lanes and alleys of municipal corporations as it has over other public highways. It may change, alter, or abolish either class of these highways at will. The power to have opened, worked, repaired, improved, or closed the public highways, streets, and roads may be exercised by the Legislature in such manner and way, and under such circumstances, as it may deem best. There is no constitutional or other limitation on this power in this particular matter."
The court further said:
"The whole subject is under the control of the State in its sovereign capacity, and this power is to be exercised through its legislature. 13 R. C. L. 79. It can delegate its exercise to a municipality within its limits. It can withdraw this power at will from the municipality, in whole or in part. In the exercise of this undoubted power, the State has adopted a system of locating and building what are denominated 'State-Aid Roads'; and this system is provided for in the above Act by which the State Highway Department was reorganized."
These principles still apply; and the State Highway Department which has in several cases been declared to be the State itself within the field of its activities, is in full and complete control of those streets, roads and highways both

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inside and outside of municipalities, which are also part of the State-Aid system or Federal-Aid system of roads.
With respect to specific authority conferred by the traffic regulations upon the State Highway Department, the State enacted in 1953 what is known as the "Uniform Traffic Control Act". In that Act are numerous specific speed restrictions and parking restrictions which apply in and out of cities. Throughout these provisions one finds the principle that the State Highway Department is in charge of those roads, streets, and highways which are part of a State-Aid or FederalAid system; and the respective counties and municipalities are in charge of those other roads and highways not so included but are in their territorial jurisdiction.
Section 68-1606 of this Act reads as follows:
"The provisions of this law [Chapters 68-15 through 68-17; 68-9926, 68-9927] shall be applicable and uniform throughout this State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance, rule, or regulation in conflict with the provisions of this law unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this law."
With regard to the construction to be placed on this Code Section the case of Long v. State, 202 Ga. 235, reiterated that local laws and regulations may not conflict with general laws and regulations. In that case, acting under a local law passed by the Legislature, the County of Fulton endeavored to adopt speed limits and parking regulations on the roads and highways of that County which differed from those in the laws of the State generally. I quote from that case:
"The Act in question sought to give county commissioners authority to change and modify the terms of an existing penal statute, by permitting them to prescribe a speed limit according to their discretion. This would be a clear delegation of Legislative power, and would be tantamount to substituting the discretion of the county commissioners for that of the General Assembly in prescribing the terms of a law. To embark upon such a relaxation of our Constitutional Provision, as applied to our criminal statutes, would permit a crazy-quilt operation of the speed law and other criminal laws throughout the State. If the law as to the speed limit outside of municipalities can be prescribed by the county commissioners, then the law as to houses which are the subject of burglary can be changed, and even the rules of law defining the various grades of homicide could be redefined. In fact the elements of every criminal statute could be thus changed, thereby permitting the laws of the State to be prescribed according to the whims of the governing authority of each particular county."
Code 68-1609 (part of the Uniform Traffic Control Act) empowers the State Highway Department to adopt a manual and specifications for a uniform system of traffic control devices, correllated with that approved by American Association of State Highway Officials. The State Highway Board has adopted such manual in accordance with that authority.
Code 68-1610 provides that upon "all State Highways including those within all municipalities . . . " the State Highway Department is the sole authority authorized and empowered to install and maintain traffic control devices "or to

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regulate, warn or guide traffic, and shall remove or direct removal all trafficcontrol devices which it shall deem unnecessary."
The same Code Section provides: "No other authority shall place or maintain any traffic-control devices upon any State highway under the jurisdiction of the State Highway Board except by the latter's permission."
The next Code Section, in conformity with the general spirit of this Act, authorizes "local authorities in their respective jurisdictions" to do much the same thing "upon streets and roads under their jurisdiction ... "
It is my opinion that a parking meter, or a parking space marked out by painted lines, each constitutes a traffic control device within the meaning of these Code Sections.
Code 68-1626 (part of the same Act) provides general rules respecting the speed limits under conditions outlined in that section.
The next Code Section (68-1627) confers upon the State Highway Board, jointly with the Department of Public Safety, either upon request from a County Board or "upon their own initiative" power to change the speed limits to a lesser speed than those provided for in Code 68-1626. This power is under the terms of the language of that Code Section to be exercised by the Board and the Director "on any State highway or upon any part thereof, or upon any extension thereof within a municipality. . . . "
In conformity with the general spirit of this Act the next Code Section (68-1628) confers the same authority upon municipalities "within their respective jurisdictions ... upon any street or highway" under their jurisdiction.
Code 68-1629 prohibits driving at such a slow speed as to impede or block the reasonable or normal movement of traffic. In my opinion a determination of what that minimum speed shall be, lies in the authority of the Department (or the State Highway Board as the governing authority over the Department) as to State-Aid roads; and the governing authority of any given municipality as to streets not in the State or Federal system.
Code 68-1639 confers upon the State Highway Board sole authority to designate any highway or separate roadway under its jurisdiction for one-way traffic.
Code 68-1643 reads as follows, with emphasis added by me:
"The State Highway Board may by order and local authorities may by ordinance with respect to any limited-access roadway under their respective jurisdiction prohibit the use of any such roadway by any person operating a motor driven cycle or by pedestrians, bicycles, or other non-motorized traffic. The State Highway Board or the local authority adopting any such prohibitory regulation shall erect and maintain official signs on the limited-access roadway on which such regulations are applicable and when so erected no person shall disobey the restrictions stated on such signs."
Code 68-1662 reads as follows:
"The State Highway Board and local authorities with the ap,proval of the State Highway Board are hereby authorized to designate particu-

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larly dangerous highway crossings of railroads and to erect stop signs thereat. When such stop signs are erected the driver of any vehicle shall stop within 50 feet but not less than 15 feet from the nearest rail of such railroad and shall proceed only upon exercising due care."
Code 68-1665 reads in part as follows:
"The State Highway Board with reference to State highways and local authorities with reference to other highways under their jurisdiction, may designate through highways and erect stop signs at specified entrances thereto or may designate any intersection as a stop intersection and erect like signs at one or more entrances to such intersection."
Code Sections 68-1668, 1669 and 1670 contain general regulations respecting parking which apply both to State-Aid roads and to streets and roads not in the State-Aid system.
Section 68-1671 provides with respect to parking in part as follows:
"Local authorities may by ordinance permit angle parking on any roadway, except that angle parking shall not be permitted on any FederalAid or State highway unless the State Highway Board has determined that the roadway is of sufficient width to permit angle parking without interfering with the free movement of traffic."
"The State Highway Board with respect to highways under its jurisdiction may place signs prohibiting or restricting the stopping, standing, or parking of vehicles on any highway where such stopping, standing, or parking is dangerous to those using the highway, or where the stopping, standing or parking of vehicles would unduly interfere with the free movement of traffic thereon. Such signs shall be official signs and no person shall stop, stand, or park any vehicle in violation of the restrictions stated on such signs."
Code Section 95-604 reads as follows:
"There is hereby vested in the State Highway Board of Georgia and its representatives exclusive authority and jurisdiction for the erection and maintenance of signs along the highways of this State composing the State-Aid system of roads as it now or hereafter exists. The State Highway Board and its representatives are hereby vested with the exclusive authority and are hereby directed to place all signs along the State-Aid system of roads which are used as route markers, direction signs, or warning signs. No person, firm or corporation other than the State Highway Board and its representatives is authorized to erect or maintain any directional sign, any route marker, or any sign of any character or nature in conflict with signs maintained by the State Highway Board for the purpose of directing traffic, either on the State right-of-way or on private property."
With respect to highway markers warning users of the highways far the penalty of throwing trash thereon, Section 95-605 vests this authority exclusively in the State Highway Department as to "the property of or rights-of-way of the State Highways".

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Section 95-606, immediately following, charges counties and municipal corporations with the same duty "upon the streets or roads within their respective counties or municipalities and under their respective jurisdictions".
Section 95-609 provides in part as follows:
"It shall be unlawful to erect signs or any obstructions of any kind upon the right-of-way of any State highway, except those signs or obstructions as may be erected by authority of the State Highway Department."
From the foregoing I conclude that the power of the State Highway Department to regulate traffic and/or parking on those streets and roads which lie within municipalities, but which are also part of the State-Aid system or FederalAid system, is absolute. Any control attempted by any municipality would be subject to the overlying authority and permission of the State Highway Department.
As to the content of the proposed "Form C" it occurs to me that notwithstanding the opinions set out in the preceding paragraphs; and notwithstanding those provisions of law which I have cited, the proposed :form would prevent any municipality from Clisputing the supreme authority of the Department if an agreement along the lines indicated in the proposed "Form C" were obtained from the municipal authority.
It therefore appears that the proposed form would be appropriate when entering into an agreement with any City respecting the procurement of any right-of-way within that City; or with respect to taking over any existing roads and streets already in use in that municipality.
INSURANCE-Agents
Responsibilities of agents in regard to funds o:f insured under Section 56-848-b (2) of 1960 Insurance Code.
December 12, 1960
Honorable Zack D. Cravey Insurance Commissioner
This is in reply to your letter in which you enclose a letter from the Executive Secretary of the Georgia Association of Independent Insurance Agents. You ask for an interpretation of section 56-848-b (2) of the new Insurance Code.
The section reads as follows:
"All funds representing premiums received or return premiums due the insured by any agent, broker or solicitor shall be accounted for in his fiduciary capacity and shall not be co-mingled with his personal funds, and shall be promptly accounted for and paid to the insurer, insured, or agent as entitled thereto. Nothing herein contained shall be deemed to require any such agent, broker or solicitor to maintain a separate

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bank deposit for the funds of each such principal, if and as long as the funds so held for each such principal are reasonably ascertainable from the books of accounts and records of such agent, broker or solicitor."
In my opinion, the section requires all agents, solicitors or other representative of an insurer or of any other person in. the effectuation of an insurance contract to:
1. Account for all funds held by him in a fiduciary capacity. 2. Maintain a separate bank account for such funds independent of
his personal account and not co-mingle such fiduciary funds with personal funds.
3. Maintain book of accounts and records to reasonably show to whom such funds are due and payable.
4. Maintain a balance in such fiduciary or agency account at all times sufficient to cover the amount of premium actually collected by him, less any commission earned thereon, and other funds received by him in a fiduciary capacity, less any commission or fee earned thereon, to be refunded or paid to another person in connection with the effectuation of an insurance contract.
INSURANCE-Agents (Unofficial) Insurance available through U -Haul companies to cover cargo in their
trailers must be sold by a licensed agent. April 6, 1960
Mr. William T. Stephens Your letter addressed to the Commissioner of Insurance, has been referred
to this department for reply. The laws of Georgia provide: "All insurance contracts on risks or property
located or having a situs in this State shall bear the counter-signature of an agent who resides in the State of Georgia and is licensed pursuant to this Act, except:
(1) Any contract of insurance covering the rolling stock of any railroad or covering any vessel, aircraft or motor vehicle used in interstate or foreign commerce, or covering any liability or other risks incident to the ownership, maintenance or operation thereof.
(2) Any contract of fire insurance upon property of railroad companies and other common carriers.
(3) Any contract of insurance covering any property in transit while in the custody of any common carrier, or any liability or risk incident to such carriage.
(4) Any contract of reinsurance between insurers.

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"A risk shall be deemed to have a situs in this State if the insurance is upon or in regard to property having a permanent situs in this State, or is movable property which is actually in this State or is principally used or kept in this State."
Since, under the type of operation described in your letter the trailer cargo is not in the custody of the trailer rental service, the exceptions outlined above could not be construed to apply, and, in my opinion, the writing of cargo insurance in connection with trailer lease agreements must be written through a licensed agent.
INSURANCE-Burglary and Theft Insurance
When a "Theft" within meaning of Burglary and Theft Insurance discussed.
September 11, 1961
Honorable Zack D. Cravey Insurance Commissioner
You ask to be advised on the following:
"1. Clarify by definition the meaning of the word 'theft' and advise if the facts as submitted in this file appear to fall within the definition.
2. Advise the meaning of the words 'mysterious disappearance' and advise if the facts as submitted in this file appear to fall within the definition.
3. Note the last paragraph of the first page of the letter to my office, and advise me of any method of circumvention or changes which should be made in all policies of this type which would show a theft to exist rather than a mysterious disappearance.''
The facts as submitted are: The insured removed a diamond ring from her finger, valued at $375.00, and deposited it in a cup on the wall in the den of her home and approximately 24 hours later when she looked for the ring it was missing. There was no evidence of any entry into the house and no visitors or residence employees had access to the room during the 24 hour period. Nothing else was missing.
"Theft" as defined by the Code of Georgia (Section 26-2602) is: "the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same.''
The word "theft" in an insurance contract is usually used in conjunction with the word, "burglary". Burglary and Theft Insurance is defined as "insurance against loss of property by the depredation of burglars and thieves.'' (44 Corpus Juris Secundum 5, p. 475). Theft is defined by Black's Law Dictionary as "the fraudulent taking of personal property of another . . . with intent to deprive the owner of the value of same, and to appropriate it to the use and benefit of the

262
person taking it". From the definitions examined, the gist of the offense is the taking and carrying away with intent to steal or deprive.
It would therefore appear, in answer to your first question, that if the contract of insurance involved herein contained only a reference to loss by theft, the loss would be covered. However, it is pointed out that this is a factual question and it could only be finally determined in a court of competent jurisdiction. The burden of proof would be upon the insured to establish by competent evidence all the material elements of the offense of "theft".
The policy under discussion, as indicated in the correspondence, covered losses by "burglary and theft" but expressly excluded losses by "mysterious disappearance." "Mysterious disappearance" is defined as: "unknown, unaccountable and unexplainable loss." Here again is a factual question which can only be finally determined in a court of competent jurisdiction.
"While the removal of the property without the owner's consent raises a presumption of larceny, a felonious abstration will not be presumed from a mere loss and the burden ordinarily rests on the insured to show the presence of the essential elements of the crime." (46 C.J.S. 1321).
"There can be no recovery where the loss is within one of the exceptions or exclusion clauses of the policy." (45 C.J.S. 886).
Upon the facts submitted it would appear that the loss under discussion falls within the exclusion of "mysterious disappearance" since the insured has submitted no evidence to establish a theft.
With reference to your third question it would not appear that any policy changes would be necessary. Standard policy forms are offered which cover both theft and mysterious disappearance. I believe this is referred to as "broad form" coverage. Other standard forms cover only theft and exclude mysterious disappearance. These policies would normally carry a slightly less rate than the broad form of coverage. Since both "theft" and "mysterious disappearance" have been fairly well defined and distinguished by court decisions, there does not appear to be substantial grounds for confusion and the public should be afforded the opportunity of purchasing the type of coverage desired.
However, should you deem it necessary to require a change in the standard policy forms, you could approve only policies where theft was defined to cover mysterious disappearance.
INS URANCE-Comp,anies
Discussion of application to amend charter of insurance company.
January 17, 1961
Honorable Zack D. Cravey Insurance Commissioner
This is in reply to your letter in which you ask if an application is in proper legal form and meets the requirements of the Georgia Statutes. You call particu-

263
lar attention to paragraph 6 of the petition which reads: "That applicant desires said amendment to be effective as of January 2, 1961." It is noted that the application for amendment of charter was filed with the Secretary of State, and copy forwarded to you on the same day.
The application for amendment is in proper legal form and meets the requirements of the a.pplicable statutes. There remains only the question of the effective date of the amendment.
I am advised by counsel for applicant that paragraph 6 was inserted for the purpose of making the application for amendment conform with the terms of the resolution duly passed by the stockholders on March 8, 1960.
The amendment would authorize the company to reduce the par value of its capital stock from $5.00 to $.50 per share by issuing new stock certificates on a ratio of 10 to 1 for each share of stock outstanding, and to increase its authorized capital stock by 350,000 shares.
Chapter 56-15 of the Insurance Code, dealing with organization of companies, amendment to charters, etc., is silent as to when an amendment becomes effective, or as to the right of the Secretary of State or Insurance Commissioner to approve a request such as contained in this application that the effective date be prior to the approval of the amendment to the charter. The strong implication is, in my opinion, that the effective date is the date the amendment is finally approved and filed by the Secretary of State after same has been approved by the Insurance Commissioner.
The prime concern of the Insurance Commissioner in approving an amendment, after ascertaining that the statutes are complied with, is to see that the policy holders of the company are protected and that the financial condition of the company shall not be impaired. In the instant case there has been compliance with the provisions of the Code: the stockholders were duly notified at least 10 days prior to the stockholders meeting; the notice stated the purpose of the meeting was to vote on the proposed amendment to the charter; the requisite number of votes was recorded in favor of the amendment, and the amendment is authorized by statute. Furthermore, the financial condition of the company will be strengthened, and thereby the position of the policy holders will be improved. The share holders will not be injured by the reduction of the par value of the stock.
I have been unable to find a Georgia decision on the question raised. However, I would like to quote from 18 Corpus .Juris Secundum at page 485: "... if the amendment is within the statute, and the provisions of the statute have been substantially complied with, and the proper fee or tax, if required, is tendered, the officer has no discretion to refuse to grant or file the amendment, or to issue a certified copy, as the case may be."
In the instant case, I am informed that the cost of calling a special stockholders meeting would be approximately $6,000. While the expense involved should not control the answer given, I do not believe that the company should be required to expend this amount of the stockholders' fund for the calling of another meeting for the purpose of again approving the amendment. It is therefore my opinion that you are authorized to approve the application submitted.
I am herewith returning the copy of the petition to amend charter, and the other documents transmitted to me in your letter.

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INSURANCE--Companies
Conversion of a fraternal benefit society to a mutual insurance company discussed.
November 8, 1960
Honorable Zack D. Cravey Insurance Commissioner of Georgia
I am in receipt of your letter enclosing a plan to transform a fraternal benefit society to a mutual insurance company. Since this fraternal society, though authorized to transact business in Georgia, is domiciled in the State of Michigan, such conversion would be governed by the laws of that state. From the certificates of the First Deputy and the Chief Deputy Insurance Commissioner of Michigan it appears that the requirements of the Michigan Statutes have been fully met.
Your attention is called to the p1ovisions of Chapter 56-16a of the Code of Georgia. Section 56-1601a authorizes a fraternal transacting business in this State to convert into a stock or mutual insurance company. Section 56-1602a requires that notice to subordinate lodges be given 90 days prior to the meeting of the supreme governing body. While, in my opinion, this requirement would not be binding on a fraternal domiciled in another state if the laws of that state required less notice, your attention is called to the fact that such notice was mailed to delegates of the "Supreme Tent" on August 6, 1958, and that the entire membership of the fraternal was afforded the opportunity of repealing the action of the supreme governing body by referendum vote, the referendum ballots being mailed to the membership on May 15, 1959 with the final tabulation of the vote being completed on June 26, 1959. The referendum vote overwhelmingly sustained the action of the supreme governing body.
It appears that all existing rights of present policy holders will be fully protected under the conversion plan, and I know of no legal reason why you should object to the conversion of the fraternal benefit society to a mutual insurance company.
INSURANCE--Companies
Approval of stock dividend out of "paid in" surplus as distinguished from "earned" surplus discussed.
May 3, 1961
Honorable Zack D. Cravey Insurance Commissioner
This will reply to your letter in which you ask if a company is authorized to declare a stock dividend of $50,000 out of "paid in" surplus as distinguished from "earned" surplus. You point out that the company began business in 1955 with a paid in capital of $100,000 and a paid in surplus of $200,000, and that its

265
present surplus is $163,757.69 when the reserves on outstanding policies are computed according to the 1941 C.S.O. 3o/o Mortality Table.
Section 56-1523 of the Code of Georgia (1960) provides:
"56-1523. Dividends to stockholders. A domestic stock insurer shall not pay any dividend to stockholders except out of that part of its available funds which is derived from realized profits on its business."
I am of the opinion that the key word in this Section is "pay" which normally denotes the giving or parting with something. In the proposed stock issue from surplus funds, the company will not be parting with any of its assets. It would therefore appear that the Legislature, in writing the above quoted restriction on the payment of dividends, had in mind the paying out of funds rather than a stock dividend where the company does not give up or part with any of its assets.
In this connection, I feel that the law in effect prior to the adoption of the 1960 Insurance Code supports this construction. I call your attention to Sections 56-214 and 56-215 of the old Code which provides:
"56-214. Dividends, declaration of.-The Board of Directors of any company organized under this Chapter may declare dividends out of the earnings of said Corporation: Provided, no dividend shall be declared until the earnings shall be sufficient to pay the same, after deducting all expenses and providing for such reserves as may be required by law."
"56-215. Stock dividends in lieu of money dividends.-Corporations formed under this Chapter may issue stock dividends in lieu of cash dividends if the Board of Directors shall so decide, and thereby add to the capital stock, not to exceed the highest limit of the capital stock fixed by their charters."
You will note that Section 56-214, above quoted, provides that no cash dividend shall be declared until the earnings of the company are sufficient to pay same; while Section 56-215 provides that stock dividends may be declared without making any reference to "paying" such dividends or to the earnings of the company.
Your attention is further called to the provisions of Section 56-311 of the new Code which require existing companies to meet the increased capital requirements (capital of $200,000) by July 1, five years after the enactment of the new Code (July 1, 1965). The proposed stock dividend will be a step toward meeting this requirement, without selling additional stock and without weakening the financial structure of the company or impairing the rights of policy holders.
I therefore see no legal objection to your approval of the proposed stock issue should you determine that the remaining amount of surplus, $113,759.69, is ample for the normal operation of the company's business.
I am pleased to advise you in this matter and am returning the Examiner's report of the company.

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INSURANCE--Companies
Expansion of "Four County Farmers Mutual" type insurance company discussed.
October 28, 1960
Honorable Zack D. Cravey Insurance Commissioner
Reference is made to your letter and to letter from Dudley Magruder, Attorney, with enclosures. You ask my advice on the question raised by Mr. Magruder.
At present the subject company operates as what is generally referred to as a "Four County Farmers Mutual" Insurance Company and enjoys all of the exemptions afforded by our laws to such companies. Its present policies are written on an assessable basis and are limited to the sum of $5,000 coverage. The company desires to change the form of its policy and adopt what is generally referred to as the New York Standard policy form and to eliminate the assessable feature of the policy by putting up the required deposit with the State Treasurer to guarantee its policies. The company further desires to enter into a re-insurance treaty with a qualified re-insurer, and to increase the amount of coverage written from $5,000 to $10,000 with subject company carrying $5,000 of the coverage and the excess coverage being carried by the re~insurer. Eventually subject company plans to extend its operation beyond the four counties in which it now operates.
Item 1 of Mr. Magruder's letter :-Section 56-313 of the Georgia Code authorizes any mutual fire company chartered under the laws of Georgia to eliminate the emergency clause providing for additional assessments on policy holders from their insurance contracts if such company shall deposit securities in the amount of $100,000 with the State Treasurer and shall maintain such deposits as a surplus in excess of the re-insurance reserves required by law. Such securities shall consist of "bonds of the United States, bonds of the State, bonds of municipalities or counties of the State which have been duly validated, or such other securities as the Commissioner shall deem adequate." Section 16-437 would appear to qualify certificates of State chartered buildings and loan associations and Federal chartered savings and loan associations for such deposits. It therefore appears that only the certificates in the National City Bank, The First National Bank and the Rome Bank and Trust Company (all of Rome, Georgia) fail to meet the strict statutory requirements and these could qualify if the Commissioner deems such securities adequate.
Item 2: There is no restriction, unless contained in the charter and by-laws of subject company, that would prohibit the expansion of operations into more than four counties. In this connection it is pointed out that such expansion will automatically lose for subject company any and all of the exemption afforded to companies doing a fire business upon the mutual, cooperative or assessment plan and operating in not more than four counties in a division of this State.
Item 3: The authority to write non-assessable policies has been previously discussed in Item 1, supra. The writing of non-assessable policies will, in my opinion, forfeit some of the exemptions afforded to "farmers assessment cooperative fire insurance companies doing business in this State in not more than four counties in a division." (Note: The exact language in the exemption clauses vary in several statutes. See 56-312; 56-810; 92-2509; 92-3105.)

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Item 4: Adoption of New York Standard Fire Insurance Policy Form:Section 56-313 of the Code provides that samples of all policies issued by companies chartered under the laws of this State to do a fire business upon the mutual, cooperative or assessment plan shall be submitted to the Commissioner for approval. If no conflict exists in the charter and by-laws of subject company, there is no reason why the New York Standard policy form cannot be adopted. In the event of conflict with Charter and By-laws, it will be necessary to amend same so as to eliminate such conflict. (See Sections 56-810, 811 and 1403.)
Item 5: Re-insurance Agreement.-I find no prohibition in our existing laws against a mutual insurer entering into a re-insurance treaty with a company qualified under the laws of this State to enter into such treaty or agreement. As to the writing of extended coverage, Section 56~804 provides that the Secretary of State may grant to fire insurance companies incorporated under the laws of this State authority to cover by their policies losses ascribed to lightning, explosives, storms of every character, earthquake, hail, frost, snow, riot and civil commotion, theft, sprinkler leakage, explosions from other causes than explosives, smoke, aircraft, vehicles, and against loss or damage to glass and the lettering or ornamentation thereon by accidental breakage thereof.
Item 6: Increasing the amount of coverage from $5,000 to $10,000 with subject company retaining $5,000 of the risk and overage being re-insured. There is no prohibition in our statutes against such an increase in coverage. It is presumed that this item would involve an amendment of the Charter and/or By-laws of the company.

INSURANCE-Cornp,anies (Unofficial) Gross premium tax of 1% discussed.

May 18, 1960

Mr. Max Wiggins
I have your letter which presents the question of whether the Truck Insurance Exchange is required to pay the one (1%) percent tax imposed by Section 78-1006 of the Code of Georgia to the Firemen's Pension Fund.
Act No. 165, approved March 3, 1955 (Georgia Laws 1955, p. 339) now codified as Section 78-1001, et seq., of Georgia Code Annotated, provides in the applicable portion thereof:
"78-1006. Tax on Fire Insurance Companies for Benefit of Pension Fund.-Every fire insurance company, corporation or association doing business within the State of Georgia shall within 90 days from December 31st of each year deliver and pay to the Secretary-Treasurer of the Georgia Firemen's Pension Fund one percent of the gross premiums written by such insurance company, corporation or association on fire, lightning, extended c~verage, inland marine and allied lines and wind storm insurance policies covering property within this State. The tax is in addition to any and all other premium taxes now imposed by law. In

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the event that any such fire insurance company, corporation or association shall knowingly or willfully fail to report and pay over the moneys due on premiums as aforesaid, then the Secretary-Treasurer of the Georgia Firemen's Pension Fund shall report such delinquent to the Insurance Commission. The Insurance Commissioner is hereby authorized and directed upon receipt of such report to immediately cancel such delinquent's license to do business within the State of Georgia: Provided, premiums collected on the aforesaid types of insurance policies covering property which is classified by the National Board of Fire Underwriters as unprotected property, shall be excluded in determining this tax."
Construing this Section in its entirety, you are advised as follows:
(a) The one percent premium tax is levied upon any insurer writing fire, lightning extended coverage, inland marine and allied lines and windstorm insurance on property within the State of Georgia which does not fall within the exception above set out, regardless of whether such insurer is designated as a fire insurance company, corporation, association, or not.
(b) The Truck Insurance Exchange, Los Angeles 54, California, is licensed by the Georgia Insurance Department to write Miscellaneous Casualty and all Motor Vehicle Coverages and Workmen's Compensation Insurance in this State.
(c) If the Truck Insurance Exchange writes policies insuring against loss from fire, lightning extended coverage, inland marine and allied lines and windstorm on motor vehicles owned by residents of Georgia which do not fall within the exception noted above, said company is liable for the one percent tax on the gross premiums collected for such coverages.
INSURANCE-Companies
Discussion of investments by an insurance company in loans secured by first mortgages on real property.
January 24, 1961
Honorable Zack D. Cravey Insurance Commissioner
This will reply to your letter in which you enclosed a copy of a letter from Robert S. Wiggins, Counsel for Piedmont Southern Life Insurance Company. You ask for an interpretation of Section 56-1022 Of the Code of Georgia dealing with investments by an insurance company in loans secured by first mortgages on real property, and particularly with that portion of the Section which deals with the appraisal of the property which secures the loan.
The material portion of the Section reads as follows:
"56-1022-Mortgage loans:.-An insurer may invest in:
(1) Bonds, notes or other evidences of indebtedness, in addition to those eligible under Section 56-1016 (Corporate bonds and debentures)

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which are secured by first mortgage or deed of trust or deed to secure debt upon fee simple, unencumbered improved or income producing real property located in the United States or Canada, included leasehold estates in such real estate. No such loan or loans when made shall exceed 75 per cent. of the value of the real property or leasehold securing the same, as determined by competent appraisers, unless guaranteed or insured by the Administrator of Veterans Affairs or insured by the Federal Housing Commissioner, as provided in subsections (3) and (4) below. Unless the loan is guaranteed or insured by a governmental agency, as above provided, the appraisal must be certified by two or more company officers, or qualified employees (or by two independent appraisers)." (Underscoring supplied.)
This Section, in my opinion, requires that before an insurer is authorized to make a loan which is to be secured by a first lien mortgage or other security instrument on fee simple real estate, including leasehold estates, that the value of the real estate securing the loan must be established by competent appraisals. Such appraisals may be had in two ways:
(1) If the insurer has in its employ two or more officials or employees who are competent to appraise the value of the security real estate, two of such officers or employees shall certify as to the value of the security real estate. The fact that such officers are required to certify as to the appraisal, in my opinion, implies that each of the two officers and/or employees shall make an independent and separate appraisal of the real estate.
(2) In the event the insurer does not have in its employ officers and/or employees competent to appraise the value of the security real estate, then such insurer would be required to obtain the services of two independent appraisers. Again, in my opinion, the implication is that the two independent appraisers should make separate and independent appraisals of the property. It would be immaterial if the two independent appraisers were members of the same appraisal firm, so long as each independent appraiser was competent and qualified to fix a fair and reasonable value of the security real estate.
INSURANC~Companies
Investments permitted of insurance companies discussed.
October 27, 1960
Honorable Zack D. Cravey Insurance Commissioner
Reference is made to your letter in which was enclosed a proposed trust agreement with the Trust Company of Georgia. You ask if a loan by Kennesaw to Commercial Trust evidenced by notes of Commercial Trust, which notes in turn are secured by collateral first mortgage notes held by Commercial Trust, would constitute a loan secured by first mortgages on real estate as authorized and contemplated by Section 56-224 (c) of the Code of Georgia.

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Section 56-224 (c) provides: "Every insurance company organized and doing business by virtue of the laws of this State shall have the authority to invest its money and assets in the following securities, to wit: ... (c) Loans secured by first mortgages on improved real estate in any of the States, not exceeding 66% percent. of the value of said property. . . ."
Subsection (k) further authorizes investments in: "Promissory notes amply secured by pledges of securities in which the company is authorized to invest its funds."
Without expressing any opinion as to the legality or necessity for the trust agreement between Commercial Trust Company and the Trust Company of Georgia, I am of the opinion that an insurance company organized and doing business by virtue of the laws of Georgia may invest its money and assets in promissory notes which in turn are secured by other first mortgage instruments on improved real estate, not exceeding 66% percent. of the value of said property, under the provisions of Section 56-224(c) and (k) of the Code of Georgia.
INSURANCE-Companies
Insurance companies may legally invest in revenue bonds of political subdivisions of the State.
December 12, 1961
Honorable Zack D. Cravey Insurance Commissioner
You ask to be advised if insurance companies can legally invest their assets in certain bonds.
Your attention is called to Section 56-1013 of the Code of Georgia and especially to the Amendments thereto enacted in 1961, (G. L. 1961, p. 458,) the pertinent portion of which reads as follows:
"An insurer may invest in ... revenue bonds issued by any political subdivision, authority, unit or other corporate body created by the United States Government or the government of any State, for the purpose of aiding in or promoting the industrial development of such State or political subdivision."
The Constitutional Amendment under which the bonds in question were issued was passed by the Georgia Legislature and approved on March 17, 1960 (G. L. 1960, p. 1368) and was ratified by a majority of the voters of Decatur County on November 8, 1960 (Ga. L. 1961, p. 763).
It therefore appears that the bonds in question, if properly issued, are legal investment for insurance companies under the existing laws of this State.

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INSURANCE-Companie'S
Organizational requirements for an insurance corporation discussed.
July 24, 1961
Honorable Ben W. Fortson, Jr., Secretary of State
This will reply to your letter requesting an interpretation of Section 56-1542. Specifically you ask if a stock insurance company in the process of organizing must retain 87% o/o of all proceeds from the sale of stock for the purpose of meeting the minimum capitalization requirements necessary to obtain a license. You further ask if such funds must be set aside in an escrow account.
The material portion of Section 56-1542 provides:
"The total expense of organization of any insurer organized under this Chapter, including commissions for the sale of stock shall not exceed 12% o/o of the amount for which the stock is sold. . . ."
An insurance corporation is incorporated when the Secretary of State issues his Certification of Incorporation as provided in Section 56-1506 of the Code of Georgia. However, such corporations are not authorized to transact business until a Certificate of Authority has been granted by the Insurance Commission (Section 56-1506(2) ). It would appear that the word "organization" as used in Section 56-1542 would include the entire period from the inception of the company, the filing of application for charter and the time required to raise the capital and surplus required by statute. It further appears that a newly formed company is allowed 36 months (Section 56-1540(2)) to complete its organization and raise the statutory capital and surplus and obtain a Certificate of Authority from the Commissioner to do business.
The limitation on expenses of 12% o/o of the amount for which the stock was sold would apply to all expenses incurred from the inception of the company until a Certificate of Authority was obtained. The remaining 87% o/o of the proceeds of the sale of stock would be applied toward the capital and surplus requirements.
There is no express requirement in the new Insurance Code that the portion of receipts realized from sale of stock to be applied to capital and surplus be placed in an escrow account, although good business practice would seem to demand that such be the case. Your attention is called to Section 56-1540 which provides for the extinguishment of charters which are not activated within 36 months from the date granted. Since the Secretary of State must nullify charters granted by him for those corporations which do not qualify to do business, it would appear that a requirement that 87% o/o of the proceeds of the sale of stock be placed in escrow pending the completion of organization of an insurance company and the obtaining of a Certificate of Authority would be reasonable. In this connection your attention is directed to Section 56-110 of the old Insurance Code which gave the Commissioner supervision over companies in the process of completing their organization. I find no such provisions in the new Insurance Code.

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INSURANCE-Companies'
Penalty for failure to pay loss within sixty days.
December 15, 1960
Honorable Zack D. Cravey Insurance Commissioner
Your attention is called to the provisiOns of Section 56-706 of the present Insurance Code which provides that any insurance company doing business in this State shall be liable to pay policy holders, in addition to the amount of the loss, not more than 25% of the liability of said company for said loss, together with reasonable attorney's fees, when such companies shall fail or refuse to pay a loss within 60 days, provided the Jury trying the case finds that the refusal of the Company to pay was in bad faith.
INSURANCE-Companies
Requirements for surplus under new Insurance Code for present "Four County Mutual" type company discussed.
December 8, 1960
Honorable Zack D. Cravey Insurance Commissioner
This is in reply to your letter in which you ask if a company which is at present operating as a so-called "four county farmers mutual" fire insurance company would be required to attain and maintain a surplus of $200,000 within five years after the provisions of the new insurance Code become effective on January 1, 1961. The company now operates in only four counties and writes an assessable policy. The present surplus is approximately $135,000. It desires to write nonassessable policies and does not plan to expand its operations beyond the present four county limits.
Under existing law, Section 56-313: "Companies chartered under the laws of this State to do a fire insurance business upon the mutual, co-operative or assessment plan shall always have in good assets an amount equal to the unearned premium liability of the company required of all classes of fire insurance companies by the laws of this State. All policies issued by such companies shall embrace what is termed an emergency clause whereby the company reserves the right to call for extra assessments from its policy holders whenever the contingency shall arise. . . . Provided, that nothing in this law shall require any mutual fire insurance company chartered under the laws of this State to embrace in its policies said emergency clause when such company shall have deposited with the Treasurer of the State registered securities in the amount of $100,000, consisting of bonds of the United States, bonds of the State, bonds of municipalities or counties of the State which have been duly validated, etc."
Thus it is clear the subject company has the legal right to eliminate the emergency clause from its present policies by making the required deposit of

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$100,000 with the State Treasurer. Such action by subject company would not, in my opinion, alter the status of subject company from that of a "four county farmers mutual" insurance company so long as it continued operations in no more than four counties.
Section 56-306 of the Act of 1960 (new Insurance Code) requires that nmtual insurers maintain a surplus of $200,000 for each class of insurance written, and Section 56-1510 of the new Code requires newly organized domestic mutuals to have a like amount of surplus. Section 56-311 of the new Code requires that existing companies comply with this surplus requirement within five years from the effective date of the new Code. However, your attention is called to the provision of Section 56-309 of the new Code which states: "This section does not apply to farmers mutual fire insurance companies."
Four county farmers mutual fire insurance companies are treated in Chapter 56-20 of the new Code. Section 56-2004 (c) requires a surplus of $10,000. (Note: The word "no" is a typographical error and should read "on".) Your attention is called to the Section 56-2022 which provides that four county farmers mutuals shall be subject also to the provisions of Chapters 56-1, 56-2, 56-6, 56-7 and 56-14. None of these Chapters deals with surplus or deposit requirements. Since the Legislature specifically spelled out the portions of the Code which applied to four county farm mutual companies, I am of the opinion that it was intended that the Chapters not specifically named have no application to such companies, and that subject company would not be required to increase its surplus to $200,000 within the five year period following the enactment of the Code.
You pose the further question of eliminating the lien feature of the present policy, regardless. of whether the assessment feature is retained or not. In this connection your attention is called to Section 56-312 of the old Code which authorizes mutual, co-operative, or assessment fire insurance companies "as operate in not more than four counties in a division of this State, or to farmers' co-operative companies doing fire insurance business in this State on the assessment plan where their policies stipulate that all property, real or personal, of the policy holder is pledged for the payment of the policy to eliminate the lien feature of the policy by depositing with the State Treasurer registered bonds of the United States or of this State or county or municipal bonds in the sum of $10,000."
You are therefore advised that subject company may eliminate the lien feature of its present policies by making an acceptable deposit of $10,000 with the State Treasurer and may eliminate the assessment or emergency clause from its policy by making an acceptable deposit with the State Treasurer of $100,000.
You are further advised that, in my opm10n, the requirement of Sections 56-306 and 56-1510 of the new Code that existing mutual companies increase their surplus to $200,000 within five years from the enactment of the new Code has no application in so far as subject company is concerned so long as its operations continue to be limited to four counties.

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INSURANCE-Fire Insurance
A company presently writing fire insurance must comply with additional requirements for "homeowner policies" before writing such additional insurance.
December 14, 1960
Honorable Zack D. Cravey Insurance Commissioner
This will reply to your letters in which you ask if subject company is authorized under its current license to issue what is generally referred to as the "Homeowner's Policy". I have examined the proposed homeowner's policy enclosed in your letter of December 13, 1960.
Subject company is now authorized to make contracts of insurance and reinsurance against loss or damage to property and loss of the use and occupancy by fire, lightning, hail, tempest, floods, earthquakes, explosion, fire ensuing; against loss or damage to person or property occasioned by the operation of any and every kind of motor vehicle, including passenger automobiles, motorcycles, trucks and trailers, and duly licensed public service motor vehicles; and against loss or damage to glass and the lettering or ornamentation thereon by the accidental breakage thereof.
The homeowner's policy, in addition to the above enumerated coverages, insures against comprehensive personal liability, medical payment, physical damage to property and supplementary payments (which includes court cost and cost of litigation, appeal bonds, medical expense of insured incurred by reason of accidental injury). These coverages fall within the class of coverage, written by casualty insurers and are not included in the risks subject company is now authorized to cover by its policies.
It would therefore appear that before subject company can be authorized to issue the "homeowner" policy submitted, that it would be required to meet the surplus requirements of Section 56-1510 of the Georgia Insurance Code of 1960, that is $200,000 for each class of insurance written; and the deposit requirements of Section 56-309 of the same Code, that is $100,000 for one class and $25,000 for each additional class of insurance written.
Since the charter of subject company only authorizes it to do a fire insurance business, this would necessitate amending its charter.

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INSURANCE-Foreign Insurers
The Insurance Commissioner is authorized to return excess securities deposited by multiple line foreign and alien insurers under old insurance code which now exceed requirements of new code.
March 15, 1961
Honorable Zack D. Cravey Insurance Commissioner
This will reply to your letter in which you ask if you are authorized to release securities deposited by multiple line foreign and alien insurers under the old Insurance Code in the amount that such deposits exceed the requirements of the new Code.
Section 56-301 of the old Code required companies chartered by other states or foreign governments to deposit with the State Treasurer bonds of the United States or bonds of this State or bonds of any county or municipality of this State of the face value of $10,000, with the proviso that all fire, marine, and life, casualty indemnity, and inland insurance companies chartered by other states or foreign Governments, which have a paid up or issued capital stock in excess of $500,000 shall deposit said bonds in an amount equal to two percentum., of the gross annual premiums derived from business written on Georgia property, but in no case less than $10,000 nor more than $25,000.
This Section, for many years, has been construed to require foreign and alien insurance companies to deposit with the State Treasurer not less than $10,000 of the specified securities for each class of insurance written. Thus, for example, a multiple line insurer under the old Code may have deposited $10,000 for fire, $10,000 for casualty and $25,000 for fidelity insurance, or a total deposit of $45,000. (Note: Nothing contained herein has any reference to the special $50,000 bond required of insurers writing Workmen's Compensation coverage.)
Section 56-309 of the new Code requires a deposit of $100,000 for one class of insurance, with an additional deposit of $25,000 for each additional class, subject to a limitation of $200,000 total deposit for any combination of classes. This deposit may be maintained in the domiciliary state.
Section 56-310 of the new Code provides that in addition to the deposit required by Section 56-309, each foreign and alien insurer must deposit with the Treasurer of Georgia securities eligible for investment of capital funds in an amount not less than $10,000 nor more than $25,000 at the discretion of the Commissioner. There is nothing contained in Section 56-310 which indicates that this deposit of not less than $10,000 nor more than $25,000 is required for each separate class of insurance written.
It is therefore my interpretation of the provisiOns of Section 56-310 that a foreign or alien insurer that is otherwise in compliance with the Statutes of this State is now required to maintain on deposit with the Treasurer of Georgia, securities eligible for investment of capital funds in an amount not less than $10,000 nor more than $25,000 at the discretion of the Commissioner, and that you are authorized to release such amounts deposited by foreign and alien insurers as are in excess of the maximum amount required.

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INSURANCE-Liability Insurance (Unofficial)
Liability insurance should be purchased to cover operations of wagons or trailers lent or rented to farmers to transport cotton from farm to gin.
August 24, 1961
Mr. G. L. Houston
This is in response to your letter in which you request to know whether or not you are required to purchase liability insurance covering the operation of certain wagons or trailers, to be drawn by motor vehicles, which you intend to lend or rent to farmers to transport cotton from farm to gin, and further, whether or not you are obligated by law to purchase and display tags on such wagons.
Section 68-201, Georgia Code Annotated, requires that:
"Every owner of a motor vehicle, trailer, tractor ... or motorcycle, shall, on or before the 1st day of April each year, before he shall operate such motor vehicle, tractor, trailer, or motorcycle, or within three days following the purchase of a new or unregistered motor vehicle, trailer, tractor . . . or motorcycle, register such vehicle in the office of the State Revenue Commissioner and obtain a license to operate the same for the ensuing year ..."
Section 68-101, Georgia Code Annotated, defines the word trailer as used in Section 68-201, as follows:
"'Trailer'-Any vehicle without motive power, designed for carrying persons or property either partially or wholly on its own structure and for being drawn by a self-propelled vehicle, except those running exclusively on tracks."
It would clearly seem to follow, then, that the wagons you mention in your letter are trailers within the meaning of Section 68-201, Georgia Code Annotated, if they are to be drawn by motor vehicles, and that you are therefore required to register them with the State Revenue Commissioner and obtain a license tag for each one.
The Motor Vehicle Safety Responsibility Act, codified as Chapter 92A-6, Georgia Code Annotated, does not, of course, absolutely require that every owner or operator of a motor vehicle obtain liability insurance. However, that Act does set up a scheme which provides that if the owner of any motor vehicle covered by the Act is involved in an accident in which any person is killed or injured or property damage is done to another in an amount exceeding one hundred ($100.00) dollars, then the driver's license and the registration plates of said owner must be suspended by the Director of the Department of Public Safety unless the owner has liability insurance upon the vehicle involved in the accident or unless the owner furnishes security to the Director sufficient to pay any judgment which might be recovered. Section 92A-601, Georgia Code Annotated, defines the motor vehicles covered by this Act as follows:
"3. 'Motor vehicle.'-Every self-propelled vehicle which is designed for use upon a highway, including trailers and semi-trailers designed for use with such vehicles (except traction engines, road rollers, farm tractors, tractor cranes, power shovels, and well drillers) and every

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vehicle which is propelled by electric power obtained from overhead wires but not operated upon rails.''
Since the wagons which you intend to use would be considered trailers under this Act, and although you are not absolutely required to seeure insurance on these wagons, the provisions of the Act nevertheless would apparently apply to you if any of your wagons were involved in an accident in which any person were killed or injured or property damage in excess of one hundred ($100.00) dollars resulted therefrom.
Chapter 68-5, Georgia Code Annotated, which regulates the operation of motor contract carriers in this State would apparently have no application to you since Section 68-502 (c) (2) excludes vehicles such as yours from the operation of the Act.
INSURANCE-Life Insurance (Unofficial)
A cease and desist order prohibiting issuance of more contingent endowment life policies does not effect previously issued policies.
July 12, 1960
Mr. Frederick H. Simmons
You inquire as to the present status of ,contingent endowment life insurance policies written prior to the "Cease and Desist" order which Commissioner Cravey issued approximately two years ago. You further ask if policy holders are not entitled to demand repayment from the company of all monies paid as contingent endowment premiums since the company can no longer keep members in the groups and cannot continue to pay out living and death claims out of these groups.
With reference to the question as to the present status of the contingent endowment contracts, I am of the opinion that such contracts are valid, since the Commissioner's "Cease and Desist" order could not be held to affect retroactively contracts which had been entered into prior to the effective date of the order.
With reference to the right of contingent policy holders to demand a refund of premiums paid, it is my view that this is a question that should be addressed to the insurance company involved. Perhaps the company could evolve some new plan of regrouping the existing policy holders whereby the groups could be filled without detriment to said policy holders, or might convert existing contingent endowment contracts into some other form of insurance satisfactory to the insured. I withhold any opinion on this question and suggest that you confer with the company officials or with a private practicing attorney.

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INSURANCE-Life Insurance (Unofficial)
Discussion of provisions of new insurance code to group life insurance.
June 22, 1961
Mr. A. L. Griffin
In your letter you ask the following questions regarding group life insurance under the new Insurance Code of Georgia:
1. What are the requirements for employee-employer relationship with reference to group life insurance?
2. Are there any companies licensed to do business in Georgia that may include a person under a group life plan, that does not meet the employee-employer relationship?
3. Can a member of the Board of Directors of a company, that does not work full time for the company, be included in a group life policy?
4. What legal rights would a company have if a death claim was made to a company whose agent wrote a group policy as outlined in No.3 above?
Section 56-2701 of the new Insurance Code provides: No policy of group life insurance shall be delivered in this State unless it conforms to one of the following descriptions: (1) Employee group; (2) Debtor groups; (3) Labor Union groups; (4) Trustee groups; (5) Association groups, and (6) Bank and Credit Union groups.
Since from your letter it appears that you are concerned primarily with the Employee group category, this letter will deal only with that type of group coverage.
Section 56-2701 (1) provides:
"(1). Employee groups. A policy issued to an employer, or to the trustee of a fund established by an employer, which employer or trustee shall be deemed the policy holder, to insure employees of the employer for the benefit of persons other than the employer, subject to the following requirements:
(a) The employees eligible for insurance under the policy shall be all of the employees of the employer, or all of any class or classes thereof determined by conditions pertaining to their employment. The policy may provide that the term "employees" shall include the individual proof one or more subsidiary corporations, and the employees, individual proprietors, and partners of one or more affiliated corporations, proprietors. or partnerships if the business of the employer and of such affiliated corporations, proprietors or partnerships is under common control through stock ownership or contract or otherwise. The policy may provide that the term "employees" shall include the individual proprietor or partners if the employer is an individual proprietor or partnership. The policy may provide that the term "employees" shall include retired employees. No individual proprietor or partner shall be eligible for insurance under the policy unless he is actively engaged in

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and devotes a substantial part of his time to the conduct of the business of the proprietor or partnership. A policy issued to insure the employees of a public body may provide that the te,rm "employees" shall include elected or appointed officials;
(b) The premium for the policy shall be paid by the policy holder either wholly from the employer's funds or funds contributed by him, or partly from such funds and partly from funds contributed by the insured employees, except as provided in Section 56-2431. No policy may be issued on which the entire premium is to be derived from funds contributed by the insured employees, except as provided in Section 56-2431. A policy on which part of the premium is to be derived from funds contributed by the insured employees may be placed in force only if at least 75 percent. of the then eligible employees, excluding any as to whom evidence of individual insurability is not satisfactory to the insurer, elect to make the required contributions. A policy on which no part of the premium is to be dedved from funds contributed by the insured employees must insure all eligible employees, or all except any as to whom evidence of individual insurability is not satisfactory to the insurer;
(c) The policy must cover at least five employees at date of issue;
(d) The amounts of insurance under the policy must be based upon some plan precluding individual selection either by the employees or by the employer or trustee."
Note: Section 56-2431 authorizes counties, county boards of public instruction, city, town, governmental units, departments, boards and bureaus of the State of Georgia and of cities and towns thereof to make deductions from the wages of employees with which to pay premiums on life, sickness, accident, hospitalization and annuity insurance for the benefit of such employees and to enter into agreements to insure such employees under group plans.
With reference to your second question you will note that employee- employer relationship is not necessarily involved in group life policies covering debtor groups, labor union groups, trustee groups, association groups and bank and credit union groups. There are numerous companies licensed to write this type of coverage.
In regard to your third question, you are advised that since I do not have the full facts, I am unwilling to give any answer. The question, as put in your letter, implies that the member of the Board of Directors is employed on a part time basis, or at least devotes a part of his time to the business, of the company. It is therefore suggested that you consider the facts of his individual case in the light of the language of Section 56-2701 (1) (a) hereinbefore quoted.
Your fourth question as to the legal rights of a company in case of a death claim covering the situation set forth in question 3 cannot be answered for the reason that it would depend on the exact language of the contract, the peculiar facts involved, the resourcefulness of the company's attorneys and the legal view taken by the courts after all the facts and circumstances had been presented.

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INSURANCE-Life Insurance (Unofficial)
There is no law prohibiting a person from paying the premiums on the life of another.
May 25, 1961
Miss Fannie Watson
This is to acknowledge receipt of your letter which reads as follows: "Is there a law in Georgia which prohibits one from paying insurance premiums on some one else's life without the consent of the insured? If so, kindly inform me as to its contents."
I am not familiar with any law that would prohibit a person from paying an insurance premium when it becomes due on the life of another person.
Section 56-2404 of the Code of Georgia reads as follows:
"56-2404. Insurable interest; personal insurance.-(!) "Insurable interest" with reference to personal insurance is an interest based upon a reasonable expectation of pecuniary advantage through the continued life, health or bodily safety of another person and consequent loss by reason of his death or disability, or a substantial interest engendered by love and affection in the case of individuals closely related by blood or by law.
(2) An individual has an unlimited insurable interest in his own life, health and bodily safety and may lawfully take out a policy of insurance. on his own life, health or bodily safety and have the same made payable to whomever he pleases, regardless of whether the beneficiary so designated has an insurable interest.
(3) An insurable interest must exist at the time the contract of personal insurance becomes effective, but this requirement need not exist at the time the loss occurs.
(4) Any personal insurance contract procured. upon another individual or caused to be procured upon another individual is void unless such contract is payable to the individual insured or his personal representative, or to a person having, at the time when such contract was made, an insurable interest in the individual insured. In the case of such void contract, the insurer shall not be liable on the contract, but shall be liable to repay to such person or persons who have paid the premiums, all premium payments without interest."

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INSURANCE-Premium T::tx
Applicability of premium tax to retirement rights, annuity benefits and certain group life and hospitalization insurance coverages afforded to employees of an insurance company discussed.
July 5, 1960
Honorable Zack D. Cravey Insurance Commissioner of Georgia
This is in reply to your letter with which you submitted a copy of a Report of Examination of the subject company, together with a copy of a letter from P. L. Balfor, Examiner in Charge, which raises the following questions in regard to premium tax liability on the part of the company in connection with certain retirement rights. and annuity benefits and certain group life and hospitalization insurance coverages afforded to its employees under the company's welfare, pension and retirement plans:
In respect to the group insurance plan-
Are the premiums therefrom taxable, and, if so, to what extent, i. e., in total, or employees contributions only?
In respect to the insured retirement plan-
1. Are the premiums therefrom taxable, and if so, to what extent, i. e., in total, or employees contributions only?
2. If employees contributions are taxable is the taxable amount:
a. the total gross deposits, or
b. the required employees deposits, or
c. the net deposits after refunds? (i. e., are refunds to be considered return premiums or partial cash surrenders? )
3. If the company's contribution is considered taxable, is the tax to be computed on:
a. the actual tabular premium necessary to provide the policy benefits purchased by the employer, or
b. the company's actual net contribution necessary to maintain the reserves as has been shown on the company's past annual statements?
In respect to both plans, for how many years does the Department wish to claim taxes due?
The salient features of the plans are as follows:
RETIREMENT PLAN
Established in 1946 for home office and field personnel. Became effective January 1, 1947. Provided benefits for past and future service, with company bearing cost of past service benefits and future service benefits being paid for by both company and employees. Upon termination of employment, deposits made by employees would be refunded unless employee was eligible for retire-

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ment benefits. Employees permitted to make additional deposits to provide increased benefits. Employees eligible after one year's service.
Up until December, 1949, plan, was a self-insured and self-administered retirement plan without any formal group annuity contract, at which time group annuity contract was written setting forth provisions of retirement plan as prerequisite to its becoming an approved plan under regulations of U.S. Treasury Department.
With execution of group annuity contract benefits were increased and premiums modified upward accordingly. Also it was provided that upon termination of employment before retirement, or upon withdrawal of voluntary contributions, company would refund full amount of employee's deposits, plus 2o/o interest. Participation was made compulsory after one year of service for employees and agents, except males under age 20 and females under age 30.
On January 1, 1954, plan was amended to provide increased benefits entirely at company's expense. The amendment provided more benefits to salaried employees than to those on a commission basis and separate group annuity contracts were written to cover each group. The retirement benefits varied between the two gro_ups according to length of service, salary status, and amounts of excess contributions. Any employee with 20 or more years of covered service was guaranteed a minimum annuity of $60.00 per month at normal retirement age, 65 for males and 60 for females. These minimum benefits were exclusive of excess contributions by employees.
Death benefits are provided under both plans. Prior to retirement death benefit consisted of all of participant's contribution plus 2o/o per annum interest. After retirement, death benefit was the amount of contribution by employee, plus 2o/o interest per annum, less amount of retirement benefits actually paid.
Company's contribution vests completely after 25 years of covered service. No vesting of company's contribution prior to 10 years covered service. A graduating scale of vesting of company's contribution applied between 10 and 25 years of covered service. Vested amounts of company's contribution payable in form of paid-up deferred annuity at retirement age.
LIFE, ACCIDENT AND HEALTH PLAN
On October 21, 1956, company issued two group policies, one providing life and the other providing accident and health insurance benefits. Both of these policies are on a contribution basis with employees paying a part of premium and company paying the remainder. During 1958 employees and agents contributed 71 o/o of total net cost of the group coverage.
Life insurance benefits on salaried employees are graduated according to salary status. Waiver of premium is provided in case of total and continuous disability before age 60. Death benefits are on a reducing basis after retirement down to a fixed minimum.
Accident and health benefits include accidental death, dismemberment, hospital, surgical and major medical coverages, and extend to dependents of employees. Coverage is on a noncontributory basis to salaried employees and on contributory basis to commission employees. Reduced coverage, after retirement, is provided on a contributory basis.

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The premium tax is imposed by Section 92-2509 of the Code of Georgia, the pertinent portion of which is as follows:
"92-2509. Insurance premiums; inclusion of annuity considerations; exemption of farmers' mutual companies.-All foreign and domestic insurance companies doing business in this State shall pay a tax of two and one-fourth per cent upon the gross direct premiums received by them on and after July 1, 1955, upon persons, property or risks in Georgia, from January 1 to December 31, both inclusive, of each year without regard to business ceded to or assumed from other companies, with no deductions for dividends, whether returned in cash or allowed in payment or reduction of premiums or for additional insurance, nor shall any deductions be allowed for premium abatements of any kind or character or for reinsurance or for cash surrender values paid, or for losses or expenses of any kind, said tax being imposed upon gross premiums received from direct writings without any deductions whatever except for premiums returned on change of rate or cancelled policies. The term "gross direct premiums" shall include annuity considerations; Provided, that local organizations known as "farmers' mutual insurance companies" operating in not more than four counties in a division shall not be subject to this tax. (Acts 1945, pp. 419, 420; 1955, Extra. Sess., pp. 45, 46.)"
The questions raised by the Chief Examiner are novel so far as any decisions by the courts of this State are concerned. In fact, I am able to find but one decision on the question, i. e., the case of California Western States Life Insurance Company v. State Board of Equalization (California) 312 Pac. 2nd. In that case the company's retirement plan was identical in the material portions with the plan here being considered. The California premium tax statute imposed the tax upon "the amount of gross premiums, less return premiums received in such year by the insurer upon its business done in this State. . . ." The court held that neither the contributions by the company nor by the employees of the company were "gross premiums" within the meaning of the premium tax law since such premiums did not contain the three basic elements which go into premium making, i. e., rate of mortality, rate of interest and rate of expense, but consisted of a voluntary contribution by the company of a sufficient amount to keep the fund solvent.
Such is true in the instant plan. As indicated by the Examiner's report, the contribution by the company may vary upward or downward according to experience. No element of expense or profit is involved in the amount of contribution of either the employees or the company.
The Georgia Premium Tax Statute, quoted supra, imposes the tax upon the gross direct premiums received by an insurer. It is well established that premium is the consideration paid to an insurer for an annuity or insurance contract. As pointed out in the California case cited above, "gross premium" consists of three elements, rate of mortality, rate of interest and rate of expense, which includes a profit factor. In the instant case the contributions by the employees were the only funds received by the company, for by no stretch of reasoning can it be said that a transfer of funds on the part of the company from the surplus account to the retirement account would constitute receipts. Therefore, in my opinion, the premium tax would not apply to the company's contribution to the retirement fund.

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There remains then the question of the taxability of the employees' contributions to the retirement fund. As before indicated, these contributions lack certain vital essential elements of "gross premiums." They are not based on actuarial computations and do not contain any expense or profit factor, without which an insurer cannot successfully operate. I am therefore of the opinion that the contributions by employees to the retirement plan are not "gross direct premiums" received by the insurer within the meaning of the Premium Tax Statute. In this connection it is pointed out that any employer, not an insurance company, could initiate the same type of retirement plan without being liable for premium taxes on the contributions made by employees. Therefore, to hold that the tax applies to these employee contributions would be to discriminate against the Life of Georgia because it is an insurance company.
Having determined that neither the contributions of the company nor the contributions of the employees to the retirement plan (annuity contracts) are taxable, it is not necessary to answer questions 2a, 2b, 2c, 3a and 3b.
There remains for determination the question of tax liability for the contributions to the group life and group accident and health features of the plan.
For the reasons herein-before set forth, I am of the opinion that the company's contributions to these two coverages are not taxable since there is no receipt of premiums involved, but merely a transfer of company assets from one account to another.
With reference to the employees' contribution to the group life and group health and accident insurance, the report indicates that during 1958 such contributions amounted to only 71% of the total net cost of such coverage. Thus it appears that in that year the company supplied 29% of the cost. It further appears that the company's contribution to these coverages varies upward or downward depending upon the loss experience. I am informed by company officials that the amount of employee contribution is not determined upon any actuarial principle but is based on amount earned. The age of a participant in the plan has no bearing on the amount of his contribution. The amount of reserve is not computed on actuarial principles. The company simply assumes the obligation of meeting any amount necessary to pay claims over and above employee contributions, and no expense or profit factor is involved in the amount of joint contributions by employees and company. The coverage is afforded to employees at a cost far below what the company could offer the same protection to the general public.
Thus it appears that the same reasoning that was applied in the California case herein-before cited would be applicable to the group life and group health and accident features of the retirement plan.
It is therefore my opinion that the retirement plan of the Life Insurance Company of Georgia with the various benefits afforded to its employees, is an employer-employee relationship and does not, in itself, constitute carrying on the business of insurance, and that the contributions to the cost of the plan, whether made by employees or by the company, are not taxable under the Georgia Premium Tax Statute.

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INTOXICATING LIQUORS-Beer
Georgia law does not prohibit the mere possession of beer for personal consumption, nor is there any limit as to the quantity which may be possessed.

Mr. Paul E. Bryant, Director Alcohol Tax and Control Unit Department of Revenue

April 28, 1961

This is in reply to your letter in which you request my official opinion concerning the seizure of Georgia tax-paid beer from an unlicensed person and the criminal liability of such person for the possession of such beer.
Georgia law does not now prohibit the mere possession of beer or other malt beverages for personal consumption, and, insofar as these beverages are concerned, no county is "dry," nor is there any limit as to the quantity of such tax-paid beverages that may be possessed for personal consumption or use. McKown v. City of Atlanta, 184 Ga. 221, 225.
A person, having beer or other malt beverages in his possession, runs afoul of the law only when there is evidence that he is selling the beer, or offering it for sale, or is holding it for purposes of sale. Code Section 58-726 provides:

"No person, firm or corporation shall sell, offer for sale, or possess for purposes of sale, any of the malt beverages specified and legalized by this Act without first having obtained a license to deal in such beverages under the provisions of this Act, and any person, firm, or corporation, guilty of violating the provisions of this section shall be guilty of a misdemeanor. . . ."

Code Section 58-727 provides:

"It shall be the duty of the State Revenue Commissioner and his agents to seize and take possession of any and all malt beverages specified herein found in the possession of any person, firm, or corporation in violation of the provisions of section 58-726...."

It appears, therefore, that unless there is evidence that beer or other malt beverages are being sold, offered for sale, or held for purposes of sale, no criminal statute has been violated and such beverages are not subject to seizure.

It, therefore, becomes necessary to have evidence or testimony that the person holding the beer (1) has been selling beer, or (2) has offered it for sale, or (3) intends to sell it.

Possession for the purpose of sale involves difficulties of proof where evidence of a sale, or an offer to sell, is lacking; however, the appellate courts have held that this element may be shown by circumstantial evidence. Johnson v. City of Waycross, 9 Ga. App. 205; Butler v. Mayor and Council of Washington. 11 Ga. App. 133. Mere possession of beer, even in large amounts, will not, without some other proof, raise a presumption that a person held it for purposes of sale. Cain v. Mayor and Council of Cordele, 8 Ga. App. 433; Martin v. The

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State, 94 Ga. App. 53. Beer should not be seized unless there is some evidence that the person is selling it, is offering it for sale, or is holding it for purpose of sale.
In the case of Fouts v. The State, 96 Ga. App. 876, the court held that possession of large quantities of beer, over a long period of time, coupled with unusual numbers of persons on the premises drinking beer and attempting to conceal the drinking of the beer was sufficient to show unlawful possession for purpose of sale. The cases generally indicate that a stronger case of violation is made where the beer is stored at a place of business rather than at a man's home. Evidence of possession of beer on a single occasion will seldom, unless an actual sale can be shown, warrant an arrest or conviction for unlawful possession for purpose of sale. Easterwood v. State, 83 Ga. App. 400.
The keeping of large quantities of iced beer over a long period of time on a back porch will support a conviction where cars arrive from time to time and the occupants thereof go up to the house and come back with paper sacks; this type operation shows a continuity of design and negates the suggestion that the bee!l" was secured for some particular occasion. Buchanan v. State, 77 Ga. App. 435.
It should also be noted that even when there is a violation of Code Section 58-726, there is no provision in the law for the seizure and condemnation of vehicles or other property used in such illegal possession of malt beverages. State of Georgia v. Patterson, 80 Ga. App. 450.
INTOXICATING LIQUORS-Beer (Unofficial)
A municipality may permit the sale of beer in drug stores where minors visit.
January 30, 1961
Mr. Walter S. Taylor
In response to your letter, we find nothing in the Georgia Code nor in the Regulations of the State Revenue Commissioner pertaining to the sale of malt beverages in the State of Georgia that would, in and of itself, prohibit beer being sold in drug stores where minors enter.
Georgia Code Section 58-612 prohibits the furnishing of beer to :minors and Section 58-613 prohibits the employment of persons under 18 years of age on premises where beer is sold for consumption on the premises.
Georgia Code Section 58-718 prohibits the sale of beer in any incorporated municipality without a permit from the governing authority of such municipality and the municipality is given discretionary powers as to the granting and refusal of such permits.
Therefore, if the governing authorities of the City of Woodbury do not want beer sold in any drug store frequented by minors they are at liberty to refuse to issue such a permit under Georgia Code, Section 58-718. So, it is up to the City of Woodbury whether it allows beer to be sold in drug stores or not.
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INTOXICATING LIQUORS-Beer (Unofficial)
A municipality may require a vendor of beer to partition off the section of the establishment where the beer is sold.
January 23, 1961
Mr. Bruce Wilson
This is in reply to your letter in which you state "The City Commission of Woodbury is considering a regulation requiring holders of beer licenses to partition off that section of a place of business that handles beer. Will you please let us know if this falls within the prerogative of the City Commission in regulating the sale of beer."
The Chapter of the Georgia Code dealing with the sale of malt beverages contains the following section:
"58-718. Discretion as to grant of permits.-The privilege of manufacturing, distributing and selling by wholesale or retail of beverages provided in this Chapter is purely a privilege and no business legalized by this Chapter shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powers as to the granting or refusal of such permits. (Acts 1935, p. 80.) ."
It will be observed from the above provision of law that a municipality is given discretionary powers as to the granting or refusal to grant licenses for the sale of malt beverages. In my opinion a municipality in the granting of licenses to sell malt beverages could adopt rules and regulations under which malt beverages might be sold. A municipality could refuse to license the sale of malt beverages in places of business selling other merchandise. I am also of the opinion that the municipality could, by regulation, require the holders of malt beverage licenses to partition off the section of the establishment which sells malt beverages from that portion of the establishment which sells other merchandise.
INTOXICATING LIQUORS-Licenses (Unofficial)
There is no provision for granting a license to sell mixed drinks in Georgia.
April 26, 1961
Mr. Mack Butler
This is in reply to your recent letter.
There is no provision in the Georgia law for the issuance of a license to sell mixed alcoholic drinks at a private club.
Unless a county has voted to go '"wet," any sale of alcoholic beverage is illegal. Even if a county has voted "wet" the sale of alcoholic beverages is a

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privilege which may be engaged in only in strict accordance with the licensing provisions of the law.
There are only three classes of licenses, to wit: for (1) manufacturers, (2) wholesalers and (3) retailers. A retailer's license authorizes the holder to sell only in the original and unbroken package (which package or packages
shall contain not less than 2 pint of distilled spirits or alcoholic beverages)
and the law expressly forbids the breaking of the package or packages on the premises where sold and the drinking of contents on the premises where sold.
INTOXICATING LIQUORS-Liquor Stores (Unofficial) A municipal corporation may operate a liquor store. October 17, 1961
Mr. Lowrey S. Stone This is in answer to your request for an opm10n concerning the operation
of a retail liquor store by a municipal corporation. Your question assumes, of course, that the charter of the municipal corporation authorizes the activity and that the city is located in a "wet" county.
Code Section 58-1011 provides that the word "person" includes corporations for the purposes of the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" and, in my opinion, this would include a municipal corporation. The sale of spirituous liquors in this State is, of course, a privilege and not a right (Ga. Laws 1937-38, Ex. Sess., pp. 103, 121). It is anticipated that the management of all retail liquor stores shall be by an individual, either as owner and proprietor, or as general manager, in the case of a corporation or other association.
The Department of Revenue requires that the license to operate a retail establishment be issued in the name of the person actually operating the store, and the required bond must likewise conform. Should a municipal corporation operate a retail liquor store, it would of necessity do so through a general manager. The city license would then issue to such individual as manager of the "City Liquor Store," as would the State license.
The city could not, in my opinion, be forced to issue any additional licenses, as the operation of such business is a privilege and not a matter of right.
INTOXICATING LIQUORS-Seizure and. Disposition
Recommendations regarding disposition of tax-paid liquors seized because illegally possessed.
December 18, 1961 Honorable Dixon Oxford State Revenue Commissioner
As a result of an investigation conducted by this office, it has come to my attention there is some confusion as to the disposition of tax-paid liquor seized

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by law enforcement officials of this State. To assist in clarifying this matter, I wish to submit the following recommendations for your consideration:
(1) Each sheriff should be informed he should, within ten (10) days after seizure of taxpaid liquor, furnish you with an itemized statement of the quantity and amounts seized. This would be in addition to other information concerning the location and persons involved in such seizure.
(2) Sheriffs and solicitors general should be instructed that if the liquor is to be held for evidence, it must be indicated on the original notification in order that your office may maintain a record of liquor seized but held as evidence.
(3) Upon disposition of the case, you should be notified within ten (10) days in order that you might designate an agent to pick up the seized liquor and transport the same to a warehouse for final disposition. The present law, rules and regulations do not require the sheriffs to transport seized liquor to the warehouses, and their responsibilities in making the same available to the State Revenue Department is not explicit.
(4) In order that agents authorized to receive liquor from the sheriffs might be properly identified, you should furnish them with proper credentials.
These recommendations will, I believe, materially assist in the legal disposition of contraband tax-paid liquors. They should prevent seized liquor from finding its way back into channels of trade subsequent to confiscation.
I have also found during this investigation that the sole key to identification to liquor is the serial number affixed to the outside of each case. We find, almost without exception, that liquor which is seized has had the serial number defaced or removed, with the result it is impossible to trace the liquor from the warehouse to the person purchasing the same. Since revenue stamps which are affixed to each container or bottle are numbered in series, it is felt that these numbers should be recorded, possibly by recording the first and last number in each case, thus enabling the liquor to be identified by examination of the serial number on the revenue stamps applied to the bottles. If this recommendation is not feasible then some other means should be devised of permanently identifying liquor for future identification.
INTOXICATING LIQUORS-Wineries (Unofficial)
Establishment and operation of a winery in Georgia.
February 12, 1960
Mr. J. I. Hefner
This is in reply to your letter in which you state:
"I have a friend that is interested in knowing if it is legal to operate a winery in Georgia.
"It will be appreciated if you will advise."

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A winery can be established in Georgia under the provisions of Code Section 58-808, which is as follows:
"Any person, firm or corporation may establish wineries for the manufacture, storage and sale of wines made from Georgia crops in any municipality in Georgia, or in the county outside the municipality, after having first obtained a permit from the governing body of such municipality or county, as the case may be, under reasonable rules and regulations as are now and as may be promulgated by the Commissioner of Agriculture, with the approval of the Governor; and the Commissioner of Agriculture is authorized to formulate and publish such rules and regulations which shall have the force and effect of law after the approval of the Governor. No winery shall make any sale of its products to any person within the State who is not a licensed dealer or bottler of wines."
INTOXICATING LIQUORS-Wines (Unofficial)
A person growing the materials may make fermented wine for consumption by himself or his family, but if materials are purchased, he must comply with manufacturing law.
October 14, 1960
Mr. Kermit C. Sanders
You request my opinion on the following:
"Is it legal for a man to purchase the material and make fermented wine to sell? He has no license and is not using tax stamps. He is now in possession of an excessive amount of wine. We have made a purchase of % gallon of wine from this person. Has there been a violation of the law and if so what is the violation and what Code Section is it covered by?"
Code Section 58-801 provides the following:
"All persons growing crops, either wild or cultivated, of grapes, fruits, or berries, may make therefrom fermented wine, or wines, having such alcoholic content as fermentation may produce, for his family use, for his, or her, family, and guests."
All persons manufacturing wines other than under provisions of this section are required to pay an occupational tax of $250.00 per annum for the manufacture of wine, as is provided in Code Section 58-902, Sub-section (a).
It appears from your letter, the person from whom you purchased the wine manufactured it from materials purchased by him. He would, therefore, be subject to the payment of a manufacturer's tax. The failure to pay such tax is a misdemeanor as is provided in Code Section 58-924.
Code Section 58-915 provides for the seizure of non-tax paid wine as contraband.

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Code Section 58-902, Sub-section (b) provides for a license for any person selling wine at retail.
Code Section 58-922 provides that all wines must first be properly stamped before being offered for sale and Code Section 58-924 provides that anyone violating any of the provisions herein cited or any other provisions of Chapter 58-9 dealing with the sale of wine shall be guilty of a misdemeanor and, upon a conviction, shall be punished for a misdemeanor.
Code Section 58-1058 provides that any wines or other beverages made by fermentation to which have been added distilled spirits and where the alcoholic content is more than 21% by volume, shall be classed as liquor and the manufacture, possession and sale of such wines is covered by Chapter 58-10 of the Code which is known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors."
INTOXICATING LIQUORS-Wines (Unofficial)
Discussion of licenses and permits for the sale of wine.
November 14, 1960
Honorable Bob Rollins
Thank you for your letter in which you inquired as to (1) the issuance of licenses and permits for the sale of wine and (2) whether or not you may select the composition of your name to appear on your commission.
In answer to your first inquiry, please note Sections 58-804 and 58-808 of Georgia Code Annotated which provides as follows:
"58-804. When any retail business, that is the business of retailing wine, allowed under the provisions of this Chapter is proposed to be carried on within the corporate limits of a muniCipality, the person firm or corporation desiring to engage in the business of retailing wine shall be required to pay to the proper authority designated by the governing body of such municipality such license fee as may be fixed by the said governing body, which license shall apply to and be required for each place of retail distribution in said municipality. When any of said businesses retailing said wines are licensed by municipal authority, no county license fee shall be required in addition thereto."
"58-808. Any person, firm or corporation may establish wineries for the manufacture, storage and sale of wines made from Georgia crops in any municipality in Georgia, or in the county outside the municipality, after having first obtained a permit from the governing body of such municipality or county, as the case may be, under reasonable rules and regulations as are now and as may be promulgated by the Commissioner of Agriculture, with the approval of the Governor; and the Commissioner of Agriculture is authorized to formulate and publish such rules and regulations which shall have the force and effect of law after the approval of the Governor. No winery shall make any sale of

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its products to any person within the State who is not a licensed dealer or bottler of wines."
In answer to your second inquiry, I advise you to notify the Secretary of State as to your preference in having your name composed on your commission because he has the duty of preparing your commission and delivering it to the Governor for his signature. See Code Section 40-601.2.
MOTOR VEHICLES-Classification.
Trucks used by a railroad operating a pick-up and delivery service for which no separate charge is made are to be classified as "common or contract carriers".
June 16, 1961
Mr. Murray A. Chappell Director, Motor Vehicle License Unit Department of Revenue
This is in reply to your letter requesting an opmwn as to the motor vehicle classification and annual fee to be charged, where a railroad company operating in Georgia and controlled by the Federal Jaws pertaining to common carriers operates a pick-up and delivery service for which no separate charge is made.
The annual fees for the operation of vehicles varies according to the class of vehicle. The provisions of the law pertaining to these fees provides for sixteen different classes of vehicles. Trucks used to transport property of others for hire are classed by this law under sub-section 10 in accordance with the owner's declared gross weight, and referred to as a truck or non-passengercarrying motor vehicle operated as a common or contract carrier for hire. Acts 1960, pp. 998, 1002.
Motor vehicles operated for hire have been classified in this State for many purposes including taxation, licensing and regulation. The Motor Carrier Act of 1931 regulated motor contract carriers and defined a "motor carrier" as a for hire carrier, not a common carrier. Certain named motor vehicle operations were excluded from the provision thereof. Acts 1931, Ex. Sess., pp. 99, 100.
The definition of a common carrier and of a contract carrier contained in the Motor Carrier Act of 1931 and in Acts 1931, pp. 199, 202 regulating common carriers was not carried forward into the Act dealing with annual registration and licensing and are not, for purposes of construction of the latter Act, controlling. Where terms are not defined in the Act to be construed, the terms are given their usual ordinary and popular meaning. Thompson, Commissioner v. Georgia Power Company, 73 Ga. App. 587.
Originally, the provisions for annual license fees were codified as Code Section 68-211 but the terms in question were not there used. The terms were first used, in this connection, in the Act approved December 24, 1937, which repealed all matters dealing with annual fees, the Maintenance Act of 1937

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and enacted into one comprehensive law the licensing and registration of all motor vehicles. This Act defines a "private truck" by reference to the terms in issue, as a truck other than a truck operated for hire by a common or contract carrier. As there are generally recognized but three types of carriers, common carriers, contract carriers, and private carriers, it is obvious that the Legislature intended to include all trucks using our roads in one of these classifications. Williston on Contracts, Vol. 4, 1071 discusses the difference between these classes providing:
" ... It was formerly the merest truism that there were but two classes of carriers: the private carrier and the common or public carrier. In certain types of carriage there is now developing a further classification by subdivision of the private carrier category, so far chiefly confined to two classes: the 'contract carrier,' carrying on a private contract basis for certain shippers and the 'private carrier' who carries its own products or products in which it has a property interest. . . ."
The transportation involved may be the primary undertaking and, if so, no problem exists. Where the questioned transportation is an incident of a different undertaking-then the character of the major undertaking will generally control.
The pick-up and delivery service of a television repair shop could hardly be classified as a carriage for hire in the absence of a separate charge for the transportation, yet the pick-up and delivery service of one in the transportation business can hardly be other than for hire, even if no separate charge is made therefor. Railway Express Agency, Inc. v. Cook, 198 Ga. 715; Reagin v.. Harrison, 181 Ga. 742; Collins-Dietz-Morris Co. v. State Corporation Commission, 154 Okla. 121 (7 P. 2d 123, 80 ALR 561). See also Opinions of the Attorney General 1954, 1955 and 1956, p. 483.
The trucks involved in the operation contemplated by your letter should be classified as "trucks used as common or contract carriers." The annual fees for such classification are set out in Code 92-2902(10) according to the gross weight of the vehicle.
MOTOR VEHICLES-License Tags (Unofficial)
The tag commissioner is not authorized to fill out an application.
July 5, 1960
Miss Patricia H. Ayers
This is in reply to your recent letter in which you state:
"I would like to have a ruling on whether or not Tax Commissioners, serving in the capacity of Tag Commissioner, selling Automobile, Truck, Trailer Tags, are allowed to fill out the tag blanks, if they are not already filled out when the customer comes to purchase a tag."

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The application for a license tag should be fully completed before it is signed and presented to the tag commissioner in the purchase of a tag. Should the tag commissioner accept an application which has been signed by the applicant but which has not been fully filled out, I do not think the tag commissioner would have authority to complete the application. The tag commissioner would, of course, have the authority to assist the applicant for a tag in the filling out of the application in any way that might be desirable.
MOTOR VEHICLES-License Tags
Computation of fees when owner "uprates" a vehicle to increase allowable gross weight.
June 1, 1961
Mr. Murray A. Chappell Director, Motor Vehicle License Unit Department of Revenue
This is in reply to your letter requesting an opmwn as to the method of computing the amount of license fees due when a vehicle owner "uprates" a vehicle to increase the allowable gross weight and whether the "part year" rates are to be used in this connection.
Georgia Laws 1960, page 998, 1003, provides that a vehicle owner may voluntarily increase the allowable gross weight for which his vehicle is licensed by purchasing the appropriate weight tag for his truck or tractor and paying the difference in fees between the license which is surrendered and the fee at the higher rate, as calculated by applying Code Section 92-2902.
Code Section 92-2902 pertains to the annual fees for operating motor vehicles and the proper method of computing the fees in connection with uprating is to charge the uprating owner the annual fee provided for the higher gross weight, less the annual fee paid for such vehicle when first registered that year. An owner may have, for example, declared a gross weight on the first of the year of 14,000 pounds and paid the license fee of $15.00. The annual fee for a gross weight of 24,000 pounds is $30.00 and in order to increase the allowable gross weight of his vehicle to such weight, the owner would pay $15.00 irrespective of what time of year he elects to uprate.
The provisions for part year rates have no bearing on uprating of vehicles but apply only to owners registering vehicles for the first time, after the dates set out in that code provision. (Code 92-2908).

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MOTOR VEHICLES-License Tags (Unofficial)
There is no provision for an automobile to be operated in Georgia with foreign license plates.
March 28, 1960
Mr. F. L. Smith
This is in reply to your letter addressed to the Motor Vehicle License Unit, which has been referred to this office for a reply.
There is no provision in the Georgia motor vehicle license laws whereby an automobile can be operated upon the public highways of this State under a license plate issued by a foreign country. Code Section 68-221 is as fo11ows:
"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."
This section, in my opinion, would not be applicable to a foreign country. I might add that ambassadors, counsels, and other foreign service officials of foreign countries would not be prohibited from operating their automobiles with the license tags of their country because this would be governed by treaties of the United States government which, of course, take precedence over any State laws.
MOTOR VEHICLES-License Tags
Lumber is not a "forest product" within the meaning of the license tag Act, and trucks hauling lumber are not entitled to tags at reduced rates.
April 11, 1961
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter requesting an official opm10n whether private trucks used (1) to haul rough and green lumber from portable sawmills in the forest to the planing mill for drying and further processing, or (2) to haul planed and dry lumber from the planing mill to the retail yard for sales at retail are entitled to motor vehicle license tags at the reduced rates appli-

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cable under Georgia Code Annotated 92-2902 (3), as amended, to private trucks hauling "forest products."
In Davis & Co. v. Ma.yor and Council of Macon, 64 Ga. 128, the Supreme Court of Georgia, in referring to the phrase "agricultural products," said:
"In ordinary usage, is not the phrase confined to the yield of the soil, as corn, wheat, rye, oats, hay, etc., in its primary form?"
By analogy, I think the intent of the Legislature, in using the phrase "forest products" in Georgia Code Annotated 92-2902 (3), was to confine it to the yield of the forest in its primary or natural state, i.e., the condition these products are in before they are transformed by processing or manufacturing into a product having a substantially different character, possessing new qualities and adaptable to new uses. Examples of "forest products" are logs, firewood, pulpwood, cordwood, acidwood, etc.
Generally, lumber in its early stages is regarded as a "manufactured article," and a sawmill is usually considered a "manufacturing establishment." Words and Phrases "Lumber"; Craze v. Alabama State Land Co., 46 So. 479, 155 Ala. 431; Stearns Coal & Lumber Co. v. Thomas, 175 S. W. 2d 505, 295 Ky. 808; McKinney v. Matthews, 82 S. E. 1036, 166 N. C. 576; Craddock Mfg. Co. v. Faison, 123 S. E. 535, 138 Va. 665, 39 A. L. R. 1309.
The Federal District Court, Southern District of Georgia in In re Gosch, 121 F. 604, in distinguishing a sawmill from a planing mill or a sash and door factory, said:
"A sawmill, as defined by the law of Georgia, is not a planing mill or a sash and door factory. There are sawmills which have such attachments but they are not sawmills for that reason, but because they saw logs and timber, as they are cut from the forest, into the lumber of commerce. It is a mill which deals with saw logs, and these are logs suitable to be cut in a sawmill. As stated in the Standard Dictionary, 'it is an establishment for sawing logs into lumber by power, often including other woodworking machines, as lathe machines and planing machines.' "
Thus, it can be seen that a sawmill, portable or stationary, is a primary place of manufacture, where timber cut from the forest is manufactured into the lumber of commerce. Its product, having a substantially different character, possessing new qualities and being adaptable to new uses, is no longer a "forest product" within the limited sense intended by the Legislature, although it may be one in an enlarged or unrestricted sense. Burchfield v. Hodges, 197 S. W. 2d 815.
Accordingly, private trucks hauling lumber falling into either of the aforementioned categories are not entitled to tags at reduced rates.

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MOTOR VEHICLES-License Tags
Only the State of Georgia may manufacture license tags, and the Supervisor of Purchases is not authorized to process a requisition for license plates to any individual person, firm, or corporation.
March 29, 1960
Honorable Alvan C. Gillam, Jr.
State Supervisor of Purchases
I am pleased to acknowledge your letter requesting my opm10n whether under the existing laws of Georgia you would be authorized to process a requisition and issue a purchase order for 1961 motor vehicle license tags to be manufactured and sold to the State of Georgia under the provisions of the State Purchase Act.
Section 68-216 of the Code of Georgia provides as follows:
"Manufacture of license tags prohibited.-It shall be unlawful for any person, firm, or corporation to make, sell, or issue any license tag or number."
Section 68-9905 of the Code of Georgia provides:
"Unlawful manufacture of license tags.-Any person, firm, or corporation violating the provision of section 68-216, making it unlawful for any person, firm, or corporation to make, sell, or issue any license tag or number, shall be guilty of a misdemeanor."
The above two code sections are codified from the Acts of 1921, page 260, and of full force and effect in this State as of this date.
It is academic in law that in order to constitute a valid contract, there must be (1) Parties able to contract, (2) The subject matter of said contract must be legal and lawful.
Under the above statutes of this State the subject matter of a contract between the State Supervisor of Purchases or the State Revenue Department, and any person, firm, or corporation for the manufacturing and selling of motor vehicle license tags to the State of Georgia would be unlawful for the reason that such statutes specifically prohibit the manufacturing and selling of such a product.
Any person, firm, or corporation proposing to make and sell such motor vehicle license tags to the State of Georgia would not be a competent party to a contract with the State of Georgia since the above cited statutes specifically prohibit any person, firm, or corporation to manufacture, make or sell such motor vehicle license tags to the State of Georgia.
Section 102-109 of the Code of Georgia provides:
"State bound by statute, when.-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 (91 Ga. 524, 17 S. E. 940.)".
Therefore, it is my firm opinion that you, as State Supervisor of Purchases, would not be authorized to process said requisition and issue a purchase order

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for the State Revenue Department as provided in the State Purchasing Act to any person, firm, or corporation for the reason that no such person, firm, or corporation would be a competent party to contract to make, manufacture and sell to the State of Georgia, motor vehicle license tags, and for ~ne further reason that the subject matter of such proposed contract is unlawful and illegal.
However it is my further opinion that the State Supervisor of Purchases would be authorized to process a contract between the State Department of Corrections and the State Department of Revenue for the making, manufacturing and selling to the State Department of Revenue of 1961 motor vehicle license tags. The State of Georgia is not bound by the above cited code sections under their clear and unmistakable provisions applying only to persons, firms and corporations.
It appears from the history of the cited statutes that such legislation was enacted to prevent anyone but the State from manufacturing and selling motor vehicle license tags for protection purposes of preventing the making or selling of such by persons, firms, or corporations, and the risk of bootleg tags being shipped into and throughout the State unknown to the State Revenue Department and sold throughout bootleg sources.
The question as to whether other and sufficient safeguards could be established by a state department, or whether said statutes are good or bad is one solely for the determination of the General Assembly of Georgia, and until they are modified or bound by their provisions.
MOTOR VEHICLES-License Tags (Unofficial)
The names of purchasers of license tags is not for general publication.
February 28, 1961
The Sheriff's and Police Press
This is in reply to your letter in which you ask if there is any prohibition against the publication of vehicle license plate numbers and who purchases them.
By resolution of the General Assembly, approved August 17, 1929 (Ga. Laws 1929, p. 1483), the sale of lists based on the registration of motor vehicles in this State was made of source of revenue for the State. In Grizzard v. State Revenue Commission, 177 Ga. 845, the Supreme Court of Georgia rejected a contention that any member of the public was entitled to this information as public information and without charge.
The sole exception to this resolution is giving information to the peace officers of this State.
As a consequence, the State Revenue Commissioner has sold lists of this information; other lists have been furnished peace officers without charge. Peace officers are not authorized to sell or give such lists to private persons, nor are county tag agents or tax officials, who also are furnished lists for the performance of their duties, authorized to sell or give such lists to private

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persons. The State Revenue Commissioner alone has the authority to dispose of these lists to private parties. Of course, where such lists have been purchased from the State Commissioner, the purchaser can publish, sell, or make such further distribution thereof as he sees fit.
MOTOR VEHICLES-License Tags
Proration of license tag fees on trucks used to haul forest products.
May 12, 1961
Mr. Murray A. Chappell Director Motor Vehicle License Unit
This is in answer to your letter requesting an official opm10n concerning the sale of truck tags to be used on vehicles hauling forest products and whether these tags are to be sold during the year 1961 on a prorated basis.
Code 92-2902 pertaining to annual fees for operating motor vehicles was amended in 1960 to apply to all vehicles effective January 1, 1961. This law provides that straight trucks hauling forest products, fertilizer and agricultural products are not to be classified higher than (e), under the classification system therein set out, and the maximum annual fee for these special purposes is $25.00. They can, in the proper case, be classified lower.
The annual fee for trucks classified either (a), (b) or (c) are not entitled to any partial year license or proration. The new provisions for prorating the annual license fees contained in Code 92-2908 are not effective until the year 1962 and, therefore, the old provisions must be used for the current year.
Licenses for vehicles classified (d) or higher, including the type (e) vehicle inquired about, are to be prorated as follows:
(1) Vehicles registered between May 1 and August 1 shall not be required to pay more than %, of the annual tax.
(2) Vehicles registered between August 1 and November 1 shall not be required to pay more than "h of the annual tax.
(3) Vehicles registered between November 1 and January 1 shall not be required to pay more than 14 of the annual tax.
These provisions, as you know, do not apply to passenger cars or motorcycles. In the case of the special purpose license, the annual fee is $25.00, not the $30.00 fee established for standard use; therefore, the proration will be of the $25.00 fee.

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MOTOR VEHICLES-License Tags (Unofficial)
Soil conservation districts are agencies of the State, and as such are entitled to purchase motor vehicle tags for $1.00.
May 4, 1960
Mr. Melvin H. Bell
This is in reply to your letter in which you state that it is your understanding that soil conservation districts are agencies of the State and as such they are entitled to purchase motor vehicle tags.
Subsection 14, Section 2 of House Bill No. 835, contains the fopowing provision:
"... for each motor vehicle owned by the State, any municipality, or other political subdivision of the State, used exclusively for governmental functions, the sum of $1."
Under the soil conservation law of this St::.te as is found in Chapter 5-18 of the Code, soil conservation districts are instrumentalities of the State of Georgia.
Code Section 5-1806 contains the following language:
" 'District' or 'soil conservation district' means an agency of this State organized in accordance with the provisions of Part VIII of Title 5, for the purposes, with the powers, and subject to the restrictions hereinafter set forth."
Code Section 5-1807 provides that the soil conservation committee is established as an agency of the State.
Since Briar Creek Soil Conservation District appears to have been created under the provisions of the chapter herein referred to, I am of the opinion that the District is entitled to purchase motor vehicle tags for a truck owned by it for $1.
Code Section 68-250 provides that all special designated license plates as authorized by law shall continue to be purchased from the Motor Vehicle License Unit of the State Department of Revenue at the State Capitol. In order for you to purchase a tag, it would be necessary for you to fill out a regular tag application and state therein that the motor vehicle sought to be registered is the property of an agency of this State. This application should be mailed to the Motor Vehicle License Unit of the Department of Revenue, State Capitol, together with the fee.

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1\iOTOR VEHICLES-Mufflers (Unofficial)
Discussion of whether law requiring mufflers on motor vehicles also could be construed to include spark arresters.
May 2, 1960
Mr. James C. Turner, Jr.
I am in receipt of your letter in which you ask whether the State of Georgia has a law regarding the use of spark arresters on combustion engine exhausts.
I have located a statute that borders on it, but seems to apply mainly to the use of mufflers-that is Georgia Code Annotated, Section 68-1717, which provides:
"68-1717. Mufflers, prevention of noise.-(a) Every motor vehicle shall at all times be equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise and annoying smoke, and no person shall use a muffler cut-out, bypass, or similar device upon a motor vehicle on a highway, except that this section shall not apply to tractors.
"(b) The engine and power mechanism of every vehicle shall be so equipped and adjusted as to prevent the escape of excessive fumes or smoke. (Acts 1953, Nov. Sess., pp. 556, 613.)"
In addition to the above, it seems that the employment of spark arresters would play a considerable role in proving or disproving negligence in a tort action. There are a good many cases in Georgia where the use of same comes into play, one of which is Yeager v. Cooley, 45 Ga. App. 452, from which I quote headnotes 2, 3 and 4:
"2. Such care, owing to the proximity of building or other circumstances of danger, may demand the taking of precautions to prevent the escape of sparks, such as the employment of spark-arresters."
"3. The evidence authorizing a finding that the fire in this case was caused by a spark or sparks from the tractor, and that the tractor was not equipped with a spark-arrester or other apparatus to prevent sparks from being emitted therefrom, the jury, under the circumstances in this case, were authorized to find that the defendant did not use ordinary care and diligence in failing to so equip the tractor."
"4. Under the facts of this case, the jury was authorized to find that it was negligence on the part of the defendant to drive the tractor toward and by the plaintiff's house, with a stream of large sparks pouring continually from its smokestack."
It is believed the above is the information you desire.

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MOTOR VEHICLES-Operator's Licenses
Diplomatic reciprocity from payment of operator's license fees is recognized in Georgia.
May 25, 1960 Colonel William P. Trotter Department of Public Safety
This is in reply to your letter in which you request advice as to whether the Israeli Consul in Atlanta, his wife, and two Vice-Consuls should be granted exemptions from payment of driving license fees.
I have received information from the United States Department showing that the Israeli Government exempts American diplomatic and consular personnel in Israel from the payment of fees for driving licenses. The consular personnel named above should, therefore, on the basis of reciprocity, be exempted from the payment of driving license fees.
MOTOR VEHICLES-:-Operator's Licenses
Honorary drivers' licenses for veterans were only intended for award to veterans with service in war periods.
October 10, 1961 Honorable Pete Wheeler, Director Department of Veterans Service
You request an opinion upon the following questions:
1. Are members of the United States Coast Guard eligible for honorary drivers' licenses?
2. Are National Guardsmen and Reservists who spent six months on active duty eligible for an honorary driver's license?
3. Are members of the military service who entered duty after January 31, 1955, who served more than six months on active duty, eligible for honorary drivers' licenses? Georgia Laws 1937, page 322, approved on March 7, 1937 (Georgia Code Annotated, Title 92A), created the Department of Public Safety, and Article IV of that Act established provisions for the licensing of the operators of motor vehicles. Georgia Laws 1949, page 1152, approved February 25, 1949 (Georgia Code Annotated, 92-A-401(4)), amended Article IV of the 1937 Act adding a new subsection numbered (4) so as to provide for the entitlement and issuing of honorary drivers' licenses to Veterans of the Armed Forces of the United States. This Act was in turn amended by Georgia Laws 1951, page 755, approved February 21, 1955 (Georgia Code Annotated, 92A-401 (4)), so that the applicable subsection (4) now reads:

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"Veterans of the Armed Forces of the United States of America, of ninety days service, or more, some part of which was within a war period as the term 'war period' in Public Law No. 2 of the 73rd Congress of the United States, as amended, and Public Law No. 346 of the 78th Congress of the United States, as amended, and who have been separated from such service under honorable conditions, also veterans of the Spanish-American War, also men and women serving at any time in any military campaign, or operation, waged or prosecuted by authority of the United Nations, provided the Armed Forces of the United States participates in such campaign, or operation."
The 1951 amending Act added the words after "Spanish-American War," beginning with "also" and continuing through "operation."
In answer to your first question, I direct your attention to certain opinions rendered to the Department of Public Safety on April 12, 1949 (Opinions Attorney General 1948-1949, page 707), and on July 8, 1949 (Opinions Attorney General 1948-1949, page 705), in which I ruled that "Seabees" and members of the Coast Guard are eligible for Veterans Honorary Drivers' Licenses, that members of the Merchant Marine are not entitled, and the Temporary members of the Coast Guard Reserve are entitled to Veterans Honorary Drivers' Licenses.
It is my opinion that the answer to question 2. must, with certain reservations, turn upon the answer to question 3. If the six months active duty came within the war periods as set forth in the original Act, or within periods intended by the amending Act, and was service in the Armed Forces of the United States, there can be no doubt of the entitlement. However, it must be service in the Armed Forces of the United States within the intent of the Act, and not a period of active duty imposed by local National Guard, or Reserve for local or internal training only, as contrasted with active duty entered into pursuant to federal directives or orders for federal purposes.
In answering question 3., we find that the 1949 Act which originally provided for Honorary Drivers' Licenses tied itself to Federal Law and federal determinations of "war periods," through express reference to certain Acts of Congress. The 1951 amendment was an attempt to extend this benefit to the participants in the Korean Action. As no war had been declared, no definite dates could be adopted either directly or by reference to Federal legislation, as there had been no Act of Congress at that time which attempted to determine the status or inclusive dates of the Korean Action. However it is evident that the Georgia Legislature intended to extend this coverage to the participants. I am of the opinion that the Legislature intended that Federal determinations of the period during which this benefit would accrue should be used, if and when made, as was expressly provided in the original Act. This then being their intent, upon a Federal determination being made, it should be used.
Examining Federal Law, we find that Public Law 85-857, approved September 2, 1958, of the 85th Congress, codified under one Title of the United States Code (designated as Title 38) all laws pertaining to federal benefits for war veterans. Under 101 of this Title we find definitions of the periods covered as "war periods" as follows:
"(9) The term 'Korean conflict' means the period beginning on June 27, 1950, and ending on January 31, 1955."

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"(11) The term 'period of war' means the Spanish-American War, World War I, World War II, the Korean conflict, and the period begining on the date of any future declaration of war by the Congress and ending in a date prescribed by Presidential proclamation or concurrent resolution of the Congress."
These are the federal determinations of the periods of service during which "war veteran" benefits are accrued for federal purposes.
Returning again to the Georgia Act in question, there is nothing that implies other than licenses should only be issued to persons who served in a period classified as a "war period" as determined by Federal legislation. Certainly there was no intent to extend the exemption from annual purchases of licenses to all members of the Armed Forces of the United States regardless of the time of service.
From the above, I must answer the first two questions in the affirmative, provided there was the requisite service during one of the periods defined by Federal Law as follows:
"(6) The term 'Spanish-American War' (A) means the period beginning on April 21, 1898, and ending on July 4, 1902, (B) includes the Philippine Insurrection and the Boxer Rebellion, and (C) in the case of a veteran who served with the United States military forces engaged in hostilities in the Gere Province, means the period beginning on April 21, 1896, and ending on July 15, 1903.
"(7) The term 'World War I' (A) means the period beginning on April 6, 1917, and ending on November 11, 1918, and (B) in the case of a veteran who served with the United States military forces in Russia, means the period beginning on April 6, 1917, and ending on April 1, 1920.
"(8) The term 'World War II' means (except for purposes of chapters 31 and 37 of this title) the period beginning on December 7, 1941, and ending on December 31, 1946.
"(9) The term 'Korean conflict' means the period beginning on June 27, 1950, and ending on January 31, 1955." (38 U.S.C.A. 101.)
The answer to your question number 3., is "no," unless there was some prior service during the indicated periods.
It is my opinion there was no intention on the part of the Georgia General Assembly to provide Honorary Drivers' Licenses to Veterans of the Armed Forces of the United States except to those Veterans who served the requisite period of time during the specified dates.

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MOTOR VEHICLES-Registration (Unofficial)
False swearing in securing automobile license tags is a felony and should be reported to the solicitor general for presentation to the grand jury.
April 20, 1960
Mr. P. L. Youmans
This is in reply to your letter in which you inquire as to the procedure in a prosecution under Act 398 (Ga. Laws 1955, p. 639).
The Act providing for tax affidavit with application for automobile license tags approved March 9, 1955, contains the following provision:
"Section 8. Any person, firm, or corporation who knowingly makes any false affidavit or affirmation as to any matter or things required by this Act, or who forges or causes to be forged, any such affidavit as required herein, shall be guilty of a felony, and upon conviction thereof, shall be subject to a fine not to exceed one thousand dollars ($1,000.00), or imprisonment in the penitentiary not less than one nor more than five years, or both."
The proper procedure to follow in a prosecution for a violation of the Act herein referred to would be for you, or any other officer or individual who has information as to the violation of this law, to present such evidence to the solicitor general of the superior court of your county in order that he may present the matter to the grand jury for the purpose of obtaining an indictment.
MOTOR VEHICLES-Registration (Unofficial)
When a vehicle is under permanent lease (for more than a 30 day period) the State may look to either the legal title holder or the lessee, but primary liability is upon the lessee-operator.
August 1, 1960 Mr. Sims Garrett, Jr.
This is in reply to your letter concerning the Georgia Motor Vehicle Registration Law (Ga. Code Ann., 68-2, et seq.) asking whether the State considers the legal title holder responsible for registration thereunder, or the lessee-operator, when the vehicle is under permanent lease (for more than a 30-day period).
Code Section 68-101 provides that for the purposes of this law the following definition applies:
"Owner-Any person, firm, corporation or association holding title to a vehicle or having exclusive right to the use thereof for a period of more than 30 days." It is my opinion that the State may look to either the legal title holder or the lessee in this circumstance, but that the primary liability is upon the lesseeoperator. I say this because the liability is not incurred by mere ownership of the vehicle but by its operation; moreover, the classification of the vehicle in many instances is determined by its use.

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MOTOR VEHICLES-Registration
The Motor Vehicle License Unit of the Department of Revenue is required to furnish sheriffs a list of special licenses issued to amateur radio operators, members of National Guard, and registrations from their counties.
September 12, 1961
Mr. Murray A. Chappell, Director Motor Vehicle License Unit Department of Revenue
This is in reply to your request for an official opinion as to the legal requirement for the Motor Vehicle License Unit, Department of Revenue, to provide a printed listing of the number of registrations to a sheriff.
Georgia Laws, 1951, p. 653, provides that the State Revenue Commissioner shall furnish to the sheriff of each county an alphabetical arrangement of names, addresses and license tag letters of each person to whom an amateur radio call letter license has been issued (Georgia Code 68-214.1).
Georgia Laws 1953, Nov. Sess. pp. 57, 58, provides that the Revenue Commissioner shall furnish to the sheriff of each county an alphabetical arrangement of the list of names, addresses, and license tag letters of each person to whom a Georgia National Guard license tag is issued (Code 68-239).
Code Section 68-106 provides as follows:
"The State Revenue Commissioner shall at least twice in each year call the attention of the sheriffs, constables, and marshals to the provisions of this law, and furnish once each quarter to the sheriffs and clerks of the county commissioners of each county, for file in their offices, a list of such vehicles as are registered from the county in which said sheriff and clerk hold office; and it shall be the duty of all local authorities in every county to make investigation as to the violation of the provisions of this law, and said local authorities shall have authority, and it is hereby made their duty, to swear out warrants and prosecute any and all owners of motor vehicles who violate any of the provisions of this law. . . ." (Emphasis added)
The Motor Vehicle License Unit is, therefore, required by law to furnish the sheriffs of the counties a list of the special licenses issued to amateur radio operators and members of the National Guard, as well as the registration from his county.

MOTOR VEHICLES-Size and Weight Limits (Unofficial)

Statute establishing size limits on vehicles cited. Honorable Joseph H. Kavanaugh

April 15, 1960

This will acknowledge receipt of your letter in which you asked the law of the State of Georgia concerning the height limitation of motor vehicles.

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Section 68-405 (a) of the Code of Georgia, as amended, reads as follows:
"68-405. Limitation as to size of vehicle and weight of load. (a) No vehicle operated upon any public road or public highway of this State shall exceed a total outside width, including load thereon, of 96 inches, not including mirrors and accessories attached thereto; no vehicle unladen or with load shall exceed a height of 13 feet six inches; no vehicle shall exceed by more than 13 per cent. a length of 35 feet extreme overall dimensions, inclusive of front and rear bumpers except busses of motor common carriers which shall not exceed 40 feet extreme overall dimensions, inclusive of front and rear bumpers by more than 13 per cent.; combinations of vehicles shall consist of not more than two units, and, when so combined, shall not exceed a total length of 48 feet; for occasional movements of materials or object of dimensions which exceed the limits herein provided, a special permit shall be required as now provided by law: Provided, however, that loads of poles, logs, lumber, structural steel, piping, and timber may exceed the length herein fixed without requiring special permit."
MOTOR VEHICLES-Trucks (Unofficial)
Discussion of when a leasing agreement of a truck and equipment is really a contract to perform "for hire" transportation.
February 8, 1960
Honorable A. 0. Randall
This office is in receipt of your letter in which you request an opm1on on the question whether an agreement for the leasing of motor vehicle truck equipment from an owner-operator by a shipper either for a definite period of time or a single trip, on a mileage or other compensation basis, which includes the services of the owner-operator or his employee is a bona fide lease of equipment or is, in fact, a contract by the owner to perform "for hire" transportation services.
Chapter 5 of Title 68, Georgia Code Annotated, subjects motor contract carriers in this State to the regulatory power of the Public Service Commission. However, since by the express terms of Section 68-502 only contract carriers fall within the purview of this legislation, it is clear that the transportation by a shipper of his goods in motor vehicles owned or leased by him is not affected by Chapter 5, supra, and is outside the jurisdiction of the Public Service Commission.
In order to avoid the regulatory power of the Public Service Commission over motor carriers for hire established by Chapter 5 of Title 68, Georgia Code Annotated, certain owners of trucking equipment have made agreements with shippers under which their equipment is transferred to shippers for varying lengths of time for the purpose of transporting the shippers' products in return for a prescribed compensation, denominated rent, and with the further provision that the transferred equipment should be operated by the owner. These agree-

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ments are called leases by the parties thereto. Obviously, if these agreements are leases then the motor transportation operations carried on under them are the operations of individual shippers and are beyond the power of the Commission. However, if these agreements are not bona fide leases but are merely shrewdly drawn contracts for hire of the truck owner's equipment and services to transport the goods of individual shippers, then such operations are within the bounds of Chapter 5 of Title 68, Georgia Code Annotated, and are subject to the authority of the Public Service Commission.
The specific question whether an agreement of the type described above is to be considered a lease or a contract for hire under Chapter 5 of Title 68, Georgia Code Annotated, has not been decided by the Supreme Court or the Court of Appeals of Georgia. However, the exact nature of such agreement and the legal significance to be given them in relationship to the Federal Interstate Commerce Commission Act has been ruled upon by the Federal Courts on several occasions, as well as by the Interstate Commerce Commission in administrative decisions. Section 49-309, U. S. C. A., requires that every motorcontract carrier secure a permit from the Interstate Commerce Commission before operating in interstate commerce. This requirement is analogous to that set out in 68-504, Georgia Code Annotated, which requires every motor-contract carrier operating in this State to obtain a certificate of public convenience and necessity. It seems to be the settled Federal doctrine to be drawn from numerous decisions of the Federal Courts that any agreement by a truck equipment owner which purposes to lease his equipment to a private shipper in return for compensation but reserves dominion and control over the equipment to the owner is not a bona fide lease but a contract for hire of the owner's equipment and services by the shipper. The doctrine has been stated by Judge Joyce in Interstate Commerce Commission v. F & F Truck Leasing Company, 78 F'ederal Supplement 13, at page 20:
"In order for the operations to be those of the shipper as a private carrier there must be a clear unequivocal showing that the shipper exercises control and responsibility over the operations of the vehicle, such as would be exercised by it if it were the owner of the vehicle."
Elaborating upon this statement Judge Joyce quotes with approval an administrative ruling of the Bureau of Motor Carriers which, although as issued by the Bureau had application only to leases concluded between owner-operators and carriers, was applied, in the F & F case, supra, to the relationship between owner-operators and shippers as well. At page 20, Judge Joye states:
"The lease or other arrangement by which the equipment of an authorized operator is augmented, must be of such a character that the possession and control of the vehicle is, for the period of the lease, entirely vested in the authorized operator in such way as to be good against all the world including the lessor; that the operation thereof must be conducted under the supervision and control of such carrier; and that the vehicle must be operated by persons who are employees of the authorized operator, that is to say who stand in the relation of servant to him as master."
Thus, it seems the clear Federal view that any purported lease of equipment by a truck-owner of equipment to a shipper is to be regarded as a bona fide lease only if control and dominion of such equipment is vested in the lessee.

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If control and dominion is reserved to the owner then the agreement, or purported lease, will be construed as a contract for hire.
It remains to consider whether an agreement for the leasing of equipment which provides that the owner or his employee shall operate the equipment reserves sufficient control in the hands of the owner to render the agreement a contract for hire rather than a bona fide lease. It has long been the view of the Interstate Commerce Commission that any purported lease of trucking equipment by the owner to a shipper which permits the owner to supply the drivers of the equipment reserves dominion and control in the owner, at least to an extent sufficient to render the agreement a contract for hire rather than a bona fide lease. This view of such agreements under the Interstate Commerce Commission Act has been approved by the Federal Courts in at least two cases. See United States v. LaTuff Transfer Service, Inc., et al., 95 Federal Supplement 375 and the Interstate Commerce Commission v. F & F Truck Le,asing Company, 78 Federal Supplement 13. In implicitly approving the view held by the Interstate Commerce Commission, the Court said in United States v. LaTuff Transfer Service, Inc., et al. at page 381:
"Furnishing motor trucks to shippers with drivers selected and employed by the lessor has been in a long line of Commission decisions found to constitute the rendition of a motor truck transportation service subject to Commission regulations. In these cases the Commission found that the lessor, in selecting and furnishing a driver, in fact retain the right to control, direct, and dominate the performance of the service."
The view held by the Federal Courts in the LaTuff and F & F Trucking Company cases cited, supra, seems soundly based. The reasoning of those Courts and of the Interstate Commerce Commission to purported lease agreements under the Interstate Commerce Commission Act seems directly applicable to the same type agreements under Chapter 5 of Title 68, Georgia Code Annotated. Thus, it is my opinion that any agreement between a trucking equipment owner and a private shipper which purports to lease such equipment to the shipper for compensation but reserves to the owner or his employee the operation of the equipment is not a bona fide lease but is, in fact, a contract for hire, and therefore, the operations of the truck owner under such an agreement are within the purview of Chapter 5, Title 68, Georgia Code Annotated, and subject to the regulatory power of the Public Service Commission.
MOTOR VEHICLES-Turn Signals (Unofficial)
All motor vehicles and trailers registered in Georgia which were manufactured or assembled since January 1, 1954 are required to have turn signals.
June 1, 1961
Mr. Ernest W. Mathis
This will acknowledge receipt of your letter in which you ask what motor vehicles are required to have turn signals.

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The answer to your question is found in Section 68-1708 (b) of the Georgia Code Annotated, which provides as follows:
"(b) No person shall sell or offer for sale or operate on the highways any motor vehicle, trailer, or semitrailer registered in this State and manufactured or assembled after January 1, 1954, unless it is equipped with mechanical or electrical turn signals meeting the requirements of section 68-1712. This paragraph shall not apply to any motorcycle or motor-driven cycle. (Acts 1953, Nov. Sess., pp. 556, 605.)
"E'ditoriaL Note.-Acts 1953, Nov. Sess., p. 556 et seq., which forms the basis for this Chapter was approved on January 11, 1954. It is provided at p. 623 of the Act that it should take effect 60 days after approval."
MUNICIPAL CORPORATIONS-Industrial Revenue Bonds
A municipality desiring power to issue industrial revenue bonds must obtain a Constitutional amendment permitting issuance of such bonds.
June 27, 1960
Honorable Abit Massey Director, Department of Commerce
I am in receipt of your letter with reference to an inquiry from Mr. John E. Arens of Los Angeles, California concerning Georgia laws relating to municipalities issuing municipal industrial revenue bonds. Mr. Arens has requested a copy of Georgia laws enabling municipal corporations to issue these bonds.
As you know, the question being one of taxation, any municipality desiring such power would first have to obtain a Constitutional amendment permitting the issue of such bonds. Most of the municipalities which have created industrial development authorities have been careful to prohibit creation of debt as against the State of Georgia and their respective counties and cities. In other words, where revenue certificates are authorized their funding is based entirely upon revenue of the various projects in which engaged. I cite you three such authorities created by Constitutional amendment.
1. Albany Dougherty Payroll Development Authority, Ga. Laws 1958, p. 444.
2. Waycross and Ware County Development Authority, Ga. Laws, November-December Session, 1953, p. 266.
3. Terrell County Development Authority, Ga. Laws 1958, p. 533.
However, there have been instances where authority to levy taxes for industrial development has been granted by Constitutional amendment and ratified. I cite you Dudley-Promotion of Industries, Ga. Laws 1956, p. 410.

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The office of the Secretary of State will be happy to furnish you with a copy of these laws upon request.
The 1960 General Assembly resolved that Article VII, Section II of the Constitution be amended so that the General Assembly shall have the power to establish a (State) Industrial Development Commission with powers of taxation for the purpose of making loans available to industrial development agencies. This amendment must be ratified by the voters of the State of Georgia, and it has not yet been ratified.

NEWSPAPERS-Official Organ (Unofficial)
Discussion of selection of a newspaper as the official organ of a county.
October 20, 1961
The Berrien Press
We are in receipt of your letter in which you request an explanation and interpretation of Georgia Code Section 39-1103.
After studying the above code section, it is our opinion that if two journals or newspapers circulate generally in a county, and both meet the statutory requirements, thereby qualifying for selection as the official organ of the county, the officials, who are designated to select which journal or newspaper shall be the official organ, are not bound by statute to base their selection upon size of circulation, but are free to choose either.
The only reference to circulation, as a requirement to qualify for selection, in the statute is that eighty-five percent of the circulation of a newspaper or journal must be paid circulation before such newspaper or journal can be considered for a selection as the official organ of the county.

NEWSPAPERS-Official Organ (Unofficial)

Discussion of eligibility of newspaper to become official organ of a county.

Mr. Dan Cowart

March 16, 1961

Thank you for your letter inquiring as to the eligibility of your newspaper to act as the official organ of Cook County, Georgia, and as to any legal prerequisite for its selection as such organ.

In connection with your inquiry, please note the following Sections of the Code of Georgia, Annotated, which I believe are self-explanatory:

"39-1103. No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication

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of sheriff's sales, ordinary's citations or any other advertising commonly known and termed 'official or legal advertising" and required by law to be published in such county official newspaper, unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper, and unless 85 per cent. of the circulation of such newspaper or journal is paid circulation. No change shall be made in the official organ of any county except upon the concurrent action of the ordinary, sheriff and clerk of the superior court of said county or a majority of said officers: Provided, that in counties where no journal or newspaper has been established for two years the official organ may be designated by the ordinary, sheriff and clerk of the superior court, a majority of these officers governing."
"29-1107. No sheriff, coroner, or other officer shall change the advertising connected with his office from one paper to another, without first giving notice of his intention to do so in the paper in which his advertisements may have been published."
PARDONS AND P AROLES~Sentences (Unofficial)
Computation of when sentence on designated prisoner ends. May 10, 1960
Mr. William H. Kimbrough, Chairman State Board of Pardons and Paroles
Receipt is acknowledged of your letter stating certain facts and requesting an opinion relating thereto.
Chronologically stated, the facts you present are as follows:
November 1, 1948, subject was sentenced to serve 12 to 16 years.
June 1, 1953, after serving 4 years and 7 months, subject was granted parole.
Contrary to conditions of parole, subject absconded to another state and committed several violations of the law.
August 24, 1953, the Board issued a warrant for subject's arrest.
Subject was captured by Federal authorities.
April 13, 1954, subject was given Federal sentences totaling 10 years.
April, 1954, subject began serving Federal sentences.
May 7, 1956, the Board's warrant was transferred to the U.S. Penitentiary at Alcatraz, California.
May 27, 1960, subject's tentative release from Alcatraz.

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At no time since issuance of the warrant has the Board been able to arrest subject and bring him before it for a hearing.
The legal question presented by these facts may be stated as follows:
When did subject's paroled sentence stop running'!
1. At the time of the breach of the condition or conditions of parole.
2. At the time of the issuance of the Board's warrant.
3. At the time subject began serving his Federal sentence.
What action should be taken by the Board at this time?
At the outset let me state that the failure of the Board to act pursuant to that part of Code Section 77-519, which you refer to, providing " ... When a parolee has been convicted of any crime, whether a felony or a misdemeanor, or has entered a plea of guilty thereto, in a Court of Record, his parole may be revoked without a hearing before the State Board of Pardons and Paroles", does not affect this case as that provision was not added to Code Section 77-519 until 1955.
It is clear under the facts recited that the Board has had no opportunity up until the present to arrest the parolee and carry out the provisions of Code Section 77-519 which are, in part, as follows:
"77-519. As soon as p1racticable after the arrest of a person charged with the violation of the terms and conditions of his parole, such parolee shall appear before the Board in person and a hearing shall be had at which the State of Georgia and parolee may introduce such evidence as they may deem necessary and pertinent to the charge of parole violation. Within a reasonable time thereafter the Board shall make findings upon such charge of parole violation and shall enter an order thereon rescinding said parole and returning such person to serve the sentence theretofore imposed upon him, with benefit of computing the time so served on parole as a part of such person's sentence, or reinstating such parole, or shall enter such other order as it may deem proper ..."
It is to be noted that the Legislature used the word "rescind" which, as defined by Black's Lmv Dictionary, Fourth Edition, means: "To abrogate; annul; cancel." This word connotes that the Board may determine that the parole is "revoked" ab initio, i.e., from its inception, or, at least dating back to some previous date other than the date of a hearing.
That brings us to a consideration of the question of whether that previous date in this particular case is the date the Board finds the subject person violated his parole, the date the Board issued a warrant, or the date he began serving his Federal sentence.
In leaving the State without the consent of the Board, the parolee violated one of the conditions of his parole. If the effect of this act by the parolee was not to stop the running of his sentence, it is clear that as of the date of the issuance of the warrant by the Board for his arrest (the parolee then becoming a fugitive) he ceased to be serving time under his paroled Georgia sentence.

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Since, as above stated, the Board has had no opportunity up until the present to arrest the parolee and have a hearing as provided by law, it is my opinion that the Board, as soon as practicable, have such a hearing, and if the Board determines to rescind the parole, time will be computed on the basis that the parolee has thus far served only up to the date of the issuance of the warrant.
PARKS-State
Expenditure of funds by State Department of Parks to construct permanent improvements on realty held by the State under Federal license or by deed containing a reversionary clause.
[Ed. Note. This opinion has been modified by the enactment of Ga. L. 1961, p. 47.]
January 5, 1961
Honorable Charles A. Collier, Director The Department of State Parks
Thank you for your letter in which you requested an official opinion (1) as to the legality of The Department of State Parks expending funds for the construction of permanent improvements on park realty held by the State of Georgia under Federal license or by deed containing a reversionary clause and (2) defining the term "permanent improvements".
Section 91-117 of the Georgia Code Annotated provides that "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." (Emphasis supplied.) Since the enactment of this law in 1945, it has been the unbroken and unvarying policy of the Budget Bureau to interpret the above phrase "owned or acquired" as requiring fee simple absolute title vested in the State of Georgia to property on which permanent improvements are to be constructed at State expense. This policy has been recognized and approved by the Attorney General as is evidenced by the following opinions: Op. Atty. Gen. 1954-56, pp. 573, 574, 655 and 656; id., 1952~53, pp. 109, 170, 357, 359 and 502; and id., 1948-49, p. 655. The wisdom of the Budget Bureau's policy is compelling when we realize that only through its enforcement can the State avoid the possible loss of substantial funds invested in permanent improvements constructed on realty held under license or reversionary conveyance. Cons.equently, in answer to your first inquiry, it is my opinion that it would be improper for the Department of State Parks to expend funds for the construction of permanent improvements on park realty not held in fee simple absolute title by the State of Georgia in the absence .of enabling legislation or proper appropriation of funds by the General Assembly.
In answer to your second inquiry, it is my opinion that the term "permanent improvements", as used in the above context, refer to permanent structures which cannot be feasibly removed from the realty or transported. This definition does not encompass improvements which are recognized under general principles

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of law as becoming a part of the realty when the improvements are of such a nature as to be easily removable without material damage thereto, and the deed or other instrument of conveyance contains a clause giving the State the right to remove these improvements either before or within a reasonable time after abandonment by the State. Op. Atty. Gen. 1954-56, p. 656, 4th par. One such example arose concerning forest fire lookout towers which from their physical size and character may be easily removed. Op. Atty. Gen. 1952-53, p. 538, 2nd par., and p. 359.
PARKS-State
The State is not liable for injuries sustained by individuals enjoying use of State premises for skin-diving.
March 17, 1960
Hon. Charles A. Collier, Director Department of State Parks
I am in receipt of your letter together with a copy of a letter directed to you from the Hunter Air Force Base Skindiving Club wherein permission is asked to go diving in Magnolia Spring in Magnolia State Park, Millen, Georgia. It is stated by the secretary of the skindiving club that they would be happy to clear debris in the mouth of the cave of the spring.
It is well established that the Sovereign State of Georgia may not be sued for injuries received in or upon State property without express consent of the State.
Therefore, since skindiving is recognized today as a popular and normal recreation, I do not believe the State would be liable for an injury sustained by an individual enjoying the use of State premises in this pursuit; and further, therefore, it is not necessary for you to obtain, as suggested by your letter, any release to be signed by those participating in the diving.
I would not grant permission to this group or any other group to conduct any activity in the way of clearing, working, or in any other manner improving State property that may be interpreted as being some form of employment for the State of Georgia. Therefore, I do not feel that you should grant permission to the group to clear the debris at the mouth of the cave.

PARKS-State Deplllrtment

The State Parks Department is authorized to change the rates for group camps, and other activities on parks property.

Hon. Charles A. Collier, Director State Parks Department

February 11, 1960

I am in receipt of your letter in which you state that the Department of State Parks is preparing to change the rates for group camps, overnight adult

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campers, and several other activities on the parks system. You ask for me to advise you whether or not it would be necessary to pass additional legislation permitting you to effect such changes.
Georgia Code Section 43-124, subsection g, provides that the department is empowered and directed "To construct and operate suitable public service privileges and conveniences in any park or other property under its control, and for the use of same to make reasonable charges."
It is my opinion that under the ahove quoted section you may effect any change in rates and charges that you consider reasonable.
PARKS-State Dep,artment There is no prohibition against concessionaires of State-owned prop-
erty making a charge for fishing. July 27, 1960
Honorable Henry D. Struble Department of State Parks
I am in receipt of your letter in which you request my opm10n whether a charge may be made for fishing by concessionaires of state-owned park property. You state that it has been called to your attention that possibly a bill or resolution was passed which would prohibit these charges.
I have been unable to find any law prohibiting the right to charge for fishing privileges in lakes on state-owned park property. Although it is possible such a resolution or bill has been passed, it is not indexed as such, and should you ever be informed as to where such a resolution or bill may be located I shall be happy to review or modify my opinion. Until such time, it is my opinion that the privilege of fishing, like the privilege of swimming, may be charged for by the person entitled to operate such a concesson which includes the lake premises.
PARKS-Stone Mountain Memorial Association
Discussion of whether scenic railroad at park is subject to regulation by State or Federal regulatory agencies.
January 27, 1961
Honorable Matt L. McWhorter Chairman Georgia Public Service Commission
This is in response to your letter in which you point out that the Stone Mountain Memorial Association has leased a concession authorizing the opera-

317
tion of a standard gauge passenger train around the base of Stone Mountain on the property of the Association and request my opinion upon the question whether or not this particular railroad operation would be subject to the railroad regulatory laws of this State or of the United States.
The railroad service which it is proposed to operate around Stone Mountain would exist entirely for amusement purposes. It would enable tourists to view Stone Mountain from all angles and to observe the natural beauty of the park surrounding the Mountain. The railroad would connect with no other railroad line nor with any highway. It would render no regular passenger or freight transportation service to any towns or cities, nor indeed would it pass through any inhabited places. In short, it would not be a strictly commercial venture, and thus, would not constitute a common carrier in the ordinary sense of the term.
Since the railroad would operate entirely within the confines of DeKalb County, Georgia, it is clear that there is no element of interstate commerce involved here, and thus, the operation falls exclusively within the regulatory authority of the State of Georgia. The sole question then is whether or not this particular railroad operation would be subject to the railroad regulatory laws of this State.
The principle of law which, it would seem, controls the question involved here was first clearly stated in Savannah, Thunderbolt and Isle of Hop'e Railway v. Williams, 117 Georgia 414. The Court there stated that the Constitution, statutes, and decisions of this State recognize that the word railroad, per se, is generic and includes the various types of railroads; thus, the Court concluded that, in order to determine whether or not a particular statute applies to a particular type of railroad, it is necessary to analyze the statute involved and ascertain from its language and context whether the type railroad involved is included within the purview of the statute. This precise principle will be found restated in Georgia Railway and Electric Co. v. Joiner, 120 Georgia 905. An analysis of the various statutes of this State regulating railroads clearly indicates that they refer to railroads which are common carriers of passengers or freight or both and that they have no application to an extremely limited railroad operation engaged in entirely for amusement purposes. It is thus my conclusion that none of the railroad regulatory laws of this State apply to a railroad of the type your concessionaire proposes to operate.
My conclusion that such a strictly limited operation for amusement purposes only is not within the terms of general railroad statutes is fortified by reference to Bridwell v. Gate City Terminal Co., 127 Georgia 520, a case which involved the question whether or not a railroad of extremely limited length was within the purview of a statute which granted railroads the power of eminent domain. The Court held that the length of a railroad line was not determinative of its status so long as it was a commercial carrier of passengers or property. The admitted facts showed that the railroad involved was a common carrier, and thus, it was held to be within the language of a general railroad statute endowing railroads with the power of eminent domain. In the course of the Court's opinion it cunsidered the very interesting case of In re Niagara Falls v. W. Railway Co., 108 New York 375; 15 NE 429. In that case the New York Court dealt with a factual situation similar to the one involved here and held that a proposed railroad of short length which would connect no towns or villages and would exist purely for the purpose of carrying tourists

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to Niagara Falls in order that they might view its natural splendors from a more adva11tageous position was not a common carrier within the terms of a New York statute granting railroads the right of eminent domain. The Supreme Cou:rt of Georgia in the Bridwell case, supra, did not in any sense criticize this holding of the New York Court but merely distinguished the facts before the New York Court from the facts before it, pointing out that the railroad involved in the Bridwell case was a common carrier of persons and property whereas the railroad involved in the Niagara Falls case was engaged in an amusement venture.
It is, therefore, my opinion that the railroad to be operated for amusement purposes only by the concessionaire of the Stone Mountain Memorial Association on property of the Association would not be a common carrier, and thus, would not fall within the railroad regulatory statutes of the State of Georgia.
PENSIONS AND RETIREMENTS-Board of Regents Supplemental Plan
Effect of the Board of Regents Supplemental Retirement Plan to the
Teachers' Retirement Plan and to Social Security discussed.
December 9, 1960
Mr. James A. Blissit, Treasurer
I have your letter in which you submit the question whether an increase in Social Security benefits, that becomes effective after an individual has retired from employment in the University System of Georgia, shall have the effect of reducing supplemental retirement benefits to which he was entitled as of the date of his retirement.
It is my understanding that the Board of Regents, at a meeting held on May 14, 1952, adopted a resolution setting forth policies regarding retirement ages and retirement allowances, which reads in part as follows:
"4. Retirement Allowance for Employees Retiring at Age 67 or Earlier.
"(a) Any Employee who retires at the end of the fiscal year during which he reaches age 67, whether his retirement be voluntary or compulsory, shall receive a total annual retirement allowance equal to 50% of his annual salary over any consecutive five years' period that he may select, provided he has had at least 25 years of service in the system at the time of his retirement and provided further that he was employed in the System prior to April 1, 1950, and that his employment in the System has been continuous since that date."
Further, the said resolution provided in part as follows:
"10. The provisions contained herein regarding guarantees of specific retirement allowances by the Board of Regents shall be construed to mean that, if the maximum retirement allowance that may be received by an employee from the Teachers' Retirement Board is less than the allowance guaranteed by the Board of Regents, the Board of Regents

319
through the appropriate institution of the System will pay the difference so that the employee will receive from the two sources the guaranteed amount."
On July 11, 1956, the Board of Regents, pursuant to a referendum of faculty members placing employees under the old age and survivors insurance system of the Federal Social Security Act, adopted a resolution amending the aforesaid Section 10 of the Supplemental Retirement Plan, . which reads as follows:
"The provisions contained herein regarding guarantees of specific retirement allowances by the Board of Regents shall be construed to mean that, if the maximum allowance that may be received by an em. ployee from the Teachers' Retirement Board plus one half of the benefits to be received under the Federal Social Security Act without regard to additional benefits to be received for dependents is less than the allowance guaranteed by the Board of Regents, the Board of Regents through the appropriate institution of the System will pay the difference so that the employee will receive from three sources the guaranteed amount."
It is my opinion that the foregoing provisions with reference to the policies of the Board of Regents dealing with a Supplemental Retirement Plan, properly interpreted, guarantees to a retiring employee by the Board of Regents of the University System of Georgia that he will receive from the Retirement Plan of the Board of Regents, and the Teachers' Retirement Plan and Social Security, amounts totalling not less than a certain percentage of his annual salary over any consecutive five year period, to be determined and fixed as of the date of his retirement.
If the total of the retirement allowance a retired employee receives from the Teachers' Retirement System plus one half of his Social Security benefits does not equal the retired allowance guaranteed by the Board of Regents, the appropriate institution of the System will pay to the retired employee such amount as may be necessary to increase this total to the amount guaranteed by the Regents of the University System of Georgia.
It is my opinion that the amount of the maximum allowance guaranteed by the Board of Regents is fixed at the time of retirement; that the supplemental payment by the System is not a fixed amount, and if the total of the amounts received from Teachers' Retirement and Social Security should change, the supplemental payment would change correspondingly.
To ths same effect as the policies of the Regent set out above, but expressed in a converse manner, is the resolution of the Board set out in part in the agenda for the meeting of the Board of Regents for November 9, 1960, as follows:
"The effect of this provision is that the total maximum retirement benefits of any individual receiving additional benefits under the University System Supplemental Retirement Plan may not exceed the sum of the retirement allowance guaranteed by the Board of Regents plus one-half of the individual's social security benefits."
For the sake of clarity and exactness as to how these various policies and regulations of the Board of Regents should be interpreted, I am taking the

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liberty to set out herewith several practical examples as to how I think the Plan should operate:

Example 1

(1) Maximum retirement allowance guaranteed by the University

System __________ -------------------------------

______________ ---$ 3,500.00

(2) Teachers' retirement allowance _

___-1,200.00

Supplemental payment to be paid by the University System__

-$ 2,300.00

Total retirement allowances from all sources_________________ _

-----$ 3,500.00

Example 2

(1) Maximum retirement allowance guaranteed by the University

System _

_________________________

________________ --$ 3,500.00

(2) Teachers' retirement allowance

- _______ $1,200.00

(3) Social Security allowance $500 ( lh) __________________

250.00

Total from other sources

---------$1,450.00 -1,450.00

Supplemental payment to be paid by University System_______ ----------$ 2,050.00

Total retirement allowances from all sources____

-----------$ 3,750.00

Example 3

(1) Maximum retirement allowance guaranteed by the University

System _________________

____________ _

$ 3,500.00

(2) Social Security allowance $500 ( lh ) $250 ________________

-250.00

Supplementary payment to be paid by University System_ Total retirement allowances from all sources ___

$ 3,250.00 - $ 3,750.00

Examp,le 4

(1) Maximum retirement allowance guaranteed by the University

System

______________________________

_________________________ ----$ 3,500.00

(2) Teachers' retirement allowance_____________________________ --------------$2,500.00

(3) Social Security allowance $1,000 (%)_____

______________ 500.00

Total from other sources ______

___$3,000.00 $ 3,000.00

Supplemental payment to be paid by University System Total retirement allowance from all sources _____________________

---------$ 500.00 --- $ 4,000.00

Example 5

(1) Maximum retirement allowance guaranteed by the University

System ___

______________

-$ 3,500.00

(2) Teachers' retirement allowance___ __________________ _______$3,500.00

(3) Social Security allowance

---------------------------

500.00

$4,000.00 $ 3,500.00

Supplemental payment to be paid by University System____

None

Total from all sources ___________________

---------------------- --$ 4,000.00

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In all of the examples cited above where Social Security benefits are involved, the total amount received from all sources represents the maximum retirement allowance guaranteed by the Board of Regents, plus one-half of the Social Security benefits.
I think that you are correct in your interpretation of the Board's Policies that the maximum retirement allowance guaranteed by the Board of Regents is fixed and that supplemental allowances are subject to be reduced if the amount received from either of the other two sources; that is, Teachers' Retirement and Social Security, is increased. Of course, if no supplemental payment is required of the Board of Regents, then the System has no interest or concern as to whether the amounts received from the other two sources are increased.
PENSIONS AND RE:I'IREMENTS-Employees Retirement System
Discussion of extra payments required of Department of Corrections to Employees Retirement System.
June 19, 1961
Honorable Jack M. Forrester Director State Board of Corrections
I am in receipt of your letter in which you request an interpretation of Section 1 (3) of Act 78, Ga. Laws 1961, p. 112, which amends an Act approved February 3, 1949, establishing an employees' retirement system, (Ga. Laws 1949, p. 138 et seq.).
Section 1 (3) states:
"In addition to the regular established employer contributions as required by the System Act, the Director of the State Department of Corrections is hereby authorized and directed to pay, from funds received by the Department of Corrections as income from earnings realized as compensation for the various services rendered by the Department, an additional contribution as determined by the Board of Trustees, said additional contribution shall be a regular quarterly amount sufficient to amortize the total amount of the employer's contributions which would have been paid for all of said Department's employees from August 1, 1953 to July 1, 1961, said quarterly amounts shall include an amount of interest on these employer contributions as prescribed by the Board of Trustees. The regular quarterly payments shall cause the amortization, within a period not in excess of 5 years, of the total amount of the employer's contributions including any and all interest as may be further prescribed by the Board of Trustees, said quarterly payments shall begin on July 1, 1961. In the event the earnings of the department are not sufficient to pay such contributions the same shall be paid from funds available to the Department from appropriations or otherwise. If the contributions are not made as provided herein the provisions of this

322
Act shall be null and void."
The above section provides for a sum of money to be paid into the Employees' Retirement System by the Department of Corrections from income derived by the Department from services rendered by the Department. The amount of this sum is to be determined by the Board of Trustees of the Employees' Retirement System and specified to the Department of Corrections. The section then imposes upon the Director of the Department of Corrections the duty of paying this specified amount to the Employees' Retirement System in quarterly payments until the total amount has been paid. This sum is to be paid quarterly over a period not to exceed five years.
The State Department of Corrections shall pay an additional contribution as the employer's contribution which would have been paid for all emp,loyees from August 1, 1953 to July 1, 1961. The words "would have been paid" implies the exclusion of all employees upon whom an employer's contribution has already been paid. It negates a duplication of employer contribution payments. The words "all employees" include all eligible employees who were on the Department's payroll the entire period from August 1, 1953 to July 1, 1961, and also any employees who were on the payroll for any p,art of the period from August 1, 1953 to July 1, 1961.
PENSIONS AND RETIREMENTS-Emp,loyees' Retirement System (Unofficial)
The Employees' Retirement System may invest in such investments as are legal for domestic life insurance companies in Georgia.
June 1, 1961
Mr. Levy Anderson
I am in receipt of your letter in which you inquired as to our laws permitting the Employees' Retirement System to invest its assets in corporate bonds, preferred stock and common stock.
Article XIV, Section I, Paragraph II of the Georgia Constitution states as follows:
"Paragraph II. Retirement system; approp,riation.-The General Assembly is authorized to establish an actuarially sound retirement system for employees under a merit system. Adequate appropriations shall be provided for the operation of a merit system and the State Personnel Board."
The above constitutional provision makes the Employees' Retirement System a constitutional body of our State government.
In addition, I direct your attention to Code Section 40-2510, which gives the Board of Trustees of the Employees' Retirement System full power to invest and reinvest assets of the System with such investments and reinvestments subject to the same limitations and restrictions as imposed upon domestic life insurance companies. These restrictions and limitations are set out in Chapter 56-10 of the Georgia Code.

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PENSIONS AND RETIREMENTS-Employees' Retirement System (Unofficial) A member of the retirement system may designate his estate to receive
any benefits payable at his death. March 28, 1960
Mr. Percy A. Bray I am pleased to acknowledge your letter relative to a beneficiary receiving
a check from the Employees' Retirement System of Georgia, and whether this check is part of the estate of the deceased State employee.
Under the Employees' Retirement System Act, a member of said System has the option of designating who shall be the beneficiary. Such member may designate his estate or anyone that he desires to receive the benefits accruing to said member under the provisions of said System.
I suggest that you communicate with the Employees' Retirement System, 254 Washington Street, S. W., Atlanta 3, Georgia, and ascertain who the beneficiaries are and if said beneficiary as designated by the deceased employee is other than his estate; then his estate would have no interest in said check or checks as you mentioned. If, on the other hand, the deceased employee had designated his beneficiary as his estate, then his estate would be entitled to it.
PENSIONS AND RETIREMENTS-Employees' Retirement System
A tax assessor compensated wholly by fees is thus excepted from Social Security coverage under the contract between Employees' Retirement System and the local Board of Commissioners for salaried employees.
December 18, 1961 Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System of Georgia
You have requested my opinion as to: (1) Whether or not Mr. Myer B. Miller, as a tax assessor of Crisp
County, held a position compensated for on a fee basis, and was thus excepted from Social Security coverage under the contract between the Employees' Retirement System and the Crisp County Board of Commissioners;
(2) Whether or not services performed by Mr. Miller as an appraiser for the State Highway Department were performed as a county employee on a fee basis; and
(3) Whether services performed by Mr. Miller on the County tax digest were compensated for on a fee basis.

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The contract between the State of Georgia Employees' Retirement System and Crisp County, in Section II (j) provides:
"This agreement includes and covers all services performed by individuals as employees of the Political Subdivision, except: Services of employees in positions the compensation of which is on a fee basis."
Section 92-6908 of Georgia Annotated, in dealing with tax assessors provides:
"Compensation.-The members of the board shall be paid as compensation for their services such an amount as may be fixed from time to time by the board of county commissioners or ordinary, as the affairs of the county may be under the jurisdiction of the one or the other: Provided, that the compensation to be paid said members shall not be less than $3 per day each, for the time they are in actual discharge of the duties required of them. The compensation of the members of said board, and such other expenses as may be necessary to be incurred in the performance of the duties of the board, shall be paid from the county treasury in the same manner as other payments by the county are made."
In my opinion, even though this code section is styled, "Compensation", this does not preclude the County Commissioners from paying the Tax Assessor on a fee basis. The code section says that the members of the board shall be paid as compensation such an amount as may be fixed from time to time by the county commissioners. This amount could be a lum!) sum fixed fee'. This would be true even though the code section further provides that in no event shall compensation be less than $3 per day for the time required in the discharge of duties.
(1) In the case of Crisp County, it appears from your file that no record or accounting was made as to the time nor days the Tax Assessor worked. The County Commissioners and the County Attorney state that tax assessors have historically never been paid a salary or an amount per day for their services, but have been paid on a fee basis, determined at the conclusion of the work rendered by a tax assessor without regard to the number of days worked and without regard to any fixed wage per day.
In a letter, dated January 28, 1960, from the Clerk of the Crisp County Commissioners, it is stated, "The three members of the Board of Tax Revisers of Crisp County, appointed by the County Commissioners for a term of six years, usually work about 40 or 50 days each year and are paid a lump sum determined by the County Commissioners at the end of the period when their report is accepted by the Commissioners and is usually about $400. to $500. to each reviser." (Emphasis added)
In the field report of your representative, dated September 8, 1960, it is noted the "County Commissioners (of Crisp County) have decided to leave the tax assessor on a fee basis. Therefore, they will not be covered for social security."
In a letter, dated August 10, 1961, from the County Attorney of Crisp County, it is stated: "Both the Commissioners and the Tax Assessors treated the remuneration which the Assessors received as fees and not as a salary, and, hence, as excluded from the Social Security benefits, and no monies have ever been set aside to qualify them as being covered by the contract or the Act by reason of their employment."
Webster's Dictionary defines a "fee" as "A charge fixed by law for certain services or privileges; ... compensation for professional services." Webster's Die-

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tionary further defines "salary" as "Fixed compensation regularly paid or stipulated to be paid for services, as by the year, quarter, month, or week." The County Attorney of Crisp County has stated that the duties of tax assessors take on the aspects of professional and expert qualifications.
I am of the opinion the tax assessor occupies a position which, under State law, can be compensated for on a fee basis as well as on a per diem basis, with the provision that compensation shall not be less than $3 per day. The actual facts in this case indicate Mr. Myer B. Miller was paid on a fee basis, and therefore, his position would not be covered under the terms of the contract between the Employees' Retirement System and Crisp County.
(2) It appears that Mr. Miller received from the County Commissioners sums of money in connection with the appraising of right of way property acquired by the State Highway Department. These services rendered by Mr. Miller were in addition to his duties as a tax assessor and were compensated on the basis of $10 per parcel for appraisal of the land for right of way purposes, and $25 per day fee as an expert witness when his services were required. Th" County Commissioners paid an additional $7 per parcel fo~ the work done in this connection by Mr. Miller. It seems clear that the services performed by Mr. Myer B. Miller as an appraiser for the State Highway Department were performed on a fee basis, and therefore, would not be covered under the contract between the Employees' Retirement System and Crisp County.
(3) The last request relates to services performed by Mr. Miller in copying the tax digest. From your file, it appears the Clerk of the Crisp Board of Commissioners, under date of September 26, 1961, on report made to the Social Security Administration, stated Mr. Miller was told when hired that he would be allowed up to $1200 for the services performed in copying the city digest. It seems clear from the evidence in your file these services were not to be paid for on a per diem basis, but were to be compensated for on a Jump sum fixed fee basis, and therefore, would not be covered under the contract between the Employees' Retirement System and Crisp County.
PENSIONS AND RETIREMENTS-Firemen's Pension Fund (Unofficial)
1. A member is not required to pay dues during a leave of absence.
2. A volunteer fireman who attends 75% of the total drills, meetings and fires is entitled to credit for that year.
3. A member retired from the department but not yet 60 may not be granted a pension unless disabled from duties and occupation as a fireman.
July 14, 1961
Mr. Max Wiggins
Replying to your letter, you are advised as follows:
1. With reference to Robert N. McEachren who has been a member of the Fund since July 1, 1955 and who has been on leave of absence since July 17, 1960

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and who has made his monthly contributions up to June, 1961, I am of the opinion that McEachern was not required to contribute to the fund while on leave of absence from his duties as a fireman with the Valdosta Fire Department.
Section 5A of the Act provides that a member of the Fund who shall be granted a bona fide leave of absence shall not receive credit for the time he is on leave. It therefore follows, that during such leave of absence a member would not be required to contribute to the fund. Since McEachren has paid ten months dues which he was not required to pay, he should be refunded the full amount of the over payment.
2. You request an interpretation of that portion of Section 1, paragraph 2 dealing with "Volunteer Firemen" which reads: "and who attends seventy-five per cent ( 75 o/o) of all drills, meetings and fires in every calendar year."
My construction of the quoted language is that a volunteer fireman who attends seventy-five per cent of the composite total number of drills, meetings and fires in a calendar year is entitled to credit for such year. I am inclined to think that had the Legislature intended this provision to require attendance at 75o/o of all drills, 75o/o of all meetings and 75% of all fires in a calendar year that such intention would have been stated more clearly and more specific lan~ guage would have been used than is employed in the present Act. In reaching this conclusion I am influenced by the fact that a volunteer fireman works on a parttime basis and is required, in most cases, to be employed full time in some other occupation to earn a livelihood.
3. With reference to a fireman who has retired from a department but who has not attained the age of 60, and who incurs heart disease or respiratory disease after retirement, you are advised that in my opinion, such a fireman cannot be granted a pension by the Board of Trustees before such fireman reaches the age of 60, unless the Board is satisfied from the evidence submitted that the disease is directly attributable to the fireman's duties and occupation while actively engaged as a member of a fire department.
PENSIONS AND RETIREMENTS-Investments
Discussion of legal investments for various pension funds.
October 13, 1961
Honorable Zack D. Cravey Comptroller General of Georgia
This will reply to your letter in which you request the opinion of this office as to the validity of the various Georgia pension funds purchasing Early County Industrial Revenue, Series B, Junior Bonds.
Generally speaking, the Directors of the various Georgia pension funds may invest such funds in any investment which is a legal investment for insurance companies incorporated under the laws of this State. (See Section 40-2510, Ga. Code-Employees Retirement Fund; Section 78-1004-Firemen's Pension Fund;

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Section 78-904-Peace Officers Retirement Fund; and Section 32-2917-Teachers' Retirement Fund.)
In 1961, (Ga. Laws 1961, p. 458) Section 56-1013 of the Georgia Code (New Insurance Code) was amended to authorize domestic insurers to invest in:
"... revenue bonds, issued by any political subdivision, authority, unit, or other corporate body created by the United States Government or the Government of any State, for the purpose of aiding in or promoting the industrial development of such State or political subdivision."
In 1960 (Ga. Laws 19n0, pp. 1341-1343) the General Assembly of Georgia passed a resolution authorizing an amendment to Article 7, Section 7, p. 5 of the Constitution of Georgia of 1945, to be submitted to the voters of Early County, Georgia, which when approved by a two-thirds vote of the members of the General Assembly and by a majority of the qualified voters of said County would authorize said County to issue revenue anticipation bonds to provide funds for the purchase, construction, enlargement, or either of facilities, including land, buildings, appurtenances, machinery and equipment, suitable for use by (a) any industry for manufacturing, processing, or assembling any agricultural or manufactured product, or (b) any commercial enterprise in storing, warehousing, distributing or selling products of agriculture, mining and industry, or any combination thereof.
Not having before me a facsimile of Early County Industrial Revenue, Series B, Junior Bond, and not having any evidence that the Resolution passed by the General Assembly in 1960 has been fully complied with; and not having any information as to whether the purpose for which these bonds were issued falls within the purposes authorized by Statute, I am not in position to advise whether or not such bonds are legal investments for the various pension funds of this State.
Your attention is called to the provision in the General Assembly Resolution of 1960 relating to Early County, Georgia, that bonds issued pursuant thereto shall be validated as prescribed by the Revenue Bond Law of 1937, as amended, (Chapter 87-8 of Georgia Code). It would therefore appear if the bonds have been properly validated by the Superior Court of Early County, Georgia, that said bonds are a legal investment for the pension funds of this State.
PENSIONS AND RETIREMENTS-Investments (Unofficial)
Discussion of possible problems in connection with contemplated purchases of FHA and VA loans upon real estate located in Georgia by the Maine State Retirement System.
December 1, 1960
Honorable Frank E. Hancock Attorney General of Maine
I have examined the Georgia statutes and decisions concerning possible problems that may arise in connection with contemplated purchases by the Maine

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State Retirement System of FHA and VA loans upon real estate located in the State of Georgia.
As I understand it, the proposed purchases are to be made through an independent agent located and doing business in the State of Georgia, the situs of the property mortgaged. The Board of the Maine Retirement System would enter into a written agreement with a local agent whereby the Board would agree to purchase and the agent to sell to the State of Maine, notes; and the local agent would agree to "service" the said notes by collecting payments under each mortgage, and to generally oversee the property to the end that all Federal, State, and local laws are complied with in the making of the mortgage, and as to payment of taxes.
I understand that you are concerned as to whether or not there are any legal obstacles under Georgia statutes and decisions, or administrative rulings which would make it inadvisable or impossible for the Board of Trustees of the Maine Retirement System to make such purchases.
In approaching this problem, generally we accept and concur in your opinion that the Maine State Retirement System is a state agency, and that generally the purchase of notes under the circumstances outlined above would not be considered as "doing business" within a state. I assume that any earnings which might accrue as a result of any such investments as proposed would inure to the Maine Retirement System, for which System the investments would be made.
Ga. Code Ann., Section 92-123 provides among other things that in filing returns of intangibles, intangible personal property belonging to the United States Government or to the State of Georgia or to any religious, educational or charitable organization; intangible. personal property belonging to any trust exempt from Federal income taxes under Section 165 (a) of the Internal Revenue Code; non-profit cooperative association; and money belonging to persons residing outside the State of Georgia (except as provided in Section 92-121) shall be excluded from such sworn statement and shall not be taxable.
Code Section 92-161 (b) provides that the tax imposed shall not apply to any taxable personal property owned by a trust forming a part of a pension, profit-sharing or stock bonus plan exempt from Federal income tax in Section 165 (a) of the Federal Internal Revenue Code, or to long term notes secured by real estate, as defined in Section 92-163.
Code Sections 92-163 and 92-164 define "long term notes secured by real estate"-whenever any part of the principal of which note or notes falls due more than three years from the date thereof. These sections provide for a one time payment of an intangible tax, and are set out in the Acts (Ga. Laws, 1953, p. 379.)
I have previously rendered an opinion set out in the Opinions of the Attorney General 1954-56, at page 797, dated February 27, 1956, to the effect that "Long term notes, owned by educational, religious, hospital and pension organizations, described in Code Sections 92-123 and 92-130, are not subject to the intangible tax, imposed on the recording of long term real estate notes."
Likewise, in the Opinions of the Attorney General 1957, on pages 303, I have rendered an unofficial opinion that Georgia intangible tax does not apply to property owned by trusts exempt from Federal income taxes under Section 165 (a) of the Internal Revenue Code. This last opinion, dated August 22, 1957,

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dealt specifically with the applicability of the Georgia intangible tax on long term real estate notes 'owned by the Alabama State Teachers' Retirement Fund, secured by property located in Georgia. I stated in that opinion that the question would appear to be whether the Alabama fund would qualify under Section 165 (a) of the Internal Revenue Code (1939 as amended). I pointed out that J had previously ruled that the Georgia Teachers' Retirement System, and the Georgia Employees' Retirement System did qualify under this latter provision.
From the facts which you have given me as to the Maine Retirement System purchasing notes secured by property in Georgia with the ownership and tax situs of the notes to be in the State of Maine, I do not believe that the Maine Retirement System would be "doing business" within the state of Georgia.
In the case of Redwine, State Revenue Commissioner v. United States Tobacco Company, 209 Georgia Reports, page. 725, the question of "doing business" is dealt with comprehensively, and the Court points out on page 728 of the decision:
"In Vol. 13 Words and Phrases, p. 126, under 'doing business', will be found a collection of authorities dealing with what activities will constitute 'doing business'. It seems to be rather well established by all the authorities that 'doing business' in order to incur tax liability under statutes imposing taxes on persons 'doing business' in a State means that a foreign corporation must transact some substantial part of its ordinary business, and that it must be continuous in character as distinguished from a mere casual or occasional transaction; that a single or several transactions is not necessarily conclusive on the question of whether the corporation is 'doing business'. Some courts have held that the occasional sale of samples previously sent into a state, was not, alone, sufficient to amount to 'doing business'. The term 'doing business' has been held to mean more than the term 'transacting business'."
In the Redwine case where the facts disclosed that a foreign corporation had no office or place of business in Georgia, b11t did employ residents of Georgia as sales' representatives who solicited orders from wholesalers in Georgia, which orders were accepted or rejected by the company at its home office in New York, and all shipments were interstate commerce from outside Georgia, the Court held that the corporation was not "doing business" in this State so as to create a liability to pay income taxes to the State of Georgia under the terms of the Georgia Income Tax Act.
In the case of Suttles, Tax Collector, v. Owens-Illinois Glass Company, 206 Georgia, at page 849, it was held that where accounts receivable, were owned and held by a non-resident corporation arising out of sales of goods made to residents in this State on orders taken by agents of the sellers who maintained offices within this State, which orders expressly provided that they were subject to approval by the home office, that title to any goods sold thereunder would pass to the deliverer outside of the State of Georgia, that no business was conducted within this State, a verdict in favor of the owner seeking to enjoin the collection of tax on such accounts was demanded.

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PENSIONS AND RETIREMENTS-Peace Officers' Annuity and Benefit Fund
Security Officers at Georgia Tech are eligible to be participating members of the Peace Officers' Annuity and Benefit Fund.
June 6, 1961
Chancellor Harmon Caldwell Regents of the_ University System
We have for acknowledgment your recent letter in which you inquire whether Security Officers at the Georgia Institute of Technology are, in our opinion, eligible to be participating members of the Peace Officers' Annuity and Benefit Fund.
A peace officer, as defined in the Georgia Annotated Code Section 78-901, means any peace officer who is employed by the State of Georgia or any political subdivision thereof, who is required by the terms of his employment as such peace officer, whether such employment exists by virtue of election or appointment, to give his full time to his job as such peace officer. As I understand it, the practicable status of the Security Officers at Georgia Tech fulfills the requirements of this definition. They are employed by a political subdivision of the State of Georgia. Their employment exists by virtue of appointment, and they give their full time to the job of being peace officers.
Nor does the fact that they are members of the Teachers' Retirement System prevent them from being eligible from membership in the Peace Officers' Annuity and Benefit Fund in view of the provisions of Section 78-920 of the Georgia Annotated Code, which is as follows:
"Membership not to bar participation in either retirement or annuity systems.-Nothing contained in this Chapter shall be construed so as to prevent any peace officer who is a member of the fund provided herein from belonging to any retirement or annuity or benefit system other than the one provided for in this Ohapter, if such peace officer is eligible to belong to such other system."
Recent cases decided by the Supreme Court of Georgia dealing with eligibility for membership in the Peace Officers Annuity and Benefit Fund of the State of Georgia, specifically the cases of the Board of Commissioners of Peace Officers' Annuity and Benefit Fund, et al. v. Clay, et al., in 214 Georgia, at page 70, and Vandiver, et al., Commissioners, v. Endicott, 215 Georgia, at page 250, may be distinguished in view of the fact that in the first case employees seeking to establish eligibility were primarily engaged as inspectors employed by the Public Service Commission, and in the second case the primary duties were the enforcement of the Georgia fire safety regulations.
In both cases the police powers of the employees involved were incidental and auxiliary to the primary purpose and function of their employment. In the Vandiver v. Endicott case the Court pointed out, "In general, it may be said that a peace officer is a person designated by public authority to keep the peace and arrest persons guilty or suspected of crime." As I understand the Act as it applies to the Security Officers at the Georgia Institute of Technology, the primary duties of their employment are to act as peace officers, acting under legal appointment from proper authorities.

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PENSIONS AND RETIREMENTS-Social Security
Discussion of Social Security contract between Employees Retirement System and county.
June 8, 1961
Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System
This will acknowledge your letter in which you request an opinion concerning the liability of Walker County with respect to reports and contributions on the clerk of the Ordinary of Walker County, as provided under your Social Security Agreement entered into with Walker County.
We agree with the contentions of the County Attorney for Walker County that "elective positions" are not covered in the agreement between the State of Georgia and Walker County, and we also affirm the principles set out in the Attorney General's opinion, written September 4, 1958, governing the common law rules with respect to employer and employee generally; however, under the terms of the Social Security Act and the provisions of the agreement executed between the State of Georgia and the Federal Government providing for certain named individuals working in Walker County, the definition of an "employee" under the Act and in the contract covers a "public official".
There is authority for the position that the clerk of an ordinary is a public official in every sense of the word. He performs. certain specified designated duties set out in the Code.
Under the terms of the contract between the State of Georgia and Walker County, Walker County assumes the responsibility of collecting whatever moneys are due and payable under the contract and remitting the same to the State Government for transfer to the Federal Government. The State Government is responsible and liable for contributions from employer and employee who are covered under this agreement as an employee, and in turn the county is responsible for the collecting of contributions and remission of funds to the State Government.
Regardless of the common law rules applicable to employment, power, control, and compensation, and even if it is assumed and admitted that the clerk of the ordinary is an employee of the ordinary, and the ordinary is primarily responsible and liable for contributions of the clerk and the matching funds to be paid by the employer, Walker County, under the terms of its contract with the Federal Government and with the State, and that Walker County had full knowledge of the employer and employee relationship between the ordinary and the clerk, but nevertheless agreed in their contract that they would be responsible and liable for the collection and remission of funds due by such an employee covered by the contract, and who came under the contract by its own terms and by the definition of an employee under the Social Security Act.
Therefore, regardless of whether the clerk is an employee of the ordinary or whether the clerk may be considered as an "elective' officer", with which position we do not agree, even though he is subservient to an elected officer, the ordinary, the county is still liable to the State and the State in turn to the Federal

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Government for the employer and employee contributions covering the clerk of the ordinary.
The county has by the terms of the contract agreed to be liable for these contributions in the case of the clerk, and it would seem that it should be up to them to pay the State the money that is due, and in turn collect it from the ordinary and the clerk of the ordinary.
The contract entered into between the State of Georgia Employees' Retirement System and Walker County included under section 1, subsection (a), "The term 'employee' means an employee as defined in Section 210 (k) (2) of the Social Security Act and shall include an officer or elected official of the Political Subdivision."
It further includes in section IV. "Contributions" as follows:
"(a) The Political Subdivision will pay into the Contribution Fund established by Act No. 295, 1951 Session of the General Assembly, with respect to wages as defined in Act No. 295, 1951 Session of the General Assembly, Section 2 (a), at such time or times as the State Agency may by regulation prescribe, contributions equivalent to the sum of the taxes which would be imposed by Section 1400 and 1410 of the Internal Revenue Code if the services covered by this plan and agreement constituted employment as defined in Section 1426 of such code.
"(b) The Political Subdivision agrees to appropriate from funds under its control in each and every year this contract shall be and remain in force, sufficient sums of money to insure the payment of the obligations of the Political Subdivision to the State Agency, including the Political Subdivision's share of administrative expense, imposed by this contract for the ensuing fiscal year. All such appropriated sums shall be covered into a revolving fund, to be created by the Political Subdivision, which shall be devoted exclusively to the payment of the obligations imposed under this contract as and when the same shall become due and payable, until all of such obligations shall have been satisfied in full. In lieu of an advanced deposit to secure the State Agency in case of default on the part of the political subdivisions, it is hereby understood and agreed to by the Political Subdivision that in case of delinquency in making reports and contributions when due, road funds due said Political Subdivision by the State Highway Department and the State Treasurer shall and will be withheld until such reports and contributions have been made to the State Agency, as provided for in Section 4 (f) of the State Social Security Enabling Act. (Emphasis Added)
"(c) The Political Subdivision agrees to impose upon each of its emp,loyees (and officers) as to se,rvices covered by this agreement, a contribution with respect to wages, not exceeding the amount of tax which would be imposed by Section 1400 of the Federal Insurance Contribution Act if such services constituted employment within the meaning of that Act, and to deduct the amount of such contribution from his wages as and when paid. Contributions so collected shall be paid into the Contribution Fund in the State Agency in partial discharge of the liability of the Political Subdivision under subsection (c) of Section 4 of Act No. 295, 1951 Session of the General Assembly. It is agreed and understood the failure of said political subdivision to deduct such contributions shall

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not relieve the employee nor the Political Subdivision of liability therefor.'' (Emphasis Added)
In a resolution adopted by the Commission of Roads and Revenue of Walker County on April 30, 1954, it is provided in Section 2:
"2. That there shall be withheld from any salary or compensation due any such officer or emp,loyee not excep,ted as aforesaid whose compensation qualifies him or her to participation therein the percentage of salary, wage, or compensation required to be withheld by said Act, whether such compensation be computed in case, quarters, subsistence, or in kind, and reserved in the treasury for quarterly remittance to the State Agency;" (Emphasis Added)
section 3:
"3. That there shall be appropriated from administrative, road, and pauper funds such amounts at such times as may be required by applicable State Laws or regulations for employers' contributions, administrative expenses, and such funds shall be paid over to the State Agency in accordance with regulations established by said Agency;" (Emphasis Added)
and section 5:
"5. That the Clerk of the Commissioner of Roads and Revenue is hereby designated the custodian of all sums withheld from the compensation of officers and employees and of the appropriated funds for the tax upon the County, and the Commissioner's Clerk is hereby made the withholding and reporting agent and charged with the duty of maintaining personnel records for the purposes of this resolution."
In substantiation of the proposition that the clerk of an ordinary is a public officer, the following authority is cited-Code Section 24-1802 of the Annotated Code of Georgia:
"Such appointed clerks may do all acts the ordinary could do, not judicial in their nature",
and Code Section 24-1804, which lists the duties which may be performed.
In the case of McDuffie v. Perkerson, 178 Ga. p. 230, it is stated:
"In this state it has been held that 'an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises functions concerning the public, assigned to him by law, is a public officer.'"
In the case of Bonner v. State of Georgia, 7 Ga. 473, where it is held that clerks of ordinaries are public officers.
Also we wish to cite Section 289 of the State OASI Administrators' Handbook:
"289. Deputies, Clerks, and Other Assistants Engaged by Public Officials.-Where deputies, clerks, or other assistants have been engaged by a public official to help perform the duties of the Public office a question is sometimes raised as to whether these assistants are employees

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of the State or political subdivision, or employees of the public official in whose work they assist. It is usually found in these situations that the public official is provided with either expressed or implied statutory authority to engage others to assist him in the performance of his duties; therefore the State or political subdivision, rather than the public official in his personal capacity, is the employer."
In summation we arrive at the following conclusions:
1. The clerk of the ordinary of Walker County, under common law, is an employee of the ordinary.
2. That for the purpose of social security coverage under the terms of the statutes, the agreement between the Social Security Agency, and the State Agency, the agreement between the State Employees Retirement System and Walker County, and the Resolution adopted by Walker County on April 30, 1954, the clerk of the ordinary is included for coverage under definition of an "employee" as including an officer of a political subdivision.
3. That the clerk of the ordinary under Georgia law is a public officer.
4. That under the terms of the agreement between Walker County and the State Employees' Retirement System, the county agrees to appropriate funds to insure the payment of the obligation of Walker County to the State Agency, and further Walker County agrees to "impose upon each of its employees and officers as to service covered by the agreement, a contribution with respect to wages, and Walker County agrees that the failure of the county to deduct such contributions shall not relieve Walker County nor the employee for liability therefor." The aforesaid agreement also contains the provisions that in the event of delinquency in making reports and contributions to the State Agency by the political subdivision for the State Highway Department and the State Treasurer funds shall be withheld until such reports and contributions have been made to the State Agency as provided for in Section 4 (f) of the State Social Security Enabling Act.
5. Walker County specifically by Resolution agreed to withhold from the salary or compensation due any officer or employee, the amount required to make the employee contribute under the Social Security contract and law.
6. Walker County agreed by the aforesaid Resolution that there shall be appropriated from administrative, road and pauper funds such amounts and at such times as may be required to make the employer's contributions and that the clerk of the Commissioner of Roads and Revenue shall deduct as the custodian for all funds withheld from compensation of employees and officers and appropriated by the county to make the county's contributions.
7. That under the provisions of the contract, it also is the obligation of Walker County to collect funds from the employee or the clerk of the ordinary and to match said funds from the county's contributions and remit the same to the State Agency, and having failed to do so, Walker County primarily is liable for the full amount and the employee is liable for the contributions that he is supposed to have made.
8. That if Walker County fails or refuses to remit the sums required for coverage of the clerk of the ordinary, and the employee fails and refuses to pay his contributions, the State Agency, the Employers' Retirement System, may obtain relief under Section (H) and (I) of the contract entered into with the

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Federal Security Administration under date of January 1, 1952, wherein it is specifically provided in Section (I) :
"(2) has determined that, by reason of its failure to collect such payment, the payment of contributions by the State under section (C) of this agreement with respect to services by employees in such coverage group or for such political subdivision or other local unit, would violate Section III, Article 7, paragraph V, of its constitution, shall notify the Administrator in writing of its inability to pay such contribution. Such notification shall contain a certification by the State that it has exhausted the means to collect the amount due but has failed to effect the collection thereof, and that' any obligation for payment of such contribution by the State would violate Section III, Article 7, paragraph V, of the State Constitution, and therefore cannot be paid. Upon the receipt of any such notification, the Administrator may exercise his rights under section 218 of the Social Security Act, as amended. . . ."
It is our suggestion that the Employees' Retirement System notify Walker County and the Clerk of the Ordinary of their respective liabilities, and that the Employees' Retirement System avail themselves of all remedies provided for by law and under the terms of the aforesaid contract between the Employees' Retirement System and Walker County, the Political Subdivision, and if, upon the exhaustion of said remedies by the State Agency, the payments required under the contract between Employees' Retirement System and Walker County are not effected, that the Employees' Retirement System seek the relief provided for under Section (I) of their contract with the Federal Security Administrators of Social Security.
PENSIONS AND RETIREMENTS-Teachers' Retirement System
Teachers' Retirement System may make a lump sum settlement in lieu of monthly benefits where the beneficiary desires such and all other factors are met.
October 7, 1960
Mr. G. E. Pittman, Executive Secretary-Treasurer Teachers' Retirement System
This is in reply to your letter requesting my opinion whether the Teachers' Retirement System can make a lump sum settlement in lieu of monthly benefits where a member dies in service, where there is a designated beneficiary, and specifically to review the case of Miss Grace Whaley, membership number 7330, wherein the beneficiary is demanding a refund of the member's contributions with interest and declining to accept a monthly benefit.
From your file on the above named deceased member, the following facts appear. Miss Grace Whaley was born on September 27, 1906, and died on September 4, 1960 while in the teaching service, with a total of 20 years of service (17

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years of membership service after July 1, 1943, and 3 years service prior to said date).
On March 4, 1954 Miss Grace Whaley executed Form 2-C "Designation of Primary Beneficiary Prior to Retirement" in favor of her sister, Miss Margaret Whaley, age 67, resident of Sparta, Georgia. This "Designation of Primary Beneficiary" was filed with the T'eachers' Retirement office on March 25, 1954. In the Form 2-C "Designation of Primary Beneficiary Prior to Retirement" the following appears:
"I, the undersigned, do hereby designate as my primary beneficiary (please designate only one primary beneficiary) Margaret Whaley who was born on March 6, 1894 and whose present address is Box 24, Sparta, Ga., and whose relationship to me is that of Sister, to whom I request and hereby authorize the Teachers' Retirement System to pay, in the event of my death prior to retirement, the total amount of accumulated contributions standing to my credit in the Annuity Savings Fund and/or other benefits that may be provided under the Act." (Emphasis here and to follow ours.)
Georgia Code Section 32-2905 (7) provides as follows:
"Return of contributions.-If a member ceases to be a teacher other than by death or by retirement under this retirement system, the amount of his contributions to this retirement system shall be payable to him upon request, with no interest credits thereon if he has less than five years of membership service or with three-quarters of the regular interest credited thereon to the time he ceases to be a member, if he has five or more years but less than 15 years of membership service, or with the full regular interest thereon to the time he ceases to be a member if he has 15 years or more membership service. If a member dies, the amount of his accumulated contributions, with interest credits thereon, a,coording to his length of service as in this subsection specified, shall be paid to the person, if any, nominated by him by written designation duly executed and filed with the Board of Trustees; otherwise, to the member's estate." (Emphasis added.)
Georgia Code Section 32-2901, under "Definitions" provides as follows:
"(12) 'Accumulated contributions' shall mean the sum of all the 1!llmounts deducted from the compensation of a member and credited to his individual account in the annuity savings fund, together with regular interest thereon, as provided in Section 32-2921, subsection (1).
"(15) 'Annuity' shall mean annual payments for life derived from the accumulated contributions of a member.
"(16) 'Pensions' shall mean annual payments for life derived from the contributions of the State or other employer.
"(17) 'Retirement allowance' shall mean the sum of the annuity and the P'ension, or any optional benefit payable in lieu thereof as provided in Section 32-2905, subsection (8). All retirement allowances shall be payable in equal monthly installments; except that the Board of Trustees may pay, in lieu of a retirement allowance of less than $10 per month, a lump sum equivalent actuarial value." (Emphasis added.)

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Under the definitions quoted above and in referring to Code Section 32-2905, subparagraph (7), the return of contributions referred to deals only with "amounts deducted from the compensation of a member and credited to his individual account in the annuity savings fund, together with regular interest thereon." There is no reference made to any funds to be paid from the pension fund which is made up of payments derived from contributions of the State, nor does the "Return of contributions" Section have any reference to a retirement allowance which may be paid and as provided in other Sections of the Teachers' Retirement System Act, and which is made up of the sum of the annuity and p'ension benefits payable under the terms of the Act.
The original Teachers' Retirement Act of 1943 provided for the following types of benefits and allowances:
1. Service Retirement Benefit. (a) Allowance on Service Retirement.
2. Disability Retirement Benefit. (a) Allowance on Disability Retirement.
3. Return of Contributions.
4. Optional Allowances. - (1) through (4).
Under the law as originally written, if a member died in service, his beneficiary or estate was entitled to "the amount of his accumulated contributions" with interest. There was no alternative method of payment to a member's beneficiary or estate. Payment under item 3. above - "Return of Contributions" was the only provision for payment of a benefit where a member died in service and that Section of the law, codified in the Georgia Code as Section 32-2905 (7), and as set out above in full, has not been repealed nor amended since its original passage.
However, since the original law of 1943 was adopted, the Sections dealing with Disability Retirement Benefits have been amended so as to make additional and alternative benefits or allowances available where a member dies in service. The provisions of the 1943 law dealing with Disability Retirement Benefits and the 1953 Amendment thereto thereto are set out herewith:
THE 1943 LAWS ESTABLISHING TEACHERS' RETIREMENT ACT ON PAGE 648-
"Disability Retirement Benefit. (3) Any member in service may be retired by the Board of Trustees on a disability retirement allowance upon written application to the Board of Trustees made by such member or by his employer, not less than thirty days nor more than ninety days subsequent to the execution and filing thereof, provided the Medical Board, after a medical examination of such membecr, shall certify that he is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent and that he should be retired.
"Allowance on Disability Retirement. (4) Upon disability retirement a member shall receive a service retirement allowance if he has attained age sixty, otherwise he shall receive a disability retirement allowance which consists of:

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"(a) An annuity which shall be the actuarial equivalent of his accumulated contributions at the time of his retirement.
"(b) A pension equal to seventy-five per centum of the pension that would have been payable upon service retirement at age sixty had he continued in service to age sixty without further change in compensation."
THE 1953 LAWS, JANUARY-FEBRUARY SESSION, ON PAGES 374 AND 375-
"Section 1. An Act entitled 'An Act to establish a retirement system for aged and incapacitated teachers in the State public schools; and other State supported schools; to determine membership and conditions of membership in said system; to provide for a board of trustees of said system and for the administration of its affairs; to provide for the management of the funds of said system; to provide a method of financing said system; to repeal conflicting laws; and for other purposes,' approved March 19, 1943 (Ga. Laws 1943, p. 640), as amended, particularly as amended by an Act approved February 16, 1950 (Ga. Laws 1950, p. 261), is hereby amended by striking the provis1ions of Subsections (3) and (4) of Section 5, relating to disability retirement, and inserting in lieu thereof new Subsections (3) and (4) to read as follows:
"(3) (a) Any member in service, upon death, shall be entitled to an allowance in accordance with the provisions set forth in Subsection (4) of this section.
"(b) Any member in service may be retired by the Board of Trustees on a disability allowance upon written application to the Board of Trustees made by such member or his employer, not less than thirty days or more than ninety days, subsequent to the execution and filing thereof, provided such member has fifteen or more years of (creditable)* service, and provided the medical board, after a medical examination of such member, shall certify that he is mentally or physically incapacitated for further performance of duty, and that such incapacity is likely to be permanent and that he should be retired.
" (4) In accordance with Subsection (3) of this Section, upon disability retirement, or death, a member shall receive the equivalent of a service retirement allowance if he has attained age sixty (or has 35 years of service)**, otherwise he shall receive a disability allowance, or death allowance, which shall consist of:
"(a) Not less than fifteen years (creditable)* service, seventy-five per centum of the service retirement allowance which would have been payable upon service to age sixty without further change in compensation.
"(b) Not less than twenty-two years (creditable)* service, the service retirement allowance which would have been payable upon service retirement at age sixty had he continued in service to age sixty without further change in compensation.
" (c) Not less than thi~ty years (creditable)* service, seventy-five per centum of the service retirement allowance which would have been

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payable upon service retirement at age sixty-five had he continued in service without further change in compensation.
"(d) In the application of the above relating to death allowances, computation shall be made on the same basis as though Option 2 as provided in Subsection (8) of this Section had been in effect, provided, upon death of the member there is a named living beneficiary, otherwise the total amount of the member's contributions to the date of his death shall be payable to his estate."
* Deleted by Amendment, Ga. Law 1953 Nov.-Dec. Sess., p. 114. ** Added by Amendment, Ga. Laws 1953 Nov.-Dec. Sess., p. 114.
This last amendment is codified in Code Section 32-2905 (3), (4).
Georgia Code Section 32-2905, paragraphs (3) and (4) specifically refer to service retirement allowances payable in equal monthly installments, and the various modes of computing said allowances, as likewise does Code Section 32-2905 (4) (d), and also Code Section 32-2905 (8), Option 2.
All of the Sections immediately above referred to deal with retirement allowances and modes of computation, and therefore, under the "Definitions" would include monthly benefits payable from both the annuity and pensions funds.
These Sections immediately above referred to, in my opinion, do not affect the provisions of Code Section 32-2905 (7), which deals only with the amount of accumulated contributions, to be paid only from the annuity fund, provided the member has nominated by written designation a person to receive "the amount of his accumulated contributions". There is no provision in Code Section 32-2905 (7) for the payment of any monthly retirement allowance, and the "designation of beneficiary prior to retirement" executed by Miss Grace Whaley on March 4, 1954 on forms provided by the Teachers' Retirement System of Georgia refers to payment, in the event of death prior to retirement, of "the total amount of accumulated contributions standing to my credit in the annuity savings fund".
Therefore, it is my opinion that Miss Grace Whaley complied with the provisions of law, and that her sister, the beneficiary designated on State form 2-C provided therefor, is entitled to receive "the total amount of the accumulated contributions standing to the credit of Miss Grace Whaley in the annuity savings fund with interest credits thereon.
It is my opinion that this additional and alternative benefit death allowance is not exclusive nor does it repeal the Section of the law providing for Return of Contributions.
Code Section 32-2905 (3) says "any member in service, upon death shall be entitled to an allowance" - Provided upon death of the member there is a named living beneficiary; otherwise the total amount of the member's contributions shall be payable to his estate". In my opinion this means a beneficiary named to receive the death allowance provided for under this Code Section which refers to a percentage of a service retirement allowance and not a beneficiary named to receive the amount of accumulated contributions with interest as provided for in the Code Section dealing specifically with Return of Contributions.
If no beneficiary is named under either of the two above Code Sections, then the total amount of member's contributions shall, as provided in both Sections, under either alternative, go to the member's estate.

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PENSIONS AND RETIREMENTS-Teachers' Retirement System (Unofficial)

Effect of House Bill 560 of 1961 Session of General Assembly discussed.

September 20, 1961

Dr. Clarke Olney

I wish to acknowledge receipt of your letter in which you request a clarification of one of the provisions of House Bill 560 adopted at the 1961 Session of the General Assembly, amending the Teachers' Retirement Act, and in which you inquire specifically with reference to the construction of Section 2, subsection (2), (b), which provides:

"An annual pension which, together with the annuity provided above, shall provide a total allowance equal to 1-%, o/o of his average compensation over the 5 consecutive years of creditable service producing the highest such average, multiplied by the number of his years of creditable service, not to exceed 40."

You inquire specifically as to the effect, if any, of this consecutive requirement when a teacher is granted an official leave of absence in order to accept a grant to teach in a foreign country, and if such leave were granted during a professor's last years at the University, would the consecutiveness of these years be considered broken or would the year on leave merely not be counted?

We caU your attention to a provision of law creating the Teachers' Retirement System, set out in Georgia Annotated Code, Section 32-2903(4):

"Membership ... The membership of any member shall terminate

if he dies, retires under the Retirement System, or withdraws his con-

tributions, or if in a period of three consecutive years after becoming

a member he renders less than one year of service.

"

Construing these two Code Sections together, it is my opmwn that if a professor is granted an official leave of absence the consecutiveness required by the 1961 Amendent to the 'l'eachers' Retirement Law as far as determining years of creditable service, is not broken, provided the professor complies with the membership provisions of the law and teaches at least one year in a period of three consecutive years. In other words, as long as the professor teaches one year in three consecutive years, the other two years of leave of absence would merely not be counted in the determination of the "5 consecutive years of creditable service producing the highest such average."

PENSIONS AND RETIREMENTS-Teachers' Retirement System (Unoffid~l)
An Amendment adopted in 1961 setting up a new formula for retirement payments does not change the provisions on restoration of beneficiaries to membership.
June 20, 1961 Miss Johngeline V. Jewett
Answering your letter concerning Teachers' Retirement Benefits, it is my

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understanding that the Board of Trustees of the Teachers' Retirement System has already handed down its ruling, and has notified you of its nature.
For your information, the 1961 Amendment to the Teachers' Retirement Law, which sets up the new formula for determining retirement payments, does not repeal the provisions of Code Section 32-2905, subsection 6, which reads as follows:
"Restoration of beneficiaries to membership.-If a beneficiary is restored to service and receives annual compensation of not less than his average, final compensation, his retirement allowance shall cease, and he shall again become a member of the Retirement System and contribute thereafter. Anything in this Chapter to the contra.ry notwithstanding, any prior service certificate on the basis of which his creditable service was computed at the time of his retirement shall be restored to full force and effect, and upon his subsequent retirement he shall be credited with all his service as a member, but should he be restored to service on or after the attainment of age 50 his pension upon subsequent retirement shall not exceed the sum of the pension which he was receiving immediately prior to his last restoration to membership and the pension payable in respect to his service since his last restoration to membership."
PENSIONS AND RETIREMENTS-Teachers' Retirement System (Unofficial)
A teacher may not be a member of both the State and a local retirement system.
January 7, 1960
Mrs. Myrtle Kenyon Broadaway
Thank you for your letter concerning your retirement from the Rome Retirement System.
I am enclosing two copies of House Bill No. 215 which was passed by the General Assembly in its 1959 Session and became Act No. 364. This will enable you to have a copy before you and let anyone with whom you may discuss the matter read a copy at the same time.
On the page numbered 320, I have underscored a prov1s10n that has been in the State Teachers' Retirement Act for a considerable time. It provides that when any teacher is employed by a superintendent, school system, or any other school employer that operates its own local retirement fund that teacher ceases to be a member of the State Teachers' Retirement System. As you have stated in your letter that all of your teaching experience except one year out of the thirty-five years you have been a teacher has been in Floyd County, Georgia, and you retired under the Rome Retirement System, the amount of the annuity you can get in retirement has to be determined by the laws concerning the Rome Retirement System. If you were a member of the State Retirement System and had retired from the State Retirement System, then you will see from the pro-

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VISIOns in the attached Act No. 364 that the matter could be handled even though you had a break of more than four years, if you complied with the provisions of the Act. However, this Act has nothing to do with the Rome Retirement System under which you retired.
If the Rome Retirement System finds that under its Act it cannot give you credit for some prior service, then it is a question as to whether the members of the General Assembly from the Rome area are willing to get the Rome Retirement System Law amended to provide for that credit. I wish there were some way in which we could help you, but as you can see, the Rome Retirement System must decide what credit it can give you under the present Rome Retirement Law; and the local members of the General Assembly must decide what changes they are willing to propose in the Rome Retirement Law.
POST MORTEM EXAMINATIONS-Blood Tests
The surviving spouse or next of kin has right to custody of a corpse as it was when life left it, and thus the Department of Public Safety is without authority to request a blood test of a corpse without consent of the next of kin.
May 25, 1960
Colonel William P. Trotter Department of Public Safety
This office is in receipt of your letter in which you request my official opinion whether the Department of Public Safety has authority to request an undertaker, physician, or hospital technician to remove blood from the body of a deceased driver of a motor vehicle in order to ascertain whether the driver was under the influence of alcohol at the time the accident occurred in which he was killed.
The general rule of Georgia law is that, although there is no property right in the body of a deceased person, nevertheless, the surviving spouse, or next of kin, of whoever is charged with the duty of burial in the absence of relations, has the legal right to custody of the body until it is buried. In Rushing v. Medical College of Georgia, 1 Georgia Appeals 468, it was held that this right to custody of the body included the right to the body of the deceased as it was when life left it, unmutilated or untouched by others without the consent of those having the right of custody. In Rushing v. Medical College of Georgia, 4 Georgia Appeals 823, this was clarified to mean, in effect, that the body of a deceased person should remain untouched except to the extent that a valid exercise of the police power of the State might require it to be examined.
Thus, except where a statute which embodies an exercise of the police power of the State or a municipal ordinance enacted in pursuance of statutory authority provides otherwise, the touching, handling, or examination of the body of a deceased person without the consent of the surviving spouse, or other party charged with the duty of burial, constitutes a violation of the legal right of that party to the body of the deceased as it existed when life departed.

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After an examination of the laws of this State, I find no statute which would permit the Department of Public Safety to request that blood be removed from the body of a deceased motor vehicle driver in order to ascertain if he were intoxicated at the time he was killed in the absence of the consent of the person having custody of the body. An exception to this general rule exists in the case of a driver who should be found alive after a motor vehicle accident and who demands or consents to a blood test but expires before the test can be made; the subject having given his consent to the taking of his blood for the purpose of making a test in pursuance of Section 68-1625, Georgia Code Annotated, it would seem that his survivors would have no legal right to object. Of course, Section 68-1625, Georgia Code Annotated, provides that blood tests may be given and, under certain circumstances, must be given those arrested for driving under the influence of alcohol in order to ascertain if such persons are in fact under the influence of intoxicants. However, except with regard to the exceptional situation explained above, this Code Section would obviously not authorize the taking of blood from a deceased person without the consent of the party having custody of the body because it refers only to living people.
It is, therefore, my opinion that the Department of Public Safety is without authority to request an undertaker, physician, or hospital technician to remove blood from the body of a deceased driver of a motor vehicle in order to ascertain whether he was intoxicated at the time the accident occurred in which he was killed in the absence of the consent of the party having custody of the body unless prior to his death the driver had consented to such a test being made.
POST MORTEM EXAMINATIONS-Blood Tests
A medical examiner has no right to take a blood sample from the body of a deceased person to ascertain whether or not such person was under the influence of alcohol or drugs solely upon the request of a member of the Georgia State Patrol.
July 20, 1960
Colonel William P. Trotter, Director Department of Public Safety
This will acknowledge receipt of your letter requesting my opinion on the question:
"Does a duly authorized and appointed medical examiner of this State have the right upon request by a member of the Georgia State Patrol to take a blood sample .from the body of a deceased person to ascertain whether or not such person was under the influence of alcohol or drugs at the time of a fatal accident?"
There can be no doubt that if a medical examiner is going to examine a body in pursuance of a police power, he must do so in pursuance of a statute. It logically follows that a medical examiner has no authority outside that given him by a statute. The statute which authorizes the medical examiner to examine bodies and in particular to perform post-mortem examinations and autopsies is

344
the "Georgia Post-Mortem Act" approved March 11, 1953, (Georgia Laws 1953, January-February Session, page 602) and amended by Georgia Laws 1960, approved March 17, 1960, page 1009. The provisions of this Act relevant to the instant question are Sections 4, Subparagraph (1) and 6 which provide as follows:
"Section 4. Said Act is further amended by striking Section 5 and in lieu thereof inserting the following:
"'Coroners shall require post-mortem examination and/or autopsy to be performed and inquest in their respective counties as follows:
"' (1) When any person shall die as the result of violence, or suicide, or casualty, or suddenly when in apparent health, or when unattended by a physician, or within 24 hours after admission to the hospital without having regained consciousness, or in any suspicious or unusual manner; provided, however, no inquest shall be held under the following circumstances:' "
"Section 6. Said Act is further amended by striking Section 9 and in lieu thereof inserting the following:
"'Upon receipt of such notice, the coroner shall immediately take charge of the dead body and it shall be his duty to summon a medical examiner and proper peace officer. They shall together make inquiries regarding the cause and manner of death, and the medical examiner shall perform a post-mortem examination and/or autopsy, reducing his findings to writing and filing them with the Director of the State Crime Laboratory upon report forms to be furnished by said Director. The medical examiner, may, at any time when he deems it necessary, have the body embalmed for preservation prior to release of the body to the next of kin. Such expense of embalming shall be paid in the manner hereinafter provided for payment of burial expenses. The peace officer in charge present at such investigation, or if no officer be present, then the coroner shall, in the absence of the next of kin of the deceased person, take possession of all property of value found on such person, make an exact inventory thereof on his report and surrender the same to the person entitled to its custody or possession. The coroner, medical examiner and/or peace officer shall take possession of any objects or articles which, in his opinion, may be helpful in establishing the cause of death, and in cooperation with the Crime Laboratory make such tests, and examinations of said objects as may be necessary, or useful in determining the cause of death. In the event that a criminal prosecution arises, all such objects and articles, together with reports of any examinations made upon them, shall be retained in the custody of the Director of the State Crime Laboratory until their production as evidence is required by the prosecuting officer or upon written order of the peace officer in charge or court having proper jurisdiction.' "
It can clearly be seen from the preceding Sections of the Act that upon discovering a body under suspicious or unusual circumstances as authorized in the statute, the coroner must first be notified and then it becomes his duty to call the medical examiner. Therefore, it logically follows that your question must be answered in the negative.

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POST MORTEM EXAMINATIONS-Death Certificate (Unofficial)
Duties of coroner when death results from an automobile collision and meaning of "casualty" discussed.

Honorable Thurman Roberts

July 13, 1960

You ask whether death resulting from automobile collisions are "coroner's cases" and, further, whether the coroner should sign the death certificate in such cases and receive the fee therefor. In addition, you request advice as to the meaning of the word "casualty" as found in Section 21-205, Georgia Code Annotated, as well as the language "or when unattended by a physician" in the same Code Section.

In answer to your first question, let me say that it seems clear that no inquest is required to be held in any case in which there is sufficient evidence to disclose the cause of death. Section 21-205 (1), Georgia Code Annotated, although requiring that inquests be held generally when any person shall die as a result of violence, suicide, casualty, or when unattended by a physician, etc., nevertheless contains a proviso which reads as follows:

"Provided, a post-mortem examination shall not be required in any such instance where there is sufficient evidence or medical history sufficient to disclose the cause of death."

The proviso quoted above is apparently applicable to inquests as well as postmortem examinations, thus rendering inquests unnecessary in any case in which there is sufficient evidence or medical history to disclose the cause of death. It would, therefore, seem that in the ordinary case of a death resulting from an automobile accident no inquest would be required to be held whether or not the death occurred with a physician in attendance because there is sufficient evidence to indicate the cause of death. In this sense, then, deaths resulting from automobile accidents are not "coroner's cases".

In response to your question with regard to whether or not you should sign the death certificate of persons killed in automobile accidents and receive the fees in such cases, I find that the law of this State apparently makes provisions for coroners to sign death certificates, other than those arising from fetal death, in only two instances. Section 88-1116 (3), Georgia Code Annotated, stipulates that where any death shall occur from natural causes without the attendance of a physician and there is no city or county health officer or physician member from the county board of health, the local registrar shall notify the coronor whose duty it shall be to complete the medical certification and sign the death certificate. Section 88-1116 (4), Georgia Code Annotated, provides that where a death occurs seemingly without the attendance of a physician and the health officer, physician member of the county board of health, or local registrar has cause to believe that the death was caused by an unlawful act or neglect, the death shall be reported to the coroner who shall complete the medical certification and impliedly sign the death certificate. Section 88-1116 (3), Georgia Code Annotated, is obviously inapplicable to the case of a violent death resulting from an automobile accident. Section 88-1116 (4), Georgia Code Annotated, might be considered applicable here because in at least a number of instances in which death is caused by an automobile accident, the death results from an unlawful

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act committed by one or both of the drivers involved. Thus, it would seem possible that where a death is caused by an automobile accident and occurs without the attendance of a physician, the coroner might be authorized to sign the death certificate even though as previously pointed out an inquest would not be required because there is sufficient evidence to disclose the cause of death. However, it must be emphasized that, in any case, the coroner would not be entitled to a fee for signing a death certificate. Section 21-105, which sets out the fees which a coroner shall receive for his official acts, prescribes only that a coroner shall receive fees as stipulated for summoning an inquest and returning an inquisition and for burial expenses.
In answer to your inquiry as to the meaning of "casualty" as found in Section 21-205, Georgia Code Annotated, it seems clear that the word has its usual legal definition which is death by misfortune or accident. The phrase "death without the attendance of a physician" or its equivalent as used in Sections 21-205, and 88-1116, Georgia Code Annotated, apparently refers to those deaths which occur while the deceased was not under the care of a physician for treatment of the cause of his death.
POST MORTEM EXAMINATIONS-F'e:es (Unofficial)
Fee of Sheriff for performing duties required of coroner under PostMortem Examinations Act discussed.
April 27, 1960
Honorable G. Marvin Meadows
I am pleased to acknowledge your letter relative to the fee for summoning a jury for a coroner's inquest, and to advise that I do not find such an item in the fee schedule set forth in the Code for Sheriffs, nor do I find any fee set forth in the Acts of 1953, page 602, which is known as the "Post-Mortem Examination Act", which is codified in Chapter 21-2 of the Annotated Code of Georgia.
Prior to the adoption of the "Post-Mortem Act" the precept was directed to any constable of the county requiring him to summon a jury of inquest, and when the "Post-Mortem Act" was adopted the sheriff was added along with the constable as now codified in Code Section 21-214, but apparently in the preparation of this Act no consideration was given for compensation of the sheriff for the performing of this duty.
In the case of Abner P. Robertson v. John D. Smith, Sheriff, 37 Ga. 604, and Supreme Court of Georgia held:
"(1) The office of sheriff is one of great responsibility; more so, perhaps, than that of any other in the State; especially so, in comparison with the amount of compensation received. The sheriff gives a heavy bond, with sureties, for the faithful performance of his duties, and takes an oath that he will faithfully execute, and true returns make, of all processes placed in his hands, and, in all things, well and truly, and without malice or partiality, perform the duties of his office. Rev. Code, sec. 384 - 5. Among the duties of his office, is the execution and return

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of processes placed in his hands, 'with due diligence', (Code, sec. 397, p. 1); and, on his failing to do so, 'he shall be fined for a contempt'. Rev. Code, sec. 401, 3873; 'and may be fined, imprisoned, or removed from office'. Rev. Code, sec. 3881. These are the stringent provisions of the law, in relation to this officer of the Court, and it is the duty of the Court to see that this important officer faithfully performs his trusts.
"(2) But, while the Court will see to it that its officer is held to strict fidelity, it will also see that a faithful public servant is protected in all his rights. By law, he is entitled to certain costs - very inadequate, in many cases, for the labor performed, and responsibilities incurred - generally prescribed; and when the law omits to P'rescribe the amount, he is entitled to a reasonable comp,ensation to be mwarded by the Court. . . . " (Emphasis added).
Section 24-820 of the Code of Georgia provides that a constable shall be entitled to a fee of "summoning jury on inquest ... $2.00." It is my unofficial view that a sheriff would be entitled to the same fee as a constable for performing the same duties under the above cited decision of the Supreme Court of Georgia.

PRACTICE AND PROCEDURE-Confession of Judgment (Unofficial)

Law pertaining to confessions of judgment cited.

Mr. Carl D. Hanley

April 24, 1961

This is to acknowledge receipt of your letter of recent date which reads

as follows: "Does your State forbid the use of a "confession of judgment" note

that attorneys. present to a court for a debtor wage attachment? If the answer

is yes, would you please cite the relevant Code Section?"



II). reply, I call your attention to Code Section 110-601, Annotated Code of Georgia, which reads as follows:
"110-601. Where and when allowed.-No confession of judgment shall be entered up except in the county where the defendant resided at the commencement of the action, unless expressly provided for by law, nor unless the suit has been regularly filed and docketed as in other cases. (Act 1799, Cobb, 495.)"

Also Code Section 110-602 which reads as follows:
"110-602. Judge may confess judgment in his own court.- A Judge of the Superior Court or Justice of the Peace may confess judgment in his own court."

Also Code Section 110-603 which reads as follows:
"110-603. Right of confession and appeaL-Either party has a right to confess judgment without the consent of his adversary, and to appeal from such confession without reserving the right so to do, in cases where an appeal is allowed by law."

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PRACTICE AND PROCEDURE-Garnishment
All wages above the statuatory exemption are subject to garnishment and withholding tax should be deducted from the exempted portion.
December 12, 1961 Honorable Jim L. Gillis, Sr. Chairman, State Highway Board
In your letter you inquire whether it is correct practice in answering garnishments for the Treasurer of the State Highway Department to deduct withholding tax and other payments from the exempted wages of employees.
Sections 46-208 of the Georgia Code, as amended by Georgia Laws 1958, pp. 335, 336, provides:
"All persons shall be exempt from the process and liabilities of garnishment on $3 per day of their daily, weekly or monthly wages and on 50 per cent. of the excess thereof, whether in the hands of their employers or others. All wages above the exemption herein provided for shall be subject to garnishment."
You will note that the first sentence in this Section provides for the exemption and the amount thereof. The second sentence specifically provides that all wages above the amount of exemption shall be subject to garnishment.
It follows that the practice referred to in your letter is correct.
PRACTICE AND PROCEDURE-Garnishment (Unofficial)
Garnishment explained.
April 27, 1960
Honorable John M. Blankenship
I am pleased to acknowledge your letter and to advise that a garnishment is a process directed to a person, firm, or corporation requiring such person, firm, or corporation to make a return to the Justice Court of what money or property of the person named in the garnishment such person, firm, or corporation has in his or its possession. Therefore, a person receiving a summons of garnishment has a legal right to answer said garnishment and set forth his position in the matter.
The fact than an employer discharged a person because he has been garnisheed would not relieve the person, firm, or corporation from making his answer to the garnishment setting forth just what money or property that said person, firm, or corporation had in his or its possession on the date that said garnishment was served.

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PRACTICE AND PROCEDURE-Garnishment (Unofficial)
State employees are not subject to garnishment without the assent of the appropriate State official.
October 31, 1961
Mr. J. L. Wallace
We are in receipt of your letter in which you request information concerning the garnishment of employees at the Battey State Hospital and the Battey State Farm.
Since Battey State Hospital is a State institution, its employes are, of course, State employees.
Under Georgia Code Section 46-805 no judgment in a garnishment proceeding may be entered against any State employee without the assent of the appropriate State official.
PRISONS AND PRISONERS-Convict Labor
The use of prison labor to gratuitously clear and maintain church grounds and cemeteries violates Constitutional limitations on separation of Church and State.
April 20, 1960
Honorable Jack M. Forrester Director, State Board of Corrections
This will acknowledge receipt of your letter requesting my opmwn concerning the legality of the use of prison labor in clearing off and maintaining church grounds and cemeteries adjacent thereto.
Your letter states that the question arises because of a reported incident where prisoners were used in clearing off church grounds. So far as you have been able to ascertain, neither the county nor State received any compensation from the church for these services. Also, no public funds, State or county, were directly expended in connection with this work, the State's only involvement being the furnishing of prison labor.
The legality vel non of the use of prison labor on church property depends upon two legal questions: (1) Whether such practice violates any statute defining the permissible uses of prison labor, or (2) Whether it contravenes the State and Federal Constitutional Provisions relating to separation of Church and State.
With respect to the first question, which would relate to any private property, church or otherwise, the law governing prison labor is Section 22 of the Act of 1956 (Ga. Laws 1956 Vol. I, pp. 161, 177) Codified as Sec. 77-318, which insofar as relevant to the instant problem, provides in paragraph (a) as follows:
"(a) The State Board of Corrections shall provide rules and regulations governing the hiring out of prisoners by any penal institution

350
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."
Paragraph (c) declares violations of the Section or regulations promulgated thereunder to be misdemeanors.
It is to be noted that the above Section is self-executing in part, and that it also authorizes the Board of Corrections to promulgate regulations further implementing the policies therein declared.
Insofar as the Section is self-executing, I am of the opinion that it does not apply to the present problem. As it affects prison labor, the Section refers to the "hiring out" of prisoners to private persons, and the use of prison labor in a "business conducted for profit." An indispensable element of "hiring" is the rendering of services for compensation or something in return-a quid pro quo. See Words and Phrases, Vol. 19, p. 484, et seq. As to the language which refers to a "business conducted for profit", you advise that neither the State nor the county has or will receive any compensation for the services rendered. Moreover, Section 22 is penal in nature, in that any violation thereof is punishable as a misdemeanor. See Sec. 22(d). Penal laws are to be strictly construed, Crosby v. State, 121 Ga. 198; Waldroup, v. State, 198 Ga. 144, are never extended beyond their precise and plain provisions, State v. Schafer, 82 Ga. App. 753; Thompson v. Watson,. 186 Ga. 396, 405-6, and any uncertainty should be resolved by strict interpretation in favor of the citizen's liberty. Colson v. Aderhold, 5 F. Supp. 111, aff'd 73 F2d 191; March.ese v. U. S., 126 F2d 671. This interpretation also comports with the legislative history of the prison laws in Georgia. It should be recalled that from 1866 until 1908, the leasing of convicts to private corporations and individuals was legal in Georgia. See Ga. Laws 1866, p. 155; Ga. Laws 1874, p. 26; Ga. Laws 1876, p. 40. Under this system, the detention, housing and feeding of prisoners were entrusted to private hands. This practice gave rise to many abuses, and public agitation resulted in its abolition in 1908. (Ga. Laws 1908, p. 1119). However, the evil of the old law sought to be remedied by the new, which must be considered as a guide to interpretation, Code Sec. 102 -102(9), concerned the evils inherent in entrusting the detention and care of prisoners to private individuals whose sole concern was the exploiting of cheap labor for the sake of personal gain. See A. E. Taylor, "The Origin and Development of the Convict Lease System in Georgia", Ga. Historical Quarterly, Vol. 26, pp. 113-128 (1942), and Taylor, "The Abolition of the Convict Lease System in Georgia", Id., p. 273287 (1942).
In the present case, the work was done by prisoners under the supervision and custody of prison personnel. Under no interpretation was there a "hiring" of prisoners in the terms of the statute, but simply the doing of a job by the public works camp officials with prison labor. Of course, had a charge been made for these services, there undoubtedly would have been a violation of so much of the statute as refers to the use of prison labor in a "business conducted for profit."

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Therefore, I conclude that there has been no violation of Section 22 as written. To the extent that the Board is authorized to implement the Section by regulation, I am of the opinion that no regulation which has been called to my attention prohibits the practice in question. There is language in the published regulations of the Board which would indicate that the Board interprets the law itself as prohibiting the use of prison labor on any private property (See Laws and Regulations Governing the Georgia Penal System, p. 37), but this provision is merely a statement of interpretation, and is not phrased in the form of a regulation or command. I consider it well within the authority of the Board to establish such a prohibitive regulation, but to the contrary, your letter calls my attention to a recent Board rule expressly purporting to authorize it.
The question as to the separation of Church and State requirement, however, is considerably more difficult.
The Constitution of Georgia, as a part of the Bill of Rights, declares in Art. I, Sec. I, Par. XIV (Sec. 2-114), that:
"No money shall ever be taken from the public Treasury, directly, or indirectly, in aid of any church, sect, or denomination of religionists, or of any sectarian institution."
Also, the First Amendment to the Constitution of the United States declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ," and while originally this Section was construed as imposing a limitation only upon the Federal Congress, Permoli v. First Municipality, 3 How. 589, 11L. Ed. 739 (U. S. Supreme Court, 1845), it has become firmly established that freedom of religion constitutes one of those "fundamental principles of liberty and justice" embraced within the concept of substantive due process and hence guaranteed against State encroachment by the Fourteenth Amendment to the Constitution of the United States. Cantwell v. Connecticut,. 310 U. S. 296, 84 L. Ed. 1213 (1940).
The State Constitutional Provision has received only meager judicial interpretation. The case of Mayor and Aldermen of Savannah v. Richter, 160 Ga. 177, held void as violative of the provision a municipal ordinance relieving churches and other sectarian institutions of the obligation to pay street assessments levied on other private property. Bennett v. City of LaGrange, 153 Ga. 428, 22 ALR 1312, held the provision applicable to counties and municipalities as well as to the State itself, and being so applicable, it was held to invalidate a purported contract between the Salvation Army and the City of LaGrange whereby the city was to pay $75.00 per month to the former for its agreement to assume specified charity work in the City. Trustees of First Methodist Church v. Atlanta, 76 Ga. 181 (3a), held that the clause was not in conflict with the provision authorizing the Legislature to exempt from taxation all places of religious worship.
It is to be noted that the State provision is far more explicit than the Federal, as the State Constitution deals specifically with State-Aid to churches, while the Federal does so only inferentially. Moreover, the State provision refers to money being granted "directly or indirectly", which indicates on its face the broadest type of proscription. That the State provision quoted above was intended to have a stronger application than the Federal is indicated by the fact that the State Constitution contains in the immediately preceding paragraph, Sec. 2-112, a more general religious freedom guaranty which declares:

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"All men have the natural and inalienable right to worship l.vd, each according to the dictates of his own conscience, and no human authority should, in any case, control or interfere with such right of conscience."
There are two schools of thought reflected in our constitutional history concerning the scope of the First Amendment's limitation on "establishment of religion." The more conservative view espoused by Story held that the clause merely prohibited the Federal Government from setting up a State religion, and came to be referred to as the "no preference" doctrine.
On the other hand, President Jefferson declared in a letter of 1802 to a group of Baptists in Danbury, Connecticut, that it was the purpose of the Amendment to build "a wall of separation between Church and State." See Constitution of the United States,, Analysis and Interpretation, pp. 758-760. This "wall of separation" view was officially adopted by the United States Supreme Court in 1947 in the case of Everson v. Board of Education, 330 U. S. 91 L. Ed. 711, upholding, by a divided court, the making of transportation grants to pupils attending parochial schools. The distinguishing feature of the case, however, was the fact that the grant was made to the pupil rather than to the school, and language was used which is pertinent to the present inquiry, viz.:
"The establishment of religion clause of the First Amendment means at least this: Neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a State nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and State."
One year later it was expressly held that the Amendment was intended not only to prevent governmental preference for one religion over another, but also to prohibit an "impartial assistance of all religions". McCollum v. Board of Education, 333 U. S. 203, 211, 92 L. Ed. 648 (1948).
Also relevant to the instant problem are the Court's decisions in the "released time" cases. In McCollum v. Board of Education, sup,ra, an Illinois arrangement whereby religious instruction was given to students on public school property as a part of the curriculum to those requesting it was held unconstitutional. In Zorach, v. Clauson, 343 U. S. 306, 96 L. Ed. 954 (1952), however, where public property was not used in the giving of the religious instruction and the aid or assistance of the State was not otherwise involved, a released time arrangement was upheld, the McCollum case being distinguished on the basis of its entanglement with school property.
It might be said by some that the Supreme Court has retreated somewhat from its insistence on absolute separation. A 1956 decision declining to review for

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want of a substantial federal question a decision of the California Supreme Court upholding tax exemptions for non-profit sectarian schools has been so construed. See Heisey v. County of Alameda, 352 U.S. 921, 1 L. Ed. 2d 157, (1956). Distinction has sought to have been made between only incidental benefits to religion and those purposeful and directly made available to sectarian groups. See 9 Stan. L.R. 366. Examples of this are found in the EveTson case, relating to transportation grants to pupils, which only incidentally aided the school attended by the pupil, and Cochran v. Board of Education, 281 U. S. 370, 74 L. Ed. 913 (1930), upholding a State law making available free school books to pupils attending sectarian
schools. Also, one school of thought has urged distinctions between assistance to
churches as such and gifts to institutions maintained by church groups but performing public services which otherwise would have to be financed directly by the State itself. See Bradfield v. Roberts, 175 U.S. 291,44 L. Ed. 168 (1899), upholding Congressional Appropriations to a hospital operated by a Catholic order, and Op,inion of the Justices, 113 A 2d 114 (1955), upholding State grants to be used solely for nurses' training in hospitals, including those maintained by religious groups, and see generally, 19 Ga. B.,T. 354 (1957); 9 Stan. L.R. 366; 111 L.R. 333, 336 (1950); 99 U. Pa. L.R. 102 (1950).
However, whatever effect these trends may have on other factual situations, it is clear that the problem now under consideration stands on an entirely different footing. Here, the State assistance is given directly to a church itself. The benefit to religion is direct and not incidental. While tax funds are not directly paid over, the Constitutional Provision is not so limited, but says "directly or indirectly", and both the State (Ga. Laws 1956, Vol. I, pp. 753, 773) and counties (Art. VII, Sec. IV, Par. I; Code Sec. 2-5701) levy taxes and appropriate money for the maintenance and upkeep of prisoners. I do not suppose it likely would be insisted that Lowndes County could appropriate its tax monies to pay for the maintenance work done at the church, and I fail to see any difference between this practice and the present one from a Constitutional standpoint.
I, therefore, conclude that the use of prison labor, either gratuitously or by contract, for the upkeep and maintenance of church grounds is in contravention of the State and Federal Constitutional Provisions relating to separation between Church and State. However, the law prescribes no penalty for this violation, and under the circumstances I feel that sanctions are not warranted in any event. The separation of powers provisions are, to say the least, not entirely clear. The United States Supreme Court itself has had difficulty in determining the Constitutional intent. The practice. here condemned gives rise to no penal or othe,r liabilities enjoined in a court of law. Perhaps it might be appropriate to say that the practice is not malum in se, but only malum prohibition. But whatever its characterization, the Constitution stands as an impregnable barrier to a practice which, although isolated and innocent today, might well constitute the beginning tomorrow of a despotic tyranny.
Of course, I can conceive of situations where cemeteries adjacent to some rural churches through the years may have ceased to constitute an integral part of the church organization, and assumed instead the status of a public cemetery, open to those of all faiths or no faith at all, in which case no Constitutional problem would arise, but no facts are stated by your letter to justify my assuming this is to be true in the present case. In any event, it would be a very difficult distinction to ascertain, and I personally would not relish the job of

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having to make it. This is an administrative duty which falls within your jurisdiction rather than mine.
There might also be situations where cemeteries have become a public health hazard, and of course, in such case, different principles would be applicable.
PRISONS AND PRISONERS-Executions Only a person to be executed has any discretion as to attendance at his
execution.
August 24, 1961
Honorable J. M. Forrester Director State Board of Corrections
This will reply to and acknowledge your letter requesting my advice as to whether the Board of Corrections has any discretion in granting permission to individual members of the general public to attend executions at the State Penitentiary in Reidsville.
Section 27-2515 of the Code of Georgia, as amended in 1956, provides as follows:
"There shall be present at such execution the warden of the penitentiary, or a deputy warden thereof, who shall serve as executioner, at least two assistants, two physicians to determine when death supervenes, an electrician, a suitable guard, and, if the condemned person so desires, his counsel, relatives and such clergymen and friends as he may desire." It seems clear from this statute that the only person with any discretion in deciding who shall be present at an execution is the condemned person himself. Further, it would appear that the condemned person has no discretion as to individual members of the general public who are not "his counsel, relatives and such clergymen and friends as he may desire."
PRISONS AND PRISONERS-Executions Discussion of effect appeal from denial of habeas corpus has upon death
sentence. June 26, 1961
Honorable Jack M. Forrester Director State Board of Corrections
This will acknowledge your letter relating to the matter of an appeal of a habeas corpus from a prisoner under death sentence.
On looking into the matter further, I find, in addition to the facts stated in your letter, that the Judge of the City Court of Reidsville certified the Bill of

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Exceptions on the habeas corpus case on May 26, 1961. The record in the habeas corpus case as it now stands, docketed in the Supreme Court of Georgia, is silent as to a stay of the death sentence, pending the outcome of the appeal.
The precise question then, is whether the certification of the Bill of Exceptions and/or the docketing of the appeal from the habeas corpus case in the Supreme Court of Georgia, has the legal effect of a stay of the death sentence.
The Code of Georgia does not specifically provide for this circumstance. The appellate courts of Georgia have never had this question before them for review.
It would seem, however, from a reading of the following enactments of the General Assembly, that the question must be resolved in favor of the proposition that the certification of the Bill of Exceptions and docketing of the case in the Supreme Court has the legal effect of granting a stay.
"27-2514. . .. and in all cases it shall be the duty of the sheriff of the county in which such convicted person is so sentenced, together with one deputy or more, if in his judgment it is necessary, and provided that in all cases the number of guards shall be approved by the trial judge, or if he is not available, by the ordinary of said county in which such prisoner is sentenced, to convey such convicted person to said penitentiary, not more than 20 days nor less than two days prior to the time fixed in the judgment for the execution of such condemned person, unless otherrwise directed by the Governor, or 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)
"27-2518. Where the date for the execution of any such convict in a capital case has passed by reason of a supersedeas incident to the suing out of a bill of exceptions to the judgment of the trial court, or a respite by the Governor, or for any other reason, the judge of the superior court of the county where the case was tried shall have power and authority without requiring the convict to be brought before him by habeas corpus, as provided in Section 27-2521, to pass an order in term time or vacation fixing a new date for the execution of the original sentence, said order to be recorded on the minutes of said court as other official orders and sentences are required by law to be done and a certified copy of said order shall be sent immediately to the superintendent of the State penitentiary at the place of execution. The judge shall fix the new date not less than 10 nor more than 20 days from the date of such order." (Emphasis supplied)
"27-2521. Whenever, for any reason, any convict sentenced to the punishment of death shall not have been executed pursuant to such sentence, and the same shall stand in full force, the presiding judge of the superior court where the conviction was had, on the application of the solicitor general of the circuit, or other person prosecuting for the State, shall issue a habeas corpus to bring such convict before him; or, if such convict be at large, said judge or any judicial officer may issue a warrant for his apprehension; and upon the convict being brought before the judge, either by habeas corpus or under such warrant, he shall proceed to inquire into the facts and circumstances of the case; and if no legal reason exists against the execution of the sentence, he shall sign and issue a warrant to the warden of the penitentiary, commanding him

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to do execution of such sentence at such time and place as shall be appointed, which the warden shall do accordingly; and the judge shall cause the proceedings to be entered on the minutes of the superior court of the county." (Emphasis supplied)
Notice that the language emphasized in 27-2514 does not restrict itself to an appeal from the convicting court. Further, the language of 27-2518, in addition to recognizing a stay because of a supersedeas incident to the suing out of a bill of exceptions to the judgment of the trial court, recognizes that the date for execution in capital cases may have passed for "any other reason."
In addition to the above indications of legislative intent, and of paramount consideration, is the provision of the Constitution of Georgia which is as follows:
Article I, Section I, Paragraph XI (2-111)
"The writ of Harbeas Corpus shall not be suspended."
The Constitution of Georgia, further provides that the Supreme Court shall have jurisdiction for review purposes, of appeals from harbeas corpus cases.
Consequently, to execute a defendant upon conviction and sentence of one court while the defendant has pending an appeal in the Supreme Court of Georgia from a writ of habeas corpus from another trial court, might deprive said defendant of the above constitutional rights.
In lieu of the above, and because of the fact that the law is not clear in this respect, I would advise that the prisoner not be executed at this time. There is ample statutory authority for the court of conviction to sentence Davis again upon the completion of his appellate remedies.
PRISONS AND PRISONERS-Manufacture (Unofficial)
Goods produced by prisoners cannot be sold to private persons, only to governmental agencies.
March 15, 1960
Mr. J. C. Coleman, Jr.
I am pleased to acknowledge your letter relative to convict-made goods, and to advise that under Section 77-318 of Ga. Code Ann., no goods, wares or merchandise, manufactured, produced, or mined wholly or in part, by the inmates of any prison or public works camp operated under the jurisdiction of the State Board of Corrections, shall be sold in this State to any private person, firm, association or corporation, except that nothing in said statute shall be construed to forbid the sale of such goods or merchandise to other political subdivisions, public authorities, municipalities or agencies of the State or local governments, to be consumed by them, or to agencies of the State to be in turn sold by such agency to the public in the performance of such agency's duties as required by law. This statute does not prohibit the sale of such unprocessed agricultural products produced on State property.
All supplies and materials to be used by State departments, agencies or bureaus are required to be purchased through the State Department of Purchases

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upon competitive sealed bids if the amount totals or exceeds $1,000.00, and I find no prohibition contained in the Purchasing Act except there is a provision under Code Sections 40-1903 and 40-1920 which requires the Supervisor of Purchases to give preference to materials, supplies, equipment and printing as may be manufactured or produced in the State of Georgia.
PRISONS AND PRISONERS-Medical Treatment There is no prohibition against chiropractic aid to prisoners, however
such should be furnished only upon request of the prisoner. November 20, 1961
Honorable Jack M. Forrester Director State Board of Corrections
This will acknowledge and reply to your letter relating to chiropractic aid for prisoners in the various prisons across the State.
Subsection (e) of Section 77-309 provides as follows: "(e) It shall be the responsibility of the governmental unit, subdi-
vision or agency having the physical custody of a prisoner to maintain such prisoner, ... and any needed medical and hospital attention therefor, ..." This is the only provision of law specifically relating to medical assistance for prisoners. I find no statutory prohibition as to chiropractic aid to prisoners. However, since the statute uses the word medical, and since that word is defined to mean, "Of, pertaining to, or dealing with the healing art or the science of medicine...." (Emphasis supplied) (Webster's New Collegiate Dictionary), I would suggest that whenever a prisoner desires chiropractic aid, he be furnished the same, upon his request, and only upon his request.
PRISONS AND PRISONERS-Prisoners A prisoner may donate a kidney without the Board of Corrections or
any of its officials incurring any personal liability. January 12, 1960
Honorable Jack M. Forrester Director State Board of Corrections
This will acknowledge receipt of your letter in reference to a prisoner at the Fulton County Public Works Camp, having volunteered to donate a kidney for Tommy Harper. You state that he has volunteered this donation fully and volun-

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tarily without any promise of reward and that he is over 25 years of age. You asked my opinion as to whether it is legal for him to donate his kidney and if any responsibility or liability will be placed upon the State Board of Corrections or any of its officials or officers.
I know of no legal incapacity for a prisoner who is above legal age for donating a kidney so long as it is not done under duress or promise of any reward. Hence, I am of the opinion that neither the State Board of Corrections nor any of its officials would incur any personal liability by reason of this prisoner consenting to this operation.

PRISONS AND PRISONERS-Prisoners

The State Department of Corrections is not liable for any hospital or funeral expenses of a prisoner who escaped, was injured in recapture, and who was never returned to the custody of the Department of Corrections.

Honorable Jack M. Forrester Director State Board of Corrections

March 10, 1960

This will acknowledge receipt of your correspondence. As I understand the facts of this case a prisoner escaped from the Georgia State Prison sometime ago. In August, 1959, he was arrested by the Wayne County sheriff's department and escaped. The sheriff requested assistance from the Wayne County Prison Branch and dog boys at the Branch shot the prisoner while he was resisting. He was placed in a hospital in Jesup and later died. You request my opinion as to whether the State Department of Corrections would be legally liable for Chestnut's hospital expenses and his funeral expenses.
Although the State Department of Corrections is required to provide hospitalization for prisoners under its control, I do not feel that this would be applicable in the instant case. From the way I understand the facts, the prisoner was never returned to the custody of the Department of Corrections and hence the Department of Corrections is in no way liable for any expenses incurred in its last death and illness.

PRISONS AND PRISONERS-Prisoners
Monies found in the possession of a prisoner who, by his own admission, asserts an illegal manner of gaining possession may be placed in the Prison Athletic Fund.
May 19, 1960 Honorable Jack M. Forrester Director State Board of Corrections
Receipt is acknowledged of your letter in which you request advice as to whether a warden may place in the Athletic Fund, as provided by the rules of the Board of Corrections, money found in the possession of the prisoner.

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I note from the facts in your letter that the prisoner possessed of the money states that he received it as pay for altering a Discharge Certificate issued by the Board of Corrections, thereby effectuating an illegal discharge for the prisoner from whom he allegedly received the money. I note further that the prisoner securing the release under the altered Discharge Certificate denies that he gave the money to the prisoner from whom it was recovered. Code Section 26-4508 provides, in part, as follows:
"Any person who shall aid or assist ... a prisoner ... to escape ... from the place of confinement or imprisonment ... shall be deemed guilty of a felony ..."
Under this Code Section, I am of the opinion that the prisoner who received the money is not entitled to it. The other prisoner denies having given the money to him. Therefore, in accordance with the rules of the Board of Corrections the Warden should place the money in the Athletic Fund.
PRISON AND PRISONERS-Prisoners (Unofficial)
There is no provision in the Code which prohibits securing a prisoner to the vehicles used for transportation of such prisoner.
June 24, 1960
Honorable Dewey C. Brown, Jr.
Receipt is ackno,wledged of your letter requesting an opinion as to whether it is illegal in the transportation of persons under arrest, prisoners, or mental patients, to use a device which secures said persons to the vehicle used for transportation of such a person or persons, provided that, in the opinion of the custodial officer, restraint of the person in custody is necessary to protect him or the officer.
A search of the Code of Georgia reveals no prohibition against handcuffing prisoners while being transported. There appears no prohibition against use of' such a device you propose. However, it may be that the use of such a device would be illegal as inhuman in that a person so handcuffed might find himself in an inescapable situation in the event of an automobile accident. In the event that it was found to be inhuman, there might be civil liability.
PRISONS AND PRISONERS-Prisoners
A habeas corpus having been filed and denied, the warden may hold the prisoner in custody under order of the court until appellate procedures are terminated.
November 28, 1960
Honorable J. B. Hatchett State Board of Corrections
This is in reply to your letter in which you request the advice of this office as to whether or not you can legally keep a certain prisoner in custody at the

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Georgia State Prison, Reidsville, pending an appeal from a habeas corpus case in the City Court of Reidsville.
It is my understanding from your letter that, because of a writ of habeas corpus having been filed, and hearing had, the time set for execution has passed. It is further my understanding that the Court, in denying the relief prayed for in the writ, ordered the prisoner remanded to the custody of Warden Balkcom.
Code Section 27-2514 provides in part as follows:
"27-2514. Upon the conviction of any person of a crime the punishment of which is death, it shall be the duty of the presiding judge to sentence such convicted person to death according to the provisions of this law, and to make such sentence in writing, which shall be filed with the papers in the case against such convicted person, and a certified copy thereof shall be sent by the clerk of the court in which said sentence is pronounced to the superintendent of the State penitentiary, not less than 10 days prior to the time fixed in the sentence of the court for the execution of the same; and in all cases it shall be the duty of the sheriff of the county in which such convicted person is so sentenced, together with one deputy or more, if in his judgment it is necessary, and provided that in all cases the number of guards shall be approved by the trial judge, or if he is not available, by the ordinary of said county in which such prisoner is sentenced, to convey such convicted person to said penitentiary, not more than 20 days nor less than two days prior to the time fixed in the judgment for the execution of such condemned person, unless otherwise directed by the Governor, or 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 these circumstances, in view of the emphasized language in the above Code Section, it is my opinion that Warden Balkcom may hold the prisoner in custody under the order of the City Court of Reidsville until appellate procedures are terminated, or until such time as the Superior Court of conviction again sentences the said prisoner. In the event of new sentence, then that new sentence 'would govern 'the time and place of confinement.
PRISONS AND PRISONERS-Prison Store
Profit generated from operation of prison stores and used for the benefit of prison inmate population is in the nature of a trust fund, and excluded from law requiring that all idle funds of State must draw interest.
July 13, 1960
Honorable Jack M. Forrester Director State Board of Corrections
Receipt is acknowledged of your letter of June 28, 1960, requesting an opinion as to whether or not funds derived from sales to prisoners at a prison store operated at the Georgia State Prison, Reidsville, Georgia, are subject to House Bill

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No. 612 (Ga. Laws 1960, p. 1144, approved March 23, 1960), which amends Section 100-101 of the Code of Georgia, and requires that all idle funds must be so handled as to accrue interest.
You state that the profits from the operation of the prison store are used for the purchase of various athletic equipment, books, magazines and various items which are for the benefit of the greater inmate population.
This profit, or fund, which results from the operation of the prison store and which is used for the benefit of the prison inmate population is in the nature of a trust fund, and it is my opinion that it is excluded from the operation of House Bill 612 by Section 7 thereof which provides that "all Retirement, Trust and Authority funds shall be exempt from the provisions of this act."
PRISONS AND PRISONERS-Religious Services
Religious organizations may be allowed to conduct religious services in chapels constructed at various prison branches with prison funds.
April 27, 1960
Honorable Jack M. Forrester Director, State Board of Corrections
I acknowledge receipt of your letter requesting an official opmwn whether the State Board of Corrections can legally expend state funds for the employment of chaplains and the construction and maintenance of chapels in the various prisons and prison branches of the state penal system, and whether you can legally permit religious organizations to conduct services in such chapels. The same question, of course, would apply to the public works camps maintained by counties.
You state this question arises because of language in my opmwn rendered to you under date of April 20, 1960, holding that it was unconstitutional for the Lowndes County Public Works Camp to utilize prison labor in cleaning off church grounds and church cemeteries maintained in conjunction therewith.
In that opinion I pointed out that during one period, language in several United States Supreme Court decisions had cast doubt upon the validity of any semblance of state aid in connection with religion. However, I pointed out the emergence of an "incidental benefits" doctrine which some legal authorities claimed to have qualified or at least limited the prior holdings.
However, even under the more strict construction, there have always been several areas which historically and traditionally have been considered open to the state. As said in Everson v. Board of Education, 330 U. S. 1, 18, 91 L. Ed. 711 (1947)'
"That Amendment (The First) requires the state. to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary."

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In Zorach v. Clauson, 343 U. S. 306, 312, 96 L. Ed. 954 (1952), the Court declared:
"The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute. The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwis3, the state and religion would be aliens to each other-hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God' in our courtroom oaths-these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this Honorable Court.'"
See also opinion of Mr. Justice Reed in Illinois ex rel McCollum v. Board of Education, 333 U. S. 203, 253, 92 L,. Ed. 649, where it is pointed out that the Army and Navy as well as Congress employ Chaplains, and that this practice had never been considered illegal.
In a decision by our State Supreme Court, Wilkerson et al. v. Rome, 152 Ga. 762, 775, in upholding an ordinance requiring the reading of several passages of scripture and prayer in the public schools each day, it was said:
"... No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of state governments."
These decisions which I have just cited would suffice to answer your question, but I think that there are other obvious distinguishing features which should be pointed out.
In the Lowndes County situation, public aid was given directly to church. In the present situation, facilities and opportunities are merely made available to prisoners which otherwise would be denied them solely by reason of the state's action in confining them. There is no dired aid given to the church. The entire arrangement is for the benefit of the prisoners. While the State should not aid religion, neither should it suppress it. Under the circumstances prevalent in a prison, where inmates are confined under compulsion, it would not be feasible or reasonably possible to permit them to leave the confines of the prison for worship elsewhere. The providing of chapels and chaplains merely seeks to insure that state imprisonment shall not be permitted to interfere with the prisoner's free exercise of his religion.
I therefore conclude that there is no violation of law or the Constitution under any of the propositions propounded in your letter.

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PRISONS AND PRISONERS-Sentences
The State Bo~rd of Corrections has no jurisdiction over a prisoner sentenced to both a term in a county jail and in an institution designated by the board until after the service of the sentence in the county jail.
October 11, 1961
Mr. Robert J. Carter State Board of Corrections
This will acknowledge your letter in which you asked the following question:
"Where a Court imposes at the same time a sentence to be served in the penitentiary system and a sentence to be served in the local County Jail and the Court specifically directs in such sentence that the Jail sentence be served at the expiration of the penitentiary sentence, under such sentence would the Board of Corrections have authority to remove an individual given such sentence from the County Jail and place him in the penitentiary system to start serving the penitentiary sentence, or should the Board of Corrections wait until the Jail sentence expires and then place the individual in the penitentiary system?"
The Legislature in 1956 clearly provided for the priority between service of time in a jail and service of time in an institution under the Board of Corrections.
That legislation (Georgia Laws 1956, page 161, et seq., at page 171, Section 13 (a), (77-309)) is as follows:
"The State Board of Corrections shall have no authority, jurisdiction or responsibility with respect to jail sentences, and the county wherein such jail sentence is imposed shall have the sole responsibility of seeing that such sentence is executed and providing for the care, maintenance and upkeep of such prisoner while so serving. Where a prisoner receives a sentence providing for service of time in a jail and in addition, service of time in an institution designated by the board as hereafter provided, such jail sentence shall be served first in point of time."
PROFESSIONS, BUSINESSES AND TRADES-Accountants (Unofficial)
Qualifications for licensing as a certified public accountant in Georgia cited.
January 25, 1960
Honorable W. W. Stribling
This is to acknowledge receipt of your letter together with certain correspondence. I understand your letter to request an opinion from this office on two questions:
(1) To receive a reciprocal certificate in Georgia, must the applicant be a legal resident of Georgia?

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(2) For an individual or a firm to practice as a certified public accountant or certified public accountants, must all members of the firm be holders of a Georgia Certified Public Accountant certificate?
Code Section 84-207 of Ga. Code Ann. deals with the qualifications of applicants for certificates, and provides in part as follows:
"Applicants for certificates as certified public accountants must be citizens of the United States and residents of this State."
Code Section 84-209 deals with the question of issuing certificates by comity, and reads in part as follows:
"The Board may in its discretion, without examination, issue certificates as certified public accountants to applicants who hold a valid and unrevoked certificate as a certified public accountant issued by another state."
It is my opinion that the answer to your first question must be in the affirmative; that is to say that for a person to be issued a certificate as a certified public accountant, he must be a resident of Georgia.
Now, as to your second question,. it is my opinion that the law requires all members of a firm who operate as certified public accountants to be holders of a Georgia Certified Public Accountant certificate. In this connection, I cite here the pertinent parts of Code Section 84-213:
"84-213. Unlawful Practice.-It shall be unlawful: for any person other than a certified public accountant, certified and registered as provided in this Chapter, to practice as a certified public accountant, or hold himself out as, or assume to practice as a certified public accountant, or use the term 'Certified Public Accountant', or the abbreviations, 'C. P. A.', or otherwise employ any designation as a member of a firm or otherwise, calculated to deceive the public or convey the imprl!ssion that such person is a Certified Public Accountant; for any member of a firm or association to announce or state in writing or printing, by advertisement, or otherwise, that such firm is practicing as 'Certified Public Accountants', unless all members of the firm are holders of valid and unrevoked certificates and are certified public accountants within the meaning of this Chapter.''
In reaching an answer to your questions, I have not dis~regarded the provisions of Section 84-211, which provides as follows:
"The holder of a valid and unrevoked certificate as a certified public accountant, or its equivalent, issued under the authority of any state or public subdivision of the state or any foreign country, who is not a resident of the State of Georgia, may practice accountancy in this State by registering with the Board on or before January 1st of each year, and paying a fee of $5.00. Upon payment of such fee, the Board shall issue a certificate of such registration.''

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PROFESSIONS, BUSINESSES, AND TRADES-Accountants
The license of a Certified Public Accountant may be revoked for advertising and practicing in partnership with an unlicensed accountant.
April 28, 1960
Honorable W. W. Stribling, Chairman Georgia State Board of Accountancy
You state in your letter: "Mr. Kleeb and Mr. Bullard of Augusta, Georgia, are operating as Certified Public Accountants under the trade name of Kleeb, Bell, Bullard & Riggs, Certified Public Accountants, Augusta, Georgia, and Waynesville, N. C." You also state in your letter: "Mr. Kleeb and Mr. Bullard are both holders of Georgia certificates under our reciprocity provision. Mr. Bell and Mr. Riggs hold North Carolina certificates. You then ask: "Can we revoke the certificates of Kleeb and Bullard based on their defiance and determination to practice illegally within the State?"
Code Section 84-210, Annotated Code of Georgia, reads in part as follows:
"84-210. Revocation or suspension of certificate or registration card; grounds; notice of charge; trial; counsel; appeal to jury.-Any certificate or registration card issued by the Board may be revoked and canceled, or suspended for a definite period, after a hearing, for any violation of this Chapter, or in the event the holder of such certificate or registration card is convicted of an offense involving moral turpitude, or for any other cause which the Board may deem sufficient. Before any such certificate or registration card may be revoked or suspended the Board shall give written notice to the holder thereof of the charges brought against him which may be preferred by any citizen of this State, or brought by the Board on its own motion."
Code Section 84-213 of the Annotated Code reads as follows:
"84-213. Unlawful practice.-It shall be unlawful: For any person other than a certified public accountant, certified and registered as provided by this Chapter, to practice as a certified public accountant, or hold himself out as, or assume to practice as a certified public accountant, or use the term 'Certified Public Accountant', or the abbreviation 'C. P. A.' or otherwise employ any designation, as a member of a firm or otherwise, calculated to deceive the public or convey the impression that such person is a certified public accountant; for any member of a firm or association to announce or state in writing or printing, by advertisement or otherwise, that such firm is practicing as 'Certified Public Accountants' unless aU members of the firm are holders of valid and unrevoked certificates and are certified. public accountants within the mean ing of this Chapter; for any person to practice as a certified public accountant if his ce!t'tificate has been revoked, or during any suspension thereof, or without renewing his registration card annually, as provided by this Chapter; for any person to buy, sell, give or obtain a certificate as a certified public accountant in any manner other than that provided by this Chapter, or to practice or attempt to practice under any such certificate obtained other than provided for in this Chapter; for any certified public accountant to knowingly certify to any false or fraudulent

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report, certificate, exhibit, schedule or stateme,nt. (Acts 1935, p. 92.)" (Emphasis ours.)
Code Section 84-9902 reads as follows:
"84-9902. (702 P. C.) Penalties for violating Chapter 84-2, relating to certified public accountants.-If any person shall hold himself out as having received a certificate provided for in Chapter 84-2 on the subject of certified public accountants, or shall assume to practice thereunder as a certified public accountant, or use the initials 'C. P. A.' without having received such certificate or if the same shall have been revoked he shall be guilty of a misdemeanor, and shall be sentenced to pay not exceeding $500 or less than $200. If any person, firm, corporation or association shall hold himself out as having been registered as a public accountant as provided for in section 84-215, or shall assume to practice thereunder as a registered accountant without having been so registered by the Board of Accountancy of this State, or if said registration shall have been revoked, he shall be guilty of a misdemeanor and sentenced to pay not exceeding $500 or less than $200. Any person who shall violate any other provision of Chapter 84-2 shall be guilty of a misdemeanor, and shall on conviction be punished as provided by law. (Acts 1908, p. 86; 1935, pp. 93, 95; 1943, pp. 363, 368.)"
It is my opinion under the above quoted law and the facts stated in your letter that the Board would be authorized to revoke the licenses or certificates of Kleeb and Bullard for violating the provision of the law set out in Code Section 84-213.
PROFESSIONS, BUSINESSES AND TRADES-Anesthesia Technicians
There is no state requirement for registration of anesthesia technicians.
March 13, 1961
Honorable C. L. Clifton Joint Secretary State Examining Boards
This is to acknowledge receipt of your letter which reads in part as follows:
"I am enclosing a copy of a letter from the Joint Commission on Accreditation of Hospitals, which I discussed with you last Monday. Please give me an unofficial opinion as to the requirement for registration of an anesthesia technician.''
I have checked the statutes of Georgia and have been unable to find any board or commission set up for the purpose of licensing or registering anesthesia technicians. It is therefore my opinion that there are no statutory requirements for the registering of such technicians.

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PROFESSIONS, BUSINESSES AND TRADES-Barbers and Beauticians
Fees for examinations, registration and other fees are to be received solely by the Joint-Secretary, State Examining Boards, and by no examining board under him.
January 3, 1961
Honorable Ben W. Fortson, Jr. Secretary of State
Thank you for your letter in which you requested an official opinion designating the party vested with the authority to receive payment of the examination fees, registration fees, renewal fees and other fees specified in Sections 84-409, 410, 411 and 412 of the Code of Georgia Annotated, in connection with the regulation of the barbering and hairdressing trade by the State Board of Barber and Beautician Examiners.
Each of the fee-paying provisions contained in Code Sections 84-409, 410, 411 and 412 expressly provide that such fees shall be paid to the Joint-Secretary, State Examining Boards, and Code Section 84-101 provides that the office of such Joint-Secretary "shall be maintained under the supervision of the Secretary of State", and that it shall be the duty of the Joint-Secretary "to collect all fees required by law in connection with licensing of professions, businesses, and trades." Consequently, it is my opinion that the above Code Sections vest the authority to receive payment of such fees solely in the Joint-Secretary, State Examining Boards, acting under the supervision of the Secretary of State, and it is my further opinion that the above Code Sections vest no authority whatsoever in the State Board of Barber and Beautician Examiners, or in any inspectors appointed by it, to receive payment of such fees.
PROFESSIONS, BUSINESSES AND TRADES-Barbers and Beauticians
There is no requirement that an applicant for a teacher's examination in a barber or beauty school have practiced the occupation for not less than three years.
December 7, 1961
Mr. W. L. Dillashaw, Chairman State Board of Barber and Beautician Examiners
This is to acknowledge receipt of your letter requesting an opinion whether under Sections 84-410 and 84-411 of Annotated Code of Georgia the law requires an applicant for a teacher's examination in a barber or beauty school to have practiced the occupation of a barber or beautician for a period of not less than three years before said license should be issued.
I have read and considered the Code Sections mentioned in your letter, and the answer to your question is in the negative-no. Neither of the Code Sections mentioned in your letter requires that an applicant for a teacher's examination shall have practiced the occupation of barber or beautician for a period of not less than three years. The three year requirement would apply only to those who made application to operate or conduct a barber or beauty school or college.

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PROFESSIONS, BUSINESSES, AND TRADES-.Chiropractics. (Unofficial)
Attendance of an educational session as conducted by the Georgia Chiropractic Association is required for renewal of licenses.
June 23, 1960
James L. McCall, Jr., D. C.
Your letter reads :
"In view of the continual questioning of our law regarding attendance of a minimum of one educational session as conducted by the Georgia Chiropractic Association, and in view of the fact that many of our members register but do not attend the full session, I have been asked by the Board of Directors of the G. C. A. to request that you render a ruling as to what constitutes attendance at said educational program conducted by the G. C. A."
The law about which you make inquiry is set out in Section 84-521, Annotated Code of Georgia, and reads in part as follows:
"84-521. Annual renewal of license; fee; notice to licensees of renewal date; bond of Joint-Secretary, State Examining Boards.-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 $2.00, 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."
I call your attention to the following language in the above quoted Code Section: "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."
The Code Section above quoted provides that the Board is to be satisfied as to whether or not the applicant has attended the sessions as required by law. Of course, I am unable to say what evidence the Board would require as to his attending these sessions. I doubt, however, that if the Board had no other evidence except that he registered, that they would accept that alone as being sufficient,
PROFESSIONS, BUSINESSES AND TRAHES-Contractors (Unofficial)
General contractors performing work when public funds are involved are required to be bonded.
April 7, 1961
Mr. Prescott A. Sherman
This is to acknowledge receipt of your letter of recent date in regard to general contractors performing work when public funds are involved. You also

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state that you would like to know if it is necessary for a contractor to have a State license.
I am not familiar with any law that requires a general contractor to be licensed by any agency of the State. Code Section 23-1705 requires bond for public contractors, and reads as follows:
"23-1705. Bond for public contractors.-No contract with this State, a county, municipal corporation, or any other public board or body thereof, for the doing of any public work shall be valid for any purpose, unless the contractor shall give bond payable to the State or other body contracted with, with good and sufficient surety, for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of such contract, conditioned for the completion of the contract in accordance with its terms, for saving the obligee free from all costs and charges that may accrue on account of the doing of the work specified for the payments as they become due of all just claims for work, tools, machinery, skill and materials furnished by persons under, or for the purpose of, such contract, and for a compliance with the laws appertaining thereto. The penalty of such bond shall be not less than the contract price. (Acts 1910, p. 86; 1916, pp. 94, 95.)"
PROFESSIONS, BUSINESSES AND TRADES-Exterminators (Unofficial)
An exterminator must have a place of business in a municipality before a business license tax may be imposed.
[ED. NOTE: A 1961 amendment (Ga. L. 1961, p. 460) deleted this exemption.]
February 13, 1961
Mr. L. M. Hutchinson
This will acknowledge receipt of your letter regarding the legality of a claim from Orkin Exterminating Company as to their being exempt from paying a municipal business license in Sparta, Georgia.
Section 13 of the Structural Pest Control Act, as amended by the 1960 Session of the Georgia General Assembly (Code Ann., Section 84-3413), appears to us to clearly indicate that unless the pest control company has an established business office in Sparta, Georgia, then that municipal corporation is not authorized to impose a business license fee or occupational tax.
Your Municipal License Ordinance No. 106 appears to impose a business license fee or occupational tax and to be in conflict with Section 84-3413 as it now reads. Under the circumstances you cite, I believe that Orkin is exempt from paying the tax the city of Sparta imposes.

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PROFESSIONS, BUSINESSES AND TRADES-Junkyards (Unofficial)
There is no longer any statute specifically regulating the operation of a junkyard.
June 6, 1961
Mr. Robert K. Montgomery
This is to acknowledge receipt of your letter in which you state you are interested in legislation that we may have regulating junkyards in Georgia. The last paragraph of your letter reads as follows: "If you have statutes on this subject I would appreciate a copy. This will assist us in drafting our proposed bill."
We do not have a statute regulating junkyards in Georgia at this time. However, former Code Section 92-1901 dealt with the subject about which you make inquiry and read as follows:
"92-1901. Auctioneers.-Each and every auctioneer selling by auction in this State jewelry, junk, furniture and household goods, livestock, farm implements and produce, or real estate, shall pay $10 for each day's sale in county in which he conducts said sale: Provided, however, that this section shall not apply to sheriffs and attorneys at law, conducting sales under power of sale, or other legal sale for their clients, and commissioners conducting sales by virtue of the order of any court of this State, nor to auctioneers of tobacco or other farm products."
This Section was repealed by an Act of the Legislature of 1951.
Formerly, Section 92-2006 of the Annotated Code of Georgia read as follows:
"92-2006. Junk dealers; books or records.-Each person, firm, or corporation engaged in the business of dealing in junk and/or dealing in junk autos and trucks and/or junk automobile parts, accessories or fixtures in or near cities of over 50,000 inhabitants, shall pay $100; in or near cities of from 10,000 to 50,000 inhabitants, $50; in or near cities of from 3,000 to 10,000 inhabitants, $25; in cities or towns under 3,000 or within 10 miles thereof, $10. Each junk dealer, his clerk, agent, or employee, shall keep a book, open to inspection, on which he shall make entries of all railroad iron, brass, pieces of machinery, plumbing materials, unused farm implements, automobile parts, fixtures, or accessories purchased by him, together with the name of the party from whom purchased; and upon failure to keep such book or record and produce it on demand, the said dealer shall forfeit his license: Provided, that the word 'near' as used in this section, is defined to mean within a radius of three miles of the incorporate limits of the cities and towns referred to in this section."
This Code Section no longer is in effect since it was also repealed by an Act of the Georgia Legislature, 1951, pp. 157, 165.

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PROFESSIONS, BUSINESSES AND TRADES-Medicine (Unofficial)
Discussion of grouping of doctors together for tax advantages.
[Ed. Note: see Ga. Laws 1961, p. 404, "Professional Association Act", for statutory authority.]
February 19, 1960
Mr. Harry V. Lamon, Jr.
This will acknowledge receipt of your letter in which you ask whether a medical clinic desiring to take advantage of the provisions of Proposed Regulations 301.7701-1, 2, 3, and 4, promulgated by the Internal Revenue Service on December 23, 1959, could do so without violating the provisions of Section 84-916 (18) of the Code of Georgia, as amended. I am pleased to advise you in the affirmative.
The established Georgia case authority shows that doctors cannot incorporate. However, neither could a corporation practice medicine through licensed employees. See Hughes v. State Board, 162 Georgia Reports 246, and State Board of Examiners in Optometry v. Friedman's Jewelers Inc., 183 Georgia Reports 669. See also in this connection Annotation 103 ALR 1240 (1936). However, none of these cases would prevent a group of doctors from associating themselves together as a legal entity, resembling a partnership but containing enough of the characteristics of a corporation as contained in Proposed Regulations 301.7701-2 to qualify under the exemptions provided in that Section, more particularly the example quoted in Subsection (g) thereof.
Section 84-907 of the Code of Georgia, as amended, envisions that only qualified individuals shall be licensed to practice medicine and therefore it is obvious that a corporation cannot possess the requisite qualifications. It is my opinion that since the unincorporated association described in the Proposed Regulations does not in any way require the reduction of liabilities or responsibilities of the individual medical practitioner, as would be the case with respect to the true corporate entity, that doctors reorganizing a medical partnership as an unincorporated association for income tax purposes would not subject themselves to any disciplinary action under Section 84-916 (18) of the 1933 Code of Georgia, as amended.
Further, you have inquired as to whether such an association might take advantage of a provision in its Articles of Association providing that such association would continue irrespective of the death, bankruptcy, resignation, insanity, retirement, or expulsion of a member associate. It is established Georgia case authority that a partnership can make such an agre,ement. See Kinney v. Robinson, 181 Georgia Reports 837, at page 840. I see no reason why this rule would not be applicable here.

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PROFESSIONS, BUSINESSES AND TRADES-Nurses

Members of the Board of Examiners of Nurses for Georgia may be connected with a training school for nurses.

Miss Nancy Sale, R.N., President Board of Examiners of Nurses of Georgia

February 29, 1960

You asked:

"Will you please advise if it is permissible under the law for members of the Nurses Board to be connected with training schools for nurses?"

I will first quote the law applicable to the question propounded by your letter. Georgia Laws 1927, p. 247, Section 1, read as follows:

"Section 1. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of same that the Board of Examiners of Nurses for Georgia is hereby created. It shall be composed of five persons to be elected and appointed in the following manner: The Georgia State Nurses' Association will, within thirty (30) days after this Act takes effect, nominate to the Governor of this State ten (10) of its members, none of whom is in any way connected with any training school for nurses. The said nurses must have had at least three (3) years of practice in the,ir profession immediately preceding their appointment. From this number the Governor shall, within thirty (30) days hereafter, appoint for places on the said board one nurse who shall hold office for one (1) year from date of appointment; and two (2) shall hold office for two (2) years from said date, and two shall hold office for three (3) years from said date. All of the said appointments shall have the same date; provided no two of the nurses so appointed shall have graduated from the same training school. Upon the expiration of the term of office of any member of said Board the Governor of this State shall appoint a successor to fill the said term of office, who shall hold office for three (3) years from the date of the expiration of the said term of office. The said appointment shall be made from a list of five (5) members of the said Association, to be furnished to him by the said Association. All vacancies occurring on this Board shall be filled by the Governor for the unexpired term from like nominations furnished to him by the said Association within thirty (30) days after the vacancy occurs; provided, that if the said Association fails to make the nominations herein required within the time here specified, the Governor shall make such appointments by nominating such members of the nursing profession as may seem to him to be proper."

The above quoted Act of 1927 clearly provides that the Board shall be composed of five members and that they shall be appointed by the Governor from a list of ten names furnished to the Governor by the Georgia State Nurses' Association. It also provides that none of the ten names furnished by the Association to the Governor shall be connected with any training school for nurses. The act further provides that in case of future vacancies, the vacancies will be filled from a list of five furnished the Governor by the Association, but makes no mention of their being connected with the Training School for Nurses.

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So, it would appear from reading the entire Section of 1927 creating the Board that it only prohibits the first Board created thereunder from being members of the Training School for Nurses. However, be that as it may, a new Code was adopted in 1933, which was subsequent to the Act creating the Nurses' Board, which provides as follows:
"84-1001. Board of Examiners of Nurses for Georgia; creation, appointment, qualifications; terms of office; vacancies.-The Board of Examiners of Nurses for Georgia is hereby created. It shall be composed of five persons who shall be appointed by the Governor for terms of three years. The appointment shall be made from a list of five members of the Georgia State Nurses' Association, to be furnished to the Governor by the said Association. No two of the nurses so appointed shall have graduated from the same training school. All vacancies occurring in the Board shall be filled by the Governor for the unexpired term from like nominations furnished to him by the said Association within thirty (30) days after the vacancy occurs; provided, that if the said Association shall fail to make the nominations herein required, the Governor shall make such appointments by nominating such members of the nursing profession hereto as may seem to him to be proper. (Acts 1927, p. 247.)"
The above quoted Code Section does not disqualify nurses who are connected with the Training School for Nurses and in that respect is in conflict with Georgia Laws 1927, p. 247, which created the Board of Examination of Nurses. The Code Section being a later Act of the Legislature would necessarily prevail.
Gray, et al., v. Georgia Real Estate Comm., et al., 209 Ga. 301, reads as follows:
"In every case of conflict between Chapter 84-14 of the Code and any previous Act of the Legislature from which the Code was taken, the Code, being the last Act of the Legislature, must prevail over the previous Act."
The Court upheld the same rule in the case of Sirota et al., v. Kay Homes, Inc., 208 Ga., p. 113, and cited many cases to sustain their holding.
It is my opinion that a person appointed as a member of the Board of Examiners of Nurses of Georgia who was appointed since the adoption of the 1933 Code would not be disqualified by reason of her connection with the Training School for Nurses.
PROFESSIONS, BUSINESSES AND' TRADES-Pharmacy
A high school education is not a requirement for eligibility to stand the State Pharmacy examination.
October 16, 1961 Honorable C. L. Clifton Joint Secretary State Examining Boards
This is in reply to your request, "Is a High School education one of the qualifications for an applicant to stand the examination to become a Pharmacist? If so, when was this law first enacted?"

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Code Section 84-1313 of the Code deals with the selection of applicants to become Registered Pharmacists. This law does not require a high school education.
In 1927 the Georgia Legislature provided that before a person would be
authorized to take the examination to become a Pharmacist he must have had
as much as a high school education. I have checked the Georgia Laws on this subject and I have been unable to
find any requirements for a High School education prior to 1927. However, in 1933 the Georgia Legislature specifically repealed the law requiring a high school education and enacted into law the present Code Section above referred to, "84-1313", which is now the law upon this subject.
PROFESSIONS, BUSINESSES AND TRADES-Private Investigators (Unofficial)
Procedure to open an office for private investigators in Georgia discussed.
March 21, 1960 Mr. Darrell F. Holmes, Jr.
This is to acknowledge receipt of your letter which reads in part as follows: "What steps would I have to go through to open a private investi-
gating service in Atlanta? I would also do commercial polygraph work in connection with the agency while attending law school. What I need is to know what it will cost, what fees must. be paid under Georgia law, and where I should send payment for the license, and whether there is an immediate residence law requirement to open a private agency." I have made an investigation of the law about which you make inquiry, and it is my unofficial and personal opinion there are no statutes in Georgia which require a license or regulate a private investigation service such as outlined in your letter. Nor have I been able to find any law which would require any certain period of residence in Georgia for the operation of such business. This does not mean that such business as you mention in your letter is not regulated by the different municipalities. If it is your intention to go into business in Atlanta, I would suggest that you write to the Clerk of the City Council, c/o City Hall, Atlanta, Georgia, for any regulations that may be applied to such business by the City government.
PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers (Unofficial)
Licensing of real estate brokers discussed. March 24, 1960
Honorable Jack E. Hunt
This is to acknowledge receipt of your letter making inquiry as to the licensing of real estate brokers and salesmen.

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I am enclosing herewith a copy of the statute creating the Georgia Real Estate Commission and regulating the Board, brokers and salesmen.
Code Section 84-1401 of the Georgia Code Annotated provides that the provisions of this Act shall not apply to regularly licensed practicing attorneys where the transaction involves the relation of attorney and client. I have checked this Section as it appears in the pamphlet enclosed herewith.
Section 84-1409 of Georgia Code Annotated provides that before the Commission may grant a broker's license the applicant must have had a salesman's license in this State for at least twelve months. I have checked this Code Section and underscored certain provisions.
Section 84-1422 deals with nonresident brokers or salesmen; applications for license, and the filing of irrevocable consent.
PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers
The Georgia Real Estate Commission is without authority to expend funds for educational purposes in order to raise the standards of the real estate business.
January 31, 1961
Honorable C. L. Clifton Joint Secretary State Examining Board
This is to acknowledge receipt of your letter requesting an official opmwn for the Georgia Real Estate Commission. You request an opinion on two questions as follows:
"1. Has the Commission, under the present real estate license law, the power ,or authority to spend funds of the Commission for educational purposes in an effort to raise the standard of the estate provided that such sums expended were within the legal budgeted amount set aside for the operation of the Real Estate Commission under the present budget law?
"2. In the event the Commission has the authority to spend money for educational purposes, would the Commission have the authority to employ the Professor in charge of the real estate department at the University of Georgia as an instructor or lecturer at an educational course set up by the Commission for the benefit of the licensed salesmen and brokers in the State'? Or, in other words, would the fact that the head of the Real Estate Department at the University is already an employee of the State prevent the Real Estate Commission from paying him a fee to instruct in an educational program under the Honesty Act as recently passed by the Legislature? And, further, if his employment as Professor in the University System would prevent the Real Estate Commission from also employing him, is there any legal way, under the Honesty Bill, in which the University could release the Professor of Real Estate from the University's employment during the Summer, for in-

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stance, so that he could accept employment by the Real Estate Commission?"
I have read and carefully considered the Act creating the Georgia Real Estate Commission, which is now codified under Chapter 84-14 of the Annotated Code of Georgia, and it is my opinion that the Commission is without authority to spend State funds for educational purposes in an effort to raise the standard of the real estate business. So, the answer to your first question is, necessarily, in the negative.
The answer to your first question being in the negative, the answer to your second question, of course, would be in the negative.

PROFESSIONS, BUSINESSES AND TRADES-Engineers and Surveyors

1. A county surveyor need not be licensed to record plats. 2. When nonlicensed county surveyor may charge fees.

Honorable M. E. Cox, Chairman State Board of Registration for Professional Engineers and Land Surveyors

September 8, 1961

Your first question is: "Would it be necessary under the law for a county surveyor to be licensed in order to be able to record plats or any records pertaining to his survey?"

Code Section 23-1108 defines the duties of the county surveyor. Sub-section 5 of this Code Section provides as follows: "It is the duty of county surveyors to keep a well bound book in which shall be entered plats of all surveys made by him with a minute of the names of the chain-bearers, when executed, by whose order, and to whom plat delivered, if any, which book shall belong to his office and be turned over to his successor and when full shall be deposited in the office of the Ordinary."

It is my opinion that the answer to your first question would be in the negative. The above quoted Section provides that it is his duty to keep such record, and it is my opinion that such a record is a public record.

As to your second question-"Is a county surveyor not licensed legally authorized to make surveys for private individuals for a fee?"-Code Section 231110 provides fees for county surveyors when making surveys for private individuals, and reads as follows:
"23-1110. Fees when survey for private or corporate benefit.-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 the 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."

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Code Section 23-1111 of the Code of Georgia provides how these fees may be collected and reads as follows:
"23-1111. Execution for fees.-If after a county surveyor has made a survey for any person, who neglects to pay him, such surveyor upon making oath before the ordinary of his county of the performance of such service and its value, such ordinary shall issue a fi. fa. in the name of the ordinary, for the use of such surveyor, against such defaulter, who may defend himself therefrom, in the same manner as persons against whom executions issue who detain county funds."
Chapter 84-21 of the Code of Georgia, creating the Board of Engineers and Land Surveyors and requiring a license, exempted certain persons. Sub-section E of Section 84-2138 exempts "All elected officers of the political subdivision of the State while in the practice of professional engineering and land surveying in the performance of their official duties."
In the case of Webb. v. Stephens, 57 Ga. p. 395, the Court said: "If after a county surveyor has made a survey for any person, who neglects to pay him, such surveyor upon making oath before the ordinary of his county of the performance of such service and its value, such ordinary shall issue a fi. fa. in the name of the ordinary, for the use of such surveyor, against such defaulter, who may defend himself therefor, in the same manner as persons against whom executions issue who detain county funds," taken in connection with 92-3810: "If such execution shall issue for too much, or if defendant shall deny on oath owing any part thereof, he may, by filing an affidavit of illegality, according to the rules governing other illegalities, cause an issue to be formed thereon, which shall be tried by a jury at the first term of the superior court thereafter," provides a remedy for a county surveyor to collect his fees for services rendered, and also a way for the defendant to test the correctness of the claim."
So it is my opinion that a county surveyor who makes a survey for any person is acting in the performance of his official duties.
With further reference to the recording of plats, Code Section 29-421 provides for the recording of plats, blue prints, and so on in the office of the Clerk of the Superior Court and makes it lawful to record such plats, but does not require that such plats shall be made by a licensed land surveyor.
PROPERTY-Adverse Possession (Unofficial)
Statute of Limitations pertaining to adverse possession and easements cited.
April 14, 1961 Miss Rita DelMar
In response to your letter in which you request the Georgia law as to the statute of limitations applicable to adverse possession and prescriptive easements, we direct your attention to the following Code Sections:
"85-406. Actual adverse possession of lands for 20 years, by itself, shall give good title by prescription against everyone, except the State or persons laboring under the disabilities hereinafter specified."

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"85-407. Adverse possession of lands, under written evidence of title, for seven years, shall give a like title by prescription; but if such written title is forged or fraudulent, and notice thereof is brought home to the claimant before or at the time of the commencement of his possession, no prescription shall be based thereon."
"85-409. An incorporeal right which may be lawfully granted, as a right of way or the right to throw water upon the land of another, may be acquired by prescription." (The time periods involved in this statute are 20 years with reference to adverse possession and 7 years as to written evidence of title.)
"85-1706. Adverse possession of personal property for four years shall give a title by prescription. No prescription arises if the property is concealed or removed out of the State, or otherwise is not subject to reclamation."
PROPERTY-Deeds (Unofficial)
Revenue stamps required on deeds are not necessary for the validity and filing of a deed.
August 9, 1961 Mr. W. A. Cole
This is in reply to your letter wherein you inquire whether revenue stamps should be put on quitclaim deeds from the United States of America, to various individuals purchasing land in the Allatoona Reservoir Area. The revenue stamp tax is a Federal tax and, as I construe the Federal Code Sections involved, Title 26, Sections 4361, 4362(b) and 4384, U.S.C.A., the United States is not required to pay the tax and may require the purchaser to pay it and affix the stamps.
However, it is my opinion the collection of this tax is a matter for the United States primarily and not for the State of Georgia. There is no provision of Georgia law or U. S. law that prohibits you, as a Clerk of a Superior Court of the State of Georgia, from recording the quitclaim deeds, even if they have no stamps upon them at all, so I would record the deeds, properly stamped or not, and leave the collection problem in these cases up to the United States.

PROPERTY-Deeds (Unofficial) The State will accept no deed conveying less than fee simple title.

Hon. J. Henry Howard

March 25, 1960

Thank you for your letter relative to a proposed deed conveying to the State of Georgia, with right of reversion, certain property in Screven County for the purpose that it may be used as a Tourist Welcome Station.

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The State of Georgia had an unfortunate experience many years ago when, some fifteen years after improving property accepted under such a conveyance, the revertor was enforced and the State lost the value of its improvement. Since that time, it has been the policy of the State to accept no conveyance of less than fee simple title free of restrictions. Aside from the policy aspect, I am of the opinion that to do so would be in violation of Article VII, Section III, Paragraph IV of the Constitution of the State of Georgia, which was cited in my letter of March 4.
P R O P E R T Y- S t a t e
A resolution of the General Assembly is not required to authorize acceptance of property as a gift.
Any reservation in grantor should be clearly defined and described or the grant must be refused.
February 2, 1960
Mr. Charles A. Collier, Director Department of State Parks
I am in receipt of your letter together with copy of letter of C. 0. Maddox to you and copy of warranty deed from the Peoples Bank, Winder, Georgia, to the State of Georgia conveying certain tracts of land which lie within the boundaries of the Fort Yargo State Park.
You ask if a resolution of the General Assembly is required authorizing you to accept the property in question as a gift. The answer is No.
It is noted that you question the reservation in the grantor of a 1% acre tract for sewage disposal plant purposes. The right in the grantor to convey in part and reserve in part, of course, is proper for there is no law prohibiting you from receiving property with such a tract reserved in the grantor; provided, however, that it is clearly defined and described. Under tract 2 of the deed no specific description is given the acre and half and unless it is set apart and shown to be a sewage disposal plant location in the plat referred to in the deed, then it is too indefinite for you to accept. The reason for this, of course, is that you could never safely know which of the 18.9 acres of land might be chosen later for the disposal plant.
You refer to future acquisition that Mr. Maddox hopes to accomplish through condemnation or otherwise. It appears that he, through his attorney, Robert Russell, is going to take whatever steps that are necessary in this connection and therefore I do not believe that I would be concerned with that problem at this time.

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PROPERTY-State (Unofficial)

Conveyance and sale of State property is vested in the Legislature.

Honorable William E. Smith

July 17, 1961

In your letter you refer to the fact that in 1940 the City of Americus by deed conveyed to the State of Georgia certain property in the City of Americus for use as a State Patrol barracks and headquarters site, the deed containing a provision that should the site be abandoned as a Patrol headquarters and barracks site, it should revert to the City of Americus upon the payment of a stipulated sum Of money by the City to the State of Georgia. You further point out that new State Patrol headquarters and barracks buildings have been constructed on a new site and, Sumter County and the City of Americus are undertaking to bear the expense of erecting the new buildings.. You request that, in view of the fact that the City of Americus has promised Sumter County to sell the old site and devote the proceeds of such sale to the construction of the new buildings, the State reconvey title to the old site of the State Patrol headquarters and barracks to the City of Americus, thus rendering it unnecessary for the City to pay to the State the amount stipulated in the 1940 deed.

Of course, we appreciate your situation and sincerely wish that we might make arrangements for a reconveyance of the property involved immediately. However, it seems clear that under the Constitution and laws of Georgia the power to dispose of State owned property rests in the Legislature and such property may not be sold or otherwise disposed of without specific legislative approval. This general principal is stated in 81 CJS, Section 107, at page 1079:

"State property cannot be sold or disposed of except by authority of law, but in the absence of constitutional limitations, the State, like any individual owner of property may convey its property in any way it sees fit, and its grant may be express or by necessary implication. The power to dispose of State property is vested in the Legislature which may make provision therefor by statute, and may regulate or change any time the method of disposition, and the statutory provisions must be complied with or the sale will be void." (Emphasis added.)

Since there appears to be neither a general or special statute nor a resolution of the General Assembly which would authorize any officer of the State to reconvey the site of the old State Patrol headquarters and barracks in Americus to the City of Americus, such a reconveyance could not be lawfully accomplished at this time. Of course, since the General Assembly is vested with plenary authority to provide for the reconveyance of this property to the City of Americus by statute or resolution, this could no doubt be accomplished by the Legislature at the next session.

PROPERTY-State (Unofficial) Disposition and sale of surplus State property (pistols) discussed. May 3, 1961
Honorable T. B. McDorman
Thank you for your letter stating that the Department of Public Safety possesses 138 surplus pistols and that it has requested the Supervisor of Pur-

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chases to sell such pistols to county and municipal law enforcement agencies; and requesting an opinion of the Attorney General as to the legality of such proposed sale.
The authority of the Supervisor of Purchases to sell such pistols is manifest as is evidenced by Section 40-1902 of the Code of Georgia Annotated, which provides in part as follows:
"40-1902. The Supervisor of Purchases shall have power and authority and it shall be his duty subject to the provisions of this Chapter:
* * *
"E. . .. to sell all supplies, materials and equipment which are surplus, obsolete or unused; ..." See also Op. Atty. Gen. 1954-56, at p. 660.
We should note that this Code Section establishes no guideposts or requirements governing the manner of consummating the sales therein authorized and, consequently, the Supervisor of Purchases is vested with broad discretion in this matter.
In considering the proposed limitation of the potential purchasers of the pistols to those within a small segment of the public, we should note Section 4 of Article 9 of the Rules and Regulations of the Supervisor of Purchases which provides as follows:
"Sec. 4. Whenever a department certifies in writing to the Supervisor that certain described equipment is 'surplus, unused and disposable', he will advise its method of disposal, either by gift or transfer to another department, or by sale. If it is necessary to sell such surplus equipment, due notice to the public shall be given, and written bids received by the Supervisor, or by the department at his request, and the highest and best bid will be accepted by the Supervisor. The item or items of equipment disposed of, as above, may then be taken from the inventory, the file of the transaction being attached to the inventory."
The proposed segmentation obviously conflicts with the "due notice to the public" provision of the above Section 4, however, it is self-imposed by the Supervisor of Purchases and, therefore, it may be altered in accordance with his desires. See Code Section 40-1906.
In conclusion, it is my opinion that the Supervisor of Purchases possesses the authority to sell such pistols and that the questions of limiting the potential purchasers and fixing the prices of the pistols, appropriately address themselves to the sound administrative discretion of the Supervisor of Purchases.
PROPERTY-State
Disposition of surplus properties of Forestry Commission discussed. November 1, 1960
Honorable George Bishop Georgia Forestry Co~mission
I have your letter of recent date in which you ask that this office instigate the necessary proceedings to enable the Georgia Forestry Commission to dispose

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of a building and land in Dooly County, one-half mile west of Pinehurst, Georgia, that have become surplus to the needs of the Forestry Commission.
With the exception that follows, I am of the opinion that the Director of the Georgia Forestry Commission, with the approval of the Commission, may dispose of this property by following Georgia Code Annotated, Section 43-218, which reads as follows:
"Rules and regulations as to lands under control of Commission; sale, exchange, or lease of such lands.-The Director, with the approval of the Commission, is authorized to establish and from time to time alter rules and regulations governing the use, occupancy, and protection of the land and property under its control, and to preserve the peace therein. The Director, with the approval of the Commission, shall have full power and authority to exchange, sell, or lease lands under its jurisdiction when in their judgment it is advantageous to the State to do so in the highest orderly development and management of State forests: Provided, however, that said lease, sale, or exchange shall not be contrary to the terms of any contract which they have entered into. (Acts 1955, pp. 309, 319.)"
The exception referred to is that if any of the property is of the nature of supplies, materials, and equipment-in other words, those things that would not be fixtures and thereby part of the realty-it would seem the Supervisor of Purchasing would be the appropriate party to contact with reference to disposition of these items, in view of Georgia Code Annotated, Section 40-1902, paragraph E, which reads as follows:
"E. To have general supervision of all storerooms and stores operated by the State Government, or any of its departments, institutions, or agencies; to provide for transfer and/or exchange to or between all State departments, institutions, and agencies, or to sell all supplies, materials and equipment which are surplus, obsolete or unused; and to maintain inventories of all fixed property and of aU movable equipment, supplies and materials belonging to the State Government, or any of its departments, institutions, or agencies."
If you decide to sell the land and house under the authority set forth above, this office will be most happy to prepare a deed conveying same to the purchaser, or assist you in any other manner you so desire.
P R O P E R T Y- S t a t e
Acceptance of a gift of property to the State, with numerous conditions attached is inadvisable.
January 12, 1960
Honorable Charles A. Collier, Director State Parks Department
Your letter enclosed a copy of Tentative Proposals made in connection with the granting of a so-called "gift" to the State of Georgia approximating 1,000 acres to be used as a State park in Brooks County, Georgia.

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You ask if we will advise you as to the acceptance of the conditions and provisions under which this gift is to be made, a copy of said conditions being attached.
I have not determined it necessary to research Georgia laws in connection with the eleven proposals set out, for I feel that as a practical matter the acceptance of such a gift, if we may call it that, by the State of Georgia would be regretable. The donors in item 1 appear to grand a fee simple title and then by the remaining items place so many conditions and restrictions that the use of the term fee simple is reduced to a practical absurdity. For example, No. 5 places you in the stump-clearing business for them to share in profits, if any, to the extent of 25o/o, with no risk to them. No. 6 retains in the grantors the unlimited right to use or take back any portion of this property from time to time for their own use, both personal and commercial.
This would indeed be advantageous to them, especially in that under No. 7 they require you to clean the lake of stumps, snags, and logs and No. 8 requires the water level to be raised by you, dam controlled by you, and even weed control by you so that the lake may be made desirable for fishing, boating and swimming, lending to the complete development of the site which they could use up, for themselves, under No. 6.
No. 9 even requires you to fence, which amounts to g1vmg them a fence ' inasmuch as the fence is to be placed between your property and other property
of the donors.
If, by any stretch of the imagination this could be considered a fee simple, I wonder in item 10 why they require you to later purchase that portion of the property upon which you may decide to locate any buildings.
It is not my intention to scoff at the generosity of these people, but as stated I do not see how this property could be accepted by you under the burdensome conditions mentioned.
PROPERTY-State
The Supervisor of Purchases may consider bids from mutual insurers only when such contracts are written upon a nonassessable basis and where no contingent liability is assumed or agreed to be paid by the State.
May 25, 1961
Honorable Alvan C. Gillem, Jr. Supervisor of Purchases
I have your letter in which you call my attention to a 1955 ruling that the State of Georgia could not become a "member" of a mutual insurance company. You also point out that Section 56-1516 of the Insurance Code of 1960 apparently permits the State to become a member of a mutual insurance company. You ask for an informal opinion as to whether the Superivsor of Purchases may consider bids or quotations received from mutual companies in the fire insurance and fidelity bond programs now being developed by your Department.

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The opmiOn of April 21, 1955 (Opinions of Atty. Gen. 1954-56, p. 261) is predicated on Article 7, Section 5, paragraph 1 of the Georgia Constitution of 1945 (Ga. Code Ann., Section 2-5801) which provides:
"The Gene,ral Assembly shall not authorize any county, municipal corporation or politica.l subdivision of this State, through taxation, contribution or otherwise, to become a stockholder in any company, corporation or association, or to appropriate money for, or to loan its credit to any corporation, company, association, institution or individual, except for purely charitable purposes. This restriction shall not operate to prevent the support of schools by municipal corporations within their respective limits."
The opinion points out that mutual insurers write two types of policies, that is, assessable and nonassessable contracts. The assessable policy contains a provision that the insured may be assessed an additional premium if the experience of the company is such as to require additional assessment, while the nonassessable contract is written on a stated premium basis.
Without going further into the 1955 opinion above referred to, it merely decides that public property cannot be insured in mutual companies where there is contingent liability for additional premiums.
Section 56-1516 of the Geo,rgia Insurance Code of 1960 in Sub-section (2) provides:
"Any person, government or governmental agency, State or political subdivision thereof, public or private corporation, board, association, firm, estate, trustee or fiduciary may become a member of a domestic, foreign or alien mutual insurer.... " This provision cannot be construed to alter or change the restrictions imposed by Article 7, Section 5, paragraph 1 of the Constitution of Georgia above quoted, which has not been altered or amended. Nor do I construe the 1960 Code provision necessarily to be in conflict with the Constitutional restriction. You will note that the 1960 Code provision is silent on the question of contingent liability of those enumerated persons, political subdivisions, corporations and other associations who may become members of a mutual insurer.
You are therefore advised that, in my opinion, the Supervisor of Purchases may consider bids and quotations from mutual insurers authorized to write fire insurance and fidelity bonds in Georgia only when such contracts are written upon a non-assessable basis and where no contingent liability is assumed or agreed to be paid by the State or any of its political subdivisions.
PROPERTY-State
The State of Georgia may not accept a deed conveying less than a fee simple title to the State.
March 4, 1960 Honorable Abit Massey, Director Department of Commerce
I am in receipt of your letter of March 1 together with the proposed deed to the sovereign State of Georgia conveying an easement and usufruct of certain

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properties in Screven County to be used as a location for the construction of a tourist welcome station. From your previous correspondence, I judge that it is your intention to expend funds in improving this property.
Article VII, Section III, Par. IV of the Constitution of the State of Georgia provides that 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, associat,ion or corporation.
It se,ems proper to conclude that property conveyed in such manner and containing a reversionary interest in the grantor would, after being improved with State funds or by the labors of State personnel, be in violation of the above-cited Constitutional provision.
Therefore, I do not believe that the State of Georgia may accept a deed conveying anything less than fee simple title where it, is contemplated that State funds will be expended in connection with the use and enjoyment of the property. Also, in the absence of express statutory authority, I do not believe the State of Georgia may accept anything less than fee simple title, even where it is not contemplated that State funds may be used to improve such property so long as that possibility exists.
P R O P E R T Y- S t a t e
No restrictions against placing commemorative markers on State Property.
March 30, 1960
Honorable Jack M. Forrester, Director State Board of Corrections
Receipt is acknowledged of your ]e,tter requesting advice as to whether it would be permissible to place a marker indicating the site of Old Troupeville on the Lowndes-Troupeville State Prison property at Valdosta.
From your letter and the letter from Warden Devane, I understand that this marker will in no way interfere with the operation of the Prison, and that no expense will be incurred in its placement.
A thorough search of the Code of Georgia, and more particularly the section relating to State Property, reveals no legal prohibition against the placing of such a marker on State Property. Therefore under the above cited circvmstances, I am of the opinion that it would be permissible for this marker to be placed on State Property.

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PROPERTY-State (Unofficial)
The Department of Parks may not lease any State-owned park property.
August 10, 1960
Honorable S. Ernest Vandiver, Governor
I am in receipt of your letter of August 9 with reference to the "Little River Project" between Colquitt and Cook counties which you state will be the property and project of the State Parks Department.
You ask for my opinion concerning the legality of the State Parks Department entering into long-term leases with private citizens who would build cottages and dwellings upon the leased premises. You ask whether such a lease arrangement would have to have the approval of the General Assembly.
Georgia Laws 1956, p. 22, authorized the Department of State Parks to enter into leases of State-owned park property. This however was, by Acts 1958, p. 116, repealed in its entirety. My conclusion is that the Department of State Parks may not lease any State-owned park property.
Therefore, if such an arrangement was desired it would be necessary to have specific approval of the General Assembly authorizing the leasing of these lots.
PROPERTY-State
Acceptance of property conveyed to State with a reversionary clause discussed.
November 2, 1961
Dr. Claude Purcell, State Superintendent of Schools,
I am pleased to acknowledge and answer your letter wherein you request an opinion regarding the propriety of acceptance of certain property owned by the Georgia Warm Springs Foundation, a New York corporation, under a proposed deed containing a number of covenants, restrictions and conditions, a copy of which was attached to your request. The subject property located at Warm Springs, Georgia, is to be conveyed to the State of Georgia for the purpose of establishing thereon a vocational rehabilitation center.
The subjed deed contains the following reversionary clause:
"Grantee further covenants and agrees that in the event that the grantee, or an instrumentality thereof, shall at any time cease to use the propedies conveyed by this indenture for the purposes as are hereinbefore expressed, then and in that event the title to the said properties herein conveyed shall revert to the grantor, its successors or assigns, and the grantor, its successors or assigns, is to have the right of re-entry and possession thereof."
Georgia Code Section 91-117 heretofore provided:

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"Funds for the improvement of real estate.-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.)"
This office has rendered a number of official opinions in the past dealing with reversionary clauses in such deeds and interpreting the foregoing Code Section. On April 29, 1952, in an official opinion rendered the Director of the Georgia Commission on Alcoholism (Ops. of Atty. Gen. 1952, p. 109), this office ruled as follows;
"It is my opmwn that under the reversionary clause contained in the deed submitted, there is a possibility that State funds could in the future be lost through the happening of the events specified in said clause. Therefore, it is my view that State funds could not be used to improve the property to be conveyed to the State under the terms of the proposed deed as now drawn."
See also Ops. of the Atty. Gen. 1952, pp. 357, 359 and 502 and Ops. of the Atty. Gen. 1954, pp. 573, 574.
A reversionary clause providing that the property will revert to grantor if the State fails to improve and so use the property for the purposes granted within a given specified period of time is permissible and may be included in deeds to the State. See Ops. of the Atty. Gen. 1952, p. 170.
The 1961 General Assembly repealed the Act contained in Georgia Laws, 1945, p. 124 (Code Section 91-117) and enacted in lieu thereof the following provision, (See Ga. Laws 1961, p. 47, Sec. 2):
"Any real estate held by the State of Georgia in fee simple or held under a quitclaim deed with a reversionary interest in the Federal government or under a long-term federal license agreement with a reversionary interest in the Federal government may be improved with funds appropriated for a State Department provided the Director of the Department affected and the Budget Bureau, consisting of the Governor and the State Auditor, consent to the use of such funds if the amount of the funds to be appropriated exceeds one thousand ($1,000.00) dollars. If the amount of the improvement funds to be appropriated is one thousand ($1,000.00) dollars or less, the Director of the Department shall have the authority to approve the appropriation without the approval of the Budget Bureau."
I am of the opinion that insofar as the subject property is concerned the foregoing recent enactment of the Georgia General Assembly does not require or permit of a ruling different from those set out above rendered under Code Section 91-117 as previously written.

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PROPERTY-State (Unofficial)
It is inadvisable to install "bumper" strips across the roads in the State Parks for the purpose of controlling speeders.
August 1, 1961
Honorable Charles A. Collier, Director The Department of State Parks
Thank you for your letter stating that The Department of State Parks is contemplating the construction of several "bumpers" within and across the roads of the Georgia Veterans Memorial State Park in Crisp County, Georgia, for the purpose of preventing or reducing excessive vehicular speeds, the bumpers being indentations of seve,ral inches in width and depth; and inquiring as to whether or not the Department or its officers or employees would be liable for personal injury or property damage sustained by any traveler in crossing a bumper.
It is my understanding that the bumper device is designed to severely jolt persons traveling over it in motor vehicles. Unless they observed it in time and reduced their speed to such an extent that the vehicle would cross it without jolting the occupants, very likely the operator of a vehicle would cross it without seeing it, unless, he was especially looking for it or had his attention called to it in some way. It would be dangerous to cross the device at a lawful rate of speed and exceedingly dangerous to cross it at an excessive rate of speed. Obviously, the effect of the bumper is to create one danger in an attempt to prevent another.
In considering the departmental aspect of liability, it is my opinion that The Department of State Parks would not be liable in tort for injuries sustained by a traveler in crossing a bumper. Op. Atty. Gen. 1954-56, p. 650; Id., 1950-51, pp. 312, 313; and Id., 1945-47; pp. 603, 632.
In considering the other aspect of liability concerning the officers and employees of the Department, I wish to call your attention to the case of City of Vicksburg v. Harralson (1924) 136 Miss. 872, 101 So. 713, 39 A.L.R. 777, holding that a city has no right to place in its street, for the purpose of warning drivers of the danger of a street intersection, a "bumper" constituting a dangerous device or obstruction which an automobile driver, even in use of ordinary care, may not see, and by which a driver, who has no knowledge thereof, or who, through momentary forgetfulness or distraction of attention elsewhere, does not stop or reduce the speed of his automobile, is injured, though driving at a reasonable rate of speed, and installation thereof is negligence'. The Vicksburg case is reflective of a line of cases concerning obstructions in and adjacent to public roads. Hayes v. City of Adel (1943) 232 Iowa 1139, 7 N.W. 2d, 733; Lenderman v. Haynie (1954) 89 Ga. App. 513 (2), 80 S.E. 2d 216; and see Annotations in 7 A.L.R. 2d, 226-251. If a traveler received an injury as the result of crossing a bumper, he might compare his case with the above line of cases and contend that the construction and maintenance of the bumper constituted negligence per se or that it constituted a nuisance and that, consequently, the official of The Department of State Parks directing the construction of the bumper acted beyond the scope of his lawful authority and committed an actionable wrong, and that the act so committed was not ''State action" and, hence, that a suit was maintainable in the courts of this State against the wrongdoer. Please understand that this is not an opinion that such a suit could be, maintained against such official in his personal capacity, however, it is my opinion that it would be prudent to

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avoid the possibility of any such exposure to tort liability and to utilize other devices and techniques for the regulation of speed upon the roads of the Georgia Veterans Memorial State, Park.
PROPERTY-State
Arrangement for sublease of islands located in Lake Lanier with construction of access road as consideration discussed.
February 12, 1960
Honorable Charles A. Collier, Director State Parks Department
This is to acknowledge your letter in regard to the possibility of leasing two islands located in Lake Sidney Lanier which the State of Georgia holds under lease from the U. S. Corps of Engineers. You state that these islands are nonaccessible unless certain necessary road construction is accomplished at a cost of approximately $23,000. You ask if it is possible for the Department of State Parks to enter into a long-term agreement whereby the concessionaire provides the construction of the access roads amortizing his investment in lieu of annual concession payment.
Georgia Code Section 43-131 provides, in part, that the Director is authorized to sublease, upon approval of the Governor and the agency or department of the United States government which executed the lease, any property that the department has obtained by lease from the United States government to individual citizens of Georgia upon the same terms and conditions, and for the same period as such property was leased by the State of Georgia from the United States government.
Therefore, it would be proper from a legal standpoint for you as Director of the Georgia Department of State Parks to enter into such a lease agreement for any period up to the period of limitation contained in your lease from the United States government. Consideration for said lease should be an annual payment of the same consideration which you are now paying the United States government for the subject property. In addition to this consideration, the agreement should set forth the initial capital expenditure of the $23,000 and also the requirement that the improvement be in conformity with plans and specifications approved by the United States Corps of Engineers and the State Highway Department.
I do not feel that amortization schedules should be attempted in this agreement for should the lessee violate rules of the U. S. Corps of Engineers or of the Georgia Department of State Parks and it became necessary to evict him from the premises, there may be some question of remaining amounts due and unamortized. It would be a better course to consider this initial expenditure and improvement as the original consideration, followed only by the annual payment of the amount previously discussed.

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PROPERTY-Transfer
To properly transfer property acquired under a deed with restrictions and limitations, such re,strictions and limitations must be complied with.
July 18, 1961
Major General George J. Hearn, The Adjutant General, Department of Defense
I have your letter with attachments consisting of a warranty deed from Tift County and the City of Tifton to the State of Georgia, Department of Defense, Military Division and a copy of a deed from The United States of America to the City of Tifton and Tift County which, as I understand, is the deed by which Tift County and the City of Tifton acquired the land they are conveying in the first-mentioned instrument.
Your request is for my opinion as to the validity of the deed to the State of Georgia.
The deed to the State of Georgia is made subject to the "reversion provision in the Deed from the United States of America."
This last referenced deed has many restrictions and reservations and upon breach of any of them, "the title, right of possession and all other rights transferred to the parties of the second part, or any portion thereof, shall at the option of the party of the first part revert to the party of the first part upon demand made in writing. . . . "
Without going into all the above-referenced restrictions and reservations, I would call your attention to one of the' restrictions or reservations which reads as follows:
"(6) That the property transferred hereby may be successively transferred only with the approval of the Civil Aeronautics Administration or the successor Government Agency and with the provision that any such subsequent transferee assumes all the obligations imposed upon the parties of the second part by the provisions of this instrument."
In the enclosures forwarded to me, I have found no indication of a compliance with this paragraph. I am, therefore, constrained to advise you that in my opinion there could be no valid transfer of this property without complying with the provisions set forth in the above quote.
Even if the above quote were complied with, I feel I should point out that the transfer would still be subject to the other reservations and restrictions as set forth in the deed dated July 1, 1947, from the United States of America, acting by and through the War Assets Administration, to the City of Tifton and Tift County and that upon breach of any of the reservations or restrictions, the United States could cause the property to revert upon sixty (60) days notice.

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PUBLIC HEALTH-Commission on Alcoholism (Unofficial)
Discussion of when a chronic alcoholic may be committed by the courts, or remanded to the Commission on Alcoholism.
April 4, 1961
Honorable C. C. Crockett
We have for reply your letter addressed to Dr. John H. Venable, Director of the Department of Public Health, State of Georgia, with reference to remanding alcoholics to the Department of Public Health in lieu of imposition of sentence.
The Georgia Laws of 1951 at page 813, Section 14, provides as follows:
"Commitment by courts. The judge of any court of this State having jurisdiction of misdemeanor cases may, upon finding a person guilty of any violation of the law, which violation is a misdemeanor resulting from such person's chronic and habitual use of alcohol, remand any such person over eighteen (18) years of age to the Commission for care and treatment for a period not to exceed ninety (90) days, in lieu of the imposition of a sentence, provided, however, that the executive director of the Commission will receive such person as a patient. Appeals from such orders of the court may be taken in the same manner as provided for appeals from any other judgment of such court."
In 1960 the law creating the Georgia Commission on Alcoholism was amended and all functions, etc. of the Commission were transferred to the Department of Public Health of the State of Georgia, and Section 14 was amended by striking the words "Commission for Care" and inserting in lieu thereof "the Department of Public Health for Care." Also by striking the words "executive director of the Commission" and inserting in lieu thereof the word "Department." The 1960 amendments are set out on page 208 of the Georgia Laws 1960.
It seems clear that the intent of the Legislature in amending the law creating the Georgia Alcoholism Commission was that judges of courts of this State having jurisdiction of misdemeanor cases may, upon finding a person guilty of any violation of the law resulting from such person's chronic and habitual use of alcohol, remand such person over to the State Department of Public Health for care and treatment only in the facilities of the Georgia Alcoholism Commission, and not at Milledgeville State Hospital.
There is no provision in the law that we are familiar with which provides for remanding a chronic alcoholic to Milledgeville, in lieu of the imposition of a sentence without a trial and conviction or commitment for insanity either under the provisions of the criminal law or through the ordinary's court.
You will note that persons remanded to the Georgia Alcoholism Commission are subject to the provision that the "Department" will receive such persons as patients.

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PUBLIC HEALTH-Cost of Care (Unofficial)
Cost of patient care in State institutions discussed.
November 1, 1960
Honorable Harold R. Banke
In answer to your inquiry, I have looked into the law with reference to payment of costs for care of patients in State institutions as set out in Georgia Laws of 1960, page 1138.
In a case such as you mentioned, where a patient had received a bequest of One Thousand Dollars ($1,000.00), I do not believe that amount would be subject to assessment by the State Department of Public Health for the reason that the pattern of assessing liability against patients or members of their families held responsible is based upon determination of gross income less certain specified deductions and exemptions.
The "Cost for Care Law" on page 1139 states under subparagraph (e): "Gross income, deductions, credits and pers\onal exemptions shall
have the same meaning as these words have in the interpretation of the Georgia Income Tax Laws now or hereafter in force,."
Code Section 92-3107 under definition of "Gross Income" excludes and exempts from taxation, under subparagraph (4):
"The value of property acquired by gift, bequest, devise, or descent (but the income from such property shall be included in gross income)."
PUBLIC HEALTH-Cost of Care
Payment by patients for cost of care in State institutions discussed.
November 14, 1960
Dr. John H. Venable, Director Georgia Department of Public Health
In your letter you submit the following questions in connection with the administration of the Payment of Cost for Care of Patients in State Institutions Act, Ga. Laws 1960, p. 1138, and have requested an opinion on these problems, to wit:
"1. Does this Act preclude acceptance by this Department of voluntary payment of cost of care for patients in State institutions without investigation as to the volunteer's 'ability to pay' under the Act, or where such investigation reveals that the volunteer's income is such that no assessment could be made against him under the Act for cost of care?
"If not,
"(a) May such voluntary payments be accepted from persons not legally liable for the cost of care of a patient, as well as from the patient

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himself and/or those who are legally liable for the patient's cost of care?
"(b) May the Department send a reminder each month to the person (s) volunteering the payment for cost of care?
"(c) Where the volunteered payment is to be from Social Security or other retirement funds and the volunteer requests the payor to make its check payable to the Department, may the Department accept such check?
"(d) Where the volunteered payment is to be from Social Security or other retirement funds, may the Department make a claim directly to the payor for the monies?"
1. It is my opinion this Act does not preclude the acceptance by the Department of Public Health of voluntary payments of cost for care of patients regardless of whether an investigation is made or not as to the volunteer's "ability to pay," or if an investigation is made and reveals that the volunteer's income is such that no assessment could be made against him under the Act. Georgia Code Annotated, Section 35-233 provides:
"Contributions for upkeep' of patients.-Any person, firm, corporation, or organization may contribute funds for the upkeep and maintenance of any person committed to the Milledgeville State Hospital under such rules as may be prescribed by the Director of the State De,partment of Public Welfare."
Further in this connection, it is my opmwn the exemptions from liability and assessment against the patients or persons liable for cost for care of the patient, are laws which may be waived by those persons in whose favor and for the protection of whom the laws were enacted. Ga. Code Section 102-106:
"Waiver of law..-Laws made for the preservation of public order or good morals cannot be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest."
1. (a) Following the answer above to question "1.", this question must be answered in the affirmative.
1. (b) I see' no limitations or restrictions, in the law dealing with cost for care of patients, in State institutions upon sending a reminder each month to persons who have volunteered the payment for cost of care. The "limitations" expressed in the statute' are against making "assessments" for cost of care except as provided after a determination of "gross. income, less deductions, credits and personal exemptions" as interpreted in the Georgia Income T'ax laws and as provided for in Sections 4, 5 and 6 of the Cost for Care of Patients Act of 1960.
1. (c) It is my opinion that :where the volunteered payment is to be "from social security, or other retirement funds," if the volunteer requests the payor to make its check payable to the Department of Public Health, and if the requirements of the payor to effectuate the assignment or transfer of the check are satisfied, the Department of Public Health may accept the check as a voluntary payment, even though the' same may be exempt from assessment.

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1. (d) Since social security, old age benefit payments and railroad retirement benefits are exempt from Federal income tax and Georgia income tax, and thereby exempt from assessment or claims by the Department of Public Health against the patient or persons liable for cost for care under the provisions of Sections 4, 5 and 6 of the Cost for Care Act, it is my opinion that the Department of Public Health may not make a claim directly to the Social Security Board or other payors for such exempt monies.
The following citations hold that social security and retirement payments are exempt from Federal income tax:
IT 3194, 1938-1 CB 114 Lump Sum Soc. Sec. under 204(a). IT 3229, 1938-2CB 136 Lump Sums under 203 and 204(b). IT 3447, 1941-1CB 191 Monthly payments under 202. R. R. Retirement Rev. Rul. 56-631 - 1956 - 2CB 25.
PUBLIC HEALTH-Euge.nic Sterilization (Unofficial)
A patient who has been recommended for eugenic sterilization may select her own physician to perform the operation.
August 25, 1961 Dr. Joseph H. Pritchett, Jr.
I have your letter of August 23, 1961, enclosing your file with reference to a proposed eugenic sterilization.
In reviewing your file we find that a colored female was admitted to the Milledgeville State Hospital on April 4, 1960. An application and recommendation that a sterilization operation be performed was submitted by Dr. I. H. MacKinnon, Superintendent of the Hospital, to the State Board of Eugenics on April 21, 1961. On May 18, 1961, the application for sterilization was approved by the State Board of Eugenics with copies of the approval of the application going to all parties in compliance with State law.
We are informed that the patient was furloughed on July 3, 1961, by the Milledgeville State Hospital. As we see it she could be returned to the Milledgeville State Hospital and await her turn for the performance of the eugenic sterilization operation, or Dr. MacKinnon could send a certified copy of the order of the Eugenics Sterilization Board to the Talmadge Memorial Hospital and request that they perform the operation.
The law provides in Section 99-1308 of the Georgia Code:
"[The Eugenics Sterilization Board] shall not interfere in any manner with the right of the patient or his representative to select a competent physician of his own choice, for consultation or operation at his own expense."
This patient is still under the control and jurisdiction of the Milledgeville State Hospital since she has not been discharged, and is on furlough, and if the Talmadge Memorial Hospital is willing to perform the operation upon the request of the Superintendent of the Milledgeville State Hospital in carrying out the order of the State Board of Eugenics, it is our unofficial opinion that there will be no contravention of the State law providing for eugenic sterilization.

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PUBLIC HEALTH-Funds
The Georgia Department of Public Health having previously received and utilized excess funds to other states, it is authorized to transfer certain excess funds to other states if not needed by Georgia.
June 20, 1960
John H. Venable, M. D., Director Departme.nt of Public Health
This will acknowledge receipt of your letter requesting an opm10n with reference to the authority of the Georgia Department of Public Health in a proposed transaction with the Surgeon General, United States Public Health Service. Your question is as follows:
"Does the Georgia Department of Public Health on behalf of the State of Georgia have authority to transfer the herein mentioned rehabilitation allotment balance for the fiscal year 1959 to the State of Alabama?"
It appears that there is no specific reference in any Act of the General Assembly of Georgia or in the Code of Georgia on this particular subject matter, since the State of Georgia has not previously had any unused funds allotted by the Public Health Service and no necessity for considering such a transfer has ever before occurred. However, it appears to be a matter of record that the State of Georgia through the Department of Public Health has been the recipient of such transfers from other States, such transactions having occurred under Federal statutory authority, and finally in the present instance we are now called upon to participate in a transfer of an unused allotment to an adjoining State, viz.,~ the State of Alabama.
You state in your letter that assurance is given by the sponsor in Alabama that out-of-state residents will be admitted on the same basis as Alabama residents, and that we are authorized to place specific requirements on Alabama as to the use of the facility if the funds allocated to Georgia, which we are now unable to use are used by the above sponsor.
This proposed transaction is in the nature of an adjustment of allotments as between States and the authority is found in the Public Health Service Act quoted as follows:
"Adjustment of allotments as between States-(c) In accordance with regulations, any State may file with the Surgeon General a request that a specified portion of an allotment to it under Sections 291s-291v of this title for any type of facility be added to the corresponding allotment of another State for the purpose of meeting a portion of the Federal share of the cost of a project for the construction of a facility of that type in such other State. If it is found by the Surgeon General (or, in the case of a rehabilitation facility, by the Surgeon General and the Secretary) that construction of the facility with respect to which the reques.t is made would meet needs of the State making the request and that use of the specified portion of such State's allotment, as requested by it, would assist in carrying out the purposes of said Sections, such portion of such State,'s allotment shall be added to the corresponding allotment of the other State, to be used for the purpose referred to

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above." 42 U.S.C.A., Chapter 6A, Subchapter IV, 291V (c).
Provisions found in Act 1903 pp. 72, 73, as follows:
"The State Board of Health shall have supervision of all matters relating to the preservation of the life and health of the people." 88 Code of Ga., Ann. 112.
Therefore, it is my opinion that the State Board of Health, having heretofore participated in similar transactions as the transferee of allotted funds allotted to us by the United States Public Health Service, would be authorized to become a party to a similar transaction under the same Federal Statute above quoted as transferor of the, fund which we are unable to use and which otherwise would lapse.
PUBLIC HEALTH-Local Boards
County Boards of Health have authority to promulgate and enforce rules and regulations relating to milk quality and sanitation.
November 18, 1960
Dr. John H. Venable, Director Georgia Department of Public Health
You have requested an opinion as to the exact authority of county boards of health with respect to the promulgation and enforcement .of rules and regulations relating to milk quality and sanitation.
As to the general powers of county boards of health to enact rules and regulations for the protection of the health of its citizens, there are Code Sections dealing specifically with the subject, and the Supreme Court of Georgia has held that the regulation of the, sale of milk products is related to the health and physical welfare of citizens. (Wright v. Richmond County Department of Health, 182 Ga. 651.)
Code Sedion 88-203 of the Code of Georgia Annotated provides as follows:
"The county boards of health of the several counties shall have full power and authority to adopt, enact, establish, and maintain all such rules and regulations not inconsistent with the laws and Constitution of this State and of the United States, as they may deem necessary and proper for protecting the health of their respective counties, and for preventing the introduction, generation and spread of infectious and contagious dis,eases therein.
"If any citizen shall be aggrieved by any order made and enforced by any county board of health, the commissioner of health or other authorized agent thereof under and pursuant to the authority of this Section and the rules and regulations made and promulgated by said board hereunder, he shall have a right of appeal and an opportunity to be heard thereon upon notice being given in writing to the board or its duly authorized agent within 10 days from the date of such action, but such appeal shall not act as a supersedeas.

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"If, upon administrative hearing had upon such appeal and final order thereon, the appellant remains of the opinion that his rights have been invaded he shall have a right of appeal to the Superior Court in the county of his residence: Provided, however, that such appeal shall be filed with the clerk of such court within 30 days from the date of such order complained of: Provided, further, that the enforcement of the order appealed from shall not be stayed until and unless so ordered and directed by the reviewing court."
Code Section 88-205 of Georgia Code Annotated provides as follows:
"Such rules and regulations as may be established for any county, under the provisions of Chapters 88-2 and 88-3, and any amendments or alterations thereof, before the same shall have the force of law, shall be posted at the courthouse door of the county and also published at least once in the newspaper of the county in which the sheriff's notices are advertised."
Specifically dealing with regulations relating to milk standards by counties and municipalities, see Section 42-522.5, Georgia Code Annotated, which provides:
"All municipalities, cities, towns and counties shall have the power and authority by ordinance or otherwise to set up standards concerning all milk and ~ilk products sold within their limits higher than the standards prescribed heretofore in this law [ 42-522.1 to 42-522.5], and such municipalities, cities, towns and counties shall have the power and authority to revoke or cancel the permit or license of any person, firm or corporation doing business within their limits who violate any of the provisions of this law [ 42-522.1 to 42-522.5], or ordinance, or of any rule or regulation, or order prescribed by said municipalities, cities, towns or counties. No rules and regulations shall be promulgated by the Commissioner of Agriculture denying any municipality, city, town or county the power and authority provided for in this Section."
The Code Section last cited above precludes any conflict of jurisdiction or of power to regulate milk between the county health boards and the Department of Agriculture, as does also Section 42-544(h) of the Georgia Annotated Code, which specifically recognizes. health laws regulating the seiling of milk:
"42-544(h) That the applicant or licensee has not complied with the health and sanitary requirements of any incorporated town or city in which he is selling milk or has not complied with any other health laws of the State of Georgia which may be applicable to him.... "
Likewise see Code Section 42-555.2 of the Food and Drug Act administered by the Department of Agriculture, wherein again the powers and jurisdiction of the health authorities are recognized with respect to regulation of milk quality and sanitation.
It is doubtful in my opinion whether the county health boards may invoke the penal provisions set out in Code Section 88-9902 with respect to the violation of any health rule or regulation, because of the decision of the Supreme Court of Georgia in the case of Glustrom v. The State, 206 Ga. 734, which held that the violation by the defendant of a rule of the State Revenue Commissioner promulgated pursuant to the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors", did not charge the defendant with the commission of a

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crime under the constitution and laws of the State, even though such Act sought to make a violation of the rules of the State Revenue Commission a misdemeanor. It was stated in the case that to make such a violation of a rule or regulation a crime would be an unconstitutional attempt on the part of the General Assembly to delegate to an administrative official authority to define a crime. The Court stated on page 740 of the decision:
"As an administrative rule or policing regulation, it could be enforced against the licensee by suspension or cancellation of his license. It has no other valid force and effect. To permit the General Assembly to abdicate and transfer to administrative agencies of government essential legislative functions, would strike down our constitutional system, and inaugurate the police state, condemned by every advocate of individual liberty and freedom."
It is open to question as to whether the "authority" referred to as the "governing authority of any county or municipal corporation" in Code Section 42-410, means county or city health board:
"Nothing in this Chapter shall prevent the governing authority of any county or municipal corporation from adopting ordinances or resolutions providing for the inspection of meats, poultry, meat or poultry food products, and dairy products sold within its limits and to provide penalties for violation thereof, but no such ordinance or resolution shall conflict with any power or authority of the Commissioner or his representatives. The Commissioner is hereby vested with the authority to designate licensed veterinarians, city or county health authorities, as inspectors as he deems advisable: Provided, however, that no county or municipal corporation shall adopt sanitary standards or specifications that are le,ss than those adopted by the Commissioner."
Likewise, it is questionable as to whether a violation of the provisions of Section 42-410 could be punished as for a misdemeanor as provided for in Code Section 42-9907 because of the ruling in the Glustrom case.
In my opinion the above authorities set out the authority of the county boards of health with respect to the promulgation of rule,s and regulations and their enforcement within the statutory pattern of licensing and the refusal and revocation of said licenses with provisions for hearings and appeals to the superior court and resort to injunctive relief for enforcement.
PUBLIC HEALTH-Local Boards (Unofficial)
Rule making powers and remedies of county boards of health cited.
June 9, 1961
Mr. S. B. Newman
I am in receipt of your letter relative to the request from the Board of Health that you install hot water in your rooming house in Augusta.

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For your information, I direct you to Georgia Code Section 88-203, which reads as follows:
"The county boards of health of the several counties shall have full power and authority to adopt, enact, establish, and maintain all such rules and regulations not inconsistent with the laws and Constitution of this State and of the United States, as they may deem necessary and proper for protecting the health of their respective counties, and for preventing the introduction, generation and spread of infections and contagious diseases therein.
"If any citizen shaH be aggrieved by any order made and enforced by the county board of health, the commissioner of health or other authorized agent thereof under and pursuant to the authority of this section and the rules and regulations made and promulgated by said board hereunder, he shall have a right of appeal and an opportunity to be heard thereon upon notice being given in writing to the board or its duly authorized agent within 10 days from the date of such action, but such appeal shall not act as a supersedeas.
"If, upon administrative hearing had upon such appeal and final order thereon, the appellant remains of the opinion that his rights have been invaded he shall have a right of appeal to the superior court in the county of his residence: Provided, further, that the enforcement of the order appealed from shall not be stayed until and unless so ordered and directed by the reviewing court."
If you have any further questions concerning this subject, it is suggested that you contact the county attorney for Richmond County, as this is a matter which more nearly concerns his office.
PUBLIC HEALTH-Local Boards
A local board of health with authority to establish and enforce rules may also enforce these rules upon a public pool located in a state-owned park.
June 22, 1960
Honorable Charles A. Collier Director, Department of State Parks
I am in receipt of your letter in regard to the filter system now employed by the Department of State Parks in the Yam Grande pool. It is stated that the Emanuel County Board of Health has adopted regulations which require the filter system in this pool to circulate at a rate of once every eight hours. You state that the filter system now in use accomplishes this once every ten hours. You ask if
you can refuse to make the additional expense to obtain an eight-hour turnover
in the light of the little use to which the pool is put.
The local board of health by the regUlatory powers granted by the legislature does have the authority to establish and enforce these rules and regulations pertaining to any public swimming pool, and this would include a public pool located on state-owned park property.

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Therefore, I am of the opm10n that unless the rules and regulations are changed by the Emanuel County Board of Health the Parks. Department would have to discontinue the operation of the swimming pool or effect the required change over.
PUBLIC HEALTH-Mattresses
1. All individuals and concerns with the exception of State institutions for their own use are required to label and stamp bedding articles.
2. An inspector may not be sent into an adjoining State without permission of that State.
3. Bedding articles sent into the State without stamps or labels may be seized and held for evidence.
July 20, 1960
Dr. John H. Venable, Director Department of Public Health
I am in receipt of your letter wherein you ask the following questions:
"1. A private concern is engaged in making mattresses for a County Farm (Prison). Is this concern required to properly label and stamp bedding articles?
"2. Does the law authorize a representative of the Georgia Department of Public Health to cross a state line in order to inspect a manufacturing concern in another state?
"3. In the event an out-of-state manufacturer sends into Georgia a truck loaded with bedding articles. that carry no tags or stamps what procedure should be followed by the authorized representative of the Georgia Department of Public Health?"
In answer to question one above, Georgia Code 88-1308 requires the labeling and stamping of articles manufactured by any individual or concern with the exception of State institutions engaged in the manufacture of mattresses for their own use, or for the use of other State institutions. Therefore, a private concern is required to properly label and stamp bedding articles.
In answer to question two above, Georgia law cannot permit a representative of the Georgia Department of Public Health to go into another state in the exercise of authorities. and powers conferred in this State. The only way this can be accomplished would be by permission of the foreign concern involved. However, Georgia Code 88-1303 and 88-1304 requires licensing in this State and the applicant for a license shall submit evidence of all operations and processes to the approval of the Board of Health.
In answer to question three above, if an out-of-state manufacturer sends into Georgia a truck loaded with bedding articles. that carry no tags or stamps (for unloading, sale or other disposition in this State) the duly authorized representative of the Georgia Department of Public Health upon affidavit made to the

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sheriff of the county where the truck is located may seize, inspect and hold for evidence this material and if violations have occurred the party violating can be found guilty of a misdemeanor under Georgia Code 88-9903.
PUBLIC HEALTH-Mattresses
Discussion of law pertaining to manufacture, renovation and sale' of mattresses in Georgia.
January 23, 1961
Dr. S. C. Rutland Georgia Department of Public Health
In your recent inquiry with reference to the administration of the law concerning the manufacture and sale of mattresses in this State, you have requested legal opinions on the following questions:
"1. Is a person making, remaking, or renovating mattresses in another state and selling said mattresses in Georgia required to secure a license from the Department of Public Health by paying a fee of $25.00?
"2. Is a person making, remaking, or renovating mattresses in another state and selling said mattresses in Georgia required to securely sew a cloth or a cloth-backed tag of a size and containing the information as required in Section 7 of the Georgia Mattress Sanitary Regulations Act to the mattress?
"3. Is a person making, remaking, or renovating mattresses in another state and offering same for sale in Georgia required to purchase stamps from the Department of Public Health and affix same to tags as described above?
"4. Is a person making, remaking, or renovating mattresses in Georgia required to affix the Georgia bedding stamp to tags on mattresses shipped into other states for sale?"
1. It is my opinion that any person making or remaking, or renovating mattresses in another state is not required to secure a license from the Department of Public Health by paying a fee of $25.00. Code Section 88-1303 of the Georgia Annotated Code provides in part 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 $25.00 therefor. . . ."
In construing the applicability of the above code section, I would like to call your attention to the following:
"License is in the nature of a special privilege, rather than a common right to all and is often required as a condition precedent to the right to carry on business, or to hold certain classes of property within the juris~ diction." (Emphasis added) 33 Amer. Juris., p. 325.

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"A state is without jurisdiction to impose a privilege tax unless the activities which are the subject of the tax are carried on within its territorial limits." James v. Dravo Construction Company, 82 Law Ed. 155, 302 U. S. 134, and Hans Rees' Sons v. N. C., 75 Law Ed. 870, 283 U. S. 123.
For authority pertaining to the policing powers and jurisdiction of the State of Georgia, please refer to Section 15-201, which provides:
" 'The sovereignty and jurisdiction of this State extend to all places within the limits of her boundaries, except so far as she has voluntarily ceded the same to the United States or adjacent States over particular localities.'
"Also see Miller Brothers v. Maryland (1954) 347 U. S. 340, 342; 98 L. Ed. 744; 75 Supreme Court 535, which in part holds as follows: 'No principle has. been better settled than that the power of a State, even its power of taxation, in respect to property, is limited to such as is within its jurisdiction.'" Opinions of the Attorney General 1957.
2. Code Section 88-1308 provides in part:
"No person shall make, remake, renovate or sell mattresses to which is not securely sewed a cloth or cloth-backed tag at least two by three inches in size to which is affixed an adhesive stamp. . . .''
It is my opinion that regardless of where mattresses are made or remade, if they are sold within the State of Georgia they are required to comply with Code Section 88-1308 with respect to stamps being affixed to the mattresses.
3. It is my opinion further, that a person, regardless of where the mattresses are made, or remade, who "offer the same for sale" in Georgia, is required to purchase stamps from the Department of Public Health and affix tags as. required by law, because, as set out in Code Section 88-1301, the word "sell" or "sold" shall in the corresponding tense, include: Sell, offer to sell, or deliver or consign in sale, or possess with intent to sell, deliver or consign in sale.
4. This question is answered in Number 3 above. It would be necessary to affix Georgia bedding stamps and tags on mattresses shipped into other states for sale if they are "offered for sale", or if they are to be delivered or consigned in sale, or if they are possessed with intent to sell, deliver or consign in sale.
PUBLIC HEALTH-Mental Health (Unofficial)
Compulsory commitment statutes for insane or mentally ill persons discussed.
January 4, 1961
Mr. Alan G. Kimbrell
We duly received your letter and have now had opportunity to review your outline regarding the constitutionality and desirability of compulsory commitment statutes such as the one contained in Georgia Code Annotated Section 27-1503. Please note that this is the codification of Acts 1952 page 205, 206 and has to do

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with the effect of acquittal because of insanity. This Act has to do with procedure in instances, where a contention is made on behalf of the accused that he was mentally incompetent at the time the act or acts charged against him were committed.
In the case of Bailey v. The State, 210 Ga. 52, the Supreme Court of Georgia held as follows:
"The provisions of the act of 1952 (Ga. L. 1952, pp. 205, 206), that, in the event of an acquittal of a person accused of crime by reason of insanity, the jury shall so state in their verdict, and the accused shall thereafter be confined in the state hospital for the insane, would not be unconstitutional, as being retroactive or ex post facto, when applied to the trial of a person charged with a crime committed prior to the date of the passage of the act.
"(a) The act of 1952 is mandatory that the trial judge shall instruct the jury in line, with the provisions of the act, and the failure to thus instruct the jury in the present case requires the grant of a new trial."
This statute, Georgia Code Annotated Section 27-1503, was again referred to by the Supreme Court of Georgia in the case of Davis v. The State, 216 Ga., page 110, in which case the facts were not adequate to demand that the court give the provisions of the Act of 1952 in his charge. We do not find where this Act has been referred to in any other decisions of our appellate courts.
Your inquiry prompts us to call to your attention the provisions, of Georgia Code Annotated Section 27-1502 and 27-1504. You may be interested in reviewing the case of Brown v. The State, 215 Ga. 784, which treats of a special plea of insanity at the time of the trial and holds that the proper question to be submitted to the jury is whether the defendant is mentally competent at the time of the trial of understanding the nature and object of the proceedings going on against him, and rightly comprehends his own condition if reference to such proceedings, and is capable of rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands. This case was decided on March 16, 1960.
We do not have any available statistics covering the number of defendants committed under the above statute who eventually obtained a release. The General Assembly of Georgia recently enacted H. B. 807 which among other things rewrote Georgia Code Annotated, Section 27-2602 which is a part of the statutory law on the subject of insanity after conviction. These comments are made in order to call attention to the complexity of dealing with the subject of insanity at the time of the commission of an alleged crime, at the time of trial, and insanity after a conviction. We have found generally that our statutes dealing with the subject are adequate.

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PUBLIC HEALTH-Mental Health
Insanity and its varied definitions discussed.
June 8, 1960
Honorable S. Ernest Vandiver Governor
This will acknowledge your letter with enclosed copy of H. B. 807, (Act No. 681), as enacted by the 1960 session of the General Assembly of Georgia. You request advice on the suggested form of "written instructions which plainly set forth the legal definitions of insanity as recognized by the laws of this State." A careful examination of the Code Section 27-2602 (Acts 1903, p. 77.), would indicate that the 1960 Act No. 681 which re-enacts the entire section was primarily intended to place upon the governor the responsibility of providing "written instructions which plainly set forth the legal definitions of insanity as recognized by the laws of this State."
The term insane and the term insanity are somewhat synonymous terms. The Code of Georgia defines the meaning of certain words and provides that the meaning of such words shall be given in all statutes, unless a different meaning is apparent from the context and the term insane is included in the following terminology, "Lunatic, Insane, or Non compos mentis, each includes all persons of unsound mind."
The term insanity is defined in the fourth edition of Black's Law Dictionary published in 1951 as follows:
"Insanity. Unsoundness of mind; madness; mental alienation or derangement; a morbid psychic condition resulting from disorder of the brain, whether arising from malformation or defective organization or morbid processes, affecting the brain primarily or diseased states of the general system implicating it secondarily, which involves the intellect, the emotions, the will and the moral sense, or some of these faculties, and which is characterized especially by their non-development, derangement, or perversion, and is manifested, in most forms, by delusions, inability to reason or to judge, or by uncontrollable impulses. In law, such a want or reason, memory, and intelligence as prevents a man from comprehending the nature and consequences of his acts or from distinguishing between right and wrong conduct. Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774; Johnson v. Insurance Co., 83 Me. 182, 22 A. 107; Frazer v. Frazer, 2 Dec. Ch. 263.
It appears that the general law on the definition of the term in a general sense, and in a legal sense, is well covered by the language used in Volume 44, C. J. S. which we quote to you as follows:
"INSANITY
" (1) In General
'Insanity' is an ambiguous, broad and generic term including every species of organic mental derangement, whatever the cause, degree, or extent, and, while it is difficult to give a precise definition which will apply to every case, it generally signifies derangement or unsoundness

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of intellect or mind, the opposite of sanity, or the state of unsound in mind.
" (2) Legal Sense
'Insanity' is not regarded as a strictly legal term, and it has been defined as a derangement or perverted mental condition which impairs a person's will power, or rende.rs the individual incapable of reasoning, or exercising his will, or of distinguishing between right and wrong." (44 C.J.S., 2, pp. 9, 11.)
Your attention is called to the latest definition of a "mentally ill person" which is found in the 1960 enactment of the General Assembly of Georgia, No. 618, Section 1, (1) as follows:
" 'Mentally ill person' shall mean a person who is afflicted with a psychiatric disorder which substantially impairs his mental health; and because of such psychiatric disorder requires care, treatment, training or detention in the interest of the welfare of such person or the welfare of others of the community in which such person resides and shall include, but not be limited to, any mental deficiency, alcoholism, or drug addiction when due to or accompanied by mental illness or mental disease."
Reference may be made to provisions in Chapter 24-19 regarding jurisdiction of the Court of Ordinary in issuing commissions of lunacy, and to the provisions of Chapter 49-6 of the Code of Georgia Annotated on the subject of guardians of insane persons and persons non compos, mentis. We are not unmindful of the Supreme Court's ruling in the case of Rozier v. The State, 185 Ga. 317, 321, and the discussion on page 321 of the "right and wrong test", and the subsequent decision in Brown v. The State, 215 Ga. 784, decided on March 16, 1960 in which the judgment of the lower court was reversed because the trial judge erred in submitting in his charge to the jury the "right and wrong" test as the sole and proper criteria for determining the issue of the present insanity of the defendant at the time of the trial.
Obviously so many varying and complex degrees of insanity exist that a concise definition of the many forms of the malady would require many more pages of comment. We believe this outline will be adequate for your current needs in transmitting to physicians under Act No. 681, 1960 session of the General Assembly, the general and legal definition of the term "insanity" to be used by them as a guide in making their determination.
PUBLIC HEALTH-Mental Health (Unofficial)
Discussion of commitment and treatment of mentally ill persons.
January 24, 1961
Judge Victor B. Jenkins, Jr.
We have received your letter and given it careful review. All of your questions substantially involve the intepretation of the provisions of the Act of 1960, pp. 837, 840, now codified in Chapter 88-16 Code of Ga. Annotated. The 1960

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Act revises the procedure with respect to the treatment of the mentally ill, and Section 25 of the' Act specifically provides that the provisions of law found in Ga. Code Sees. 49-604 and 49-605 are expressly retained and are not repealed by the 1960 Act.
The provisions of Code Sees. 49-604, 605, as compared with provisions of the 1960 Act now appearing in Code Sec. 88-1606 appear to be in the same general direction with certain variations in phraseology and directive. For instance, Code Sec. 49-604 provides for a petition by any person, 10 days notice of such application, the Ordinary to issue a commission to consist of 2 physicians and the County Attorney, or other attorney as indicated, the commission to examine the person, to hear and examine witnesses if necessary, and concluding that no guardian be appointed without the unanimous verdict of such commission. The language in Code Sec. 88-1606 provides for written application of any person, accompanied by a certificate of a physician, 10 days notice of hearing, appointment of an examining committee of 2 physicians and the County Attorney, or other attorney as indicated. This Code Section goes into more detail than Sec. 49-604 in that provision is made to subpoena witnesses, compel attendance by the Ordinary as if the proceedings were before his court. There is provision for the examination to be held at the home of the patient or other suitable place and for the committee to file, its written report with the court and provision that if the report is not unanimous to the effect that it finds the alleged patient to be mentally ill and in need of hospitalization, the Court of Ordinary shall without taking further action terminate the proceedings and dismiss the application.
Your first question "The function of the Ordinary in lunacy cases or involuntary commitment hearings?" Your attention is called to provisions of Code Sec. 88-1606(a) which reads as follows:
"(a) Upon the written application of any person, on oath, stating that he believes another person is mentally ill and in need of hospitalization, such application being accompanied by a certificate of a physician stating that he has examined the alleged patient in person and is of the opinion that he is mentally ill and should be hospitalized, the court of ordinary of the county in which the alleged patient is found shall take jurisdiction."
The remaining portions of Code Sec. 88-1606 appear to impose upon the Court of Ordinary the responsibility to give 10 days notice, to take the alleged patient into custody under certain circumstances, to appoint an examining committee, to receive a report from such committee and to take action upon such report. Generally the same responsibility appears to vest in the Court of Ordinary under the provision of Sec. 49-604 of the Code. We do not find any provision in either Code Section or elsewhere requiring the judge of the Court of Ordinary to attend upon or participate in the activities of the commission or the examining committee. Please make note that Sec. 49-604 of the Code uses the language "unanimous verdict of such commission", and in Code Sec. 88-1606(d) is found language
authorizing the Ordinary to issue subpoenas and to take the "same steps to
compel attendance as if the proceedings were before his court." It would appear therefore that the examining committee is an operating arm of the Court of Ordinary privileged and required to conduct its investigation as is provided by law and thereafter to submit a written report to the court. We trust that this outline will enable you to differentiate between the relative relationship existing between the Court and the examining committee.

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Your second question "The legal authority of the commission or examining committee to act outside of the county of its appointment?" Jurisdiction of the Court of Ordinary is well covered in Chapter 24-19 of the Code of Ga. Ann. The examining committee, being an operating arm of the court, could not extend its jurisdiction beyond the limits of the jurisdiction of the court itself. Please note the language of Code Sec. 88-1606(a) that "the court of ordinary of the county in which the alleged patient is found shall take jurisdiction", and then see the same Code Sec. 88-1606(i) "If the proceedings are held in a county other than the county of the patient's residence, a certified copy of the proceedings shall be sent to the Court of Ordinary of the county of the patient's residence who shall file the same of record." On the subject of jurisdiction, you may wish to review decisions found in 64 App. 298(1); 76 App. 171(1); and the case of Milan et al v. Terrell; and vice versa, 214 Ga. 199.
PUBLIC HEALTH-Milledgeville State Hospital
Effect of Act No. 618 of 1960 General Assembly on admission and discharge policies of Milledgeville State Hospital discussed.
June 27, 1960
Dr. John H. Venable, Director Department of Public Health
This will acknowledge your letter in which you pose two questions regarding admissions and discharges of patients at the Milledgeville State Hospital. It appears there are some 2,000 patients furloughed from the hospital now, and your problem and first question has to do with how these furloughed patients are to be handled hereafter. Section 35-239, Code of Georgia Annotated, provides that:
"Absentees for 12 months must be recommitted in form.-When a person shall have been properly received as a patient, but shall be absent for as long as 12 months, either from discharge, escape, or removal by friends, he shall not be received at the Hospital without going through the process required in this Chapter, according to the class of patients of which he may be."
The above is the law under which you are operating until July 1, 1960. You state in your letter that the current practice is for the furloughed patients to return annually to the hospital to renew their furlough. Under the above Act it appears that if the patient is absent for as long as 12 months, the hospital shall not receive him before the patient goes through the process of being readmitted as is provided in Chapter 35 of the Code of Georgia Annotated. This provision is found in Chapter 35-2 of the Code, a good portion of which chapter has now been repealed by the 1960 General Assembly of Georgia, including Chapter 35-202 on the subject of how patients are admitted and discharged.
It appears that Sec. 35-239 of the Code is being repealed by Act No. 618 of the 1960 General Assembly approved March 17, 1960, which Act becomes effective July 1, 1960, and on which date said Act No. 618 becomes law and you will thereafter, of course, administer your program of dealing with furloughed patients in

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accordance with the provisions of the new law. The mere fact that they become furloughed patients prior to July 1, 1960 would have no effect on the situation, and these furloughed patients automatically come under the new law when the new law goes into effect.
Your second question involves acceptance of involuntary patients in cases when the hospitalization form is incorrectly completed or not fully completed. You ask if the hospital may detain such a patient as a voluntary patient under Sec. 4 of the 1960 Act No. 618 until copies of the proceedings could be accurately completed. You indicate that you are currently detaining such cases, but feel that you are without authority to do so and your problem is what to do in such circumstances in order to avoid returning the patient to the county from which he was committed, presumably until the hospitalization form is correctly and fully completed and submitted to you.
The 1960 Act No. 618, approved March 17, 1960, which becomes effective July 1, 1960 appears to contain no specific directive or yardstick to cover this sort of s,ituation. However, provision is made in Sec. 6 for hospitalization upon court order and the judicial procedure incident thereto. We believe that if a patient is found to be hospitalized pursuant to the provisions of this section, subject to facts being available, that order of the court should be accepted by the hospital and the patient accepted subject to any correction or amendments in procedure which may be considered necessary or desirable.
If we question the sufficiency of such commitment papers it appears that we should be under obligation to call to the attention of the court any omission or correction which should be made in such commitment papers, but in the meantime we believe there appears to be less risk of confusion in following this procedure than there would be in refusing to accept the patient, thereby causing the patient to be returned to the county until a later date. Of course if we are in error in accepting a patient we are subject to the writ of habeas corpus as provided in Sec. 17 of the 1960 Act, Act No. 618.
PUBLIC HEALTH-Milledgeville State Hospital
Discussion of transfer of patients from Milledgeville to Veterans' hospitals.
April 5, 1961
Dr. John H. Venable, Director Georgia Department of Public Health
I have for acknowledgment your letter enclosing a letter from Dr. I. H. MacKinnon, Superintendent of the Milledgeville State Hospital, requesting an opinion concerning the transfer of patients from Milledgeville State Hospital to veterans' hospitals,,
You propound a question with reference to the status of a patient after transfer to a veterans' hospital and discharge therefrom who subsequently has a recurrent mental illness.

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Section 10 of Act No. 618, Georgia Laws 1960, at page 846 provides:
"Section 10. Transfer of patients. (a) The division may transfer, or authorize the transfer of a patient from one psychiatric hospital to another if the division determines. that it would be consistent with the medical needs of the patient to do so. Whenever a patient is transferred, written notice the.reof shall be given to the ordinary of the county from which the patient was committed and to his legal guardian, attorney, parents, or spouse, or, if none be known, his nearest known relative or friend, if they reside in this State. In all such transfers, due consideration shall be given to the relationship of the patient to his family, legal guardian or friends, so as to maintain relationships and encourage visits beneficial to the patient.
"(b) Upon receipt of a certificate of an agency of the United States Veterans Administration or the State of Georgia that facilities are available for the care or treatment of any individual ordered hospitalized pursuant to law in any hospital for care or treatment of the mentally ill and that such individual is eligible for care or treatment in a hospital or institution of such agency, the division may cause his transfer to such agency of the United States or the State of Georgia for hospitalization. Upon effecting any such transfer, the court ordering hospitalization, the legal guardian, attorney, spous.e, or parents, or if none be known, his nearest known relative or friend shall be notified thereof immediately by the division. No person shall be transferred to an agency of the United States Veterans Administration if he be confined pursuant to conviction of any felony or misdemeanor, or if he has been acquitted of the charge solely on the basis of non compos mentis, unless. prior to transfer, the court originally ordering confinement of such person shall enter an order for such transfer after appropriate motion and hearing. Any person transferred as provided in this section to an agency of the United States Veterans Administration or the State of Georgia shall be deemed to be hospitalized by such agency pursuant to the original order of hospitalization."
"Section 11. Dis.charge. The superintendent of a hospital shall as frequently as practicable, but not less often than every six months, examine or cause to be examined every patient and, whenever he determines that the conditions justifying hospitalization no longer exist, discharge the patient and immediately make a report thereof to the division and to the ordinary who committed the patient."
It is my interpretation of the aforesaid sections of the 1960 Mental Health Law that upon the recurrent subsequent mental illness of the discharged patient, said patient would have to comply with the laws for admission either as a voluntary patient or an involuntary patient seeking hospitalization, or by commitment by a lunacy commission and ordinary under the provisions of Title 49 of the Code of Georgia Annotated.
You also submit the question with respect to a transfer by a veteran's hospital of a patient back to Milledgeville State Hospital. Section 7 of the 1960 Mental Health Law at page 844 thereof provides:
"Section 7. Hospitalization by an agency of the United States. (a) If a patient ordered to be hospitalized pursuant to the previous Section

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is eligible for hospital care or treatment by the United States Veterans Administration, or any hospital maintained by the State of Georgia for war veterans, the ordinary, upon receipt of a certificate from such hospital showing that facilities are available and that the patient is eligible for care or treatment therein, may order him to be placed in the custody of such agency for hospitalization. When any such patient is admitted .pursuant to the order of such ordinary to any such hospital or institution within or without the State, he shall be subject to the rules and regulations of such agency. The chief officer of any hospital or institution operated by such agency and in which the individual is so hospitalized, shall with respect to such individual be vested with the same powers as the superintendents of psychiatric hospitals or the division within this State with respect to detention, custody, transfer, furlough, or discharge of such patient. Jurisdiction is retained in the appropriate courts of this State at any time to inquire into the mental condition of an individual so hospitalized, and to determine the necessity for continuance of his hospitalization, and every order of hospitalization issued pursuant to this section is so conditioned."
It is my opinion that in the case of a patient who is hospitalized originally in a veterans' hospital by the order of an ordinary, that the chief officer of such veterans' hospital would under the aforementioned Section 7 have the right and power to transfer said patient to the Milledgeville State Hospital provided that the State hospital would accept said patient, and that facilities were available.
In the case of a patient who had been transferred from Milledgeville State Hospital to a veterans' hospital under the provisions of Section 10 of the 1960 Act, and it was later determined by the "division" that it would be consistent with the medical needs of the patient to transfer said patient back to the Milledgeville State Hospital, it is my opinion that authority for such transfer is provided in said Section 10 of the 1960 Act.
I think that your policy of not "furloughing" patients from the Milledgeville State Hospital to veterans' hospitals is legally sound and in accordance with the statutes.
PUBLIC HEALTH-Milledgeville State Hospital (Unofficial)
Patients in Milledgeville State Hospital may be furloughed on recommendation of the superintendent, even over objections of the guardian.
July 25, 1961
Mr. Willie E. Ayers
The Milledgeville State Hospital has informed me that your Mother has been admitted to the Hospital, that you are the guardian for your Mother and that you were opposed to the Hospital furloughing your Mother into custody of a third party. The Hospital has requested that I advise you of its authority to furlough a patient under such circumstances.

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In answer to this request, please refer to Code Section 88-1612 of the Code of Georgia, Annotated, which provides as follows:
"88-1612. Convalescent status; rehospitalization.-(a) The superintendent of a psychiatrist hospital may furlough an improved pa.tient on convalescent status when he believes that such furlough is in the best interest of the patient. Furlough on convalescent status shall include provisions. for continuing responsibility to and by the hospital, including a plan of treatment on an out-patient or non-hospital basis. Prior to the end of a year on convalescent status, and not less frequently than annually thereafter, the superintendent of the hospital shall re-examine the facts relating to the hospitalization of the patient on convalescent status and, if he determines that in view of the condition of the patient hospitalization is no longer necessary, he shall discharge the patient and make a report thereof to the division and to the ordinary committing the patient.
"(b) Prior to such discharge, the superintendent of the hospital from which the patient is given convalescent status may at any time rehospitalize the patient. If there is reason to believe that it is to the best interests of the patient to be rehospitalized, the division or the superintendent of the hospital may so recommend, and the ordinary shall issue an order for the immediate rehospitalization of the patient.
" (c) Prior to such discharge, upon recommendation of the person having custody of the furloughed patient, the sheriff of the county in which such patient is located shall have the authority to take such patient into custody and return such patient to the psychiatric hospital from which such patient is, furloughed without any order of any court. The cost of such transportation shall be paid by the county." (Emphasis supplied).
Please observe that the sole criterion for the furlough of a patient is predicated on whether or not the superintendent of the Hospital believes such furlough is in the best interest of the patient and not on the consent of the guardian.
PUBLIC HEALTH-Milledgeville State Hospital
Superintendent retains custody of a patient seeking dismissal by appeal to Court of Ordinary until the Court of Ordinary issues an order of discharge or restoration.
May 13, 1960
Dr. John H. Venable, Director Department of Public Health
I am in receipt of your letter wherein you ask for my interpretation of Section 13 (b) of Act Number 618 enacted by the General Assembly during the 1960
se~sion.
This section deals with the release of a dissatisfied patient who appeals the findings of the superintendent that he continues to be mentally ill to the Court

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of Ordinary for review. You state that it is not clear at which point the patient is released during the proceedings which ensue in the application of this law. I am of the opinion that this, law states, and that it was the intention of the General Assembly, that the superintendent shall retain custody of a patient seeking dismissal under this law until the Court of Ordinary having jurisdiction issue an order of discharge or restoration.
In other words, if the superintendent of the Milledgeville State Hospital determines that a patient is not ready for discharge, the patient, if one physician has evidenced written disagreement to the findings of the superintendent, may petition the Court of Ordinary for review. At this point the patient remains in the custody of the superintendent of Milledgeville State Hospital. The Court of Ordinary serves the superintendent with a copy of the petition. The superintendent, through a member of my staff, will be represented at the hearing provided in Section 6 of the Act which is conducted in the same manner as the original commitment hearing. If the Ordinary determines that the patient shall be dismissed he enters an order and it is at this point that the superintendent shall release the patient. I trust that this answers the questions raised in your letter.
PUBLIC HEALTH-Milledgeville State Hospital (Unofficial)
Restoration of civil rights of mental patients at Milledgeville State Hospital discussed.
August 1, 1961
Mr. James E. Stewart, Jr.
I am pleased to acknowledge your letter in which you ask if the civil rights of a mental patient released from the Milledgeville State Hospital for twelve months are restored without court action.
Purely as information, I call your attention to Code Sections 88-1611 and 88-1612 of the Annotated Code of Georgia which read as follows:
"88-1611. Periodic examinations of patients; discharge.-The superintendent of a hospital shall as frequently as practicable, but not less often than every six months, examine or cause to be examined every patient and, whenever he determines that the conditions justifying hospitalization no longer exist, discharge the patient and immediately make a report thereof to the division and to the ordinary who committed the patient.
"88-1612. Convalescent status; rehospitalization.-(a) The superintendent of a psychiatric hospital may furlough an improved patient on convalescent status when he believes that such furlough is in the best interest of the patient. Furlough on convalescent status shall include provisions for continuing responsibility to and by the hospital, including a plan of treatment on an out-patient or non-hospital basis. Prior to the end of a year on convalescent status, and not less frequently than annually thereafter, the superintendent of the hospital shall re-examine the facts relating to the hospitalization of the patient on convalescent

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status and, if he determines that in view of the condition of the patient hospitalization is no longer necessary, he shall discharge the patient and make a report thereof to the division and to the ordinary committing the patient.
"(b) Prior to such discharge, the superintendent of the hospital from which the patient is, given convalescent status may at any time rehospitalize the patient. If there is reason to believe that it is to the best interests of the patient to be rehospitalized, the division or the superintendent of the hospital may so recommend, and the ordinary shall issue an order for the immediate rehospitalization of the patient.
"(c) Prior to such discharge, upon recommendation of the person having custody of the furloughed patient, the sheriff of the county in which such patient is located shall have the authority to take such patient into custody and return such patient to the psychiatric hospital from which such patient is furloughed without any order of any court. The cost of such transportation shall be paid by the county."
I also call your attention to Code Section 49-610.9 of the Annotated Code of Georgia, which reads as follows:
"49-610.9. Notice to ordinary of release from State Hospital; subsequent order by Ordinary. In the event a person who has been committed to Milledgeville State Hospital is released therefrom as being sane, under order of the superintendent, a copy of such order shall be transmitted by the superintendent, within five days of the date of such order, to the ordinary of the county from which such person was committed, and 30 days from the date of the receipt of such copy by the ordinary, such person shall be deemed to have been legally restored to sanity, and it shall be the duty of the ordinary to issue an order to that effect and enter such order on his minutes along with a copy of the order of the superintendent, and such person shall not be required to follow the procedure provided for in this section or any other law in order to be legally restored to sanity. In the event a person is released from Milledgeville State Hospital as being improved, under order of the superintendent, a copy of such order shall be transmitted by the superintendent, within five days of the date of such order, to the ordinary of the county from which such person was committed, and shall be filed with the commitment papers of such person."
PUBLIC HEALTH-Milledgeville State Hospital (Unofficial)
Visitors not on official business must clear admission with the security officer.
June 19, 1961
Mr. J. E. Adams
In answer to your recent request concerning the fish ponds at Milledgeville State Hospital, we have made an investigation which reveals the following information:

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The very nature of the operation of the Milledgeville State Hospital requires that any person who is not a patient at the Hospital, or who is not on official business with the Hospital, must clear their admission to the grounds with the Security Officer of the Hospital. Otherwise, they would be subject to prosecution under Code Section 26-3004 of the Georgia Code, which makes it a misdemeanor for anyone trespassing upon State property.
We find that fishing on the ponds within the Hospital grounds is provided for the recreation and relaxation of employees of the Hospital, that no shares are sold to any outsiders, and that the $10.00 which is for the purpose of fertilizing the fish ponds is not received by the State or any agent of the State for public purposes, or any other purpose other than fertilizing the fish ponds.
PUBLIC HEALTH-Milledgeville State Hospital
When a voluntary patient requests release and the Superintendent denies such, a certificate should be sent to the Ordinary of the county of the patient's residence to be considered an application for involuntary hospitalization.
July 20, 1960
Dr. John H. Venable, Director Department of Public Health
I am in receipt of your letter wherein you requested my opinion as to which Ordinary has jurisdiction of a voluntary patient in a mental institution who requests release under Section 4 of Act No. 618, Georgia Laws 1960, and subsequently is denied release by the Superintendent. As you point out, Section 4 of the Act requires that the Superintendent provide a certificate to the Ordinary of the county of the patient's residence which is to be considered an application for involuntary hospitalization.
Section 6 states what procedure is to be followed for involuntary hospitalization except that it provides that the Ordinary of the county of the patient's presence has jurisdiction. Your question specifically was "to which Ordinary should th~ Superintendent direct this certificate-to the Ordinary of Baldwin County or the county of the patient's residence?"
I am of the opinion that the provision as set forth in Section 4 of this Act should prevail, for it confers jurisdiction upon the Ordinary of the resident county of a voluntary patient seeking release where the Superintendent feels release should not be granted. Following the conferral of jurisdiction, the Act provides that the patient shall be confined at the same hospital or other hospital as designated by the Ordinary pending disposal of the proceedings as provided in Section 6. In other words, both sections are good as to conferring jurisdiction, one in the instance of a voluntary patient seeking release, and in the other in the instance of initial proceedings by involuntary commitments. Jurisdiction thus conferred, Section 6 then provides the proceedings to be followed in both instances.

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PUBLIC HEALTH-State Department
Laboratories of the State Health Department are not authorized to examine specimens submitted by naturopathists.
November 16, 1960
Dr. John H. Venable, Director Department of Public Health
In reply to your request for an opinion whether the State Health Department laboratories are authorized to examine and report on specimens submitted by naturopathists, I wish to submit the follows:
The exact legal status of naturopathists under Georgia law is to say the least, conjectural.
Section 84-2901 of Ga. Code Ann., codified from Georgia Laws of 1956, pages 36 and 37, contains a definition of naturopathy:
"For the purpose of this Chapter, naturopathy and natureopathy shall be construed as synonymous terms, and the practice of naturopathy or natureopathy, is hereby defined as that philosophy and system of the healing art embracing prevention, diagnosis, and treatment of human ills and functions by the use of several properties of air, light, heat, cold, water, manipulation, with the use of such substances, nutritional as are naturally found in and required by the body, excluding drugs, surgery, X-ray, and radium therapy, and the use of X-ray equipment."
The Act of 1956 above cited also repealed and superseded the Act of 1950, page 168, previously codified in Georgia Code Section 84-2901 et seq. The repealed 1950 Act provided for the licensing of naturopathists, and also provided, in Code Section 84-2915, as follows:
"Nothing in this Chapter shall be construed to be authority for any naturopath, licensed hereunder, to practice medicine as defined by the laws regulating the practice of medicine in this State, "
The former law also provided in Code Section 84-2916:
"Nothing in this Chapter shall be construed to allow, permit or license, those practicing naturopathy in the State to perform surgery of any kind or description, or to prescribe any drugs, medicines, narcotics or other remedies whereby a prescription is required."
Under the present law there is no method provided for the examination or licensing of naturopathists. In any event, it may be reasonably concluded that it was never the legislative intent that naturopathists be authorized to practice medicine nor be licensed as physicians.
I have made a study of the laws relative to submissions of specimens of blood, the examination thereof, and reports of said examinations for interpretation, diagnosis and treatment for the purpose of determining analogous legislative intent, and I am of the opinion that back of every submission of a specimen for examination there should be a licensed physician, or other authorized persons such as State, county or municipal health officer, and that likewise back of the recipient of a report of such examination there should be a qualified licensed

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physician, Qr other person specifically authorized to receive such report for the purpose of interpretation, diagnosis and treatment.
In that connection CQnsider the following:
Code Sections 53-215, 53-216 and 53-217 dealing with premarital examinations for syphilis are all predicated upon certificates to be signed by qualified and licensed physicians (or in this one specified exception, an osteopath).
Code Section 53-216 provides:
"The certificate shall be accompanied by a statement from the person in charge of an approved laboratory making the test, or from some other person, authorized to make such reports, setting forth the name of the test, the date it was made, the name and address of the physician to whom the test was sent and the name and address of the person whose blood was tested."
Code Section 53-217 provides:
"The physician's examination, inclu<).ing a standard serologic test for syphilis. of both the man and woman applying for a marriage license shall be made within 30 days prior to the application for such license. If applicant is unable to pay for such examination, certificate without charge may be obtained from the local health officer or county physician."
Code Section 88-502 dealing with venereal diseases provides as follows:
"Any physician or other person who makes a diagnosis in or treats a case of venereal disease, and any superintendent or manager of a hospital, dispensary or charitable or penal institution in which there is a case of venereal disease, shall make report of such case to the health authorities, according to such form and manner as the State Board of Health shall direct."
Code Section 88-503 provides as follows:
"State, county and municipal health officers or their authorized deputies within their respective jurisdictions are hereby directed and
empowered, when in their judgment it is necessary to protect the public health to make examination of persons infected or suspected of being
infected with venereal diseases, to require persons infected with venereal disease to report for treatment to a reputable physician and continue treatment until cured or to submit to treatment provided at public expense, and to isolate persons infected or reasonably suspected of being infected with venereal disease." (Emphasis added)
Code Section 88-514 provides:
"Any licensed physician, attending or giving prenatal care to a pregnant woman in this State, shall take or cause to be taken a specimen of blood of each woman so attended within 30 days from the date of the first examination for submission to an approved laboratory for a standard serologic test for syphilis. In case such pregnant woman is in a state of labor at the first examination, which may make it inadvisable to obtain a blood specimen, then the specimen shall be obtained within 10

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days after delivery: Provided, no doctor or person taking such test shall charge more than one dollar therefor." (Emphasis added)
Code Section 88-515 provides as follows:
"Each other person in the State who is permitted by law to attend pregnant women, but not p,ermitted by law to obtain blood specimens, shall cause such a specimen of blood to be taken within 30 days from the date of the first examination of each woman so attended, by a qualified and licensed physician, for submission to an approved laboratory for a standard serologic test for syphilis." (Emphasis added)
Code Section 88-517 provides as follows:
"Any woman who is pregnant and who is unable to pay a licensed physician to take a blood test, as required by these sections may have such a blood specimen taken by the local health department or the county physician for submission to an approved laboratory for a standard serologic test for syphilis."
Under the Rules and Regulations of the State Board of Health for control of venereal diseases, at page 205 thereof, under Rule 6, it is provided as follows,:
"No druggist or other person not a physician licensed under the laws of the State shall prescribe or recommend to any person any drugs, medicines, or other substances to be used for the cure or alleviation of gonorrhea, syphilis, or chancroid, or shall compound any drugs or medicines for said purpose from any written formula or order not written for the person for whom the drugs or medicines are compounded and not signed by a physician licensed under the laws of the State."
The above citations indicate legislative intent and purpose with reference to submission of blood specimens for examination, and I am of the opinion that the State Health laboratories are not authorized to examine and report on specimens submitted by naturopathists.

PUBLIC HEALTH-Water Supp,ly (Unofficial)

Chemicals may only be used in treatment of a water supply upon issuance of a permit by the State Board of Health.

Mr. L. K. Roberts

March 1, 1960

I am in receipt of your letter in which you ask if there is a Georgia law which prohibits a city, municipality, or anyone else from adding a drug or other chemical to public water supply.

Georgia Code Section 17-504 (3) provides that the State Board of Health is vested with the power "to establish such policies, requirements, and/or standards governing the source, distribution, purification, treatment and storage of water for public or community water supply systems as it deems necessary for the reasonable and proper use thereof."

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It is my understanding that the State Board of Health has promulgated rules and regulations, to the extent that chemicals may be used in the treatment of water systems, but only in the event that a permit is issued by the State Board of Health.
PUBLIC RECORDS-Preservation
The Department of Public Welfare may micro-film its records and destroy the originals as provided in Georgia laws applicable to preservation of public records.
May 3, 1960
Honorable Alan Kemper, Director State Department of Public Welfare
This will acknowledge receipt of your letter requesting my opinion whether the State Department of Public Welfare can legally micro-film adoption records and destroy the originals.. You call attention to the Adoption Law of 1941, Acts 1941, pp. 300 to 310, and especially to Section 15 which reads as follows:
"Section 15. Records Where Kept. The original petition, all amendments thereto, and all decrees or orders of any kind whatsoever, except the original investigation report of the investigating agent as provided for in Section 7 of this Act, shall be recorded in a book kept for that purpose and properly indexed; and such books shall be part of the records, of the court in each county that has jurisdiction over matters of adoption in that county. The records of the court granting the adoption and of the State Department of Public Welfare and of the State Department of Public Health shall be kept sealed and locked and can only be examined when after written petition has been presented to the court having jurisdiction of adoptions, the said court has passed an order permitting such examinations. The records of adoptions shall not be open to the general public for inspection. Only the parties at interest in the adoption, their attorneys. and/or representatives of the State Department of Public Welfare shall have the right to examine such records, and then only when good cause has been shown in writing to the court and an order passed thereon, as hereinbefore provided in this section."
The Court of Appeals in Cox et al., v. Bohannon et al., 86 Georgia Appeals, p. 236, held that a party at interest who desires to see the report of the State Department of Public Welfare containing investigation and recommendation in the case shall present a written petition and obtain an order of court for this purpose. You will note that all of the original records in such cases under the above Act are part of the records of the court in each county, except the original investigation report of the investigating agent, as provided for in Section 74-410 of the Code of Georgia, and whenever the State Department of Public Welfare is the investigating agency, the original investigation report is returned to the State Department of Public Welfare and it is this report which the law directs the State Department of Public Welfare is to be kept sealed and locked and subject to examination only after written petition has. been presented to the court and an order obtained permitting such examination.

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Your attention is called to Acts of 1943, pp. 468, 470, which authorize the destruction of records of the various departments of the State, upon a finding by the Secretary of State and the State Librarian, approved by the Governor, that such records have no historic value, are obsolete and will serve no other useful purpose; to make photostatic copies of certain public records for primarr evidence and for other purposes.. This Statute provided that no records should be so destroyed which are not at least seven years old.
The above 1943 Act was amended by Acts of 1953, pp. 4 and 5, which changed the minimum provision for age of records which might be destroyed from seven years old to four years old.
The 1943 Act was again amended by Acts of 1957, pp. 504, 505, and the Director of the Department of Archives and History was substituted for the State Librarian, thereby providing for a review by the Secretary of State and the Director of the Department of Archives and History, and final review by the Governor.
Provision is found in Acts of 1945, pp. 331, 338, for destruction of obsolete records of the Employment Security Agency under the direction of the Commissioner of Labor, and provision is found in Acts of 1950, pp. 29, 30, to authorize destruction of records in the Revenue Department of the State.
The State Board of Workmen's Compensation, in its discretion, was authorized to destroy obsolete records at least four years old by Acts of 1957, pp. 374375.
The 1943 Act was again amended by Acts of 1959, pp. 26, 27, which Act simply authorized the Governor to order the destruction of certain records under certain conditions, the condition primarily being that the officer charged by law with the custody of such records should list and describe said records and certify to the Governor that the records sought to be destroyed are without historic value, are obsolete, are expensive to store, and will serve no further useful purpose. The Governor thereupon was authorized, in his discretion, to order the destruction of such records, it being provided in the Act that no records be destroyed which are not at least seven years old. This Act omitted the previous provision for preliminary review and recommendation to the Governor by the Secretary of State and the Director of the Department of Archives and History.
We give you the above outlined comments to indicate the progressive history of legislation in the State with reference to the destruction of public records, all of which now has been reviewed carefully by the General Assembly, resulting in the enactment of House Bill No. 586, approved March 7, 1960, Acts of 1960, pp. 780, 783. The pertinent portions of this Act which are applicable to your inquiry are Section 1 and Section 2, which are quoted to you as follows:
"Section 1. Be it enacted by the authority of the General Assembly of Georgia, and it is enacted by authority of the same, that the Governor be, and he is, authorized to order the destruction of records of any department of State, but before any such records shall be destroyed under this authority, the officer charged by law with the custody of the same shall list and describe the said record and shall certify to the Secretary of State that the records sought to be destroyed are without historic value, are obsolete, are expensive to store and will serve no further useful purpos.e. Should the Secretary of State and the Director of the

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Department of Archives and History, after exammmg into the matter, concur with such custodian of such records, then they may jointly certify to the Governor that said records ought to be destroyed. Should the Governor concur in the findings of such official custodian of such records and in the findings of the Secretary of State and the Director of the Department of Archives and History he may, in his disaetion, order the same destroyed.
"Section 2. The Secretary of State and the Director of the Department of Archives and History may, in their discretion, condition their certification that said records ought to be destroyed with the requirement that such officer charged by law with custody of same shall first cause microfilms of the same to be made, capable of development into photostatic copies, and the Governor may, in his discretion, with or without such requirement being imposed by such certification, require or dispense with the requirement that such photostatic copies to be made prior to the destruction of such records. Photostatic copies of any such records, produced from such microfilms shall be received in any court of this State as primary evidence of the recitals contained therein."
You will please note that the seven year provision with reference to the age of records to be destroyed has been entirely eiiminated, and that the officer charged by law with custody of records proposed to be destroyed shall list and describe the said records, certifying to the Secretary of State, and upon concurrence of the Secretary of State and the Director of the Department of Archives and History, and joint certification by them to the Governor, the Governor may order such records destroyed.
You will note Section 2 above quoted provides that the Secretary of State and the Department of Archives and History may condition their certification with the requirement that the officer charged by law with custody shall first cause microfilms of the same to be made, capable of development into photostatic copies. The Section then provides, that the Governor may in his discretion, with or without such requirement, require or dispense with the requirement that such photostatic copies be made prior to the destruction of such records. This provision places great latitude in the discretion of the Governor.
The Section above quoted goes on to say that photostatic copies of any such records produced from microfilms shall be received in any court of this State as primary evidence of the recitals contained therein.
We are therefore constrained to the opinion that the General Assembly intended to authorize the destruction of records of any department under the provisions of the 1960 Act, and that such Act would be applicable to the records of the State Department of Public Welfare, referred to in the revised adoption laws, Acts of 1941, pp. 300, 310, above referred to and including those records enumerated in Section 15 of said Act, required thereby to be kept by the State Department of Public Welfare sealed and locked and subject to examination only upon written petition and order of court, as outlined and discussed in Cox et al. v. Bohannon et al., 86 Ga. App. 236.
Our conclusion is that such records of the Department may be destroyed after following rigidly the directions of the 1960 Act above quoted, and especially and only upon order of the Governor, that microfilms of said records be first made before such records are destroyed, such microfilms to be capable of devel-

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opment into photostatic copies, which microfilms thereafter shall be substituted for the original records described in Section 15, Acts 1941, pp. 300, 310, and which microfilms, of course, thereafter in order to conform to the 1941 Act shall be kept sealed and locked and only examined upon order of the court as provided for therein.
You will note that photostatic copies of such records produced from such microfilms under the 1960 Act for the destruction of obsolete State records shall be received in any court in this State as primary evidence of the recitals contained therein, and we believe that the objectives of the 1941 adoption law and Section 15 thereof may be adequately served by substituting microfilm for the original records under the provisions of the 1960 Act providing for the destruction of obsolete State records. Of course, you understand that such procedure includes determination and certification by the officer charged by law with the custody of the said records, certificate to the Secretary of State, concurrence of the Secretary of State and the Director of the Department of Archives and History, certification to the Gove,rnor and approval by the Governor, which approval should include requirement that microfilms be made from which photostatic copies may be made available, as provided for in said 1960 Act.
PUBLIC SAFETY-Accident Reports (Unofficial)
Filing of Form SR 21, report of financial security, discussed.
May 1, 1961
Mr. E. D. Underwood
This office received a copy of your letter to Mr. J. W. Armstrong, Department of Public Safety.
You desire to know whether you are required to file an SR 21 when your wife's car was struck by another vehicle and you were not in your wife's car at the time of the collision nor in the immediate vicinity. I believe that you will find the answer embodied in Section 92A-604 of the Code of Georgia, as amended, which is as follows:
"92A-604. Report required following accident.-The operator of every motor vehicle which is in any manner involved in an accident within this State in which any person is, killed or injured or in which damage to the property of any one person, including himself, to an extent of $100 or more is sustained, shall within 10 days after such accident report the matter in writing to the Director. Such report, the form of which shall be prescribed by the Director, shall contain information to enable the Director to determine whether the requirements for the deposit of security under section 92A-605 are applicable by reason of the existence of insurance or other exceptions specified in this Chapter. If such operator be physically incapable of making such report and is not the owner of the motor vehicle involved, the owner of the motor vehicle involved, in such accident shall, within 10 days after learning of the accident, make such report. If the operator and owner are the same person and physically incapable of making such report within the required

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10-day period, such person shall file the report as soon as he is able to do so, and in the meantime, the Director has authority to request a report of the accident from any officer who investigated the accident. The owner of any parked motor vehicle which is involved in an accident, shall file the report of same within 10 days after learning of the accident. The operator or the owner shall furnish such additional relevant information as the Director shall require. (Acts 1951, pp. 565, 568; 1956, pp. 543, 548.)"
PUBLIC SAFETY-Driver Licenses (Unofficial)
Suspension of driver licenses under Motor Vehicle Safety Responsibility Law.
January 12, 1960
Mr. Edward L. Edelstein
This will acknowledge receipt of your letter in which you ask this office what proceedings could be taken toward the revocation of a driver's license under the circumstances you outlined in your letter.
There was passed by the General Assembly of the State of Georgia in 1951 a Motor Vehicle Safety Responsibility Law. Since that time it has been amended, but I believe that for your purposes you were interested in the suspension of an individual's license under certain circumstances as is provided for in Code Section 92A-605 (a) of the Code of Georgia, as amended, which is as follows:
"(a) Suspension of license.-Not less than 30 days after receipt by him of the report or notice of an accident which has resulted in bodily injury or death, or in damage to the property of any one person to an extent of $100 or more, the Director shall suspend the license and all registration certificates and registration plates of the operator and owner of any motor vehicle in any manner involved in the accident unless or until the operator or owner has previously furnished or immediately furnishes security, sufficient in the judgment of the Director, to satisfy any judgments for damages or injuries resulted from the accident as may be recovered against the operator or owner by or on behalf of any person aggrieved or his legal representative: Provided that the Director shall dispense with the foregoing requirements on the part of any operator or owner who is undisputedly free from any liability. If the operator or owner is a nonresident, the suspension shall apply to the privilege of operation or use of motor vehicles within the State. The Director shall not apply the provisions of this Section agains,t a resident of this State involved in an accident with a nonresident of this State when the damage is less than three hundred dollars except upon the written request of any party in interest. An adjudication or discharge in bankruptcy shall not relieve the operator or owner from furnishing security as provided herein or from the other provisions of this Chapter."

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PUBLIC SAFETY-Employees
The Department of Public Safety is authorized to pay hospital and surgical bills of members of the State Patrol under certain conditions where no award has been made by Workmen's Compensation.
April 19, 1960
Colonel William P. Trotter, Director State Department of Public Safety
I am pleased to acknowledge receipt of your letter in which you request my opinion on the following question:
"Is the Director of the Department of Public Safety authorized to pay hospital, doctor's and surgical bills incurred by members of the State Patrol and Agents of the Bureau of Investigation under Section 92A-129 of the Annotated Code of Georgia, where no award has been made by Workmen's Compensation?"
In your letter, you give further factual information indicating that several members of the Uniform Division and Georgia Bureau of Investigation have incurred injuries necessitating hospital and physician's expenses and that the statute has run on any claim they might present to the Workmen's Compensation Board for payment of these expenses.
I am therefore of the opinion that the Department of Public Safety is authorized by Section 92A-129 of Georgia Code Annotated to pay all medical, surgical, hospital, nursing and other similar expenses incurred by the above referenced members of the Georgia State Patrol and Georgia Bureau of Investigation, provided that the expenses arose as a result of injuries received in line of duty. Of course the procedure set forth in the above referenced Section of the Georgia Code should be followed. That is, proper presentation of the bills should be required by the Treasurer and he should ascertain their correctness, and it is further provided that no payments shall be made without your approval. Also, any such payments shall be subject to the rules and regulations. of the State Budget Bureau.
PUBLIC SAFETY-State Department
Prior service credits for certain members of the Uniform Division of the Department of Public Safety discussed.
December 21, 1960
Colonel William P. Trotter, Director State Department of Public Safety
This is in response to your letter in which you request my opinion whether Act No. 484 passed at the 1960 Session of the General Assembly, Georgia Laws 1960, page 132, authorizes the inclusion of prior periods of service spent by personnel of the Uniform Division of the Department of Public Safety as radio operators or license examiners for the Department of Public Safety in determining pay increases for such personnel based upon length of service and, further, whether the same statute authorizes the inclusion of prior periods of service spent

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by radio operators and license examiners as personnel of the Uniform Division in determining pay increases for those personnel.

That portion of Act No. 484 which relates to the points raised by you is found in Section 1 of the Act, Georgia Laws 1960, pages 133 through 135. The language used appears, to leave some doubt as to whether the Legislature intended that time spent by personnel of the Uniform Division as radio operators or license examiners prior to their entering the Uniform Division should be credited to them in determining pay increases. There also appears doubt as to the legislative intent with regard to computing the length of service of personnel now serving as, radio operators or license examiners who previously served in the Uniform Division. However, a close analysis of the language of the statute reveals that the Geneml Assembly has exhibited its intention that such prior service should be counted in regard to personnel in both categories.

That portion of Section 1 of the Act which directly bears on the point at issue reads as follows:

"The one battalion shall consist of not more than 500 officers and men, in the discretion of the Director of Public Safety with the approval of the Department of Public Safety, which battalion as instituted, shall be composed of the following personnel including the Commanding Officer and Treasurer herein named; said battalion to include not more than the following number of officers and non-commissioned officers with salaries as herein stated, payable monthly:

2 Majors________________

_____________________________________ at $3,965.00 per year, each

4 Captains------------------------------------------ __________________ at $3,365.00 per year, each

8 1st Lieutenants_____________________

________ at $2,965.00 per year, each

2 Sergeant Majors__________

______________________ at $2,865.00 per year, each

45 Sergeants_________ ________________

_________at $2,765.00 per year, each

45 Corporals_______

________________________________ at $2,565.00 per year, each

All Troopers______

_________ at $2,400.00 per year, each

Radio Operators and License Examiners of said Department though not members of the Uniform Battalion shall be compensated at a sum of $255.00 per month and they shall be entitled to the increases hereinafter provided for length of service on such base salary.
"Said salaries shall be automatically increased 5o/o annually for the first five years, of service, 3o/o annually for the next five years of service. 2o/o annually for the next ten years of service, and 1 o/o annually for each year of service thereafter. Such increases shall be computed on the base pay of each member at the rank which he holds on April 1, 1958. In the event such member's rank changes in the future, such increases shall be recomputed on the basis of such new rank. Credit for prior service shall be granted and such service shall be used in the formula for computing such increases. No credit for service shall be granted for any time during which a person was not actually employed by the Dep,artment of Public Safety and received comp,ensation therefor in one of the positions for which such increases are authorized herein. . . ." (Emphasis added.)

It will be noted that there is established, first, a pay scale for all ranks of the Uniform Division. Immediately following this pay scale is found a provision

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setting up the salary of radio operators and license examiners, and providing that they shall be entitled to the same increases in pay for length of service as are prescribed for the personnel of the Uniform Division. The statute thus clearly and unambiguously provides that the personnel in both categories involved shall receive increases in pay based upon length of service. The statute then goes on to state what the increase shall be and how it is to be computed.
The two sentences in the extract from the statute which have been emphasized above when construed together should dispel any doubt as to whether the Legislature intended that service time' accumulated by personnel in either of the two categories here involved should be credited to them upon their entering the other category. The first sentence prescribes that credit for prior service shall be granted. This sentence alone does not itself resolve the question as to transferability of accumulated service time but the sentence following does resolve the doubt. The second sentence limits the prior service which may be credited to any person to that time during which he was actually employed by the Department of Public Safety in one of the positions for which pay increases are authorized in the statute on the basis, of length of service. It logically follows then that any period of time served by an individual while employed by the Department of Public Safety in any position for which the statute provides length of service pay increases should be credited to him upon his transferring to any other position in the Department of Public Safety for which the statute also provides such length of service increases. As pointed out above, members of the Uniform Division, on the one hand, and radio operators and license examiners on the other hand, are covered by the length of service pay increases provision of the statute and, therefore, time served by individuals in either category should remain credited to them upon their transfer to the other.
It is my opinion, therefore, that under the terms of Act No. 484 members of the Uniform Division of the Department of Public Safety who have served previously as radio operators or license examiners in the Department of Public Safety are entitled to the inclusion of such previous service in determining their length of service and similarly radio operators and license examiners of the Department of Public Safety who have previously served as members of the Uniform Division are entitled to the inclusion of such previous service in determining their length of service.

PUBLIC SAFETY-State Department

The Department of Public Safety has authority to pay medical expenses incurred by employees when engaged in the line of duty and, upon payment, the Department becomes subrogated to the rights of the employee.

Colonel William P. Trotter, Director Department of Public Safety

February 24, 1960

This will acknowledge receipt of your letter in which you request an official opinion on two questions, the first being:

"Is, the Director of the Department of Public Safety authorized to pay hospital, doctor's and surgical bills incurred by members of the State

426
Patrol and Agents of the Bureau of Investigation under Section 92A-129 of the Annotated Code of Georgia?"
Section 92A-129 provides:
"The Department of Public Safety is hereby authorized to pay all medical, surgical, hospital, nursing and other similar expenses incurred by any member of the Georgia State Patrol or any member of the Georgia Bureau of Investigation, as a result of injuries received in line of duty. The department is. authorized to make such payments in addition to any award made by the Workmen's Compensation Board based on such injuries. Such payments shall only be made upon proper presentation of bills to the Treasurer and Disbursing Officer of the Department of Public Safety. The Treasurer and the injured party shall together ascertain the correctness of all bills presented. No payments. shall be made without the approval of the Director of the Department of Public Safety."
It is my opinion that the Department of Public Safety does have authority to pay for medical expenses under the circumstances outlined in the preceding Code Section provided that the preceding law is followed in its entirety when making such payments.
The second question you asked is:
"What right, if any, would the Department have toward recovery of funds paid out where employee recovers either by judgment or settlement from third persons, firm, establishment or company?"
This question raises a problem of subrogation. Subrogation is of two types. Conventional subrogation is a right created by contract while legal subrogation arises out of the general law and is founded upon the principles of equity. Any right of subrogation which inheres, in the Department of Public Safety as a result of Section 92A-129 would be strictly of a legal nature. The general rule is clear that a volunteer cannot become subrogated to the rights of a creditor. It was held in Western Union Telegraph Co. v. Smith, 50 Georgia Appeals 585, that an employer who pays the medical expenses of an injured employee in an amount greater than he is required to pay under the Workmen's Compensation Law becomes subrogated to the total amount paid, including that amount not required to be expended by the law. Such an employer is not, in the court's view, a mere volunteer. The court reasoned that an employer who pays such medical expenses is, in fact, effectuating the beneficent purposes of the Workmen's Compensation Act, and that public policy favored such payments. "... for the purpose both of reducing the period of compensation and of restoring the employee to good health as a normal self-supporting member of society." The court held that because public policy favors the making of such payments by the employer, it recognizes. the subrogation of the employer to the injured employee to the extent of the payments made by the employer. Aside from the question of public policy, the court concluded that the permitted, but not compulsory, payment of medical expenses by the employer is in furtherance of his own interest in restoring an employee to activity. For this, further reason, such an employer could not be regarded as a mere volunteer. Beyond this, the opinion of the court includes an express statement to the effect that one who pays the obligation of another because of a moral obligation is not a volunteer.
The Western Union Telegraph Co. v. Smith would then, seem to be authority for the following propositions: First, that when an employer pays the medical

427
expenses of an injured employee, even when not required to do so, he is, protecting his own interest because he secures the expeditious return to activity of an employee; second, that an employer may legitimately feel a moral obligation to pay the medical expenses of an employee injured in the line of duty, and that in paying such expenses, the employer ads not as a volunteer but as one satisfying an obligation; and, third, that, at least in the context of the Workmen's Compensation Act, the payment by an employer of the .medical expenses of an injured employee in an amount greater than that required of him by law is favored by public policy because it assists in returning the employee to a selfsupporting status as quickly as possible and thus, the right of the employer to be subrogated to his employee to the amount expended in payment of medical bills will be recognized.
Upon the basis of these propositions of law, it is my opinion that the State Department of Public Safety would become subrogated to the rights of any employee whose medical expenses, in excess of those due under Workmen's Compensation, it has, borne in pursuance of Section 92A-129. It seems obvious to me that the first and second propositions stated above are clearly applicable to the case of an injured employee of the Department of Public Safety whose medical expenses are paid by the Department. The third proposition, while it is based upon a provision of the Workmen's Compensation Act, nevertheless arose out of payments, made by the employer which were optional under the Act and seems to establish a principle applicable to the situation under consideration.
PUBLIC SERVICE COMMISSION-Authority
The Public Service Commission has no authority to authorize the Atlanta Transit System to make a charge for a transfer in addition to payment of a full fare for one continuous ride within the City of Atlanta.
April 21, 1961
Honorable Crawford L. Pilcher, Chairman Georgia Public Service Commission
I am pleased to acknowledge receipt of your letter in which you ask my opinion on the following question:
"Does the provision in the Ordinance of the City of Atlanta, dated February 8, 1902, ... have any legal effect or prevent the Georgia Public Service Commission from prescribing a charge or fare for a transfer to be used by a passenger going from one line to the other of the two companies operated by the Atlanta Transit System, or from transferring from one vehicle to another on a continuous passage on one line of either system?"
Section 93-304 of the Code of Georgia, as amended, provides as follows:
"93-304. (2662) Powers and duties extended to street railroads.The powers and duties conferred by law prior to August 23, 1907, upon the Public Service Commission and its authority and control shall extend to street railroads and street railroad corporations, and companies or persons owning, leasing, or operating street railroads in this State: Pro-

428
vided, however, that nothing herein shall be construed to impair any valid contract between any municipality and any such company in force on that date: and Provided, that this Section shall not operate to repeal any municipal ordinance existing on such date; nor shall it impair nor invalidate any contract or ordinance of any municipality, made or adopted since that date, as to the public uses of such company, that shall receive the assent of the Public Service Commission; to docks and wharves, and corporations, companies, or persons owning, leasing, or operating the same; to terminals or terminal stations., and corporations, companies, or persons owning, leasing, or operating the same; to cotton compress corporations or associations, and persons or companies owning, leasing, or operating the same; and to telegraph or telephone corporations, companies, or persons owning, leasing, or operating a public telephone service or telephone lines in this State; to gas and electric light and power companies, corporations, or persons owning, leasing, or operating public gas plants or electric light, and power plants furnishing service to the public. (Acts 1907, p. 73; 1908, p. 67; 1922, pp. 143, 144.)"
The preceding Code Section clearly vests the Georgia Public Service Commission with full authority to set rates and charges which may be exacted by street railway companies subject to the proviso that the Commission may not by its action abrogate any contract or municipal ordinance in effect at the time that the statute was passed. The Atlanta Transit System operates under a franchise which was granted to its predecessor in 1902 by the City of Atlanta. On February 8, 1902, there was passed a municipal ordinance prescribing that "for the purpose of giving one continuous ride inside the City of Atlanta from a point on one of its lines to a point on another of its lines." that the company "grant one transfer ticket on the payment of one full fare." This municipal ordinance, if valid, at the time of its passage and in the absence of a repeal by the proper municipal governing authorities, can only be viewed as one contemplated by the proviso in the 1907 Act and thus would have the effect of prohibiting the Georgia Public Service Commission from prescribing that a charge shall be made for each transfer given upon payment of a full fare for one continuous ride between points. within the City of Atlanta.
The ordinance of 1902 apparently was valid when enacted. It is true that the Georgia Supreme Court in the case of Georgia Railway and Power Co. v. Railroad Commission of Georgia, 149 Georgia Reports, page 1, held that the ordinance here involved insofar as it might have attempted to set rates was void as being an exercise of power not delegated to the municipal authorities by the General Assembly in the City Charter. But the Court did not rule that the ordinance was void insofar as it merely required that a transfer be given without extra charge upon payment of a full fare. Indeed in their very opinion the Court stated that the ordinance in question did not set rates, but required only that a transfer be given upon the payment of a full fare; thus the Court itself drew a distinction between transfers and fares. The regulation of the two subjects, might, then, well rest upon different grants of power. The fact that the City did not have sufficient delegated authority to set rates per se, does not necessarily imply. an absence of authority to regulate charges for transfers. In the absence of a holding by the Court in that case or any subsequent case that the 1902 Ordinance of the City of Atlanta is invalid so far as it relates to transfers, I am of the opinion that it must be presumed to be valid. It appears that the ordinance has never been repealed by the City of Atlanta and thus still

429
is in effect. Therefore, it is my opinion that, under the terms of the 1907 statute, the Georgia Public Service Commission has no authority to authorize the Atlanta Transit System to make a charge for a transfer in addition to payment of a full fare for one continuous ride within the City of Atlanta.
PUBLIC SERVICE COMMISSION-Authority
The Georgia Public Service Commission is required to give private contractual agreements between regulated utilities only such weight as it deems necessary, and should disregard such agreements if they prove contrary to the public interest.
June 24, 1960
Honorable Matt L. McWhorter Georgia Public Service Commission
This is in reply to your letter in which you refer to the fact that the Southern Natural Gas Company, a corporation engaged in the interstate transportation and sale of natural gas, has applied to the Federal Power Commission for a Certificate of Public Convenience and Necessity to provide gas service directly to three large industrial consumers in the Savannah area, even though the Georgia Public Service Commission has granted no Certificate of Public Convenience and Necessity to this Company to engage in the distribution of natural gas to ultimate consumers, but has, on the contrary, certificated the South Atlantic Gas Company as the sole local gas distributing corporation in Chatham and Effingham Counties. You request my opinion upon two ques,tions which have arisen in connection with the application of the Southern Natural Gas Company to the Federal Power Commission to serve directly certain industrial consumers in the Savannah area:
(1) Whether a contract betwen the Southern Natural Gas Company and the South Atlantic Gas Company, one of the provisions of which is a division of territory agreement between the two corporations, is, valid under Georgia law, and;
(2) The weight the Commission should give contracts of this nature in reaching a decision in a proper proceeding after hearing and based upon the evidence, when the effect of such a contract is to circumvent the authority and duties of the Commission as prescribed by law.
I shall address myself to your questions, in the order in which you pose them.
Article IV, Paragraph I, of the Constitution of the State of Georgia ( 2-2701, Georgia Code Annotated) specifically declares that all contracts which may have the effect of defeating or lessening competition or encouraging monopoly shall be void. The Supreme Court of Georgia has held that this Constitutional provision is an embodiment of the common law rule which prohibited contracts in general restraint of trade, and thus, that it has the same meaning as the statute codified as Section 20-504, Georgia Code Annotated, which states that contracts in general restraint of trade cannot be enforced.

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The general rule of Georgia law based upon the Constitutional and statutory provisions above stated, and repeatedly declared by the Supreme Court of this State, is that while contracts in general restraint of trade are void, contracts in partial restraint of trade are valid if they are reasonable and not injurious to the public interest. Thus, contracts in restraint of trade, even though restricted as to time and territory are void under Georgia law if they imperil public interest. For example, in Rakestra.w v. Lanier, 104 Georgia 195, the Supreme Court held that a contract between two physicians was void because there was no limitation of time upon the plaintiff in error's undertaking not to practice medicine in a particular community and that it was unreasonable and inimical to the public interest. That contracts even in partial restraint of trade are void if injurious to the public interest was further made clear in Clein v. Katiloff, 213 Georgia 369, where the court said in upholding a reasonable and partial restraint of trade:
''In determining whether the covenant is 'otherwise reasonable' the covenant must be reasonably necessary to protect the interest of the party in whose favor it is imposed, and must not unduly prejudice the interest of the public, and must not impose greater restrictions than are necessary for the protection of the promisee."
The cases mentioned above do not involve contracts between public service corporations, but it seems obvious that the principal announced in those cases (that contracts even in partial restraint of trade are void if contrary to the interest of the public) is applicable with even greater force to public service corporations. In State of Georgia v. Central of Georgia Railway Company, 109 Georgia 716, the court was dealing with a contract of purchase under which one railroad agreed to purchase two others. The argument was strongly urged that the contract was beyond the powers of the corporations involved and further was in general restraint of trade. The court, although it found the contract of purchase not to be in general restraint of trade, nevertheless clearly stated the following principle as being determinative:
"When an effort, therefore, is made by a State to set aside contracts of this character on account of public policy the vital test is whether or not such a contract is injurious to the public interest."
In ascertaining whether the contract between the Southern Natural Gas Company and the South Atlantic Gas Company is valid under Georgia law, it is necessary then to apply the vital test whether or not the contract is injurious, to the public interest. It appears that there can be no question that the provision of the contract which divides the territory so as to reserve the area west and north of Lathrop Avenue West exclusively to the Southern Natural Gas Company saddles the South Atlantic Gas Company with the res.ponsibility to serve the vast majority of the households and small businesses of Savannah but denies to that Company the more remunerative, large industrial firms west of the line specified. The denial to the South Atlantic Gas Company by contract of the right to serve these industrial consumers would seem to have the inescapable effect of rendering the South Atlantic Gas Company financially unable to render adequate services over the long term to the customers in the territory which it has been certificated by the Georgia Public Service Commission to serve. If so, it is my opinion that the provision of the subsisting contract between Southern Natural Gas Company and South Atlantic Gas Company which cons,titutes a division of territory between the two companies is apparently injurious to the public interest

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and thus void. The remainder of the contract, if severable from this provision and if not otherwise objectional, is valid.
The Georgia Public Service Commission is established by the Constitution of this State, Article IV, Paragraph III (Section 2-2703, Georgia Code Annotated), and by statute, Title 93, Georgia Code Annotated, for the purpose of regulating the services and charges of the public service corporations to the general public. The Public Service Commission cannot permit private contracts between public service corporations which are detrimental to the public interest to frustrate the enforcement of regulatory laws enacted by the General Assembly. If such contracts should be permitted to become an obstacle to action required of the Commission by the laws of this State, those laws and the public interest intended to be protected thereby would be brought to naught. It is, therefore, my opinion that the Georgia Public Service Commission need give the contractual provision hereunder consideration only the weight which they deem it should have, taking into account the effect which in their opinion it will have upon the public interest, and to disregard it should it prove contrary to the public interest as protected by the regulatory laws of this State.
PUBLIC SERVICE COMMISSION-Jurisdiction
A motor vehicle engaged in transporting peanuts between a storage warehouse and an oil mill is exempt from regulation by the Commission.
March 6, 1961
Honorable Matt L. McWhorter, Chairman Georgia Public Service Commission
This is in response to your letter in which you request my opinion upon the following questions:
(1) Whether or not a motor vehicle engaged in the transportation of peanuts. in the shell between a storage warehouse and an oil mill is exempt from this Commission's regulations, and;
(2) Whether Subparagraph (2a) of Section 68-502, Georgia Code Annotated, means that a vehicle which is exempt from the regulatory provisions of the Act may never haul non-exempt commodities or that such vehicle may not haul non-exempt commodities at the same time it hauls exempt commodities?
Your questions will be answered in the order in which you propound them.
The Motor Carrier Act of 1931, as amended, codified as Chapter 68-5, Georgia Code Annotated, regulates motor vehicles engaged in the carriage of persons and property for hire on the public highways of this State. Section 68-205 (c), however, exempts motor carriers engaged in the transportation of certain classes of persons and property for hire from the operation of the statute.
Section 68-205 (c) (2), Georgia Code Annotated, reads as follows:
"(2) Motor vehicles engaged exclusively in the transportation of agricultural and/or dairy products between any of the following points:

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farm, market, gin, warehouse, or mill, where the weight of the load does not exceed 18,850 pounds, whether such motor vehicle is owned by the owner or produce.r of such agricultural or dairy products or not, so long as the title remains, in the producer. The word 'producer' shall include a landlord where the relations of landlord and tenant or landlord and cropper are involved. The phrase 'agricultural products' shall include fruit, livestock, meats, fertilizer, wood, lumber, cotton, and naval stores, household goods and supplies transported to farms for farm purposes, and/or other usual farm and dairy supplies, and including products of grove and/or orchard, and also poultry and eggs, and also fish and oysters, and timber and/or logs. being hauled by the owner thereof, or his agents and/or employees between forest and mill or primary place of manufacture. Motor vehicles used by country merchants in rural districts who handle poultry and farm products, in pursuance of their own business, and not for hire."
It is clear that Section 502 (c) (2) exempts from the regulatory provisions of the Motor Carrier Act of 1931 motor vehicles engaged exclusively in the transportation of agricultural commodities between farm, market, gin, warehouse, and mill so long as the load carried by such vehicles does not exceed 18,850 pounds. and the title to the agricultural products carried remains in the producer.
If Section 68-502 (c) (2) were alone to be considered, the answer to your first question would clearly be that a motor vehicle engaged in hauling peanuts in the shell, which are obviously agricultural products, between mill and warehouse is exempt from the operation of the Motor Carrier Act of 1931, as amended, and the regulations of the Geo1gia Public Service Commission promulgated pursuant thereto so long as the load carried does not exceed 18,850 pounds, title to the products remains, in the producer, and the truck does not engage in the hauling of non-exempt commodities. However, Section 68-502 (c) (2a) relates specifically to the motor transportation of peanuts in the shell, peaches, and dry fertilizer and, thus, must be considered in order to ascertain whether or not it controls the question presented.
Section 68-502 (c) (2a), Georgia Code Annotated, found its way into the Motor Carrier Act by Amendment in 1943. It reads as follows:
"(2a) Motor vehicles in the transportation of peanuts in the shell and peaches, whether such motor vehicle is owned by the producer or owner of such peanuts and peaches or by any other person: Provided, such vehicles do not haul or transport other commodities not exempt by law from the regulations of the Public Service Commission."
It will be noted that Section 68-502 (c) (2a) specifically provides for the exemption of motor vehicles hauling peanuts in the shell, peaches, and dry fertilizer. (The last item was included by Amendment in 1960.) Section 68-502 (c) (2a) and Section 68-502 (c) (2) refer to the same subject matter, i.e., transportation of agricultural products by motor truck, though Section 68-502 (c) (2a) embraces carriage only of the three commodities specified therein. However, Subparagraph (2) and Subparagraph (2a) set up different requirements as to the conditions which must exist in order that a motor vehicle carrying an agricultural commodity may be rendered exempt from regulations. Section 68-502 (c) (2) requires that in order that a motor vehicle transporting agricultural products may be exempt from regulation it must carry such products, exclusively, must

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operate between certain defined points, must not exceed a certain specified load limit, and must carry only products title to which remains in the producer. Section 68-502 (c) (2a), on the other hand, requires merely that motor vehicles transporting the products therein specified may not carry non-exempt products. The two Subparagraphs are thus apparently in utter conflict concerning the conditions which must exist in order that ~ motor carrier of peanuts, in the shell, peaches, and dry fertilizer may be exempt from regulation under the Motor Carrier Act of 1931. It thus becomes necessary to construe the statute in order to determine' whether the apparent conflict in fact exists and, if so, which of the two Subparagraphs governs the situation under consideration.
A reading of the Motor Carrier Act of 1931 as a whole fails to reveal any systematic scheme within which Subparagraphs (2) and (2a) might co-exist as complimentary aspects of a common design. Nor does a searching of the Legislative history of the Act provide any key to harmonizing the two Subparagraphs. Indeed, the Legislative history of the Act strongly suggests that the Legislature intended Subparagraph (2a) to operate as a repeal of Subparagraph (2) insofar as Subparagraph (2) dealt with motor vehicles hauling peanuts in the shell and peaches. This is true because Section 68-502 (c) (2) had been part of the Motor Carrier Act of 1931 since its original enactment and, since it must be presumed that the Legislature did not intend in 1943, in the absence of evidence to the contrary, to enact an Amendment which would be merely declaratory of a small part of the law as it then existed, the Legislature can only have intended a change in the law as it existed in 1943. Thus, Subparagraph (2a) established a new rule for the regulation of motor carriers engaged in the transportation of peanuts in the shell and peaches. This new rule, then, obviously conflicts with the older general language of Subparagraph (2) which was not itself specifically modified at the time the 1943 Amendment was passed. Subparagraphs (2) and (2a) are thus irreconcilable. This being the case, Subparagraph (2a) having been enacted subsequent to Subparagraph (2) constitutes the most recent expression of the Legislative will and thus repeals Subparagraph (2) by implication to the extent of the conflict. It follows' then that Section 68-502 (c) (2a), Georgia Code Annotated, is controlling on the question whether or not a motor vehicle transporting peanuts, in the shell is exempt from the general operation of the Motor Carrier Act of 1931 and the regulations of the Georgia Public Service Commission adopted pursuant thereto.
It is, therefore, my opmwn that Section 68-502 (c) (2a), Georgia Code Annotated, clearly exempts a motor vehicle engaged in transporting peanuts in the shell for hire from the operation of the Motor Carrier Act of 1931, and thus, from the regulations of the Georgia Public Service Commission without regard to whether its specific origin or destination be a mill, warehouse, or any other point so long as it does not carry non-exempt products,.
You next inquire whether Subparagraph (2a) means that a vehicle which is exempt from the regulatory provisions of the Act may never haul non-exempt commodities or that such vehicle may not haul non-exempt commodities at the same time it hauls exempt commodities.
Section 68-502 (c) (2a), Georgia Code Annotated, reads as follows:
"2(a) Motor vehicles engaged in the transportation of peanuts in the shell and peaches, or dry fertilizer, whether such motor vehicle is owned by the producer or owner of such peanuts and peaches, or dry

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fertilizer, or by any other person: Provided, such vehicles do not haul or transport other commodities not exempt by law from the regulations of the Public Service Commission." (Emphasis added.)
Apparently the underlined proviso means simply that any motor vehicle which carries the products listed in Subparagraph (2a) is exempt from the operation of Chapter 68-5, Georgia Code Annotated, only if such vehicle hauls or transports exclusively those commodities or others also exempt by law. This, in turn, would seem to mean that if the current regular practice followed in the operation of a particular motor vehicle is the transportation exclusively of exempt products, then the vehicle itself is exempt from the provisions. of Chapter 68-5, Georgia Code Annotated. However, as soon as a motor vehicle begins to carry non-exempt products, either in the same load with exempt products or alternately with exempt products, or indeed at all, then it becomes a motor carrier subject to the above mentioned Chapter.
The mere fact that a motor vehicle which, as a matter of regular, undeviating practice, now carries only exempt products might have transported non-exempt commodities at some time in the past under another practice, and thus then had been subject to the provisions of Chapter 68-5, Georgia Code Annotated, does not mean that the vehicle is not now exempt from the provisions of that Chapter. The determining factor apparently is the regular, consistent practice which is currently being followed in the operation of the vehicle. As, pointed out above, if that practice is to carry only exempt products and no others, then the vehicle is exempt from the provisions. of Chapter 68-5, Georgia Code Annotated. Upon any change in that praetice, however, as evidenced by any deviation from the carriage exclusively of exempt products, then the motor vehicle loses its exempt character and immediately becomes subject to Chapter 68-5, Georgia Code Annotated, and thus to the jurisdiction of the Public Service Commission.
PUBLIC SERVICE COMMISSION-Jurisdiction
Operation of a "piggy-back" truck service by a railroad for pick up and delivery of property is only exempt from jurisdiction of the Public Service Commission if the trucks operate within 5 miles of a railroad freight or passenger depot owned or operated by the railroad.
March 10, 1961
Honorable Matt L. McWhorter, Chairman Georgia Public Service Commission
This is in response to your letter in which you request my opinion upon the following questions:
(1) Whether or not the operation of "piggy-back" motor common carrier service by a railroad for pickup and delivery of property within established railroad terminal limits is a motor carrier operation requiring a certificate under the Motor Common Carrier Act; and,
(2) Whether or not such operations, even if considered generally subject to the Motor Common Carrier Act, would be excluded under the

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provisions of Section 68-602 (c), Georgia Code Annotated, construing the five (5) mile radius contained therein to extend from any .or all of the railroad depots in metropolitan areas in the affected cities.
The Motor Common Carrier Act of 1931, codified as Chapter 68-5, Georgia Code Annotated, regulates the operation of motor common carriers of persons and property on the public highways of this State. Sections 68-603 and 68-604, Georgia Code Annotated, read as follows:
"68-603. Commission may regulate common carrier for hire.-The Commission is hereby vested with power to regulate the business of any person engaged in the transportation as a common carrier of persons or property, either or both, for hire, by motor vehicle on any public highway of this State. (Acts 1931, pp. 199, 200.)
"68-604. Motor common carriers must obtain certificate.-No motor common carrier shall, except as hereinafter provided, operate without first obtaining from the Commission, after hearing under the provisions of this Chapter, a certificate of public convenience and necessity, pursuant to findings to the effect that the public interest requires such operation. (Acts 1931, pp. 199, 200.)"
It seems clear that all motor common carriers operating upon the public highways of this State are included within the regulatory ambit of the Motor Common Carrier Act unless exempt under other provisions of the Act.
Section 68-602, Georgia Code Annotated, specifically sets out which motor vehicles engaged in motor common carrier operations shall be exempt from the statute. Section 68-602, Georgia Code Annotated, reads as follows:
"68-602. To what vehicles this Chapter does not apply.-The provisions in this Chapter shall not apply to:
"(a) Motor vehicles engaged solely in transporting school children and teachers to and from public schools.
"(b) Taxicabs, drays, trucks, busses, and other motor vehicles, which generally operate exclusively within the corporate limits or police limits of cities and towns and are subject to regulation by the governing authorities of such cities or towns or by the Commission; and this exception shall apply even though such vehicles may in the prosecution of their regular business occasionally go beyond the corporate limits of such towns or cities, provided they do not operate to or from fixed termini outside of said limits.
"(c) To motor vehicles operated exclusively within a radius not exceeding five miles from some railroad freight or passenger depot or station, when the operation of the same is by a common carrier which is under the jurisdiction of the Interstate Commerce Commission of the United States. (Acts 1931, pp. 199, 212.)"
The so called "piggy-back" motor carrier operation is a particular type of common carrier transportation in which motor vehicles owned by a railroad transport other trucks or trailers containing loads from shippers to railroad terminals and from railroad terminals to receivers of the property. "Piggy-back" s,ervice then would seem obviously to fall within the definition of motor common carrier

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operation. Thus, unless this particular type of motor common carrier service is exempt under th.e provisions of Section 68-602, Georgia Code Annotated, it is clearly subject to the Act and to the regulations promulgated pursuant thereto by the Georgia Public Service Commission. If "piggy-back" operations are exempt, under what Subparagraph of Section 68-602, Georgia Code Annotated, does such exemption arise? Subparagraph (a) does not relate in any way to this type of operation. However, both Subparagraphs (b) and (c) do relate to this particular situation, and it appears that if the conditions set out in (b) or (c) are complied with in the operation of a "piggy-back" service, then such service would be exempt.
Subparagraph (b) exempts. from the operation of the Motor Common Carrier Act drays, trucks, and other motor vehicles which generally operate exclusively within the corporate limits or police limits of cities and towns and are subject to regulation by the governing authorities thereof or by the Georgia Public Service Commission. Thus, it would seem that a "piggy-back" motor common carrier operation by a railroad company within terminal limits which themselves lie within the city limits of or are co-terminus with corporate or police limits of cities or towns is exempt from the provisions of the Act so long as the cities and towns within which the terminal areas lie themselves regulate by ordinance such motor carrier activities. Likewise, it would clearly seem that "piggy-back" operations carried out within terminal areas which lie outside the city limits of towns or cities or partly within and partly without city limits and involve frequent trips by the motor vehicles involved to points outside such city limits are not exempt under Subparagraph (b).
Section 68-602 (c), Georgia Code Annotated, exempts from the operation of the Motor Common Carrier Act all motor vehicles which operate exclusively within a radius not exceeding five (5) miles from some railroad freight or passenger depot or station when such vehicles are operated by a carrier under the jurisdiction of the Interstate Commerce Commission. Thus, under the terms of this Subparagraph any "piggy-back" service conducted by a carrier under the jurisdiction of the Interstate Commerce Commission which operates. within the limits specified is exempt from the application of the Act. However, the language of the Subparagraph is ambiguous and it thus becomes necessary to construe the provision in order to ascertain under exactly what circumstances a "piggy-back" service, or any other motor common carrier service, operated by a carrier under the jurisdiction of the Interstate Commerce Commission is exempt from the Motor Common Carrier Act. The ambiguity of the Subparagraph arises from the use of the adjective "some" to modify "railroad freight or passenger depot or station." It is not clear whether the word "some" here means "certain", "particular", or whether, on the contrary, it means "any". If the word "some" is used in the sense of "certain" or "particular" then the Subparagraph, in effect, reads:
"(c) To motor vehicles operated exclusively within a radius not exceeding five miles from some railroad freight or passenger depot or station, when the operation of the same is by a common carrier which is under the jurisdiction of the Interstate Commerce Commission of the United States (Acts 1931, pp. 199, 212.)."
Thus, "particular" or "certain" limits the railroad stations within a radius of five (5) miles of which motor vehicles may be operated by the specified carriers to stations or depots in a particular class. If the word "some" be construed to mean "certain" or "particular" and then be considered in its context, it is

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apparent that the Subparagraph refers. to railroad depots or stations owned or utilized by the specific railroad operating the motor carrier service involved. Thus, if this be the meaning of the Subparagyaph as a whole, then a motor common carrier service must be operated within five (5) miles of a station or depot owned or utilized by the particular common carrier which carries on the motor common carrier service involved in order to be exempt from the Motor Common Carrier Act. On the other hand, if the word "some" means "any," then the Subparagraph as a whole means that "any" motor common carrier service operated by a carrier under the jurisdiction of the Interstate Commerce Commission is exempt from the application of the Motor Common Carrier Act if the motor common carrier service involved does not exceed a radius of five (5) miles from any railroad freight or passenger depot or station apparently without any limitation as to the connection of the carrier to the particular station from which the distance is measured. Obviously, if the word "some" in the Subparagraph involved has the second meaning, then the exemption provided for in Section 68-602 (c), Georgia Code Annotated, is far broader than if the word "s.ome" be given the first meaning.
A consideration of the purpose of the Motor Common Carrier Act of 1931 and the intention of the Legislature which it exemplifies indicates clearly that the narrower interpretation is the correct one. The Legislature intended through its enactment of the Motor Common Carrier Act of 1931 to establish a comprehensive, thorough-going regulation of motor common carrier operations within this State. It provided in the Act for certain limited exemptions. The Legislature could hardly have intended to exempt from the regulatory operation of the Statute all motor common carrier activity carried on by certain common carriers within five (5) miles of any railroad station in this State. Such a broad exemption could very largely defeat the overall purpose of the Act itself because it is now and was then a well known fact that there are hundreds of railroad freight or passenger depots or stations. in this State. If railroads were intended to be allowed exemption from the statute's operation so long as they operated motor common carrier service within five (5) miles. of any railroad station, without limitation, then it seems not unlikely that an enormous territorial area of the State might be the subject of unregulated motor common carrier operations by certain carriers. It seems unreasonable to suppose that the Legislature intended this result to be brought about by Subparagraph (c). On the other hand, if the word "some" in Section 68-602 (c), Georgia Code Annotated, has the signification of "particular" or "certain," then the Legislature would appear to have set up a quite restricted exemption in apparent accordance with the overall purpose of the entire Act. Therefore, upon a reading of the whole Act and a consideration of its purpose, it would seem that the word "some" preceding the phrase "railroad freight or passenger depot or station" in Section 68-602 (c), Georgia Code Annotated, must be construed to signify "particular" or "certain" so that the entire Subparagraph has the effect of exempting from the operation of the Motor Common Carrier Act of 1931 motor common carrier service operated by a carrier within the jurisdiction of the Interstate Commerce Commission which operates exclusively within a radius not exceeding five (5) miles from a particular railroad freight or passenger depot or station owned, operated, or at least utilized by the carrier involved.
A second rule of statutory construction impels one to construe the word "some" to mean "particular" and the general meaning of the Subparagraph to be the restricted one just stated, and that is thE) rule which requires that exemptions

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be construed narrowly where there is ambiguity as to the extent of an exemption. If after a consideration of the purpose and intent of the Motor Common Carrier Act of 1931 there could be any question as to which of the two interpretations is correct, then the narrower one would have to be chosen.
For the stated preceding reasons it is my conclusion that Section 68-602 (c), Georgia Code Annotated, exempts from the operation of the Motor Common Carrier Act of 1931 all motor common carriers operated by carriers under the jurisdiction of the Interstate Commerce Commission which operate exclusively within a radius not exceeding five (5) miles from a particular railroad freight or passenger depot or station of the carrier operating the common carrier service. Thus, a "piggy-back" s,e.rviee operated by a railroad would be exempt under Section 68-602 (e), Georgia Code Annotated, from the provisions of the Motor Common Carrier Act of 1931 only if the "piggy-back" service is operated within five (5) miles of a railroad freight or passenger depot or station owned, operated, or utilized by the carrier operating said "piggy-back" service.

SALES-Foreign Products (Unofficial)

There is no prohibition against foreign products being sold in this State.

Mr. Hays, M. Hunter

June 28, 1960

I am pleased to acknowledge your letter and to advise that there is no law in the State of Georgia which prohibits the selling in this State of any item such as a food slicing machine for the reason that such item is manufactured in any foreign country.

We do have a statute which provides in the purchase of equipment and supplies that the State Purchasing Department shall give preference to Georgia made products when the same is of equal value and material and is available.

SALES-State Purchases
In the absence of any provision in contracts for sale of materials to the State, there can be no increase in the contracted price.
February 2, 1960
Mr. T. B. McDorman, Assistant Supervisor of Purchases
I am pleased to acknowledge your letter in which you request an opmwn on a letter dated January 29, 1960 from the Barrow Tractor Company, Winder, Georgia, in which they state that a 3o/o increase on all parts shipped after February 1, 1960 shall apply b their contract dated May 26, 1959.
A review of the contract discloses in paragraph four thereof that the prices to be charged for a twelve months' Prriod, beginning June 15, 1959, shall be the

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suggested selling price for John Deere Company parts as shown in the list 1-G, dated February 1, 1959, less 33-1/3% discount from said published list 1-G, dated February 1, 1959.
There is no provision in said contract for any increase in price of parts to be supplied under this contract. The contract is supported by a contract bond issued by the Fidelity and Deposit Company of Maryland.
It has been consistently held by this Department that no price increases or change in a contract price when based on a sealed competitive bid shall be authorized unless there is specifically contained in said contract an escalator clause. The contract in question does not contain such a clause, and you would not be authorized, nor would any department of the State be authorized, to pay any price for John Deere tractor parts from the Barrow Tractor Company of Winder, Georgia, except that set forth in the John Deere Company suggested selling price list 1-G, dated February 1, 1959, during the twelve months' period beginning June 15, 1959.
SALES-State Purchases
For every invoice paid by any State agency or department there must be attached a copy of the delivery receipt.
June 14, 1961
Honorable J. M. Forrester, Director State Board of Corrections
This will acknowledge your letter with enclosed correspondence from R. P. Balkcom.
Under and pursuant to Code Section 40-1933, hereinafter set out, the State Auditor would be required to disallow, as an illegal payment, payment for the materials in question which have not been delivered to the State Prison at Reidsville.
"40-1935. To each and every invoice paid by any State agency or department, there shall be attached the delivery receipt and also a copy of the purchase order issued by the Supervisor of Purchases. And it shall be the duty of the State Auditor to disallow, as an illegal payment, any payments that do not have the receipts and purchase orders attached to the invoice paid. It shall also be the duty of the State Auditor to point out these items in the annual audit of each agency or department of the State."
I do not think that you, nor any member of the Board or Department of Corrections, would want to acknowledge receipt of delivery unless actual delivery were in fact made.
If this material could be delivered to the proximity of the Reidsville State Prison, and stored on premises of the Department of Corrections, or on premises leased by the Department of Corrections, then the materials could be receipted for and processed for payment.

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SALES-State Purchases
Purchases of medals and trophies for awards to National Guard members must be through the purchasing department.
July 19, 1960
Honorable Alvan C. Gillem, Jr. State Supervisor of Purchases,
I have reviewed Code Section 86-1112 relative to awards to officers and enlisted men in the National Guard of Georgia. It is clear that the Governor, upon the recommendation of the Adjutant General, may authorize the awarding of trophies and other type of awards to members and units of the organized militia as he deems it advisable to inspire the spirit of competition and to stimulate interest to the end that technical proficiency and a high standard of efficiency in administration and training are attained, and that expense of such awards may be paid from the military fund.
Nowhere in said Code Section or in the laws relating to the National Guard of Georgia do I find any provision which would authorize the purchase of medals, awards and trophies except through the State Supervisor of Purchases under the provisions of the State Purchasing Act.
It is my view and opinion that all purchases of medals, awards and trophies should be made by requisition to the State Supervisor of Purchases who shall purchase the same under the provisions and regulations of the State Purchasing Act.
SALES-State Purchases
Various departments and agencies of the State are required to give preference to goods manufactured at the Georgia Factory for the Blind, provided they comply, with specifications of the departments.
May 24, 1960
Honorable Walter R. McDonald Board of Managers Georgia Factory for the Blind
I am pleased to reply to your letter relative to the Georgia Factory for the Blind supplying to departments and agencies of the State Government products manufactured by said Factory.
Section V of the Act creating the Factory for the Blind provides:
"All departments, subdivisions and institutions of the State of Georgia are hereby directed to give preference in purchases to goods manufactured at said Factory provided said goods are of equal quality and competitive in price."
This provision of the statute is clear in providing that if goods manufactured by the Factory for the Blind are of equal quality and competitive in price that the various departments and agencies of the State Government should give

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preference in purchases made by them. In this connection, it is well to point out that each department and agency of the State Government has the exclusive right to determine the kind, quantity and quality of any materials and supplies that they may desire in the proper and efficient operation of the respective departments and agencies subject only to the provisions of the State Purchasing Act, and the availability of funds through budget procedure.
The State Supervisor of Purchases has ample authority under the State Purchasing Act to compile estimates of supplies and materials needed and required by the various State departments and agencies to determine the total requirement to any given commodity, and to determine through competitive bids a source of supply for the various departments and agencies of the State Government.
Section 40-1927 of the Code of Georgia provides that nothing contained in Code Section 40-1908 to Code Section 40-1914 inclusive, or any other section of Chapter 40 shall apply to or affect the distribution and purchase of goods, wares, or merchandise manufactured, produced, or mined wholly or in part by inmates of the penal, correctional, and eleemosynary institutions of this State.
Code Sections 40-1908 through 40-1914 inclusive relate to the taking of advertisements for bids and competitive bids and the rules for competitive bidding, and it is my view that it was the purpose of Code Section 40-1927 to remove the purchase of goods manufactured by an eleemosynary institution, or a penal or correctional institution, from having to be purchased through sealed competitive bidding.
It would also appear that the State Supervisor of Purchases, in addition to the powers granted by statute, would have the facilities to determine if any item manufactured by the Georgia Factory for the Blind was of equal quality and competitive' in price to any item requisitioned by the various departments and agencies of the State through the State Supervisor of Purchases.
It is my further opinion that any department desiring to purchase materials and supplies of the kind manufactured by an eleemosynary, or a penal, or a correctional institution should make the requisition in the usual form to the State Supervisor of Purchases, who should thereafter advise the department making the requisition that some eleemosynary, penal, or correctional institution can supply the desired product of equal quality and competitive in price as to the article requested by the department. Thereafter the department making the requisition should advise the Supervisor of State Purchases of its acceptance of the source of supply, or its reluctance, or refusal to accept such source of supply, giving the State Supervisor of Purchases the reasons for its reluctance or rejection.
It is also my opinion that it was the intent of the General Assembly in the enactment of the above cited statutory authorities to provide that preference should be given to commodities manufactured by the Georgia Factory for the Blind provided that the said goods are of equal quality and competitive in price, and are needed and desired by the various departments and agencies of the State Government, and that it was not the intent of the General Assembly to require any department or agency of the State to absorb production o:f said Factory when not needed in the orderly and efficient operation of any department or agency of the State Government.

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It is also my further opinion that the Georgia Factory for the Blind, being an agency of the State Department of Public Welfare, is an eleemosynary institution within the meaning of Code Section 40-1927 of the Annotated Code of Georgia.
It is my further opmwn that each requisition made and purchase order issued by the State Supervisor of Purchases should be on a transaction consummated prior to the delivery of any product, and that there is no authorization in the State Purchasing Act for a so-called "confirmation" of an already passed transaction.
SALES-State Purchases
Purchase of surplus federal property is an exception to the general purchasing laws of the State.
December 30, 1960
Honorable Ray Shirley Georgia Forestry Commission
I am in receipt of your letter in which you ask for my opmwn whether the Georgia Forestry Commission can requisition surplus federal property without going through the Purchasing Department.
In this connection, I would direct your attention to Georgia Laws 1945, pp. 394, et seq. (Georgia Code Annotated Sections 91-510 through 91-515), relating to the purchase of Federal property by the State of Georgia and various subdivisions thereof. This statute specifically provides for the entering into contracts with the United States of America without:
"1. Being required to post notices, or public advertising for bids or expenditures.
"2. The inviting or receiving of competitive bids.
"3. Or the delivery of purchases before payment."
This same statute further provides:
"91-511. The governing body or executive authority of any department, division, bureau, commission, board, authority, agency, county, city, municipality, or other political subdivision of the State may designate by appropriate resolution or order any officeholder or employee of its own to enter a bid or bids in its behalf at any sale of any equipment, supplies, material, or other property, both real and personal, owned by the United States of America or any agency whereof which such above mentioned governing body or executive authority of any such department, division, bureau, commission, board, authority, agency, county, city, municipality, or other political subdivision of the State is authorized by law to purchase any of the property above set forth, and any department, agency of the State or any county, city, municipality, or other subdivision thereof of said State may authorize said person to make any down payment or payment in full required in connection with such bidding and such sale."

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The statute also suspends existing laws to the extent they are inconsistent with the provisions of the above law. However, if you decide to proceed in accordance with the provisions of the above law to purchase this property, I direct your attention to Georgia Laws 1939, p. 160, at p. 175 (Georgia Code Annotated, Section 40-1935):
"40-1935. To each and every invoice paid by any State agency or department, there shall be attached the delivery receipt and also a copy of the purchase order issued by the Supervisor of Purchases. And it shall be the duty of the State Auditor to disallow, as an illegal payment, and payments that do not have the receipts and purchase orders attached to the invoice paid. It shall also be the duty of the State Auditor to point out these items in the annual audit of each agency or department of the State."
In view of the above, I feel there is a possible technical conflict in these two statutes. However, in construing the statutes, and arriving at the intent of the General Assembly, I am of the opinion the purchase of Federal property is an exception to the general purchasing laws of the State of Georgia. It does appear, however, that you would need a confirmation purchase order issued by the Supervisor of Purchases along with the delivery receipt attached to every invoice for which you might pay. As this appears to be an administrative requirement, I would suggest that you coordinate this procedure with the State Auditor and Supervisor of Purchases.
STATE GOVERNMENT-Budget
Funds which have been "allotted" by the Budget Bureau do not lapse into the State Treasury at the end of the fiscal year even though not yet expended.
February 20, 1961
Honorable Ernest Vandiver Governor of Georgia
This is to acknowledge your letter concerning the sum of $5,500,000 which was appropriated to the use of the State Board of Education for Capital Outlay for School Building Hardship Cases, as authorized by the Minimum Foundation Act. You specifically request me to advise you whether any portion of this sum ($5,500,000) which may remain unexpended by the State Board of Education as of June 30, 1961, may be lapsed into the State Treasury.
The provision of law with respect to lapsed appropriations is found in Section 46 of the 1956 Appropriations Act (Ga. Laws 1956, pp. 753, 778) which incorporates by reference Section 63 of the Appropriations Act of 1943 (Ga. Laws 1943, pp. 84, 96) and states as follows:
"Section 63. At the end of each fiscal year the amount of each appropriation provided for in this Act which has not been allotted by Budget Bureau authorities in writing shall lapse and cease to be available and the State Treasurer, upon receiving notice of same, shall not

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pay any unallotted appropriation and shall make the necessary adjustments in his appropriation accounts to charge off the amount of the lapsed appropriations."
Your letter states that on September 9, 1960, by Executive Order this sum of $5,500,000 was transferred from the Income Equalization Account and credited to the Appropriations Account of the State Board of Education for capital outlay purposes, and thereafter said sum was properly "allotted" by Budget Bureau authorities in writing to the State Board of Education.
In view of the provisions in the above cited Appropriations Act, and in view of the fact that the sum of $5,500,000 has been "allotted" by the Budget Bureau authorities in writing, it is my opinion that any portion of this sum which may remain unexpended by the State Board of Education as of June 30, 1961, will not lapse into the State Treasury.
STATE GOVERNMENT'--Commerce Department
One of the duties of the Commerce Department being to encourage use of aviation facilities, it has authority to make available to the public and Airport Directory.
August 9, 1961
Honorable Jack Minter, Director Georgia Department of Commerce
This will acknowledge receipt of your letter in which you ask my opmwn as to the authority of the Department of Commerce to make available to the general public an Airport Directory. The answer is in the affirmative.
Section 40-2107 of the Code of Georgia, as amended, provides as follows:
"40-2107. Duties of Director.-The Director shall have the duties and powers hereinafter set out:
"(a) To investigate, study, and undertake ways and means of promoting and encouraging the prosperous development and protection of the legitimate interest and welfare of Georgia business, industry and commerce, within and outside of the State.
"(b) To make and prepare plans and establish long-term policies for the promotion, establishment, development, and expansion of commerce and industry in the State.
"(c) To promote and encourage the location, establishment, and development of new businesses and industries within the State, and the development and expansion of businesses and industries now or hereafter located in the State.
"(d) To promote and encourage the establishment, maintenance, development and expansion of markets for the products of Georgia business, industry, and agriculture.

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" (e) To promote and encourage the use of the commercial, industrial, and agricultural facilities and resources of the State by persons, businesses, and industries located within or outside of the State; and particularly to promote and encourage the expansion and development of industries processing or using agricultural, timber, timber products, and natural resources of the State.
"(f) To establish, develop, and maintain an effective business information service, both for the direct assistance of business and industry of the State and for the encouragement of industries outside the State to use commercial, industrial and agricultural facilities within the State.
"(g) To promote and encourage the establishment, development and maintenance of commerce and trade between this State and other States and foreign countries; to plan for the removal of, and to devise and put into operation ways and means of removing trade barriers of any kind which in any way hamper, burden, restrict, or interfere with the free flow of commerce and trade between this State and other States.
"(h) To plan and conduct a program of information and publicity designed to attract tourists, visitors, and other interested persons from outside the State to this State and also to encourage and coordinate the efforts of other public and private organizations or groups of citizens to publicize the facilities and attractions of the State for the same purposes.
"(i) To plan for and establish a long-term policy in regard to the establishment, development, and maintenance of aviation and aviation facilities in the State; to promote and encourage the use of aviation facilities of the State for air commerce in the State and between the State and other States, and foreign countries; to cooperate, counsel and advise with the Aeronautics Advisory Board and the State Highway Board in regard to the planning, construction, development, and maintenance of airports, landing fields, and air navigation facilities in the State; to cooperate, counsel and advise with municipalities and other political subdivisions of the State, and with other departments, boards, bureaus, commissions, agencies or establishments, whether Federal, State, or local, or public or private, for the purpose of promoting and obtaining coordination in the planning for, and in the establishment of, development, maintenance and protection of a system of air routes, airports, and landing fields in the State, and of other aviation facilities in the State."
From reading Section (i) of the preceding Code Section, it is apparent that one of the duties and powers that you as Director have is to encourage the use of aviation facilities of the State for air commerce in the State and between the State and other States, and foreign countries. Therefore, I think the law does give you authority to make available to the general public an Airport Directory so long as the purpose is within the previously quoted Code Section.

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STATE GOVERNMENT-Commerce Department
The Department of Commerce would not be violating any constitutional provisions by staffing a welcome station constructed by private funds.
April 13, 1960
Hon. Abit Massey, Director Department of Commerce
I am in receipt of your letter in which you state that a non-profit organization known as the Tourist Information and Welcome Stations of Georgia, Inc., proposes to construct a building in or near Ringgold, Georgia, on U. S. 41 to be used as a Georgia welcome station. You state that the organization has advised you that they will solicit and receive funds from Georgia businesses, individuals, chambers of commerce and others for the purpose of constructing said welcome station.
You state that the referred to organization desires to give to all parties contributing money to the construction of this building the privilege of placing their advertisement in the welcome station.
As I understand it, your Department has been invited to staff and operate said welcome station and that no funds of a capital nature will be required of you.
Article VII, Paragraph 4 of the State 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."
I am of the opinion that to staff and operate the proposed welcome station will not be a violation of said constitutional provision. It has been held in the case of Ave{\ et al v. Steiner Cancer Hospital, Inc., et al, 189 Ga. 126 that:
"A contract between a municipality and another corporation for a lease, for a term of thirty-five years, of land owned by the municipality, in consideration of care of the poor of the city by the lessee to the extent of supplying specified medical and surgical treatment in a clinic or hospital existing on such land is not unlawful as violating any of the provisions of the constitution."
Accordingly, where the State neither owns nor leases the property, there would be no prohibition against using such property which will permit the furtherance of the duties and functions of the Department of Commerce as outlined in Acts 1959, pp. 262-266.

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STATE GOVERNMENT-Commerce Department

The State Department of Commerce may not loan monies or grant scholarships except as set forth in the Constitution, Article VII, Section I, Paragraph 2 (7), providing that state departments may match federal funds for graduate studies by employees.

Hon. Abit Massey, Director Department of Commerce

April 18, 1960

I am in receipt of your letter wherein you referred to me a recommendation made to your Department from the Advisory Committee to the Graduate City Planning Program of Georgia Tech. It was recommended by the Committee that the Georgia Department of Commerce provide certain financial assistance to be made available in the form of fellowships for qualifying students enabling them to attend the Graduate City Planning Program of the Georgia Institute of Technology.

The recommendation states further that any qualifying student, after completing the courses permitted under this fellowship, would be required to repay the Georgia Department of Commerce within two years of graduation the amount of the financial aid received. They have suggested further that you allocate for each of the next three years the sum of $10,000 to assist men and women who wish to qualify for these studies.

I can find no authority under Georgia law which would permit the Georgia Department of Commerce to engage in the practice of lending money. Nor can I find any authority for the Georgia Department of Commerce to grant scholarships or fellowships to "students." To do so would be a violation of the Constituition and would constitute a possible gratuity.

However, the Constitution of the State of Georgia, Article VII, Section I, Paragraph 2 (7), which was an amendment ratified in 1958, provides that the State Departments of the State Government have the authority to match federal funds to provide qualified employe,es with graduate or post-graduate educational scholarships.

There are certain prerequisites required under this constitutional provision pertaining to requiring the student to work with the department after graduation, repayment, etc. It provides further that funds so expended shall not constitute an additional appropriation to your department by the General Assembly.

STATE GOVERNMENT-Conflict of Interest
Discussion of whether persons serving on Criminal Law Study Committee would be in violation of the Transactions with the State law.
June 28, 1961
Honorable Ernest Vandiver Governor of Georgia
You request me to advise you whether Section 7 of an Act entitled "Transactions with State-Actions Constituting Crimes" (Ga. Laws 1959, p. 34, 37),

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would preclude your appointment of individuals representing Superior Court Judges Association, Solicitors General Association, City Court Judges Association, City Court Solicitors Association and one of my Assistant Attorneys General as members of the Criminal Law Study Committee (Ga. Laws 1961, p. 96). You further request me to advise you whether such appointees would be entitled to receive the compensation, per diem, expenses and allowances authorized under said Resolution.
Section 7 of the 1959 Act above referred to does not preclude your appointing these individuals to serve as membe:vs of the Criminal Law Study Committee, but there appears to be a conflict between the 1959 Act authorizing the appointment insofar as compensation is concerned. Section 7 of the 1959 Act above referred to is intended to prohibit persons from receiving compensation from two or all three divisions of State Government as employees of each.
On the other hand, if they are appointed as provided for in the 1961 Criminal Law Study Committee Act, and serve as employees of their respective divisions, and in the case of the Assistant Attorney General in his capacity as an employee of the Law Department, they would be entitled to compensation as such employees and would be entitled to receive the compensation, per diem, expenses and allowances authorized under the Resolution from funds allocated to the State Judiciary. In my Assistant's case, he would be paid out of funds appropriated to the State Law Department. This procedure insofar as the Judges and solicitor are concerned has been cleared with State Treasurer George Hamilton.
In other words, they could legally serve on the Criminal Law Study Committee and be paid for their services as employees not of the Legislature but of their respective offices.
STATE GOVERNMENT-Employees
A department of the State Government may not employ an alien in the absence of certification of the absence of any qualified American citizen available to perform the duties of the position.
January 6, 1960
Honorable Edwin L. Swain, Director State Merit System of Personnel Administration
I am pleased to acknowledge your letter requesting an opinion on the legality of the State Department of Health employing an alien.
On July 30, 1959 an opinion was rendered by this Department covering the question propounded. The provisions of law cited therein are in full effect and force as of this date, and are applicable to your present request.
Your attention is called to the suggestion contained in the last paragraph of said opinion in having the Director of the State Department of Health file with the State Merit System a certificate of his finding of fact as to there being no qualified American citizen available to perform the duties of the position which they seek to fill, in order that the facts of such investigation may

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be retained in your Department to substantiate the act of said State Department of Health. This certificate should be under oath, setting forth in full details the scope of the investigation that no American citizen is available to perform the duties of the position which the State Department of Health seeks to fill with an alien. A letter by the Director of the Division of Personnel of the State Department of Health is not a certificate within the meaning of the opinion of July 30, 1959 above cited.
It should be pointed out to the State Department of Health the penalty provision under Code Section 89-107 of the Code of Georgia which provides that any department head or any official of any political subdivision of this State that violates the term of Code Section 89-106 shall be subject to removal from office by the Governor.
STATE GOVERNMENT-Employees (Unofficial)
State employees are liable for their tortious acts.
May 31, 1660
Mr. Walter L. Williams, Jr.
This is in reply to your letter in which you state that you understand that the State of Georgia is a self-insurer of state owned vehicles used by state employees in the course of their employment and would therefore be the primary insurer of the vehicle which, according to your letter, was responsible for the slight damage to the car owned by J. M. Kerce of Ashburn, Georgia, on March 24, 1960, at Sylvester, Georgia.
Your assumption that the State of Georgia is a self-insurer is incorrect. Georgia does not assume liability for the negligent acts of its employees while driving State owned vehicles. Such employees are personally liable for tortious acts and this would appear to be one of the prime reasons why James R. Gifford obtained liability insurance to cover him while driving the State-owned vehicle.

STATE GOVERNMENT-Emp,loyees

Employees who are members of the Civil Air Patrol are not entitled to military leave.

June 13, 1961

Mr. Edwin L. Swain, Director State Merit System of Personnel Administration

This is in response to your question whether State employees who are members of the Civil Air Patrol of Georgia are entitled to military leave.

Code Section 86-1109, paragraph 2, of the Code of Georgia Annotated

provides as follows:



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"2. The term 'ordered military duty', as used in this section, shall mean:
"(a) Any military duty performed in the service of the State or of the United States, including but not limited to attendance at any service school or schools conducted by the armed forces of the United States by a public officer or employee as a voluntary member of any force of the organized militia or of any reserve force or reserve component of the armed forces of the United States pursuant to orders issued by competent State and Federal authority, without the consent of such public officer or employee."
In discussing the status of the Civil Air Patrol with respect to the United States Air Force, in order to determine if the Civil Air Patrol is a component of any of the armed forces of the United States, I learn from Major A. T. Einsley, of the United States Air Force, who is in charge of the Civil Air Patrol at Dobbins Air Force Base, that the members of the Civil Air Patrol must consent to being ordered to military duty.
Therefore, such members of the Civil Air Patrol applying for military leave could not come within the terms of the aforesaid Code Section, which requires that they be ordered "without the consent of such public officer or employee."
Therefore, I must conclude, and Major Einsley agrees with me, that members of the Civil Air Patrol are not entitled to military leave under the provisions of Georgia law.

STATE GOVERNMENT-Emp,loyees

Military leave policies and procedures explained.

Mr. Edwin L. Swain, Director State Merit System of Personnel Administration

November 2, 1960

In reply to your letter requesting an informal interpretation of Georgia laws pertaining to military leave, I wish to submit the following:

1. The question is raised whether an employee of the Georgia Forestry Commission in a position covered by the State Merit System, who enlisted in the Air National Guard, and who is ordered to active duty for a period of eight weeks, may be granted military leave for thirty days in each of two calendar years; specifically, thirty days in December of 1960 and continuing for thirty days in January of 1961.

2. A further question is raised whether the above referred to employee can be granted one-half day's military leave for each weekend drill period which he will have to attend once a month after he returns from his basic training period, where his normal working week runs from Monday through noon Saturday.

3. The question is also raised whether the pay for thirty days while on ordered military duty would apply where an employee covered by

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the State Merit System was ordered to active duty for a period of two years' service in the Armed Forces.
4. You likewise raised the question as to how an employee covered by the State Merit System would figure leave with pay in a case where he was ordered to military duty for twenty-five days during the last days of 1960 and the first five days in the year 1961.
The Military Forces Reorganization Act set out in Georgia Laws of 1955, page 10, specifically on page 106 under Section 86, provides as follows:
"Rights of public officers and employees absent on military duty as members of the organized militia or of reserve forces or reserve components of the armed forces of the United States. a. Definitions. 1. The term 'public officer or employee', as used in this section, shall include every person, by whatsoever title, description or designation known, who receives any pay, salary or compensation of any kind from the State, county or a municipal corporation or any other political subdivision thereof, or who is in any department of the State, but shall not include persons employed by the State, county or a municipal corporation or any political subdivision thereof on a temporary basis.
"2. The term 'ordered military duty', as used in this section, shall mean:
"(a) Any military duty performed in the service of the State or of the United States, including but not limited to attendance at any service school or schools conducted by the armed forces of the United States by a public officer or employee as a voluntary member of any force of the organized militia or of any reserve force or reserve component of the armed forces of the United States pursuant to orders issued by competent State and Federal authority, without the consent of such public officer or employee.
"(b) Such duty, performed for a period or periods not exceeding a total of thirty days in any one calendar year, shall be deemed 'ordered military duty' regardless of whether such orders are or may be issued with the consent of such public officer or employee."
Section 86, Paragraph e., "Pay for thirty days" provides as follows:
"Every public officer or employee shall be paid his salary or other compensation as such public officer or employee for any and all periods of absence while engaged in the performance of ordered military duty, and while going to and returning from such duty, not exceeding a total of thirty days in any one calendar year and not exceeding thirty days in any one continuous period of such absence."
In interpreting these provisions of the Military Forces Reorganization Act cited above and answering your questions above numbered:
1. If the employee is ordered to military duty in December of 1960 and said tour of duty is continuous and extends over into thirty days of January, 1961, the employee can only be paid for thirty days since Paragraph e. specifically provides that the employee shall be paid his salary or other compensation for a period of absence while engaged in

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the performance of ordered military duty "not exceeding thirty days in any one continuous period of absence".
2. It is my opinion that if the one-half day for weekend drill period which the employee has to attend once a month after he returns from his basic training period comes within the definition of "ordered military duty" as set out in Section 86, Number 2 thereof, the said one-half day's military leave may be accumulated up to thirty days within any one calendar year, and would be computed and allowed in connection with any other ordered military duty taken by the employee, not to exceed thirty days in any one calendar year.
3. Under Section 86, Sub-paragraph (b), pay for thirty days in connection with military duty ordered for a period for two years., would not be covered within the intent and purposes of this Act because the "ordered military duty" referred to and for which pay for thirty days within any calendar year or any one continuous period of absence is due refers to military duty "performed for a period or periods not exceeding a total of thirty days within any one calendar year".
4. If the ordered military duty of an employee covered a period of the last twenty-five days in 1960 and five days in the first period of January 1961, it is my opinion that the employee would be paid for twenty-five days within the calendar year of 1960 and five days in the calendar year 1961, and he would have twenty-five days remaining in the calendar year 1961 for which he could be paid provided he otherwise qualifies under the provisions of the law hereinbefore referred to.
STATE GOVERNMENT-Executive Department
The Governor may submit to the Senate for confirmation, at any time prior to its adjournment, names of persons appointed or to be appointed to fill vacancies on various boards, bureaus and commissions which shall occur within eight months after the date fixed for the convening of the Senate.
December 12, 1961
Honorable Ernest Vandiver Governor
This will acknowledge receipt of your letter requesting my opinion on the question whether you would be authorized to submit to the 1962 Senate for confirmation at any time prior to its adjournment, the names of persons appointed or to be appointed by you to fill all vacancies on the various boards, bureaus, and commissions which shall occur within eight months after the date fixed for the convening of the Senate.
Code Section 40-302 provides:
"In case of a vacancy from any cause in any office, the full term of which, by the Constitution, is to be filled by the Governor with the advice and consent of the Senate, the Governor shall appoint and com-

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mission some qualified person to supply it until the next meeting of the General Assembly, when said vacancy shall be filled in the manner described in the Constitution for filling the full term of such office. All vacancies which may occur during the session of the General Assembly, or may then exist, shall be filled in pursuance of the provisions of this section.
"Where it shall be incumbent upon the Governor to appoint a public officer subject to confirmation of or by and with the advice and consent of the Senate, the office shall be deemed vacant at the expiration of the term of such officer, and he shall not hold over until his successor shall have been appointed or confirmed. The Governor may make an appointment to fill such vacancy ad interim, and the appointee shall hold office until the Senate shall next convene, when the Governor shall submit an appointment to fill such vacancy to the Senate for confirmation; the appointee, if confirmed, shall hold over until the expiration of the term for which he was appointed: Provided, however, the Governor shall not appoint ad interim any person previously rejected by the Senate; and Provided further that the Governor shall submit to the Senate whenever in session the names and appointees to fill all vacancies which shall occur within eight months after the date fixed for the convening of the Senate." (Emphasis added)
Also, Code Section 40-314 provides:
"All appointments made by the Governor to boards, commissions and bureaus created and established by the laws of this State, shall be made subject to confirmation by the State Senate. And it shall be the duty of the Governor to submit to the Senate the names of all such appointees appointed prior to the convening of the General Assembly or during the session, either regular or special, of the General Assembly, and unless such appointees are confirmed by the Senate, they shall cease to hold the office to which they have been appointed, and the name of another appointee shall be immediately submitted by the Governor to the Senate to fill such office."
Code Sec. 40-302, first quoted above, was in the 1933 Code, whereas Sec. 40-314 was enacted in 1943 (Ga. Laws 1943, pp. 208, 209). The clause of Sec. 40-302 underlined above was taken from an act of 1931 (Ga. Laws 1931, pp. 7, 45), at which time Art. III, Sec. IV, Par. III of the Constitution of 1877 then in effect provided for biennial sessions of the General Assembly.
In 1954, an amendment to Art. III, Sec. IV, Par. III of the 1945 Constitution was ratified so as to provide for annual sessions, to begin on the second Monday in January of each year.
In my opinion, the fact each General Assembly now meets in two annual sessions does not require that all appointments be submitted to the Senate at the first Session following the election and organization thereof, as Sec. 40-302 says that such appointments can be submitted to the Senate "whenever in session". Of course, a "called" or special session presents a different question. See Sec. 2-3012.
Second, I do not believe Sec. 40-314, taken from the 1943 Act, has repealed or superseded Sec. 40-302. Implied repeals are not favored, Central R. R. v. Hamilton, 71 Ga. 461; Oxford v. Carter, 216 Ga. 821, and two statutes should

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be constructed, where possible, so as to make both stand and give effect to each. Folds v. Auto Indemnity Co., 55 Ga. App. 198.
However, I should point out that in certain instances, the law makes provision contrary to Sec. 40-302. For example, the names of appointees to fill vacancies in the State Game and Fish Commission must be "submitted to the Senate for confirmation at the next session of the General Assembly after the making of the appointment," Sec. 2-3301, and see Sections 2-6501 and 2-6701, relating to the State Board of Education and the Board of Regents, respectively. Also, it may be that statutes dealing with specific boards, commissions or bureaus, enacted subsequent to Sec. 40-302, have made exceptions to the latter. I have not undertaken to review the laws relating to all of the many boards, bureaus and commissions, but decision thereon will be withheld until each question presents itself.
Therefore, in the absence of a specific law making prov1swn for any office contrary to Code Sec. 40-302, it is my opinion that you would be authorized to submit to the 1962 Senate for confirmation at any time prior to its adjournment the names of persons appointed or to be appointed by you to fill all vacancies on the various boards, bureaus and commissions which shall occur within eight months after the date fixed for the convening of the Senate.
As pointed out in Stanley v. Sims, 185 Ga. 518, 526, Sec. 40-302 uses the word "vacancy" in a sense different from its ordinary legal meaning in that as used therein it includes situations where a term of office simply expires in the ordinary manner. Under general law, the word "vacancy" refers to situations where an office is vacated by death, resignation or some means other than by natural expiration of the term prescribed by law. Shackleford v. West, 138 Ga. 159.
STATE GOVERNMENT-Forestry Commission
Members shall receive such per diem as authorized by the Commission, provided it does not exceed allowances authorized for other State Commissions.
June 17, 1960
Honorable George Bishop Georgia Forestry Commission
I am in receipt of your letter in which you request my opinion as to the legality of the State Forestry Commission setting a per diem for those days on which they officially meet and further requesting my opinion as to what the legal limit of such per diem would be.
In this connection, you are referred to the Georgia Code Annotated, Section 43-204 (Ga. Laws 1955, p. 309, 313), which provides in part:
"43-204. . .. The members of the Commission, including the chairman, shall receive such per diem subsistence allowances for each day of actual attendance of meetings by the Commission and mileage to and from the place of meeting and their respective home by the nearest practical route as may be authorized by the Commission. The per diem and

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mileage allowances received shall not exceed those authorized by law for other State commissions and/or boards...."
It is my opinion that the above-quoted statute gives the Commission authority to set their own per diem and mileage for attendance of meetings by the Commission, provided the mileage does not exceed six (6) cents per mile when traveling by their automobile as is currently set by the State Supervisor of Purchases, or the amount after July 1, 1960, that may be fixed by the Budget Bureau as provided in Georgia Laws 1960, page 79, and provided the per diem does not exceed that authorized by law for other State commissions and/or boards. As an example of that authorized by law for another Commission, I refer you to Georgia Code Annotated, Section 45-107 (Ga. Laws 1955, pp. 483, 485), which sets the amount for the Game and Fish Commission, part of which I quote as follows:
"45-107. . .. The members of the Commission, including the chairman, shall each receive $20.00 for each day of actual attendance of meetings of the Commission at such designated places, and actual cost of transportation to and from the place of :meeting and their respective homes by the nearest practicable route not to exceed six cents per mile. . . . Provided, however, that the total per diem compensation paid in any year to any member of the Commission shall not exceed $900.00...."
STATE GOVERNMENT-Forestry Commission
The Forestry Commission may acquire surplus federal property at no cost to issue as equipment for fire fighting, including protective clothing.
September 29, 1960
Honorable Ray Shirley, Director Georgia Forestry Commission
The Georgia Forestry Commission has the opportunity to obtain from the Federal Government surplus property, some of which can be obtained at no cost, and some of which can be obtained at 20% of the purchase price. I understand the problem arises in that part of the equipment is clothing. I understand that if this clothing is acquired, it would be furnished only to the personnel in your organization who are involved in fire fighting, or are subject to call for said purpose, and such clothing would be furnished as part of their equipment for the job and would not become the property of the individual nor be for his private use.
In view of the proposed use, I am of the opinion that the Georgia Forestry Commission would be authorized to acquire this property to be furnished to their personnel as part of the equipment needed in performing their work under Georgia Code Annotated, Section 43-206 (Georgia Laws 1955, pages 309, 314), relating to the authority of the Commission, which in part reads:
"... to conduct and direct fire prevention work and maintain equipment, personnel and installments for the detection, prevention and combatting thereof; ..."

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It should be pointed out, however, that this should not be taken as a change in expression of my views as set forth in a letter to Mr. Leon A. Hargreaves, Assistant to Director, Forestry Commission, dated May 16, 1957, as I am still of the opinion that if the Commission is to furnish a uniform for its personnel to wear, you would need authorization from the General Assembly to purchase same.
STATE GOVERNMENT-Historical Commission (Unofficial)
Purpose and functions of the Georgia Historical Commission discussed.
March 1, 1961
Honorable John A. Carver, Jr. Secretary of the Interior
Your letter requesting information as to the laws enacted since 1936 which govern the preservation of historical and archaeological objects in the State of Georgia has been referred to this office for reply.
In 1951 the General Assembly of the State of Georgia created the Georgia Historical Commission. The Georgia Historical Commission was and is under the direction and supervision of a Board of Commissioners. The powers and duties of the Board are prescribed by Section 40-811a of Ga. Code Ann., which is as follows:
"40-811a. Same; powers and duties of board.-The board shall have the duties and powers hereinafter set out:
"(a) To promote and increase knowledge and understanding of the history of this State from the earliest times to the present, including the archaeological, Indian, Spanish, Colonial, and American eras, by adopting and executing general plans, methods, and policies for permanently preserving and marking objects, sites, areas, structures, and ruins of historic or legendary significance, such as trails, post-roads, highways or railroads, inns or taverns; rivers, inlets, millponds, bridges, plantations, harbors or wharves; mountains, valleys, coves, swamps, forests or everglades; churches, missions, campgrounds and places of worships, schools, colleges and universities; courthouses and seats of government; places of treaties, councils, assemblies and conventions; factories, foundries, industries, mills, stores and banks; cemeteries and burial mounds; battlefields, fortifications and arsenals, by erecting signs, pointers, markers, monuments, temples and museums with tablets, inscriptions, pictures, paintings and sculptures, maps, diagrams, leaflets and publications explaining their significance.
" (b) To promote and assist in the publicising of the historical resources of the State by preparing and furnishing the necessary historical material to agencies charged with such publicity; to promote and assist in making accessible and attractive to travelers, visitors and tourists the historical features of the State by advising and cooperating with agencies, State, Federal and local charged with the construction of roads, highways and bridges leading to such historical points.

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" (c) To coordinate any of its objectives, efforts or functions with those of any agency or agencies of the Federal Government, this State, or other States and local governments having duties, powers or objectives similar or related to those of the commission and to cooperate, counsel and advise with them.
"(d) To cooperate, counsel and advise with local societies, organizations or groups staging celebrations, festivals or pageants of historical purposes. (Acts 1951, pp. 789, 792.)"
Section 43-124 (f) of the Code of Georgia, as amended, provides for the State Parks Department to make contracts and co-operative agreements for preserving and marking historical sites and is as follows:
"(f) Contracts for pre,serving and marking historic sites. To contract and make cooperative agreements with the United States Government, political subdivisions of the State, corporations, associations, or individuals, with proper bond where deemed advisable, to protect, restore, preserve, mark, maintain, or operate any historic, archaeologic or scientific site, ground, reservation, structure, building, object or other property for public use: Provided, that no contract or cooperative agreement shall be made or entered into unless or until the General Assembly has appropriated money therefor or funds have otherwise become available for said purposes."
STATE GOVERNMENT-Law Department
Though the General Appropriations Act of 1961 is prima facie in conflict with reimbursement of the Law Department by the Highway Department for legal services in acquiring rights-of-way, since payment is actually made with federal funds, the practice must continue.
October 6, 1961
Honorable B. E. Thrasher, Jr. State Auditor
It has been brought to my attention that the proviso in Section 28 of the General Appropriations Act of 1961 (Ga. Laws 1961, pp. 356, 376) is prima facie in conflict with Ga. Laws 1958, pp. 118, 119 ( 95-1507, 95-1508, Ga. Code Ann.), which provides that the State Highway Department shall reimburse the Department of Law for legal services in acquiring rights-of-way.
Since the matter affects the Department of Law, as well as the State Highway Department and your Department, I am issuing this opinion on my own motion and without awaiting a formal request.
The General Appropriations Act of 1956, approved March 14, 1956 (Ga. Laws 1956, p. 753), was in effect when Ga. Laws 1958, pp. 118, 119, was enacted. The proviso in Section 28 of the General Appropriations Act of 1961 is a literal re-enactment of the proviso in Section 29 of the General Appropriations Act of 1956 (Ga. Laws 1956, p. 775).

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As a matter of legislative history, the General Appropriations Acts of 1949, 1951 and 1953 contain the identical proviso, except that the word "as" in the second sentence ("appropriated as otherwise available") is "or" in the Act of 1949. A similar provision is contained in the General Appropriations Act of 1943 and in the ad interim General Appropriations Act of the same year. See: Ga. Laws 1949, p. 1506 ( 33, p. 1515); Ga. Laws 1951, p. 417 (~ 35, p. 433); Ga. Laws 1953 (Jan.-Feb. Sess.), p. 151 ( 31, p. 165); Ga. Laws 1943, p. 84 ( 36, p. 91) ; Ga. Laws 1943, p 70 ( 33, p. 77).
The General Assembly has power to alter, change, or transfer an appropriation. (81 C.J.S., "States", 167, p. 1227.) Ga. Laws 1958, pp. 118, 119 ( 95-1507, 95-1508, Ga. Code Ann.) transfer, pro tanto, an appropriation by making an authorized expenditure of Law Department funds reimbursible from Highway Department funds.
An appropriation law is to be construed under and by the same rules as other legislation. 81 C.J.S., "States", 166, p. 1225.
In Horn v. State, 114 Ga. 509, at p. 511, the rule is stated:
"Where a statute merely re-enacts the provisions of an earlier one, it is to be read as part of the earlier statute, and not of the re-enacting one, if it is in conflict with another passed after the first but before the last act; and therefore does not repeal by implication the intermediate one."
To the same effect is 82 C.J.S., "Statutes", 370, p. 845.
Applying the rule in the Horn case, the proviso in Section 28 of the General Appropriations Act of 1961 (Ga. Laws 1961, p. 376) does not by implication repeal Ga. Laws 1958, pp. 118, 119 ( 95-1507, 95-1508, Ga. Code Ann.). The Act of 1958 is not expressly repealed by the General Appropriations Act of 1961, nor is it impliedly repealed by any other provision in that Act. The Act of 1958 is, in my opinion, now in force for the purposes expressed.
Under Federal Law and Regulations, participation of Federal Funds is permitted in right-of-way and property damage costs incurred by the States for highway projects financed in whole or in part with Federal Funds under certain conditions, and such participation extends to cost of paying attorneys for the preparation and trial of condemnation cases, where chargeable to highway funds.
In the course of dealing with right-of-way acquisition for the Interstate System of Highways in Georgia, it became apparent that the work load would, in many counties, place a severe burden upon the County Attorney, particularly as respects trial and preparation for trial of condemnation cases. In many cases the counties are unable to finance the cost of employing additional counsel, and in practically all cases they are unwilling to do so, because of the nature of the highway. It became evident, further, that assistance must be provided by the Attorney General, either with regularly employed attorneys, or with specifically appointed Deputy Assistant Attorneys General, appointed under the provisions of Section 40-1614, Ga. Code Ann. However, under Federal Laws and Regulations, the cost involved, if paid from funds appropriated to the State Law Department, is not eligible for Federal Participation.
Since it appeared that the expenditure of State funds appropriated to the Law Department might be considerable over the period of time required for

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acquisition of the right-of-way for the Interstate System in Georgia, the Act of 1958 was enacted as a means of securing Federal Participation in this particular right-of-way cost.
The Act of 1958 authorizes reimbursement (with Federal Participation) for legal expenses in condemnation cases other than those for the Interstate System of Highways, but the amount of assistance provided by the Law Department in such cases is relatively small.
STATE GOVERNMENT-Law Department
Payment of travel and other incidental expenses incurred by Assistant Attorneys General not prohibited by General Appropriations Act of 1961 (Ga. Laws 1961, p. 356).
October 6, 1961
Honorable B. E. Thrasher, Jr. State Auditor
It has been brought to my attention that the proviso in Section 28 of the General Appropriations Act of 1961 (Ga. Laws 1961, pp. 356, 376) might affect the payment of traveling and other incidental expenses incurred by Assistant Attorneys General, Deputy Assistant Attorneys General, and Law Clerks in the Department of Law when traveling in connection with the legal business of the various agencies of the State, from funds appropriated or otherwise available from any source for the support and maintenance of the respective agencies.
Since the matter involves the daily operations of the Department of Law and its relations with the other agencies of the State, I am not awaiting a formal request for an official opinion.
The subject proviso is quoted for convenience of reference:
"Provided, that the compensation of all Assistant Attorneys-General, Deputy Assistant Attorneys-General, all law clerks and stenographic help necessary to carry on the legal duties of the State required of Department of Law or any other agency of the State in the executive branch of the State Government, shall be paid from this fund. No other agency is authorized to expend the funds appropriated as otherwise available from any source for the support and maintenance of the respective agency for the purpose for which provision is made in this item unless the payment is made 100% from Federal Funds."
Under the provisions of the Reorganization Act of 1931 (Ga. Laws 1931, pp. 7, 38) the several departments, commissions, institutions, offices and boards of the State Government were prohibited from employing counsel. The same provision was carried forward into Georgia Laws 1943, at page 285. Both the Reorganization Act of 1931 (at p. 38) and the Act of 1943 contained provisions for the appointment of special counsel, that in the Act of 1943, now in effect, being that:
" .. the Governor, with the concurrence of the Attorney General, in specific instances and on special causes may appoint therein and

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thereto for such temporary and specific services Deputy Assistant Attorneys General, to be compensated therefor as the Governor may direct." ( 40-1614, Ga. Code Ann.)
The section of the General Appropriations Act of 1943 containing the appropriation for operating the Department of Law ( 36, p. 91) contains the following proviso:
"Provided, that the salaries of all Assistant Attorneys-General, all law clerks and stenographic help therefor shall be paid from this fund. No State agency is authorized to expend the funds appropriated for the support and maintenance of the respective agency for the purpose for which provision is made in this item unless the payment is made 100% from Federal Funds."
The General Appropriations Act-Ad Interim of 1943, for the period January 1, 1943, to June 30, 1943, contained the same proviso in Section 33 (Ga. Laws 1943, pp. 70, 77). The General Appropriations Acts of 1943, ad interim and regular, mark the first appearance of such a proviso in appropriations acts.
Attorney General T. Grady Head held, in an opinion furnished the State Auditor in 1943 (AUDITOR #3, 1943), that incidental expenses incurred by Assistant Attorneys General in the performance of work for the various State Departments were properly chargeable to the respective departments.
In an opinion dated November 26, 1947, to the Board of Regents (Op. Atty. Gen. 1945-1947, p. 292) I held that the quoted proviso in Section 36 of the General Appropriations Act of 1943 did not require the salaries of Deputy Assistant Attorneys General appointed under Section 40-1614 to be paid from Law Department funds.
It is generally held that the terms "compensation" and "salary" refer to payment for services rendered, and that neither term includes traveling or other incidental expenses. Savannah Bank & Trust Co. v. Mason, 209 Ga. 364; Kirkwood v. Soto, 25 P. 488, 87 Cal. 394; Clark v. Board. of Commissioners of Clark County, 267 N. W. 138, 140, 64 S. D. 417; Peop,le v. Chapman, 122 N. E. 240, 225 N. Y. 700.
The next General Appropriations Act enacted after 1943 was the General Appropriations Act of 1949 (Ga. Laws 1949, p. 1506). In Section 33 (p. 1515), the proviso in Section 36 of the Act of 1943 is changed and appears in practically the identical language first above quoted from the General Appropriations Act of 1961.
This proviso has been re-enacted in essentially the same language in each General Appropriations Act enacted since 1949. See: Ga. Laws 1951, p. 417 ( 35, p. 433) ; Ga. Laws 1953 (Jan.-Feb. Sess.), p. 151 ( 31, p. 165) ; Ga. Laws 1956, Vol. I, p. 753 ( 29, p. 774); Ga. Laws 1961, Vol. I, p. 356 ( 28, p. 376).
The second sentence in the proviso in the Act of 1949 employs the words "appropriated or otherwise available", while in all subsequent Acts "appropriated as otherwise available" appears.
In my opinion, the proviso in Section 36 of the General Appropriations Act of 1943, quoted above, prohibited the expenditure by any other State agency

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of its funds to pay salaries of Assistant Attorneys General, law clerks and stenographic help in the Department of Law (unless made 100% from Federal Funds), but did not prohibit the payment of traveling and incidental expenses incurred by Assistant Attorneys General (or law clerks of the Department of Law) by the respective agencies, where such expenses were incident to the performance of legal work for the agencies. I construe the term "salaries" in its ordinary sense, which excludes travel and incidental expenses.
The term "compensation" was adopted in the proviso contained in Section 33 of the General Appropriations Act of 1949, and subsequent General Appropriations Act, in lieu of the term "salaries", because commencing with the Act of 1949 the proviso was made to apply to Deputy Assistant Attorneys General appointed under Section 40-1614, "to be compensated ... as the Governor may direct.", normally by a fixed fee and not by a salary.
I construe the term "compensation" in the proviso in Section 33 of the General Appropriations Act of 1949, and the same proviso in later Acts, to have the same meaning as the term "salaries" in the proviso in Section 36 of the General Appropriations Act of 1943, as excluding travel and incidental expenses. It follows that this proviso as contained in the General Appropriations Act .of 1961 ( 28, p. 376), now in force, does not prohibit the payment of traveling and incidental expenses incurred by Assistant Attorneys General, Deputy Assistant Attorneys General, or Law Clerks of the Department of Law, by the respective agencies, where such expenses are incident to the performance of legal work for the agencies.

STATE GOVERNMENT-Mileage Allowance

The present legal mileage allowance being 6 cents per mile, a State agency may not pay more than this amount for U-Drive-It Automobiles.

Chancellor Harmon Caldwell Regents of the University System of Georgia

October 4, 1961

I wish to acknowledge receipt of your letter in which you make inquiry as to the legality of the Engineering Experiment Station at Georgia Institute of Technology using U-Drive-It cars with reimbursement for the use of same being made by the project sponsor.
As you know, under the State law and State budgetary limitations, the present legal allowable mileage is 6 per mile. I do not think that the Experiment Station, as an agency of the State Government, should use U-Drive-It cars and pay more than 6 per mile, where the cost of same is paid by the State of Georgia to the Experiment Station, even though the U-Drive-It rental is later reimbursed by the project sponsor.
It is my opinion that the only way in which the Experiment Station can pay the full charged price for U-Drive-It vehicles is as an agent for the project sponsor, in which case your personnel would as agents for the sponsor

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not be subject to the limitations which would normally be in effect. You should discuss with the Department of Audits a procedure under which this might be carried on your records.
STATE GOVERNMENT-Prison Industries Administration
Powers of Prison Industries Administration enumerated.
July 15, 1960
Honorable Jack M. Forrester, Director State Board of Corrections
You requested the advice of this office as to "what changes, if any, were made in the law with respect to the manufacture and sale of prison-made goods to the State, political subdivisions, and authorities."
Your understanding "that the only change made in previous laws was the creation of the Georgia Prison Industries Administration setting forth its duties and responsibilities and continued in effect through the Prison Industries Administration the same powers and authority as previously possessed by the State Board of Corrections in connection with the manufacture and sale of products", is confirmed by the following language which is Subdivision (d) of Section 4 of the Georgia Prison Industries Act of 1960, which is found at page 880, Georgia Laws 1960:
" (d) The Administration shall have the same powers and authority as now possessed by the State Board of Corrections in connection with the manufacture and sale of products;"
The Georgia Prison Industries Administration was also given, however, certain incidental powers which, for your convenience, are quoted below:
"(b) To acquire by purchase, lease, or otherwise, and to hold, lease and dispose of in any manner, real and personal property of every kind and character for its corporate purposes;
"(c) To appoint, upon the recommendations of its chief executive officer, such additional officers, agents and employees as may in its judgment be necessary to carry on the business of the Administration; to fix compensation for such officers and employees and to promote and discharge the same. Provided, however, that all legal services for the Administration shall be rendered by the Attorney General and his staff and no fee shall be paid to any attorney or law firm for legal services. The Administration, however, shall be authorized to pay such fees, stamps, and licenses and any court costs that may be incurred by virtue of the powers herein granted;
"(f) To retain any earnings to be used for capital expansion, and in the event that the Administration shall accumulate a surplus in excess of the amount necessary for the amount for the efficient operation of the program authorized by this Act, to turn such surplus over to the State Treasury.

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"(g) To borrow money and to pledge any or all property owned by the Administration as security therefor;
"(h) To receive from any source, including, but not limited to, the State, municipalities and political subdivisions of the State and the Federal Government, gifts and grants for its corporate purposes.
"(i) To hold, use, administer and expend such sum or sums as may hereafter be appropriated by authority of the General Assembly or the Budget Bureau for any of the purposes of the Administration."
STATE GOVERNMENT-Purchasing Department
Certain new duties in the procurement of fidelity bonds for state employees discussed.
April 4, 1960
Honorable Alvan C. Gillem, Jr. State Supervisor of Purchases
I am pleased to reply to your letter requesting my opmwn with reference to certain provisions of Subsection H, which is a new subsection to Section 2 of the Act approved March 29, 1937 (Ga. Laws, 1937, p. 503) which was amended by Senate Bill 129 of the 1960 Session of the General Assembly of Georgia.
You specifically ask the following questions:
"1. Which State Officers or employees am I required to bond under provisions of this act?
"2. Your interpretation of last sentence of this bill.
"3. The amount of bonds deemed advisable to safeguard state interests?"
In answer to your question "1", it is my opinion that you are only required to procure all fidelity bonds covering State employees required by law or administrative directive to give fidelity bonds.
In answer to your question "2", it is my opmiOn that the last sentence of Subsection H is a proviso and exception, and that it removes from your jurisdiction all bonds of elected State officers and other State officers whose bonds are required by law to be specifically given or conditioned in such manner as to make it impractical to place them under a master policy or policies. This simply means that bonds of elected State officers and other State officers who are required to give bonds by a specific law applying to their offices would be exempt and outside of your jurisdiction.
In answer to your question "3", it is my opinion that this is an administrative matter which must be determined in each instance, taking into consideration the duties and responsibilities of each State employee in the fixing of the amount of bond required, and that this administrative duty is vested solely in the head of the department, commission, board, bureau, or agency of the State under which a State employee is employed.

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It is my further opinion that this new Subsection H places upon you certain duties outlined therein as above mentioned which will require certain administrative investigations and determinations on your part in order to put into effect and adequately carry out the provisions of said act, such as an inquiry to each State department, commission, board, bureau, or agency requesting that they furnish to your department the names, positions, duties and responsibilities of each and every State employee required by law or administrative directive to give fidelity bonds, and the same information relative to elected State officers or other State officers who have given bonds required by law to be specifically given.
After the administrative information has been accumulated as above, it would appear that you would likewise administratively consult with the proper rating bureau and bonding companies as to the rate or rates that could be obtained, and a form or forms of bonds obtainable and acceptable, and the method and manner of handling such master policy or policies on a group or blanket coverage basis.
STATE GOVERNMENT-Real Estate Investment Board
Certain powers and limitations discussed.
May 16, 1960
Mr. W. Clair Harris, Chairman Georgia Real Estate Investment Board
I am pleased to acknowledge your letter in which you ask my opinion on the following questions relative to the Act creating the Georgia Real Estate Investment Board which was enacted during the 1960 session of the General Assembly and found in the Acts of 1960, pages 1154-1160:
"1. Do we have any authority or responsibilities with investment, other than real estate loans and real estate investments?
"2. If loan application not approved by us, and not acceptable to either of the Retirement Funds, do we return the (% of 1'1o) one-half of one percent to the applicant?
"3. Are we allowed under the law to consider temporary or preliminary loan application without a payment of (% of 1 o/o) one-half of one percent accompanying the temporary or preliminary loan application?
"4. Should the (% of 1 o/o) one-half of one percent create a surplus after paying expenses of the operations of the Georgia Real Estate Investment Board, what disposition will be made of the surplus?
"5. Are employees of the Georgia Real Estate Investment Board under the merit system of the State of Georgia?"
The Act in question limits the Georgia Real Estate Investment Board to creating a market for real estate loans and investments for any of the State retirement systems or State annuity and benefit funds, or similar State sys-

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terns or funds created by the General Assembly of Georgia. Therefore, the answer to your question number one is "No".
The Act is clear in providing that the above systems and funds are not required to make any real estate loans or investments recommended by the Georgia Real Estate Investment Board, but in their own discretion may or may not do so.
In answer to question number two, your attention is called to the fact that Section 8 of the Act in question provides that every applicant making an application to the Georgia Real Estate Investment Board for approval of a real estate loan or real estate investment shall accompany such application with a certified check in the amount of one-half ( 1f2) of one per cent (1 o/o) of the total amount of the loan requested, and that this Section is for the purpose of obtaining operating expenses or fees for the Georgia Real Estate Investment Board to carry on its activities. Therefore, it is my opinion that the answer is "No". The Ten Thousand Dollar ($10,000.00) fund that the State Budget Bureau is authorized to make available to the Board is the initial starting fund and no further funds can be made available by the State Budget Bureau from State funds. All further operating funds required by the Board must come from the fees authorized by Section 8.
It is my considered opinion that the answer to question number three is "No", as the Act specifically provides that all applicants must accompany their application for a real estate loan or investment with a certified check as provided in Section 8 of said Act.
In answer to question number four, it is my opinion that since the Act creates a State Board or Agency, it is under and bound by the State Budget Laws and the Rules and Regulations of the State Budget Bureau on the same basis as all other State Departments and Boards, and that any surplus funds on hand on June 30 of each year reverts to the General Fund, unless the State Budget Bureau has approved all or part of said surplus for operating expenses of the Georgia Real Estate Investment Board.
The answer to question number five is "No"; however, the employees may be brought under the provisions of the State Merit System as :provided by statute. However, in this connection your attention is also called to the provisions of the Act creating the Georgia Real Estate Investment Board which provides that the Act in question is to automatically expire on December 31, 1962, and is, therefore, a temporary law.
The Georgia Real Estate Investment Board has only the power and authority to create a market for real estate loans and investments, and the Teachers' Retirement System of Georgia and the Employees' Retirement System of Georgia through their Trustees are free to accept or reject any real estate loan or investment loan offered to them by the Georgia Real Estate Investment Board. Any attempt to interfere with the duties and powers of the Trustees of the two above named systems would be in conflict with the provisions of Article VII, Section 2, Paragraph 1, (7-A) of the Constitution of Georgia, which was proposed by the Acts of 1952, page 610, and ratified by the voters of the State on November 4, 1952, which provides that the Teachers' 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.

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STATE OFFICIALS-Appointment
The Governor is authorized to appoint a Superintendent of Banks for a term to end on January 1, 1964, though less than a four year term.
June 10, 1960
Honorable S. Ernest Vandiver Governor
This is to acknowledge your letter requesting an opm10n as to whether you are authorized to appoint a new Superintendent of Banks for a term beginning this date and ending January 1, 1964. The Honorable A. P. Persons, who died on June 6, 1960, was appointed Superintendent of Banks on January 1, 1956. His term expired on January 1, 1960. No appointment has been made since that time to fill this vacaney.
The Superintendent of Banks is appointed by the Governor by and with the advice and consent of the Senate. He holds this office for a term of four years, and until his suceessor is appointed and qualified. Ga. Code Ann., 13-302.
Ga. Code Ann., 13-303 provides for the filling of a vacancy in the office of Superintendent of Banks where the vacancy is "caused by death, resignation, suspension or removal of the Superintendent of Banks." With respect to a vacancy caused by the expiration of a term, this is covered in Ga. Code Ann., 40-302 which provides in part as follows:
"... The Governor may make an appointment to fill such vacancy ad interim, and the appointee shall hold office until the Senate shall next convene, when the Governor shall submit an appointment to fill such vacancy to the Senate for confirmation; the appointee, if confirmed, shall hold over until the expiration of the term for which he was appointed: Provided, however, the Governor shall not appoint ad interim any persons previously rejected by the Senate; and provided further, that the Governor shall submit to the Senate whenever in session the names of appointees to fill all vacancies which shall occur within eight months after the date fixed for the convening of the Senate."
Therefore, it is my opm10n that you are authorized by law to appoint a new Superintendent of Banks for a term beginning this date and ending January 1, 1964.
STATE OFFICIALS-Conflict of Interest
Deposit of funds by the Board of Regents in a bank of which a member of the Board is an officer is not irregular.
February 8, 1960
Honorable L. R. Siebert, Executive Secretary Board of Regents
This will acknowledge receipt of your letter asking whether Section 4 of the Act approved February 13, 1956 (Ga. Laws 1956, p. 61) would prohibit or

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render irregular in any way the deposit of funds of the Board of Regents in an incorporated bank of which a member of the Board is an officer. I understand that a member of my Staff has already given you and the Board his personal opinion that no irregularity exists in such a situation.
Section 4 of the aforemef!tioned Act provides as follows:
"Section 4. No person who is a member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall engage in any transaction with any such board, bureau, commission, committee or other State agency, or any such authority, on which such person is a member."
I am of the opinion that the quoted Section was designated to prevent a member of a State Board from using his official influence to secure a personal profit and, hence, I do not believe that the Section would render irregular in any way the situation which you described where the Board member involved has not personally participated in the transaction. This opinion is strongly re-enforced by the decision of our Court of Appeals in the case of Smith v. City of Winder, 22 Ga. App. 278 (1918) where it was held that the deposit of municipal funds in a Bank was not illegal "even though the mayor and one councilman were respectively an officer and director." The Court held there was no illegality "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 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." I believe that this case substantially covers the problem which you presented.
STATE OFFICIALS-Conflict of Interest
The Transactions With the State Act would not be applicable to a person receiving no compensation, only reimbursement of actual expenses.
January 12, 1960
Honorable Ben W. Fortson, Jr. Secretary of State
This will acknowledge receipt of your letter in which you request an opm10n whether the Transactions With The State Act requires the resignation of Mr. Edward A. Moulthrop from his position as Chairman of the Georgia Art Commission because of his employment by Robert and Company Associates, which is currently under contract to carry out work for the Stone Mountain Memorial Association, or because of his separate employment from time to time by you for work upon the State Capitol.
The essential facts may be briefly summarized. Mr. Moulthrop is an engineer and he is Chairman of the Georgia Art Commission. His regular employment is with Robert and Company Associates for whom he works as a designer. His position with that Company, while important, is yet that of a skillful and

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highly-trained employee. He is not in any sense an officer of the firm nor is he in any way connected with its management or direction. At the present time Robert and Company Associates is undertaking work under contract for the Stone Mountain Memorial Association which is a public corporation of this State created by the General Assembly to develop Stone Mountain as a Confederate Memorial. Mr. Moulthrop's activities as an employee of the firm involve drawing designs for that project. At the same time, and as a separate matter altogether, Mr. Moulthrop is employed by you from time to time to do work on the State Capitol.
The question presented her is whether Mr. Moulthrop is permitted by the Transactions With The State Act, Georgia Laws 1959, page 34, to hold the position of Chairman of the Georgia Art Commission while carrying on his other professional activities with their direct and indirect relationship to the State.
This question is governed by Section 2 of the Transactions With The State Act, Georgia Laws 1959, pages 35-36, which prohibits cBrtain officers and agents of the State Government who are officers, agents, members, or persons interested in business corporations or firms from selling to the State or any of its agencies. Section 2 reads as follows:
"Interested persons ading as government agents.. Whoever being an officBr, 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 GBorgia, 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 therBof. 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."
It will be noted that Section 2 places its prohibition upon those State officers, employees, and agents who receive compensation or per diem from the State for their services. Section 40-2608, Georgia Code Annotated, provides that the members of the Georgia Art Commission, including its Chairman, shall not be compensated by way of salary or per diem for services rendered the State, but shall receive merely reimbursement for their expenses incurred in actual attendance at the four regularly scheduled annual meetings and any extraordinary meetings called by the Governor. It is clear, then, that Section 2 of the Transactions With The State Act does not refer to the Chairman of the Georgia Art Commission because, by reason of his status with regard to com. pensation by the State, he specifically falls outside the purview of the Act.
It is my opinion, therefore, that Mr. Moulthrop is not required to resign as Chairman of the Georgia Art Commission because of his other professional activities. However, it should be pointed out that under Section 40-2602, Georgia

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Code Annotated, should a work of art by any member of the Commission come before the Commission for approval prior to its acceptance by the State, that member must vacate his office and not participate in the consideration of his own work. The Governor is authorized to fill the vacancy thus created. In accordance with this Code Section, should any of Mr. Moulthrop's work come before the Art Commission in the future for their approval, he would be required then to vacate his present position as Chairman of the Georgia Art Commission.
STATE OFFICIALS-Director Veteran Service
Compensation of the Director of the Department of Veterans Service explained.
April 27, 1961
Honorable Pete Wheeler, Director Department of Veterans Service
You request my opinion as to the maximum compensation that the State Board of Veterans Service may prescribe for you as Director, excluding traveling expenses or compensation from the federal government.
Georgia. Laws, 1957, page 165, approved February 26, 1957, amended Section 5 of the Act creating the State Department of Veterans Service (Georgia Laws, 1945, page 319, as amended). This Act struck from Section 5 certain words and inserted in lieu thereof the following:
"The Director shall be compensated in an amount to be fixed by the Board which shall not be less than $6,000.00 nor more than $9,000.00 per annum. Such compensation shall be paid from State funds in semimonthly installments. The total compensation shall not exceed $10,600.00, not including traveling expenses or compensation from the Federal Government."
Thereafter, the first two sentences quoted above were set out in Section 5, as amended. The last sentence quoted above is the last sentence in Section 5.
The Journal of the House for the 1957 Regular Session (Georgia Laws, 1957, page 829) shows that the House adopted an amendment to House Bill 496 (the 1957 Act) to add at the end of the last paragraph the words:
"The total compensation shall not exceed $10,600.00-not including traveling expenses and compensation from the Federal Government."
The Bill was then passed by a vote of 142 to 7.
It is basic that in the construction of the statutes, the intent of the Legislature is sought to be determined and effect given to that intent. Further, as was stated by the Supreme Court in the case of Walker v. Sheftall, 73 Ga. 806, 807, Headnote (a.):
"(a.) Acts 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, ..."

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As was stated by the Supreme Court in Williams v. Bear's Den, Inc., 214 Ga. 240, 242:
~"Where a particular expression in one part of a statute is not so extensive or large in its import as other expressions in the same statute, it must yield to the larger and more extensive expression, where the latter embodies the real intent of the legislature. Torrance v. McDougald, 12 Ga. 526. See 2 Sutherland, Statutory Construction, 3rd ed., pp. 336, 338, 4703, 4704."
In the construction of statutes that have been amended, the last expression of the General Assembly must be looked to determine the intent of the General Assembly. As was said by the Supreme Court in Gilbert v. Georgia Railroad & Bkg. Co., 104 Ga. 412, 414:
"When a statute or section of the code to be amended is recited in the statute in its amended shape, and it is in express terms declared therein that when amended the old law shall read in a certain way, this declaration by the General Assembly, being the last expression of its intention as to what shall be the law of the State, absolutely controls where any conflict arises as to matter contained in this declaration of what the law shall be and what is set forth in the first part of the amending statute as declaratory of the legislative intention."
In the same connection, the Supreme Court, in the case of Ryle v. Wilkinson County, 104 Ga. 473, 476, stated:
"The work of amendment was not artistically done, but the result sought to be reached is clear and obvious. The General Assembly designed that the code section, after being amended, should read in a particular way, and there is no uncertainty as to what its reading should then be. 'The recital in the latter part of the act as to how the section shall read as amended' is the last expression of the will of the General Assembly as to this matter, and effect should be given thereto, the more especially when there is no reasonable doubt as to what the General Assembly really intended to accomplish."
In discussing the rule that where two Acts of the Legislature are inconsistent, the last passed controls, and after recognizing that this doctrine is applicable to a single Act, the Supreme Court in the case of Cairo Banking Co. v. Ponder, 131 Ga. 708, 711, said:
"This rule is one the design of which is to arrive at the legislative intent as to what the law shall be. It is not an arbitrary rule under which it must be held without variance or shadow of turning that the legislature intended to make a typographical or clerical error, the result of which would be to make nonsense of the section of the act, and not to carry out the legislative scheme but to destroy it, where it could be ascertained from the act itself what was the letter evidently intended to be used."
Further, the Supreme Court, in the case of Lamar v. Allen, 108 Ga. 158, 164, stated:
"... and that it is a well-settled rule of construction that when there is a conflict between two parts of a single act, the latest in posi-

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tion will be declared to be the law, as from its position it is presumed to be the last expression of the legislative will. That such rule is well established can not be questioned. Gilbert v. Railroad Company, 104 Ga. 412; Ex parte Hewlett (Nov.), 40 Pac. 96; Ryan v. State, 5 Neb. 276;
Quick v. Township, 7 Ind. 570; Albertson v. State (Neb.), 2 N. W. 742; Sutherland, Stat. Const. 220; Bishop, Written Laws, 65. The
reason of this rule has been stated to be that, 'in the reading of a bill, matter near the close may be presumed to receive the last consideration, and, if assented to, is a later conclusion.' Sutherland, Stat. Const., supra."
With the above in mind, it appears that the question is narrowed to whether or not the Board may authorize compensation in the maximum amount of $9,000.00, or $10,600.00. The $10,600.00 figure being the last expression of the General Assembly on the maximum compensation that the Board is authorized to fix, not including travelling expenses or compensation from the Federal Government, and to give effect to the language utilized by the General Assembly in providing the greater amount, I am of the opinion that the State Board of Veterans Service is authorized to fix the compensation of the Director in the total amount not to exceed $10,600.00, not including traveling expenses or compensation from the Federal Government.
STATE OFFICIALS-Safety Fire Commiss1ioner
The Georgia Safety Fire Commissioner is authorized to furnish pads and pencils for use by groups brought together to receive training in fire prevention and safety.
June 30, 1960
Honorable Zack D. Cravey Georgia Safety Fire Commissioner
I have your letter in which you request my opmwn as to the right of your office to supply writing implements and pads to be used by Four-H Club members (and other like groups) at Fire Prevention Programs being conducted by the State Fire Marshal. It is implied in your letter, and I assume that the writing implements and pads are to be supplied so that those persons taking the fire prevention courses may have the opportunity of making notes and memoranda of the training and instruction being given in order that the courses on fire prevention may be more effective.
Section 92A-735 of the Code of Georgia provides:
"92A-735. Dissemination of Fire Prevention Information.-The State Fire Marshal may promote any plan or program which tends to disseminate information on fire prevention and similar projects and aid any association or group of individuals which are primarily organized along such lines. It shall be the duty of the State Fire Marshal to carry on a state-wide program of fire prevention education in the schools of the State and establish therein fire drills. All local school authorities are requested to cooperate with the State Fire Marshal in

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carrying out programs designed to protect the lives of school children from fire and related hazards." (Acts 1949, pp. 1057, 1067.)
While, as has been previously pointed out to you, the language of this Statute is ambiguous in some respects and the authority granted to the Safety Fire Commissioner is extremely broad, nevertheless the legislative intent is clear in imposing upon the Commissioner the duty of disseminating information on fire prevention and fire safety and promoting fire safety education programs throughout the schools of this State.
The Commissioner is authorized to promote fire safety programs among "associations or groups of individuals which are primarily organized along such lines." While I do not contend that Four-H Clubs and similar organizations are organized primarily for the purpose of disseminating fire safety information, nevertheless when such groups are brought together for the purpose of receiving specialized training in fire prevention and fire safety, I am of the opinions that this is a type of plan or program which tends to disseminate information on fire prevention which is contemplated by the Act.
In view of the foregoing, it is my opinion that the Statute does authorize the Georgia Safety Fire Commissioner to furnish pads and writing implements to Four-H Club members who are receiving special instruction in fire safety and fire prevention.
STATUTES OF LIMITATIONS-Torts (Unofficial)
The statutes of limitations for personal injuries, property damage and wrongful death stated.
February 2, 1961
Mr. Daniel J. Downing
In your letter you ask for information on the following: Limitation of time for commencement of actions-personal injury, property damage, and wrongful death, and the amount of recovery for wrongful death.
The questions about which you make inquiry may be found in Chapter 3-10, Code of Georgia, Annotated.
Code Section 3-1001 reads as follows:
"3-1001. Trespass or damage to realty.-All actions for trespass or damage to realty shall be brought within four years after the right of action accrues."
Code Section 3-1002 reads:
"3-100,2. Injury to personalty.-Action for injuries to personalty shall be brought within four years after the right of action accrues.
Section 3-1003 reads:
"3-1003. Recovery of personalty and damages for its conversion or destruction.-All suits for the recovery of personal property, or for damages for the conversion or destruction of the same, shall be brought

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within four years after the right of action accrues and not later." Code Section 3-1004 reads as follows:
"3-1003. Injuries to the person.-Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year." The law does not fix any amount for recovery for a wrongful death. This would be a question for the jury to determine.
STATUTES-Statutory Construction (Unofficial) Reference to adjoining counties means only counties within the State. April 4, 1961
Honorable Charles F. Johnson In your letter you inquire whether in my opinion an adjoining county of the
State of Florida is an "adjoining county" as the term is employed in the exemption provision in Section 3 of the Act approved March 27, 1941, Ga. L. 1941, p. 451 (Section 68-407, Ga. Code Ann.).
The exemption provision referred to is: "Nothing herein shall be construed to prohibit the hauling of
timber, lumber and piling by motor trucks, regardless of the length or weight, from the forest where cut to the owner's place of business, plantation or residence within the county where originally cut or the adjoining county." In Hammond, Hull & Company v. Wilcher, 79 Ga. 421, at page 423, it is said:
"The general rule, however, is, that every statute is presumed to be enacted with reference to the local jurisdiction of the legislature which passes it." 82 C. J. S. Statutes, Section 316, at page 544:
"It is presumed that the legislature . . . did not intend to . . . give its enactments an extraterritorial operation." Construing the subject provision in the light of this rule of law, I am of the opinion that both the "county where originally cut" and the "adjoining county", as employed therein, refer to counties of the State of Georgia.

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TAXATION-Ad Valorem (Unofficial)
When the taxpayer is not satisfied with the action of the tax assessors, he is entitled to arbitration.
May 4, 1960 Mr. Lloyd Stepp
This is in reply to your letter in which you ask the following question:
"Is it a law that a person has to be given an arbitration on property after it has been raised and the owner is not satisfied with said raise."
The laws of this State do provide for an arbitration in cases where the taxpayer is dissatisfied with the action of the Board of Tax Assessors. This provision of law is found in Code Section 92-6912.
"92-6912. If any taxpayer is dissatisfied with the action of the board, he may within 10 days from the giving of said notice in case of residents, and within 20 days in case of nonresidents of the county, give notice to the board that he demands an arbitration, giving at the same time the name of his arbitrator; the board shall name its arbitrator within three days thereafter and these two shall select a third, a majority of whom shall fix the assessments and the property on which said taxpayer shall pay taxes, and said decision shall be final, except as far as the same may be affected by the findings and orders of the State Revenue Commissioner as hereinafter provided. The said arbitrators shall be freeholders of the county and shall render their decision within 10 days from the day of the naming of the arbitrator by the board. In the event the two arbitrators provided for in this section fail to name a third within 20 days after their appointment, he shall be named by the judge of the superior court of the county wherein the property lies. Before entering upon a hearing the arbitrators shall take an oath before the tax receiver or before the chairman of the board of local assessors, who is hereby authorized to administer oaths, that they will faithfully and impartially make a true and just assessment of the tax returns and property in question, and will determine the matters submitted to them, according to law and justice and the equity of the case. (Acts 1913, pp. 123, 127; 1918, pp. 230, 231; 1931, pp. 7, 35, 150 Ga. 691, 697 (105 S. E. 243); 143 Ga. 368, 371 (85 S. E. 187); 254 U. S. 64, 70 (41 Sup. Ct. Rep. 27: 65 L. Ed. 134); Acts 1958, p. 386.)"
TAXATION-Ad Valorem (Unofficial)
Cemeteries are exempt from property taxation, even land not yet sold as burial lots.
June 7, 1961
Mr. M. C. Senn
You state in your recent letter that twenty acres of land outside the city limits of Dublin, Georgia were purchased and developed into a perpetual ceme-

475
tery known as Dublin Memorial Gardens. You inquire as to the possibility of levying a property tax on the acreage that has not been sold to individuals as burial lots.
My opinion is that the area not sold to individuals for burial lots still cannot be subjected to the property tax. As you know, Article VII, Section I, Paragraph IV, of the Constitution of the State of Georgia, as set forth in Georgia Code Section 2-5404 and the statutes enacted pursuant thereto, codified as Section 92-201, exempts from taxation places of burial. The Georgia Court of Appeals, in the case of Suttles v. Hill Crest Cemetery, Inc., 87 Ga. App. 343, has held that all of the acreage in a cemetery is exempt from property taxes where the acreage is not unusually large in relation to the future needs of the cemetery. The question in such cases, according to the Court, is "has the property been committed to use as a cemetery and is it being held in good faith for that purpose?" If the answer is "yes", the entire property is exempt. This includes not only the places where burials have taken place, but lots sold to individuals and land held in reserve in the cemetery area for later sale to individuals for burial purposes.
TAXATION-Ad Valorem (Unofficial)
Automobiles of employees of consulates exempt from ad valorem taxation.
November 21, 1960
Honorable J. C. Murphy
This is in reply to your letter in which you request our opmwn relating to the claim filed by Mrs. Margarette Sego that she be exempt from ad valorem taxation on her automobile because of her employment by the German Consulate.
The present Treaty between the United States and the Federal Republic of Germany adopted the following provision of a Treaty entered into between the United States and Germany:
"ARTICLE XIX. Consular officers, including employees in a consulate, nationals of the State by which they are appointed other than those engaged in private occupations for gain within the State where they exercise their functions shall be exempt from all taxes, National, State, Provincial and Municipal, levied upon their persons or upon their property, except taxes levied on account of the possession or ownership of immovable property situated in, or income derived from property of any kind situated or belonging within the territories of the State within which they exercise their functions. All consular officers and employees, nationals of the State appointing them shall be exempt from the payment of taxes on the salary, fees or wages received by them in compensation for their consular services." United States Statutes at Large, p. 2132.
Under this provision of the Treaty, Mrs. Sego would be exempt from ad valorem taxes on her automobile if she is a National of the Federal Republic of Germany.

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TAXATION-Ad Valorem (Unofficial)

If an easement amounts to a freehold interest, it is subject to ad valorem taxation. If only a chattel interest, it is subject to intangibles tax.

Mr. A. Newell NeSmith

June 22, 1961

This is in response to your letter concerning taxation of easements for telephone lines.

In my opinion, Code Section 92-104 clearly shows an intent to tax all interests in land less than a fee. Therefore, if the Telephone Company has an easement that amounts to a freehold interest, it is taxable as an interest in land, separate and apart from the fee which is subject to the easement. The fee interest is also taxable to the owner thereof. The Telephone Company is subject to tax on the value of their easement and the land owner is subject to tax on the value of the land subject to the easement.

If the easement is only a chattel interest, in my opinion, it is subject to taxation as an intangible under Code Section 92-118.

TAXATION-Ad Valorem (Unofficial)
A defendant in tax fi. fa. may pay execution at any time prior to sale of his property.
June 14, 1960
Mr. B. N. Nightingale
This is in reply to your letter in which you requested we review your opinion No. 3 to the City Tax Assessors and Director of Finance of the City of Brunswick.
The opinion contains your interpretation of Code Section 92-5712 which provides that the holder of any equity, lien, or interest in or on property returned and assessed with other property for taxes shall be allowed to pay taxes assessed against any one or more pieces of such property.
You reached the conclusion in your opinion that the holder of any equity, lien, or interest must make payment of the taxes prior to the advertisement of the propery for sale under a tax fi. fa. The appellate courts of our state, as you know, have not passed upon this particular point. However, I cannot agree with your persuasive reasoning that the payment must be made before the property is advertised for sale. The defendant in fi. fa. can pay off the execution at any time prior to the sale of his property which has been advertised for sale under the execution. However, such payments must include principal, interest, and all costs including the cost of advertising.
I think this same principal would hold true with reference to the obtaining of a release under the Code Section in question. That is to say, the holder of the equity, interest, or lien would have the right to pay a proportionate part of the taxes on the property in question together with a proportionate part of the cost which had accrued up until the date of the payment.

477
TAXATION-Ad Valorem (Unofficial)
There is no mill limit on county taxes for most special purposes.
August 10, 1961
Mr. G. D. Reddick
This is in reply to your request of yesterday concerning the maximum amount of taxes a county may levy.
I have searched our files and find no previous expressions on this subject and no official opinion. My examination of cases leads me to the conclusion that for most of the special purposes, there is no mill limit.
Code Section 93-3702 provides a five mill limit for current expenses and Code Section 92-3706 a two and one-half mill limit (conditioned upon grand jury recommendation) for "county purposes". County purposes being broader in scope than "current expenses". The cases of Alabama Great Southern Railroad Company v. Harrison, 54 Ga. App. 368, and Central of Georgia Railway Company v. Wright, 165 Ga. 623, bear on the general subject and I am sure you have noted them. With reference to the tax limit for educational purposes, see Code 2-7501 which provides for a twenty mill rate. The Supreme Court in Commissioner of Habersham County v. Porter Manufacturing Company held that the right of a county to levy a tax for providing public buildings is unlimited as to amount and requires no grand jury action. 103 Ga. 613, 617.
Court expenses seem to be, at least in part, limited by Code 92-3702. See Seaboard Airline Railway Co. v. Wright, 157 Ga. 722.
The Central of Georgia case (supra) discusses the tax limits with respect to several items, including public roads and paupers.
Code 88-306 authorizes a special tax for health purposes and would, therefore, not be subject to the five mill limit.
There seems to be no special limit for county police purposes under two authorities.-The earlier court appearance of the Central of Georgia case, 165 Ga. 1 and Code 23-1402.
Code Section 92-3717 places a limit of $1.50 per $1,000 for purposes of paying county agriculture agents and home demonstration agents.
TAXATION-Ad Valorem (Unofficial)
Municipalities are exempt from State and county ad valorem taxation.
March 29, 1961
Mr. Robert G. Walther
This is in response to your letter wherein you request an unofficial opm10n as to the liabilitv .:,; the City of Dalton in Whitfield County for state and county ad va>vrem taxes where the city owns a gas line, a portion of which is located in Floyd County and which serves several customers in that county.

478
On the basis of the information in your letter, I assume the title to the gas line property is in the City of Dalton. As such, it is public property in my opinion, and exempt from taxation by the State of Georgia and Floyd County. See Sections 2-5404 and 92-201, Ga. Code Ann. Also, Walden v. Town of Wigham, 120 Ga. 646.
TAXATION-Ad Valorem (Unofficial)
Privately owned property located on a military base may be taxed by a municipality if within its limits and not otherwise exempt.
May 12, 1961
Miss Lawanda K. Pickett
Your letter concerning the question of city taxes on civilian owned personal property located within the city limits of Warner Robins, but also within the limits of the Robins Air Force Base, has just been forwarded to us for an answer.
It is well settled that a State or political subdivision thereof may tax personal property situated on land owned by the United States within its limits, provided such personal property does not belong to the United States and is not otherwise exempt. The right of the City of Warner Robins to tax such property is controlled by the cases of International Business Machines Corp. v. Evans, et al, 213 Ga. 333, and Macon Coca-Cola Bottling Company v. Evans 214 Ga. 1. In both cases, it was held by our Supreme Court that privately owned personal property located on Robins Air Force Base was subject to ad valorem taxes.
TAXATION-Ad Valorem An item of personalty is taxable in the county where the owner resides
unless it has acquired a situs elsewhere through use in a business enterprise or similar circumstances.
November 1, 1961
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your request for an official opmwn concerning the tax situs of pleasure boats. I understand that many citizens of the State of Georgia own boats that are docked and kept in counties other than the county of the owner's domicile.
Title 92, Section 102, Georgia Code Annotated provides 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,

479
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."
The Supreme Court of our State, in the case of Collins, Tax Collector, et al. v. Mills, et al., 198 Ga. 18, held that 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 it must be connected with some business enterprise that is situated more or less permanently in a different county.
Watercraft are personal property and are taxable like all personal property. The tax situs of personal property not connected with some business enterprise is in the county of the domicile of the owner, Wright v. Mayor and Council of Brunswick, 140 Ga. 231; St. Simons Transit Co. v. Mayor & Council of Brunswick, et al., 141 Ga. 477.
It is, therefore, my opinion that a resident of Fulton County, Georgia who owns a pleasure boat that he keeps quartered on Lake Lanier in Forsyth County must pay ad valorem taxes on such boat in Fulton County even where such boat has never been in Fulton County.
TAXATION-Ad Valorem (Unofficial)
Proportionate payment of taxes discussed.
October 19, 1961
Mr. Bill Westbrook
In order to avoid the possibility of conflicting advice, I suggest that you consult your County Attorney. For your information and for the information of your County Attorney, I would respectfully point out to you the following:
The provision in the Georgia law which specifically deals with proportionate payment of taxes is Ga. Laws 1931, p. 122; Ga. Laws 1933, p. 50; Ga. Code Ann. 92-5712, which states:
"92-5712. Proportionate payments by owners, lienholders, etc.-The owner or the holder of any equity, lien, or interest in or on property returned or assessed with other property for taxes shall be allowed to pay the t.axP.R ~RRI=l.:::c:.Arl !:10'~il11;!i- !Hl'tT nno n-r vntYl'~c. nlonoQ n-f c:.!llnh nl"tYru::l.-rtv. (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

480
collection of taxes for this State or for any subdivision of this State (including municipalities and all other subdivisions of the State and counties) and/or any transferee of said tax lien shall be required to accept payment of said taxes when tender is made as provided herein, shall issue a receipt showing such payment, and shall execute a release of said property from such lien for taxes, and the official or transferee accepting said payment and releasing said property shall be paid a fee of 50 cents for issuing said receipt and release. This law shall apply to taxes accruing before its passage as well as to taxes accruing thereafter. (Acts 1931, p. 122; 1933, p. 50.)"
The above cited law has been, on one occasion, passed on by the Supreme Court in the case of Brown v. Nash, 216 Ga. 303. I respectfully suggest that the above cited Code Section and the interpretation given to it in the above cited case would lead to the following conclusions: (1) the owners of the security interest are protected to the extent of their interest in the specific property by the payment of the taxes due on the specific property; (2) this right in the security holder to pay the proportionate tax on the specific property on which they hold a security interest is limited to taxes accruing on or after the time they acquired their security interest and, as to those taxes existing at the time of the acquirement of the security, the security holder has no right of partial payment, but to protect his interest, must pay all outstanding taxes; (3) the security holder is entitled to make a proportionate payment (to the extent pointed out in 1 and 2); (4) the security holder cannot be required to pay all of the taxes owed by the taxpayer which accrued after he acquired his security; (5) it is mandatory that you accept partial payments as set out in the above Code Section; (6) the partial payment by the security holder of the taxes on the property on which he holds security protects his interest as against a tax lien and levy.
TAXATION-Ad Valorem (Unofficial)
Property owned by the county because acquired at tax sale is not subject to ad valorem taxation.
December 30, 1960
Mr. Ralph E. Waters
This is in reply to your letter in which you state:
"Several years ago a tract of land was advertised to be sold for taxes. The land did not sell; therefore the County has had a tax deed on the property. The land has not been in use in any way by the County.
"Recently the County advertised this property and it was sold at auction.
"I'm wondering if we aren't entitled to claim taxes for 7 years on this property. If we don't the schools would not get what belongs to them."

481
Code Section 92-8201 gives a county the authority to buy property sold under tax executions. Code Section 92-201 provides that all public property is exempt from taxation.
The Supreme Court of our State indicates in Penick, Tax-Collector, v. Foster, executor, 129 Ga. 217, headnote # 1:
"The general rule is that public property and the various instrumentalities of government are not subject to taxation. This immunity rests upon the most fundamental principles of government; being necessary in order that the functions of government be not unduly impeded, and that the government be not forced into the inconsistency of taxing itself in order to raise money to pay over to itself."
The Supreme Court in the case of James et al. v. Florida Realty & Finance Corp. et al., 208 Ga. 652, headnote #2, held that property vested in the City of Atlanta by a tax deed was exempt from taxation while so held.
Under the authority herein cited, I am of the opinion that the property owned by a county which it had acquired by virtue of a tax sale is not subject to taxation so long as the county holds title to the property.
TAXATION-Ad Valorem (Unofficial)
Sales of property to satisfy claims for state and county property taxation discussed.
February 24, 1961
Mr. C. S. Anderson
While you do not say so, I assume your inquiry relates to the sale of real property located in Georgia to satisfy claims for State and County ad valorem taxes due thereon.
Under the authority of Georgia Code Annotated 92-7401, executions for non-payment of taxes shall be issued by the tax collectors of their respective counties as soon as the last day for payment shall have arrived, and shall be directed to all and singular the sheriffs and constables of the State.
Once an execution (or fi. fa.) is issued, it is delivered to one of the officers to whom it is directed. He, in turn, is required to seize and sell enough of the taxpayer's property to satisfy the tax claim, including penalty, interest, and the cost of advertising and selling the property.
After the property has been seized, notice of its sale is published once a week for four weeks immediately preceding the day of sale. Thus, such a sale may take place as early as four weeks after the last day for payment has arrived.

482
TAXATION-Ad Valorem (Unofficial) Ad valorem tax on shares of banking stock in hands of individuals is
not a tax upon the bank. December 29, 1961
Mr. T. J. Hobbs This is in reply to your letter concerning ad valorem taxation of banks and
taxation of shares of banking stock in the hands of individual citizens of this state.
Reference was made in your letter to the order of Governor Vandiver dated July 12, 1961, concerning the taxation of the stock of banking corporations and it is my interpretation of the law in this area that this is not a tax upon the banking corporation but is an intangible tax upon the stock of such banking corporation in the hands of the individual. The tax then is imposed upon the individual rather than upon the bank.
TAXATION-Assessors (Unofficial) The county board of tax assessors may take necessary action for cor-
recting undervalued returns for all prior returns not barred by the statute of limitations.
May 22, 1961 Board of Tax Assessors
This is in reply to your letter concerning the authority of a Board of Tax Assessors with respect to tax returns in which an owner has undervalued the returned property, or in which an owner has omitted to return part of the land, or in which an owner has improperly claimed a homestead exemption.
In all of these cases, the County Board of Tax Assessors may take the necessary action for correcting the returns for all prior years not barred by the statute of limitations, which is seven years from the date that such execution may be lawfully issued. Georgia Railroad and Banking Company v. Wright, 124 Ga. 596, '598.
TAXATION-Deductions
Procedure to secure credit against tax for educational contributions. December 11, 1961
Chancellor Harmon Caldwell Regents of the University System of Georgia
I am in receipt of your letter in which you enclosed a copy of a letter from Mr. George D. Lobingier, Director of the Educational Department of the

483
Westinghouse Electric Corporation, to Mr. Fred W. Ajax, Director of Public Relations of the Georgia Institute of Technology.
In this letter, Mr. Lobingier desires to find out the correct procedure to follow in obtaining the appropriate certificate from the State Revenue Commissioner under Georgia Code Section 92-3111.1, for credit against tax for educational contributions.
Since this involves administrative procedure, and no questions of law are at this point involved, I have contacted the office of Mr. Dillard in the Department of Revenue, and was informed that the correct procedure to follow in these cases is for the donor to make a request in writing addressed to the Commissioner of Revenue. In this letter the donor should set out the amount of contribution made to the educational institution; the name of the donor; the name of the donee; and request a certificate of credit against tax for contribution made to an educational organization.
TAXATION-Estate Tax
When estate tax may be imposed upon intangibles owned by a decedent non-resident.
December 14, 1960
Mr. C. G. Campbell
This is in reply to your letter in which you request my opinion concerning the taxability, for estate tax purposes, of intangible property in this State owned by a non-resident.
Code Section 92-3401.1 (Ga. Code Ann.) provides:
"It shall be the duty of the legal representative of the estate of any person who may die a non-resident of this State but who owns or controls property located within this State, and whose estate is subject to the payment of a Federal estate tax, to file with the State Revenue Commissioner a duplicate of the return which he is required to make to the Federal authorities and pay a tax thereon as determined by section 92-3401. The amount of the tax to be paid shall be in proportion to the amount of property located in this State as compared to the total amount of property located elsewhere."
Code Section 92-3401, as amended in 1960 (Ga. Laws 1960, pp. 835-836), provides:
"It shall be the duty of the legal representative of the estate of any person who may die a resident of this State, and whose estate is subject to the payment of a Federal estate tax, to file with the State Revenue Commissioner a duplicate of the estate tax return which he is required to make to the Federal authorities, and pay to the State of Georgia a tax in an amount equal to the amount allowable as a credit for State death taxes under Section 2011 of the Internal Revenue Code of 1954; provided, however, that if the decedent owned at the time of

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his death either real property in another state or personal property having a business situs in another state which state requires the payment of a tax for which credit is received against Federal estate taxes, any tax due hereunder shall be reduced by an amount which bears the same ratio to the total state tax credit allowable for Federal estate tax purposes as the value of such property taxable in such other state bears to the total value of the entire gross estate for Federal estate tax purposes."
These are the only provisions of our law at this time which impose any sort of death tax.
Reading these two sections together, it is my opinion that, with respect to a Georgia decedent, the Georgia estate tax is the amount allowable as a credit for State death taxes under Section 2011 of the Internal Revenue Code of 1954 reduced proportionately as his property may at the time of death have acquired a taxable situs in some other State which imposes a death tax for which Federal credit is given. And, correspondingly, with respect to a non-resident decedent, the Georgia estate tax is that portion of the Federal credit applicable to his entire gross estate which his property having at the time of death a taxable situs in this State bears to his entire gross estate for Federal estate tax purposes.
In Code Section 92-121 the General Assembly has expressed the view that, for property tax purposes, the intangible property of a non-resident has a taxable situs in this State if it was "acquired in the conduct of, or used incident to, business carried on or property located in this State." In my opinion, the General Assembly had the same concept in mind when, with respect to the intangible property of a resident, "which has acquired a taxable situs ... incident to the conduct of business" in another State, it authorized the property tax relief provided in Code Section 92-122. This same concept, in my opinion, applies in the interpretation of Code Sections 92-3401 and 92-3401.1 for estate tax purposes.
It is my further opmron that securities owned by a non-resident held by a person in this State for purposes having no connection with any business being conducted in this State by such non-resident, his agents or employees, or with any property in this State owned by such non-residents, would not have a taxable situs or be "property located within this State" within the meaning of Code Section 92-3401.1 or be subject to the Georgia estate tax.
TAXATION-Estate Tax (Unofficial)
Procedure for Georgia Estate Tax.
March 10, 1960
Mr. Walter J. Ashley
In reply to your letter relative to the Georgia Estate Tax, this is to advise that Georgia imposes an estate tax equal to the credit allowed under Section 2011 of the Federal Internal Revenue Code of 1954 for state estate

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taxes paid. The only prescribed procedure is that the legal representatives of a decedent file with our State Revenue Commissioner a duplicate of the decedent's Federal return and the State Revenue Commissioner will then compute and bill for the tax.
TAXATION-Exemptions
Under present Georgia law, there is no provision for any county to grant a tax exemption to any industry, new or old.
August 5, 1960
Mr. C. G. Campbell
This is in reply to your letter of August 3, 1960, in which you request my opinion whether county officials have authority to grant tax exemption to new industries.
County officials do not have authority to exempt from taxation any manufacturing industry or enterprise and they have had no such authority since August 7, 1950, which date is five years after the adoption of the Constitution of 1945. The first act approved prohibiting county authorities from exempting manufacturing enterprises and other property from taxation was approved November 13, 1889. This Act provided:
"That from and after the passage of this Act, it shall be unlawful for any county authority to exempt from taxation any manufacturing industry or enterprise, or any property of any kind not now exempt by law." Ga. Laws 1889, page 35.
This was the law up until 1925 when the Legislature made provisiOn in Code Sections 92-206 to 92-218 for the exemption of certain industries for a period of five years. The Acts of 1925 were enacted in accordance with a Constitutional amendment which was ratified November 4, 1924. This Constitutional amendment is found in Section 2-5003, Paragraph 2a of the Constitution of 1877 and is as follows:
"Any person, natural or artificial, a resident of this State, who may after January 1st, 1924, build, equip, establish or enlarge a plant for the manufacture or processing of cotton, wool, linen, silk, rubber, clay, wood, metal, metallic or non-metallic mineral or combination of same, creamery or cheese plant; or for the production or development of electricity, may, as to such building, enlargement, or equipment, be exempt from all county, incorporated town or city ad valorem taxes for a period of time not exceeding five years from the date of the beginning of the building, enlargement or equipment of such plants. The legislature is herewith empowered to make provisions for the operation of this paragraph by appropriate legislation, provided such exemptions shall be approved by a majority of the electors voting in such county, incorporated town or city proposing said exemption."
The Constitution of 1945 left out the provisions contained in Section 2-5003 herein quoted and enacted Section 2-5404 which is as follows:

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"Existing exemptions under the amendment to the Constitution providing for the exemption of certain industries from taxation appearing in Acts of the General Assembly of 1923, extra session, page 67, ratified November 4, 1924, shall continue of force until the expiration of the term for which granted."
The effect of this change in the Constitution was to eliminate all future tax exemption granted under and by virtue of the amendment to the Constitution of 1877 except that those industries which had already been granted exemption upon the adoption of the 1945 Constitution were permitted to remain exempt until the expiration of the five-year term for which they were granted exemption. Under the law as it now stands in Georgia there is no provision fpr any county official to grant tax exemption to any industry new or old.
TAXATION-Exemptions
Exemption of disabled veterans explained.
February 10, 1960
Hon. Peter Wheeler, Director Department of Veterans Service
This is in reply to your letter in which you request an opmwn whether the Veterans' Homestead Exemption law applies to municipalities.
Veterans, including disabled veterans, are subject to the general prov1swns of the Homestead Exemption law which contains the following provisions:
"Section 92-236. Municipal taxes not affected.-Nothing in this law ( 92-219 to 92-238, 92-9947) shall affect, alter, or impair the law relating to the assessment of property by municipalities, nor the collection of taxes by municipalities, nor the sale of property for taxes by municipalities, nor the collection of costs, fees, and penalties by municipalities."
"Section 92-237. Municipal school taxes.-Nothing herein contained shall be construed so as to prevent any municipality from levying and collecting taxes on the exempt property, for the operation of independent school systems."
Disabled veterans are provided for in the Constitutional Amendment of 1957 (Ga. Laws 1957, pp. 72, 73, 74). This Amendment provides:
"Each disabled veteran, as hereinafter defined, who is a citizen and resident of Georgia, is hereby granted an exemption of $10,000.00 on his homestead which he owns and which he actually occupies as a residence and homestead, such exemption being from nll ad valorem taxation for State, county, municipal and school purposes. The value of all property in excess of the above exempted amount shall remain subject to taxation. The term 'disabled veteran,' as used herein, means a disabled American veteran of any war or armed conflict in which any branch of the armed forces of the United States engaged, whether

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under United States command or otherwise, and who is disabled, as a result of such service in the armed forces, by paraplegia or permanent paralysis of both legs and lower parts of the body resulting from traumatic injury to the spinal cord or brain, or by total blindness, or by the amputation of both legs or both arms." (Emphasis added)
It will be noted that this Amendment provides for homestead exemption of $10,000.00 for each veteran who is disabled as is provided in the Amendment, and that this exemption includes municipal taxes and school taxes, as well as state and county taxes.
The Acts of 1959 (Ga. Laws 1959, p. 170) provides the procedure which a qualified veteran may follow for obtaining this exemption. Section 1 of this Act is as follows:
"Any ve,teran 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. L. 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 command 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."
TAXATION-Exemptions
Housing Authority Bonds issued in other states are subject to Georgia Intangibles Tax, and interest is subject to Georgia Income taxation.
December 7, 1961
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your request for an official opmwn concerning the tax consequences of ownership of Public Housing Authority Bonds by a legal resident of this State issued by a state other than the State of Georgia and exempted from taxation by the issuing state.
The provision of our tax laws concerning the taxation of intangibles provides that:
"A property tax is levied ... at the rate of $1.00 on each $1,000.00 . of all bonds and debentures of all corporations ... " (Ga. Laws 1953, Nov. Sess.,. pp. 379, 382)

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Securities such as bonds and debentures of a state or a political subdivision have frequently been held by the courts to be taxable either because expressly made so or because the courts have denied that there was any necessary implication of an intent to exempt them; and any state may tax its own citizens on their holdings of bonds or other securities of another state. 85 C. J. S., Taxation 214.
The Supreme Court of this State has held that public property and the various instrumentalities of government are not generally subject to taxation because of the inconsistency of a state taxing itself to raise money to pay over to itself. Penick v. Foster, 129 Ga. 217. Such reasoning does not, however, apply where the securities involved are issued by a political subdivision or instrumentality of another state.
The provisions of the laws of this State concerning property exempt from taxation contains no general provision exempting property such as we are now concerned with. Georgia Laws 1946, p. 12; 1947, p. 1183; 1955, pp. 262, 263.
The provisions of the "Housing Authorities Law" provides for an exemption of the bonds of an authority and that the interest on such bonds is exempt from income taxation. Georgia Laws 1937, pp. 210, 229; 1939, p. 124. Such exemption as may be therein granted does not, however, apply to the bonds of other than Georgia created authorities as the "Housing Authorities Law" defines "Authority" and "Housing Authority" to mean "any of the public corporations created by or pursuant to this Chapter or any amendments thereto." Certainly no Housing Authorities in states other than this State were created pursuant to "this Chapter."
No provisions of the laws of this State exempt the bonds in question or the interest on such bonds from taxation in this State. See Church of God of the Union Assembly, Inc. vs. City of Dalton, et al., 213 Ga. 76 for rules of construction concerning tax exemptions.
The only other question would be the effect of an exemption granted by the issuing state and whether credit must be given by the State of Georgia to such exemption. The Supreme Court of the United States stated in answer to this question:
"We know of no provision of the Constitution of the United States which prohibits such taxation.... No state can legislate except with reference to its own jurisdiction. One state cannot exempt property from taxation in another...." Bonapart v. Tax Court, 104 U. S. 592.
Housing Authority Bonds issued in states other than the State of Georgia are, in my opinion, subject to Georgia intangibles tax and the interest on such bonds is subject to Georgia income taxation.

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TAXATION-Exemptions (Unofficial)
A tax exemption as a purely public charity is obtained by presenting evidence of such to the tax authorities.
July 5, 1960
Mr. Thomas Murray
You inquire as to the procedure to be followed in applying for tax exemption as an affiliate of the Big Brothers of America.
Under the Constitution of this State and under the provisions of Code Section 92-201 enacted in accordance with the Constitutional provision, all institutions of purely public charity are exempt from taxation. This tax exemption may be claimed by presenting the tax authorities with evidence that the organization which you propose is an institution of purely public charity.
TAXATION-Fi Fa's (Unofficial)
Tax fi fa's and entry and recording of nulla bona thereon discussed.
December 19, 1960
Mr. D. E. McMaster
In your letter you state:
"In some instances the fi fa's which are turned over to Mr. Summerlin by the Sheriff with the entry of the Sheriff on same that after due search, etc. no property could be found to levy-only amount to 75 and $1.00 and on up to $100.00 and more. Some of these fi fa's have had previous nulla bona's entered upon them and they have previously been recorded.
"One of the questions in Mr. Summerlin's mind is should he record all of the previous nulla bonas along with the present nulla bonas again-each of the previous nulla bonas being seven (7) years old? It requires considerable labor and expense to Mr. Summerlin to re-record all of the previous records and would he be entitled to pay only for the nulla bonas which I presume is set by statute or would he be entitled to pay for all of the previous nulla bonas along with the present nulla bonas and would the County Commissioners be responsible to Mr. Summerlin for this recording?"
Code Section 110-1001 contains the following provision:
"... The record of the execution made as prescribed in paragraph 1 of this section, or of every entry as prescribed in paragraph 2 or in paragraph 3 shall institute a new seven-year period within which the judgment shall not become dormant: Provided, that when an entry is filed for record more than seven years from the date of the execution, the execution shall be recorded with all entries thereon, but if filed within seven years, the entry shall be recorded on the original record of the execution.
"It shall not be necessary in order to prevent dormancy that such execution be entered or such entry recorded on any other docket."

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The above quoted provision provides that where an entry is filed for record more than seven years. from the date of the execution, the execution shall be recorded with all entries thereon. Under this provision, I am of the opinion that in recording the second nulla bona on a tax execution, the execution should be recorded together with entries of both the first and second nulla bonas thereon. It might appear to be a useless thing to record the first nulla bona but due to the provision of the code herein quoted, I think the only safe procedure is to follow the provisions of law set forth in the code.
You state in your letter that it has been the practice of the commissioners to pay the clerk his legal fees for recording nulla bonas. I am of the opinion that the tax commissioners are acting within the law in paying these fees. Code Section 92-8002 provides that no tax collector, sheriff or constable shall receive costs on tax executions unless they be collected from the defendant. No prohibition is made against paying the clerk of the Superior Court fees for the recording of tax executions and the entries thereon, and in the case of Garrett v. Board of Commissioners referred to in your letter, the court did not mention recording fees but only upheld the provisions of Code Section 92-8002 with reference to sheriff's costs. On the question as to what fee the clerk would be entitled to receive in recording the second nulla bona, I am of the opinion that the clerk would be entitled to receive the same fee that he received in recording the first nulla bona. The county would not be required to pay double for the second recording.
The letter of November 17, 1960 from Mr. C. G. Campbell, Director, Property Tax Unit to All Tax Collectors and Tax Commissioners called to their attention the decision of the Supreme Court in the case of Brown v. Nash, Commissioner of DeKalb County, wherein the court held that the purchaser of personal property was not entitled to obtain a release of the property he had purchased by paying the amount of taxes assessed against that property. There is nothing in this decision which would prohibit a tax collector from giving a taxpayer a receipt stating that he had paid taxes on his automobile. However, the issuance of such a receipt would not release the automobile from the lien of any other taxes which might be due by the taxpayer.
TAXATION-Homestead Exemption (Unofficial)
An applicant for homestead exemption may be required to furnish satisfactory proof of his eligibility.
May 19, 1960
Mr. C. F. Crouch
This is in reply to your letter in which you state:
"We have several people who live and work elsewhere but who own farm property in this county and claim Homestead Exemption. We have no proof, but have every reason to believe they never spend any nights on this property although they sign and ask for Homestead Exemption. Are they entitled to it, or what are our duties?"

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Code Section 92-233 states:
"The word 'homestead' whenever used in this law, shall mean and is defined to be the following:
"(h) In all the classes above defined, the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemption, and such homestead shall be the legal residence and domicile of such person for all purposes whatsoever."
Code Section 92-228 is as follows:
"92-228. Eligibility of applicant, how determined.-The official receiving said application shall determine the eligibility of the applicant to claim the exemption provided for herein and whether said application is approved or disapproved, he shall then transfer same to the county board of tax assessors for final determination by said board as to eligibility and value as provided by law. (Acts 1937-38, Ex. Sess., pp. 145, 146.)"
Should the Board of Tax Equalizers entertain a doubt as to the eligibility of the applicant to obtain the homestead exemption sought, the board could give the applicant an opportunity to furnish satisfactory evidence of his eligibility.
TAXATION-Homestead Exemption
Application of homestead exemption to house trailers discussed.
April 19, 1961
Mr. C. G. Campbell
This is in reply to your letter requesting my official opinion as to the application of the homestead exemption authorized in Section 1 (c) of the Act approved January 31, 1946 (Ga. Laws 1946, p. 12, 14; Ga. Code Ann. 92-219), as amended, to house trailers.
The homestead exemption applies only to real property. (Ga. Code Ann. 92-232.)
A house trailer is not real property but moveable personal property. Therefore, unless a house trailer has been mounted on a foundation similar to the foundation of a house, it remains personal property.
The fact that the wheels to the house trailer are removed and it is sitting on jacks or blocks does not change its nature from moveable personal property to real property.
If the house trailer is not on a permanent foundation but is located on land owned by the person residing in it, he is entitled to homestead exemption on the value of the land. (Ga. Code Ann., Section 92-219 and 92-232.)
If the owner of a house trailer who uses it as his residence has it mounted on a foundation similar to the foundation of a house but on land he does not own, he is not entitled to a homestead exemption. The reason is, if the land

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is owned by one person and the house trailer by another and the trailer can be severed from the land without injury to the land, the trailer cannot, in contemplation of law, become realty but remains personal property. See Holland Furnace Company v. Howe, 172 Ga. 815 at 816. However, if the trailer is attached to the land so that it becomes a permanent fixture thereon, it becomes prima facie the property of the land owner, not the resident who attached it to the land. See Wright v. du Bignon, 114 Ga. 765 at 768.
TAXATION-Homestead Exemption (Unofficial) A Florida resident cannot claim homestead exemption on property owned
by him in Georgia. June 5, 1961
Mr. Reuben Scruggs This. is in reply to your letter in which you ask whether a resident of Florida,
whose mother lives in a house he owns in your county, is entitled to the homestead exemption provided by Georgia law on the house in your county. He is not entitled to the exemption.
Code Section 92-219, which provides the exemption, reads 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 . . . 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." and Code Section 92-233(h) reads:
"In all classes above defined, the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemption and such homestead shall be the legal residence and domicile of such person for all purposes whatsoever." These provisions clearly exclude a Florida resident from having a homestead in Georgia.
TAXATION-Homestead Exemption Explanation of homestead exemption for disabled veteran. March 29, 1961
Mr. C. G. Campbell You request my opinion as to the application of the Amendment to the Con-
stitution of Georgia, ratified November 4, 1958, codified as a part of Section

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2-5404, Ga. Code Ann., as supplemented by the Act approved March 10, 1959, Ga. Laws. 1959, page 170, codified as Section 92-238, Ga. Code Ann., granting an exemption of $10,000 to a disabled veteran, as defined therein, for a homestead owned by the disabled veteran and his wife as co-tenants.
In my opinion, the purpose of this Constitutional Amendment is to expand the benefits granted in the same paragraph of the Constitution (Section 2-5404 Ga. Code Ann.) to every resident of Georgia who owns and occupies a residence and homestead and which were carried into effect by Sections 92-219 et seq., Ga. Code Ann. This being the case, the Amendment should be read in pari materia with the original homestead provision in Section 2-5404 and the statutes passed to carry the original provision into effect, Sections 92-219, et seq. should be applied also to the Amendment.
Therefore, Section 92-219.1 is applicable and the disabled veteran is entitled to an exemption of $5,000 where he has a 50% interest in the property. He is a joint owner of the property and is entitled to a proportionate exemption of the amount allowed by law in proportion to which his interest bears to the total interest in the property.
The wife of the disabled veteran is entitled to an exemption of $1,000 for her 50% interest in the property under the provisions of Code Section 92-219, granting homestead exemption not to exceed $2,000 and under Code Section 92-219.1 providing that where property is jointly owned by the occupant and others, the occupant or occupants shall be entitled to claim a proportionate exemption of the amount allowed by law in proportion to which the interest to the occupant bears to the total interest of the property.
TAXATION-Homestead Exemption (Unofficial)
A motel owner who lives in part of the motel is entitled to a homestead exemption on the motel.
December 2, 1960
Mr. L. E. Foster
Your letter reads in part:
"We have a motel in this county where the owner occupies a part of it for his residence.
"How do I arrive at his homestead exemption on the part he occupies, or is he entitled to any homestead exemption."
Code Section 92-233, Subsection (1) in defining homestead exemption contains the following language:
"Whenever used in this subsection the phrase 'occupied primarily as a dwelling' shall mean:
(1) That the applicant or members of his family occupy the property as a home
(2) Or the applicant or members of his family occupy a portion of the property as a home."

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Under this definition which was an amendment to the original Homestead Exemption Act, the owner of a motel who occupies a part of the premises would be entitled to a homestead exemption not to exceed $2,000.00.

TAXATION-Homestead Exemption (Unofficial)
Property set aside as a homestead exemption is not exempt from taxes levied to pay principal and interest on bonded indebtedness.
July 1, 1960
Mr. S. C. Cadwell
This is in reply to the letter of Mr. Will Ed Smith in which he requested the unofficial opinion of the Attorney General on what effect a bond issue would have on the levy of ad valorem taxes on property set aside as a homestead exemption.
Property set aside as a homestead exemption is exempt up to the amount of the homestead from all state and county taxes except taxes levied to pay the principal and interest on bonded indebtedness. This exemption is provided in Code Section 92-231.
The voting of a bonded indebtedness will not affect the ad valorem taxes levied for other purposes.

TAXATION-Imported Property (Unofficial)

Discussion of imported property and application of Georgia taxes to such property.

Mr. John L. Montgomery

July 26, 1961

This is in reply to your recent letter.

First, there are no specific provisions in the Georgia tax statutes concerning property imported into this State, either from a foreign country or from another State of the United States. Such property is subject to the same taxes as any other property in Georgia, except as the State's taxing power is limited by the Federal constitutional restrictions on the levying of taxes upon imports.
I gather from your letter that you are concerned about whether imported items are subject to any State taxation while stored in dockside warehouses immediately after importation and before the original packages are broken, or any further disposition of the property is made beyond its being put in such warehouses. Generally, under these circumstances, I would say that such items are not subject to State taxes because of the Federal constitutional restriction.

495
But, the question whether such restriction applies and prevents State taxation is a complex factual problem which involves the question whether the import has ceased so that the property is no longer within the limit of the Federal restriction. Being a factual problem, there is no blanket answer applicable to all cases and each transaction depends upon its own factual details which show when the Federal constitutional restriction upon taxation of imports ceases to apply. I refer you to Legal Annotations on this problem found in 89 L. Ed. 1279 and 95 L. Ed. 496.
As soon as the property passes beyond the scope of the Federal constitutional restriction it is subject to property tax in Georgia, which rate varies locally from county to county, and the property can also be subject to the State's sales and use tax if it is so handled as to come within the scope of those taxes.
TAXATION-Income Tax
Contributions made to an educational institution may be deducted from gross income though institution located and operated wholly without the State.
July 10, 1961
Mr. Fielding L. Dillard
This is in reply to your letter requesting an official opimon concerning a deduction from gros,s income, in computing net taxable income, for contributions made by Georgia taxpayers to educational institutions located and operating wholly without the State.
Code Section 92-3109 provides:
"Deductions from gross income.-In computing net income there shall be allowed as deductions:
"(g) Contributions or gifts.-Contributions or gifts made within the income year to corporations or associations, including community chest funds, foundations, and trusts created solely and exclusively for religious, charitable, scientific, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual, in the case of individuals to an amount not in excess of 15 per centum of the taxpayer's gross income less business expenses, and in the case of corporations to an amount not in excess of five per centum of the corporation's net taxable income computed without benefit of this subsection; except that in the case of a corporation whose income is subject to apportionment under section 92-3113, as amended, the amount allowable shall not exceed the total amount of contributions multiplied by the ratio used in apportioning income to Georgia, or five per centum of the net income taxable to Georgia, whichever is smaller. If a corporation, whose entire net income is not taxable by Georgia, shall use any other method of apportioning income to Georgia, or which shall reduce its entire taxable income in any manner, the amount allowable shall not exceed the

496
total amount of contributions multiplied by the ratio that the net income taxable by Georgia after all other deductions bears to the entire net income of the corporation, or five per centum of the net income taxable by Georgia after all other deductions, whichever is smaller."
This Code Section makes no distinction between domestic and foreign educational purposes. States may, of course, allow deductions for contributions made, in computing income subject to tax, and such deductions are allowed only when clearly granted by statute, 85 C. J. S., Taxation, Section 1099. The allowance of tax benefits by way of deduction from donors' income or exemptions from property and inheritance taxes are predicated upon the fact that the money deducted or property exempted is so used that it renders a service to the State. Foreign educational institutions have but a remote chance of benefiting the citizens of the taxing States, 51 Am. Jur., T'axation, Section 556.
While your question has not been judicially decided in Georgia, there is authority from other States with statutes worded like our Georgia statute, and, except where the statute limits the exemption to institutions located within the State, the tax benefit is generally allowed both domestic and foreign institutions. Petition of Vanderbilt University (N.C.), 114 S. E. 2d 655; In re. Cooper's Estate (Iowa), 295 N. W. 448; In re. F'rain (La.), 75 So. 847.
The cases denying deductions for contributions to foreign institutions are usually controlled by the wording of their statute which specifically indicates the contribution must be to a local institution to be deductible or exempt. Methodist Book Concern v. Galloway (Ore.), 208 P. 2d 319; Rich v. Doughton (N.C.), 135 S. E. 527.
In view of the fact that our statute makes no distinction between local and foreign educational institutions, it is my opinion that a deduction from gross income, in computing taxable income, for contributions made to an educational institution located and operating wholly without the State of Georgia would not be disallowed.
TAXATION-Income Tax (Unofficial)
Interest in Housing Authority Bonds is exempt from Georgia income taxation.
January 12, 1961
Mr. William R. Gaus
This is in reply to your letter in which you inquire whether interest on housing authority bonds held by a resident of this State is subject to the Georgia income tax in case of bonds (1) issued by a Local Housing Authority domiciled in this State, and (2) issued by a Local Housing Authority located outside of this State.
Interest on housing authority bonds issued by a local housing authority established pursuant to the Housing Authorities Law of 1937 (Ga. Laws 1937, p. 210; Ga. Code Ann. 99-11), as amended, (i.e. a housing authority domiciled in

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this State), is not subject to the Georgia income tax by an express provision of the Housing Authorities Law (Ga. Code Ann. 92-1130).
However, there is no such exemption with respect to interest received by a resident of this State on bonds issued by a housing authority established under the laws of some other State.
TAXATION-Income Tax
Discussion of foreign corporation with no place of business in State, but which collects fees for acting as executor, trustee or in some fiduciary capacity with respect to property located in this State.
February 24, 1961
Mr. Fielding L. Dillard
This is in reply to your letter in which you request an opinion on the applicability of the Georgia income tax to fees earned by a foreign corporation having no office or place of business in this State for acting as executor, trustee, or in some other fiduciary capacity with respect to property located in this State.
To begin with, it should be borne in mind that this is not a question involving the income tax liability of the estate for which such corporation is acting as fiduciary. This latter involves the corporation's fiduciary liability, but the question you ask involves what we will refer to as the personal liability of the fiduciary corporation.
Code Section 92-3102 provides:
"Every domestic corporation and every foreign corporation shall pay annually an income tax equivalent to four per cent of the net income from propeJ:tY owner or from business done in Georgia, as is defined in Section 92-3113." (Emphasis added)
The title held by a fiduciary in property is, not a beneficial title, and, therefore, the fiduciary is not personally chargeable with income derived from property owned in a fiduciary capacity in this State as long as the fiduciary duties are faithfully discharged. It is, of course, chargeable with such income in its fiduciary capacity.
Personal income tax liability of such a fiduciary corporation then will depend upon its "doing business" in this State, and this, it seems to me, means doing business in a proprietary sense and not in a fiduciary capacity.
Code Section 92-3113 provides in part:
"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 qualified 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."

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This Code Section is necessarily limited by the requirements of due process, and the effect of this limitation is that isolated, casual and intermittent activity incidental to the conduct of a business conducted in another State does not constitute doing business in this State. See Miller Bros. v. Maryland, 347 U. S. 340, 74 S. Ct. 535, 98 L. Ed. 744.
When a foreign corporation merely qualifies as a fiduciary or merely holds a fiduciary title to property located in this State, and engages in no other activity in this State with respect to such property, it is not, in my opinion, engaged in sufficient activity in this State to constitute its personally doing business in this State. Such corporation, as a fiduciary, would have an income tax liability on account of income or gains dervied from such property.
The employment by such corporation, as a fiduciary, of personnel, not its, own employees, within this State to manage such property would not, in my opinion, be sufficient activity to constitute its personally doing business in this State, though it would as to its income tax liability as a fiduciary.
Likewise, occasional inspections, conferences, and similar activity involved when the maintenance and management of the property are handled by persons other than the corporation's own employees would not be sufficient activity to constitute its personally doing business in this State.
It is possible that such a fiduciary corporation could undertake such a regular and continuous, course of conduct in the maintenance and management of such property by its own employees, not employees of the fiduciary estate, that such activity would constitute its personally doing business within this State. This of course, involves a question of degree which is difficult to classify in the absence of particular facts.
TAXATION-Income Tax
Discussion of income tax liability of foreign corporation engaged in business of lending money secured by mortgages against property located in this State.
February 27, 1961
Mr. Fielding L. Dillard
This is in reply to your letter in which you request an opinion as to the Georgia income tax liability of a foreign corporation engaged in the business of lending money secured by mortgages against property located in this State.
Code Section 92-3102 provides:
"Every domestic corporation and every foreign corporation shall pay annually an income tax equivalent to four per cent of the net income from property owned or from business done in Georgia, as is defined in Section 92-3113." (Emphasis added)
The income involved is, of course, interest or receipts from the hire or use of money and is not rent, profits, or income from the mortgaged property itself.

499
Hence, the only question is whether such a foreign corporation is "doing business" in this State.
Code Section 92-3113 provides in part:
"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 qualified 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 comm,erce."
This Code Section is necessarily limited by the requirements of due process, and the effect of this limitation is that isolated, casual and intermittent activity incidental to the conduct of a business conducted in another State does not constitute doing business in this State. See Miller Bros. v. Maryland, 347 U. S. 340, 74 S. Ct. 535, 98 L. ed. 744.
When a foreign corporation has no place of business in this State and no employee who is regularly engaged in activities in this State, and a borrower goes to or contacts the foreign corporation at its place of business outside this State and there arranges a loan secured by property located in this State, and the corporation is regularly engaged in no other activity in this State, in my opinion, the foreign corporation is not engaged in sufficient activities in this State merely because the property securing such loan is located in this State or because the corporation sends or brings the security instrument into this State for incidental or recording purposes.
When a foreign corporation has, a place of business in this State out of which an employee or agent solicits applications for loans to be there approved or executed, or to be submitted to an out-of-State office for approval or execution, or makes reports concerning applicants and the proferred security, etc., or makes collections on loans, or otherwise services such loans, it is doing business in this State. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316.
When a foreign corporation has no place of business in this, State but does have an employee or agent in this State who is regularly engaged in any of the activities described above, it is doing business in this State. Gibson Art Co. v. Oxford, 216 Ga. 389.
When a foreign corporation has no ,place of business and no employee or agent who is regularly engaged in activity in this State but operates under an arrangement with a local independent business in this State, which business, on its own account and not as an employee or agent of the foreign corporation, is engaged in the activity described above, the activity of such an independent business is not attributable to the foreign corporation, and, unless the foreign corporation is otherwise regularly engaged in activity in this State, it is not thereby doing business in this State. See Oxford v. Tom Huston Peanut Co., 102 Ga. App. 714.
When a local independent business, for its own account and not as employee or agent of a foreign corporation, negotiates and effects loans secured by mortgages against property located in this State, and thereafter sells or assigns outright such loans, in whole or part, to a foreign corporation, which is not otherwise regularly engaged in activity within this State, such foreign corporation is

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not doing business in this State even though it contracts with such local business to collect and service such loans, and even though it makes occasional inspections of the property before or after the purchase of such loans.
Where a foreign corporation is in partnership or in a joint venture with a local independent business which carries on any of the activity described above, the activity of the local independent business is attributable to the foreign corporation and it is doing business in this State.
When a foreign corporation owns shares in a domestic or domesticated corporation which carries on any of the activity described above in this State, the State Revenue Commissioner has authority to assess the domestic or domesticated corporation on a basis that will fairly reflect income earned in this State.

TAXATION-Income Tax

A foreign corporation merely maintaining a bank account in this State is not engaged in sufficient activity to constitute doing business under income tax law and thus be subject to State income tax.

Mr. Fielding L. Dillard

February 28, 1961

This is in reply to your letter in which you request an opmwn as to the Georgia income tax liability of a foreign corporation which (a) maintains a bank account in a bank located in this State, or (b) makes an arrangement with a bank located in this State to receive collections from its customers and deposit same to such a bank account, but regularly engages in no other activity in this State.

Code Section 92-3113 provides:

"Every such corporation shall be deemed to be doing business within this State if it engages within this State in any activities or transactions for the purpose of financial profit or gain, whether or not such corporation qualified 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."

This Code Section is necessarily limited by the requirements of due process, and the effect of this limitation is that isolated, casual and intermittent activity incidental to the conduct of a business conducted in another State does not constitute doing business in this State. See Miller Bros. v. Maryland, 347 U. S. 340, 74 S. Ct. 535, 98 L. ed. 744.
It is my opinion that a foreign corporation which merely maintains a bank account in a bank located in this State, is not engaged in sufficient activity in this State to constitute doing business under Code Section 92-3113. Nor would the activity of a bank located in this State which receives collections from the customers of such corporation and deposits same to such account be attributed to the foreign corporation. See Oxford v. Tom Huston Peanut Co., 102 Ga. App. 714. All of this assumes, of course, that such foreign corporation is regularly engaged in no other activity within this State.

501
TAXATION-Income Tax (Unofficial)
Intermittent purchase of mortgage notes within the State by an out-ofstate institution is not such activity that would subject the institution to liability for income tax.
April 14, 1960
Mr. Albert P. Reichert
This is in reply to your letter concerning what constitutes doing business in Georgia for income tax purposes.
If an out-of-state lending institution intermittently merely purchases from a Georgia real estate and mortgage company notes secured by mortgages on Georgia real estate, I do not think such activity is enough to constitute doing business in this State for purposes of income tax liability under Code Section 92-3102 and 92-3113.
TAXATION-Income Tax (Unofficial)
A non-resident employed in Georgia more than 90 days is subject to Georgia Income T'ax.
April 25, 1961 Mr. Ray E. Marchman, Jr.
This is in reply to your letter concerning our income tax statutes.
Under our income tax statutes, the income of a non-resident who is regularly engaged in employment in this State for longer than 90 days in a calendar year is subject to our income tax. Code Sections 92-3002(j) (1) and 92-3112.
Section 2 (a) (4) (B) of the Current Income Tax Payment Act of 1960 (Ga. Laws 1960, p. 7) includes within the definition of "employee" whose wages are subject to withholding, "any individual, not a domiciliary or resident of this State, who performs services within this State for an employer." Also, Section 2(a) (3) includes within the definition of "employer" subject to withholding requirements, "any person ... for whom a non-resident individual performs or performed any service ... within this State, as the employee of such person." Also, in Section 2(a)(5), the definition of "wages" subject to withholding covers "all remuneration ... for services performed by a non-resident if such non-resident has been employed within this State for more than 23 calendar days during the calendar quarter."
On the basis of this, it is undoubtedly the intention of our income tax law to tax the income of non-residents earned by regular employment within this State, and of our withholding tax law to require withholding for collection of this tax through the employer.
As to your second question, our income tax applies to the income of a Georgia resident derived from property wholly located without this State; however, where this, income is also subjected to an income tax in the State wherein it is located, then, Code Section 92-3111 allows the Georgia resident a credit for the taxes paid in such other State. The effect of this, as you can see, is to recognize the paramount right of the State of the source of the income to tax such income.

502
TAXATION-Income Tax (Unofficial)
The Income Tax Act does not attach merely because a non-resident happens to be administratively assigned to, and paid from, an office located in this State.
May 13, 1960
Mr. A. A. Peter
This is in reply to your letter in which you inquire concerning the income tax liability to the State of Georgia of certain employees of the United States General Accounting Office paid out of your Atlanta regional office when these employees are non-residents of this State, when their work is performed principally in other States served by this regional office, and when their work, if any, within this State is only casual and intermittent.
Code Section 92-3002(j) (1) of the Georgia Income Tax Act provides:
"Taxable non-residents shall mean every natural person who is not otherwise a resident of Georgia for income tax purposes and who regularly, and not casually or intermittently, engages within Georgia ... in employment ... for financial gain or profit ... provided, however, that the term 'taxable non-resident' as defined herein shall not include a legal resident of another State whose only activity for financial gain or profit in Georgia consists of performing services in Georgia for an employer for a period of ninety (90) days, or less during any calendar year."
In order to give a corresponding effect to this under the Current Income Tax Payment Act, Section 2(a) (5) (L) excludes from the definition of "wages" that paid-
"(L) for services performed by a non-resident if such non-resident has been employed within this State for no more than 23 calendar days during the calendar quarter."
Neither the obligation of the Georgia Income Tax Act nor the obligation of the Current Income Tax Payment Act attaches merely because a non-resident happens to be administratively assigned to, and paid from, an office located in this State.
However, if employment takes place within this State beyond the extent specified in the above statute, then, these obligations do attach, irrespective of the fact of non-residency, etc.
TAXATION-Income Tax (Unofficial)
Rates of Georgia income tax cited.
January 20, 1961
Mrs. Jean Murphy
This is in reply to your letter in which you state you contemplate taking up your residence in the State of Georgia and desire to know whether or not the

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State of Georgia has an income tax and the rate thereof, and also does the State have a personal property tax and if so the rate thereof.
The State of Georgia does have an income tax. Under the Georgia Income Tax Law a single person is entitled to a personal exemption of $1,500.00. A husband and wife is entitled to an exemption of $3,000.00. The law also provides for an exemption of $600.00 for each dependent. The rate of taxation is 1 o/o on the first $1,000.00, 2o/o on excess of $1,000.00 not exceeding $3,000.00, 3o/o on excess of $3,000.00 not exceeding $5,000.00, 4o/o on excess of $5,000.00 not exceeding $7,000.00, 5o/o on excess of $7,000.00 and not exceeding $10,000.00 and 6o/o on all income in excess of $10,000.00.
The State of Georgia does have a personal property tax. The rate of this tax would depend upon the county and municipality in which you desire to live. Incidentally, there is a provision in the Georgia Law for an exemption of $300.00 on personal property.
TAXATION-Income Tax
Disclosure of income tax records to Health Department Officials under Ga. Laws 1960, p. 1138, discussed.
September 21, 1960
Honorable Dixon Oxford State Revenue Commissioner
In your letter you point out that under Section 3 of the Act of the General Assembly, approved March 23, 1960 (Ga. Laws 1960, p. 1138), dealing with assessment by the Department of Public Health of the cost of patient care of persons admitted or committed to State institutions under the jurisdiction of that Department, it is provided that "the State Department of Public Health, through its duly authorized agents, shall have access to all Georgia income tax records for the purpose of obtaining necessary information to enforce this Act."
Also, you point out further that the Revenue Department has been requested by the Department of Public Health to make certain Georgia income tax records accessible to its agents pursuant to said Act.
Accordingly, you ask my official opinion concerning your duties and responsibilities under said Act, in view of Code Section 92-3216 and 92-8414, which, in general, require that such records be kept secret and confidential.
Code Section 92-3216 provides:
"Except ... as otherwise provided by law, it shall be unlawful for the State Revenue Commissioner, any agent, clerk or other officer or employee to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this [income tax] law...." (Emphasis added)
Code Section 92-8414 provides:
"The information secured by the Commissioner incident to the administration of any tax shall be confidential and privileged, and neither

504
the Commissioner nor any member or members of his staff shall divulge or disclose any such confidential information obtained from the department's records or from an examination of the business of any taxpayer other than the Commissioner or members of his staff, or to an officer of the State or local government entitled in his official capacity to have access thereto. . . ." (Emphasis added)
As indicated by the emphasized portions of these statutes, there is no absolute requirement of secrecy. Both statutes expressly indicate exceptions dependent upon law to be found outside the statutes themselves. These exceptions may be implied from the nature of the duties of other officers or they may be expressly created by other statutes.
Section 3 of the Act approved March 23, 1960, (Ga. Laws 1960, p. 1138) provides:
"The State Department of Health, through its duly authorized agents, shall have access to all Georgia Income Tax records for the purpose of obtaining necessary information to enforce this Act."
In my opinion, this is. a statutory exception to the requirements of Code Section 92-3216 and 92-8414 coming within the exceptions contemplated by the express language of these sections, and to be given effect in harmony with them. Consequently, it is my opinion that you have a duty to make these returns accessible to the duly authorized agents of the State Department of Health.
This statute does not require you to furnish them with any of this information, but only to make it accessible. It is my opinion, then, that duly authorized agents of the State Health Department may have direct access to these records without you having to furnish employee-help in the process. It is my opinion, too, that you can establish reasonable rules and regulations governing the authorization and conduct of Health Department agents in making use of these records.
I call your attention to the fact that the statute limits the disclosure to Georgia income tax records, and does not extend to tax records obtained from the Federal Government or other States.
It is my further opinion that the disclosure authorized by this statute does not destroy the confidential and privileged character of these records insofar as any other use thereof is concerned; this means, in my opinion, that the head of the State Department of Health, his agents and employees, have access to these records solely for the purpose described in the statute and have the same responsibility as the State Revenue Commissioner and his agents and employees about protecting this information against any unauthorized disclosures and are subject to the same penalties. In this connection, Code Section 92-9914 provides:
"An offense against the first paragraph of section 92-3216, prohibiting the divulging of information concerning income taxes, shall be punished by a fine of not exceeding $1,000, or by imprisonment not exceeding one year, or both, at the discretion of the court; and if the offender is an officer or employee of the State, he shall be dismissed from office and be incapable of holding any public office for a period of five years thereafter."
Finally, it is my opinion that neither you, nor any of your agents, are responsible under the statute for any unauthorized disclosures made by any agent of the Department of Health who has been authorized by the Department of Health to have access to these records.

505
TAXATION-Income Tax
A legal resident of Georgia who moves his residence to a foreign country with no intention of ever re-establishing a residence in Georgia is not liable to Georgia for income tax.
August 12, 1960
Mr. Fielding L. Dillard
This is in reply to your recent reques.t for an opinion as to the liability for Georgia income tax purposes of a person who, being a legal resident of Georgia, moves his residence to a foreign country with the intention of residing there more or less permanently, but with no intention of giving up his United States citizenship and with no particular intention of ever reestablishing a residence in Georgia.
A person is, subject to the income tax laws of this State only if (1) he is a legal resident of this State, or (2) a permanent resident, or (3) a temporary resident for 183 days or part-days, or longer, in the aggregate, of the immediate preceding 365 day period. Code Section 92-3002 (i) (1), (2) and. (3).
I assume from the facts that the person under discussion for any particular tax year is neither a permanent resident nor a temporary resident as contemplated in this Code Section, so that the question is really whether such person remains a legal resident of this State despite his removal and residence elsewhere.
It is my opinion that such person does not remain a legal resident of this State after removing herefrom and establishing a permanent residence in a foreign country with no particular intention of ever reestablishing a residence in this State. The fact that he has no intention of giving up his United States citizenship does not, in my opinion, prevent his establishing a domicile or legal residence in the foreign country to which he has removed.
TAXATION-Income Tax (Unofficial)
Statute of limitations on income tax assessments outlined.
March 15, 1960
Mrs. P.M. Jackson
This is in reply to your letter in which you state that you are of the opinion the period of limitation on assessment of income taxes is two years.
Code Section 92-3303, Georgia Code Annotated, states the period of limitation upon assessment and collection to be three years. In cases. where the taxpayer omits from gross income 25% of the income the period of limitation is six years, and in the case of a false or fraudulent return, the tax may be assessed for collection at any time.

506

TAXATION-Income Tax

Extent to which a subsistence allowance is subject to Georgia Income Tax discussed.

Mr. J. M. Forrester, Director State Board of Corrections

April 14, 1960

This is in reply to your letter in which you request my official opinion concerning the application of the withholding provision of the Current Income Tax Payment Act of 1960 (Ga. Laws 1960, p. 7) to the $2,000.00 subsistence authorized for the Director of Corrections under Section 9 of the Act approved February 20, 1956 (Ga. Laws 1956, pp. 161, 170; Ga. Code Ann. 77-305), as amended.

Georgia Code Annotated 77-305 provides:
"The Director [of Corrections] shall receive a subsistence allowance of $2000 per annum, payable monthly, and shall be paid a salary of $12,000 annually, payable monthly."

Code Section 92-3107 of the Georgia Income Tax Act defines "gross income" as:
"... salary, wages, or compensation for personal services, of whatever k;ind ... and income derived from any source whatever. . . ."

There is no statutory exclusion from gross. income of amounts received by public officials solely because they are public officials.

Under the Current Income T'ax Payment Act of 1960, the State of Georgia is an employer required to deduct and withhold on the payment of wages to its employees in accordance with the Act.

Section 2(a) (5) defines "wages" as follows:
"(5) Wages. This term means all remunerations paid (other than fees paid to a public official) for services performed by an employee for his employer ... regardless of the terminology which the employer or employee may apply to such remuneration. . " Section 3(h)(4) provides:

"The Commissioner may by regulation prescribe the manner in which an employer may be authorized to deduct from wages, before withholding and deducting tax, any amount attributable to travel and other necessary business expenses of employees who are not reimbursed by the employer for such expenses and whose duties require such expenditures, other than traveling to and from the employee's home and place of employment."

Here, again, there is no statutory exemption from withholding on the wages of a public official solely because he is a public official except as to fees paid such official. This does not mean that such fees are not gross income; it simply means there is no requirement of withholding on the payment of such fees.

Code Section 92-3110 provides:
"In computing the net income no deduction shall be in any case allowed in respect of: (a) personal living or family expenses."

507
An unrestricted subsistence allowance, that is, a subsistence allowance which is in no wise limited to expenditures, incurred on account of the employee's business, is an allowance to defray the personal living expenses of the employee and is, in substance, a form of compensation or remuneration within the scope of Code Section 92-3107 and the definition of "wages" in the Current Income Tax Payment Act of 1960. To the extent that an employee incurs expenses on account of the business of his employer, and he is not otherwise reimbursed therefor (so that such expenses are a charge against this subsistence allowance), then the situation is one to be handled under regulations of the State Revenue Commissioner promulgated in accordance with Section 3(h) (4) of the 1960 Act.
TAXATION-Income Tax
A testamentary trust is taxable as a trust and not an estate when certain conditions have been fulfilled.
April 5, 1960
Mr. Fielding L. Dillard
This is in reply to your letter in which you request an official opinion on the question whether, under Code Section 92-3106(h), a testamentary trust, being administered as an estate, is entitled to a personal exemption of $1,000 as an estate or only $100 as a trust.
Code Section 92-3106(h) reads as follows:
"The net income of an estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that an exemption of $1,000 shall be allowed to an estate and a trust shall be allowed an exemption of $100."
Georgia law provides that no devise or legacy passes title until the assent of the executor is given to such devise or legacy. The assent of the executor may be express or may be presumed from his conduct. The executor cannot, however, capriciously withhold his assent and a legatee can, in equity, compel an executor to assent. Code Section 113-801, 802.
Even where the same person is expressly, or by implication, made trustee as well as executor, the administration of the executor does not end until there is a delivery, express or implied, to the trustee, upon assent of the executor, express or implied, to the legacy in trust. Robinson v. Georgia Savings Bank & Trust Co., 185 Ga. 688, 693; Evans v. Citizens and Southern National Bank, 206 Ga. 441, 449-450.
In the latter case the Supreme Court quoted approvingly from 65 C. J. 641, Sec. 511 (e) as follows:
"While a person may occupy the dual status of an executor and trustee, where it becomes important to ascertain whether he was acting in the one or the other capacity, it will ordinarily be held that an executor does not change his status to that of trustee until completion of administration as executor, or until legal ascertainment and separation

508
of the trust funds from the general funds of the estate, although after lapse of a reasonable time for settlement of an estate an executor may be regarded as a trustee."
The basic condition which would, by implication, cause an executor to be regarded as a trustee is, in my opinion, when the holding of income-producing property no longer serves, the purpose of administering the decedent's estate (i.e. marshalling assets, ascertaining and paying creditors, and distributing the estate in accordance with the will) but serves the purpose of administering the trust. See Estate of J. P. Armstrong, 2 T. C. 731.
In conclusion, a testamentary trust is taxable as a trust and not as part of an estate when (1) administration of the estate has been formally completed, or (2) where the executor has separated the trust funds out of the general funds of the estate, or (3) where the executor has performed all duties required for the administration of the decedent's estate and holds a residue for trust uses, expressed or implied.

TAXATION-Income Tax

Withholding of Georgia Income Tax from wages of federal employees by federal employer discussed.

Mr. Fielding L. Dillard

September 26, 1960

You request an official opm1on concerning the application of the Current Income Tax Payment Act of 1960 (Ga. Laws 1960, pp. 7-48) to the wages of a non-resident Federal employee whose permanent duty station is located within this State, but whose duties involve considerable travel away from this permanent duty station for extended periods of temporary duty.

As you know, the agreement between the Secretary of the Treasury and the State of Georgia, pursuant to the Act of July 17, 1952, as amended, (5 U. S. C. A., Sec. 84(b) and (c)), and Executive Order 10407, dated November 6,1952, provides:

"The head of each agency of the United States shall comply with the requirements of the withholding provisions of the Georgia income tax law ... with respect to employees of such agency who are subject to such tax and whose regular place of employment is within the State of Georgia."

Under Paragraph 6(d) of Executive Order 10407, the term "regular place of employment" means-

"... the place where an employee actually performs his services, irrespective of his residence, except when such services are performed in a travel or temporary duty status, in which case his 'regular place of federal employment' will be the place to which he will normally be expected to proceed for the purpose of performing further services in connection with his federal employment on the termination of travel or temporary duty status."

509
In the situation you pose, as I see it, the "regular place of employment" of this employee is in this State, and the only question is whether or not such employee is subject to the Georgia income tax.
Code Section 92-3002(j) (1) of the Georgia Income Tax Act provides:
"Taxable non-residents shall mean every natural person who is not otherwise a resident of Georgia for income tax purposes and who regularly, and not casually or intermittently, engages within Georgia, himself or by means of employees, agents or partners, in employment, trade, business, professional, or other activity for financial gain or profit, including the rental of real or personal property located within Georgia or for use within Georgia; provided, however, that the term 'taxable non-resident' as defined herein shall not include a legal resident of another State whose only activity for financial gain or profit in Georgia consists of performing services in Georgia for an employer for a period of ninety (90) days or less during any calendar year."
Section 2(a) (5) (L) gives effect to this last proviso in the Current Income Tax Payment Act by providing that the term "wages" shall not include remuneration paid-
"... for services performed by a non-resident if such non-resident has been employed within this State for no more than 23 calendar days during the calendar quarter."
Quite obviously the application of the Current Income Tax Payment Act in the situation you pose depends on how many days the employee was employed within this State during the calendar quarter covered by the employer's quarterly return. Q.uite obviously, too, this is a matter of hindsight when withholding is done normally at the time of payment. In this situation, it appears necessarily to be a matter between the employee and his disbursing officer as to how withholding will be accomplished when the employee's employment in this State exceeds the 23-day-per-quarter test; certainly at that point, under our law, the employee becomes subject to our income tax law.
Code Section 92-3112(b) of our income tax law provides:
"A taxable non-resident whose income is derived from employment, trade, business, professional or other activity performed or carried on within and without Georgia shall be taxed only upon such income as is derived from carrying on such activity within Georgia. This may be determined by a separate accounting of such income if the State Revenue Commissioner is satisfied that such separate accounting reflects correctly the income fairly attributable to this State, but otherwise it shall be determined in the manner prescribed by this law for the allocation and apportionment of income of corporations engaged in business within and without Georgia."
It should be noted that, under this section, when a non-resident engages in employment within this State in excess of 90 days during any calendar year, but is not otherwise regularly engaged in employment in this State, he is taxable only on that portion of his income attributable to his employment within this State. It can be seen that full withholding, after the 23-day-per-quarter test has been met, may still produce considerable over-collection; perhaps, this is a situation that should be handled by special rules or regulations.

510
TAXATION-Income Tax (Unofficial)
Withholding of income tax discussed.
February 17, 1961
Mr. L. D. Bryan
Your letter has been referred to this office for reply.
Our withholding tax law requires employers to withhold taxes on wages or salary paid to an employee for services performed in this State whenever such services extend over a period of more than 26 days in any calendar quarter, and this, no doubt, explains why your employer withheld on your pay.
It is true that our income tax law does not undertake to tax income of nonresidents whose only activity for financial gain or profit in this State is personal services as an employee for a period of not more than 90 days during the taxable year. If under this you are not subject to income tax in this State, you should file the taxable non-residents' return, stating thereon the facts which show that no tax is due, accompany it with a statement showing the amount of tax withheld, and request a refund of the overpayment.
TAXATION-Income Tax
A non-resident employer is under no obligation to withhold income taxes from wages due residents unless the employer is doing business in this State.
March 7, 1961
Mr. Fielding L. Dillard
This is in reply to your letter in which you request an opinion concerning the effect of P. L. 86-272 (15 U.S.C.A. 381) on Section 2(a) (2) of the Current Income Tax Payment Act of 1960 (Ga. Laws 1960, pp. 7, 8).
The question involves the obligation of a non-resident employer to withhold from wages due a resident of this State or from wages. due a non-resident for services performed in this State. Such an employer has no obligation to withhold unless he is "doing business in this State" as defined in Section 2(a) (2) of the Act.
P. L. 86-272 was enacted by Congress as a limitation on the taxing power of the states as applied to certain businesses engaged in interstate activities. In a proper case, its general effect is to prohibit taxation where the only activity within a taxing state is solicitation of orders, etc.
Without being specific, there is an area of activity within the definition of Section 2(a) (2) which is encompassed by the prohibition of P. L. 86-272.
However, the prohibition of P. L. 86-272 is limited to the imposition of a net income tax or a tax measured by net income. The question, then, is whether or not a withholding tax is a net income tax or a tax measured by net income?
In my opinion, the obligation imposed on an employer under the Current Income Tax Payment Act of 1960 to withhold is not an income tax, nor a tax

511
measured by net income; it stands in no relation to the employer's net income. In its practical effect, the withholding tax is a devise for the collection of an employee's income tax; but, in its legal effect, it appears to be a tax on employment within this State measured by the "wages" paid for services rendered regularly, and not transiently, within this State. The employer is an obligor who may discharge his obligation by either (1) withholding the required amount from the "wages,'' of his employee and remitting same as required by the Act, or (2) by payment of the amount required to be withheld if he does not withhold from the "wages" of his employee.
Therefore, it is my conclusion that the limitation imposed by P. L. 86-282 does not apply to the Current Income Tax Payment Act of 1960 since the latter is not a tax on the employer's net income nor a tax measured by his net income.
It may be of interest to some non-resident businesses whose employees are residents of this State that Section 2(a) (2) (E) provides:
"The fact of an employer's voluntary compliance with the requirements of this Act shall not of itself constitute any admission that such employer is doing business within this State for any other purpose but it shall be taken as conferring jurisdiction upon this State for purpose of collecting amounts withheld under this Act."
TAXATION-Income Tax (Unofficial)
The withholding of income tax when the employee is subject to a garnishment discussed.
May 13, 1960
Mr. Kirk McAlpin
You raise certain questions concerning the withholding obligation of an employer under the Current Income Tax Payment Act (Ga. Law 1960, pp. 7-48) when the wages of an employee is also subject to garnishment.
Section 2(a) (5) of the Act defines. "wages" as:
"... all remuneration paid ... for services, performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash and without any deduction of any amounts withheld by the employer for any reason. . . ."
It is my opinion, therefore, that the computation of the amount to be withheld under the Act is not affected by a garnishment.
As to the relative priorities of claims against an employee's wages, I am of the opinion that the claim of the State to the amount of the tax required to be withheld under this Act comes ahead of any other claims. Taxes shall be paid before any other debt, lien or claim whatsoever and liens for taxes are superior to all other liens. Code Sections 92-5707, 5708, 8444. As a garnishment lien is junior to any lien or claim of the garnishee for indebtedness due him by a debtor, so both a garnishment lien and an employer's lien or claim for indebtedness due

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him are junior to the claim of the State for the amount required to be withheld under this Act.
Your attention is also called to Section 11 (b) of the Act which provides:
"... To the extent that such tax is deducted and withheld, such employer shall not be liable to any other person for the amount thereof and is hereby indemnified against the claims and demands of any person for the payment of any amounts made to the Commissioner in accordance with the provisions of this Act."
TAXATION-Intangibles Tax (Unofficial)
Discussion of application of intangibles tax to trust property.
June 28, 1961
Mr. William L. Taylor, Jr.
Your letter to Mr. Clarence G. Campbell, Director, Property Tax Division, has been forwarded to this office for an answer.
The general authorities we have checked in answering your questions are 84 C. J. S., Taxation, Sections 117 and 118; American Law Report Annotations, 67 A. L. R. 393, 127 A. L. R. 379, and 172 A. L. R. 341, an official opinion of the Attorney General of Georgia which appears in the 1950-51 edition of his opinions, at page 375, and which answers your question Number 6, as well as the cases cited below.
You are correct in that Section 92-160, Georgia Code Annotated, covers only the instance where a trust was created by a resident of the State of Georgia, and does not deal with the residence of the trustee and/ or the beneficiaries of a trust. In situations not covered by this Code Section, I conclude that the general law of trust and taxation applies to determine the situs of the trust property and whether it is taxable.
The scope of the taxing power, under the Georgia Constitution then in effect and the tax statutes of the State of Georgia, was considered in the case of Suttles v. Northwestern Mutual Life Insurance Company, 193 Ga. 495, 19 S. E. 2d 404. The Court stated, at page 506:
"First, let us. look at certain of our State laws, constitutional and statutory, in reference to taxation. The constitution of Georgia (Code, 2-5002, 2-5003), after enumerating several classes of property which may be exempted from taxation, declared further (Code 2-5005) that 'all laws exempting property from taxation other than the property herein enumerated shall be void'. The Code, 92-101, provides that 'all real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided by law.' Section 92-101 declares that for the purpose of taxation personal property shall be construed to include, among other things, 'moneys, credits, and effects, whatsoever they may be,' and 'money due on open account or evidenced by notes, contracts, bonds, or

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other obligations, whether secured or unsecured.' Section 92-105 provides that 'Lands or other property belonging to citizens of the United States, not resident of this State, shall not be taxed higher than the property of residents, but such non-residents, whether their property in this State is real or personal, shall pay taxes on the same herein.' Thus, apart from the permitted exemptions, the constitution evinces. an intention that no property which is subject to taxation in this State shall be relieved therefrom, and the statutes quoted express with equal certainty an intention by the lawmakers to lay a tax upon all property of every kind or class which the State of Georgia has jurisdiction to tax, nothing excepted. Georgia Railroad & Banking Co. v. Wright, 125 Ga. 589 (54 S. E. 52). Compare Wood v. Ford (Fla.), 3 So. 2d, 490, as to Florida statutes."
The provisions. of the present Georgia Constitution are comparable to those dealt with in the Suttles case and the statutes cited therein are still in effect. With this preface, we will now answer your inquiry under the six situations you pose asking whether intangible tax returns should be filed.
1. Where the trust is created by a non-resident, the trustee is. a non-resident but the beneficiaries of this trust are residents of the State of Georgia, the beneficiaries are subject to the intangibles tax on their beneficial interest in the trust where it is of such a nature as to have a taxable situs in this. State. I base this conclusion on a Florida case cited in the above quotation from the Suttles case, Wood v. Ford, 3 So. 2d 490. The Florida statutes involved are quoted on page 493 of the opinion and, although the Georgia statutes are not identical, we believe they are every bit as comprehensive. In Wood v. Ford, the Florida Supreme Court held that where the settlor was a non-resident and the trustee was a non-resident but the income beneficiary was a Florida resident who had power to devise the trust fund, such fund was intangible personal property subject to Florida personal property tax on its just valuation. Also see Section 117b, 84 C. J. S., Taxation.
2. Where the trust was created by a resident of Georgia with a non-resident trustee and with beneficiaries who were residents of the State of Georgia, I think Section 92-160 fixes the taxable situs in the county of residence of the settlor and the beneficiaries are taxable if their interest is of such a nature as to be subject to taxation, much the same as in situation number 1.
3. Where the trust was created by a non-resident but with a resident trustee and beneficiaries who are residents of the State of Georgia, the situs of the intangible personal property is at the domicile of the trustee who holds the legal title. Where both the trustee and the beneficiaries are residents of Georgia, the trustee as legal title holder is the party to pay the tax.
4. Where the trust was created by a resident of the State of Georgia with a resident trustee but with non-resident beneficiaries, the intangible personal property held by the trustee is taxable in Georgia to the trustee as he holds legal title thereto. The fact that the beneficiaries who are non-residents may be subject to taxation on their beneficial interest in another jurisdiction would make no difference as it is generally settled that intangible personal property may have more than one tax situs. See 84 C. J. S. Taxation, Section 118.
5. Where the trust was created by a resident with a non-resident trustee and beneficiaries. who are also non-residents, I think this situation is covered by Section 92-160.

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6. Where the trust was created by a non-resident with a resident trustee and with beneficiaries who are non-residents, the resident trustee as holder of legal title is subject to taxation.
TAXATION-Intangibles Tax
Convertible debentures of a corporation are subject to the Intangibles Recording Tax until they are converted into stock.
August 3, 1961
Mr. C. G. Campbell
This is in reply to your request for an opinion on the question raised in a letter to you which poses this problem: A Georgia corporation is organized to operate under the Federal Small Business Investment Act of 1958, and obtains a license issued by the Small Business Administration to operate as a small business investment company. Small business investment companies make longterm loans and advance equity capital to small business concerns under a Federal policy of promoting the flow of equity capital and long-term loans funds to small businesses.
A small business investment company's advances to small businesses are secured by stock in the borrowing small business concern, or by convertible debentures of that concern.
In this case, the small business investment company in question will make most of its loans to small business companies incorporated in Georgia. In such cases, if the security for the loan is stock in the borrowing corporation, that stock is not subject to Georgia's, tax on intangible personal property.
Now, the writer wants to know if, where the security for the loan is not stock, but is convertible debentures of the borrowing corporation, are the convertible debentures subject to the Georgia Intangible Property Tax?
My opinion is that the convertible debentures are subject to the Georgia Intangible Property Tax. Section 92-162, Georgia Code Annotated, which imposes the tax on debentures, makes no distinction whatever between convertible debentures and non-convertible debentures. The statute simply says "debentures". Regardless of the many good reasons that may make it desirable in this situation to make a distinction between the two and relieve convertible debentures from the intangibles tax, as capital stock is relieved, this is a policy matter for the Legislature. The Legislature has not made such a distinction in the statute and we can hardly do so by opinion or regulations without exceeding our authority. Such convertible debentures are subject to the intangibles tax until they are, in fact, converted into stock.

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TAXATION~Intangibles Tax
A corporation organized for both exempt and non-exempt purposes is not entitled to a property tax exemption.
June 22, 1961 Mr. C. G. Campbell
This is in response to your letter in which you inquire whether a corporation which is organized for the sole purpose of receiving, holding, managing, investing, and reinvesting donations, gifts, and contributions, and to disburse the principal and income therefrom as gifts or grants to corporations, trusts, community chests, funds, or foundations, which are organized and operated exclusively for charitable, scientific, literary, religious, or educational purposes, no part of the net income from the operation of which can inure to the benefit of any private person, is exempt from the intangible tax.
Georgia Code Section 92-201, which sets out property which shall be exempt from taxation, reads, in part, as follows:
"... all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of, religious, educational and charitable institutions, no part of the net profit from the operation of which can inure to the benefit of any private person; ..."
For the property to be exempt from taxation under Georgia law, it must be owned by, or irrevocably held in trust for the exclusive benefit of only three types. of institutions; namely, educational, religious, and charitable institutions.
The charter provisions of the above corporation state it is organized and operated exclusively for four different types of purposes, charitable, scientific, literary and educational purposes. Educational and charitable institutions are exempt under Georgia law. Scientific and literary institutions are not exempt under Georgia law. Therefore, the corporation is organized for purposes that would both exempt institutions from property taxes and would not exempt institutions from property taxes.
Bearing in mind that tax exemption provisions are given a narrow construction, it is my opinion that the above corporation is not entitled to a property tax exemption because it can direct the funds. it receives to purposes that would not render the institution engaged in such purposes exempt from property taxes in Georgia.
The fact that the funds received by the corporation were only disbursed to educational and charitable institutions within the taxable year would not affect the result as it is the powers of the corporation, not its activities, that are controlling. See Pasadena Hospital Association v. Los Angeles County, 221 P. 2d 62 (1950).

TAXATION-Intangibles Tax (Unofficial)

Discussion of intangibles tax. Mr. L. Jack Swertfeger, Jr.

June 28, 1961

This is in response to your letter requesting information concerning intangible taxes.

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You are correct that the holder of a security deed, by an affirmative statement on the instrument reciting that the indebtedness is made for the purpose of repaying a previous indebtedness owing to the holder, as evidenced by a security deed already recorded and on which the intangible tax has already been paid as required by Section 92-164, must pay additional tax only on the new money.
Your next question, as I understand it, involves a real estate sale that is not consummated, for one reason or another, after the instruments are executed, recorded, and the intangible tax is paid, but no funds are disbursed. The builder then sells, or resells, as you put it, the house to another purchaser and the question is whether, on the recording of the security deed from the new purchaser, the intangibles tax must be paid again.
I think you have correctly stated the effect of the transaction that fell through before the loan was consummated in that it is a nullity. No indebtedness ever exists to be secured by an instrument filed of record. However, it seems to me the sale, or resale, that goes through is a subsequent separate transaction involving the same lender and the same property, but another buyer who is in no way connected with the original buyer. I do not see that Code Section 92-175 applies to this situation. The lender has simply lent the money to another person from the one contemplated in the original transaction and taken another security deed from him. There can be no transfer or assignment of an original indebtedness if there was no original indebtedness in the first place.
The effect of the payment of the tax in the transaction that fell through is that there is. a voluntary payment of a tax that never was owed. Such a tax so paid cannot be recovered according to Section 20-1007, Georgia Code Annotated, nor can such voluntary payment of a tax not owed be later setoff against taxes validly owed. See Mitchell v. Holden, 48 Ga. App. 712, 713(3).
On this basis, I would say that the recordation tax would have to be paid again upon recording the security instrument created in the transaction that was consummated and resulted in the completed sale of the property.
TAXATION---.Intangibles Tax
Treatment to be given intangibles "recording" tax on realty notes when the property is located in two or more counties.
September 20, 1960
Mr. C. G. Campbell
You request my official opmwn concerning the treatment to be given the tax imposed by Section 4 of the Intangible Property Tax Act of 1953 (Ga. Laws 1953, Nov.-Dec. Sess., pp. 379, 383), popularly known as the "recording tax" on long-term real estate notes, when the property described in the security instrument is located in two or more counties.
The last sentence of Section 17 of the Act, dealing with the distribution of monies collected under the Act, provides:

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"If the real estate is situated in more than one county, the appropriate portion of the tax shall be equitably divided among such counties by the State Revenue Commissioner."
This was contained in the original Act in which it was contemplated that the tax would be collected by the Clerk of the Superior Court at the time the security instrument was presented for recording and the clerk would remit his collections to the State Revenue Commissioner who would make the distribution thereof as prescribed in Section 17.
By amendment (Ga. Laws, 1955, p. 288) the scheme was changed to require payment to the county tax collector or commissioner, and another amendment (Ga. Laws 1955, pp. 730, 731) authorized the county tax collector or commissioner to make the distributions required under Section 17.
The first sentence of Section 9 of the Act, as amended in 1955 (Ga. Laws 1955, pp. 288, 291-292), provides:
"If any instrument required to be recorded hereunder shall convey, or encumber, or create a lien upon real estate situated in more than one county, the tax herein required shall be paid to the tax collector or tax commissioner of the county in which such instrument is first recorded."
Reading Section 9 and Section 17 together, it is my opinion that the tax collector or commissioner of the county in which the security instrument is first presented for recording shall collect the tax due and then he has the duty to distribute the money among the counties in which property described in the security instrument is situated in accordance with a division determined by the State Revenue Commissioner.
Section 8 of the original Act of 1953, requiring the Clerk of the Superior Court to remit the tax collected, also allowed him to retain 2o/o as compensation for his services; the result was that only 98% of the taxes collected was remitted to the State Revenue Commissioner for distribution under Section 17. With the Amendment of 1955, the county tax collector or commissioner was substituted for the Clerk of the Superior Court and the rate of compensation was raised to 6%. Accordingly, only 94% of the taxes collected was available for distribution under Section 17. Reading Sections 8, 9, and 17 together, it is my opinion that the tax collector or commissioner of the county in which the security instrument is first presented for recording, who makes the collection under Section 9, is entitled to the 6% commission thereon, and that the tax collectors or commissioners of other counties who receive distributions from such tax collector or commissioner are not entitled to any commission thereon.
On numerous occasions owners of long-term real estate notes have wanted simultaneous, recordings in several counties in which property securing such notes was located. In these situations the practice has developed of coming of the State Revenue Commissioner and having him determine the proper division and instruct the tax collector or commissioner as to the amount allocable to his county, which amount is paid when the security instrument is offered for recording. In my opinion, this practice effects, the purposes of the Act in a situation not specifically dealt with by the express language of the Act. When the matter is handled in this way, no county tax collector or commissioner can claim any more than the 6% commission on the tax allocated to his county, and the tax collector or commissioner in each of such counties is entitled to 6% of the amount collected by him.

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TAXATION-Intangibles Tax
Relief "for maintenance and medical or surgical treatment of the poor of Atlanta" is a charitable purpose, and exempt from taxation.
May 6, 1960
Mr. C. G. Campbell
This is, in reply to your letter requesting my opinion concerning the taxation of intangible property held by the Trustees of the Albert Steiner Charitable Fund under Item Nineteen of the Will of Albert Steiner probated in solemn form in the Court of Ordinary of Fulton County in April, 1919. The pertinent provision of Item Nineteen is as follows:
"The remainder of the corpus, if any, shall be invested and the net income therefrom shall be expended for the maintenance and medical or surgical treatment of the poor of Atlanta in said Ward [the Albert Steiner Ward]; or, in the discretion of said Trustees, the whole or any part of said net income from said bequest may be used by them for surgical or medical treatment of the poor of Atlanta, at some other hospital or hospitals in the City of Atlanta. The bequest herein contained shall be known as 'The Albert Steiner Charitable Fund'.... "
This bequest is irrevocable.
I am given to understand that there is no question that the Fund is being administered in accordance with this provision, and that the corpus, consists of various types of intangible property, including long-term real estate notes.
Code Section 92-123 provides:
" ... intangible personal property belonging to any . . . charitable organization . . . shall not be taxable."
Code Section 92-130 provides:
"There shall be exempt from taxation all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of ... charitable institutions, no part of the net profit of which can inure to the benefit of any private person."
Relief "for the maintenance and medical or surgical treatment of the poor of Atlanta", in my opinion, is a charitable purpose under Code Section 108-203(1), and a trust for that purpose is a charitable organization or- institution within the meaning of the above Code Sections. The characterization of the beneficiary as "the poor of Atlanta" is not too indefinite. See Houston v. Mills Memorial Home, Inc., 202 Ga. 540.
Accordingly, with the understanding that the Albert Steiner Charitable Fund is being operated in accordance with Item Nineteen of the Will of Albert Steiner, it is my opinion that the intangible property owned thereby is exempt from the intangibles tax imposed by the Intangibles Tax Act of 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 379), as amended, including the tax imposed by Section 4 thereof on long-term real estate notes.

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TAXATION-Intangibles Tax
A note secured by real estate is to be classified as a short-term note or a long-term note as of the time of its execution according to the maturity date stated therein.
May 20,1960
Mr. C. G. Campbell
This is in reply to your letter in which you request an official opinion as to the classification, for purposes, of the Intangibles Property Tax Act (Ga. Laws 1953, Nov.-Dec. Sess., p. 379), of a note secured by real estate which on its face is due within three years from the date thereof, but which is not paid at maturity and, because of the indulgence of the creditor or because of a renewal note, the time for payment is allowed to run or is extended for a period which is in excess of three years from the date of the original indebtedness but not in excess of three years from the original maturity date.
It is my opinion that a note secured by real estate is to be classified as a short-term note or a long-term note as of the time of its execution according to the maturity date stated therein, and that it remains in this clas,sification as long as it remains outstanding, notwithstanding that the indulgence of the creditor allows the indebtedness to extend beyond a three year period. If the creditor takes a renewal note in payment thereof, the renewal note is to be classified according to its own terms and without regard to the period of indebtedness under the original note, notwithstanding that the renewal note is secured by the same security instrument as the original note.
Thus, a short-term note secured by real estate which is subject to tax under Section 1 of the Act does not become a long-term note secured by real estate merely because the indulgence of the creditor allows the indebtedness to run for more than three years from the original date thereof. Likewise, if a renewal note is taken and the maturity date thereof is three years or less, it is a short-term note subject to tax under Section 1. However, if the renewal note has a maturity date of more than three years, then the tax imposed by Section 4 of the Act should be paid at the time of its execution and an entry to that effect made on the record of the security instrument in the office of the Clerk of the Superior Court.
TAXATION-Intangibles Tax
Where two security deeds covering different property are executed to secure the same debt, only one is subject to intangibles recording tax.
August 7, 1961
Mr. C. G. Campbell
This will acknowledge your request for an opinion regarding a refund claim for intangible property recording tax paid by the Philco Corporation arising out of a loan.
Enclosed with your letter was a letter from Philco's attorney, a completed "Protest" form, a completed "Claim for Refund of Georgia Intangible Taxes

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Illegally Collected", and a copy of two deeds to secure debt recorded in Polk County, Georgia.
First of all, the procedural requirements of the law concerning protest and claim for refund appear to have been properly complied with, judging from the papers before me, so the substantive grounds of the protest are properly before the State Revenue Commissioner for his consideration.
Two contentions are made in the protest and claim for refund which will be considered here in reverse order to their presentation.
First, it is contended that two separate security deeds are recorded to secure the same indebtedness, each deed covering separate property, but otherwise the terms and conditions of each deed are identical. From my review of the copies of the security deeds enclosed, there is no question that the debt secured by each deed is the same debt. The same result could have been achieved by the use of one security deed listing all the property listed in both security deeds, but doubtless the lender had his reasons for wanting two deeds.
The Clerk apparently collected the intangibles tax on the full amount of the debt on the recording of each security deed. In my opinion this should not have been done and the taxpayer is required to pay the tax only once, not on the recording of each deed. Admittedly, the problem is unusual and the wording of the s,tatute appears to contemplate only one security deed per debt, but Code Section 92-164 measures the tax by the amount of the debt and, in my official opinion dated December 15, 1954, to Charles D. Redwine (Opinions of the Attorney General 1954-56, pages 790-91), in answer to his question number 11, I pointed out that the tax is imposed upon the amount of the indebtedness, the total amount of the note, and not upon the instrument securing the note. The subject of the tax is the note or notes which are the subject of the debt secured by real es,tate, and the tax is not upon the security instrument, or here the security instruments, evidencing the debt on the Clerk's records. Consistent with that opinion, the tax on the debt is fully paid when determined from one security deed and is not subject to being collected again when another security deed is presented for recording, which secures the same debt.
The second contention made is the s,aid note and security deed are due on demand, making same a short-term loan, and, as an alternative proposition, it is stated that all of the notes fall due in less than 30 months anyway.
Code Section 92-164 states, in part:
"Every holder of long-term notes secured by real estate shall, . . . record such security instrument . . . and shall, prior to presenting such instrument to the clerk ... for recording, present such security instrument to the tax collector ... of the county in which the real estate is situated who shall determine from the face of the security instrument the date of execution, the maturity date of the note and the principal amount thereof, and shall collect from the holder of such long-term note a tax measured by the amount of the debt as evidenced in the security instrument. . . . "
In my opinion, this, provision imposes upon the tax collector the duty of looking no further than the terms of the security instrument in determining the amount of the tax and, collaterally, whether the notes involved are long-term notes or short-term notes. In other words, the tax collector is not required to

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determine if the provisions of the notes are different from those contained in the security instrument.
Each of the security deeds in this case read as, follows:
"This conveyance is made under the provisions of Chapter 67-13 (Conveyances to Secure Debt) of the 1933 Code of Georgia, and upon payment of the debt hereby secured this security deed shall be cancelled and surrendered pursuant thereto, the debt secured being $64,480.90 advanced to Grantor under financing agreements dated June 29, 1960 and February 18, 1960, wherein Grantor guaranteed to the payment of all Conditional Sales Contract and notes assigned to Grantee by Grantor and under assigned Conditional Sales Contracts and notes, $44,789.33 of such indebtedness being immediately due and payable on demand and the balance thereOf coming due and payable as installments of the debts created and secured by the assigned notes and Conditional Sales Contracts making up such balance come due, all of which will be due and payable less than five years from date, and any and all other indebtedness now or hereafter owed by Grantor to Grantee."
The security deeds did not indicate all the debt is due in less than 30 months, but, on the contrary, state that all of it will be due and payable less than five years from date which clearly indicates a long-term note or notes, as. some of the debt can be paid over three years from date without being delinquent.
In my official opinion of March 4, 1955, to you, (Opinions of the Attorney General, 1954-56 page 773), I pointed out that the tax is due on the entire amount of the, loan whether it is evidenced by one note or a series of notes, some of which mature within a three year period. In other words, if any of the debt is repayable more than three years from date, all the debt is a long-term debt and subject to the rates applicable thereto. The deeds to secure debt indicate a long-term debt and the tax will be computed on the basis of the information contained therein.
TAXATION-.Intangibles Tax
Procedure to be followed when paying intangibles tax under protest discussed.
July 26, 1960
Mr. Dixon Oxford, State Revenue Commissioner
This is in reply to your letter in which you request my official opm10n as to the authority of the State Revenue Commissioner to authorize a refund of a tax collected under Section 4 of the Intangibles Tax Act of 1953 (Ga. Lawsr 1953, Nov.-Dec. Sess., pp. 379, 383; Ga. Code Ann. 92-164), popularly known as the "recording tax" on long-term real estate notes, when such tax was paid voluntarily and without compulsion, and in ignorance or under a mistake of law or fact.

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Code Section 2.0-1007 provides:
"Payments of taxes ... 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 neces,sity 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."
Code Section 92-8436, which authorizes a refund procedure, whether paid voluntarily or involuntarily, applies only to taxes paid to the State and has no application to the "recording tax". The "recording tax" is paid to the county tax collector who at least monthly is required to distribute it amongst various local taxing districts in the manner required by law. (Ga. Code Ann. 92-146, et seq.) Because of this required distribution, the county tax collector usually does not retain the payment, and the law does not require him to make a refund of a payment which has been distributed in accordance with law.
In this situation a person who honestly thinks he is not subject to the "recording tax" has no way of litigating his obligation except to withhold payment and wait for the "urgent and immediate necessity" required under Code Section 20-1007. For a person concerned with a prompt and unquestionable recordation of his, security instrument this is not a reasonable solution. To meet this situation the Act approved March 9, 1956, was enacted (Ga. Laws 1956, pp. 720-723). Its purpose is to provide a way for a person to pay the tax for purposes of getting a prompt and unquestionable recordation of his security instrument, yet not pay the tax for purposes of distribution to the various local taxing districts,, so that the payment could be available for refund upon an administrative or judicial decision that there is no liability. The 1956 Act (Ga. Code Ann., 92-178.2) is available as a remedy only when its provisions are complied with as they are specifically calculated to suspend the distribution of tax payments to the various local taxing districts, and keep the entire payment intact in the event the claimed refund is determined to be legally due.
Accordingly, it is my opinion that the 1956 Act is, not available to a person who pays this tax without at the time filing a written protest and within thirty days filing with the State Revenue Commissioner a claim for the refund of the payment. The State Revenue Commissioner has no authority to act on a claim for refund filed under any other circumstances than those prescribed in the 1956 Act.
You ask what is the remedy of the taxpayer who has paid such tax to his local tax collector voluntarily, without compulsion, in ignorance or under a mistake of law or fact? In this connection Code Section 92-3812 must be given consideration. This section provides:
"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."
By an Act of 1958 (Ga. Laws 1958, pp. 219, 220; Ga. Code Ann., 92-6502) the following provision was, enacted, supplementing Code Section 92-3812:

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"In all cases where county commissioners or other county authorities, pursuant to the provisions of Section 92-3812 have authorized the tax collector or tax commissioner of the county to credit or refund any overpayment of property taxes in cases where the taxpayer has been overtaxed or has claimed that the tax should be credited or refunded, such authorization ... shall be authority to credit or refund the appropriate amount of the State and county school tax represented in such overpayment, and, in the case of refunds, he shall deduct such amounts from his next distribution to the State and county school boards, respectively."
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 authority to compromise a valid claim for taxes.
In my opinion, there is, nothing in Code Section 92-3812 to indicate that a taxpayer is thereby given any legal rights to a refund beyond those otherwise authorized by law; indeed, it appears to provide only a method for obtaining a refund to the extent that the law otherwise authorizes a refund. Under this view of the matter, Code Section 92-3812 can only serve to supplement Code Section 20-1007 in those cases where taxes were paid under circumstances of "urgent and immediate necessity".
In Harrison v. Southern Railway Co., supra, Judge Bell seems to have wondered about the purpose of Code Section 92-3812. He suggested that it, perhaps, was a means for obtaining a correction of clerical errors and mistakes caused by the taxing authorities; it does not appear to contemplate any suit for refund but appears to make the county governing authority the sole judge of whatever corrections are authorized to be made thereunder.
Whatever may be the extent of relief authorized under this section, it is subject to Code Section 23-1602 which provides:
"All claims against counties must be presented within twelve months after they accrue or become payable. . .. "
This was applied to county taxes in Atlantic Coast Line Co. v. Mitchell County, 36 Ga. App. 47.
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 (Ga. Code Ann., 92-6502) to permit the governing authority of the county also to make corrections with regard to the county school tax and also the State levy.
In conclusion, it is my opinion that the State Revenue Commissioner has no function in authorizing refunds of intangibles taxes except as' to the "recording tax" on long-term real estate notes, and in this area he can exercise his authority only when the 1956 Act has been fully complied with. As to any other remedy available to a taxpayer who has paid the "recording tax" voluntarily, without compulsion, in ignorance or under mistake of law or fact, if any exists at all, it must be under Code Section 92-3812, as limited by Code Section 23-1602, and
whether such taxpayer is entitled to relief under Code Section 92-3812 is: a question to be addressed to the county governing authority and his, or their,
legal consultants.

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TAXATION-Intangibles Tax (Unofficial)

Puerto Rican Bonds are not subject to the Georgia intangibles tax.

Mr. James F. Milhous

February 2, 1960

This is in reply to your letter in which you inquire as to whether or not Puerto Rican Bonds are subject to the Georgia intangible property taxes.

Bonds' issued by the Government of Puerto Rico are not subject to the Georgia intangible property tax. This opinion is based upon U.S.C.A. Vol. 50, Stat. 884, Chapter 831, Section 3, which contains the following language:

"All bonds issued by the Government of Puerto Rico or its authority shall be exempt from taxation by the Government of the United States or by the Government of Puerto Rico, or by any political or municipal sub-division thereof, or by any State or by any County, municipality or other municipal sub-division of any State or territory of the United States, or by the District of Columbia."

TAXATION-Intangibles Tax (Unofficial)
Unless paid under protest, there is' no prov1s10n in law for return or refund of intangible tax though collected in error.
June 27, 1960
Honorable Standish Thompson
This is in reply to your letter in which you inquire about a request for a refund of $45, same being the amount of intangible taxes paid on a loan made by a bank in the amount of $15,000.
The Supreme court in the case of Washington Loan and Bank Co. v. Golucke, Clerk, 212 Ga. 98 held that banks in the State of Georgia were not subject to the payment of an ad valorem recording fee for the recording of a deed to real estate securing notes having a maturity date in excess of three years,.
However, it does not appear from the letter that a protest was filed at the time the taxes in question were paid. If this is true, there is no provision of law whereby a refund can be made on the taxes in question.
Prior to amendment of March 9, 1956, Ga. Laws 1956, page 720, there was no provision of law providing for a refund of intangible taxes, paid under a misapprehension of the law. The amendment of 1956 provided a method whereby the refund could be made if taxes were paid under protest.

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TAXATION-Intangibles Tax (Unofficial)
Procedure for securing refund discussed.
September 12, 1961
Mr. C. G. Campbell
This is in response to your letter requesting an official legal opinion on the following questions:
"(1) Where, after the filing of an Intangible Property Tax Return showing ownership on Janua.ry 1, 1961, of various items' of intangible personal property, including shares of stock in several corporations, it is made to appear that, through fraud perpetrated by the taxpayer's stockbroker, the taxpayer never, as a matter of fact, owned such shares, may the taxpayer be relieved of paying the intangible tax on such shares for the year 1961 ?
"(2) May the taxpayer recover the taxes paid for the years 1953-60, inclusive, under the mistaken belief that he owned such shares?"
Section 10 of the Act of 1937 (Ga. Laws 1937-38, Extra Session, p. 156, et seq.), as amended, an Act to classify and levy a tax on intangible personal property, places the duty, among others, on the State Revenue Commissioner, as soon as' practicable after receiving the returns of the intangible personal property, of examining the returns and fixing the value of such property as can be centrally assessed; of certifying such valuations to the local tax official (County Tax Commissioner, or Tax Receiver) who is then required to enter them on the county tax digest; of notifying the taxpayer, at or h~fore certification, of such valuations; and, in the event of an error, of making a corrected certification any time before the tax has become delinquent. This Section also gives the taxpayer 15 days, after notice of the valuations fixed by the Commissioner, in which to make objections thereto.
Therefore, since the Commissioner, under the express terms of Section 10, is under a duty to place valuations on the property, as soon as practicable after the return is filed, and then is' empowered, in the event of error (whether brought to his attention by the taxpayer or by other means) to correct the same any time before the tax becomes delinquent, I am of the opinion that question (1) should be answered in the affirmative, provided the tax has not become delinquent.
With respect to question (2), Code Section 92-3812 provides:
"In all cases where a person has been overtaxed or claims for any reason that taxes s.hould 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."
Code Section 92-6502, as recently amended (Ga. Laws 1958, p. 219), extends the authority granted to the Ordinary or County Commissioners, as the case may be, under Section 92-3812, to State and County school taxes. It reads:
"In all cases where the county commiss,ioners or other county authorities, pursuant to the provisions Of 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

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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 such amounts from his next distribution to the State and county school boards, respectively."
Section 92-3812 was not intended to create new or additional right to a credit or refund, but was only intended to prescribe the procedure for obtaining those credits or refunds otherwise provided for under the law. However, it has never been the intention of the Legislature, insofar as I can ascertain, to require a taxpayer to pay taxes on property he does not own. Therefore, when the facts of ownership are not all known at the time payments are made, thereby excluding such payments from the provisions of Code Section 20-1007 relating to voluntary payments, the county commissioners are authorized to hear and grant claims for refund.
Such claims would have to be made within twelve months after the taxpayer discovered, or reasonably could have discovered, that he did not own the property, for these claims are subject to the limitation prescribed in Code Section 23-1602, which provides:
"All claims against counties must be pres.ented within twelve months after they accrue ol' become payable. . . . "
Since consent to be sued is not given in such cases, the county governing authority will be the sole judge as to whether a credit or refund should be made under the circumstances of this case.
Code Section 92-3812 makes no reference to city taxes; however, city governing authorities, in my opinion, can, by ordinance, provide for refunds of city taxes within the scope allowed county authorities under this Section.
TAXATION-Intangibles Tax
The reversionary interest held by a settlor of a trust is taxable.
March 23, 1960
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your interest for an official opinion concerning the taxability, intangible tax-wise, of common stocks held by a trustee in an irrevocable three-year trust for the benefit of a non-profit educational institution meeting the requirements of the Georgia tax exemption statutes and also the exemption provisions of the Federal Internal Revenue Code.
Code Section 92-130 reads, in part, as follows:
"There shall be exempt from taxation all intangible personal property owned or irrevocably held in trust for the exclusive benefit of religious, educational and charitable institutions, no part of the net profit of the operation of which can inure to the benefit of any private party."

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This provision was enacted pursuant to the constitutional authority prescribed in Article VII, Section I, Paragraph IV, of the Georgia Constitution (Ga. Code Ann. 2-5404).
Under this provision it is clear that the common stocks forming the trust corpus are exempt insofar as the ownership thereof by the trust is concerned.
However, the reversionary interest held by the settlor is not exempt by the foregoing authority. All property in this State is subject to taxation except that which is specifically exempted by statute pursuant to expressed constitutional authority. Suttles v. Northwestern Mutual Life Ins. Co., 193 Ga. 495, 515. Interests in land less than the fees are specifically dealt with as taxable under Code Section 92-104; however, in view of the comprehensive coverage of the property tax under the aforesaid authority, it must be taken to apply equally to other types of tangible property and also to intangible property. In Wood v. Ford, 3 Sou. 2d 490, the Supreme Court of Florida held that the Florida law, which is in substance similar in its scope to the Georgia law, subjects an equitable life interest in a non-resident trust to its intangible tax law. See, also, Commonwealth ex rei Martin v. Sutcliffe, 140 S. W. 2d 1028.
In my opinion, only the short-term interest in these common stocks irrevocably committed to the exempt use comes within the exemption authorized by the Constitution and under Code Section 92-130. The problem of the valuation of a reversionary interest is not such as to make the taxation thereof impractical. See 26 (Internal Revenue) C. F. R. 20.2031-7 (d) and (f), and 25.2512-5 (d) and (f), which provide actuarial tables for this purpose.
TAXATION-Intangibles Tax
A trust which only pays benefits to a charitable purpose after payment of benefits to individuals is not exempt from the Intangibles Tax.
June 15, 1961
Mr. C. G. Campbell
This is in reply to your letter enclosing a letter from Mr. B. M. Doster, Trust Officer, Trust Company of Georgia, and a copy of the will of Virgil P. Warren.
The inquiry is whether or not the trust referred to in Item 6 and Item 7 of the will is exempt from the intangible tax to any extent.
Item 6 sets up a trust from which the trustee shall pay certain specified sums annually to named individuals for life, but in the event the trust income is more than sufficient to pay the individual beneficiaries, the excess net income shall be paid to the Trust Company of Georgia as trustee for the Virgil P. Warren Foundation.
Item 7 provides that the trustees may in their discretion convey part of the assets comprising said trust set up in Item 6 to the Trust Company of Georgia as trustee of the Virgil P. Warren Foundation, and at the death of the last surviving beneficiary the assets of the said trust shall be conveyed to the Trust Company of Georgia as trustee of said Foundation.

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Georgia Code Section 92-201 provides that property exempt from taxation shall include:
" ... all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of, religious, educational and charitable institutions, no part of the net profit from the operation of which can inure to the benefit of any private person; ... " (Emphasis added.)
My conclusion is, that the trust set up in this will is not exempt from intangible tax to any extent whatsoever. To be exempt, the trust property must be held for the exclusive benefit of a religious, educational or charitable institution. Here the payment of any benefits by the trustee to the Foundation is contingent upon income in excess of that needed to pay the named individual beneficiaries.
Insofar as Item 7 is concerned, once any of the assets of the trust set up in the will are irrevocably transferred to the Foundation, they will enjoy the same tax privileges as the other assets of the Foundation, but until then assets are held primarily for the purpose of producing income to be paid to the individual beneficiaries named in the will.
TAXATION-Levies (Unofficial)
State agencies and officers. are subject to service of Notice of Levy for taxes due by the Federal Government.
December 1, 1960
Mr. L. R. Siebert
I wish to acknowledge your letter enclosing copy of a letter from Mr. J. R. Anthony, Controller of Georgia Institute of Technology, together with Notice of Levy for taxes due the Federal Government by his employee. Notice of Levy was served on Mr. Anthony on November 23, 1960.
The effect of this Notice of Levy is to impress a lien on any money or property in the possession of the Georgia Institute of Technology owing to or belonging to William H. Wade. There are no authorized exemptions or deductions provided for in the assertion in this lien by the Federal Government.
You refer in your letter to a policy of the Board of Regents not to accept a Notice of Levy for taxes owed to the Federal Government, but I wish to call your attention to a decision of the United States Supreme Court, decided on March 23, 1959, entitled Sims v. United States of America, 359 U. S. 108, 3 L. Ed. (2nd) 667, which holds that agencies and officers of State governments are subject to service of Notice of Levy by the Federal Government for taxes, and that unless such notices of levy are obeyed and complied with by a State or State agency, the officer upon whom the levy was served is personally liable.
I am returning the Notice of Levy to Mr. Anthony, and wish to advise him that it must be acknowledged, respected, obeyed and responded to by the Georgia Institute of Technology by withholding the necessary sum of money from the salary due the employee and paying the same over to the United States Treasurer, Department of Internal Revenue Service.

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TAXATION-Liability (Unofficial) A person's tax liability is not discharged by bankruptcy proceedings. February 12, 1960
Mr. Ralph E. Waters This is in reply to your letter in which you state: "Please give me your opinion as to the status and payment of a person's State and County taxes, who has gone into Bankruptcy. Would a person in this category be liable for the full amount of taxes?" Taxes are not dischargeable, in bankruptcy. Title 11, U.S.C.A., Section 35,
contains the following provision: "(a) A discharge in bankruptcy shall release a bankrupt from all
of his provable debts, whether allowable in full or in part, except such as (1) are due as a tax levied by the United States, or any State, county, district, or municipality; ..." (Emphasis added.)
TAXATION-Liens (Unofficial) Owner of property may not pay portion of tax and thus obtain release
of a portion of property covered by lien. February 21, 1961
Mr. Fred Webb Under a recent decision of the Supreme Court in Brown v. Nash, Tax Com-
missioner, 216 Ga. 302, Code Section 92-5712 does not give an owner or purchaser of property the right to pay only a portion of a tax bill and thereby obtain a release of a portion of the property covered thereby from the property tax lien which attaches on January 1 to all property of the owner on that date. The rule is that on January 1 a lien attaches to each piece of property for its own taxes and also for all taxes on all other property owned by its owner on that date and, except for Code Section 92-5712, this lien remains until the total tax bill is paid.
TAXATION-Liens (Unofficial) Priority of tax liens, discussed. April 19, 1961
Mr. Emory A. Schwall Your letter regarding the priority of a sales and use tax execution over
unrecorded conditional sales contract has been referred to me for consideration. I have been advised that Sales and Use Tax Fi. Fa. No. 61-187 issued against
a named taxpayer was recorded in General Execution Docket in the office of the

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Clerk of Superior Court on February 17, 1961. This fact, coupled with the facts contained in your letter, raise this question: Is an unrecorded conditional sales contract superior to a duly recorded execution for sales and use taxes owed by the conditional vendee?
Having reviewed the applicable statutory provisions and cases construing them, I am of the opinion that it should be answered in the negative.
The words "liens . . . taxes" used in Georgia Code Annotated 92-5707, 92-5708 (Civil Code 1926 1140, 3333) and 92-8444 have been broadly construed by the Supreme Court. In Atlanta Trust Company, Trustee v. Atlanta Realty Corporation, 177 Ga. 581, the Court held that they were "broad and sufficient to include taxes, provided by subsequent statute, for support of the State and counties and municipal corporations located in the State, that are not ad valorem or based on property", citing the earlier case of City of Brunswick v. Gordon Realty Co., 163 Ga. 636, which brought municipal paving assessments within the meaning of the phrase. These same words were recently construed to include sales and use taxes. Williams v. General Finance Corp., 98 Ga. App. 31.
While tax liens are created by operation of law, prior to passage of the Act of 1953 (Ga. Laws 1953, Nov. Sess., p. 168), amending 92-5707, 92-5708 and 92-8444, they were considered to be superior to a security deed, Belser v. Puckett, 179 Ga. 249; even though the deed was recorded and even though the liens were for taxes not directly on the specific property covered by the deed, Phoenix Insurance Co. v. Appling County, 164 Ga. 861; Atlanta Trust Company v. Atlanta Realty Corp., supra.
The aforesaid amendment had as its purpose the protection of the holder of a recorded security instrument against all tax liens except those for taxes directly upon the stJecific property covered by that instrument. It specifically provides that, "as to specific or occupation taxes, the lien is subordinated only where the security instrument has been recorded prior to the time the tax lien is placed on the execution docket." Williams v. General Finance Corp., supra.
A consideration of Associates Discount Corporation v. Willard, 99 Ga. App. 116, the Act of 1957 (Ga. Laws 1957, p. 167), which amended Georgia Code Annotated 67-1403. Evans Motors of Georgia, Inc. v. Hearn, 53 Ga. App. 703, and the many decisions following the Evans case, leads me to the conclusion that the Act of 1957 was passed to place unrecorded conditional sales contracts on a par with unrecorded mortgages, unrecorded bills of sale to secure debt and unrecorded deeds to secure debt.
The Evans case held that the Act of August 27, 1931 (Ga. Laws 1931, p. 153; Ga. Code Ann. 67-109, 67-1305), providing that the effect of a failure to record a mortgage or bill of sale or deed to secure debt "shall be the same as is the effect of failure to record a deed of bargain and sale", so changes the prior law with reference to those securities as to render such instruments superior in rank to subsequent liens created by law.
You might note that the Belser case, involving the successful assertion of the superiority of a tax lien to a deed to secure debt, was decided by the Georgia Supreme Court after the Act of 1931 was adopted.

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TAXATION-Liens (Unofficial)
Property belonging to a taxpayer is subject to liens for taxes.
April 13, 1960
Mr. Reuben Scruggs
This is in reply to your recent letter in which you inquire as to what property of a taxpayer is subject to the lien for taxes.
Your question is answered in Code Section 92-5708, which is as follows:
"Liens for taxes, whether ad valorem, specific, or occupation, due the State, any county thereof, or municipal corporation therein, shall cover the property of taxpayers liable to tax, from the time fixed by law for valuation of the same in each year until such taxes are paid, and the property of tax collectors and their sureties from the time of giving bond until all taxes for which they are responsible shall be paid. Such liens for taxes are hereby declared superior to all other liens, except that the title and operation of a security deed shall be superior to the lien for taxes assessed against the owner of property when such lien for taxes represents an assessment upon property of such owner other than that property specifically covered by the title and operation of the security deed, and shall rank among themselves as follows: First, taxes due the State; second, taxes due the counties of the State; third, taxes due to municipal corporations of the State."
TAXATION-Liens (Unofficial)
Fees for the release of property from tax liens discussed.
August 29, 1961
Mr. C. G. Campbell This is in reply to your request for an opinion regarding the application of
the fees for the release of property from tax liens as provided for in Sections 92-5712 and 92-5713 of the Georgia Code.
Section 92-5713 of the Code applies only to owners of real property and transferees of real property acquiring title between the date on which the tax lien vests and the date on which the tax evidenced by such lien becomes due and payable. The release of real property under this Section carries a fee of $2.00.
Section 92-5713 has no application to personal property, and Section 92-5712 of the Code continues effective as to personal property and any interests in or on real property except title thereto. Any release of property under Section 92-5712 continues to carry a fee of $0.50.

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TAXATION-Liens (Unofficial)
When grantor in security deed may obtain release from general tax lien.
April 18, 1961
Mr. Elmer E. Holley
This is in reply to your letter asking for my view concerning the right of a grantee in a security deed to pay that portion of a grantor's property tax bill attributable to the ownership of the property described in the deed and to obta.in a release of the described property from the general tax lien which applies to all property of the grantor for all unpaid taxes.
Code Section 92-5708 provides that the title and operation of a security deed is superior to the lien for taxes assessed against the owner of a property when such lien represents an assessment upon property other than that property specifically covered by the title and operation of the security deed. Thereafter, under Code Section 92-5712, the grantor in the security deed has a right to the release of the described property from the general tax lien by paying the taxes attributable to and owed by the described property. Aldridge v. Federal Land Bank, 203 Ga. 285. The only exception to this is with respect to taxes for the year during which the security deed was placed against the property. See Brown v. Nash, 216 Ga. 302.
TAXATION-Motor Fuel Tax (Unofficial)
Motor buses operated by the Atlanta Transit System, Inc. are required to register under the Motor Fuel T'ax Act.
April 28, 1960
Mr. Harry V. Lamon, Jr.
This is in reply to your letter to Revenue Commissioner Oxford in which you request an unofficial opinion as to whether or not motor buses operated by the Atlanta Transit System, Inc. are required to register under Section 11 of the Motor Carriers - Fuel Tax Act, approved June 22, 1955 (Ga. Laws 1955, June Extraordinary Session, page 9).
Section 1 of the Motor Carriers - Fuel Tax Act of 1955 contains the following provision:
"Definitions.... Whenever used in this Act, the term 'motor carrier' means every person, firm or corporation who operates or causes to be operated on any highway in this State any passenger vehicle, other than public school bus.es, that has seats for more than seven passengers in addition to the driver. . . . "
This definition, in my opinion, includes motor buses operated by the Atlanta Transit System, Inc. The purpose of Section 11, requiring the registration of motor carriers, is to make provision whereby every motor carrier, as defined in the Act, can be audited to determine whether or not any tax is due the State under the Act. The Act in question requires all motor carriers, as defined therein, to be registered.

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The unofficial opinion rendered to you on April 8, 1960, wherein the opinion was expressed that trackless trolleys were not required to be registered, contained the following language: "This conclusion is based upon the fact that trackless trolleys do not use motor fuel but are operated by electricity." Therefore, the conclusion reached in the opinion on trackless trolleys would not be applicable in the case of motor carriers which use motor fuel.
TAXATION-Motor Fuel Tax
When a gasoline distributor .makes delivery to a dealer, the motor fuel tax becomes due irrespective of whether the delivery is "on consignment" or whether dealer is a purchaser or bailee-agent.
March 7, 1961
Mr. John W. Bearden
This is in reply to your letter of February 8, 1961, in which you request an official opinion under the Motor Fuel Tax Law, as amended (Ga. Code Ann. 92-14), whether a distributor, when he sells gasoline "on consignment," is liable for the motor fuel tax imposed thereunder as of the time he makes delivery of gasoline to a dealer, or as of the time the dealer sells such gasoline to a consumer.
Code Section 92-1403 imposes this tax on the distributor "upon the sale "
of the gasoline. Code Section 92-1402(I) defines "sale" as follows:
"(I) 'Sale' shall mean and include any exchange, gift, or other disposition. . . . "
It should be noted from this that the taxable event is not limited to what is strictly a sale and, indeed, the impression "or other disposition" indicates that a liberal view should be taken as to what constitutes the taxable event.
In commercial law, the fact that goods are sold "on consignment" is equivocal; it may involve a bailment and agency or it may involve a form of sale on conditions. Many such transactions involve elements of both, and it becomes a rather complex and difficult question of contract interpretation as to what the transaction really is. See National Bank of Augusta v. Goodyear, 90 Ga. 711, 723-730; Snelling v. Arbuckle, 104 Ga. 362, 365-376; Furst Brothers v. Commercial Bank, 117 Ga. 472; McKenzie v. Roper Wholesale Grocery Co., 9 Ga. App. 185; Federal Rubber Co. v. King, 12 Ga. App. 261; Whitaker v. Poden, 78 Ga. App. 145; Long Tobacco Harvesting Co., Inc. v. Brannen, et al, 98 Ga. 142.
Obviously, to make the taxable event of the motor fuels tax, or any tax,
depend upon the legal interpretation of a contract between the parties under these
rules of commercial law would be a resort to the purposes underlying commercial
law, ignoring the purposes of the tax law involved, and would inject into the administration of the tax law an obstacle that would hamstring its enforcement for no good reason. In my opinion, when the General Assembly added the phrase "or other disposition" it meant to eliminate these fine legal distinctions and to include in the definition of the taxable event any delivery made by the distributor to a dealer in the course of distributing gasoline.

534
Accordingly, it is my opmwn that when a gasoline distributor makes a delivery of gasoline to a dealer the motor fuels tax thereupon becomes due irrespective of the fact that the delivery is "on consignment" and irrespective of whether the dealer is a purchaser or bailee-agent.
TAXATION-Motor Fuel Tax (Unofficial)
"Gas tax sticker" is required as evidence of registration under the Highway Use Tax Act of 1955.
April 25, 1961 Mr. J. L. McBath
This is in reply to your letter concerning the "gas tax sticker." The "gas tax sticker" to which you refer is required to evidence registration under the Highway Use T'ax Act of 1955 (Ga. Laws 1955, E'xtra Session, p. 9; Ga. Code Ann. 92-1401a). This registration is required of all "road tractors, tractor trucks and trucks having more than two axles" which operate on the highways of this State, irrespective of whether such vehicles are farm vehicles or not. Therefore, if your 1949 Ford 2-ton truck has only two axles, and is not used to pull a trailer, this "gas tax sticker" is not required. If your truck has a third axle or is used to pull a trailer, then you should apply to the Motor Fuel T'ax Unit, Revenue Department, State of Georgia, State Office Building, Atlanta, Georgia, for information and registration.
TAXATION-Motor Fuel Tax
State agency may be required to become licensed as a motor fuel distributor when it makes taxable use of portion of fuel purchased.
August 28, 1961 Mr. J. M. Forrester, Director State Board of Corrections
This is in response to your letter wherein you inquire whether the State Board of Corrections can be required to become licensed as a motor fuel distributor because the Board makes a taxable use of only a small portion of the diesel fuel it purchases, i.e., to propel motor vehicles on the public highways.
Where there is a taxable use of motor fuel by the State of Georgia or any political subdivision thereof, the State, or the political subdivision, is required to pay the motor fuel tax imposed under Chapter 92-14, Georgia Code Annotated There is no exemption in the Chapter for the State or a political subdivision. The case of Sloan v. Polk County, 70 Ga. App. 707, seems to settle that question.

535
As you probably know, a problem arises when a distributor of motor fuel sells a fuel, such as diesel fuel, that is susceptible of both taxable and non-taxable uses. The diesel fuel distributor, when he makes a sale to a customer wb'o usually makes both a taxable and non-taxable use thereof, is not in a position to know what amount of the fuel sold will be put to a taxable use and what amount will be put to a non-taxable use. Under these circumstances, in my opinion, Georgia Code Section 92-1403(C) comes into play, as such a condition precludes the distributor making the sale from collecting the tax unless, in order to protect himself, he collects the tax on all the diesel fuel sold regardless of the use made thereof by the purchaser.
Section 92-1403(C) provides, in part:
"Persons considered distributors. - Any person who shall receive motor fuel and/or kerosene, in such form and under such circumstances as shall preclude the collection of the tax provided for in this Chapter from the distributor, and shall thereafter sell, use or consume, or dispose of in any manner and/or under such circumstances as shall render such disposition subject to said taxes, shall be considered as a distributor for purposes of taxation, and shall make the same reports, pay the same taxes, and be subject to all other provisions of this Chapter relating to distributors of such fuels. . . . "
Thus, a person purchasing under the circumstances therein mentioned is a distributor for purposes of taxation and shall be subject to all provisions of the Chapter relating to distributors.
One of these provisions is that a distributor shall be licensed. Georgia Code Annotated 92-1405(A). The State Revenue Commissioner has waived the bond provisions of Chapter 92-14 where licenses are obtained by a department of the State, any city, county or political subdivision thereof.
In my opinion, therefore, the Commissioner, through the promulgation of Executive Order No. 60-16, has not exceeded his authority under the law in requiring that the State Board of Corrections apply for a license and make the reports required of a motor fuel distributor where it purchases diesel fuel for both taxable and non-taxable uses.
TAXATION-Motor Fuel Tax (Unofficial)
Fuel sold to the United States is exempt.
August 15, 1961
Mr. P. J. Menardi
This is in response to your letter requesting information concerning the Motor Fuel Tax Law.
I regret that we do not have a pamphlet publication of the Georgia Motor Fuel Tax Law to send you. It is found in Chapter 92-14, Georgia Code Annotated.
There is a specific exemption from this tax on sales to the United States Government. It is found in Code Section 92-1403 (D) (3), and it reads as follows:

536
"The sale of motor fuel and/or kerosene to the United States of America, when said motor fuel and/or kerosene shall be purchased and paid for by the United States of America."
The State does require a tax exemption certificate. to be issued to the vendor on each purchase, and the vendor must send the certificate to the Georgia Department of Revenue, along with the required reports, in lieu of the tax payment that would have been made had the sale not been exempt.
TAXATION~Motor F'uel Tax
When distributor who also operates own retail outlet is liable for motor fuel tax discussed.
March 8, 1961
Mr. John W. Bearden
This is in reply to your letter in which you request an opmwn, under the Motor Fuel Tax Law, as amended (Ga. Code Ann. 92-14), whether a distributor, who also operates his own retail outlet, is liable for the motor fuel tax at the time he makes a delivery of gasoline from his bulk plant to his retail tank, or at the time, as a dealer, he sells such gasoline from his retail tank to a purchaser.
Code Section 92-1403 imposes this tax on the distributor "upon the sale" of the motor fuel. Code Section 92-1402(1) defines "sale" as follows:
"(I) 'Sale' shall mean and include any exchange, gift, or other disposition. . . . "
In my opinion, the transfer of gasoline from a bulk plant tank to a retail tank, where the distributor is operating both businesses, is not a disposition within the definition of "sale" and, hence, the tax accrues when the gasoline is sold from his retail tank to a purchaser.
In this connection, your attention is called to the proviso to the appropriation of monies for the purpose of paying the 2% refund to retail dealers authorized under Code Section 92-1407(E). In the 1956 General Appropriations Act (Ga. Laws 1956, pp. 753, 776) this proviso reads as follows:
"No wholesale distributor of gasoline shall be entitled to a refund covering shrinkage in the process of retailing gasoline as authorized by Act of Georgia General Assembly of 1947 (Ga. L. 1947, p. 1115) by virtue of said wholesale distributor being engaged in retailing gasoline."
This proviso is also included in the 1961 General Appropriations Act.
Accordingly, so long as this proviso is in effect, although a distributor who operates his own retail outlet does not become liable for the motor fuel tax until there is a sale from his retail outlet, such distributor is not entitled to the 2% refund otherwise authorized to retail dealers under Code Section 92-1407(E).

537
TAXATION-Municipal Corporations (Unofficial)
An ad valorem tax not exceeding five mills exclusive of all other taxes may be levied by municipal corporations for contracts with hospital authorities.
November 10, 1960
Mr. C. C. Bunn
This is in reply to your letter in which you request my opinion as to whether the City of Cedartown is authorized to levy a tax of 5 mills for the purpose of providing medical or hospital care for their indigent sick and poor of the County when the levy of said 5 mills would exceed the 22-"h mill limitation for taxation provided in the City Charter of Cedartown.
Code Section 99-1512 contains the following provision:
"For the purpose of providing such tax revenues there is hereby authorized to be levied an ad valorem tax not exceeding five mills exclusive of all other taxes which may be levied by counties or cities or towns which have executed contracts with hospital authorities.... "
This is a general law and the effect of this law is, to give all cities or towns the right to levy the tax provided therein, in addition to other taxes which said cities or towns may be authorized to levy under their charter. There is no Appellate Court decision construing this particular Code Section.
TAXATION-Professional Tax (Unofficial)
Levy of a professional tax by a municipal corporation is restricted to the principal place of business.
January 26, 1960
Mr. W. Elmer George
This is in reply to your letter concerning the levy of a tax on the practice of professions. 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 92-19017. 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 counties. It was this situation that brought about the passage of the Act of 1953, as is set forth in Code Section 92-307 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

538
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 professions 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.

TAXATION-Records

It is not a violation of law for the Department of Revenue to deliver income tax returns to Remington-Rand for processing of the information onto punch cards if certain restrictions are followed.

Mr. Fielding L. Dillard

August 30, 1960

In your letter you state:

"I would appreciate your advice relative to secrecy proviSIOns of Section 92-3216 of the Code and related Sections 92-8414 and 92-9914. The advice desired concerns a contract for punching cards covering income tax returns for the year 1959, the said work to be performed by the Univac Service Center of Remington-Rand. In the processing of this work it will be necessary for this unit to deliver to Remington-Rand at their office approximately 200,000 non-taxable returns. There will be an employee of this unit with the returns at all times during working hours. The returns will, of course, be stored overnight at Remington's office.

"The only information that will be punched into the card from the returns will be names and addresses of taxpayers and certain code figures indicating the county of each taxpayer and the serial number of the return assigned to it by this office. The Remington employee will not be authorized to inspect the returns otherwise or to in any way record particulars of income or deductions. Naturally, nothing will prevent a Remington operator from glancing at income figures because she will have the return in her hands.

"Having Remington process these returns for us is of great importance inasmuch as we presently do not have enough time remaining before the information to be thus obtained will have to be on hand.

"The question then is may we deliver the returns to Remington-Rand in the manner described and is it a violation of the said Sections to have

539
this clerical processing done by persons who are not employees. of the State Revenue Department?"
The proposed contract to have Remington-Rand punch cards on income tax returns for the year 1959 does not, in my opinion, violate Code Section 92-3216 or Code Section 92-8414.
The purpose of these two Code Sections was to encourage taxpayers to make a full disclosure of their income and also to protect taxpayers in any confidential information with reference to their business which was essential to divulge in the making of an income tax return. Doubtless, it was also the Legislative intent to relieve the Department of Revenue from furnishing information concerning a taxpayer's income tax return.
The employment of Remington-Rand to perform the services outlined in your letter under the direct supervision of an employee of the Department of Revenue is not furnishing information to them or their employees. The information they compile in punching the cards is rendering a service to the Department of Revenue. The card after it has been completed will be the property of the Department of Revenue. Under no circumstances should Remington-Rand be permitted to retain copies of the cards punched or any information contained in the tax returns from which the cards are punched. The service rendered by this company is a service which is necessary in the administration of the income tax laws and can be more economically and efficiently done in the manner specified in your letter than it could be done by the State employing the number of card punchers. necessary to carry on the proposed operation.
It will be, of course, necessary for the returns which are being processed under this contract to be in custody of an employee of the Department of Revenue, and after working hours, if the returns are to remain in the offices of RemingtonRand pending the completion of the work, it will be necessary for the employee who maintains custody of the returns to place them under seal during the period in which they are not being used in the operation of the punch cards.
TAXATION-Re-evaluation
The tax assessors in each county may, with approval of county commissioners, enter into contracts for re-evaluation of taxable properties in the county.
April 25, 1961
Honorable S. Ernest Vandiver Governor of Georgia
This is in reply to your letter in which you request my opinion whether a County Board of Commissioners of Roads and Revenues may employ persons or concerns for the purpose of studying tax re-evaluations, or whether such persons or concern would have to be employed by the Board of Tax Assessors in a County.
Code Section 92-6910, as amended, Georgia Laws 1953, pages 189-190, provides:
"... The county boards of tax assessors in each county may, subject

540
to the approval of the board of county commissioners, county commissioner or other governing authority of such county, enter into contracts with firms, individuals, or corporations for the employment of such persons to assist the said boards in the mapping, platting, cataloging, indexing and appraising of taxable properties in the county, and to make, subject to the approval of such boards of assessors, re-evaluations of taxable property and to search out and apprais.e unreturned properties in such counties, or to purchase such information from any municipality or political subdivision of the State of Georgia. The expense of such employees and said work shall be paid, subject to the contracts, first approved by the county governing authority, out of county funds as a part of the expense of the said boards."
TAXATION-Refunds (Unofficial) Payment of tax under protest does not constitute a claim for refund. April 21, 1960
Mr. James G. Wright
In response to your letter, I advise that the payment of a tax under protest does not of itself constitute a claim for refund. Under Code Section 92-8436 after payment of a tax, whether under protest or not, the taxpayer can file a claim for the refund thereof, but this claim must be filed within three years after the date of payment.
TAXATION-Returns (Unofficial) A penalty may be imposed for failure to file tax returns on property by
s.pecified time. May 4, 1960
Mr. J. W. Andrews This is in reply to your letter in which you state:
"The Board of Tax Equalizers is confronted with the problem that each year more people are failing to file a tax return in Crawford County. It would seem that some steps could be taken to awaken people to the fact that it is necessary to file their returns within the specified time.
Please inform us if it would be within our jurisdiction to deny personal or homestead exemption or both. Also, in cases where no exemption would be allowed as in the case of automobiles, would it be legal for the Board to penalize the delinquent. If so, what is the fair penalty?" Code Section 92-6913 in defining the duty of the Board of Tax Assessors contains the following provision:

541
"In all cases where unreturned property is assessed by the board after the time provided by law for making tax returns has expired, the ooard shall add to the amount of State and county taxes due a penalty of 10 per cent, except that if the principal sum of the tax so assessed is less than $10 in amount, the board shall add to the amount of State and county taxes a penalty of $1."
The imposition of this 10 per cent penalty for the failure to file tax returns should certainly help with your problem.
It is not within jurisdiction of the Board of Tax Assessors to deny homestead exemption on real property upon the failure of the taxpayer to file a tax return, since the homestead exemption law provides for the automatic renewal of the homestead exemption so long as the home is continuously owned and occupied as a resident by the applicant. The law does not provide for an automatic renewal of the homestead exemption on personal property.
TAXATJON_,Rolling Stores (Unofficial)
Taxes due under the Rolling Store Act discussed.
February 2, 1960
Mrs. B. J. Olliff
This is in reply to your letter in which you state that you and your husband operate a one-half ton pickup truck from which you sell fruits and vegetables. You inquire as to the amount of taxes due the State and the counties in which you operate.
The Rolling Store Act provides in Code Section 92-2950:
* * *
"One-half ton (manufacturer's rated capacity) truck or passengercarrying vehicle, not exceeding five passenger capacity, $12.50 per year or any fraction thereof."
* *
Code Section 92-2960 provides that any county in which the vehicle is operated may charge a license fee up to but not exceeding the .license fee charged by the State. This section is as follows:
"Any county may levy a license tax upon each rolling store, operating within the county levying the same, a license fee or tax not exceeding the tax prescribed by this law ( 92-2.950 to 92-2960) for the State. It is the legislative intent that such counties may or may not levy such tax, as herein provided, at the discretion of the county authorities in each county."
The meaning of these two sections of the Rolling Store Act is that in your case, where you operate a one-half ton pickup truck, you would be liable for a State annual license fee of $12.50, and also a county license fee of $12.50 in each of the counties where you operate.

542
TAXATION-Sales and Use Tax (Unofficial)
Appeals to Revenue Commissioner from assessments under Sales and Use Tax law discussed.
March 16, 1960
Mr. Carl M. Hair
This is in reply to your letter concerning the procedure to he taken in making an appeal from an assessment of the State Revenue Commissioner.
The last paragraph of Section 19 of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Code Ann., 92-3434a) provides:
"Upon any claim of illegal assessment and collection the taxpayer shall have his remedy under the Code of Georgia, Section 92-8445, et seq., and also shall be allowed to file claims for refund in the manner authorized by the general law."
Code Section 92-8445, et seq., provides for an appeal to the superior court by a taxpayer dissatisfied with an assessment made by the State Revenue Commissioner. It is not required in the Georgia Retailers' and Consumers' Sales and Use Tax Act that a taxpayer be notified of a proposed assessment and allowed to file a protest before an assessment of the Commissioner becomes final. Farr v. Williams, 214 Ga. 525.
When an assessment is made, the taxpayer has two choices: (1) File an appeal under Code Section 92-8446, or (2) pay the tax and follow the refund procedure prescribed in Code Section 92-8436.
A taxpayer wishing to file an appeal does so by filing with the State Revenue Commissioner within 15 days from the date of assessment a statement of his ~xceptions to the assessment. If a taxpayer does not file his appeal within the 15 day period, his only recourse is to pay the tax and follow the refund procedure, unless as a matter of informal conferencing he can convince the Commissioner that all or a part of the assessment is incorrect.
As applied to the facts stated in your letter, the time for filing an appeal from an assessment dated May 15, 1959, expired on May 30, 1959. Since this was not done, your only recourse is to pay the tax and follow the refund procedure unless you can convince the Commissioner that the assessment is to some extent incorrect.
TAXATION-Sales and Use Tax (Unofficial)
Applicable to any transaction in which delivery of possession is made in this State though originally in interstate commerce.
November 16, 1961
Mr. Donn L. Odom
This is in reply to your letter concerning the consequences, under the Georgia Retailers' and Consumers' Sales and Use Tax Act, of the following transactions:

543
"1. Sinclair's New York Purchasing Department places an order for a tractor with either (a) Mack Trucks, Inc., of New York City, or (b) Atlanta office of Mack Trucks, Inc., delivery f.o.b. Tampa, Florida, with shipping instructions providing, among other things, that the unit ordered be dropped off at Mack's branch in Atlanta where it will be picked up by personnel of Sinclair's Atlanta terminal for installation of used accessory equipment as indicated above and thereafter returned to Mack in Atlanta for delivery by Mack or a licensed carrier to Sil}:clair at Tampa.
"2. Same as No. 1 above except that the order for the tractor is placed by our Atlanta Purchasing Department with either (a) Atlanta office of Mack Trucks, Inc., or (b) Mack Trucks, Inc., of New York City.
"3. Same as No. 1 or No. 2 above except that unit is picked up by Sinclair personnel and placed with Brooker Truck Equipment Company of Atlanta for installation of new accessory equipment ordered by Sinclair and thereafter returned to Mack in Atlanta by Sinclair personnel for delivery as above indicated.
"4. Same as No. 1 or No. 2 above except that shipping instructions provide that local Mack people temporarily release custody of tractor to Sinclair personnel at the latter's terminal for installation of used accessory equipment after which local Mack people will pick up the tractor at our terminal for delivery to us f.o.b. Tampa.
"5. Same as No. 1 or No. 2 except that purchase order shipping instructions shall provide that Atlanta Mack people are to place unit with Brooker Truck Equipment Company for installation of new accessory equipment previously ordered by Sinclair and thereafter Mack people will pick up and deliver tractor to Sinclair f.o.b. Tampa."
The Georgia Act imposes a tax on the retail purchase, retail sale, rental, storage, use or consumption of tangible personal property (92-3402a). The term "sale" is defined in the Act as follows:
" 'Sale' means any transfer of title or possession, or both, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever of tangible personal property for a consideration, and includes the fabrication of tangible personal property for consumers who furnish, either directly or indirectly, the materials used in fabricating work, and the furnishing, repairing, or serving for a consideration of any tangible personal property consumed on the premises of the person furnishing, preparing, or serving such tangible personal property. A transaction whereby the possession of property is transferred but the seller retains title as security for the payment of the price shall be deemed a sale." (92-3403a B)
"Retail Sale" is defined as a sale for any purpose other than for resale. (923403a C)
The Georgia Retailers' and Consumers' Sales and Use Tax Act does not, of course, tax any bona fide interstate commerce. In this connection, I call your attention to my official opinion dated January 27, 1959.
Examples 1, 2, 3 and 4 clearly involve the transfer of possession to the purchaser in Georgia and, as a result, are taxable unless it can be shown that the

544
trucks in question have not come to rest in this State, and are, in fact, remaining in interstate commerce.
Example 5 is not as clear as the first four because the relation between Brooker and Sinclair is not completely relieved. It appears that Brooker is acting, however, under direction from Sinclair rather than the seller and would, therefore, be accepting possession of the vehicles for Sinclair. The transfer of possession to an agent would, of course, be no different from the t,ransfer of possession to the principal.
Some of the foregoing examples involve the shipment of the vehicles in interstate commerce; however, in every case there is a delivery of possession to Sinclair or an agent for Sinclair, after which the vehicle comes to rest in this State and the interstate aspects cease.
The five examples cited in your letter are, in my opinion, taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act.

TAXATION-Sales and Use Tax (Unofficial)

Applicable to tickets to high school sporting events.

Mr. Edward G. Dickey

April 19, 1961

This is in reply to your letter in which you have requested my opinion concerning the application of the Sales and Use Tax Act to the sale of admission tickets to ball games sponsored by Georgia schools.

Code Section 92-3403a provides that "retail sale" or "sale at retail" means a sale to a consumer or to any person and includes:

" (c) Sales of tickets, fees or charges made for admission to or voluntary contributions made to places of amusement, sports, or entertainment, including . . . athletic contests, including . . . football and baseball games . . ."

By definition, after requiring every dealer to collect the tax, the law provides that a dealer is a person, and that the term "person" includes any"... association ... or other group or combination acting as a unit, body politic or political subdivision, whether public or private ..." A school is, of course, included in the term "body politic or political subdivision."

It is, therefore, my opinion that the school is required by the Sales and Use Tax Act, to collect the tax and remit the same to the State.

545
TAXATION-Sales and Use Tax (Unofficial)
Discussion of bonding requirements of contractors and sub-contractors under 1961 Act.
June 29, 1961
Mr. E. J. Olmstead
This is in reply to your request for my opmwn concerning the recently enacted House Bill 348 (Ga. Laws 1961, p. 480), and whether the bond requirements provided in the new Act are in addition to the bond now required of subcontractors under the provisions of Georgia Laws 1955, page 389 (Code Section 92-3448a).
The 1961 Act applies only to non-resident contractors and sub-contractors who have a contract in excess of ten thousand dollars, total contract price, or ten thousand dollars compensation. The bond requirement contained in the 1955 Act applies to all sub-contractors, resident and non-resident, irrespective of the dollar value of their contract. The bond required is but an alternate requirement excusing the prime contractor from withholding a part of the sub-contractor's compensation pending a sales and use tax clearance. The 1961 Act concerns itself with all State taxes including sales and use tax.
The 1961 Act was intended to provide an additional means of collecting taxes due the State and is to be in addition to existing methods. The law does not favor a repeal by implication and as the bond provision of the 1955 Act was not expressly repealed, it is my opinion that the same continues as before.
A non-resident sub-contractor having a contract calling for compensation in excess of ten thousand dollars will be required to post the bond required by the 1961 Act. The prime contractor will be required to withhold a part of the payments due the sub-contractor even though a bond was posted under the 1961 Act, unless the sub-contractor posts a bond that meets the requirements of the 1955 Act. The minimum requirements of the bond called for in the 1961 Act do not meet the minimum requirements of the 1955 Act, and a qualifying sub-contractor should, therefore, post both bonds.
TAXATION-Sales and Use Tax (Unofficial)
Dunnage and shoring materials are taxable under the Sales and Use Tax.
June 29, 1961
Mr. E. J. Olmstead
This is in reply to your letter requesting an opinion as to the taxability of dunnage and shoring materials under the Georgia Retailers' and Consumers' Sales and Use Tax Act.
Georgia Code Section 92-3403a provides that materials used for packaging tangible personal property for shipment are exempt from this tax. Dunnage is not defined in the Act, but the cases dealing with the product define it to be material laid on the bottom of the held for the cargo to rest upon to prevent injury, or stowed among cargo to prevent their motion and chafing.

546
The Ohio appellate courts have considered the question of shoring materials required by carrier regulations relating to the shipment of a taxpayer's products, and they held that such material was not "wrapping" material for sales tax exemption purposes.
It is my opinion that dunnage and shoring materials are taxable under provisions of the Sales and Use T'ax Act.
The exemption provided under Subsection (j), Code Section 92-3403a C(2), exempting transportation charges and accessorial charges applies to charges for services such as refrigeration, switching, storage and demurrage. This exemption does not apply to tangible personal property.
TAXATION-Sales and Use Tax
Though a non-profit organization with specific education objectives, a corporation must come within the specified exemptions to avoid sales and use tax.
February 3, 1960
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to the request for an opinion on the question as to whether an organization is exempt from the State sales and use taxes.
The letter states that this corporation is a non-profit organization incorporated with specific educational objectives. A study of the petition for incorporation of the Foundation Seeds, Incorporated, together with H.B. #184, known as the Georgia Seed Development Act, substantiates this contention. The fact that this corporation is a non-profit organization with specific educational objectives would not exempt it from the payment of the taxes provided for in the Georgia Sales & Use Tax Act. This corporation does not come within the exemption provided under Section 3(c)2(d) which is as follows:
"Sales which a State would be without power to tax under the limitations of the Constitution of the State or the United States, together with sales to the State of Georgia, any county or municipality of said State."
If the General Assembly had intended to exempt sales made to non-profit educational institutions, it would have been necessary for them to so state. It is a well-established principle of law that, "Taxation is the rule; exemption from taxation is the exception.... It is a cardinal rule in the construction of grants of exemptions from taxation, whether such grants. be by statute or the constitution, that such exemptions should be strictly construed in favor of the public, and that nothing passes by implication; ... "City of Columbus, et al. v. Muscogee Mfg. Co., 165 Ga. 259. This principle of law is also followed in the case of City of Marietta Hospital Authority v. Redwine, 87 Ga. App. 629, and in the case of Oxford v. J. D. Jewell, recently decided by our Supreme Court.

547
TAXATION-Sales and Use Tax
The Southern Governors' Conference is a cooperative agency of the chief executives of the Southern States, and purchases by its various agencies are equivalent to purchases by the E:xecutive Department of this State, and are exempt from Sales and Use Tax.
May 18, 1960
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter in which you request my official opinion as to the liability of the Regional Advisory Council on Nuclear Energy to pay the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended.
The Regional Advisory Council on Nuclear Energy is an adjunct of the Southern Governors' Conference. The Council has located its office in Atlanta, and this undoubtedly gives rise to the question of its obligation to pay the sales tax on its purchases.
The Southern Governors' Conference is a cooperative agency of the chief executives of the States in the Southern section of the United States organized to promote a regional consideration of the governmental problems of this section. The State of Georgia participates in this Conference through the membership of the Governor. In my opinion, it is in a real sense an adjunct of the Executive Department of this State. The General Assembly of Georgia has, taken recognition of the Southen1 Governors' Conference and the importance of its work. (Ga. Laws 1957, p. 4)
Accordingly, it is my opinion that its purchases, and the purchases of its various agencies, are equivalent to purchases made by the Executive Department of this State and are exempt under Section 3(c)2(d) of the Act, as amended.
TAXATION-Sales and Use Tax
1960 amendment made clear the impos,ition of the tax upon the purchaser or consumer, and sales to those enjoying immunity from State and local taxation are non-taxable.
August 15, 1960
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter in which you request my opinion on the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended by the Act approved March 1, 1960 (Ga. Laws 1960, p. 153), to retail sales made in this, State to the Federal Land Bank of Columbia, the Federal Intermediate Credit Bank of Columbia, the Columbia Bank for Cooperatives, and Federal land bank associations (formerly known as national farm loan associations).

548
In my opinion, the purpose of the 1960 amendment was to make clear a legal incidence of the tax: imposed under said Act upon the purchaser or consumer.
Accordingly, to the extent that the aforesaid purchasers or consumers enjoy immunity from State and local taxation, as instrumentalities of the Federal Government, by statute or otherwise, the tax imposed under the Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended, cannot be imposed with respect to sales made to such purchasers or consumers.
TAXATION-Sales and Use Tax (Unofficial)
Receipts from coin operated laundry devices are not subject to Sales and Use Tax.
August 2, 1961
Mr. E. J. Olmstead
This is in reply to your request in which you asked for an opinion as to the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act to coin operated laundries.
Code Section 92-3403a provides:
"Definitions.-The following words, terms, ~nd phrases, when used in this Chapter, shall have the meanings ascribed to them in this section, except when the context clearly indicates a different meaning:
* * *
"(2) The term 'sale at retail', 'use', 'storage', and consumption shall not include . .
"Such terms shall also not include the following:
"(a) Professional, insurance, or personal service transactions which involve sales as inconsequential elements for which no separate charges are made ..." (Emphasis added)
While the Georgia Retailers' and Consumers' Sales and Use Tax Act is quite broad and all inclusive when dealing with the "sale" of tangible personal property, it is limited in its application to services. The provision concerning the tax of services was amended in 1960 (Ga. Laws 1960, pp. 153, 154) and now provides in Code Section 92-3402a (e) :
"Every person purchasing any service or services within this State which under the terms of this Chapter are included within the meaning of the term "retail sale" or "sale at retail" shall be liable for tax thereon at the rate of three per cent of the gross charge or charges made therefor."
Many services are included within the meaning of the term "retail sale" and are closely related to the problem of coin operated laundries, as coin operated musical devices and amusement devicP.s are specifically included within the meaning of this term.

549
Laundry services, clearly, are not subject to tax imposed by the Georgia Act. There is, however, the question of the nature of the transaction when the laundering is accomplished through the use of a coin operated device. Generally, the owner of such a business is not present, and there are no employees to assist the customers of such business. I am persuaded, however, by the opinion of the Court in Francom, d/b/a Day-Nite Laundercenter No. 8 et al. v. Utah State Tax Commission, 356 P2d 285 (11 Utah 2d 164), that this situation constitutes furnishing laundry service. The Court stated in their opinion at page 286:
"Regardless of the fact that the actual manual operation or labor is performed by the customer, we are of the opinion that the plaintiffs are performing a 'laundry service' .... The mere fact that the plaintiffs have no attendant at the establishment does not mean that the plaintiffs are not performing a 'service'.
It is my opinion that the Georgia Retailers' and Consumers' Sales and Use T'ax Act imposes no tax on the receipts from coin operated laundry devices.
TAXATION-Sales and Use Tax (Unofficial)
Discussion of liability of subsequent purchaser for sales tax due from previous operation of a business.
July 7, 1960
Mrs. Josephine Maxwell Plunkett
You wished information on a sales tax release.
Section 15 (a) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Code Ann., Section 92-3422a) provides:
"Final return on sale of or quitting business; receipt or certificate to successor; liability of successor where no receipt or certificate given. -If any dealer liable for any tax, interest, or penalty levied hereunder shall sell out his business or stock of goods, or shall quit the business, he shall make a final return and payment within 15 days after the date of selling or quitting the business. His successor, successors, or assigns, if any, shall withhold sufficient of the purchase money to cover the amount of such taxes, interest, and penalties due and unpaid until such former owner shall produce a receipt from the Commissioner showing that they have been paid, or a certificate stating that no taxes, interest, or penalties are due. If the purchaser of a business or stock of goods shall fail to withhold the purchase money as above provided, he shall be personally liable for the payment of the taxes, interest, and penalties accruing and unpaid on account of the operation of the business by any former owner, owners, or assigns."
In your letter you state that Cowart owes no sales tax on account of his operation of this business and has a release from the Sales Tax Unit insofar as his own liability is concerned. Thus, tl1e only problem is Cowart's liability as a successor in business to McBride who apparently owes the State an amount in excess of $800.00.

550
You state in your letter also that the consideration to be paid by Cowart to McBride for the business was $517.00 and that Monarch holds in escrow this amount and more for Cowart's, account but has demanded a condition of payment that Cowart get from the Sales Tax Unit a release of Monarch from any liability with respect to McBride's delinquency.
The only possible liability Monarch may have with respect to McBride's delinquency would be in a situation where Monarch was, for a time, a successor to McBride in the operation of this business. If this is not the situation, then, it would seem that upon payment of the $517.00 to the Sales Tax Unit by or for the account of Cowart, his obligation under the above provision as a successor in business to McBride would be satisfied because it appears that the $517.00 has actually been withheld. The Sales and Use Tax Unit could issue a release of Cowart with respect to McBride's delinquency, and there would be no need for a release of Monarch because Monarch (assuming Monarch is not a successor in business to McBride) has no liability under the above section anyhow. If, of course, Monarch was a successor in business to McBride, then Monarch would have a liability under the above section for McBride's delinquency and no release could be issued in favor of Monarch until McBride's delinquency is paid off.
TAXATION-Sales and Use Tax
Officer and Non-commissioned Officer Clubs are instrumentalities of the United States and immune from state taxation.
December 16, 1960
Honorable Dixon Oxford, Commissioner Department of Revenue
This is in reply to your request for a re-determination of the applicability of my opinion issued May 14, 1951, 1950-51 O.A.G. 397, holding officers' clubs and non-commissioned officers' clubs subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act, in view of the many changes, that have occurred since the opinion was issued in 1951.
If these clubs are organized, operated and controlled under regulations promulgated by the departmental Secretary of the Armed Forces of the United States having jurisdiction thereof, and if they operate exclusively in a functional area of the command of which they are a part, it is my opinion that they are instrumentalities of the United States government, and therefore immune from state taxation.
Such clubs claiming immunity from tax as instrumentalities of the Federal government should present documentary proof that they satisfy the requirements set out above.

551
TAXATION-Sales and Use Tax
Purchases by the non-appropriated Athletic Fund of the Board of Corrections are not subject to sales tax.
May 15, 1961
Mr. Jack M. Forrester, Director State Board of Corrections
This is in reply to your letter requesting my opinion as to the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended, to purchases of tangible personal property made by the State Board of Corrections out of the Athletic Fund for distribution (not resale) to prisoners and their use and consumption. The Athletic Fund, according to information furnished me by you, is a non-appropriated. fund legally authorized and established by the Board of Corrections to receive and handle funds raised in various ways for use for prisoners' welfare. I understand further that this Athletic Fund has been held by the State Auditor to constitute public funds and is audited by the Department of Audit as a subsidiary agency of the Board of Corrections.
Under the circumstances, it is my opinion that purchases made from this Athletic Fund are the equivalent of purchases made by the Board of Corrections itself and are entitled to exemption under Section 3(c)2(d) of the Act as sales made to the State of Georgia.
I understand further that one of the sources of funds used by the Athletic Fund is the operation of the Georgia State Prison Store. This store is a "dealer" under the Act and is required thereby to register, collect and remit the sales tax on all of its retail sales.
TAXATION-Sales and Use Tax (Unofficial)
Tangible personal property bought for purposes of leasing or renting is bought for resale and the transaction is excluded as a sale subject to sales and use tax.
September 8, 1960
Prentice-Hall, Inc.
You request an opinion whether sales or use taxes apply at the time a person purchases property to be rented to others, on which rentals a sales or use tax will be paid ?
The Attorney General has ruled that the rental of tangible personal property is pro tanto a sale thereof; this being the logical inference to be drawn from the definition of the word "sale" in Section 3(b) which is defined as"... any transfer of title or possession, or both ... lease or rental ..." Accordingly, tangible personal property bought for purposes of leasing or renting is bought for resale and the transaction is excluded as a sale subject to the tax.

552
TAXA'l'ION-Sales and Use Tax (Unofficial)
The sales and use tax application to purchases of tangible personal property by a railroad for performance of contracts with the State Highway Department in installing crossing signals and similar projects.
April 7, 1960
Mr. Henry B. Troutman
This is in reply to your letter in which you ask whether Act No. 509 (H.B. 857; Ga. Laws 1960, p. 153) will affect the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act to purchases of tangible personal property by railroads in performance of contracts with the State Highway Department in the installation of highway crossings, signals and similar projects.
We do not think so. In general, this Act was intended to make clear that a purchaser of tangible personal property is a taxpayer and to make certain that a seller, who is also a taxpayer, will not be taxed on the basis of sales made to the United States. It does not, as we see it, change the holding in Meadors & Co. v. State, 89 Ga. App. 583, or change the effect of the 1955 Act (Ga. Laws 1955, p. 389; Ga. Code Ann. 92-3448a).
TAXATION-Sales and Use Tax
Sales for export are not subject to the Sales and Use Tax.
March 13, 1961
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter requesting an official opinion as to the application of the Georgia Retailers' and Consumers' Sales. and Use Tax Act (Ga. Laws 1951, p. 360) to sales of tangible personal property where delivery is made in this State to a carrier, or to a forwarding agent, or to a representative of the purchaser for export to a foreign country.
Section 4 of the Act (Ga. Code Ann. 92-3406a), in part, provides:
"It is not the intention of this Act to levy a tax upon articles of tangible personal property ... produced or manufactured in this State for export. . . ."
In my opinion, the purpose of this provrswn is to give effect to Article I, Section 9, Clause 5 of the Federal Constitution (Ga. Code Ann. 2-130), which provides:
"No tax or duty shall be laid on articles exported from any State."
Under decisions of the Supreme Court of the United States the Federal Constitution gives a tax immunity to "the process. of exportation". This process begins at that point where there is a manifest certainty that the destination of the goods is a foreign country. This certainty is established when the goods are delivered to a common carrier consigned to a destination abroad even though

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title may pass in this State. See Gough Industries, Inc. v. State Board, 51 Calif. 2d 746, 336 P. 2d 161. In a proper case this certainty may exist when the purchaser takes actual delivery in this State. See Richfield Oil Corp. v. State Board, 329 U. S. 69, 67 S. Ct. 156, 91 L. ed. 80. Also Matson Navigation Co. v. State Board, 136 Calif. App. 2d 577, 289 P. 2d 73, and Alaska Packing Assn. v. California, 136 Calif. App. 2d 586, 289 P. 2d 78. For example, this certainty may be taken to exist in the ~ase of a sale of air~raft, parts or equipment to a foreign purchaser when the seller shows official proof of exportation. In my opinion such a sale, though consummated in this State, is a sale for export and is not subject to the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act. What, in the way of official proof of exportation, you may deem necessary where sales of other kinds of tangible personal property are involved, is a matter that should, perhaps, be prescribed by regulations.
TAXATION-Sales and Use Tax (Unofficial)
Sales of tangible personalty to a contractor for use in performing a contract with the United States ano not exempt from taxation, though sales to the United States are.
June 7, 1961
Mr. R. K. Wilson
Your letter concerning the Georgia Retailers' and Consumers' Sales and Use Tax Act, approved February 20, 1951 (Ga. Laws 1951, p. 360), as amended, has been referred to the undersigned for answering. It appears to raise these questions:
(1) Are retail sales of tangible personal property to the United States subject to the Georgia sales and use tax?
(2) Is a contractor liable for the Georgia sales and use tax on tangible personal property used by him in performing contracts with the United States?
Georgia Code Annotated 92-3403a C(2) provides in part:
"Such terms [sale at retail, use, storage and consumption] shall also not include the following:
"(d) Sales to the United States of America, the State of Georgia, or any county or municipality of said State...."
Thus, question (1) is answered in the negative.
While the retail sale of tangible personal property to the United States is exempt, where such property is used by a contractor in performing a contract with it, a different result is reached. This comes about by an application of Georgia Code Annotated 92-8448a which, insofar as pertinent, reads:
"Any person who contracts either orally, in writing, or by purchase order, to furnish tangible personal property and perform services thereunder within this State, shall be deemed to be the consumer of the

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tangible personal property and shall pay the sales tax levied by this Chapter at the time of the purchase...." On this basis, question (2) is answered affirmatively. Since national banks have been declared to be federal instrumentalities, Davis v. Elmira Sav. Bank, 161 U. S. 275, 16 S. Ct. 502, 40 L. ed. 700, and under Ga. Code Ann. 92-3403a C(h), state banks are granted the same immunity enjoyed by national banks, the answer to the questions you have raised are the same where the banking institutions you are dealing with are state or national banks. However, it must be remembered that the immunity granted to national banks is restricted to the operation of the bank in doing a banking business and should not include the operations of the bank which are non-banking operations. Graves v. Texas, 298 U.S. 393, 56 S. Ct. 818.
TAXATION-Sales and Use Tax (Unofficial) Furnishing of water for a fee is a taxable transaction under the Sales
and Use Tax. September 7, 1960
Mr. S. J. Proctor You say that you are furnishing water to nine residences in a subdivision
tieveloped by you and ask if the Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended, is applicable to the charges made for this water.
It is my opinion that the furnishing of water for a fee is a sale of tangible personal property subject to the tax imposed by this Act. Section 3(c)2(g) excludes sales of water by this State, and the natural inference is that all other sales of water are subject to the tax.
Under the circumstances you come within the definition of a "dealer"; you are required to register with the Sales and Use Tax Unit of the Department of Revenue as such, and are required to add on 3% of the charge made for such water, and, failing to do so, are liable therefor yourself.
TAXATION-Sales and Use Tax Where title passes to an in-State purchaser in another State, and the
items are distributed gratuitously to persons within this State, the sales tax would not apply, but Use Tax should be collected.
June 30, 1961 Mr. E. J. Olmstead
This is in answer to your request for my official opinion concerning Sales and Use Tax application in a transaction in which specialty products are ordered

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by a local purchaser through an in-State branch office and processed outside the State. The title passes to such goods upon completion of the manufacturing process (in the case given) and they are mailed to a diversified mailing list previously supplied by the local purchaser. The products involved are advertising specialties and advertising brochures with some items being mailed to this State and others mailed to other States.
The application of sales tax liability is avoided in this case only because the title to the goods passes out-State. And the fact that the goods were distributed gratuitously to third persons within and outside of the State would not affect the sales tax liability involved.
Georgia Code Section 92-3402a provides:
"Imposition of tax; rat,e; to be in addition to other taxe,s.-There is hereby levied and imposed, in addition to all other taxes of every kind now imposed by law, a tax on the retail purchase, retail sale, rental, storage use or consumption of tangible personal property, and the services hereinafter described, to be collected at the rates and in the manner hereinafter set forth:
"(b Upon the first instance of use, consumption, distribution, or storage within this State of tangible personal property purchased at retail outside this State, the owner or user thereof shall be a dealer hereunder and shall be liable for a tax at the rate of three per cent. of the cost price or fair market value thereof, whichever is the lesser...."
The language of this Section covers and includes specialty products such as product-samples, advertising brochures, and any other items of tangible personal property. The free distribution of such goods in this State is a use contemplated by the statute and the same is subject to the tax.
It is my opinion that the Use Tax should be collected for all such property distributed in this State.
TAXATION-Situs (Unofficial)
The tax situs of personalty for ad valorem purposes is the domicile of the owner.
July 24, 1961
Mr. William Preston
This is in reply to your recent request for an unofficial opmiOn on the tax situs of personal property for ad valorem tax purposes. I understand that the taxpayer has its business and plant within the city limits of the city of its domicile and has a garage facility outside the city but within the same county. The taxpayer's vehicles are used as a part of its business and when not in use are serviced and garaged at the out-city facility.
The vehicles have, in my opinion, a tax situs within the city limits at the domicile of the owner. The provisions of Ga. Code Section 92-6208 dealing with the return of personal property where the business is conducted has no applica-

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tion. Even where the property in question is never situated within the limits of the city of the owner's domicile, the same is taxable there. O'Neal, Mayor et. al. v. Whitley, 177 Ga. 491.
Apparently, the out-city facility cannot, in this case, be disconnected from the in-city operation but is a part of such operation, and, therefore the general rule applies, not the exception, as contained in Code Section 92-6208. High Shoals Manufacturing Company v. Penicle,, 127 Ga. 504.
TAXATION-Statute of Limitations (Unofficial) The Statute of Limitations is tolled by a failure to file a return. July 7, 1961
Mr. Lovejoy Boyer This is in response to your letter to Mr. C. G. Campbell, Director, Property
Tax Unit, Department of Revenue. Though the statutes are not clear on the point you raise, and there is no
court decision in Georgia that I know of that is in point, it is my opinion that it is the intent of the law that the statute of limitations is tolled by the failure of the taxpayer to file an intangible tax return, the same as it is tolled in the State income tax law, see Sections 92-126 and 92-3303(a), Georgia Code Annotated. There are two Georgia cases which you might find applicable to your problem, Darby v. DeLoach, 190 Ga. 499, and Oxford v. Generator Exchange, 99 Ga. App. 292. I think the Darby case probably comes closest to your situation.
The execution being issued the same year the returns were filed and being less than seven years old, in my opinion you can proceed to record it and act to collect thereon. It does not matter that some of the taxes accrued over seven years ago.
TAXATION-Tax Sales (Unofficial) Sales of realty to satisfy delinquent taxes discussed. June 23, 1961
Mr. Robert R. Amos You pose four questions regarding the sale of tax delinquent lands that are
sold by the county. Your first question is whether a person buying the land receives title to it or
whether there is a redemption period. There is a redemption period of 12 months from the date of the tax sale under Ga. Code Section 92-8301, and at any time thereafter until the right to redeem is foreclosed by the giving of notice provided for in Section 92-8306 of the Code. That Section requires that after 12 months from the date of the tax sale, the purchaser at such sale, or his successors, may

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forever bar the right to redeem said property from the sale, by causing a notice of foreclosure to be served upon the defendant in the tax execution under which the sale was held, and upon the occupant of said property and upon all persons having of record in the county in which said land is located, any right, title, or interest in, or lien upon, said property.
Ga. Code Section 92-8305 provides that when wild land is sold at a tax sale, the owner can redeem said land within two years of date of such sale by paying the purchase price, plus interest thereon at 20o/o.
Code Section 92-8315 provides that the holder of a tax deed shall obtain good title by prescription after a period of seven (7) years from the date of the execution of the tax deed regardless of other provisions of the Ga. Code.
Your second question is whether after securing a tax deed there are any restrictions on reseiling the land. This cannot be answered by reference to any Ga. Code Section but the Georgia Supreme Court, in the case of Durham v. Crawford, 196 Ga. 381, 385-386, indicates clearly that the holder of a tax deed can convey the deed and that it would become absolute in the hands of his grantees when the redemption period expires.
I cannot answer your third question, whether title insurance may be obtained. That would depend on the policy of the title insurance company involved, I would suppose.
Your fourth question is whether a buyer of delinquent land is subject to any liens, assessments and bonds, etc. against it. The answer is no. A fi. fa. for taxes due this State is a lien on property superior to any other debt, lien or claim whatsoever. Where the tax lien is against the property, the purchaser at a tax sale acquires a title, subject only to the right of redemption, which is not affected by any pre-existing liens or encumbrances. However, a levying officer is bound to levy and sell the property in such way and to such extent only as may be necessary to discharge the taxes due. If property is encumbered with a mortgage, and in the levying officer's opinion, the equity of redemption will meet the tax liability, he may levy and sell the equity of redemption alone, but if this is insufficient, he may levy upon the entire estate regardless of the mortgage, pre-existing liens or encumbrances, and the purchaser, at the tax sale, will get what is sold whether it be the equity of redemption or the entire estate in the land, subject, however, to the right of redemption. See Verdery v. Dotterer, 69 Ga. 194.
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Assessments (Unofficial)
Factors to be considered in placing a valuation upon shares of stock for taxation purposes.
April 20, 1961
Mr. Dan D. Dunwody
You request an opinion regarding the following situation.
Wherein a state or national bank leases land for a term of years, at a net rental, constructs thereon a building and/or other improvements,

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and agrees to pay all taxes, insurance, etc., how should the land and the improvements be considered by the bank in placing a valuation on its shares for purposes of the tax imposed by Section 92-2406 of the Code, and, further, in determining the value-returned-for-taxation credit provided by the same code section?
Section 92-2406 of the Georgia Code Annotated provides in part as follows:
"... The shares of the stockholders of the hanks or banking associations ... shall be taxed at their full market value "
and
". . . Provided, that nothing in this section shall be construed to relieve such banks or banking associations from the tax on real estate held or owned by them ..."
and
"... Provided, further, that when real estate is fully paid for the value at which it is returned for taxation may be deducted from the' market value of their shares ..."
The bank's interest in the leased premises, being greater than a usufruct, is real estate, so defined in the Code, Section 85-201, and by the Courts of this State. Only the value of this interest, not the value of the entire property, form a part of the total assets of the bank which gives value to the shares of the bank's stock.
Unless the bank prepays the net rent for the term or in some other manner capitalizes the cost or value of its interest in the leased premises, it is not feasible, as a practical matter, to attempt to place a valuation on such interest for purposes of valuing the bank's stock. However, when the bank, at its own expense, adds substantial improvements, such as a building, the value of these impro:vements should be included with the other assets in determining the value of the shares of the banking corporation. And, where the net rent for the term is prepaid or in some manner capitalized, then the sum of the value of this equity in the leased premises plus the value of the improvements added by the bank is the value of the bank's interest to be included with t.he other assets in determining the value of the shares of the banking corporation.
Under such circumstances and where the bank returns not just its interest but the entire property for taxation, the deduction from the value of the shares allowed by Code Section 92-2406 is not necessarily the value returned for the entire property but is, instead, an amount that bears to that value in the same proportion that the fair market value of the bank's interest in the leased premises bears to the fair market value of the entire property-that is, it is the value arrived at by multiplying the value returned for the entire property by a fraction, the numerator of which is the fair market value of the bank's interest in the leased premises and the denominator of which is the fair market value of the entire property.

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TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Collectors (Unofficial)
Collection of back taxes by incoming tax collector discussed.
December 2, 1960
Mr. W. P. (Sam) Parrish
You state:
"In the 1960 election I was elected as Tax Collector for Echols County, subject to take office on January 1, 1961. In examining the records of the County, I find back taxes for four and five years unpaid. Please advise what disposition I am to make-if I should start proceedings for collection of these back taxes-or-if I should just ignore all back taxes and start my work as of January 1, 1961."
When you assume your duties as Tax Collector of Echols County, you have the same responsibility for collecting back taxes as you have for collecting taxes which accrue after you enter office.
Code 92-4703 is as follows:
"Duty of incoming collector as to unpaid taxes.-Where the tax collector of any county is succeeded by another, the outgoing collector shall no longer be authorized to collect taxes or enforce executions issued therefor, but all uncompleted duties in respect thereof shall pass to his successor as provided by section 89-830."
Code Section 89-830 is as follows:
"Uncompleted duties of outgoing tax collector, etc. Liability of collector and surety.-In case a tax collector has been succeeded in office by another person, a list of the uncollected items of tax appearing in the account of the outgoing tax collector at the time of the accounting as stated abo:ve shall be furnished by the Comptroller General or the county authority to the tax collector then in office, and it shall thenceforth be his duty as the taxes are collected, to pay to the outgoing tax collector one-half of the commissions and to retain for his services one-half, the commissions to be calculated as if the amounts had been collected by the outgoing tax collector; and the outgoing tax collector shall no longer have the right or the duty to collect the taxes or to enforce the executions issued therefor, but all uncompleted duties in respect thereof shall pass to the successor. The outgoing tax collector and his sureties on his bond shall, upon his delivery to his, successor of such books and papers in his office as relate to, the uncollected taxes, be discharged of liability, except for defaults existing prior to that time."

560
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Collectors (Unofficial)
A collector is not relieved of his responsibility by turning fi fas over to the county attorney for collection.
March 15, 1960
Mr. Ward E. Rice
This is in reply to your letter in which you request my opinion as to whether or not you would be responsible for tax fi. fas. after they have been turned over to the county attorney.
You would not be relieved of your responsibility as tax collector by turning over tax fi. fas. to the county attorney for collection.
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Collectors (Unofficial)
When a collector is placed under a salary act which provides a salary in lieu of all commissions, the salary is the sole compensation.
March 15, 1961
Mr. H. P. Norton
This is in reference to your letter concerning tax commissions in Elbert County after January 1, 1961.
According to the Act approved March 10, 1959, (Ga. Laws 1959, p. 2621) the Tax Commissioner of Elbert County was put on a salary of $7,000 per year effective January 1, 1961. This statute provides:
"The compensation hereinabove provided shall be in lieu of any and all fees, costs, commissions, and perquisites allowed by law for the receiving and collecting of county taxes. . . ."
In Clements v. Peerless Woolen Mills, 197 Ga. 296, 301-'302, it was held that a tax collector has no vested interest in any commission on uncollected taxes.
Code Section 92-5301, which prescribes the fees to be paid for tax collections goes on to provide:
"This section shall not apply to any county where the tax collector, tax receiver, or tax commissioner is on a salary basis only."
Code Section 92-5304, which provides a special commission for tax collection and goes on to provide that "in those counties where the tax collector or tax commissioner is paid on a salary basis the commission provided for herein shall be paid ... in addition to said salary," was construed in Laurens County v. Keen, 214 Ga. 32, 37, as inapplicable where the tax receiver, collector or commissioner was put on a salary basis after February 21, 1951.
It is my opinion that after January 1, 1961, the $7,000 per annum compensation prescribed for the tax commissioner of Elbert County is the full extent of

561
his compensation for collecting county taxes and as of that date the commission prescribed by Code Section 92-5301 and 5304 became inapplicable to any collections made thereafter.
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Combined (Unofficial)
When the offices of tax collector and tax receiver are combined, elimination of errors and omissions may be accomplished.
May 17, 1960
Mr. William B. Greene
This is in reply to your letter in which you state that the office, of Tax Receiver and Tax Collector of Bartow County will be combined into the office of Tax Commissioner on January 1, 1961, and that there are a number of errors and omissions which should be erased from the present tax digest before this change occurs.
The duplications and errors in your digest could possibly best be corrected by the preparation of an insolvent list. The allowance of the insolvent list woald eliminate from the tax collector's books taxes entered thereon which are uncollectible.
Code Section 92-4901, sub-section 4, states that the preparation of such a list is one of the duties of the tax collector. Code Sections 92-7102, 7103, and 7104 provide the manner in which the procedure whereby the insolvent tax list may be allowed.
Errors in the tax receiver's office found in the tax returns should be corrected by the tax receiver with the assessors of the county board of tax assessors.
Code Section 92-6911 with reference to the board of county tax assessors contains the following provision:
"The board of county tax assessors in each county may meet at any time to receive and inspect the tax returns to be laid before them by the tax receiver as hereinbefore provided. The board shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the board any taxpayer has omitted from his returns any property that should be returned or has failed to return any of his property at a just and fair valuation, the board shall correct such returns and shall assess and fix the just and fair valuation to be placed on the property and shall make a note thereof and attach the same to the returns. . . ."

562
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Commissions (Unofficial)
Commissions for services rendered in collection of school taxes discussed.
March 10, 1960
Mr. W. W. Stribling
This is in reply to your letter in which you request information concerning commissions payable to tax collectors and receivers.
Under Georgia Code Section 32-1401, the county board of education is charged with the responsibility of preparing the tax digest for school purposes and furnishing same to the tax collector of the county. The Supreme Court of our State in the case of Board of Education of Decatur County v. Drake, Tax-Receiver, 157 Ga. 8 (2), held:
"The provision for paying commissions to the county tax-collector and receiver for services rendered in connection with State and county tax, as provided in sections 1234 and 1202 of the Civil Code, that the taxreceiver shall receive the same compensation as the tax-collector for such services, does not embrace a provision for paying the receiver commissions for any services in connection with the levy of the county-wide tax for school purposes, raised under the provisions of our code of school laws."
The Court affirmed this decision in the case of Hurst, Tax-Receiver v. Board of Commissioners of Burke County, 157 Ga. 648.
Georgia Code Section 32-1106 provides for the payment of a 2lh% commission to a tax collector in the collection of school taxes.
The Act approved February 8, 1951 (Ga. Laws 1951, p. 69), and referred to in your lette,r, provides for 2lh% commission to be paid to tax receivers in certain counties of the State. Under this Act county tax receivers would receive 2lh% commissions on school taxes, and under the Code section herein referred to county tax collectors would receive 2lh% commission on school taxes, which would make a total of 5% of school taxes collected to he paid for receiving and collecting school taxes in the counties covered in the 1951 Act.
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Compensation (Unofficial)
Commissions to which a tax commissioner is entitled in addition to his salary discussed.
July 19, 1960
Mr. E. D. Gilliard
You request my opinion as to what commissions you are entitled to receive as Tax Commissioner in addition to your salary. Code Section 92-5304 is as follows:

563
"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 coUector. On all taxes collected in excess of 90 per cent. of the total of taxes due, according to the tax net digest, the tax collector's or tax commissioner's commission shall be for such taxes 10 per cent. of all such collections, irrespective of the above and foregoing schedule and rates: Provided, that the board of commissioners of roads and revenues or the ordinary in those counties having no board of commissioners may by appropriate Resolution provide that the tax collector's or tax commissioner's commission shall be 10 per cent. of all taxes collected in excess of 80 per cent. of the total taxes due according to the net tax digest. In those counties where the tax collector or tax commissioner is paid on a salary basis, the commission provided for herein shall be paid to the tax collector or tax commissioner in addition to the said salary. . . . "
The above quoted Section provides that a tax commissioner shall be entitled to 10 per cent. of all taxes collected in excess of 90 per cent. of his net tax digest and if the board of commissioners of roads and revenues or the ordinary in those counties having no board of commissioners pass a Resolution giving the tax commissioner 10 per cent of all taxes collected in excess of 80 per cent. of the net tax digest, the tax eommissioneil' can collect this additional 10 per cent. In other words, he is entitled to 10 per cent. of 90 per cent. of the net digest without the Resolution and 10 per cent. of 80 per cent. of the net digest with the Resolution.
This additional compensation does not, of course, effect school taxes on which the commission is fixed at 2lh per cent.
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Deposits (Unofficial)
Tax collectors may deposit tax monies collected in any bank designated as a State depository.
January 17, 1961
Mr. Jacob A. Clements
This is in reply to your letter in whieh you request my opinion whether the tax collector or commissioner has the right to deposit State and county taxes in any bank where it comes under the head of "FDIC."
Code Section 89-810 provides that officers must deposit public money in a bank which has been designated as a State depository. This Section is as follows:
"89-810. Officers must deposit public money in bank or depository. -It shall be the duty of every collecting officer and every officer to hold public money, upon any money belonging to any public body coming into his hands, promptly to deposit the same in a bank or depository as hereinafter stated. All funds. belonging to the State or any of its bureaus,

564
commissions, boards, and/or departments shall be deposited in some designated State depository." Under the above provisions of law you may deposit money collected by you as tax collector in any bank which has been designated as a State depository.

TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Fees (Unofficial)

Fee due tax collectors for collection of school taxes and school bonds discussed.

Mr. W. P. Parrish

December 14, 1961

This is in reply to your recent letter concerning fees due Tax Collectors for the collection of school taxes and school bonds.

Code Section 32-1106 provides that the county tax collector shall collect all county school taxes levied under the authority of Article VIII, Section XII, Paragraph I (Section 2-7501) of the Constitution of this State, upon which collection he shall receive a commission of 22 per cent.

The Supreme Court of this State has held that the Constitutional Provision concerning school taxes [Section 2-7501] is separate from the power to levy a tax for the payment of bonded indebtedness for the erection of school buildings. Nelms v. Stephens County School District, 201 Ga. 275. See also Acts 1937, pp. 869, 873 (Code Section 32-1427) which provides that the tax levied and assessed for the purpose of paying the interest and retiring and paying off school bonds is in addition to the general tax for maintenance of the schools of the county.

It is my opinion that the commissions to be allowed tax collectors is controlled by the provisions of Code Section 92-5301 and is based on the net digest rather than the purpose of the levy. The provisions of Code Section 32-1106 pertaining to a commission of 22 per cent. for school taxes applies only to the special tax for maintenance of county schools, and the bond tax levied to retire school bonds. Opinions of the Attorney General 1945-47, page 597. Commissions on taxes collected as a result of an assessment to retire bonds issued to raise money to construct a health building and a courthouse would not be at the rate of 22 per cent., but at the rate provided for in Code Section 92-5301.

TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Vacancies (Unofficial)
A tax collector may not also serve as tax receiver in absence of special Legislation.
May 24, 1960
Honorable W. Arnold Ansley
I am pleased to acknowledge your letter relative to a vacancy in the office of Tax Receiver of McDuffie County due to the death of the holder of this office.

565
Section 92-4601 of the Code of Georgia provides that vacancies in the office of Tax Receiver shall be filled the same as vacancies in the office of Clerk of the Superior Court.
Section ,24-2701 of the Code of Georgia provides that if a vacancy occurs the Ordinary of the county shall give notice in one or more of the public newspapers of said county, and at the court house, and at three or more of the more public places of said county, twenty days previous to the date of the election, which shall be appointed by him.
Section 24-2705 of the Code of Georgia provides that the person elected as above stated shall hold his office for the unexpired term of his predecessor, and that the returns of said election must be made to the Governor who must commission the clerk.
Section 24-2704 of the Code of Georgia provides that as soon as a vacancy occurs, said Ordinary must appoint some qualified person to discharge the duties of Clerk until a vacancy is filled as above stated.
You ask the question whether the Tax Collector could be appointed Tax Receiver. Section 89-103 of the Code of Georgia provides that no person shall hold in any manner whatsoever more than one county office except by special enactment of the Legislature; therefore, the Tax Collector could not hold the separate office of Tax Receiver at one and the same time in view of this statute.
As above stated the only way to fill the office of Tax Receiver in your county is for the Ordinary to make an appointment of some qualified person as provided by the above statute to hold the said office until an election is called as above stated for the purpose of filling said office as provided by law.
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS-Vacancies (Unofficial)
Procedure for filling vacancies in office of Tax Commissioner discussed.
June 1, 1960
Honorable Joseph S. Skelton
I am pleased to acknowledge your letter relative to a vacancy in the office of Tax Commissioner of Hart County, and to advise that the procedure for the filling of a vacancy of Tax Commissioner is set forth in the following Code Sections:
Section 92-4701 of the Code of Georgia provides:
"92-4701. (1204, 1205) Election; term; commission; vacancy.-Tax collectors shall be elected at the time, in the manner and for the terms of office prescribed in Title 34, Elections, Chapter 34-26. They shall be commissioned and qualified as Clerks of the Superior Court are. Vacancies are filled as vacancies in the office of such clerks are filled."
Section 24-2704 of the Code of Georgia provides:
"24-2704. (4881) Vacancy.-If a vacancy occurs (or will shortly), the ordinary of the county where it happens shall give notice in one

566
or more of the public newspapers of said county (if any) and at the courthouse, and at three or more of the most public places of said county, 20 days previous. to the day of election, which shall be appointed by him."
Section 24-2705 of the Code of Georgia provides: "24-2705. (4882) Term of one elected to fill vacancy.-The person
elected on said day shall hold his office for the unexpired term of his predecessor. The returns of the election must be made to the Governor, who must commission the clerk."
Section 24-2707 of the Code of Georgia provides: "24-2707. (4884) Appointment pending filling of vacancy.-As soon
as a vacancy occurs, or in anticipation of it, said Ordinary must appoint some qualified person to discharge the duties of clerk until the vacancy is filled."
Section 24-2708 of the Code of Georgia provides: "24-2708. (4885) Vacancy from sudden emergency. - If from any
sudden emergency there is a vacancy, and it is not immediately supplied, the Ordinary or his clerk shall act as clerk."
Section 24-2709 of the Code of Georgia provides: "24-2709. (4886) How long appointee to fill vacancy holds.-When
a vacancy occurs, and itis not more than six months from the time the election can be appointed by said Ordinary and held until the existing term will expire, the person or persons appointed shall discharge the duties of the office for the balance of the term, and there shall be no special election."
The above provisions of the Code of Georgia provide the method of appointment for the calling of an election for the filling of a vacancy of the office of Tax Commissioner by the Ordinary of a county.
Section 24-2709 of the Code of Georgia provides that if the term of office for which the vacancy exists is for not more than six months before the expiration of the term of the deceased person causing the vacancy, then the person appointed to fill the vacancy by the Ordinary may serve the balance of the unexpired term without the Ordinary having to call a spe.cial election.
TORTS-Liability
An employee of the State is personally liable for any negligent acts resulting in injury to others, and would have no immunity or protection of the State.
April 18, 1960 Honorable Henry D. Struble Georgia Department of State Parks
I am in receipt of your letter wherein you asked if an employee could be held personally liable for injury to other persons or property arising out of operating

567
a State owned vehicle while he is on State business. You asked further that if a suit were filed against such an employee, would he have the full protection of the State.
I am of the opinion that any employee or officer of the State is personally liable for any negligent act resulting in injury to others and such an employee or officer would have no immunity or protection of the State.
TRAFFIC LAWS-Drivers Licenses (Unofficial)
It is not a violation of law to operate a farm tractor upon the highway without a driver's license.
March 21, 1961 Mrs. Viola Colvin
This is to acknowledge receipt of your letter in which you ask, "Is it against the Georgia laws to operate a farm tractor on the Highway without driver's license?"
Code Section 92A-402 reads as follows:
"92A-402. Who may operate motor vehicles without license. - The following persons are exempt from the provisions of this Chapter:
(1) Any person operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States.
(2) Any person driving or operating a farm tractor or implement, temporarily operated or moved on the highway and not used for the purpose of hauling farm product to market.
(3) A nonresident of the State at least 16 years of age and who is the holder and possessor of a valid operator's or public chauffeur's license issued by the State of his domicile.
(4) A nonresident who is at least 18 years of age whose home ~tate or Country does not require a license for operator's of a motor vehicle, may operate a motor vehicle in passing through this State. (Acts 1937, pp. 322, 342; 1939, pp. 135, 140.)"
The answer to your question is that it is not a violation of the law to operate a farm tractor upon the Highway without a driver's license.
TRAFFIC LAWS-Jurisdiction for offenses
Jurisdiction to try offenses in counties having no city or county court explained.
May 20, 1960 Honorable Jim L. Gillis, Sr. Chairman, State Highway Board
You have requested my official opinion on the extension of jurisdiction conferred on certain courts by Article VI, Section VI, Paragraph 2 of the Constitution

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of the State of Georgia ( 2-4102) and Chapter 92A-5 of the Georgia Code, with particular reference to such jurisdiction as applied to Mayor's Courts.
The Constitution of Georgia provides:
"The Court of Ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, and in all cases arising under the Compulsory School Attendance law in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges for offense arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State within their respective jurisdiction."
Article VI, Section VI, Paragraph 2 of the Constitution, Georgia Code Ann. 2-4102.
Chapter 92A-5, Georgia Code Ann., extends the jurisdiction of Courts of Ordinary, of municipal courts and police courts of incorporated towns and cities to include ail misdemeanor cases arising under Chapter 92A-1 through 92A-5, and other traffic laws of the State. This jurisdiction is granted these courts in all counties in which there is no city or county court, provided the defendant waives a jury trial.
Section 92A-511 gives the Ordinaries exclusive jurisdiction of all cases originating in the county, outside of municipal corporations, and gives the Judge of Recorder's Court in each municipal corporation exclusive jurisdiction of cases originating inside the corporate limits of municipalities.
That these extensions of jurisdiction apply only in counties having no city or county court is made clear in Clarke v. Johnson, 199 Ga. 163, which held that the Constitutional provision quoted above confers jurisdiction upon Courts of Ordinary, Judges of Police Courts, and Municipal Court Judges with the same restrictions upon ail: First, this jurisdiction is limited to counties having no city or county court; and, second, the defendant must waive jury trial.
In regard to mayor's courts, 92A-503 provides:
"The term 'police courts' shall be construed to include Mayor's Courts or Recorder's Courts, or like Municipal Courts by whatever named called."
Thus, a Mayor's Court would have jurisdiction of all misdemeanor cases arising within the territorial limits of its jurisdiction under Chapter 92A-1 through 92A-5 and other traffic laws in those counties where there is no city or county court.

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TRAFFIC LAWS-Overweight Vehicles
Distribution of fines and bond forfeitures collected as a result of overweight vehicles violations discussed.
May 18, 1960
Honorable Jim L. Gillis, Chairman State Highway Board of Georgia
You have requested my official opmwn as to the distribution of fines and forfeitures collected as a result of criminal violations of Georgia Laws 1941, page 449, as amended by Georgia Laws 1956, page 83, and by the Act approved March 21, 1960 (Ga. Laws 1960, p. 1107).
This law provides. for dimensions, length and weights of motor vehicles using the public roads and highways of this State, and provides penalties for the violation of same.
As amended by the Act approved March 21, 1960, Section 3 of this law now provides, in part, that:
"One-half of all money arising from such fines and forfeitures shall be remitted by the Clerk of the Court in which said case is disposed of, to the Treasurer of the State Highway Department of Georgia, who shall convey same into the General F'und of the State Treasury, and the other half of such money shall be paid by said CleTk into the Fine and Forfeiture Fund of the County Treasury in the same manner and subject to the same rules of distribution as other fines and forfeitures. The Budget Bureau shall make available to the State Highway Department an amount not less than the amount taken in by the State under the provisions of this Section. This sum shall be for highway maintenance purposes and shall be in addition to any sums now appropriated to or available to said Department. It shall be the duty of the Department of Public Safety, and of all other law enforcement officers, to enforce this Act."
This language requires that one-ihalf of the total amount collected as a fine or forfeiture be paid to the Treasurer of the State Highway Department, and it applies to all such cases, whether made by the Department of Public Safety or any other law enforcement officer. It does not contemplate that any deduction be made to pay the costs of the court disposing of the case before determining the amount due the Highway Department. These costs may be imposed in addition to the fine rather than deducting them from the fine itself, and this procedure may be advisable in those cases where one-half the fine would amount to less than the costs involved.
The sums due the State Highway Department are here given the same priority as those due the Peace Officers' Annuity and Benefit Fund by Georgia Laws 1958, page 341. They should both take precedence and be first paid in the disposition of funds collected as fines and forfeitures under the law herein discussed.
In Cole v. F'oster,. 207 Ga. 416, at pages 419, 420, the Supreme Court of Georgia said:
"Fines and bond forfeitures and the disposition thereof are proper subject-matters of Legislation."

570
Thus, there should be no distribution of a fine or forfeiture arising under this law until one-half the total amount collected as such fine or forfeiture has been deducted for remission to the 'l'reasurer of the State Highway Department.
TRAFFIC LAWS-Meeting or Overtaking Stopped School Bus (Unofficial)
Law pertaining to meeting or overtaking a stopped school bus explained.
October 30, 1961
Honorable J. T. Plunkett Sheriff, Richmond County
In your letter you refer to Section 68-1667 of Georgia Code Ann. (Uniform Act Regulating Traffic on Highways, Ga. Laws 1953, Nov. Sess., 67, p. 596) and particularly to paragraph (c) thereof, and ask the following questions:
1. Under this Section and Paragraph, what constitutes separate roadways?
2. How is it determined whether a particular highway is a limited or controlled access highway?
3. Would loading or unloading children at a curbed roadway over the curb be considered a loading zone, inasmuch as they would not be in the roadway and the school bus would be stopped in a parking lane?
The portions of Section 68-1667 are quoted:
"(a) The driver of a vehicle upon a highway upon meeting or overtaking from either direction any school bus which has stopped on the highway for the purpose of receiving or discharging any school children shall stop the vehicle before reaching such school bus and shall not proceed until such school bus resumes motion, or until signalled by the driver to proceed."
* * * * *
"(c) The driver of a vehicle upon a highway with separate roadways need not stop upon meeting or passing a school bus which is on a different roadway or when upon a limited or controlled access highway and the school bus in stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway."
Answering your first question:
Section 4 (c) of the Act ( 68-1504 (c), Ga. Code, Ann.), after defining a "Roadway" as "That portion of a highway improved, designed, or ordinarily used for vehicular travel," provides further:
"In the event a highway includes two or more separate roadways the term 'roadway' as used herein shall refer to any such roadway separately but not to all such roadways collectively."
By reference to Section 42 of the Act ( 68-1642, Ga. Code, Ann.), it appears that a highway may be divided into two or more roadways; (1) by leaving an

571

intervening space; (2) by a physical barrier; or (3) by clearly indicated dividing sections so constructed as to impede vehicular traffic.
In your letter you state:
"The Highway Department has several ways in which they divide the four and six lane highways; i.e., (1) a wide grass median with center fence, (2) a raised or slightly elevated concrete median approximately 30 inches in width dividing the highway, some with rough or corrugated surface while another may have a smooth surface, (3) a four or six lane road simply divided by a center pointed line."
I am of the opinion that a highway may be divided into "roadways," as defined in the Act and within the meaning of Section 67 (c) ( 68-1667 (c), Ga. Code, Ann.) by a grass median and fence, or by a raised concrete median strip, but not by a painted line running longitudinally along the highway.
Answering your second question:
Section 4 (g) of the Act ( 68-1504 (g), Ga. Code, Ann.) defines a limited access highway as:
"Every highway, street, or roadway in respect to which owners or occupants of abutting lands and other persons have no legal right of access to or from the same except at such points only and in such manner as may be determined by the public authority having jurisdiction over such street, highway, or roadway."

Answering your third question:

I again quote the applicable portions of Code Section 68-1667:

"(a) The driver of a vehicle upon a highway upon meeting or

overtaking from either direction any school bus which has stopped on

the highway for the purpose of receiving or discharging any school

children shall stop the vehicle before reaching such school bus and shall

not proceed until such school bus resumes motion, or until signalled by

the driver to proceed."

*

* * *

This Section should be strictly construed as to give full force and effect of

the exercise of the police power which it purports to convey.

It is therefore my opinion that loading or unloading children at a curbed roadway over the curb would be considered a loading zone within the meaning of this Section, although the school bus might be stopped in a parking lane.

UNIVERSITY SYSTEM OF GEORGIA-Admissions (Unofficial)
The Constitution of the State of Georgia vesting all control and management of the University System in the Board of Regents, the Regents or one of the schools within the system may adopt any admission requirements which do not violate any law.
September 7, 1960 Dr. John B. Riggsbee
In response to your recent request for opinion as to the legality of certain requirements by the Georgia Institute of Technology of new entering students

572
concerning physical examinations, vaccination against smallpox and immunization against tetanus and poliomyelitis, in the face of request by the Christian Science Church for exemption from these requirements because of Section 32-911, Georgia Code, I wish to submit the following.
The Constitution of the State of Georgia 1945, Code Section 2-6701 provides in part as follows:
"Board of Regents of the University System.-There shall be a Board of Regents, of the University System of Georgia, and the government, control, and management of the University System of Georgia and all of its institutions in said system shall be vested in said Board of Regents of the University System of Georgia."
Code Section 32-113 provides:
"Government of University of Georgia.-The management and government of the University of Georgia, and all of its branches named in Section 32-103 are vested in the Board of Regents."
Likewise Code Section 32-115:
"Government of branches vested in Board of Regents.-The government, control, and management of each of the institutions named in Section 32-103 are hereby vested in the Board of Regents."
Code Section 32-103, among other institutions, lists the Georgia Institute of Technology.
The By-Laws of the Board of Regents of the University System of Georgia adopted November 8, 1950, Section VI, "Institutions of the University System," Section C "Students," provide in part as follows:
"1. Admission and Discipline of Students. "The admission of students are matters lying within the jurisdiction of the institutions. Students violating the rules and regulations of an institution may be punished, suspended, or expelled as the nature of the case requires."
The statutes of the Georgia Institute of Technology adopted by the faculty April 3, 1956, and approved by the Board of Regents of the University System of Georgia May 9, 1956, provide in part as follows in Article 2, Section D:
"2. Director of Health. The Director of Health shall be appointed by the President upon the recommendation of the Dean of Students. He shall be the chairman of the Infirmary Committee. He shall be responsible to the Dean of Students, and his duties and responsibilities shall be those ordinarily implied in his office, among which the following are specifically mentioned:
a. He shall have medical supervision of all students.
b. He shall be responsible for giving each student the periodic physical examination required under the Institute regulations."
The general regulations and entrance requirements promulgated by the Georgia Institute of Technology in its General Catalogue and Announcements

573
for 1960-61, on page 24 thereof under "Physical Examination" provide in part, as follows:
"A complete medical history and physical examination is compulsory for each student. Examinations will be given after arrival on campus.... At the time of his physical examination each student will be responsible for declaring any handicap for which he wishes consideration in his military and physical training program. Each student should be prepared at the time of his physical examination to give information as to his medical history as follows: (6) dates of smallpox, tetanus toxoid. In addition, at least two poliomyelitis vaccinations must be taken before entrance, and arrangements can be made at the school to take the' last vaccination."
In the case of Vallyard et al. v. Regents of the University System of Georgia, decided by the Supreme Court of Georgia, Vol. 204, Georgia Reports, page 517, the Court held:
"Regents are untrammeled except by such restraints of law that are directly expressed or necessarily implied; under the powers granted, it becomes necessary ... to look for limitations, rather than authority to do specific acts . . . Limited only by their proper discretion and by the Constitution and laws of this State. . "
Code Section 32-911 provides as follows:
"Vaccination of pupils of public schools.-The boards of education of each county may make such regulations as in their judgment shall seem requisite to insure the vaccination of the pupils in their respective schools and may require, all scholars or pupils to be vaccinated as a prerequisite to admission to their respective schools.
"This Section shall not apply to scholars or pupils. whose parents or guardians 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 does not apply to scholars or pupils whose parents or guardians shall present to said board the written statement of a practicing physician that a scholar or pupil shall be exempt for reasons of health or because of previous adverse reactions to vaccinations."
It is my opinion that Code Section 32~911, strictly construed, applies only to county boards of education and should not be extended by construction or implication so as to repeal or amend the Constitutional Provisions and the State Laws applicable to the powers of the Board of Regents. of the University System of Georgia to make rules and regulations with respect to entrance requirements for any of its institutions, and that the Georgia Institute of Technology has the legal right to adopt and enforce admission requirements for entering students concerning physical examinations, vaccination against smallpox and immunization against tetanus and poliomyelitis.

574
UNIVERSITY SYSTEM OF GEORGIA-Board of Regents (Unofficial)
All presidents of State supported colleges and universities in Georgia are appointed and removed from office by the Board of Regents and are completely answerable to that Board.
March 10, 1961
Mr. Paul Walker
We are in receipt of your letter in which you request information concerning the legal status of presidents of State supported colleges and universities in Georgia.
In our State, the University System of Georgia is governed by a Board of Regents, which was made a constitutional body by a Constitutional Amendment, ratified August 3, 1943.
More specifically, we direct your attention to the following Code Section:
"32-127. General powers of Board.-The Board of Regents shall have power: ... ; (2) to elect or appoint professors, educators, stewards, or any other officers necessary for all of the schools in the University System, as may be authorized by the General Assembly to discontinue or remove them as the good of the system or any of its schools or institutions or stations may require, and to fix their compensations; ... "
In view of the above, we advise that all presidents of State supported colleges and universities in Georgia are appointed and removed from office by the Board of Regents and are completely answerable to this Board.
UNIVERSITY SYSTEM OF GEORGIA-Board of Regents (Unofficial)
Use of corpus of bequest to Fort Valley State College, in addition to interest, for scholarships discussed.
October 18, 1960 Mr. L. R. Seibert
You made certain inquiries in regard to a bequest to Fort Valley State College:
(1) Whether the corpus of the fund bequeathed to Fort Valley State College may be used in granting scholarships to students of the institution under which proposal there would be no repayment of the scholarship.
(2) Whether Fort Valley State College could make loans to students from the corpus of the fund, or whether loans should be limited to the interest from the corpus.
Under a Codicil executed May 25, 1956 to the Will of Sadie Waldron Caldwell, dated September 8, 1950, under Item V., it is provided in part as follows:
"I give and bequeath the following sums to the following organizations and persons:

575
" ... TEN THOUSAND DOLLARS ($10,000.00) to FORT VALLEY STATE COLLEGE (formerly Fort Valley Normal & Industrial School), to be used for scholarships for worthy and needy negro students; ... "
Under the provisions of the Georgia Constitution set out in Code Section 2-7401, the Regents of the University System of Georgia may accept bequests, donations and grants of lands or other property for the use of their respective systems of education. Any property, real or personal, that is deeded, devised or given to any institution in the University System shall be considered for a public purpose and a charitable trust, vesting title in the Board of Regents to be held in trust for the benefit and use of the institution entitled thereto, it being stated in the Georgia Code to be the intent and purpose of the General Assembly that each institution for which property is held in trust shall receive the use and benefit of the property devoted to its use. (Code Section 32-117, 32-118, 32-119, 108-210.)
Since the government, control, and management of each of the institutions named in Code Section 32-103 are vested in the Board of Regents (Code Section 32-115), and the subject legacy and bequest is to the Fort Valley State College in the amount of Ten Thousand Dollars ($10,000.00) for the purpose of being used for scholarships. for worthy and needy negro students, it is my opinion that the Board of Regents may expend and use all or part of the corpus and/or income from the bequest for scholarships for worthy and needy negro students at the Fort Valley State College, under any rules and regulations promulgated by the Board of Regents with respect to scholarships in the Fort Valley State College.
UNIVERSITY SYSTEM OF GEORGIA-Board of Regents (Unofficial)
The Board of Regents may grant scholarships to qualified persons.
June 12, 1961
Mr. Charles L. Perkins
I am pleased to acknowledge your letter relative to whether any legislation to permit the formation of a non-profit scholarship plan or similar educational cooperative has been passed in the Legislature of the State of Georgia during the current session, or if there is any existing legislation of this type in Georgia.
The Constitutional Amendment, ratified on November 4, 1958, dealing with the granting of scholarships to students by the Board of Regents of the University System of Georgia, set out in the Georgia Annotated Code in Section 2-5402, provides. as follows:
"The Board of Regents of the University System of Georgia shall have the authority to grant to qualified students, who are citizens and bona fide residents of the State of Georgia and who would not otherwise have available the funds necessary to obtain an education, such scholarships as are necessary for them to complete programs of study offered by institutions of the University System of Georgia, with the exception of the program leading to the degree of Doctor of Medicine. The terms and conditions thereof shall be prescribed and regulated by the Board

576
of Regents but shall include the condition that recipients of such scholarships shall, upon the completion of their programs of study, reside in the State of Georgia and engage in activities for which they were prepared through the scholarships for a period of one year for each $1,000 received. The General Assembly shall appropriate such funds to the Board of Regents of the University of Georgia as, it sees fit in order to carry out the purposes of this provision.
"It shall be the duty of the Board of Regents to receive and pass upon, allow or disallow all applications for scholarships; to contract, increase, decrease, terminate and otherwise regulate all grantS< for scholarships; and to manage, operate and control all funds appropriated for this purpose."
Implementing this Constitutional Amendment, the Legislature, in the Appropriations Act, adopted by the General Assembly in 1961, included among other things, the following provision of law:
" ... for scholarships authorized by law $100,000.00; .. "
UNIVERSITY SYSTEM OF GEORGIA-Board of Regents (Unofficial)
The Board of Regents has authority to re-name institutions when there is a similarity of existing names.
November 27, 1961
Mr. J.D. Dugan
Mr. L. R. Siebert, Executive Secretary of the Regents of the University System of Georgia, has turned over to us your letter concerning authority of the Board of Regents to re-name an institution.
Section 32-126 of the Georgia Code Annotated sta,tes: "Power to rename institutions.-Where similarity in names among
the several institutions gives rise to confusion, the Regents may rename the same. (Acts 193R, p. 62.)"
Pursuant to the above Code Section, the Regents of the University System of Georgia adopted two Resolutions changing the name from South Georgia Teachers' College to the Georgia Teachers' College, and later to Georgia Southern College. We are enclosing a certified copy of the excerpts of the minutes of the meetings of the Board of Regents noting these changes.

577
UNIVERSITY SYSTEM OF GEORGIA-Board of Regents:
A corporation may submit a bid on management of apartments for Board of Regents even though a member of Board of Regents is a director of the corporation.
April 14, 1961
Dr. Harmon W. Caldwell, Chancellor Regents of the University System of Georgia
I am in receipt of your reque:st for an opinion on the question of whether a corporation is precluded from submitting a management bid on apartments to the Board of Regents. because a member of the Board is Chairman of the Board of Directors of said corporation.
The Georgia statutes pertinent to this particular situation are: Code Sections 89-904 and 89-916 which state:
"89-904. Interest of trustees,. officer, or partner in contract with State institution.-No member of the Board of Regents of the University System or of the Board of Control of Eleemosynary Institutions or trustee or other officer of any State institution which is wholly or in part supported by the funds of the State, nor any partnership of which he is a member, shall make any contract with the governing board or trustees of such institution or any officer of such institution for the sale and purchase of merchandise or supplies for such institution whereby profit shall accrue to such board member or trustee or such partnership of which he is a member, nor shall such trustee or officer of such institution make any profit or receive any money for the sale, handling or disposal of any crop or crops or property of such institution, nor shall such member, trustee or other officer of such institution make or be interested in any contract for supplies or merchandise for such institution, when such contract or the making of the same, is wholly or in part made or influenced by the action of the board governing such institution or the trustees thereof or is controlled by any officer of such institution, and any and all such contracts are hereby declared to be illegal and void: Provided, that any such contracts as are herein described may be made with a corporation of which any such board member or trustee is a stockholder if such member or trustee shall not vote on, nor participate in, the making of such contract: Provided further, that no board member or trustee of such State institution shall be prohibited from making contracts for furnishing supplies to the students or faculty of such institution for their individual use."
89-916. Members of boards and agencies prohibited from contracting with agencies of which they are members.-No person who is a member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall engage in any transaction with any such board, bureau, commission, committee or other State agency, or any such authority, on which such person is a member."
It is pointed out that 89-904 pertains to the "purchase of merchandise or supplies" as contrasted with a bid for the rendering of a service, i.e., the management of apartments which is the kind of bid involved here.

578
As to 89-916, that Code Section prohibits persons from contracting with a State agency. In the situation in question, a corporation which obviously is not a member of the Board of Regents, seeks to submit a bid.
Also, in Georgia Laws 1959, p. 35, and more particularly Section 2 of Act No. 24, said Act refers to the sale of "goods, wares or merchandise, personal property or other chattels," in prohibiting an agent of the State from contracting with the State for the sale of such goods. The situation in question appears to be entirely different as the, sale of "goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof" is not involved.
In view of the above, I am of the opinion that the Draper-Owens Company can submit a bid to the Board of Regents for the management of apartments owned by the Georgia Institute of Technology at the Naval Air Station.
UNIVERSITY SYSTEM OF GEORGIA-Board of Regents (Unofficial)
Types of investments permitted of Board of Regents of University System of Georgia discussed.
October 31, 1960
Mr. L. R. Siebert
I have for consideration correspondence from the State Board of Regents in Des Moines, Iowa, addressed to Governor Ernest Vandiver, with reference to types of investments permitted under Georgia law by the Board of Regents and State institutions of higher education. The inquiry is particularly concerned with the investments of funds received through endowments, gifts, etc.
In attempting to answer this inquiry my investigation has proceeded along the lines of (1) determination of the Regents of the University System of Georgia to accept bequests and donations; (2) the impression of a charitable trust upon the handling and investment of such funds; and (3) the rights and limitations as to investments of funds held by a trustee or fiduciary.
Georgia Code Section 2-7401 provides that the State Board of Education and the Regents of the University System of Georgia may accept bequests, donations and grants of land, or other property for the use of their respective systems of education. Any property, real or personal, that is deeded, devised or given to any institution in the University System shall be considered for a public purpose and a charitable trust, vesting title in the Board of Regents to be held in trust for the benefit and use of the institution entitled thereto. (Code Sections 32-117, 32-118, 32-119 and 108-210.)
Code Section 32-144 provides as follows:
"Investment of trust funds.-It shall be lawful for the Board of Regents of the University System of Georgia to invest any trust funds held by said Board in real estate and/or in any improvements or buildings which the said Board in its discretion may see fit to make or erect thereon: Pl'ovided, however, that no money belonging to any trust fund

579
shall be used for such purpose or purposes if such use or uses would be contrary to the specific provisions of the instrument setting up the trust and provided all investments made of trust funds under this Section shall in the judgment of the Board of Regents. of the University System of Georgia be revenue producing investments wherever the trust funds so invested are of a trust which requires investment to produce revenue. (Acts 1937, p. 901.)"
Code Section 108-417 provides as follows:
"Investment in bonds and other securities. - Any trustee holding trust funds may invest the same in bonds or other securities issued by this State, making a true return of the price paid and time of purchase. Such investments shall be free from taxation as long as held for the trust estate. Trustees are also authorized to invest trust funds in the bonds or other obligations issued by the United States Government, and in the bonds of any corporation ereated by an Act of Congress, the bonds of which said corporation so created by the said Act of Congress are guaranteed by the United States Government. No person, firm, corporation, or association shall be liable to account for a greater rate of int.erest than the amount actually received on said investment. Any other investments of trust funds shall be made under an order of the Superior Court, either in term or granted by the judge in vacation, or else at the risk of the trustee: Provided, however, that deposits of funds at interest in any chartered State or national bank or trust company, located in this State, and which is insured by the F'ederal Deposit Insurance Corporation, shall be deemed investments, and such deposits are authorized as legal investments, to the extent that said deposits are insured by the said Federal Deposit Insurance Corporation, without any order or authority from any court. (Act 1845, Cobb, 333. Acts 1860, p. 31; 1861, p. 32; 1935, pp. 483, 484; 1953, pp. 108, 109.)"
Code Section 113-:1.518, repeating a good many of the powers of investment set out in Code Section 108-417, in addition provides as follows:
" . . . Executors, administrators, guardians, and trustees are authorized, unless otherwise provided in the fiduciary instrument, to retain the property owned by the estate, ward, or cestui que trust, even though such property may not otherwise be a legal investment, and shall not be liable for such retention, except for gross neglect. . . . "
There are many statutes codified in the Georgia Code which make the bonds and obligations of specific governmental instrumentalities legal investments for fiduciaries, such as housing authority bonds declared to be legal investments, Code Section 99-1136 and 99-1162; bonds issued by housing authorities on redevelopment or renewal projects, Code Section 99-1210a; obligations of State Parks Authority, Code Section 43-629; State Ports Authority, Code Section 98-216; Veterans Resettlement Corporation, Code Section 78-520; Rural Roads Authority, Code Section 95-2630; State Toll Bridge Authority, Code Section 95-2427; School District Bonds, Code Section 108-420; University System Building Authority Bonds, Code Section 32-120a; Investment in Accounts and Certificates in State Chartered Associations and Federal Savings and Loan Associations, Code Section 16-437.

580
UNIVERSITY SYSTEM OF GEORGIA-Campuses (Unofficial)
Discussion of authority of Athens police on University of Georgia campus.
January 31, 1961
Honorable James Barrow
This will acknowledge receipt of your request for my opinion as to the authority of the police officers of the City of Athens on the campus of the University of Georgia.
I direct your attention to the provisiOns of Section 10 of an Act approved August 24, 1872 (Georgia Laws 1872, page 127), which provides:
"Sec. 10. Be it further enacted, "That the mayor and each member of the city council shall be ex-officio a justice of the peace, so far as to enable any one of them to issue warrants for offenses committed within the corporate limits of the city of Athens, to suppress riots or breaches of the peace, arrest, confine, commit or bind over offenders against the laws of this State, to ~J,nswer for such offense before the proper tribunal."
Code Section 91-402 relates to the authority of the Governor as to the supervision of property of the State. Code Chapter 32-1 relates to the Board of Regents in the University System and the manner in which title to the property is held.
Even though there is some question as to whether or not a city, as a creature of the State, may exercise police jurisdiction over the property of the State, it would appear that authority to exercise police jurisdiction could be obtained in one of two ways.:
(1) By the General Assembly conveying such authority, either by general or special Act, there being no general law in conflict with the special Act,
or,
(2) The State (under the provisions of Article VII, Section VI, Paragraph I of the Constitution), either through some instrumentality or officer of the State, contracting with the City of Athens to provide police service upon this property.
In view of the above, I am of the opinion that the police officers of the City of Athens may exercise police jurisdiction over the campus grounds of the University of Georgia.
I am further of the opinion that to remove any question as to this matter, you seriously should consider entering into an agreement between the governing authority of the University System and the City.

581
UNIVERSITY SYSTEM OF GEORGIA-Georgia Institute of Technology
Security Officers at Georgia Tech who are sworn as Special Deputy Sheriffs and as. Special Officers of the Atlanta Police Department are clothed with authority to make arrests, conduct preliminary investigations, and exercise routine police authority upon the campus and grounds.
June 6, 1961
Dr. Harmon Caldwell, Chancellor University System of Georgia
I wish to acknowledge your recent letter with reference to the status of the security officers at the Georgia Institute of Technology who have been sworn in at the Office of the Sheriff of Fulton County as Special Deputy Sheriffs and who have posted the required bond; also, who have been sworn in with the Atlanta Police Department as Special Officers of the City of Atlanta. You ask specifically whether these special officers are clothed with authority to make arrests, conduct preliminary investigations, and exercise routine police authority.
Code Section 26-4901 of the Georgia Annotated Code provides as follows:
"Who may be appointed. Assuming to act without appointment.No sheriff, mayor, or other person authorized by law to appoint special deputy sheriffs, constables, marshals, policemen, or other peace officers, or detectives, to preserve the public peace or detect crime, shall appoint, as such special deputy, special constable, marshal, policeman, or other peace officer, or detective, any person who is not a citizen of this State, and no person shall assume or exercise such functions, powers, duties, or privileges incident and belonging to the office of special deputy sheriff, special constable, marshal, or policeman, or other peace officer, or detective, without first having received his appointment in writing from the lawfully constituted authorities of the State."
Code Section 27-207 of the Georgia Annotated Code states:
"Arrest without warrant.-An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant."
In the case of Mullis v. The State, 196 Georgia Reports at page 576, the Court held:
.. Jenkins, Presiding Justice. 1. Under the Code, 27-207, 'an arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant;' and under 27-211, even 'a private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge.' 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 tbe municipality committed in the city limits, falls within the protection of the Code Section first above cited. Thus, a city police officer has authority to arrest without

582
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. Graham v. State, 143 Ga. 440 (2a, 3a) (85 S. E. 328, Ann. Cas. 1917A, 595); Faulkner v. State, 166 Ga. 645, 665 (144 S. E. 193); Porter v. State, 124 Ga. 297, 300 (52 S. E. 283, 2 L. R. A. (N. S.) 730), and cit. . . . "
Code Section 26-5102 authorizes deputy sheriffs, marshals, policemen, and other arresting officers, acting in the discharge of their official duties, to carry weapons.
From the foregoing authority, I am of the opinion that the Special Officers, if and when they have received their written appointments from the proper authorities, and upon being duly sworn, and having posted the required bond, are clothed with authority to make arrests, conduct preliminary investigations, and exercise routine police authority upon the campus and grounds and properties of the Georgia Institute of Technology.
UNIVERSITY SYSTEM OF GEORGIA-Liability
The Board of Regents and Georgia Institute of Technology are immune from claim and suit for damage to persons as a result of activities of a Parachute Club.
December 20, 1961
Dr. Harmon W. Caldwell, Chancellor Regents of the University System of Georgia
This is in acknowledgment of your request for my opmwn whether the Georgia Institute of Technology or the Board of Regents would be legally liable for any injuries suffered by any person participating in the program of a Parachute Club contemplated to be organized as a student activity at Georgia T'ech.
In a recent case of James S. Peters, et al., v. William K. Boggs, eta!., decided by the Supreme Court on November 21, 1961, it is stated:
"A suit cannot be maintained against the State without its statutory consent. This general rule cannot be evaded by making an action nominally one against the servants or agents of a State, when the real claim is against the State itself and it is the party vitally interested."
Cited in support thereof are the following cases: Cannon v. Montgomery, 184 Ga. 588; Roberts, Commissioner, et al. v. Barwick, et al., 187 Ga. 691; Musgrove v. Georgia Railroad & Banking Company, 204 Ga. 139; Florida State Hospital for the Insane v. Durham Iron Company, 194 Ga. 350; Fleisher v. Duncan, 195 Ga. 309; and Georgia Public Service Commission, et al. v. Atlanta Gas Light Company, 205 Ga. 863.
We call your attention particularly to the case of Ramsey v. Hamilton, 181 Ga. 365, wherein it is stated that a suit against the Regents of the University System of Georgia is in effect a suit against the State and cannot be maintained without its consent.

583
In my opinion the Board of Regents and Georgia Institute of Technology, as departments of the State of Georgia are, under the law, granted immunity from claims and suits for damages to persons or property as a result of the activities of a Parachute Club organization at Georgia Tech.
As pointed out by members of my Staff to Dr. E. D. Harrison, President of the Georgia Institute of Technology, and representatives of the Parachute Club, certain practical safeguards should be instituted as a part of the organization of the Club for the protection of members of the Club and the public generally.
In this connection we suggest to Dr. Harrison and representatives of the Club that waivers against liability should be executed by those members of the Club participating in the activity of legal age, and by the parents or guardians of members not sui juris. Also, public liability and property damage insurance should be carried for the Parachute Club; also, hospitalization insurance should be purchased, covering members of the Club against the expenses of injuries that might be sustained.

UNIVERSITY SYSTEM OF GEORGIA-Students

Discussion of authority of deans and other officials of University System to take disciplinary action affecting students.
April 12, 1961

Dr. Harmon Caldwell, Chancellor Regents of the University System of Georgia

I am in receipt of your letter in which you request my opinion on the authority of deans to take disciplinary action affecting students in our State supported colleges and universities.

As you are aware, the University System of Georgia is governed by the Board of Regents, and with respect to this, I direct your attention to the following code section:

"32-127. Authority to establish regulations, Regents vested with

powers, etc., of former boards.--The Board of Regents may establish

such rules and regulations for their own direction, as they may deem

proper; may fix the term of office of their chairman, their vice chair-

man, and their secretary, and are vested with all of the powers, privi-

leges and rights vested in former boards of trustees or directors of its

branches, named in section 32-103; and they are charged with all of the

duties, obligations, and responsibilities incumbent upon and/or pertain-

ing to said former boards."

'

In 14 C.J.S., Sec. 26, p. 1360, the general rule of law governing this question is stated as follows:

"Broadly speaking, the right of a student to attend a public or private college or university is subject to the condition that he comply with its scholastic and disciplinary requirements, and the proper college authorities may in the exercise of a broad discretion formulate and enforce

584
reasonable rules and regulations in both respects. The courts will not interfere in the absence of an abuse of such discretion."
In the case of John B. Stetson University v. Hunt, 102 So. 637, 88 Fla. 510, it was held that there is inherent in any college or university a duty on the part of its students to conduct themselves in a manner conducive to the proper administration of the institution.
In the case of Pyeatte v. Board of Regents of University of Oklahoma et al, 102 F. Supp. 407, the Court held:
"As used in the Oklahoma constitutional provision that Board of Regents shall make rules, regulations and bylaws for the good government and management of the State university, and of each department thereof, the term ''government" is very broad and necessarily includes power to pass all rules and regulations which the Board considers to be for the benefit of the health, welfare, morals and education of the student, ..."
This decision was affirmed by the United States Supreme Court in 72 S. Gt. 567.
Also, in McGinnis v. Walker, 40 N. E. 2d 488, the Court of Appeals of Ohio held, "University and college authorities may make all necessary and proper rules and regulations for the orderly conduct of their institution, and preservation of discipline therein, ..."
In view of the above authorities, I am of the opinion that as long as officials of the colleges and universities of the State of Georgia act in good faith while discharging their duties and responsibilities in enforcing the reasonable rules and regulations set down by the colleges and universities, they would not be liable to any student expelled for breaking said rules and regulations.
UNIVERSITY SYSTEM OF GEORGIA-Students (Unofficial)
A student must be a resident of Georgia one year before eligible for resident tuition rates.
October 31, 1961
Mr. L. R. Siebert
I am in receipt of your letter in which you request my views on the question of whether Mr. Harry Franklin Jacques is entitled to pay in-state tuition fees at the University of Georgia.
I have carefully studied the law and the appropriate regulation adopted by the Board of Regents applicable to this situation, and find that the primary question here is not whether Mr. Jacques is a resident of Georgia, but whether he has been a resident for at least one year prior to entering the University of Georgia as a student.
I do not contest the fact that Mr. Jacques is a legal resident since he has moved to Georgia and intends to stay here. The act of moving to Georgia, plus the presence of a person's intent to stay here, satisfies the residence requirements under Georgia law.

585
Attorney W. J. Jacques, Jr., Mr. Jacques' brother, states that the Office of Registrar of the University of Georgia has rejected Judge Wheeler's definition of residency, and upon that basis has assessed out of state tuition fees against his brother. However, this is not the case. The Registrar has not rejected Judge Wheeler's definition of residency; instead, he is simply saying that Mr. Jacques has not been a legal resident of Georgia for one year prior to entering the University of Georgia as a student. Therefore, he has not qualified, under the appropriate regulation of the Board of Regents, for in-state tuition fees.
I point out that if Mr. Jacques, is a minor, and his brother has been duly appointed his guardian, the former would be entitled to in-state tuition fees at the expiration 'of one year from the date of the appointment.
In view of the above, it is my opinion Mr. Harry Franklin Jacques, must pay out of state tuition fees until he has been a legal resident of the State of Georgia for one year.
VETERANS-Licenses (Unofficial)
The tax exemption certificate for disabled veterans is only applicable to fees for exercising rights and does not apply to privileges.
May 3, 1960
Mr. Grady E. Rozar
This is in reply to your recent letter in which you request my opinion as to the legality of the conviction of a disabled veteran for the violation of City of Atlanta Ordinance number 40.18. The Ordinance in question states:
"It shall be unlawful for any person to solicit, upon the sidewalks or streets of the city, other than in front of his own place of business. This section shall not apply to street vendors, or soliciting by persons, who move along the streets, or any soliciting authorized by ordinance at the time of the enactment of this section. The intent of this section is to prohibit solicitors from occupying the sidewalks and streets in front of places of business other than their own."
The above Ordinance appears to be regulatory in nature and does not impose an occupational license tax. This being true, a disabled veteran who has a tax exemption certificate would not be exempt from its provisions. The Supreme Court of this State in the case of City of Marietta v. Howard, 208 Ga. 719, held:
"The provisions, of Code (Ann.) 84-2011 have reference only to fees for exercising rights and do not apply to privileges."
The Supreme Court reaffirmed this interpretation in the case of Campbell, Commissioner of Agriculture v. Williams, 215 Ga. 717.

586
VETERANS-Licenses (Unofficial)
The license exemption afforded to veterans is personal and does not extend to a corporation owned by a veteran.
March 7, 1961
Mr. Julian Webb
This is in response to your letter in which you asked whether a corporation in which all or a majority of the stock is owned by a veteran who qualifies for an exemption from license fees for conducting a business under Ga. Laws 1953, November session, page 431, et seq., (Codified as 84-2011 et seq., Ga. Code Ann.) is entitled to the same exemption to which the veteran is entitled. In my opinion, the corporation is not entitled to such an exemption. The exemption provided is personal to the veteran and cannot be transferred to any other person, natural or artificial.

WILLS AND ADMINISTRATION OF ESTATES-Bequests (Unofficial)

Courts will generally honor a desire of a deceased as to the disposition of his body.

June 23, 1961

Mr. Thomas N. Dwyer

I have for acknowledgment your letter with reference to the matter of one of your faculty members who desires to will her body to the Medical College of Georgia.

There is no Georgia statute dealing with this matter of the disposition of

one's body, nor do we find any cases where the Georgia Appellate Courts have

considered the subject. Our investigation discloses that while some American

decisions follow the English doctrine that a man cannot by will dispose of his own

dead body, the weight of authority and the trend of American cases, is to honor

the instructions of the deceased as to the disposition of his body. There are

statutes in a number of states providing that a person may in his lifetime direct

what is to be done with his body after death.



It would be our suggestion that your faculty member consult with their attorney, and suggest that a provision be placed in the will to the effect that upon her death she directs that her body be turned over to the Medical College of Georgia, for autopsy, analysis of tissue and organs, and for such disposition as the Medical College of Georgia may see fit, the same being done for scientific purposes to be performed by the teaching institution.

587
WILLS AND ADMINISTRATION OF ESTATES-Executors (Unofficial)
There is no prohibition against a non-resident appointing a national bank in Georgia to be executor of }lis will.
September 15, 1960 Honorable A. D. Black
Thank you for your letter requesting an opmwn as to whether or not it would be legal for a non-resident of Georgia to appoint a national bank in Georgia as an executor and trustee of 'his Will and Trust, respectively.
In my opinion, such an appointment would be legal. In the event the nonresident should decide to make such an appointment, I urge him to employ Georgia counsel in order to insure that the necessary documents will be drawn in such a manner as to reflect and implement the non-resident's intentions.

WILLS AND ADMINISTRATION OF ESTATES-Generally (Unofficial)

Discussion of general law pertaining to wills. Dr. R. E. Barton

February 22, 1961

This is to acknowledge receipt of your letter of recent date making inquiry as to the law concerning wills.

A married woman may make a will just as freely as a man in Georgia. The testator of a will should sign, or acknowledge his signature, in the presence of the witnesses, and the witnesses should sign in the presence of the testator.

I am unable to tell you what the cost would be in the probation of a will. It would depend upon whether the will was contested, and other things which might enter into it. There is no tax on a will in Georgia.

You ask if the law requires that a will be written by an attorney. The law does not require that a will be written by an attorney. However, it is always advisable to have such an instrument prepared by an attorney.

The law does not require any particular language for a will, but a will should always be in such language that it can be clearly and easily understood.

WORKMEN'S COMPENSATION-Benefits

When permanent disability payments to begin explained.

Honorable Fulton Lovell, Director State Game & Fish Commission

November 29, 1961

You request my opinion when the award of the State Board of Workmen's
Compensation, dated October 19, 1961, Case # 13915-M requires the State Game
and Fish Commission to begin payments on permanent disability.

588
From a review of the prior award in this matter by the State Board of Workmen's Compensation, dated November 22, 1960, it is found that the Claimant elected to receive sick leave in lieu of compensation for nine days immediately after this injury on June 18, 1960. It should further be noted that after that award the Claimant had two operations, one in February, 1961, and one in March, 1961, to attempt to lessen the disability he was suffering in his leg. At best, it could be said that these operations were only partly successful in lessening that disability as a physician on September 11, 1961, found that the Claimant had an 80% disability in the right lower extremity which he classifies as permanent partial. This finding by the doctor was stipulated to the State Board of Warkmen's Compensation and they entered the award of October 19, 1961.
To advise you from what date this permanent disability payment should run, it is necessary to refer to Georgia Code Annotated, Section 114-406:
"In the cases included by the following schedule the permanent partial industrial handicap in each case shall be compensated by payments for the period specified, and the compensation so paid for such handicap shall be as specified therein and shall be in lieu of all other compensation for the permanent partial handicap. In addition to the compensation provided in the schedule for permanent partial handicap, compensation for total incapacity for work, as provided in section 114-404, shall be paid, but compensation for total incapacity for work shall in no case be paid for a period longer than 10 weeks.
* * *
" (o) Loss of a leg, 60 per centum of average weekly wages during 225 weeks.
* * *
" (s) Total loss of use of a member or loss of vision of an eye shall be considered as equivalent to the loss of such member or eye. The compensation for partial loss of, or fo,r partial loss of use of, a member or, for partial loss of vision of an eye, shall be such proportion of the payments above provided for total loss as such partial loss bears to total loss. Loss of both arms, hands, legs, or feet, or any two of these members, or the permanent total loss of vision in both eyes, shall be deemed permanent total incapacity and shall be compensated under section 114404."
You will note that when a permanent partial disability occurs to a listed member there are two periods of compensation provided for, (1) compensation for total incapacity for work, and (2) compensation for the permanent partial handicap. As you will further note, the first is in no case to be paid for a period longer than 10 weeks. (Roddy v. Hartford Accident and Indemnity Co., et al, 65 Ga. App. 632). In the case being considered the claimant was only entitled to the incapacity for work type compensation from the date it would start, through the ninth day after the injury, and as was shown by the prior award, he elected to receive sick leave in lieu of compensation for this period. The second period mentioned above is for the permanent partial handicap and would normally begin with the ending of the first period. In this connection we quote to you from South v. Indemnity Insurance Company of North America, et al, 39 Ga. App. 47, as follows: "Under section 32 of the workmen's compensation act, as amended by the act of 1923 (Ga. L. 1923, p. 92), an employee who suffers a permanent and total loss of the use of a hand, by reason of an accident arising out of and in the course of

589
employment, may be allowed compensation at the rate of one half his weekly wages, for a period of not more than ten weeks, for total incapacity for work, and is entitled to receive one half of his weekly wages for an additional period of one hundred and fifty weeks as compensation for the permanent handicap."
In view of the foregoing and that there was no later amputation involved, I am of the opinion the payment of this compensation for permanent disability should date from the day following the last day claimant received leave in lieu of compensation, or in other words from the first day of his return to work after the injury, since there was less than a ten-week interval involved.
WORKMEN'S COMPENSATION-Benefits
When an award is made based upon a percentage of loss of earnings, the benefit may be reduced when the employee subsequently receives an increase in earnings.
December 14, 1961
Honorable Fulton Lovell, Director State Game and Fish Commission
I have your letter in which you request my opinion whether you can legally reduce the weekly payment to a claimant since he has received an increase in salary.
A review of the case file in my office indicates that at the time this man was injured on January 15, 1959, he was working as a Wildlife Ranger and was being compensated at the rate of $315.00 per month. The injury he suffered disabled him to the extent he was able to work only two weeks from January 1959 until August 16, 1960, at which time he returned to work with the State Game and Fish Commission at the rate of $255.00> per month. This information was submitted by stipulation to the State Board of Workmen's Compensation and they entered an award on October 18, 1960, decreasing payments to claimant from $30.00 per week to $8.31 per week for not to exceed 350 weeks.
Later, claimant received a raise in pay to $265.00 per month. On April 1, 1961, this information was submitted to the State Board of Workmen's Compensation by stipulation and on May 22, 1961, they entered an award directing payment to the claimant beginning "April 1, 1961, and continuing during partial disability, not to exceed 350 weeks from date of injury for sixty per cent of loss of earnings not to exceed $20.00 per week." When calculated out, it is my understanding that this weekly payment came to $6.92 per week.
Another salary increase was received by this employee on August 1, 1961, after which his salary was $275.00 per month. This change in condition was, by agreement, stipulated to the State Board of Workmen's Compensation, but no award has been entered thereon.
However, it does appear that the award of May 22, 1961, was entered with the idea of covering the probability of future changes in condition and providing for payment of compensation benefits based on his loss of earnings within the

590
limitations therein expressed. (Said award provides for payment of compensation on the basis of 60o/o of loss of earnings.)
Based upon the foregoing facts, it is my opinion that you can, under the award of May 22, 1961, decrease the weekly benefit payments to this claimant effective August 1, 1961, and issue payments. to him and his attorney in the decreased amount until a further change in his condition occurs.
However, I feel it should be further pointed out that this payment should be continued only while the claimant's partial incapacity for work resulting from the injury continues and then not for a period exceeding 350 weeks from the date of injury nor for a total amount of more than $6,000.
WORKMEN'S COMPENSATION~Claims (Unofficial) Filing of workmen's compensation claims can only be done by the claim-
ant or his legal representative. March 27, 1961
Dr. Marion A. Baldwin, M.D. Your question as I understand it is whether or not you, as the doctor for a
person injured while working, can file a claim and have a hearing and ruling by the State Board of Workmen's Compensation. This, of course, would be a question that addresses itself to private counsel. However, for your information and consideration, I quote to you from Georgia Code Annotated, Section 114-302:
"114-302. Claims not assignable.-No claim for compensation under this Title shall be assignable, and all compensation and claims therefor shall be exempt from all claims of creditors." In view of the above, and Georgia Code Annotated, Section 114-305, which relates to the claimant filing the claim and proceeding thereunder, and in the absence of finding any statutory authority permitting a third person so to proceed, it is my opinion that only the claimant or his legal representative in the matter would be authorized to institute proceedings.
WORKMEN'S COMPENSATION-Employees (Unofficial) Discussion of who is and is not a county employee for purposes of work-
men's compensation coverage. April 17, 1961
Honorable John S. Jones, Commissioner We are pleased to acknowledge receipt of your inquiry with reference to the
question of who is or is not a county employee for workmen's compensation and we are glad for the opportunity to review this situation and to give you our

591
informal thoughts on the subject. Your questions, as numbered in your letter, and our comments to each question separately follow.
1. Would elected officials such as Clerk of Superior Court, Sheriff, and clerical employees hired by such elected official be county employees when the elected officials are on a fee basis and compensate employees in their own departments?
In the case of Goss v. Gordon County, 35 Ga. App. 325, it was held that a county policeman is a public officer, and this case quoted 24 Ga. App. p. 7(2) where it was said that where the office is expressly established or expressly authorized by law, the status of the person elected or appointed to the office legally provided for is that of a public official. The status of policemen for workmen's compensation was changed by Acts 1953, p. 526. In the case of United States Fidelity and Guaranty Company v. Watts, 35 Ga. App. 447(2), the court held "The Treasurer of Sumter County became ex officio Clerk of the Board of Commissioners of Roads and Revenues of that county. As such he was an officer and not an employee." It appears therefore that an elected official such as the Clerk of the Superior Court or the Sheriff, for workmen's compensation, would not be considered an employee of the county. Whenever such an official under the law is on a fee basis, and his subordinate employees are paid by him from such fees, payment of wages not. being made to them by the county, they would be considered as employees of the official rather than as employees of the county.
2. Would persons employed by the County Health Department be considered county employees when the county does not have the authority to fix compensation or to hire and fire such employees?
County Boards of Health exist under authority contained in Code Sec. 88-201, and in referring to membership in the County Boards of Health, reference is had to such members taking an oath of office, "usually taken by other county officers". Also see Code Sec. 88-9902, a criminal statute covering violation of sanitary rules and regulations adopted by county authorities, mentioned in Code Sees. 88203 to 88-205. There appears to be ample provision in Code Chapter 88-2 for the functioning of such County Boards of Health, for their expenses to be paid out of the county treasury, and from other sources. Code Sec. 88-206. There is provision for a merit system for employees of the County Departments. of Health. Code Chapter 40-22. Salaries of County Health Departments employees are paid at the county level, after which the State Health Department reimburses the County Health Departments a percentage of 35% to 75o/o depending upon various factors. Also please note the case of Abel v. The State, 64 Ga. App. p. 448(4) where the court held "The Board of Health was created, not by a subordinate division of the government, but by statute, and derived its power to establish rules and regulations directly and solely from the Legislature." The preponderance of the language of the statutory law covering the creation and existence of County Boards of Health would lead to the conclusion that the County Board of Heatlh appears to exist as an operating arm of the county and their employees would therefore for workmen's compensation, be classified as county employees.
3. Would employees of a hospital operated under a Hospital Authority, members of the Authority being elected by members of the Authority to succeed themselves, with the county having no control over the members of the Board of Authority and not having title to the land upon which the hospital is built, and the county, its only connection with the hospital being to pay for the treatment of certain indigent persons?

592
The Hospital Authority which you mentioned no doubt was created and exists under authority of the law found in Code Chapter 99-15. A Hospital Authority so created is a public body corporate and politic, may sue and be sued, may appoint officers, agents and employees, may issue and sell negotiable revenue and participation certificates., may contract with political subdivisions, including the county, for the use of its facilities for providing medical care or hospitalization for the indigent sick and poor of the county. Code Chapter 99-15. The legal status of such an authority would lead to the inescapable conclusion that employees of such an authority are employees of the Authority, and are not employees of the county for workmen's compensation purposes. We are advised that Workmen's Compensation insurance is now being carried on the employees of forty-three (43) County Hospitals.
4. Would a juvenile probation officer who is employed part time and appointed by the Superior Court Judge, paid by the county, be an employee?
The subject of juvenile courts is treated in Code Chapter 24-24, and as you know, in many counties in the State the Superior Court Judge also serves as Judge of the Juvenile Court. Under the juvenile law he is authorized to appoint juvenile probation officers, compensation is fixed by the Judge, and their salaries are paid out of county funds. Their appointment, salaries, tenure are all under the merit system or such rules and regulations as may be established by the court. There is provision for removal for cause by the Judge. Code Sec. 24-2405. Code Sec. 24-2407 provides that "Administrative and professional personnel shall be under the direct supervision of the Judge." It appears therefore that the Juvenile Judge, or the Superior Court Judge serving as the Judge of the Juvenile Court is the official of the county under whose supervision the county juvenile probation officer functions. Such county juvenile probation officer would therefore be a county employee for workmen's compensation purposes.
5. Would teachers, school bus drivers, janitors, employed by the County Board of Education and being persons over whom the county has no control and no authority to hire and fire be employees when the Board of Education is the recipient of certain school funds?
The Constitution of 1945 gave constitutional rather than statutory status to County Boards of Education. Code Sec. 2-6801. 201 Ga. 833. The members of the County Boards of Education are selected by the Grand Jury. Code Sec. 32-902.1. The County Board of Education is not a body corporate but is an agency through which the county acts in school matters. 184 Ga. 641, 642. Also see 89 Ga. App. 637, 148 Ga. 577, 153 Ga. 758, 29 Ga. App. 665. The question, "How are the teachers in the public schools of a county to be selected and employed?" is discussed and decided in detail in the case of Tripp, County School Superintendent v. Martin, 210 Ga. 284. It appears therefore that employees of the County Boards of Education are in fact employees of the county. An official opinion on this subject . was given to the State Superintendent of Schools on May 29, 1959.
County employees of course are now covered by the Workmen's Compensation Act under the 1958 amendment (Acts 1958, p. 183). Ga. Code Sec. 114-101. You understand of course that the 1945 Constitution Code Sec. 2-5701(15) gave authority for the General Assembly to delegate to any county the right to levy a tax to
provide for workmen's compensation. The enabling act to effectuate the above
constitutional provision was passed by the Legislature, Acts 1946, page 87. And

593
again note the Act of 1958, p. 183, which specifically added counties as included under the definition of "employers."
You may wish to consult your county attorney with reference to procedure in levying a tax to provide for workmen's compensation for county employees. In this you may wish to examine the decision in the case of Murphy v. Constitution Indemnity Co., 172 Ga. 378 and also see 174 Ga. 590, 54 Ga. App. 81, and Code Sees. 32-942 and 92-3708.

595

INDEX OPINIONS OF THE ATTORNEY GENERAL

1960- 61

Page

ADOPTION See DOMESTIC RELATIONS, this index.

AGENCY

Insurance

Fiduciary responsibility to funds of insured ___

259

AGRICULTURE

Apples

Fiber separators may not be re-used

1

Commissioner

Power and Duties ______________

1

Fencing Laws

Discussed ____ _

3

Livestock

Fencing and range laws discussed ____ ___ ______________ _________________________ ________________ 3

Milk and Dairy Products

Oleomargarine, laws relating to discussed __________________ --------------------------------- 4

Plants processing for sale to military installations__ ------------------------------------ 4

Regulation by County Boards of Health

__ _______________________ ________________ 396

Soil Conservation Districts Agencies of State____ __________ _________ ______________________ _____________________ _________________________ 300

Wines Homegrown materials and for own consumption______________ ---------------------------- 290

ALCOHOLISM COMMISSION See PUBLIC HEALTH, this index.

AUTHORITIES

Area Planning Commissions, establishment discussed __________

5

Bonds

Interest exempt from income taxation ____________________________________________

496

Not obligations of State _______________________ _

32

Georgia Ports Authority

Power to enter into lease with private corporation

for 50 years __________________________ ------------------------------- -------------------------------------------- 8
Hospital Authorities Guarantors, county commissioners may not sign as ____________________________________ 58
Housing Authorities
Attorney, may employ city or county attorneys, or legislators__________________ 9 Bonds of authorities of other state subject to Georgia tax________________________ 487 Exempt from ad valorem taxation ______________________________________________________________________ 9 May not use special master under Urban Redevelopment law____________________ 10

Members, provisions for appointment____ ---------------------------------------------------------- 11 Steps necessary for compliance with housing authority law______________________ 12 Property State property, Governor may be required to keep insured__________________________ 12 Stone Mountain Memorial Association Roads in park may be constructed by Highway Department______________________ 252

596

Page

AVIATION Airports Operation of municipal airports by authorities ___________________ ------------------------ 13
Registration of Aircraft Unlawful to operate unless licensed by United States______ ------------------------- 16

BANKS AND BANKING

Capital stock

Increase must be in compliance with law________________________________ ----------------------- 17

Charters

Provisions in conflict with law are null and void__

17

Credit Unions must follow formation procedure to change name_______

19

Directors

May not authorize overdrafts by officer and employees, when__________

19

Must approve loans in excess of 10% of capital and surplus_______________

21

Executors and Trustees

No prohibition against being executor for a nonresident________________

587

Investments

Stock in qualified small investment companies____________________________________

26

Loans

"Lines of credit" are not to be confused with loans__________________________

19

Overdrafts by officers and employees -------------------------------------------------------------- 20

Prior approval required for loans over 10% of capital and surplus________ 21

Names

Credit Unions must follow formation procedure to change name____________ 19 Use of name of city by private bank_______________________________________________________________ 23

Negotiable Notes

Discussed

---------------------------------------------------------------------------------------------- 27

Officers and Employees

Directors may not authorize overdrafts by______

State Banks

Authority and methods of borrowing discussed________ ------------------------------------- 23 Purchase of stock in qualified small investment companies________________________ 26

Superintendent of Banks Appointment for less than four year term________________________________________________________ 466

Taxation

Tax on shares of stock in individuals' hands not tax on bank__________________ 482

BARBERS AND BEAUTICIANS See PROFESSIONS, BUSINESSES AND TRADES, this index.

BILLS AND NOTES

Negotiability

Discussed

27

BOATS AND BOATING

Crimes

Violation numbering act misdemeanor_______________ ---------------------------------------------- 29

Registration

Nonresidents required to register boats after 90 days in State______________ 30

Not required when privately owned lake, or not open to public________________ 30

Regulation

State regulations applicable only on public lakes and

navigable streams --------------------------------

___________________

31

597

Page

BOATS AND BOATING-continued Taxation Boats taxable in county of owner's residence________ --------------------------------------- 478 Water Safety Act Offenses not bondable under Cash Bond Act ___ --------------------------------------------- 33

BONDS

Arrest Bond Certificates Officials must accept when in compliance with Code____________________________________ 102

Authorities Not obligations of State _______________________________________________________________________________________ 32

Cash Bond Act

Not applicable to offenses under Water Safety Act__________________________

33

Contractors

Required when work involves public funds __________ ----------------------------------------- 368

County

General obligation bonds, fee due clerk._____________ _

33

County Industrial Revenue Bonds

Discussion of Quitman County Bonds ______________ ------------------------------------------------ 35

Fidelity bonds for state employees _______ -------------------------------------------------------------- 463

Industrial revenue bonds require constitutional amendment

before issuance by municipal corporation ----------------------------------------------------- 310 Municipal Bonds

Homestead exemption not available from bond levies --------------------

494

Revenue

Political subdivision bonds legal investments for insurance companies ___________________________________________________ ----------------------------------- 270

Sales and Use Tax Contractor bond __ ----------------------------- _________________________

545

School Bonds

Fee for validation by clerk of Superior Court---------------------------------------------- 33 Special Election to determine whether to issue____________________________________________ 218

Validation

Fee due clerk

33

BOUNDARIES

Georgia-Alabama boundary recited ___________________________ -------------------------------------

36

CIVIL DEFENSE

See also STATE GOVERNMENT, this index.

Fall-out Shelters

Liability for personal injury incurred in privately owned shelters

37

Local Organizations

Discussed

__________________ -------------------------------- ----------------------- --------------------------- 38

COASTAL WATERS AND TIDELANDS

Tidewaters discussed ______ ----------------------------------- ------------------------------------------

39

COMBUSTION ENGINES See MOTOR VEHICLES, this index.

CONSTITUTIONAL LAW

Act making threats or using indecent language over telephone

misdemeanor, constitutional -------------------------------------------------------------------

116

Amendment allowing scholarships________________________ ----------------------------------------------- 447

598

Page

CONSTITUTIONAL LAW-continued

Amendments

Local, advertising required ________________________ ------------------------------ _________________________ 39

Required for municipal corporation to issue industrial

revenue bonds __________________ ------------------------------------------------- ----------------

310

Required to abolish justices of the peace _________________________________________

82

Debt limitation

State cannot indemnify U. S. Govt. ______________________ ------------------------------------

242

Fair-Trade Laws

Invalid ____

234

Legislation

Period of time allowed for Governor to approve bills -------------------------------- 40

''Population'' Acts discussed ------------------------------------------------------------------------------ 41

Prohibition against gratuities

Furnishing secretarial service to non-state agency ----------------------------------- 43

Resolution No. 61-151 of 1961 Session violates --------------------------

44

Resolutions for sale of property for consideration agreed

upon by Governor-------------------------------------------------------------------------------------------------- 243

Separation of Church and State

Employment of chaplains for prisons does not violate -------------------------------- 361

Use of prison labor gratuitously on church property violates ________________ 349

Vagueness, effect upon validity of Act ______________ ------------------------------------------------- 116

CONTRACTS Highway Construction Standard Specifications of Highway Dept. included in all __________________ 246 Minors Law pertaining to capacity of minors to contract cited ------------------------------ 45 Parties Law pertaining to capacity of minors to contract cited ------------------------------ 45 Restraint of trade, void -------------------------------------------------------------------------------------------- 429 Sales to State Increase in contracted price ------------------------------------------------------------------------------ 438 State
Discussion of procedure in case of deficiencies -------------------------------------------- 46 For sub-lease of islands in Lake Lanier ------------------------------ ------------------------- 389 May enter into with individual under trade name ---------------------------------------- 47

CORPORATIONS Charters Abstract of stockholder meeting not essential in application for ____________ 48
Amendment of insurance corporation charter----------------------------------------------- 262 Banking corporation charter provisions must comply with law ______________ 17 Debentures Convertible Debentures subject to intangibles tax _______ -------------------------------- 514 Dividends Insurance corporations
From "paid in" rather than "earned" surplus ___________ ------------------------------- 264 Foreign Corporations
Acting as trustee for property in this State -------------------------------------------------- 497 Lending money secured by property in this State ---------------------------------------- 498 Maintaining bank account in State not alone doing business ____________________ 500 Service upon Secretary of State _________________________ ---------------------------------------------- 49

599

Page

CORPORATIONS-continued

Insurance

Charter, amendment -------------------------------------------------------------------------------------------- 262

Organizational requirements ------------------------------------------------------------------------------ 271

Mergers

Fee required, applicability __________

51

Names

Credit Unions must follow formation procedure to change name ______________ 19

Notes

When note given for deposit of funds with corporation negotiable __

27

Organization

Insurance corporation organization requirements ---------------------------------------- 271

Taxation

Foreign corporations acting as trustee for property in State ________________ 497

Foreign corporations lending money secured by property in State ______ 498

Foreign corporations maintaining bank account in State -------------------------- 500

Organized for both exempt and nonexempt purposes, no exemption ---- 515

COUNTIES

Attorney

May also be attorney for housing authority -------------------------------------------------- 9

Board of Health

Rule making power and remedies ___________________________________________ ----------------------- 398

Bonds

Fee due clerk on general obligation bonds --------------------------------------------------- 33

Industrial revenue bonds ----------------------------------

_______ ____ __________ ___

35

Commissioners Chairman may not also serve as county convict warden ________ ___________________ 55

Clerk of commissioners not entitled to contingent

expense allowance --------------------------------------------------------------- ______________

55

May not sign as guarantor of financial instrument for

hospital authority ---------------------------------------------------------------------- ----------------------- 58 Member may also be member of Democratic Executive Committee ________ 59

Member may not be employed to perform duties requiring

Member may not rent heavy machinery to county -------------------------------------- 55

supervision ___ --------------------------------------------------------------------------------------------

59

Must reside in district from which elected -----------------------------------

61

Required to furnish county officials with supplies for offices ________________ 68

Coroner

Authority to investigate deaths occurring during anesthesia _________

61

Ordinary may not act as, during absence of coroner __________

95

County Police

Arresting power confined by statute to county of appointment

or election --------------------------------------------------------------------------------------------

62

Employees School employee workmen's compensation insurance to be paid
by county ---------------------------------------------------------------------------------------------------------- 168 Who is employee for purpose of workmen's compensation coverage ________ 590

Expenditures
Industrial and recreational uses unauthorized ---------------------------------------------- 62 Money levied for specific purpose used for no other __________________ ________________ 63

600

Page

COUNTIES-continued

Officers

Compensation by fee rather than salary discussed

64

Conflict of interest __________ --------------------------------------

59

Convict warden, county commissioner may not serve as ---------------------------- 55

Duties of treasurer and commissioner discussed ------------------------------------------ 65

Leaves of absence, not authorized -------------------------------------------------------------------- 68

May only hold one office except by special law _________________________________________ 67

Ordinary may not act as coroner during absence of coroner ____________________ 95

School Superintendents

Qualifications and eligibility -------------------------------------------------------------------------- 130

Supplies are to be furnished by county governing authority ------------------ 68

Treasurer, duties and office discussed ------------------------------------------------------------- 71 Official Organs
Discussion of selection of newspaper as -------------------------------------------------------- 311 Eligibility discussed _________ ------------------------------------------------------------------------------------ 311 School Superintendent Qualifications -------------------- ------------------------------------------------------------------------------------- 130 Sheriffs

Entitled to certain motor vehicles registration lists ------------------------------------ 306 Surveyors

May charge fees and record plats though not licensed ---------------------------- 376 Ordinary required to issue fi fa for use of _---------------------------------------------------- 87 Tax Agents

Requirements for appointment -------------------------------------------------------------------------- 69 Taxation

Industrial and recreational use levies unauthorized ------------------------------------ 62 May levy tax to support vocational trade school ------------------------------------------ 187 May not levy solely to pay employer social security contribution ____________ 70

Money levied for specific purpose used for no other ------------------------------------ 63 No authority to grant exemptions to industry ---------------------------------------------- 485
No mill limit for most special purposes ---------------------------------------------------------- 477 Re-evaluation of properties, tax assessors may contract for ____________________ 539

Tax Collectors, Commissioners and Receivers See TAX COLLECTORS, COMMISSIONERS AND RECEIVERS, this index.

Treasurer

Office and duties discussed -------------------------------------------------------------------------------- 71

COURTS
City Courts
Judge acts in absence of ordinary ------------------------------------------------------------------- 84 Judge Emeritus position not available ------------------------------------------------------------ 78 Clerks Compensation while serving as ordinary pending special election____________ 73 Fees, furnishing copies sentence, etc. to Board of Corrections ________________ 74 General obligation bonds fees ---------------------------------------------------------------------------- 33 Use of photostatic equipment ---------------------------------------------------------------------------- 74 Vacancies, filled by ordinary ---------------------------------------------------------------------------- 75 Constables Discussed ---------------------------------------------------------------------------------------------------------------- 76

601

Page

COURTS-continued

Costs

Insolvent fund, traffic cases, ordinary participation ___ ___________________

96

Fees

Ordinary, for handling public safety patrol trials ________________________

86

Superior court fees not to be paid from ordinary insolvent funds ____________ 77

Validation of bonds by superior court clerk ----------------------------------------------- 33

Fines

Disposition of overweight vehicles' fines ------------------------------------------------

569

Insolvent Funds

Fees, due ordinary in traffic cases may be paid out of ________________

85

Fees for superior court not to be paid from ordinary funds ____________________ 77

Ordinaries, traffic cases and truck weight cases ----------------------------

90

Procedure to be followed when placed upon salary __________

89

Judges

Appointments to vacancies do not need Senate Confirmation

101

Augusta Judicial Circuit, salaries in -------------------------------- --------------- _______________ 77

Judges Emeritus

City courts, not available _________________ --------------------------------------- _____________________ 78

Juries

Authority to assist county officials, advisory only ----------------------------

79

Board of Education members should not serve on grand juries ________________ 150

Grand Juries' action not final until returned in open court ____________________ 147 Persons excused or exempted ________ _______________________ _______________ __________________________ 79

Jurisdiction

Ordinaries, over drunk driving cases ________ ___________________________

90

Traffic offenses _______ ----------------------------------------------- ____________________

567

Justices of the Peace

Abolished only by constitutional amendment __ --------------------------------------------- 82

Elections discussed ---------------------------------------------------- ----------------------------------------- 199

May not bind traffic offenders over to ordinary ------------------------------------------ 82

May not charge for collecting bills ___________ ----------------------------------------------------- 83 Notary ex-officio J.P. need not resign to run for J.P. ______ _________________________ 194

Notaries Public Ex-officio J.P. need not resign to run for J.P. ________________________ _____________________ 194

Seal, must have for authentication of notarial acts ------------------------------------ 83

Ordinaries

Absence, Judge of City or County Court acts ------------------------------------

84

Appointment of guardians for insane persons ---------------------------------------------- 244

Determining location of voting booths _________ ------------------------------------------------ 232

Election precincts established by ordinary ____ ----------------------------------------------- 204

Establish additional voting places ________________ --------------------------------------------------- 232

Fee, may be paid out of insolvent fund ---------------------------------------------------------- 85 Fees

For handling public safety patrol trials ---------------------------------------------------- 86

Traffic violations ---------------------------------------------------------------------------------------------- 86

Fi Fa, required to issue for county surveyor-------------------------------------------------- 87

Fill vacancies in county officers and call special elections ____________________

75

Guardians, naming of __ -------------------------------------------------------- ________________

88

Insolvent fund Procedure to be followed when placed on salary ---------------------------------------- 89

602

Page

COURTS-continued

Traffic and truck weight cases ___ ----------------------------------------------------------------- 89

Issuance of licenses and permits for sale of wine ---------------------------------------- 291

Jurisdiction

Over drunk driving cases -------------------------------------------------------------------------------- 90

Over traffic offenders arrested by constables ------------------------------------------ 91

Warrant must issue for all criminal cases ------------------------------------------------ 92

Lunacy hearings

Appointing attorney and paying fees ------------------------------------------------------------ 92

Duties of recording proceedings ---------------------------------------------------------------------- 93

May not act as coroner in coroner's absence -------------------------------------------------- 95

Primaries, no duties or powers in connection with -------------------------------------- 206

Records of office are public records --------------------------------------------------------------- 95 Restoration of sanity

Patient remains in custody until ordered released -------------------------------- 411

Traffic cases, participation in insolvent fund ---------------------------------------------------- 96 Voluntary mental patient

Denial of release sent to ordinary in county of residence ------------------ 414

Warrants, issuance by ordinary discussed ------------------------------------------------------ 90

Recorder's Courts

Discussion of general operation ____________

96

Sheriffs Fee for performing duties of coroner __________ ------------------------------------------------- 346

Fees

Arrest

98

For assisting at inquest _____'" ______________.._---------------------------------

99

Traffic violation cases __________________________________________________________________ ---------------- 86

Records, open to public inspection -------------------------------------------------------------------- 99

Solicitors

Appointments to vacancies do not need Senate confirmation ___

101

Emeritus appointment discussed __________________ ---------------------------------

100

Fee for acting as counsel for escheator ______________

101

Superior Courts

Appointments to vacancies do not need Senate confirmation ____________

101

Clerk Compensation while serving as ordinary _______________________________________________ 73

Fees for furnishing copies of sentences to Board of Corrections

74

Use of photostatic equipment _____________________

_________________

74

Validation of bonds, fees __________________ _______________

_______________

33

Sheriff

Entitled to certain motor vehicle registration lists

306

CREDIT CARDS See CRIMINAL LAW, this index.

CRIMINAL LAW

Arrests

Bond officials must accept guaranteed arrest bond certificate

102

Constables, jurisdiction _ _____________ --------------------------------------------------------------------- 91

County police limited by statute to county of appointment

or election -------------------------------------------------------------------------- _______________ ______________ 62

Warrants required _______________ -------------------------------------------------------------------------------- 92

603

Page

CRIMINAL LAW-continued

Bonds

Cash Bond Act, not applicable to Water Safety Act offenses -

33

Crimes

Bigamy defined ---------------------------------------------- -------------------------------------------------- 103

Blue laws cited -------------------------------------------- --------------------------------------------------------- 104

Bribes, in sporting events _________________ _____ __ ___________________

105

Burglary and its punishment discussed_____ _________ -------------------------------------- 105

Credit cards, fraudulent use -------------------------------------------------------------------------------- 106

Disturbance of a worship service discussed _____________________ ------------------

107

Drunk driving _--------------------------------------- ___________________

--------------------------------- 108

False swearing, procurement of License Tag -------------------------------

305

Firearms

Carrying in auto may be legal _______ ---------------------------------------------------------------- 110

Possession and carrying discussed _______________ ----------------------------------------

110

Fireworks, sales __________________ --------------------------------- ------------------------ ------------------ 112

Gambling, transportation of devices in interstate commerce __ ------------------- 113

Gaming, pin-ball machines -----------------------------------------------------------------------

114

Hand guns, possession discussed ----------------------------------------- ----------------- _

115

Mere possession of beer, regardless of quantity, no crime _______

285

Overtaking or meeting stopped school bus _ -------------- _________________

570

Pin-ball machines ________________ _________________________ ________________

114

Sale of beer on election day------------------------------------_____________________

197

Telephone threats prohibited _______ ------------------- ___________________ ______________

116

Thefts

Meaning within insurance policies ______ ________________________ ______________

261

Trading stamps__________________________

_______________ _______________ ___________________

118

Use of indecent language over telephone prohibited ____________

116

Double Jeopardy ___________________ --------------------------------------------------------------

120

Executions Attendance, discretion as to whom attends is only in prisoner ________________ 354

Procedure

Expenses in appeal in capital case discussed ____________________________________

119

Punishments

Bigamy punishment set out __________________________________________________________________

103

Burglary punishment discussed _______ --------------~- _____________________________________

105

Capital punishments, crimes for which prescribed ____________________________

119

Sentences

County jail sentence to be served before state penitentiary ________

363

Discussion whether appeal from denial of habeas corpus stays

354

Pre-sentence investigations ____________________

______________ _

120

When sentence ends _

__________________

________________

312

Trials

State cannot appeal ---------------------------------

120

Warrants

Required in all criminal cases __________________________ ---------------------------------------

92

DEPARTMENT OF LAW See STATE GOVERNMENT, this index.

DOMESTIC RELATIONS

Adoption

Discussion __________ ---------------- --------------------------

121

604

Page

DOMESTIC RELATIONS-continued

Discussion of laws on ____________________________________ --------------------------------------------------- 123

Guardian and Ward ________ --------------------------------------------------------------------------------

88

Marriage

Common-law marriages are recognized in Georgia -------------------------------------- 125
When necessary to post notice of license applications -------------------------------- 126

Support

Children required to support parents ______ ________________ --------------------------------- 126

Duty under Uniform Reciprocal Enforcement of Support Act ________________ 128

DOMICILE AND RESIDENCE Non-Citizens
May acquire domicile in Georgia ---------------------------------------------------------------------- 128 Residence
May be established in foreign state without losing citizenship here ________________ ______________________ ___________________ _______________________________ 505

EDUCATION

Bible Reading

Required in public schools _________________

130

Bonds

Taxes to retire may only be levied on property within system ______________ 143

Contributions to educational institutions

Credit against tax ------------------------------------------------------------------------------------------------ 482 County School Superintendent

Qualifications and eligibility ------------------------------------------------------------------------------ 130 Under Military Forces Reorganization Act ____ ----------------------------------------------- 131 Independent School Systems Effect of extension of city limits _____________________________ --------------------------------------- 134 Extension of city limits beyond school brings within __________________ _______________ 136

Lunchrooms, support with school funds by ---------------------------------------------------- 167 May not contract to operate and maintain existence ------------------------------------ 143 Insurance

School buses, requirements _______________________________ -----------------------------------------

164

Local Boards

Appointment of trustees for schools __________ ---------------------------------------

137

Borrowing money to buy school buses ________ __________________ _________________ ______________ 138

City Board, when may incur indebtedness ____________________

141

Lease of School property ________________ ------------------------------------ __________________

170

May assign student to any school within district ------------------------------

142

May charge nonresident students tuition -------------------------------- _____________________ 142

May contract with other local boards for tuition of nonresidents ____ 142 May only levy taxes on property within system to retire bonds ______________ 143

May prohibit married students from attending school ________________________

183

May supplement school bus driver salaries ________ ----------------------------------------- 162

May supplement teachers' salaries ________

--------------------------------- 185

Meetings, date and time ____________ ____________________

----------------------------------- 146

Members Duties and responsibilities discussed ___________________________ ----------------------------- 148

May not provide service for school buses ---------------------------------------------------- 147

May serve on traverse juries, but not grand juries -------------------------------- 150

No two may be from same militia district or locality ---------------------------- 151

Selected by grand jury must be freeholder ------------------------------------------------ 147

605

Page

EDUCATION-continued

Selection by grand jury, all jurors participate ______ ----------------------------------- 151

Terms may not be varied by grand jury __ ------------------------------------------------- 155

No authority to deny married students education _____ --------------------------------- 157

Placement power over students ------------------------------------------------------------------------ 181

Private sale of school property -------------------------------------------------------------------------- 172

Purchase of insurance from wife of member ------------------------------------------------ 158 Subject to levy for federal income tax owed by teacher -------~-------------------- 161

Lunchrooms

Support with school funds by independent systems ------------------------------------ 167

School Bonds

Fees due tax collector for collection ---------------------------------------------------------------- 564

Registration of voters for election for bonds ___________ ------------------------------------ 217

Special election to determine whether to issue -------------------------------------------- 218

School Buses

Borrowing money by local boards to buy -------------------------------------------------------- 138

Driver pay discussed ------------------------------------------------------------------------------------------ 161

Driver salaries

May be supplemented by local boards -------------------------------------------------------- 162

Must be at least minimum set by State Board _________________________

162

Under 1961 Appropriations Act -------------------------------------------------------------------- 162

Insurance _-------------------------------------------------------------------------------------------------------------- 164 Member of county board may not sell service for _______________ __________________ 147

Overtaking or meeting stopped bus _______ ____________

______________

570

School District

Election to determine whether to incur bonded debt ____

218

Insurance requirements _________________ ----------------------------- ----------------------- 166

Liability for injury to students --------------------------------------------------------------------------- 166

School Funds

Dispersed by State Board in accordance with contract between

local boards ---------------------------------------------------------------------------------- ---------------- 142

Support of lunchrooms by independent systems _

167

Workmen's compensation not authorized expenditure _

168

School Property

Lease by board of education ____________________ _

170

Private sale of school property _______________________

172

Sale discussed ________________________

____________________

173

Sports

Sales and Use Tax applicable to tickets ---------------------------------------------------------- 545

State Board

Activities exempt from taxation --------------------------------------------------------------------- 174

May accept gifts and donations ------------------------------------------------------------------------ 174

May expend funds for textbooks for training schools ________________

186

Member's company may submit bids for sale of goods to

highway department

________ ------------------------------------------

176

Should respect contract between local boards and disperse

funds accordingly --------------------------------------------------------------------------------------------- 142 Superintendent of Schools may recommend retirement of employees ______ 175

State Department

Division of Vocational Rehabilitation

Director of, may receive federal funds -------------------------------------------------------- 178

Establishment of vending stands on state property -------------------------------- 178

606

Page

EDUCATION-continued

Funds "allotted" to but not expended do not lapse into treasury ______

443

May negotiate or let by competitive bids contract to repair water tank _______________ ----------------------------------- ---------------------- __________________ 179

State Funds

Disposition and payment to local boards and agencies ------------------------

180

Students

After-school work to raise money for class trip ______________________

181

Board of education has placement powers ____________________________

______________ 181

Cannot be denied schooling because married ----------------------------- ------------------ 157

Married students may be prohibited from attending schools ____

183

May be assigned to any school within school district _______________________

142

Nonresidents may be charged tuition_________________ _---------------------------------- 142

Taxation

County fiscal authorities must levy ________________ ------------------------------------------- 184 County may levy tax to support vocational trade school ____ _____________________ 187

Teachers

Salaries may be supplemented by local boards ---------------------------- --------------- 185

Textbooks

State Board may expend funds for training school texts ____________

186

Trade Schools

Counties may levy tax to support ---------------------------- __ ------------------------------------ 187

Trustees for schools

Appointment by local boards of education ______

137

Tuition May be charged nonresident students by local boards ____________________________ 142

Tuition Grants

Discussed _________________________________________

188

Discussed

190

Not for colleges or universities ___________________________ ---------------------- ____________________ 191

ELECTIONS

Ballots

Absentee

Procedure to obtain

191

Voting and counting ----------------------------------

_____________ _

192

When may be used ________________ -----------------------------------------------

192

Names placed on ballot by petition

Requirements as to area -------------------------------- _________________________________

203

Requirements discussed __________________ _______ ___ _________

______________________ _

201

Voting and counting of absentee ballots __________________________________ ------------------ 192

"Write-in" votes by means of affixing stickers _______________________

193

Ballot Boxes Required to be locked ______________________________________________________________________________________ 193

Candidates

General Assembly, qualify with ordinary _

------------------------------------------ 195

Notary ex-officio J. P. need not resign to run for J. P. _________________

194

Notice of candidacy must be filed 45 days before general election

194

Petition, five per cent of voters in territory defined _______________________

195

Qualification, with ordinary if for General Assembly -------------------------- 195

Crimes

No prohibition against political announcements on election day ------------ 196

607

Page

ELECTIONS-continued

Sale of beer on election day _______

197

General Elections

Managers, qualifications ____________ -------------------------------------------- ____________________________ 198

Where held _

________________ ----------------------------------------- ______________________

198

Hours for Holding

Discussed

198

Justices of the Peace

Election discussed

199

Managers, who qualified _

200

Where elections for held

200

Managers

Appointment discussed

201

Petitions

Names must be from last general election voter list ------------------------------------ 201

Names to be from area enveloped by office under consideration ________________ 203

Territory for 5 per cent petition discussed _______________________ -------------------------- 195

Polling Places

Separation by race illegal _________

207

Precincts

Established, changed or abolished only by ordinary ___________________________________ 204

Segregated, neither prohibited nor compelled ______

205

Primaries

Political matters handled by local party officials

206

Qualifications

Candidates must qualify 45 days prior to general elections ___ _______________ 194

Records

Separation by race illegal ________________

205

Recounts

Who entitled to ____

207

Registrars

Compensation, how determined_______

-------------------------

208

Meetings, time of may be changed _

------------------------------- __________________ 208

Naming of candidates for, by grand jury ________________________________

209

No minimum amount of, time required to be spent with applicants _______ 210

Tax commissioners not entitled to additional compensation as

deputy of registrars

______________________ _

211

Registration

Cancellation for non-voting discussed __ _

212

Date to cease taking applications _ _____________________________________

212

Persons do not have to appear personally to execute affidavit ______________ 215

Serviceman Registration not altered by 1958 Act _____

216

Special election for school district bonds ______

217

Special Elections

Clerk of Superior Court ____

---------------------------------------

75

Tax Commissioner, procedure ________

__________________

565

To determine whether school district shall incur bonded debt

218

Voters, registration and qualifications _____________________

219

Voter Qualifications

Convicted of misdemeanor _

220

Discussed

221

608

Page

ELECTIONS-cm1tinued

Voter Registration

Books, when closed __ --------------------------------------------------------------------------------------------- 223

History of laws pertaining to ____________________ ------------------------------------------------------- 224

Purging of lists discussed ____________________ --------------------------------------------------------------- 225

Voters

Military personnel and dependents _______________ --------------------------------------------------- 226

Qualifications discussed -------------------------------------------------------------------------------------- 221

Voters List

Number to be kept during election discussed --------------------------------------

227

Voting

Absentee ballots, when may be used _---------------------------------------------------------------- 192

Military personnel, civilian employed by armed forces not within

229

Voter may ve~te for only one candidate

----------------------------------------------- 230

Write-in votes, proper method discussed__

------------------------------------------- 231

Voting Booths

Location determined by ordinary __________

232

Voting Places

Ordinaries may establish additional if needed

232

Write-in Votes

Proper method discussed ____________

231

EMINENT DOMAIN Housing Authorities May not use special master under Urban Redevelopment Law ________________ 10

EVIDENCE

Recordings

Admissibility

233

FAIR TRADE LAWS History and invalidity _______________________ ---------------------------------------------------

-------- 234

FEES

Clerks

Furnishing copies sentence, etc. to Board of Corrections __

74

General obligation bonds, validation --------------------------------------------

33

Insolvent Funds Fee due ordinary for traffic cases may be paid out of __________ _________________ 85

Ordinaries

Handling public safety patrol trials ________ ------------------------------------------------------ 86 Traffic violation cases ______________________________________ ----------------------------------------------- 86

Post Mortem Examination

Sheriff's fee when performing duties of coroner ____ ------------------------------------- 346

Sheriffs

Assisting at inquest --------------------------------- ---------------------------------------------------------- 99

Solicitors

Acting as counsel for escheator _

101

Superior Court

Cannot be paid from insolvent funds derived from ordinary's cases ______ 77

Tax Collectors

For collection of school taxes and school bonds ____

564

609

Page

FOOD AND DRUGS

Oleomargarine

Laws relating to discussed ----------------------------------------~-----------------------------------------

4

FORESTRY Lumber, not a "forest product" to entitle truck to reduced
tag rate ------------------------------------------------------------------------------------------------------------------- 295 State Commission
Compensation of members --------------------------------------------------------------------------------- 454 Disposition of surplus properties ---------------------------------------------------------------------- 381 May acquire surplus clothing as fire-fighting equipment -------------------------- 455

GAME AND FISH Fishing
Lakes adjoining rivers ---------------------------------------------------------------------------------------- 235 On private or posted lands ---------------------------------------------------------------------------------- 239 Permission of adjacent land owners -------------------------------------------------------------- 237 Without license, when permissible ________________________ ------------------------------------------- 241 Hunting
On private or posted lands -------------------------------------------------------------------------------- 239 Licenses
Persons exempt ---------------------------------------------------------------------------------------------------- 241 Sale of game fish, discussed -------------------------------------------------------------------------------- 241 State Commission
Cannot legally indemnify U. S. Government ------------------------------------------------ 242

GENERAL ASSEMBLY Apportionment

Considered at first session after federal census -------------------------------------------- 243

Candidates

Qualify with ordinary ___________

195

Committees

Study committees, executive department personnel serving on ____________ 447

Legislation

Period of time allowed for Governor to approve bills ---------------------------------- 40 "Population" Acts discussed ------------------------------------------------------------------------------ 41

Members No prohibition against employment as attorney for

Housing Authority __ ----------------------------------------------------------------------------------------- 9

Resolutions For sale of property for consideration agreed on by Governor ________________ 243

H.R. No. 61-151 of 1961 Session violates Constitution -------------------------------- 44

GEORGIA ART COMMISSION See STATE GOVERNMENT, this index.

GEORGIA HISTORICAL COMMISSION See STATE GOVERNMENT, this index.

GUARDIANS AND WARDS

Insane persons

Appointment of guardians for, discussed

244

610

Page

HIGHWAYS

Condemnations

Right-of-way acquisition legal expense, reimbursable --------------------------

457

Use of State funds to assist county attorneys ----------------------------------------

249

Construction Department may withhold funds until defects corrected __________________________ 246

Contracts Standard Specifications become part of every contract _________________________ 246

Maintenance

State Department may participate in painting bridges ______ ------------------------- 247

Overweight Vehicles

Distribution of fines and forfeitures discussed -------------------------------------------- 569

Rights-of-way

Condemnation, reimbursement of legal expenses incurred -------------------- 457

Obtained from minors by condemnation ---------------------------------------------------------- 247

Roads

Closing and discontinuance discussed

248

School Buses

Overtaking or meeting stopped bus ---------------------------------------------- _________________ 570

State Department

Controls traffic on state-aid roads in municipalities -------------------------------- 254

May expend funds to assist county attorney in condemnations ______________ 249

May improve and construct roads in Stone Mountain Park ------------------------ 252 May participate in painting Talmadge Memorial Bridge ____________________________ 247

Reimbursement of Law Department for legal service expense ________________ 457

Treasurer, State board may fix salary ------------------------------------------------------------ 254

Traffic Control State Department controls on state-aid, even in municipality ________________ 254

Welcome Stations

May be staffed by Commerce Department ____ ----------------------------------------------- 446

INSANITY See PUBLIC HEALTH, this index.

INSURANCE

Agents Fiduciary responsibility to funds of insured

_____________________________ 259

U -Haul companies covering cargo must have agent ____ ___________________________ 260

Burglary and Theft

When "Theft" occurs within meaning of policy -------------------------------------------- 261

Companies

Charter, application to amend -------------------------------------------------------------------------- 262

Conversion from fraternal benefit to mutual ---------------------------------------------- 264

Dividends, from "paid in" rather than "earned" surplus ---------------------------- 264

"Four County Farmers Mutual"

Expansion discussed --------------------------------------------------------------------------------------- 266

Surplus requirements ______ -------------------------------------------------------------------------- 272

Gross premium tax discussed ------------------------------------- -------------------------------------- 267 Investments

Mortgages on real property discussed ________________ --------------------------------------- 268

Permitted of insurance companies discussed -------------------------------------------- 269

Revenue bonds legal --------------------- _________________ ------------------------------------------------ 270

611

Page

INSURANCE-continued

Organization requirements ---------------------------------------------

------------------ 271

Penalty for failure to pay loss within 60 days ----------------------- --------------------- 272

Surplus requirements under new Code ________________ ------------------------------------------- 272

Writing fire does not authorize to write homeowner's ________ ---------------------- 274

Fire Insurance

Company cannot write homeowner's simply because writing fire ---------- 274

Foreign Insurers

Deposits of securities with insurance commissioner ___

275

Fraternal Benefit Societies

Conversion to mutual company -------------------------------------------------------------------------- 264

"Homeowner's" Insurance

Company writing fire cannot write Homeowner's without more ____________ - 274

Liability Insurance

Required of school districts ------------------------------------------------------------------------

166

School buses ________________ ------------------------------------------------------------------- --------------- 164

Wagons or trailers used by farmers to haul cotton to gins ----------------------- 276

Life Insurance

Cease and desist order does not affect previously issued policies _________ _ 277

Contingent endowment life policies _______________________ ----------------------------------------- 277

Group plans, application of new insurance code to ____________

278

Premiums, no law prohibiting payment by other than insured ____

280

Losses

Penalty if company fails to pay within 60 days ------------------------------------------ 272

Mutual Companies

May bid on State property insurance only under limitations _______________ _ 383

Premium Tax

Applicability to retirement benefits, etc. _____________ ------------------------------------------ 281

Discussed ______ ------------------------------------------------- ------------------------------------- _________________ 267

Premiums Payment by other than insured _____________________________________________________________________ 280

School Buses

Requirements of liability insurance

164

State Property

Required to be insured, including Authority properties

12

U-Haul Trailers

Insurance by company to cover cargo must be through agent

260

INTOXICATING LIQUORS

Beer
Mere possession, in whatever quantity, not prohibited _____ _ ______________________ 285 Municipality may permit sale in drug stores ____________________________________________ 286
Municipality may require seller to partition establishment _________________ 287 Sale on election day prohibited _____________________ _______________________________________________ _ 197

Licenses

None for mixed drinks

287

Liquor Stores

Municipality may operate ___________________________________________________________________

288

Seizure and Disposition

Recommendations ______________________ ------------------------------------------------- ________________________ _ 288

Wineries

Establishment and operation _____________________ -------------------------------------------------------- 289

612

Page

INTOXICATING LIQUORS-continued Wines Homegrown materials and for own 'consumption ------------------------------------------ 290 Licenses and permits, discussed ------------------------------------------------------------------------ 291

INVESTMENTS

Board of Regents, types permitted ___ -------------------------------------------------------------------- 578

Insurance Companies -------------------------------------------------------------------------------------- 269, 270

Pension and Retirement Funds

______ -------------------------------------------------------------- 326

JURIES See COURTS, this index.

LEGISLATION

See GENERAL ASSEMBLY, this index.

Local constitutional amendments

Advertising required

39

LICENSES Driver's licenses, veterans honorary only for war periods ____________________________ 302

MATTRESSES See PUBLIC HEALTH, this index.

MILLEDGEVILLE STATE HOSPITAL See PUBLIC HEALTH, this index.

MOTOR VEHICLES Buses Atlanta Transit System buses subject to motor fuel tax ___ ________________________ 532

Classification Trucks of railroads used for pick up and delivery ________________ _______________ _______ 292

License Tags
Applications blank but signed may not be filled in by tag commissioner ____________ ____________ _______________________________ ______________ __________________ 293

Computation when allowable gross weight increase ------------------------------------ 294

False swearing in procuring _______________ ______________

_________________ _________________ 305

Foreign license plates, not valid in Georgia _____ __________________ ___________________

295

Lumber trucks not entitled to reduced rates

295

Manufactured only by State______________________

_ ____________

297

Names of purchasers not for general publication

298

Pro-ration of tag fee on trucks used to haul forest products ______

299

Soil conservation districts may purchase state tags ________ ________________

300

Mufflers

Discussion whether includes spark arresters ___________________________________________ _ 301

Operator's Licenses

Diplomatic reciprocity recognized _________________________________________________________

302

Suspension under Motor Vehicle Safety Responsibility Law ________________ 422

Veterans' honorary licenses only for war periods ________________ ________________ 302

Overweight Vehicles

Distribution of fines and forfeitures discussed

569

Registration

False swearing -------------------------------------------------------- --------------------- _______________________ 305

Lessee primarily liable under permanent lease arrangement __

305

613

Page

MOTOR VEHICLES-continued

Sheriffs entitled to certain lists ------------------------------------------------------------------------ 306

Safety Responsibility Law

Wagons or trailers used to haul cotton to gin by farmer ________________________ 276

Size and Weight Limits

Statute establishing cited ------------------------------------------------------------------------------------ 306

Spark Arresters

Discussion whether included in mufflers -------------------------------------------------------- 301

Taxation

Atlanta Transit System buses subject to motor fuel tax---------------------------- 532

Trucks

Classification when used by railroads for pickup and delivery ________________ 292

When leasing contract is contract "for hire" ---------------------------------------------- 307

Turn Signals

All motor vehicles and trailers required to have -----------------------------------

309

MUNICIPAL CORPORATIONS

Airports Operation by an authority ___________ ---------------------------------------------------------------------- 13
Beer

May permit sale in drug stores ------------------------------------------------------------------------ 286

May require seller to partition establishment ------------------------------------------------- 287 Industrial Revenue Bonds

Constitutional Amendment needed to issue ---------------------------------------------------- 310 Liquor Stores

May be operated by municipality ---------------------------------------------------------------------- 288 Police

Authority on university system campuses ------------------------------------------------------ 580 Professional tax

Levy restricted to principal place of business ---------------------------------------------- 537

Streets and alleys

Traffic control on state-aid roads in Highway Department _____

254

Taxation

Exempt from state and county taxation ------------------------------------------

477

For contracts with hospital authorities _____________ ____________ ____________ _____________ 537

Personalty located on a military base but within city limits ____________________ 478

NEWSPAPERS

Official Organs

Discussion of selection ____

311

Eligibility discussed ________________________

311

PARDONS AND PAROLES

Sentences

When end_

312

PARKS

State

Constructing improvements on reversionary property -------------------------------- 314

Liability of State to skin-divers ---------------------------------------------------------

315

May not be leased to private individuals -------------------------------------------------------- 386

Roads should not have speed "bumpers" ----------------------------------------------

388

614

Page

PARKS-continued State Department Authorized to change rates on parks property ---------------------------------------------- 315 Bound by local board of health rules for swimming pools -------------------------- 399 No prohibition against charge for fishing ---------------------------------------------------- 316 Sub-lease of islands in Lake Lanier --------------------------------------------------------------- 389 Stone Mountain Memorial Association Railroad not subject to regulation -------------------------------------------------------------------- 316 Roads may be constructed and improved by Highway Department ______ 252

PENSIONS AND RETIREMENTS

Board of Regents Supplement ___

318

Employees Retirement System

Department of Correction, extra payments required of _____________________

321

Investments, same as domestic life insurance company ______________________ 322

Member may designate estate to receive benefits ____ --------------- ------------------- 323

Social Security contract for salaried employees does not include

fee system personnel ------------------------------------------------------------------ ----------------- 323

Social ::>ecurity contract with Walker County discussed _________ ------------------ 331

Firemen's Pension Fund

Dues, not required to pay during leave of absence ___________________________________ 325

Pension, not available until age 60 unless disabled from duties __________ 325

Service, credit for any year attended 75% drills, etc. _______________________________ 325

Tax on fire insurance companies for benefit of fund --------------------------

267

Investments

Discussion of legal investments -------------------------------------------- ___________________________ 326

Employees retirement, same as domestic life insurance company __________ 322

Maine State Retirement System purchases of V. A. loans

from Georgia _________________________ ---------------------------------- ------------------- --------------------- 327

Peace Officers' Annuity and Benefit Fund

Security Officers at Georgia Tech eligible to be members

330

Social Security

Contract between Employees Retirement and county discussed

331

Employer contributions, paid from general county funds

70

Solicitor General Emeritus

Appointment discussed __________

100

Teachers Retirement System

Benefits, beneficiary may elect lump sum in lieu of monthly ___

335

Board of Regents, supplement by ______________________

318

Effect of 1961 Act (H.B. No. 560) discussed ___________________________________________ 340

1961 formula does not change restoration to membership ____________________ 340

Members may not also be member of local retirement system

341

PHARMACISTS See PROFESSIONS, BUSINESSES AND TRADES, this index.

POST MORTEM EXAMINATIONS

Blood Tests

No authority to take from corpse without consent of next of kin __________ 342

Not authorized at request of State Patrol ________

------------------------------- 343

Death Certificates

Automobile accidents, duties of coroner ________ _____________

345

Deaths occurring during anesthesia -------------------------------------------- ______________

61

615

Page

POST MORTEM EXAMINATIONS-continued

Fees

Sheriff for assisting at inquest ____

99

Sheriff when performs duties of coroner

346

PRACTICE AND PROCEDURE
Appeals Expenses in capital criminal case discussed ------------------ ------------------------------- 119
Confessions of Judgment Law pertaining to, cited -------------------------------------------------------------------------------------- 347
Garnishment All wages subject to garnishment above exemption ------------------------------ 348 Explained __________________ -------------------------------------------------------------------------------------------- 348 State employees not subject without assent of State Official ____________________ 349 Withholding of income tax when subject to garnishment _______________________ 511

Service of Process

Upon foreign corporations doing business in State

49

Statutes of Limitations

Personal injuries, property damage and wrongful death _______________________ 472

PRISONS AND PRISONERS Athletic Fund Purchases not subject to sales tax ______________________________ ---------------------------------- 551
Board of Corrections Extra payments to Employees Retirement System required ____________________ 321 No jurisdiction over prisoner until county jail completed ________________________ 363 No liability of officials if prisoner donates kidney ________________ _________________ 357

Convict Labor

Use to clear church grounds and cemeteries invalid __________________________

349

Executions

Attendance, discretion only in prisoner as to whom attends ______________________ 354

Discussion whether appeal from denial of habeas corpus stays __________________ 354

Habeas Corpus

Warden may hold prisoner in custody during appeal from ________________________ 359

Manufacture

Goods produced by prisoners sold only to governmental agencies

356

Medical Treatment

Chiropractic aid available on request _____ ------------------------------------------- ______________ 357

Prisoners Donation of kidney by prisoner ______________ _______________________________ ___________________________ 357

Hospital and funeral expenses ________ ----------------------------------------------------------------- 358 Monies obtained by prisoner illegally may be confiscated _______________________ 358

Transportation, securing to vehicles -------------------------------------------------------------- 359

Warden may hold in custody during appeal of habeas corpus____________________ 359

Prison Funds

Employment of chaplain and construction of chapels __________________________

361

Prison Industries Administration

Powers enumerated ---------------------------------------------------------------------------------------------- 462 Prison Stores
Profits not required to draw interest ---------------------------------------------------------------- 360 Sentences
County jail to be served before state penitentiary ---------------------------------------- 363 When sentences end ____________________ ---------------------------------------------------------------------- 312

616

Page

PROFESSIONS, BUSINESSES AND TRADES

Accountants

Qualifications for licensing in Georgia ______

----------------------------------------- 363

Revocation of license for practice with unlicensed partner ________________________ 365

Anesthesia Technicians

No registration requirements ____________

366

Barbers and Beauticians No authority to receive fees for examinations, etc. __

_______________ 367

Teacher's examination, three years experience not required ________

367

Chiropractics

License renewal, attendance at educational session required _____________

368

Treatment available to prisoners upon request ___ _________________ ______________________ 357

Contractors

Required to be bonded when work involves public funds __

368

Exterminators

Must have place of business in municipality before licensed

369

Joint-Secretary Examining Boards

Receives fees for examinations, etc., rather than boards _________________ _

367

Junkyards

No law specifically regulating operation of

370

Mattress manufacture and sales

Discussion of law pertaining to ________

401

Medicines

Professional association of doctors discussed _________

371

N aturopathists

May not submit specimens to State Health Laboratory

415

Nurses

Board of Examiners' members may be connected with a school _

372

Pharmacy

Exam, high school education no requirement to take ___________________________ 373

Private Investigators

Procedure to open office ------------------------------------------------------------------------------------ 374

Professional Associations ---------------------------------------------------------------------------------------- 371

Professional taxes

Levy restricted to principal place of business ___________________________________________ 537

Real Estate Brokers

Licensing discussed --------------------------------------------------- ____________________

37 4

Real Estate Investment Board discussed ______ ------------------------------------------------- 464 State commission without authority to expend educational funds _________ 375

Religious Services May be conducted in chapels of prisons ____ _______________________________ ___________________ 361

Surveyors

Nonlicensed county surveyor may record plats and charge fees______

376

PROPERTY
Adverse Possession Statute of limitations pertaining to ______ ------------------------------------------------------ 377
Deeds Conveyances to State must be clearly defined ______ --------------------------------------- 379 Provisions in acquisition deed must be complied with -------------------------------- 390 Revenue stamps, not required for validity or filing ------------------------------------ 378

617

Page

PROPERTY-continued Reversionary clause in deed to State discussed ~ ~~~~~~~~~~~~~~~~~~~ ~~ ~~~~~-~~~~-~~-~~~~~~ 386

State will accept no deed with reverter clause ~~~~~~~~~~~~~~~~~~~~~~~~

378

Easements

Statute of limitations pertaining to ~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~~~~~~~~~~~~~~~~-~~~~~~~~~~~~

377

Executions Tax Sales ~~~~~~~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~-----------------~~~-----------~-----------~---------~ ~----------~~~~~- 481

Federal

Purchase of surplus exception to State Purchasing laws -------~- ~

442

Liens

Tax fi fa, defendant may pay execution any time prior to sale

476

Tax lien imposed on property of taxpayer ~~~~~-~~----~~~~~

~~~----~~~--~~~ 531

Tax liens, priority discussed --------~~~-~~~--------------~~-~-~---------~~~ ------~----~~~-~

529

Liens

When releases may be obtained from general tax lien _~~~~~~~-------~~~~

532

Mortgages

Investment in by insurance companies --------~-~~ ~~~--~~-----~~~~~- ~~~~~~~~------------~~

268

Posting against hunting or fishing --~-~--~ ~~------------~~~--------------~~~-~~~-~~~~

239

Riparian rights

Fishing in streams without permission ~ ~~------------~~~~~-~---------------~-~~~~------------ 237

Lakes adjoining rivers

~~~-~~~-----------------~-~-~-~------~--~----------~~-~~~~~ ~~~~~~----~~~~

235

School Property

Sales discussed ~-~~~~-~ ~~~~~~~~~~~~-~~---~-------~--~~

173

State

Acceptance of gift of property to State -~~- ~~~~~~~~~~~--------------

379

Acquisition of property with prior restrictions

-~~~~-~~~~--- ---~~-

390

Constructing improvements on reversionary property ----~-~~~~~~ ~~~~~~~------------ 314

Conveyance and sale vested in legislature -~--~--~~~~~ ~~~~~~~~~~ __________

380

Disposition and sale of surplus State property (pistols) ~~~-- ~~~-~~~~~~ __

380

Disposition of surplus Forestry Commission properties ~~~----~----------------~--- 381

Erection of vending stands by Vocational Rehabilitation Division ____ 178

Gifts of Property to the State should have no conditions --------------~~~---~~~~~ 382

Insurance may be required for Authority properties ~---~~-~

~~~~~~~~~-----~ 12

Insurance, mutual companies may bid only under limitations --------~------- 383

May not accept less than fee simple title to property ~~-~~-~~~~~~

384

No prohibition against charge for fishing on ----~----------------~-~------~

316

No restriction against commemorative markers on

385

Park property may not be leased to private individuals -------------~~---------- 386

Reversionary clause in deeds to State discussed

~~~~~~~-~~~---

386

Sublease of islands in Lake Lanier ~-~~~~-~~-----~---~-~-------------------------

389

Will accept no conveyance less than fee simple ~~~~---~~-~-~~

378

Surplus

Clothing acquired by State as fire-fighting equipment

455

Transfer

Must comply with provisions of previous deed of acquisition ~

390

PUBLIC DEFENSE

Military Reorganization Act of 1955 _____ ~

131

PUBLIC HEALTH

Commission on Alcoholism

Commitment to ------------~-----~----------------------- ~~~-------------------------------------~~----

391

618

Page

PUBLIC HEALTH-continued

Cost of care

Disclosure of income tax records by Department of Revenue ______________

503

Discussed ____________________ --------------------------- --------------------------------------------------------------- 392

Payment by patients discussed -------------------------------------------------------------------------- 392

Eugenic Sterilization Patient may select own physician for operation ________________________ _______________ 394

Funds

Transfer of excess funds to other states authorized _____________

395

Insanity

Lunacy Hearings, duties of recording proceedings ------------------------

93

Laboratories

Not authorized to examine naturopathists' specimens

415

Local Boards

Authority to regulate milk quality and sanitation_-------------------------------------- 396

Rule making power and remedies ------------------------------------------------------------------ 398

State-owned facilities bound by rules of local boards

____________________ _ 399

Mattresses

All concerns must affix stamps and labels ____

---------------------------------- 400

Bedding articles without stamps may be seized and held __________________________ 400

Discussion of law pertaining to ______________________

--------------------------------------- 401

Mental Health

Compulsory commitment statutes discussed --------------------------------------------

402

Defined and discussed _______________

__________________ -------------------------------------- 404

Discussion of commitment and treatment _________________ -------------------------

405

Lunacy hearings, appointing attorney and paying fees ___________________________ 92

Lunacy hearings, duties of recording proceedings ___ ------------------------------------ 93

Patient remains in custody until ordered released ---------------------------------------- 411 Patients furloughed on recommendation of superintendent _____________________ 410

Restoration of civil rights -------------------------------------------- ---------------------------------- 412

Voluntary patients denied release --------------------------------------------------------------

414

Milledgeville State Hospital

Admission and discharge of patients ________

--------------------------------------- 407

Discussion of transfer of patients to veterans' hospitals ____________________________ 408

Patients, furloughed on recommendation of superintendent ____________

410

Patients, remain in custody until ordered released _------------------------------------- 411

Patients, restoration of civil rights --------------------------------------------------

412

Visitors not on official business must clear with security officer _________ 413

Voluntary patients denied release ____________________ ----------------------------------------------- 414

State Department

Laboratories not authorized to examine naturopathists' specimens ________ 415

State Institutions

Payment of cost of care of patients discussed

392

Water Supply

Treatment by chemicals only by permit of State Board of Health

417

PUBLIC RECORDS

Ordinaries' offices

95

Preservation

May be destroyed after being micro-filmed in compliance with law _ 418

Sheriff's Office

Open to public inspection ________________________ ----------------------------------------------------------- 99

619

Page

PUBLIC SAFETY

Accident Reports

SR 21, financial security report ___________________________ ------------------- ----------------------- 421

Driver's Licenses

Diplomatic reciprocity recognized __

_________________________ ----------------------- 302

Suspension under Motor Vehicle Safety Responsibility Law -------------------- 422

Veterans' honorary licenses only for war periods _________________________ -------------- 302

Employees

Department may pay medical bills under certain conditions _------------------ 423

School Buses

Overtaking or meeting stopped bus ____ ------------------------------------------------------------ 570

State Department

Employees

Certain prior service credits discussed

------------------------------------------ 423

Payment of medical expenses by department

----------------------------- 425

No authority to take blood test from corpse without consent

of next of kin

--------------------------------

342

State patrol member may not require blood test of corpse ___

343

Traffic Offenses

Jurisdiction

567

PUBLIC SERVICE COMMISSION

Authority

None to authorize additional charge for transfer by

Atlanta Transit System ____

___ __________________________ -------------- _______________ 427

Only bound by private agreements to extent deemed necessary ________________ 429

Jurisdiction Motor vehicle engaged in transporting peanuts ____________

__________________ 431

"Piggy-back" truck operations by railroads _____________ ------------------------------------ 434

Scenic railroad at Stone Mountain not subject to regulation ____________________ 316

Motor Contract Carriers

When leasing contract is contract "for hire" ____

307

PUBLIC WELFARE

Records

May be destroyed after being micro-filmed ____

418

RELIGION Disturbance of a worship service, misdemeanor _______________________________________________ 107

SALES

Foreign Products

Not prohibited from being sold in State ___________________________________

438

School Property

Sales of discussed ____________________

173

State Purchases

Increases in contract price ________

____________________________

438

Invoices to be paid must have attached copy of delivery receipt

439

License tags purchased only from State _

________________ 297

Medals and trophies for National Guard awards ___________ Preference given to Factory for Blind products ___

440 _______________________ 440

Purchase of surplus federal property exception __ --------------------------------- 442 Surplus federal property as fire-fighting equipment ____________ _____________________ 455

620

Page

SALES-continued State Sales Disposition and sale of surplus State property (pistols) _______________________ 380 Sale of realty vested in legislature ------------------------------------------------------------------ 380 Surplus properties of Forestry Commission _---------------------------------------------- 381
SKIN DIVING See PARKS, this index.

SOVEREIGN IMMUNITY

Does not extend to protect employees for negligence ________________________

566

STATE GOVERNMENT

Art Commission

Members not subject to "Transactions with State Act" ---------------------- 467 Boards, bureaus and commissions

Vacancies, submission of names to Senate for confirmation _______ _______ 452

Budget

Funds "allotted" but not expended do not lapse into treasury ........... 443

Commerce Department

Has authority to make available an airport directory __________ _________________ 444

May staff a welcome station constructed by private funds ---------------- 446

Scholarships for employees -----------------------------------------------------------------------

447

Conflict of Interest

Board of Education member bidding on highway contracts _______________ 176

Executive department employees serving on legislative

study committee _________ ------------------------------------------------------------------------

447

Corrections Department

See also PRISONS & PRISONERS, this index.

Extra payments required to Employees Retirement System ------------ 321

Debts

Authority bonds not obligations of State ----------------------------------------------

32

Defense Department

Local civil defense organizations ----------------------------------------------------------------

38

Employees

Aliens

448

Garnishment not applicable unless consented to by State -------------------

349

Graduate study for employees ___________________ ----------------------------------------- __ ____ 447

Leave

Military leave not available to civil air patrol members ---------

449

Liable for own tortious acts ------------------------------------------------------------------

449

Medical expenses, public safety pays -------------------------------------------------------------- 423

Medical expenses of Public Safety employees -------------------------------------------- 425

Military leave, civil air partol members not entitled ---------------------------------- 449

Military leave, policies explained ----------------------------------------------------------

450

Personally liable for negligent acts --------------------------------------------------------- ___ 566

Prior service credits for Public Safety discussed ----------------------------

423

Executive Department Vacancies, submission of names to Senate for confirmation ___________________ 452

Factory for Blind

Preference given products by state agencies -------------------------------- -------------- 440

Forestry Commission

Compensation of members ------------------------------------------------------- ------------ 454

621

Page

STATE GOVERNMENT-continued

Disposition of surplus properties _--------------------------------------------------- ________________ 381

May acquire surplus clothing as fire-fighting equipment ------------------------ 455

Funds

Deposit in state depositories ______________________ -----------------------------------------------

563

Highway Department

Reimbursement of Law Department for legal service expense _______________ 457

Treasurer, State Board may fix salary____

________________________________________ 254

Historical Commission

Purpose and functions discussed ________________________________________

456

Law Department

Employment of additional Deputy Assistants ----------------------------------

249

Reimbursement of legal service by Highway

Departn1ent ------------------------------------------------------------------------------------------

457

Travel Expenses, not prohibited by Gen. App. Act of 1961 __________

459

Legal Representation

Vested solely in Law Department ------------------------------------------------------------

249

Mileage Allowance May not pay more than legal allowance for U-Drive-It autos ____________ 461

Parks Department

May not lease park property to private individuals ------------------------------

386

Ports Authority

Power to enter into lease with private corporation for 50 years

8

Prison Industries Administration

Powers enumerated ____________

462

Property

Insurance, only mutual companies under limitations _________________________________ _ 383

Sale of surplus State property (pistols)

____ __________________________

380

Public Safety Department

Employees, prior service credits -------------------------------------- _________________

423

Payment of employee medical expenses _______ -------------------------------- _______________ 425

Purchases

Invoices for payment must have copy of delivery receipt _________________

439

May not purchase license tags from other than State ______

297

Preference given to Factory for Blind products __________________

440

Purchase of surplus federal property exception ___ ---------------

442

Purchasing Department Procuring fidelity bonds for state employees _____________________________________________ 463

Real Estate Investment Board

Discussed ____________________________________ -------------------------------------------------------------

464

Records

Welfare Department may destroy records after being micro-

filmed ----------------------------------------------------------------- --------------------------------- ______________ 418

Sale of surplus State property (pistols) _____________________________________________

380

Soil Conservation Districts

Are agencies of the State ----------------------------

300

State Funds

Constructing improvements on reversionary property -------------------------------- 314

Profit from operation of prison store not true state funds ____

360

Public Health funds may be transferred to other states under

certain circumstances -------------------------------------------------------------------------------

395

622

Page

STATE GOVERNMENT-continued

Subject to Federal Tax Notice of Levy -----------------------------------------------------

528

STATE OFFICIALS

Appointment

By Governor for less than four-year term------------------------------------------------------ 466 Attorney General

Appointment of deputies for special purposes ------------------------------------------------ 249

Commissioner of Agriculture

See AGRICULTURE, this index.

Compensation

Director Veterans Service ____________________ ------------------------------------------------------------- 469

Director Vocational Rehabilitation may receive federal funds ____________________ 178

Forestry Commission members ______ --------------------------------------------------------

454

Conflict of Interest

Deposit of funds by Board in bank of which board member

is officer __ ---------------------------------- ------------------------------- --------------------- ------------------ 466 Executive department personnel serving on legislative

study committee ___ -----------------------------------

-------------------------------------------- 447

No application to noncompensated board members---------------------------------------- 467

Director Veterans Service

Compensation explained _______ ---------------------------------- ------------------------------------------- 469

Governor Period of time allowed to approve bills __ --------------------------------- ------------------- 40

Safety Fire Commissioner

Authorized to furnish pads for prevention and safety

instruction --------------------------------------------------------------------------------------------------

471

Secretary of State

Accepting service of process for foreign corporation---------------------------

49

Subject to Notice of Levy for Federal Taxes --------------------------------------------------- 528

Superintendent of Banks

Appointment for less than four-year term _

466

STATUTES

Statutory Construction

Reference to adjoining counties means counties within state _____________

473

STATUTES OF LIMITATIONS

Adverse Possession

Easements _

377

Torts

Personal injuries, property damage and wrongful death _______ ---------------- 472

TAXATION

Ad Valorem

Aircraft taxable in county of owner __ ---------------------------------------------

16

Assessment, taxpayer entitled to arbitration if not satisfied ________________ 474

Cemeteries are exempt from property taxation -----------------------------------

474

Consulate employee's automobile exempt ____________________________ -------------------------- 475

Easements ___________________________ ______________ ---------------------------------- __________________________ 476

Exemption of disabled veterans ___________ ------------------------------------------------------------ 486

Homestead Exemption

Applicant required to furnish satisfactory proof -------------------------------------- 490

623

Page

TAXATION-continued

Application to house trailers _------------------------------------------------------------------- 491 Automatically renewed ------------------------------------------------------------------------------------ 540
Cannot be claimed by nonresident ---------------------------------------------------------------- 492
For disabled veteran explained ---------------------------------------------------------------------- 492 Motel owner entitled to on motel if lives in motel ________________ ___________________ 493

Housing authorities exempt__________________

_______ ----------------------------------------- 9

Fi Fa, defendant may pay execution any time prior to sale ____________________ 476

Levied by municipalities for hospital authorities contracts ______________________ 537

Mill limits for special purposes by counties -------------------------------------------------- 477

Municipalities exempt from State and County taxation ------------------------------ 477

Personalty located on a military base but within city limits _

478

Personalty

Situs, county of owner's residence ---------------------------------------------------------------- 478 Situs is domicile of owner ---------------------------------------------------- _________________________ 555

Proportionate payments discussed _

------------------------------------------- 479

Public property not subject to -------------------------------------------------------------------------- 480

Situs

Personalty, domicile of owner _

________________ ------------------------------- 555

Tax on shares of banking stock not tax on bank ________________

482

Assessments

Shares of stock, factors to be considered _--------------------------------------------

557

Assessors

Board may correct undervalued returns ____

482

Bankruptcy

Does not discharge tax liability -----------------------------

529

Bonds

School bond taxes may only be levied on property within system ___

143

Counties

Industrial and recreational use levies unauthorized _

62

May not levy solely to pay employer social security

contribution ----------------------------------------------

70

Money levied for specific purpose may be used for no other

63

County Boards

County fiscal authorities must levy recommended tax ______

184

Credits

Educational contribution credit against tax ---------------------------------------------------- 482

Deductions

Contribution to educational institution _______

495

Credit against tax for educational contribution __________________

482

Delinquencies

Collection by incoming tax collectors

559

Documentary Stamps

Governments not liable, purchaser may be required to purchase ____________ 378

Not necessary for validity of documents or for filing_ ------------------------------- 378

Easements

--------------------------------------------------------------------- ---------------------

476

Education

County fiscal authorities must levy as recommended by

board of education _________________ ----------------------------------------

184

Estate Tax

Intangibles of nonresident _______ --------------------------------------------------------

483

624

Page

TAXATION-continued Procedure _______________ -------------------------------- -------------------- ------------------------------------------ 484
Executions

Sales to satisfy tax claims ---------------------------------------------------------------------------------- 481

Exemptions

Automobiles of consulate employees __________________ ______________ __________________

475

Counties may not grant ___________________________ -----------------------------------------------

485

Disabled veterans __________ ------------------------------------------------------------------ _______________ 486

Federal instrumentalities from sales and use tax ____________________________

540

Housing Authority bonds of other states not exempt ______________

487

Nonprofit organizations from sales and use tax------------------------------------

546

Obtained by presenting evidence of such to authorities __________________

489

State Board of education activities exempt_ _____________________________ ___________________ 174

Fi Fa's

Entry and recording of nulla bona discussed __ ------------------------------_______________ 489

Gross premium tax on insurance companies _____________________

_____________________ 267

Homestead Exemption

Applicant required to furnish satisfactory proof ----------------------------------------- 490

Application to house trailers ______________________

------------------------------------ 491

Automatically renewed ------------------------------------------------------------------------ ___________ ____ 540

Cannot be claimed by nonresident ------------------------------------------------ ________________ 492

For disabled veteran explained _________________ -------------------------------------------------------- 492

Motel owner living in motel entitled to, on motel __________________________

493

Not applicable under bond levies ___ ---------------------------------------- _____________________ 494

Housing Authorities

Exempt from ad valorem taxation________________________________________________________________

9

Immunity

Officer and Non-commissioned Officer Clubs _---------------------------------------------- 550

Imported Property

When Georgia taxes would apply ___________________________

494

Income Tax

Applicability to nonresident federal employee __ -----------------

508

Deductions

Contributions to educational institutions _________________________________ ----------------- 495

Contributions for educational purposes ____________ --------------------- --------------

482

Exemptions, interest on authority bonds _____ ------------------------------- ________________ 496

Federal tax owed by teacher, board of education may be levied __

161

Foreign corporation

As trustee for property in this State ________ __

_________________ --------------- 497

Lending money secured by property in State ________________________ ------------------- 498

Merely maintaining bank account in State _--------------

500

Interest on housing authority bonds of other states subject __ -------------

487

No liability because of intermittent purchases within state -----------

501

Nonresident subject to, if employed in Georgia more than

90 days ______________

--------------- ---------------------------- ----------------------------------- 501

Nonresidents, when exempt ________ --------------- __ ------------------------------- ______________ 502

Rates cited ____________ ---------------------------------------------------- --------------------------------

502

Records delivered to Remington Rand for punch cards valid ____ ----------------- 538

Records, disclosure to Health department officials ------------------------------------ 503

Residents only liable ---------------------------------- ------------------ ------------------------------

505

Statute of limitations _------------------------------ _________________ ---------------------------

505

625

Page

TAXATION-continued

Subsistence allowance subject, when ----------------------------------------------------

506

When testamentary trust taxable as trust and not as estate ____________________ 507

Withholding

By federal employer ------------------------------------------------------------------ --------------------- 508 Discussed ---------------------------------------------------------------------- ______________________________ 510

No obligation on nonresident employers __________ ------------------------------------

510

When subject to garnishment ________ -------------------------------------------------------------- 511

Intangibles Tax

Application to trust property -----------------------------------------------------------------

512

Convertible stock subject to tax ______________________________________________________________________ 514

Corporation organized for both exempt and nonexempt

purposes ------------------------------------------------------------------------------------ _________________________ 515

Discussion generally -------------------------------------------------------------------------------------------- 515

Distribution when recorded in two or more counties ______________ _

516

Easements

------------------------------------- _______________

476

Exemption for charitable purposes _____

518

Housing Authority Bonds of other states subject to _

487

Imposing estate tax upon nonresidents' intangibles ___ _

483

Note classified as of time of execution ____ _____________________________________________ 519

Only imposed once on each indebtedness --------------------------------------------

519

Payment under protest ----------------------------------- ----------------------------

521

Puerto Rican Bonds are not subject to ________

________________ _ 524

Refund, no provisions in law unless paid under protest _______________________________ 524

Refund procedure discussed --------------------------------- ______________ _________________________ 525

Reversionary interest of trust taxable _

------------------------------------------- 526

Trusts, subject if not exclusively for charitable purpose ________

527

Levies

Federal Tax State Agencies and officers subject to __________________________ _______________________ 528

Liability

Not discharged by bankruptcy __________

529

License Tags

Soil Conservation districts agencies of State and use State tags ___

300

Liens

Fees for release _

531

Fi Fa, defendant may pay execution any time prior to sale __________

476

May not obtain partial release on portion of property ________ _________________ 529

Priority discussed

---------------------------------------

____________________ _ 529

Property belonging to taxpayer is subject to lien

_________________ _ 531

Release of property and fees therefor _

_____________ __________________

531

When release from general tax lien may be secured _

532

Motor Fuel Tax

Buses of Atlanta Transit System subject to tax ______________________

532

Due upon delivery to dealer by distributor --------------------------------------------------- 533 "Gas tax sticker" required as evidence of registration -------------------------------- 534 State Agency may be required to become licensed as distributor ____________ 534

United States purchases exempt

_____________ -------------------------------------

535

When liability imposed __________ ________________

-------------------------------------------- 536

Municipal Corporations

Tax for hospital authorities' contracts _

537

626

Page

TAXATION-continued

Nonresidents

Imposing estate tax upon intangibles of nonresidents ____________________

483

Professional Tax

Levy restricted to principal place of business ______________ --------------------------------- 537 "Recording" Tax

See Intangibles Tax, this index. Payment under protest _________________ ______________________ _____________________________ _________________ 521

Records

Delivery to Remington Rand for punch cards valid __________________

538

Disclosure income tax records to Health Department ---------------------------------- 503 Re-evaluation

Tax assessors may contract for, with approval of

commissioners ____ ----------------------------------- --------------------------------- ------------------------- 539 Refunds
Payment of tax under protest does not constitute claim for refund _______ 540

Releases

When release from general line may be secured -------------------------------------------- 532

Returns

Penalty for failure to file on time _____ -------------------------------------------------------------- 540

Rolling Stores

Taxes due under Rolling Store Act _____________

541

Sales and Use Tax

Appeals to Revenue Commissioner from assessments

542

Applicable to deliveries to persons in this State -------------------------------------------- 542

Applicable to high school sporting event tickets -------------------------------------------- 544

Assessments, appeals to Revenue Commissioner from -------------------------------- 542

Bonding requirements of contractors and subcontractors -------------------------- 545

Dunnage and shoring materials subject --------------------------------- _______________ 545

Exemptions ________________

_________________________ --------------------------------------------------- 547

Purchases by nonprofit organizations ---------------------------------------------------------- 546 Purchases by Southern Governors Conference _______________________________________ 547

Purchases of property for rental _________________________ -------------------------------------- 551

Imposed upon consumer ______________________________ ------------------------------------------------------- 547

Laundry services and machines not subject to __________ ---------------------------------- 548

Liability of purchaser of business from which tax due-------------------------------- 549

Officer and noncommissioned officer clubs immune _________________________________ 550

Purchases

From non-appropriated fund of Corrections Department ______________________ 551

Property for rental not taxable__________________ ------------------------------------------- 551

Property for use in State contracts _________ ----------------------------------------------------- 552

Sales and Use Tax

Sales for export ___________ ________________ ------------------------------- _______________________ 552

Sales of personalty for use in performing contract for U. S. ____________________ 553

Water Sales taxable ___________

---------------------------------------------------------- 554

Title passing without-state and gratuitous distribution here ____________________ 554

Situs

Personalty

County of owners' residence

478

Domicile of owner ___________________________________ ------------------------------------------------------- 555

627

Page

TAXATION-continued

Staute of Limitations

Tolled by failure to file a return _____________________ --------------------------------------------- 556

Tax Sales

Sales of realty to satisfy delinquent taxes, discussed ___________________

556

TAX COLLECTORS, COMMISSIONERS AND RECEIVERS

Assessments Shares of stock, factors to be considered in assessing _____________________________ 557
Collectors Back taxes, collection by incoming collector _________ ___________________ __________________ 559

Not relieved of responsibility by turning fi fa's over to

county attorney

___________________ --------------------------------------- __________________

560

Salaries, sole compensation if stated in salary act _____________________________

560

Combined

When combined, elimination of errors may be accomplished _

561

Commissions Services rendered in collection of school taxes ____________________________________________ 562

Compensation

Commissioner fee compensation in addition to salary _______

562

Entitled to no additional pay for service as deputy to registrars ____

211

Salary sole compensation if so stated in salary act ___

______________ 560

Deposits

Deposit in any bank designated as state depository ___________________ _

563

Fees

Collection of school taxes and school bonds _______________________________________________ 564

Intangibles recording tax _____

516

Vacancies

Collector may not also serve as receiver _________________ ------------------------------------- 564

How filled ----------------------------- __________________________________________ -------------------------------------- 564

Procedure to fill ------------------------------------------------- -------------------------------------

565

TORTS

Liability Employees of State personally liable for negligence

_______________________ 566

Personal injury incurred in privately owned fall-out shelters _________

37

State employees for own tortious acts ___ ______________ _______________________

499

State to skin divers in State parks ____________ ---------------------------------------------------- 315
Sovereign Immunity Regents and Georgia Tech immune from tort liability_______________________________ 582

TOURISTS
Welcome Stations May be staffed by Commerce Department ____________ ----------------------------------------- 446

TRADEMARKS AND TRADENAMES

Tradenames

Use by individual together with individual name -------------------------------

47

TRADING STAMPS

Prohibited ________________ ------------------------------------------------------ - ----- ------------

118

628

Page

TRAFFIC LAWS

Blood Tests

No authority to take from corpse without consent of next of kin

342

Control on State-aid roads in Highway Department -------------------------~~~---~------~~ 254

Drivers' Licenses

Diplomatic reciprocity recognized ----------------------------------~---~- -------~-----~-~--~~----- 302

Not required to operate farm tractor upon highway ------------------------------------ 567 Suspension under Motor Vehicle Safety Responsibility Law ___ ________________ 422

Veterans' Honorary Licenses only for war periods --------------~------------------------- 302

Driving under influence _______________

----------------------~~--

-------------------~-- 108

Jurisdiction

Ordinaries over drunk driving____________

90

Jurisdiction for offenses _ ---------------------------~-----------~----- ------------------~-----~

567

Liability Insurance

Wagons or trailers used to haul cotton to gin by farmer---~~-~------- _____

276

Offenders

May not be bound over to ordinary by Justice of Peace ---------------------------- 82

Ordinaries

Jurisdiction over drunk driving ----------------------------- ------------------------------------------ 90

Overweight Vehicles Distribution of fines and forfeitures discussed ________________ ___________________________ 569

Speed "bumpers" discussed _____ _________________________________________ ---------------------------- 388

Stopped school buses --------------------------------------------- ----------------------------------

570

TRUSTS

Charitable purpose trust not subject to intangible tax ______________________

518

Corpus

Use of, in addition to interest -------------------------------------------------------------------------- 574

Reversionary interest of settlor taxable -------------------------------------------------------------- 526 Taxation

Application of intangibles tax ___ --------------------------- ------------------------

512

Foreign corporation acting as trustee for property in State ____________

497

Subject to, when not for charitable purpose ______________________ ____ ____________________ 527

When testamentary trust taxable as trust and not as an estate _______________ 507

UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT See DOMESTIC RELATIONS, this index.

UNIVERSITY SYSTEM OF GEORGIA

Admissions

May adopt any which do not conflict with law

571

Board of Regents

Appoint and remove all presidents of schools in system __ ___________________ 574

Bequests, use of corpus in addition to interest ---------------------------------------------- 574

Deposit of funds in bank of which Board member is officer________________________ 466

May grant scholarships to qualified persons ------------------------------------------------ 575

May re-name institutions __ -------------------------------------------------------------------------------- 576

Member's corporation may submit bids to Board --------------------------

577

Types of Investments permitted __ --------------------------------------------------------------- 578

Vested with complete control and management of system ----------------------- 571

Campuses Authority of municipal police on campuses _ ------------------------------------------------ 580

629

Page

UNIVERSITY SYSTEM OF GEORGIA-continued Employees

Supplemental Retirement Plan discussed -------------------------------------------------------- 318 Georgia Institute of Technology

May adopt admission requirements of vaccination, etc. -------------------------------- 571 Security Officers

Eligible for membership in Peace Officers' Fund ------------------------------------ 330

Have police powers ------------------------------------------------------------------------------------------ 581 Georgia State College

Non-U. S. Citizen may acquire Georgia residence for admission ____________ 128

Liability

Regents and Georgia Tech immune from suit for Parachute

Club activities ___________ ---------------------------------------------------------------------------------------- 582 Mileage Allowance

May not pay more than legal allowance for U-Drive-It Autos ________________ 461

Retirement Plan _-------------------------------------------- ----------------------------------------------------- 318 Scholarships

Board of Regents may grant to qualified persons ---------------------------------------- 586 Students

Authority of deans to take disciplinary action against -------------------------------- 583

Non-citizens of U. S. may acquire Georgia residence ---------------------------------- 128

Tuition, eligibility for resident rates _ Tuition

------------------------------------------------ 584

Resident rates, eligibility ----------------------------------------------------------------------------------- 584

VETERANS

Drivers' licenses, honorary, only for war period ------------------------------------

302

Exemption from ad valorem taxation _

________________________________________ 486

Homestead Exemption

For disabled veterans, explained

492

Licenses

Exemption for disabled veterans

___________________ -------------------------------- 585

Exemption personal and does not extend to owned companies ____________________ 586

State Department of Veterans Service

Directors' Compensation -----------------------------

469

WILLS AND ADMINISTRATION OF ESTATES

Bequests Body of deceased ________________ ______________ _____________ _____________________ _______________________ 586

Use of corpus in addition to interest, when --------------------------------

585

Executors

No prohibition against national bank as executor for nonresident ____________ 587

Generally

Discussed

587

Taxation

Foreign corporation acting as administrator for property in State

497

When testamentary trust taxable as trust and not as estate ________

507

WORKMEN'S COMPENSATION

Benefits

Permanent disability, when payments begin -----------------------------------------

587

Reduction when based on percentage of loss of earnings ----------------------------- 589

630

Page

WORKMEN'S COMPENSATION-continued

Claims

Filing, done only by claimant or legal representative _______________________________ 590

Disability

Permanent, when payments begin -------------------------------------------------------------------- 587

Employees

Definition of, stated and discussed --------------------------------------------------------- __

590

School employees

School funds may not be used to pay premiums ____________

168