Opinions of the Attorney General 1962

OPINIONS
of
THE ATTORNEY GENERAL
1962
EUGENE COOK
ATTORNEY GENERAL
G. WESLEY CHANNELL
Compiler Printed by
LONGINO & PORTER, INC.
PRINTERS HAPEVILLE, GEORGIA

The Honorable Carl E. Sanders Governor of Georgia Atlanta, Georgia
Dear Governor Sanders:
I have the honor to present to you herewith selected Opinions of the Attorney General issued by my office during the year 1962.
Also contained in this volume is a discussion of the duties of the Attorney General and the Department of Law and a description of the organization of the Department of Law during 1962.
I wish to take this opportunity publicly to express my appreciation to the members of my staff for their assistance and devotion throughout the year.
Sincerely,
EUGENE COOK The Attorney General
iii

~u iltmnrhtm
*
FLOY COOK STEPHENSON
This volume is affectionately dedicated to Floy Cook Stephenson, Administrative Assistant to the Attorney General, who died on May 2, 1963.
Floy Stephenson was a dedicated servant to the people of Georgia and a zealous employee of the Department of Law for twenty-seven years. She served under four Attorneys General, M. J. Yeomans, Ellis G. Arnall, Grady Head and Eugene Cook. At the time of her passing, she was Administrative Assistant to Mr. Cook, acting as office manager, treasurer and purchasing agent for the Department of Law.
Mrs. Stephenson was born Floy Cook on October 6, 1900, daughter of the late John Harbard and Nancy Waits Cook of College Park, Georgia.
She attended Fulton High School in Atlanta, from which she was graduated with honors in 1918, and Wesleyan College in Macon where she was awarded the degree of Bachelor of Science cum laude in 1923. While at Wesleyan, she was president of the student body and achieved numerous other distinctions in student activities and organizations.
Mrs. Stephenson was married in 1923 to Travis Allen Stephenson of Atlanta, who survives her. Also surviving her are a daughter, Mrs. R. A. McDuffie of College Park, and two grandchildren, Andrea and Russell McDuffie.
The State of Georgia and the Department of Law lost a devoted employee and a champion of their welfare in the passing of Floy Stephenson. They are indebted to her for ber many years of tireless and faithful service.
iv

FLOY COOK STEPHENSON

ATTORNEYS GENERAL OF GEORGIA
HENRY P. FARRER____________________________________________________________________1868-1872
N. J. HAMM0 ND--------------------------------------------------------------------------1872-1877 ROBERT 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---------------------------------______________________________________1902-1902 J0 HN C. HART---------------------------------------------------------------------------1902-1910 HEWLETT A. HALL__________________________________________________________________1910-1911 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. YEOMANS__________________________________________________________________________1933-1939 ELLIS G. ARNALL______________________________________________________________________1939-1943
GRADY HEAD-----------------------------------------------------------------------------1943-1945 EUGENE C00K _________________________________________________________________________1945-
v

PREFACE
Issuance of the Opinions of the Attorney General represents one phase of the numerous activities of the State Law Department.
Official opinions are issued to the Governor and to the heads of the various departments of the State Government. Such opinions provide legal guidance to State officials in the performance of their duties and are binding upon them unless and until modified or set aside as a result of subsequent legislation or court decisions. Of 247 official opinions of the Attorney General issued during the year 1962, there are 189 opinions which have been considered of sufficient general interest to warrant publication in this volume.
Unofficial opinions have been rendered upon request as a public service to county and municipal officials, to officials of other states, and to numerous private citizens. They serve the public as authoritative interpretations of the Georgia law rendered by specialists in the fields covered. The Attorney General issued 468 unofficial opinions in the year 1962, of which 304 are published herein. It is felt that these opinions will be of substantial aid to county and municipal officials in the performance of their duties and to private citizens in the determination of their rights.
For the convenience of the reader, the Opinions are published in the alphabetical order of the subject matter with which they deal rather than in chronological order of issuance or in some other manner.
For several years, it was the policy of the Attorney General to publish the Opinions biennially. However, in order that the Opinions may be publicly available while more nearly current and thus will be of maximum value to those who consult them, the policy henceforth will be to publish opinions annually, as soon as possible after the close of each calendar year.
. Also included in this volume is a brief discussion of the duties of the Attorney General and his staff as prescribed by law, and a description of the organization of the State Law Department.
Eugene Cook The Attorney General
vi

EUGENE COOK The Attorney General

PART I DUTIES AND ORGANIZATION OF
THE DEPARTMENT OF LAW 1962
vii

THE ATTORNEY GENERAL
AND
THE STATE LAW DEPARTMENT
The Attorney General of Georgia is elected by popular vote of the citizens of the State in the same manner and at the same time as is the Governor, and his term of office is coextensive with that of the Governor. Because his office is derived directly from the electorate rather than through executive appointment, the Attorney General, as a constitutional officer of the State, is responsible directly to the people in the performance of his duties.
Georgia's present Attorney General, Eugene Cook, first assumed office in 1945 by virtue of an appointment by Governor Ellis G. Arnall to fill a then-existing vacancy. Since that time, he has been elected by the people to four-year terms of office on five successive occasions, in 1946, 1950, 1954, 1958 and 1962. He has served the people of Georgia as Attorney General longer than any other man in the history of the State. Mr. Cook also is the only Attorney General in Georgia's history to have served as President of the National Association of Attorneys General, a position which he held in 1954.
As chief legal officer of the State, the Attorney General and the State Department of Law which he heads are the sole authorized source of official legal advice and representation for all of the various departments, agencies and boards in the executive branch of the State Government. Other departments of the State Government (exclusive of the legislative and judicial branches) 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.
The Attorney General is in effect general counsel to the State Government in the same manner as an attorney in private practice serves as general counsel to a huge corporation with thousands of employees, hundreds of divisions and subdivisions, and hundreds of millions of dollars annually in its trust.
The duties of the Attorney General are prescribed by the Constitution of the State of Georgia as amplified by the acts of the General Assembly. Differing in this respect from many other jurisdictions, Georgia does not allow its Attorney General any "common law powers", and he must function strictly in accordance with duties prescribed by the Constitution and by statute.
The duties of the Attorney General as prescribed by the Constitution are (1) to act as legal adviser to the executive department, (2) to represent the state in the Supreme Court in all capital felony cases, (3) to represent the state in all civil and criminal cases in any court when required to do so by the Governor, and (4) to "perform such other services as shall be required of him by law."1
1Constitution of 1945, Art. X, Par. II (Georgia Code Ann., Section 2-4502)
viii

The General Assembly has from time to time enacted legislation superimposing upon the constitutionally prescribed duties of the Attorney General a variety of additional duties, of which the following are the more important :2
(1) To give opinions in writing, or otherwise, on any question of law connected with the interest of the State;
(2) To prepare contracts in relation to any matter in which the State is interested;
(3) To attend criminal causes in any circuit when the solicitor general is prosecuted;
(4) To act as legal advisor of the executive department;
(5) To represent the State in the Supreme Court in all capital felony cases ;
(6) To represent the State in other courts when required to do so by the Governor;
(7) To institute and conduct investigations into affairs of any department or agency of the State Government;
(8) To prosecute persons violating any criminal statute in dealing with or for the State;
(9) To maintain civil recovery actions against any persons for violation of any statute in dealing with the State which results in loss to the State;
(10) To represent the state in all cases before the Supreme Court of the United States; and
(11) To represent the Georgia Public Service Commission before the United States Interstate Commerce Commission.
In addition to the general powers and duties imposed upon the Attorney General as outlined above, the General Assembly has from time to time imposed other duties of a diverse nature. Among these are such functions as prescribing traffic docket forms, 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, representing the interest of the State as paren patriae and the interests of the beneficiaries of charitable trusts in any attack upon them, and acting as information agency under the Uniform Reciprocal Enforcement of Support Act.
The General Assembly has also designated the Attorney General as a member of numerous boards and agencies of the State Government. Membership on such boards and agencies and attendance at their meetings are personal responsibilities of the Attorney General as opposed to certain of his duties which may be delegated to sub-
2Georgia Code Ann., Chapter 40-16
ix

ordinates. Boards and agencies of which the Attorney General is a member pursuant to direction of the General Assembly are:
(1) Department of Public Safety (Georgia Code Ann., 92A101);
(2) Board of Commissioners of Peace Officers' Annuity and Benefit Fund (Georgia Code Ann., 78-902);
(3) Board of Commissioners of the Superior Court Clerks' Retirement Fund (Georgia Code Ann., 24-2732);
(4) Commissioners of the Ordinaries' Retirement Fund of Georgia (Georgia Code Ann., 24-1701a) ;
(5) Elections Laws Study Committe~ (Acts 1957, p. 257);
(6) Commission on Interstate Cooperation (Georgia Code Ann., 47-1104);
(7) Nuclear Advisory Commission (Georgia Code Ann., 431001) ;
(8) Georgia Seed Development Commission (Georgia Code Ann., 5-2703);
(9) Governor's Commission on Constitutional Government (Acts 1959, p. 5);
(10) Hospital Advisory Committee (Georgia Code Ann., 991704);
(11) Seed Advisory Committee (Georgia Code Ann., 5-2410);
(12) Stone Mountain Memorial Association (Acts 1958, p. 61) ;
(13) Board of Trustees of Superior Court Judges' Retirement Fund (Georgia Code Ann., 24-2608a);
(14) Board of Trustees of Superior Court Solicitors General Retirement Fund (Georgia Code Ann., 24-2907a);
(15) Council To Investigate Incapacity of Comptroller General Or State Treasurer (Georgia Code Ann., 40-2071);
(16) Council To Investigate Suspension of State Revenue Commissioner (Georgia Code Ann., 92-8403);
(17) Elections Commission (Georgia Code Ann., 24-1925);
(18) Mineral Leasing Commission (Georgia Code Ann., 91-118);
(19) Properties Acquisition Committee (Georgia Code Ann., 361117);
(20) Refunding Bond Commission (Georgia Code Ann., 87-501a);
(21) Tax Settlement Board (Georgia Code Ann., 92-8411.1);
(22) Farmers' Market Authority (Georgia Code Ann., 65-304);
(23) Jekyll Island State Park Authority (Georgia Code Ann., 43-604a);
X

(24) Hospital Authority (Georgia Code Ann., 99-1403);
(25) Office Building Authority (Georgia Code Ann., 91-502a);
(26) School Building Authority (Georgia Code Ann., 32-1402a);
(27) University System Building Authority (Georgia Code Ann., 32-102a);
(28) Various Agriculture Commodity Commissions.
Another statutory duty of the Attorney General 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." The Attorney General is also an adviser to the Legislative Counsel of the General Assembly.
Though the bill drafting unit formerly operated as a part of the Attorney General's office was removed from that office by the General Assembly in 1959 and made a separate arm of the General Assembly, the Attorney General and the Department of Law continue to prepare legislation for various departments as requested and maintain close cooperation with Legislative Counsel.
In a discussion of the duties of the Attorney General, one popular misconception should be corrected. The Attorney General is not, generally speaking, a prosecuting attorney. While the Attorney General may become involved in the prosecution of a criminal case by direction of the Governor, shall become the prosecuting officer in certain cases involving state officials and does represent the State in the Supreme Court in capital felony case, he does not participate as a matter of course in the prosecution of the overwhelming majority of criminal cases which regularly reach the various courts of the State. Prosecutions for crimes triable in Superior Courts are conducted by the solicitors general of the several judicial circuits of the State who are elected by the voters in their circuits, and prosecutions for lesser crimes are conducted by officials of the various city, county and other courts comprising the judicial system of the State.
The duties of the Attorney General outlined above are performed personally by him to the extent possible and where specifically required by law, and by members of the staff of the Department of Law under the direction and supervision of the Attorney General. The Department of Law consists of such number of Assistant Attorneys General as are from time to time deemed by the Attorney General and the Governor to be needed, together with Deputy Assistant Attorneys General, Attorneys, Law Clerks, Administrative Assistants, and a clerical force. All of the Assistant Attorneys General 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 with the approval of the Governor.
The law specifically requires the assignment of at least one Assistant Attorney General to the State Highway Department, the Revenue Department, and the Public Service Commission. In addition, Assistant Attorneys General are assigned to each of the other departments of the State Government.
xi

The chart opposite this page illustrates the organization of the Department of Law as of 1962.
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 law3 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 strange jurisdictions, local attorneys are sometimes employed under this law to assist in such trials. These special deputies are not full-time employees, but are employed only for specific tasks and assignments. They are often confused with the regular full-time Deputy Assistant Attorneys General, and for this reason the rank is used sparingly for full-time employees.
3Georgia Code Ann., Section 40-1614 xii

THE DEPARTMENT OF lAW STATE OF GEORGIA 1962

I EUGENE COOK ITHE ATTORNEY GENERAL

.---------~1

~~------~

I
ADMINISTRATION
Auistant-F!oyG.Stephemon Aide-Julia Cook Confidential Secretary-Mary Giles

'I I

JAMES H. THERRELL

EXECUTIVE ASSISTANT ATTORNEY

I GENERAL

I

I

GOVERNOR'S OFFICE

l HENRY G, NEAL ASSISTANT ATTORNEY GENERAL

Principal Accounting Clerk-Virginia Mi!et

SeniorClerk-BeulahRo"

Librarian-Annette Haire

P.B.X.-AiiceDyer

I

I

I

I

I

I

I

~...............

BOARD OF REGENTS HEALTH DEPT., TEACHERS' AND EMPLOYEES'

HIGHWAY DIVISION
Carter Goode

REVENUE DIVISION
W.l.Harper

AGRICULTURE, GAME & FISH COMMISSION

BANKING, COMPTROLLER GENERAL

EDUCATION DEPT. BOARD OF EDUCATION

PUBLIC SAFETY, PARICS DEPT., PARDON & PAROLE BOARD, UNIFORM

SECRETARY OF STATE, PUBLIC SERVICE COMM.,
ELECTIONS,

RETIREMENT,

E.J.Summerour

Louit McDonald

G.H.Harri1on

Earl Hidman

Donald Peyton

SUPPORT,

MILLEDGEVILLE

BUDGET DIRECTOR,

Paul Miller

John Dean

John Harrison

Auidant Attorney General

Anidant Attorny Gneral

CORRECTIONS,

STATE HOSPITAL,

MERIT SYSTEM,

R,l. Chambers

Auidant Attorneyt General

AuistantAttorneysGenerel Mobley Childs

PURCHASING,

CLAIMS ADVISORY

HEALTH INSURANCE

AuislantAttorneysGeneral Douglas Kerr

Law Clerk

t-jiSTORICAL COMM.

COMMISSION

PLAN, SOCIAL SECURITY, CHARITABLE TRUSTS

JamuH.Wood G.W.Channell Herbert Crane

Deputy Anishnt Attorney General
John Blackmon Attorney

HowardWallaee AuistantAttorneyGeneral

Paul Rodgers AuislantAttorneyGeneral

TREASURER

Attorneys

James H. Therrell AuistantAttorney General P. T.MeCutchen,Jrw B.L.Johnson Attorneys

I
FORESTRY, DEFENSE WORKMEN'S
>CO-M,P.E.N-SA-T,IO-N- - - - - i
John Harrison AuililantAttorneyGenerel

~
I CRIMINAL BRIEFS

I

I

1 L lCRIMINAL DIVISIONJ WELFARE DEPT.

I .f I Rubye Jachon

Carter Setliff

1Assidant Attorney Generalj jlnvedigetor

ll lamarMurdau'ilh AuislantAitorneyGeneral

I
MISCELLANEOUS, CONFEDERATE PENSIONS
J. R. Parham AuislantAttorneyGeneral

I
COMMERCE, VETERANS, MINES AND GEOLOGY, STATE LIBRARY, EXTRADITION, EXAMINING. BOARDS
Dou..,las King Auist.,ntAttorneyGenaral

PART II OPINIONS OF THE ATTORNEY GENERAL
1962
XV

1

AGRICULTURE-Agricultural Commodities Authority

Agricultural Commodities Authority may purchase for use of and Agricultural Commodity Commission for Peanuts may accept a building for its use.

Honorable A. J. Singletary, Chairman Agricultural Commodities Authority

August 8, 1962

I am in receipt of your letter relative to the possibility of the purchase of a building by the Agricultural Commodities Authority for use by the Agricultural Commodity Commission for Peanuts.

As to the authority of the Agricultural Commodity Commission for Peanuts to accept property, the provisions of Section 9, paragraph (g), of the Agricultural Commodities Promotion Act, Ga. L. 1961, p. 301, would seem to be adequate. That paragraph provides:

"(g) Each such Commission is hereby authorized to accept donations, gifts and other property and to use the same for Commission purposes. Each such Commission may exercise the powers and authority conferred by law upon corporations."

There being no question on the authority of the Agricultural Commodity Commission under the 1961 law, there remains the question of the authority of the Agricultural Commodities Authority under the 1951law (Ga. L. 1951, p. 717) to make the purchase.

The Agricultural Commodities Authority Act (Ga. L. 1951, p. 717) has been the subject of much discussion and litigation since its inception. It has been twice amended (Ga. L. 1958, p. 237 and Ga. L. 1959, p. 167). The Georgia Supreme Court, in the case of Agricultural Commodities Authority v. Balkcom, 215 Ga. 107, held Section 10 of the Act to be unconstitutional. This was the same basic decision that is found in an Opinion of the Attorney General, dated May 18, 1951 (1950-51 Op. of AG, p. 234).

While the above dealt with specific attacks upon the Act, no disposition or decision pertaining to the remaining Sections has been made. It is my understanding that the Authority was activated and
that the procedure outlined in the Act was followed wherein a referendum was held and funds collected under the provisions of said Act,
and that at the present time, there are funds in the custody of the Authority, some, if not all, of which are held by virtue of releases from ~ontributors, and that said funds are in effect available to the AuthorIty for disposition.

The Act itself deals with the power of the Authority to dispose of funds in a general way. While not entirely specific, and there being no Provisions of the Act spelling out in detail that the Authority might expend funds as proposed, the language of the Act, construed in its
entirety, would appear to authorize the Authority to expend funds for the purchase of a building to be utilized by the Agricultural Com-
modity Commission for Peanuts.

2
In support of this view, the title of the Act enumerates the necessity and purpose of the General Assembly in enacting this statute, and contains the words:
"... for the purposes of conserving and promoting the prosperity and welfare of the persons engaged in agricultural production and distribution and industries related thereto in the State of Georgia; ..."
The title further provides:
"... to provide for the expenditure of funds, . "
Clearly, the proposed expenditure falls within the above enumerated provisions of the title.
Section 1 of the Act contains legislative declarations. Section 6 in part provides:
"The authority shall collect and disburse the charges authorized by this Act; . . ."
This Section further provides in part:
"Provided, however, no money shall be expended on any commodity except upon the recommendation of the commodity committee representing the specific commodity upon which the charges were collected . . ."
Section 8 of the Act defines the powers and duties of the commodity committee.
Code Section 102-102 relates to the construction of statutes. I deem it unnecessary to enumerate the authority for the rules of construction that the intent of the General Assembly in enacting a statute is the cardinal rule of construction and that a substantial compliance with laws, especially on the part of the public officers, shall be deemed and held sufficient.
It therefore clearly appears that the overall intent and purpose of this statute was to aid in the conservation and promotion of the named agricultural products and others directly affected.
Thus, construing the 1951 Act as amended, and considering the purposes and intent of the Agricultural Commodities Promotion Act of 1961, I am of the opinion that the Agricultural Commodities Authority, upon complying with the provisions of the 1951 Act as amended, would be authorized to utilize funds of the Authority for the purpose of providing office space for the Agricultural Commodities Commission for Peanuts.
To remove any question as to such expenditures, you might consider the execution of an agreement between the two entities under the authority conferred by Article VII, Section VI, Paragraph I of the Constitution (Ga. Code Ann., 2-5901), and particularly paragraph (a) thereof.

3

AGRICULTURE-Agricultural Commodities Authority
Georgia Agricultural Commodities Promotion Act of 1961 did not repeal by implication 1951 Act establishing Georgia Agricultural Commodities Authority.
December 4, 1962

Honorable A. J. Singletary, Chairman Georgia Agricultural Commodities Authority

This will acknowledge receipt of your request for my official opinion in respect to the following questions:

"(a) After Sec. 10 of the above law (which section provided for the levy of certain assessments on certain commodities) was declared unconstitutional by the Supreme Court of Georgia in the case of Agricultural Commodities Authority v. Balkcom,
215 Ga. 107, the Authority was, of course, still in existence, though without power to make any of the levies referred to; however, by the Act of the General Assembly approved March 30, 1961 (Ga. Laws, 1961, Vol. I, pp. 301-351), the 'Georgia
Agricultural Commodities Promotion Act', passed expressly to implement newly-ratified Par. I-A of Sec. II of Art. VII of the Georgia Constitution of 1945, there was set up a sweeping and far-reaching program of agricultural commodity promotion, with a number of new public corporations, one for each com-
modity as defined in the Act, set up.

"QUESTION: Did the General Assembly, in enacting the 1961 legislation, intend the same as a substitute for the machinery created and authorized by the 1951 Agricultural Commodities Authority Act as amended, so as to supersede and work a repeal by implication of the latter, thereby sweeping the old Agricultural Commodities Authority out of existence?

"(b) If the 1951 law was not thus repealed by implication,

does the Authority thereby created have power to purchase

property and take titles thereto in its own name and right? (As

noted on p. 13 of Vol. III 'Encyclopedia of Georgia Law', in 6,

the 1951 Act as amended does not expressly declare the old

Authority a body corporate and politic.)"

.

Answering question (a), while it is the general rule that subsequent statutes dealing entirely with the subject matter will repeal
former statutes dealing with the same subject, repeals by implication are not favored. The expressions used by the courts in establishing the criteria to be applied are varied, and in short and in summary, they are:

(1) Repeals by implication are not favored (Oxford v. Carter, 216 Ga. 821);

(2) Repeals by implication are not favored and never occur except wthere latter statute is clearly indubitably contradictory and contrary 0 the former statute (Collier v. Mitchell, 207 Ga. 528); and

4
(3) Repeal of law by implication is not favored and if later Act does not embrace the whole subject matter of a prior Act and is not entirely repugnant to it, court should apply such construction as will give to the two Acts concurrent efficacy (Lewis v. City of Smyrna, 214 Ga. 323).
For a collection of similar cases, see 30 S. E. Digest-Statutes, 158. See also 82 C.J.S.-Statutes, 290-292.
Based upon the foregoing, and in view of the fact that the 1951 Act dealt with only three commodities (four by virtue of an amendment), and in view of the fact that the Georgia Agricultural Commodities Promotion Act (Ga. L. 1961, p. 301) deals with all agricultural commodities, I am of the opinion that there is not the repugnancy that would preclude the two Acts from standing together and that both Acts are of force and effect.
Answering question (b), the powers of the Agricultural Commodities Authority are enumerated in Sections 3 and 4 and 6 of Ga. L. 1951, p. 717. In Section 4, after providing that the executive office of the Authority shall be established in Atlanta, Georgia, the Authority "is authorized in their discretion to establish branch offices at such other places as the Authority deems advisable." Taking this grant of authority with that conferred upon the Authority by Section 3, it would appear that the Authority would have the power to purchase property and take title thereto in its own name and in its own right.
AGRICULTURE-Bonding of Dealers (Unofficial)
Citation of laws relative to bonding of dealers in agricultural products.
May 7, 1962
Honorable Doyle Conner, Commissioner Department of Agriculture Tallahassee, Florida
Commissioner Campbell has referred your letter requesting information in regard to the bonding of agricultural dealers to me for reply.
Georgia Code Annotated, Sections 5-614-628, relate to the bonding of dealers in agricultural products. This was patterned largely after the provisions found in Florida Code, Sections 604.15 through 604.30. Georgia Laws, 1962, page 127, amended this Act to include pecans and pecan nuts.
Georgia Code Annotated, Chapter 62-19 relates to livestock auction sales and provides for the bonding and licensing of dealers in livestock at such establishments.
Georgia Code Annotated, Chapter 84-32 relates to the licensing of livestock dealers.

5
Georgia Code Annotated, Section 5-9914, provides that it shall be a felony punishable by imprisonment for not less than one year nor more than five years for any person to fail or refuse to pay for certain agricultural products or to make away with or dispose of the same before the person purchasing shall have paid therefor unless credit shall be expressly extended. This Code Section, as amended, has been upheld by the Supreme Court of the State of Georgia in the case of Plapinger v. The State, 217 Ga. 3.
By copy of this letter, I am requesting Messrs. Boyce Dyer, George Seaton and Dr. J. W. Mann, of the Department of Agriculture of the State of Georgia, to furnish you with copies of the forms used in the registration and licensing of affected individuals and companies. I regret that I do not have copies of these statutes and Code Sections available for distribution, but I feel sure that you have the Georgia Code Annotated available.
AGRICULTURE-Cooperative Marketing Associations (Unofficial)
Discussion of formation and activities of cooperative marketing association.
October 3, 1962
Honorable Gus B. Hatfield, Jr. Chattanooga 3, Tennessee
You request my opinion concerning the possibility of forming a cooperative marketing association with the plan of operation being for the association to be formed to own or lease real estate and the association farming the real estate and marketing the produce raised thereon. You further state that the members of the association, or the stockholders, would purchase stock in the association and the capital raised thereby would be used to pay the rental upon the land, to purchase machinery and to pay the expenses involved in producing the crop. The income from the crops thus raised would be distributed to the stockholders pro rata based upon their capital investment in the association. You state further that it is not contemplated that the association would market produce raised individually by its members or raised by non-members, but would market only that produce or f~r~ product that was raised upon land owned or leased by the assoCiation itself.
The Cooperative Marketing Act, Ga. Laws 1921, p. 139, codified as Chapter 65-2 of the Georgia Code. Section 65-213, as amended, pnumerates the powers of each association organized under this law.
aragraph (2) contains the powers as to the handling of farm products. It reads :
"(a) To engage in any activity in connection with the ter~acing of lands, marketing, selling, harvesting, preserving, drymg, processing, canning, packing, storing, handling, ginning

6
or utilizing of any agricultural products produced or delivered to it by its members; or the manufacturing or marketing of the byproducts thereof; or in connection with the purchase, hiring, or use by its members of supplies, machinery or equipment; or in connection with the prevention of soil erosion; or in the financing of any such activities; or in any one or more of the activities specified in this section. The association, however, may handle and deal in the agricultural products of nonmembers equal in value to, but not greater in value than, that handled by it for members."
Paragraph (f) provides:
"(f) To buy, hold and exercise all privileges of ownership over such real or personal property as may be necessary or convenient for the conduct and operation of any of the business of the association or incidental thereto."
Paragraph (h) contains further powers of any such association and after enumerating named powers provides:
"... and in addition, any other rights, powers and privileges granted by the laws of this State to ordinary corporations, except such as are inconsistent with express provisions of this law; and to do any such thing anywhere."
The Act as amended by Ga. Laws 1939, p. 350, Georgia Code Annotated 65-229 provides:
"A cooperative association organized under this Chapter may engage in activity in connection with production of agricultural products and furnishing to its members farm business services."
This Act and its application and the activities of associations incorporated thereunder have been the subject of much litigation in this State. Harrell v. Cane Growers Co-Operative Association, 160 Ga. 30, decided February 27, 1925, is a 36 page opinioJl that deals with an association incorporated under this Act. While here the Court was dealing with the rights of a member of the Association, the concurring opinion of Chief Justice Russell beginning at page 43 is quite interesting. In this concurring opinion he holds among other things that the title of the Act is adequate and that the powers conferred by Section 4 (Ga. Code 65-213) are constitutional. A careful reading of this decision is quite revealing in that the Court goes into great detail in recognizing a problem and in addition thereto discusses the authority of the General Assembly to deal with the problem.
In Northeast Georgia Artificial Breeders Association, Inc. v. Brown, 209 Ga. 547, the Court held that an association organized in accordance with the Cooperative Marketing Act was authorized to engage in the artificial breeding of livestock.
In Forrester, Commissioner v. Georgia Milk Producers Federation, 66 Ga. App. 696, the Court of Appeals held that the manufacture of ice cream from milk supplied by its members is one of the authorized

7
powers under the Act. The Court further held that such an Association was exempt from the payment of the occupational tax levied under Georgia Laws 1935, p. 36, Section 57 (Ga. Code 92-1002).
In Hall v. Georgia Milk Producers Federation, 61 Ga. App. 676, the Court held that the cooperative was not an employer within the provisions of the Workmen's Compensation Act.
In Johnson v. Ga.-Carolina Retail Milk Producers Association, Inc., 182 Ga. 695, the Court in a full bench decision upheld the granting of an injunction by the association against a person who had entered into a contract with the association.
In not all instances have associations incorporated under the Act been exempt from the application of other statutes. In Southeast Shippers Association, Inc. v. Georgia Public Service Commission, et al., 211 Ga. 550, the Court held the plaintiff in error to be a motor carrier for hire. The Court at page 555 stated:
"... Except for the Nonprofit Co-operative Associations Act of 1921 (Code 65-201 et seq.), which is confined to the transporting of agricultural products, there is no statutory provision in this State which authorizes the incorporation of a co-operative association for the transportation of the goods of its members for hire. The defendant is a nonprofit corporation incorporated under the Corporation Act of 1938. Code (Ann. Supp.) 1\22-1881. 'Although many states have a set of separate statutes relating to nonprofit corporations, it would seem that it has become the legislative intent of Georgia to treat a nonprofit corporation similar to the business or profit corporation. Although the ensuing consideration of both the substantive and procedural law relating to nonprofit corporations is comparatively inclusive, it must be remembered that, unless otherwise specifically noted, the fundamental rules and principles of law of profit and business corporations are equally applicable to nonprofit corporations.' Nadler, Georgia Corporation Law, 468."
From the above it would appear that notwithstanding the fact that the title of the Cooperative Marketing Act is limited to marketing, the above quoted provisions of the Act do authorize the formation of an association along the plan outlined above.
While the Act might authorize the formation of an association by virtue of the broad grant of power quoted above, and while such ~n association might be within the language of the statute, the opinIon~ expressed herein cannot and should not be interpretated as a ruhng that such an association would be exempt from taxes or receive any favorable consideration by virtue of the organization of such an a~sociation. The formation of such an association for the purpose of Circumventing or avoiding the effect of other statutes including taxes wo!-!ld probably meet with the same determination that was arrived at Ill the Southeast Shippers Association, Inc. case, supra. The opinion expressed herein as to the formation of such an association along ~he plan outlined is based upon the language of the statutes and the Interpretations placed thereon by the Courts.

8
AGRICULTURE-Gasoline Tax Refunds (Unofficial)
Review of earlier Opinions of the Attorney General and court decisions relative to what constitutes "agricultural products," "farming" and "farm products," within the meaning of the law relating to gasoline tax refunds.
July 3, 1962
Dr. Harry L. Brown, President Georgia Farm Bureau Federation
This will acknowledge receipt of your letter requesting a review of the Opinions relative to gasoline tax refunds to farmers.
The Opinions of the Attorney General relating to this matter are as follows:
(1) An official Opinion dated April 14, 1953 (Op. of AG, 1952-53, p. 460), in which it was held that a turpentine company which utilizes tractors for the purpose of plowing firebreaks is not entitled to a vendee's tax refund permit for the gasoline used in such tractors.
(2) An official Opinion dated July 5, 1954 (Op. of AG, 1954-56, p. 819), in which it was held that gasoline used in equipment in planting, growing and cultivating pine trees was not subject to refund of gasoline tax.
(3) An official Opinion dated November 10, 1954 (Op. of AG, 1954-56, p. 817), in which it was held that gasoline used in clearing firebreaks, trails, food sites (for game) and the planting of milo, rye and rye grass was not eligible for refund.
(4) An official Opinion dated December 31, 1954 (Op. of AG, 1954-56, p. 821), in which it was held that gasoline used by Officers' Clubs on U. S. Military Reservations was exempt from the Georgia motor fuel tax.
(5) An unofficial Opinion dated June 9, 1955 (Op. of AG, 1954-56, p. 820), in which it was held that gasoline used to operate machinery for the purpose of extracting sand or clay is not used for "agricultural purposes" and not subject to refund.
(6) An official Opinion dated July 6, 1955 (Op. of AG, 1954-56, p. 822), in which is discussed the law applicable to such refunds.
(7) An unofficial Opinion dated March 22, 1957 (Op. of AG, 1957, p. 308), in which it was held that there was no provision of law whereby a filling station operator could obtain a refund due to the leakage of gasoline resulting from defective plumbing.
(8) An official Opinion dated April 16, 1957, (Op. of AG, 1957, p. 309), in which it was held that gasoline used for the

9
purpose of growing fruit trees, ornamental trees, vines and plants is not subject to a gas tax refund.
(9) An unofficial Opinion dated June 11, 1957 (Op. of AG, 1957, p. 310), in which it was held that gasoline used in engines not used on the highways of the State is not entitled to a gas tax refund unless such is expressly authorized by.statute.
(10) An unofficial Opinion dated April 13, 1960, in which it was held that the poultry business does not constitute the business of farming under the gasoline tax law.
The statutes involved are:
(1) Ga. Code Ann., 92-1403, which is the basic refund law.
(2) Code, 67-1107, which defines crops, growing crops, and attempts to define the word "farmer."
(3) Code, 5-1617, which defines "agricultural products" to include and embrace crude gum (oleoresin) from a living tree or trees, and spirits of turpentine as processed by the original producer of the crude gum (oleoresin) from which derived.
(4) Code, 5-603, which imposes a prohibition against the taxing of product by cities or towns.
(5) Code, 92-4108, which places further restriction upon the taxation of agricultural products and livestock.
(6) Code, 65-201, which defines "agricultural products" under the Nonprofit Cooperative Associations Act of 1921. Paragraph (a) thereof reads:
"(a) The term 'agricultural products' shall include horticultural, viticultural, forestry, dairy, livestock, poultry, bee and any farm products."
(7) Code, 65-302, which is a part of the Georgia Farmers Market Authority Act and defines a farmer's market in paragraph (e), and which reads in part:
" (e) Farmers Market. Place located either within the State of Georgia where farmers may bring or send to sell, exhibit or tranship, and buyers may come to buy, inspect or transport, any product of husbandry or agriculture, including without limitation, the produce of field and farm, livestock, poultry and the like . . ."
Some of the basic authority upon which the Opinions were rendered includes the case of Collins v. Mills, 198 Ga. 18. That case involved the taxing of lumber and is primarily concerned with the con-
tstruc~ion of the constitutional provisions insofar as exemption from
atxatwn is concerned. At page 22 of the opinion, Chief Justice Bell sated:
"The business of farming, however, may change both as to

10
method and as to things produced, and changes in the latter respect may from time to time add new crops to the catalogue of farm products. In such case, the exemption would apply to the new products, as well as to the old, and would do so, even though the new products may have been entirely unknown, and hence not specifically within the minds of the people at the time such constitutional provision was adopted. . . ."
At page 24, in recognizing a change in agricultural pursuits, Judge Bell stated:
"While in recent years there may have developed a tendency among owners of land to plant and cultivate young saplings and to care for them as they grow, somewhat after the manner of agriculture, for the purpose of producing trees that may finally be suitable for timber, yet is this not an exception, and such a rare exception that it would not ordinarily be suggested to mind by the term farming?"
At page 25, the Court specifically stated that it was unnecessary for the Court in the instant case to determine whether or not lumber was a farm product. At page 26, the Court stated:
"Nor do we determine whether, if the petition had shown that the lumber was a farm product, the plaintiff could be treated as a 'producer,' under the facts alleged."
This case discussed at great length what is and is not farming, but it is interesting to note that they did not determine that lumber was or was not a farm product. Certainly from reading the case it is apparent that by the proper allegation, lumber can be a farm product.
Further, in this opinion, emphasis is placed upon a quotation from the case of Pridgen v. Murphy, 44 Ga. App. 147. In connection therewith, the decision of the Court of Appeals in the case of Hamilton Turpentine Co. v. Johnson, 93 Ga. App. 544, would seem to control. The Court, at page 546, in referring to Ga. L. 1939, p. 240, amending Code 67-1107, removed any question as to the status of turpentine farmers when they stated:
"The amendment of 1939 having clearly made the original manufacturers or producers of crude gum (oleoresin) farmers for all intents and purposes, the Workmen's Compensation Act is inapplicable to them and their employees."
In the Hamilton case, in distinguishing between Pridgen v. Murphy, supra, and Moody v. Tillman, 45 Ga. App. 84, the Court stated that these cases were decided prior to the 1939 amendment to Code 67-1107 (indeed the Pridgen case was decided on October 3, 1931) and subsequent thereto Ga. L. 1933, p. 128 and Ga. L. 1933, p. 282 both show the intent of the General Assembly to include by statute turpentine producers as farmers. It would thus appear that even prior to the 1939 amendment, based upon the two 1933 Acts, turpentine producers were farmers as a matter of law. Certainly with the 1939 amendment, producers of turpentine are farmers by operation of law

11
and specifically by statute, notwithstanding any interpretation that might be placed upon the business in which engaged.
As a matter of information, the Pridgen case, as well as the Hamilton case, turned upon the point of whether the employer was a farmer under the Workmen's Compensation law. On this subject, D. M. Field, Professor of Law, and Edward W. Killorin, Faculty Research Assistant, School of Law, University of Georgia, stated in Vol. 8, No. 1, Mercer Law Review (Annual Survey of Georgia Law, June 1, 1955June 1, 1956), page 191, at page 194:
"One class of employees who are expressly excluded from the act are 'farm laborers.' As farming is defined as the cultivation of land for the production of crops it would seem that the business of producing turpentine gum would be within the act and for a number of years and in a series of cases it was thus decided. In Hamilton Turpentine Company v. Johnson, the opposite view was adopted and the production of crude gum was declared to be farming. This change was attributed to an amendment to code section 67-1107 adopted in 1939 which provided that a producer of crude gum 'and his employees are . . . for all intents and purposes, farmers in so far as any statute of this State relates to farming and farmers.' Although this language might be interpreted as relating only to the specific content of Title 67, legislative history indicates that the intent was to elevate the crude gum industry to the full status of farming. Actually, modern farming, which is highly industrialized and mechanized, should not be placed in an exempt category, and the reasons for excluding farming have been effectively answered. The fact that agricultural activity is one of the most hazardous of all occupations makes extension of coverage essential.''
Both the Pridgen and Hamilton cases are revealing when construed with the Act of the General Assembly as a result of the Pridgen case, and the Court's action as a result of such legislative action as shown by the Hamilton case.
The Hamilton case having been decided subsequent to my Opinion dated April 14, 1953, it would appear that this decision would supersede my opinion relating to the refund of gasoline tax on gasoline used by a turpentine company in plowing firebreaks, and further, that turpentine farming is farming as a matter of law. This, of course, would place turpentine producers in the position of other farmers and they would be required to comply with the restrictions, rules and regulations imposed upon other farmers pertaining to gasoline tax refunds. This view is further enforced by the transition in farming P~actices referred to in the Collins case, and in the past few years, With the Soil Bank Program having placed an emphasis in this area and providing payments for the placing of trees on crop land as a part of the farm practice.
This leaves for discussion the rulings pertaining to poultry production and to nurseries.

12
Applying the reasoning of Collins v. Mills, 198 Ga. 18, and the reasoning of the Supreme Court in the case of Gunn v. The Mayor and Council of Macon, 84 Ga. 365, and the decisions of the Supreme Court in the case of Georgia Milk Producers Confederation v. City of Atlanta, 185 Ga. 192, and the subsequent appearance of the same case (City of Atlanta v. Georgia Milk Producers Confederation, 187 Ga. 117), it would appear that it is beyond question that the production of poultry would be farming, and particularly in view of the fact that poultry and the production thereof is usually considered as being the production of livestock, which is beyond question the production of a farm product.
In the case of Rossman v. City of Moultrie, 189 Ga. 681, the Supreme Court dealt with the problem of the authority of a municipality to enact a regulatory measure. The Court there distinguished the milk producer's case, and stated:
"It rather indicates that the lawmakers had in mind those products sown or planted in and springing directly from, the soil-fructus industrialies."
This leads to the conclusion that while an official opinion may not be recalled by an unofficial opinion, and without so doing, it would appear that the latter Court decision would be controlling.
As to livestock and poultry, it would appear that the eligibility for gasoline tax refund should be limited to where the actual production thereof was a part of a bona fide farm operation. In other words, if cattle were placed in a pen and no use of the land was made to grow any part of the feed nor any part of the land used for the purpose of grazing, then in that event the cattle production would not be a farm operation and therefore not eligible for a gasoline tax refund. Where livestock is produced as a bona fide part of the farm operation where the production of the land and the agricultural pursuit is marketed or used through the means of livestock, then the person should be entitled to the refund and not be penalized and denied a refund because of his livestock production.
As to poultry production, careful consideration must be given so as to entitle bona fide poultry production from a farm operation to the refund. Where a person takes another's poultry and another's feed and in effect sells his services in caring for and feeding the poultry where no part of the acreage is used to produce any feed or grazing for the poultry produced, the person should not be entitled to the refund. Where a person owns acreage that is used for the production of the feed or to provide grazing for the poultry, he should not be denied the refund.
As to nurseries, it seems logical that a refund should be allowed to the extent that the gasoline is used in the production of nursery products that is in truth and in fact a farm operation. By this, I do not mean to say that a nursery as such should be entitled to a refund, but the expression herein is limited to the actual production by farming operation of nursery products, which would seem beyond question

13
to be a farming operation and would entitle the producer thereof, if otherwise qualified, to a refund.
In view of the above, it would appear that if formal request were resubmitted today, different results might be forthcoming. You realize fully that taxation is an intricate and highly technical field and one in which it is difficult to establish invariable rules. With ~he changing picture in agriculture in Georgia today, it is conceivable that these changes will result in different interpretations being placed on the provisions relating to gasoline tax refunds.
AGRICULTURE-Georgia M:i1k Commission (Unofficial)
Laws cited relative to regulation of milk by Georgia Milk Commission and court decisions cited relative to constitutionality of such laws.
December 3, 1962
Mrs. Joan l\1. Mathews Savannah, Georgia
This will acknowledge receipt of your request for information concerning the milk laws of this State and in particular, the laws relating to the Georgia Milk Commission.
The laws relating to the regulation of milk by the Milk. Commission are collected in Chapter 42-5 of the Georgia Code Annotated, and in particular, Sections 42-523 through 42-561.
The litigation relative to the constitutionality of such regulation may be found in the cases of Bohannon v. Duncan, 185 Ga. 840; Gibbs v. Milk Control Board of Georgia, 185 Ga. 844; Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358; and Harris v. Duncan, 208 Ga. 561.
There has been no attack upon the constitutionality of the Milk Control law since its reenactment subsequent to the decision in Harris v. Duncan, 208 Ga. 563.

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AGRICULTURE-Leasing of Tobacco Allotment at State Prison Farm.
There is no statutory prohibition against leasing of tobacco allotment at State Prison Farm and there are no statutory bidding requirements.
January 3, 1962
Honorable J. M. Forrester Director State Board of Corrections
This will acknowledge and reply to your letter relating to a tobacco allotment at the Georgia State Prison, Reidsville, Georgia.
I find no statutory prohibition to the leasing of the tobacco allotment assigned to the prison farm. Further, there is no statutory requirement as to the receiving of bids with respect to the same.
AGRICLTURE-Pest Control (Unofficial)
Equipping of truck with pest control equipment and making it available for use by property owners would be engaging in activities covered by Structural Pest Control Act and would be subject to its requirements.
September 21, 1962
Honorable Terrence J. Williams Statesboro, Georgia
I am in receipt of your letter relative to the operation of a pest control truck and the renting of the same to homeowners on a fee plan. You state that no service or chemical will be furnished by you and that the plan will be to make available a pest control truck fully equipped so as to enable the owner of the property to treat his own property.
Section 2, paragraph (a) of the Structural Pest Control Act defines structural pest control as :
"a. 'Structural Pest Control'-control of wood destroying organisms or fumigation, the identification of infestations or infections, the making of inspections, the use of pesticides including insecticides, repellents, rodenticides and fumigants, as well as all other substances, mechanical devices of structural modifications under whatever name known, for the purpose of preventing, controlling and eradicating insects, vermin, rodents and other pests in household structures, commercial buildings and other structures, including adjacent outside areas, as well as all phases of fumigation, and the fumigation of railroad cars, trucks, ships and airplanes."

15
Section 9 of the Act provides the penalty for the violation of the Act and in particular paragraphs a and b thereof provide:
"a. Any person, firm, corporation, association or any other organization or combination thereof, who shall engage in, solicit, supervise, advertise, represent himself to be in, hold himself out as being in, or purport to be, a manager, owner, operator-owner, or agent (other than a registered employee), or agent in structural pest control, control of wood destroying organisms, fumigation or related work, without having first secured a license issued for that purpose by the Commission shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided by law.
"b. Any certified operator, registered employee, employee or agent of a licensee who shall engage in field work, or solicit accounts covered by the provisions of this Act and the rules and regulations promulgated hereto, without having first registered or obtained certification as provided by this Act, shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided by law."
Section 21 provides a blanket misdemeanor provision for the violation of the Act.
Regulation 109.2 of the Structural Pest Control Commission relates to persons engaged in or holding himself out to be engaged in the business of structural pest control. Regulation 109.3 relates to activities by named persons in this area of work.
I am enclosing for your information a booklet containing the Structural Pest Control Act and the rules and regulations promulgated thereunder.
While it would appear that there is no express prohibition to the equipping of a truck capable of being used for the purpose of structural pest control, it would appear that the Structural Pest Control Act and the rules and regulations promulgated thereunder could easily be interpreted to apply to the operator of the truck and to the person making the truck so equipped available for use by the homeowner. This is particularly true in that you leave silent the method or means by which the property owner is apprised of the availability of this equipment.
To the extent that the use of this truck would be utilized to circumvent the intention of the Structural Pest Control Act and the rules and regulations promulgated thereunder, the same would be co_ntrary to law. It would appear that the ownership of the truck Without more would not be within the provisions of the Act and the rules and regulations.

16
AGRICULTURE-Poultry Production
Person engaged in production of poultry may be farming within the meaning of Georgia Code Ann. Section 92-1403 relating to refunds of gasoline taxes.
August 20, 1962
Honorable Phil Campbell Commissioner of Agriculture
This will acknowledge receipt of your request for my review of an unofficial opinion by a member of my staff dated April 13, 1960, which stated in part that the poultry business of itself does not constitute the business of farming under Georgia Code Annotated, 92-1403(I) (3) (d).
With the conclusion stated therein that the poultry business of itself does not constitute the business of farming, I agree. However, the production of poultry as a part of a farming operation presents an entirely different view, and to the extent that the opinion dealt with poultry production as a part of a bona fide farm operation, the same is recalled and rescinded.
For your information, I enclose herewith a copy of an unofficial opinion addressed to Dr. Harry L. Brown, President, Georgia Farm Bureau Federation, dated July 3, 1962, that is incorporated herein and made a part hereof insofar as the same relates to the production of poultry and to the eligibility for a gasoline tax refund for gasoline used in such production.
The pertinent provision of Georgia Code Annotated, 92-1403 (I) (3) (d) is:
"... having been used exclusively by the applicant in plowing, planting or harvesting farm products or for grinding, pumping, and other farm uses and used on agricultural property owned, leased, or operated by the person using such equipment...." (Underscoring added.)
As was outlined in the attached opinion to Dr. Brown, I think it beyond question that the production of poultry comes within the language "other farm uses" as contained in the above quoted provision of 92-1403(I)(3)(d).
I realize fully that exemptions from taxation must be strictly construed and that no exemption will arise by implication. However, to place any other construction upon the language of this Code Section would be to ignore the plain and obvious intent to provide a gasoline tax refund for all gasoline used for farm purposes and as provided by the law relating to such refunds.
This is, therefore, to officially rescind and recall the above referred to opinion dated April 13, 1960, and further to advise that I am of the opinion that, subject to the terms and conditions enumerated in the attached unofficial opinion dated July 3, 1962, a person

17
engaged in the production of poultry is farming within the language of the Code Section and in the event he otherwise fulfills the terms and conditions prescribed by the statute, he would be entitled to a gasoline tax refund.
AGRICULTURE-Soil Conservation Districts
While normally state agencies are not authorized to expend funds for liability insurance covering damage by State vehicles, there is an exception to this prohibition with respect to soil conservation districts.
May 30, 1962
Mr. M. Chester Banks, Secretary Coastal Soil & Water Conservation District
Georgia Code Annotated, 5-1806, paragraph (1) defines a "District'' or "soil conservation district" as an agency of the State.
Section 5-1807 establishes a State Soil Conservation Committee and provides that it shall be established to serve as an agency of the State.
Section 5-2012 provides that a soil conservation district organized under the provisions of defined parts of Georgia Laws 1937, page 377, shall be an agency of the State and thereafter provides and enumerates the powers.
Section 5-2024 provides :
"5-2024. Tax exemption.-No prov1s10ns with respect to the acquisition, operation, or disposition of property by public bodies of this State shall be applicable to a district organized hereunder unless the legislature shall specifically so state. The property and property rights of every kind and nature acquired in the name of the State of Georgia by any district organized under the provisions of Part VIII of Title 5 shall be exempt from State, county, and other taxation."
While normally State agencies are not authorized to expend funds for the purpose of purchasing liability insurance for property damage resulting from the operation of a State vehicle, the provisions of 5-2024 hereinabove quoted could well remove the restriction. Therefore, it is submitted that this matter should be discussed with the State Soil Conservation Committee.

18
AGRICULTURE-Virus Vaccines (Unofficial)
Discussion of laws relative to licensing, labeling and other controls of animal vaccines.
April 9, 1962
Dr. D. A. McGill, Supervisor Animal Industry Division State Department of Agriculture State of Washington
Your letter requesting information concerning the sale and usage of virus vaccines and other biologicals in Georgia has been forwarded to me for reply.
It is my understanding that specific information was withheld in that there was pending in the General Assembly of Georgia at the 1962 Session a bill that would have comprehensively revised the laws of this State relative to animal remedies. That bill was House Bill No. 946.
The general authority conferred upon the Commissioner of Agriculture may be found in Georgia Code Annotated, Sections 62-1714, 62-1716 and 62-1717. You will note that this authority is quite comprehensive and includes poultry and livestock in the definition of the word "animal." These Code Sections are based upon Georgia Laws 1953, Jan.-Feb. Sess., page 480, and relate to disease prevention in general.
Specific reference in regard to the sale of poultry remedies is found in Georgia Code Annotated, Sections 62-1407 and 62-1408. These Sections require manufacturers to obtain a license from the Commissioner. Section 62-1408 imposes a labeling requirement for the sale of certain drugs for poultry.
I regret that I do not have a copy of these laws available for distribution but I feel sure that you have access to them.
I would also call to your attention the authority vested in the Commissioner of Agriculture under Georgia Code, Section 5-108, which authorizes the Commissioner to promulgate all necessary rules and regulations for the purpose of carrying out the designs and intentions of the laws relative to his duties.
I trust this is the information you desire and if I may be of assistance, please do not hesitate to call upon me.

19
BANKS AND BANKING-Bank Charters
Charter of any bank chartered before 1919 must have been renewed subject to provisions of Banking Act of 1919 and is governed by the terms of that Act.
October 30, 1962
Honorable W. D. Trippe Superintendent of Banks
This will acknowledge and reply to your letter of October 30, 1962, relating to charter provisions of the Baxley State Bank.
In Federal Deposit Insurance Corporation vs Beasley, Superintendent of Banks, 193 Georgia 727, the full bench of the Supreme Court of Georgia, referring to Article 10 of the 1919 Banking Act, stated:
"These provisions of the act clearly indicate a legislative purpose and intention that all banks chartered before 1919 must look to the 1919 act for a renewal of their charter. It is manifest 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."
Therefore, and because to hold otherwise would render the Banking Act of 1919 ineffective as to uniformity, I am of the opinion that any State Bank which has renewed its charter under the terms of the Act of 1919 is governed by all the provisions of that Act irrespective of special language contained in its charter or charter amendments.
BANKS AND BANKING-Bonds of Public Authorities
There is no statutory limitation upon the percentage of total investments which a bank may have in bonds of public authorities which are obligations of the State.
January 29, 1962
Honorable W. D. Trippe Superintendent of Banks
. This will acknowledge and reply to your letter of even date asklng for my opinion with reference to the following question:
"What percentage of limitation, if any, is placed upon a bank in its investments in bonds of public authorities such as, for example, Georgia Rural Roads Authority?"

20
This question can best and most simply be answered in two steps:
(1) Are such bonds 'obligations of the State', and
(2) What limitation is imposed on the purchase, by the bank, of 'obligations of the State'.
The answer to question two above can summarily be answered after a review of Code Section 13-2023 (a). That Section clearly states that such 'obligations of the State ' are not subject to the limitations therein stated.
That portion of Code Section 13-2023 pertinent to this question, the language particularly involved being underlined, is as follows:
"(a) The total amount of such investment securities owned by a bank shall at no time exceed 50% of the capital and unimpaired surplus of such bank; but this limitation as to amount shall not apply to obligations of the United States or to obligations issued by the Federal Land Banks, Federal Farm Mortgage Corporations, Federal Home Loan Banks, Home Owners' Loan Corporation, Federal Intermediate Credit Bank, Public Housing Administration, Federal National Mortgage Association, and Central Bank for Cooperatives, or to other obligations guaranteed as to principal and interest by the United States, or to obligations of the State of Georgia or to general and direct obligations of the several counties, districts, or municipalities thereof or to water and sewer revenue certificates of Georgia cities or counties, which have been validated as provided by law;" (Emphasis supplied.)
Question one, then, only remains to be answered.
The Constitution of Georgia (Article VII, Section VI, Paragraph I (a) and the following Paragraph, being the 1960 amendment to said Article, Section, and Paragraph) provides as follows:
"2-5901. (a) The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake,
"Notwithstanding any other provision of any other section of any other article of this Constitution, the General Assembly shall include in each General Appropriations Act in the appropriation payable to each department, agency or institution of the State, in addition to such other items as may be included in such appropriation and whether or not any other items are included, sums sufficient to satisfy the payments required to be made in each year under lease contracts now or hereafter en-

21
tered into pursuant to this Paragraph I (a) by and between such department, agency, or institution of the State and any State authority which has been created and activated at the time of the effective date of this amendment which said lease contracts constitute security for bonds or any other obligations heretofore or hereafter issued by any such authority. In the event for any reason any such appropriation is not made, then the fiscal officers of the State are hereby authorized and directed to set up on their appropriations accounts in each fiscal year as an appropriation the respective amounts required by each department, agency, or institution of the State to pay the obligations called for under any such lease contract. The amount of the appropriation in each fiscal year to meet such lease contract obligations as authorized hereunder shall be due and payable to each such department, agency, or institution of the State in each fiscal year to be expended for the purpose of paying the lease contract obligation required under the terms and conditions of such lease contracts and said appropriation shall have the same legal status as if the General Assembly had included the amount of the appropriation in a General Appropriations Act." (Emphasis supplied.)
Section 2-5901 (a) above provides the Constitutional authority for the State to enter into a binding and legal lease contract with an authority, not to exceed fifty years. The lease must be germane to the powers of the authority.
The second paragraph of the above quoted Section 2-5901 (note the underlined language) provides:
1. That the General Assembly shall appropriate to each department of State Government sums sufficient to satisfy the payments required to be made in each year under lease contracts then existing or thereafter entered into by and between such department and any State authority.
2. That if such appropriation is not made, the fiscal authorities of the State are directed to set up as an appropriation the respective amounts required by each department to pay the "obligations" called for under any such lease contract.
3. A limitation of its application to State authorities created and activated at its effective date. (Ratification November 8, 1960.)
4. That such lease contracts constitute security for bonds heretofore or hereafter issued by such authority.
By way of summary, let me state that under these Constitutional Provisions the State becomes liable upon a lease contract with an Authority. This is an enforceable obligation of the State. This is not tSo say that the bonds of an Authority are direct obligations of the
tate.
However, I am of the opinion that by virtue of the Constitutional Provisions herein referred to, the lease contracts, and by virtue of

22
the pledge of the rentals as security for debt service, etc., the State has a fixed obligation in the premises, a pledge of the full faith and credit of the State.
Banks under your supervision are not limited in the purchase of such bonds.
For your further information, I herewith quote from the General Appropriations Act of 1961 (Georgia Laws 1961, page 356, at page 382), the quote being a portion of Section 46 of said Act.
"The General Assembly finds that the following named Authorities (without limitation on or prejudice to any authority not named) were created and activated prior to the effective date of the above referred to Constitutional provision:
"State School Building Authority
"University System Building Authority
"State Hospital Authority
"State Highway Authority (formerly State Bridge Building Authority)
"Georgia Rural Roads Authority
"State Farmers Market Authority
"State Office Building Authority
"State Penal and Rehabilitation Authority
"The General Assembly declares that the sums hereby appropriated are to pay the general obligations of the State incurred under valid lease contracts and such appropriations are to be paid from the general funds of the State as a first charge upon such general funds." (Emphasis supplied.)
BANKS AND BANKING-Loans
Phrase "having a market value and for which there is ready sale in the open market" construed relative to security for bank loans.
June 21, 1962
Honorable W. D. Trippe Superintendent of Banks
Section 13-2013 of the Georgia Code Annotated provides that no bank shall lend to one person, firm, or corporation more than twenty per cent (20%) of the bank's capital and unimpaired surplus. The following statutory exception to this provision is then stated.
"Provided, that the limit of loans herein fixed shall not apply to bona fide loans made upon the security of agricultural,

23
manufactured, or industrial products or livestock having a market value and for which there is ready sale in the open market, title to which by appropriate transfer shall be taken in the name of the bank, and which shall be secured by insurance against loss by fire, with policies made payable to the bank, where no more than 80 per cent. of the market value of such products shall be loaned or advanced thereon. In all such cases a margin of 20 per cent. between the amount of the loan and the market value of the products shall at all times be maintained (except where products are intended for immediate shipment); and the bank shall have the right to call for additional collateral when the difference between the market value and the amount loaned shall be less than 20 per cent., and in the event of the failure to comply with such demand, to immediately sell all or any part of such products in the open market and pay the amount of the loan and the expenses of sale, and the balance to the borrower."
The Legislature, in setting out the exception above referred to, provided first that such agricultural, manufactured, or industrial products must have a "market value".
In Southern Pacific Milling Co. v. Billwhack Stock Farms, 122 P2d 650, 655, the California Court of Appeals said:
"... 'market value' being the price at which goods are freely offered in the market to all the world."
The Georgia courts, 20 Ga. App. 501, have stated:
''Market value is the price established by public sales in the way of ordinary business, as of merchandise. The market price of a commodity is the actual price at which it is commonly sold. The price may be fixed by sales in the market at or about that time. If no sales can be shown on the day, due recourse may be had to sales before or after that day, and for that inquiry a reasonable range in point of time is allowed."
The Legislature went further, however, and additional prerequisites were set out. In addition to a market value, the products must also be those for which there is "ready sale" in the "open market".
The courts have relied on Webster for a definition of the word ready.
"Word 'ready' has been defined as prepared for what one is about to do or experience; . . . prepared for immediate movement or action." 42 Ga. App. 760.
Though I find no judicial definition of the words "ready sale" used together, I am of the opinion that they mean immediate sale.
Georgia Code Ann., Section 102-102 provides:
"1. The following rules shall govern the construction of all statutory enactments:

24
"1. 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."
It is an immediate sale which this very statute calls for, if the borrower fails, after demand for more security, to maintain a twenty per cent (20%) margin. Section 13-2013 provides that the bank "shall ... immediately sell all or any part of such products in the open market. . . ."
Open market is defined by Webster:
"2. Arrived at through or resulting from freely competitive bidding (open market exchange rate)."
Had the Legislature merely provided that the products have a market value, then the question could be answered by referring to the 20 Georgia Appeals Reports above mentioned. That decision was rendered one year before the Banking Act of 1919. As indicated hereinbefore, however, the Legislature provided something more than the requirement of a market value.
Utilizing the rules of construction of statutes (102-102.1, supra) I am constrained to adopt the definition that "open market" means "arrived at through or resulting from freely competitive bidding". That there is a "ready sale" necessarily presumes that there is a continuous bid price (of the products in question stated in terms indicating quantity sales) which is binding upon acceptance by a seller.
This must be so, it seems, so that the banker can at any moment, determine the actual price at which the "products" in question can be sold, in whatever volume, or quantity, is necessary, so that such banker can "immediately" (the language of 13-2013) sell all or any part of such products.
BANKS AND BANKING-Security For Public Monies Held By Bank
Bank holding public monies required to secure same by giving bond or depositing securities in trust whether or not specifically requested to do so by public authorities.
January 19, 1962
Honorable W. D. Trippe Superintendent of Banks
This will acknowledge and reply to your letter in which you asked for my opinion as to whether it is incumbent upon a bank, acting as a depository, to secure public monies by giving bond or making deposit of securities where the public official depositing public funds has failed to require the bank to do so.

25
Section 89-812 of the Code of Georgia provides as follows:
"89-812. Bonds of depositories. Contracts as to interest.The proper authorities shall require the depository to give bond or make deposit of securities in trust to secure such deposits as may be made in it. Any bank in this State as authorized to give such bond and/or to secure deposits of public funds by deposits of securities; and the proper authorities are authorized to make contracts with depositories as to interest or compensation of the depository. (Acts 1933, pp. 78, 83.)"
You will note from this Code Section that it appears that the burden is placed upon "public authorities" to "require" a depository to give bond or make deposit of securities in trust to secure deposits of public funds.
Regardless of this language, I am of the opinion that this statute, as it has as its purpose the protection of the public, and the public property, imposes a legal obligation upon a bank acting as depository for county or county school monies to give bond or make deposit of securities in trust to secure such deposits as may be made in it.
BONDS-Revenue Bonds of State Authorities
Revenue bonds issued by Authorities created by special acts of Legislature and secured by lease rentals from various departments and agencies of State are general obligations of State.
March 20, 1962
Honorable W. D. Trippe Superintendent of Banks
You have requested my opinion as to the legal status of various revenue bonds issued by Authorities created by special acts of the General Assembly which are payable from lease rentals received from various departments and agencies of the State of Georgia under leases protected by the provisions of Article VII, Section VI, Paragraph I (a) of the Constitution of the State of Georgia, as the same was amended in 1960.
. In my opinion, the effect of the 1960 Constitutional amendment IS to make these revenue bonds general obligations of the State of Georgia, for it unconditionally obligates all of the revenues of the State of Georgia, from whatever source derived, to the payment of sums sufficient to retire the bonds.
Furthermore, the General Assembly of Georgia in the General Appropriations Act passed in 1961 declared these lease rental payments to be a first charge upon the general funds of the State.

26

BOUNDARIES-State (Unofficial)

Boundary between Georgia and Alabama along Chattahoochee River is the west bank of that river.

Honorable E. L. Forrester House of Representatives Washington, D. C.

July 19, 1962

Thank you for your letter regarding the location of the boundary line between Georgia and Alabama on the Chattahoochee River, between Georgetown, Georgia, and Eufaula, Alabama.

Upon investigation, I find that the west bank of the Chattahoochee River is the boundary line between Georgia and Alabama,
from Miller's Bend on the Chattahoochee River (near West Point, Georgia, approximately at the intersection of Troup County, Georgia
and Harris County, Georgia lines with the Chattahoochee River) to the intersection of the Flint and Chattahoochee Rivers near Bainbridge.

The Georgia Code, in Section 15-101, describes the western boundary of Georgia as follows:

"- -- - 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 highwater mark, to its junction with Flint River; - - - -."
Section 15-104 of the Code of Georgia further provides as follows:

"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."

Further, the Alabama Constitution, Article II, Section 37, provides:
"The boundaries of this State are established and declared to be as follows, that is to say:
Beginning at a point where the 31 o of north latitude crosses the Perdido River; thence east, to the western boundary line of the State of Georgia; thence along said line to the southern boundary line of the State of Tennessee - - - -."
In the case of Howard v. Ingersoll, 54 U. S. 381, 14 L. Ed. 189 (1851), the United States Supreme Court held that the boundary line between Georgia and Alabama along the Chattahoochee River was "the line which was washed by the waters of the river wherever it

27
covers the bed of the river within its banks-that is, to the edge of the river.".
In the case of Alabama v. Georgia, 64 U. S. 505, 16 L. Ed. 556 (1859), the United States Supreme Court held that the Chattahoochee River was territory belonging to the State of Georgia, and that "the bed of the river was that portion of the soil alternately covered and left bare between the top of the two banks without referericeto overflows or extreme low water, and where the western bank is not defined it would be a line upon the west side of the river made by the average and mean slope of the water, but by contract of cession the navigation of the river was free to both States.".
In view of the above cited authority, I am of the opinion that the boundary line between Georgia and Alabama at the point in question is the west bank of the Chattahoochee River.
CIVIL DEFENSE-Counties (Unofficial)
Discussion of authority, duty and responsibility of counties with respect to civil defense pursuant to Civil Defense Act of 1951.
[Editors Note: Georgia Code Ann., Section 86-1809, which is discussed herein, was amended by the General Assembly during its 1963 session (H.B. 426, Act. No. 371, Ga. Laws 1963) .]
November 21, 1962
Honorable F. H. Boney Summerville, Georgia
In your letter with reference to civil defense, you ask several questions which I will individually state and then give my personal views relating thereto.
1. Does the Governor have legal authority to authorize and direct the governing officials of the various counties to establish a local civil defense organization?
Your letter indicates that you have already gone into this point 9:uite thoroughly. Therefore, I will not quote the applicable provisions In detail. The first provision necessary to touch on would be Ga. Code ~nn., Sec. 86-1809 in which the Governor is given authority to "estabhsh local organizations in other cities or counties whenever he determines there exists a need for such local organizations". The Governor ~pparently made this determination as to the counties of the State In 1960. For in 1960 the Governor issued an executive order placing each county within the meaning of the term "political subdivision" a~ used in the Georgia Civil Defense Act of 1951. In so doing, he defined the boundaries of local organizations for the counties and directed officials thereof to establish a local civil defense organization.
It is the undersigned's opinion that the Governor's authority for

28
so doing is adequately expressed in the Georgia Civil Defense Act of 1951 and more specifically in Paragraph b(7) and (9), Sec. 6 thereof (Ga. Code Ann. 86-1806). Said section in part reads as follows:
"(b) In performing his duties under this Chapter, the Governor is further authorized and empowered: . . .
(7) To utilize the services and facilities of existing officers, and agencies of the State and of the political subdivisions thereof; and all such officers and agencies shall cooperate with and extend their services and facilities to the Governor as he may request.
(9) To delegate any authority vested in him under this Chapter."
2. Is there authority under the Act for the Commissioner of Roads and Revenues of Chattooga County, Georgia, to establish a local civil defense organization?
It is my opinion that there is authority to accomplish the above. In particular I refer to Section 9 of the Georgia Civil Defense Act of 1951 (Ga. Code Ann. 86-1809) and quote therefrom as follows:
"(b) Each political subdivision shall have the power and authority:
(1) To appropriate and expend funds, make contracts, obtain and distribute equipment, materials, and supplies for civildefense purposes; provide for the health and safety of persons and property, including emergency assistance to the victims of any disaster resulting from enemy attack; and to direct and coordinate the development of civil-defense plans and programs in accordance with the policies and plans set by the Federal and State civil-defense agencies;
(2) To appoint, employ, remove, or provide, with or without compensation, air-raid wardens, rescue teams, auxiliary fire and police personnel, and other civilian-defense workers;
(3) To establish a primary and one or more secondary control centers to serve as command posts during an emergency;
(4) Subject to the order of the Governor, or the chief executive of the political subdivision, to assign and make available for duty, the employees, property, or equipment of the subdivision relating to fire fighting, engineering, rescue, health, medical and related services, police, transportation, construction, and similar items or services for civil-defense purposes and without or outside of the physical limits of the subdivision. (Acts 1951, pp. 224, 231.)"
3. Can there be a joint county and city civil defense organization under the Georgia Civil Defense Act of 1951?
In answer to this question, I am enclosing a copy of an opinion issued on June 9, 1959.

29
4. Does the county have authority to raise revenue for civil defense purposes?
In your letter you refer to Sections 2-5701 and 92-3701 of the Georgia Code. One of the authorizations found under each of the above mentioned Code provisions reads as follows:
"1. To pay the expenses of administration of the county governments."
It is my opinion that civil defense coordination and preparation for better utilization of county facilities is within the meaning of the above quoted provision.
It might be of significance to note that the above quoted provision was added to this section of the Constitution with the adoption of the 1945 (amendment to the) Constitution.
Of course, the Georgia Civil Defense Act of 1951 was not in existence at that time. However, it does not appear that these provisions relating to county taxation are limited to the functions in existence at the time of adoption. In this connection see Bibb County, et al. v. Hancock, 211 Ga. 429. Headnote 1 would be of particular interest and also the following from page 438 thereof:
"2. Having heretofore held that the legislature, by authorizing payment of certain fees and expenses of appointed attorneys in capital-felony cases, has created an expense of court, which we recognize as an expense of court within the meaning of the provisions of the Constitution, Article 7, section 4, paragraph 1 (Code, Ann., Sec. 2-5701) ..." (Emphasis Supplied.)
CIVIL DEFENSE-Duties of State Officials
Governor and Director of Civil Defense may delegate to Director, State Board of Corrections, responsibilities with respect to civil defense.
June 29, 1962
Honorable Jack M. Forrester, Director State Board of Corrections
I am happy to acknowledge your request whether you can legally accept certain delegations of responsibility for developing civil defense operations as was expressed by the Director of the Civil Defense Division of the Department of Defense.
I find that under the Civil Defense Act of 1951, as amended (Georgia Code Annotated, 86-18, et seq.), many powers are given to the Governor and the State Civil Defense Agency which was created by that Act. Pertinent provisions read:

30
"The Civil Defense Director shall . . . act for the Governor when requested to do so."
"... prepare a comprehensive plan and program for the civil defense of this State ..."
"To take such action and give such directions to State and local law enforcement officers and agencies as may be reasonable and necessary for the purpose of securing compliance with the provisions of this Chapter . . ."
"To utilize the services and facilities of existing officers, and agencies of the State and of the political subdivisions thereof; and all such officers and agencies shall cooperate with and extend their services and facilities to the Governor as he may request."
The foregoing is rather broad legislation. I feel that the Governor and the Director of the Civil Defense acting for him may legally delegate to you such responsibilities as were set forth in your letter.
Your appointment of a department liaison officer should aid considerably in the early completion of an overall coordination of civil defense planning for the State of Georgia.
CIVIL DEFENSE-Emergency Interim Successors (Unofficial)
Act No. 759 approved March 3, 1962 suspended in applicability to Superior Court judges.
March 29, 1962
Honorable Samuel W. Fariss Judge, Lookout Mountain Judicial Circuit
I am pleased to acknowledge receipt of your letter of March 20, 1962, concerning designation of emergency interim successors, forwarded to me by Honorable Ben W. Fortson, Jr.
Your question as I understand it relates to the applicability to you as Judge of the Lookout Mountain Judicial Circuit of Act No. 759 (HB No. 1251) approved by the Governor on March 3, 1962. In your letter you indicate that you feel the Act first includes you in your official position and then suspends that broad coverage so that in effect Act No. 759 does not apply to you.
My personal opinion of the applicability of the Act to you in your official position is that presently the operation of the provisions of the Act are suspended in so far as they apply to you as Judge of the Lookout Mountain Judicial Circuit. This view, I feel, is in alinement with the intent of the General Assembly as expressed in Section 25, paragraph (J) of the above mentioned Act, which appears to suspend the operation of Section 25 of the Georgia Civil Defense

31
Act of 1951 as amended to those to which it could not constitutionally apply and therein specifically mentions "the judgeships in this State" and "members of the General Assembly of this State."
During the last session of the General Assembly, a constitutional amendment authorizing the General Assembly to take necessary action to insure Governmental Operation in emergencies was introduced. This proposed amendment to the State Constitution was read two times and favorably reported by the House of Representatives, but no further action was taken thereon.
CIVIL DEFENSE-Emergency Interim Successors (Unofficial)
Act No. 759 approved March 3, 1962 suspended in applicability to City Court Judge and member of General Assembly.
March 29, 1962
Honorable Freeman C. McClure Judge of City Court of Walker County
Your letter of March 21, 1962, addressed to the Honorable Ben
W. Fortson, Jr., Secretary of State, has been forwarded by him to me
for reply.
In your letter you raised the question of whether Act No. 759, approved March 3, 1962, would currently require you as Judge of the City Court of Walker County and the Honorable Billy Shaw Abney as Representative to the General Assembly of Georgia from Walker County to select interim successors to act in your stead in the event of your unavailability during an emergency. You also mentioned that Judge Samuel W. Fariss was interested in this matter. However, as I have this day written him under separate cover pursuant to a letter from him to the Secretary of State, I am limiting this reply to you and Representative Abney.
. My personal opinion in this matter is that paragraph (J) of SectiOn 25 of the Georgia Civil Defense Act of 1951, as amended, susPends the requirement for you or Representative Abney to comply With this Act pending an amendment to the Constitution of the State of Georgia.
Such an amendment to the Constitution was proposed during the Past session of the General Assembly; however, it was not passed. Therefore, I do not see where this Act would apply to you or to Representative Abney at any time in the near future.
t It is hoped that the above expressed thoughts will be of assistance o You, and if I may be of further service, please call on me.

32
CIVIL DEFENSE-Emergency Interim Successors (Unofficial)
Judge could name a person who is not a public official as his interim successor.
May 18, 1962
Honorable F. Frederick Kennedy Judge of the Superior Court, Augusta Judicial Circuit
I am in receipt of your letter of May 11, 1962, and your letter relating to the same subject matter addressed to the Honorable Ben W. Fortson, Jr., Secretary of State, has been forwarded by him to me for reply.
In your letter you raised the question of whether Act No. 759, 1962, Session, General Assembly of Georgia, would prohibit you from naming anyone other than public officials as your emergency interim successors.
It is my personal opinion that the language used in the Act "designate by title" means the title the individual would use while carrying out his duties as an. interim successor, i.e.: ________________________________________ 1st emergency interium successor ____________________ -------------------- This type designation would also indicate their order of succession. To conclude otherwise would place a severe limitation on the depth of successors in an emergency and I feel the intent was to make the depth as great as possible.
I am taking the liberty of forwarding you a copy of a letter I wrote to the Honorable Samuel W. Fariss, Judge, Lookout Mountain Judicial Circuit, March 29, 1962. In that letter I indicated my feeling that the Act is not presently applicable to Superior Court Judges due to paragraph (J) of Section 25 of the Georgia Civil Defense Act of 1951 as amended.
CIVIL DEFENSE-Emergency Interim Successors (Unofficial)
Clerk of Superior Court should appoint emergency interim successor pursuant to Georgia Civil Defense Act even though he has several deputy clerks on staff.
July 12, 1962
Honorable Robert G. Walther County Attorney Floyd County
The undersigned 1s m receipt of your letter relating to "Emergency Interim Successors", forwarded to us by Honorable Ben W. Fortson, Jr., Secretary of State.
Your question is understood to be concerning whether the Clerk of the Superior Court should appoint a successor when he already has four or five deputies.

33
It would seem that under Section 25, Paragraph (E) of the Georgia Civil Defense Act of 1951, as amended by Ga. L. 1962, p. 469, the Clerk of the Superior Court should appoint an emergency interim successor.
The above conclusion is based on the following:
1. Paragraph (E) of Section 25 of the Georgia Civil Defense Act as amended provides for the appointment of emergency interim successors "in addition to any deputy authorized pursuant to law to exercise all the powers and discharge the duties of the office".
2. Paragraph (A), subparagraph (1) of Section 25 of the Georgia Civil Defense Act as amended, defines the term "unavailable" so as to include a vacancy in an office.
3. Georgia Code Annotated, Section 24-2713 in part reads:
"... They shall have the power to appoint a deputy or deputies, and may require from them bonds with good security, who shall take the same oath as the clerks do before entering upon the discharge of their duties, and whose powers and duties are the same as long as the principal continues in office and not longer, for the faithful performance of which they and their securities are bound...."
4. As is noted from the above, even if deputies are counted as successors, it would appear to the undersigned that the deputy clerk positions as such would terminate when the principal was no longer in office.

CIVIL DEFENSE-Southern Interstate Nuclear Compact

Discussion of purpose of Southern Interstate Nuclear Compact.

Honorable Edwin D. Harrison, President Georgia Institute of Technology

July 6, 1962

In compliance with your request, I have reviewed H. R. 7498 and

H. R. 7466 of the 87th Congress and can find no objectional features.

They are both Resolutions with only minor differences which are

aimed at securing any necessary congressional consent to activation

and legality of the "Southern Interstate Nuclear Compact." It is my

U~derstanding that certain amendments were made to the original b~II which provided for greater Presidential flexibility in appointing

his member and that certain other minor changes as to cooperation

with federal agencies were incorporated.



This Southern Interstate Nuclear Compact is an outgrowth of the Southern Governors' Conference and Resolutions adopted by them in Previous years. It has already been adopted by seven States, among
Which is Georgia. I call to your attention Act No. 837 approved March

34
3, 1962, found in Georgia Laws, 1962, page 505, wherein Georgia has adopted this Compact.
I do not believe that it will have any adverse effect upon your operations of a nuclear reactor. The Compact is entirely voluntary and has many safeguards which retain the right of any individual member States to follow their own course of action. It was intended to act in an advisory and coordinating capacity. It contains several sections which I feel will safeguard our own nuclear reactor operations and research. Article VII provides that nothing in the Compact shall "... require any person or other entity to avoid or refuse compliance with any law, rule, regulation, order or ordinance of a party state or subdivision thereof now or hereafter made, enacted or in force," and "permit or authorize the Board to exercise any regulatory authority or to own or operate any nuclear reactor ... nor shall the Board own or operate any facility or installation for industrial or commercial purposes."
Further safeguards are contained in Article VIII pertaining to the eligible parties. It is a voluntary agreement and shall become effective only upon a State's legislature having enacted the Compact into law (as has been done by Georgia), and the Compact shall not even then become effective until seven States have so enacted it. (This has now been done and the Compact is effective.) We find that any State may withdraw simply by enacting legislation repealing the previous enacting statute although the withdrawal requires formal notice by the Governor of the withdrawing State to the Governor of each other State informing them of the withdrawal before it becomes effective.
In summary, there seems to be no objectional feature to the proposed Resolutions. On the contrary, they seem desirable. Certainly if the Compact and the Board created by it function as contemplated, you should gain immeasurably in that much of back research, planning and other related activities would be reduced considerably through the sharing and cooperation with similar projects by other States.
CONSTITUTIONAL LAW-Amendments (Unofficial)
Amendments to State Constitution can only be submitted to electorate in accordance with the method set forth in the Constitution which requires that there must be a concurrence in the amendment by two-thirds of each House of the General Assembly.
September 25, 1962
TO ALL ORDINARIES OF THE STATE OF GEORGIA
This office has recently received requests from the various ordinaries around the state relative to the placing on the general election ballot proposed amendments to the Georgia Constitution which are

35

being submitted by an attorney at law in Atlanta, Georgia. Because of these proposals, the question has arisen as to whether the ordinaries of the several counties are authorized to place these proposed amendments on the ballot. This opinion is to inform you as ordinary that you are not authorized to submit these proposed amendments to the people for the following reasons:

Article I, Section IV, Paragraph I of the Constitution of the State of Georgia of 1945 provides:

"The people of this state have the inherent, sole and exclusive right of regulating their internal government and the police thereof, and of altering and abolishing their constitution whenever it may be necessary to their safety and happiness."

This statement, however broad though it may seem, must be taken to mean that while the people of this state, acting in concert, may establish a new constitution, Wheeler v. Trustees, 200 Ga. 323, any amendment to an existing constitution would seem to require legal authority as set out in the existing constitution.

The Wheeler case, on page 331, states:

"The people of a state may form an original constitution, or abrogate a whole one, and form a new one, at any time,
without any political restriction except the Constitution of the United States; but if they undertake to add an amendment, by the authority of legislation, to a constitution already in existence, they can do it only by the method pointed out by the
constitution to which the amendment is to be added."

Further, on page 334, the Court speaking through Mr. Justice Wyatt states as follows:

"Under our system of government the method of expressing the will of the people is by voting in a lersally held election. The legislative branch of our government is charged with the ?uty of providing the manner of holding elections and providIng for the ballot and what shall go on the ballot-of course subject to the limitations contained in the constitution. It will be noted from the quoted provisions of the Constitution of 1877 that, before any question concerning the constitution can legally be placed upon a ballot, there must be a concurrence of two-thirds of all the members of each House of the General Assembly. This is the requirement if an amendment is to be proposed, or if a convention is to be called. We think the clear Implication is that no question concerning a change in the constitution, or the creation of a new constitution, shall ever be Placed upon a ballot for submission to the people until the General Assembly has by a two-thirds vote authorized the placing of the proposition on the ballot." (Emphasis Supplied.)

11T~is
X~ahon

unanimous statement to the Constitution of

by the Court, although speaking in 1877, is equally applicable to Article

. ' Section I, Paragraph I of the Constitution of the State of Geor-

gia of 1945, the language of which paragraph is, in its pertinent parts,

36
identical with the language of the corresponding paragraph in the Constitution of 1877. Therefore it is the opinion of this office, as heretofore stated, that the proposed amendments submitted by the individual are not entitled to be placed on the ballot for reason that they have not been authorized by a two-thirds vote of the General Assembly.
Furthermore, even if a strained reading of the Constitution might be said to authorize the submission of the proposed amendments to the people, it is clearly evident that such construction would be grossly violative of the intent of the framers of the Constitution of 1945 for the reason that such a plan would be totally unworkable, in that allowing any person to submit a proposed amendment to the people would result in chaos and confusion unparalleled in the history of this or any other sovereign state.
CONSTITUTIONAL LAW-Delegation of Legislative Authority
Act granting Georgia Safety Fire Commissioner "final authority in all matters relating to the interpretation and enforcement of this Chapter except so far as his orders may be reversed or modified by the court" ruled unconstitutional.
May 14, 1962
Honorable S. Ernest Vandiver Governor, State of Georgia
This will acknowledge receipt of your letter requesting my opinion as to the constitutional and statutory legality of expenditures covered by requisitions submitted to the Supervisor of Purchases by the Georgia Safety Fire Commissioner. More specifically, your letter states that mirrors are to be purchased and are to have fire slogans imprinted thereon, involve a cost of $454.00, and are to be distributed to the general public.
Section 26 of the Act approved February 25, 1949 (Ga. Laws 1949, pp. 1057, 1067), codified as Ga. Code Ann., Section 92A-735, 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 Statewide program of fire prevention education in the schools of the State and establish therein fire drills. All local school authorities are required to cooperate with the State Fire Marshal in carrying out programs designed to protect the lives of school children from fire and related hazards."
Section 2 of said Act (Section 92A-702) provides in part that the Commissioner "shall be the final authority in all matters relating

37

to the interpretation and enforcement of this Chapter except so far as his orders may be reversed or modified by the courts."

On its face Section 92A-735 purports to vest the State Fire Marshal with a very broad discretion, for the law says that the Fire Marshal "may promote any plan or program which tends to disseminate information on fire prevention . . ." Section 92A-702 declares that the interpretation of the law by the Commissioner is final. While I have been called upon on three prior occasions for official opinions concerning the scope of these statutes, this is the first time that a request has been made for a ruling as to the legality of a purchase from both a constitutional and statutory basis, and is also the first time that a request has related to articles of this nature.
By a memorandum to the Georgia Safety Fire Commissioner dated September 19, 1957, I ruled that Section 92A-735 was sufficiently broad to authorize payment from State funds of the subsistence of Junior Fire Marshals while in attendance at fire safety and fire prevention classes conducted by the State Fire Marshal at Rock Eagle Camp. In that memorandum, I did not undertake to rule upon the constitutionality of Section 92A-735, as so construed.

However, on November 27, 1957, I advised the Fire Commissioner by letter that I was withdrawing my prior memorandum of Septem-
ber 19, for the reason that the State Auditor had orally raised the question as to the constitutionality of such expenditures.1

Subsequently, on June 30, 1960, I rendered an official opinion to the Georgia Safety Fire Commissioner, holding that the purchase by him of writing implements and pads to be used by the Junior Fire Marshals during classes at Rock Eagle Camp was authorized by Section 92A-735.

More recently, on April 10, 1962, I rendered an opinion upholding the purchase of Fire Marshal Badges for distribution to Junior Fire ~arshals as a part of the educational program conducted by the State Fire Marshal.

In none of these prior opinions have I undertaken to rule upon the constitutionality of Code Section 92A-735, in accordance with wellsettle.d judicial principles requiring that constitutional questions not b. e rmsed unless absolutely necessary to a determination of the issue In question, Boatright v. Yates, 211 Ga. 125(4); Barwick v. Wind, 293 Ga. 827 (2), and that the constitutionality of a statute be conSidered only where its validity has been specifically raised by a responsible person whose rights are affected thereby. Carter v. Dominey, et al., 157 Ga. 167 (1).

de~eI!tldisthfreeqcuoennsttliytuttihoenadluittyy

of of

the Attorney General in litigation to State statutes regardless of his own

hPIDwn concerning their validity, and in recognition of that fact it

as always been my policy never to pass upon constitutional ques-

1. GSee Report of State Auditor of Examination of the Comptroller eneral for year ended June 30, 1961, pp. X-XII.

38
tions absent an express request by the Governor or responsible Department Head. Even then, I do so only to the extent necessary to a proper resolution of the precise issue at hand. Like the courts, it is my duty to function only in the context of a bona fide controversy, and not assume the office of censor morum of the Legislature and other branches of government. To do otherwise would violate the separation-of-powers scheme of our government. Ramsey v. Hamilton, 181 Ga. 365, 375.
In the light of these premises, I now turn to the issue at hand.
The Constitution of Georgia specifies the legitimate purposes for which taxes may be levied. Art. VII, Sec. II, Par I (Code Sec. 2-5501). Construing this paragraph, it was said in Brown et al v. Markin et al, 162 Ga. 172, 174:
"The General Assembly has only those powers of taxation over the State which it is permitted to exercise under the grant of power contained in the Constitution - - -"
Moreover, Art. VII, Sec. I, Par. II of the Constitution (Code Sec. 2-5402) provides in part:
"1. The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association - - -"
Appropriations of public funds must be for a public purpose, and "the test of whether a particular activity may rightly be called a duty or an obligatory function of government is whether the welfare of the state as a whole is substantially promoted by or involved in its exercise." 42 A. Jur. 756, Sec. 57. "If a public purpose is set up as a pretense to conceal a private purpose, the appropriation is illegal - - - - Incidental advantage to the public or to the state, which results from the promotion of private interests - - - - does not justify their aid by the use of public money." Id., p. 758.
In the light of these principles, I do not deem it necessary to reach the question as to the constitutionality of Code Section 92A-735.
In Fordham v. Sikes, 141 Ga. 469 (la), it was held:
"(a) If a statute is equally susceptible of two constructions, one of which will harmonize it with the constitution and the other of which will render it unconstitutional, the former construction is generally to be preferred."
Applying this rule to Sec. 92A-735, I am of the opinion that said section should not be construed as authorizing expenditures of the nature involved here, for to so do would render it unconstitutional as purporting to authorize gratuities and expenditures of state funds for unauthorized purposes.
In this respect, it is apparent that the line of demarcation between legal and illegal expenditures is often difficult to discern, but in the present case, I am of the opinion that essentially what is involved is a gift or gratuity of merchandise. The fire message is a mere inci-

39
dent of the gift, and could be conveyed just as well without imprinting it upon a gift of tangible property whose principal utility is in its use as a mirror and not in the idea it also seeks to convey.
I think it appropriate to point out that the pocket mirrors here in question differ substantially from the Junior Fire Marshal subsistence allowance, writing implements, and badges. The ,latter constituted an integral part of an educational endeavor authorized by the Constitution, Art. VII, Sec. II, Par. I (Code Sec. 2-5501}-an undertaking in which whatever elements of a "gift" were involved emerged as an incident of the dominant function which was education. The Commissioner's name did not ever appear on the badges, for example. Here, the reverse is true.
Therefore, properly construed, Sec. 92A-735 does not authorize the expenditure in question.
The question does arise, however, as to the constitutionality of so much of Sec. 92A-702 as purports to authorize the Fire Commissioner to be the "final authority in all matters relating to the interpretation - - - - of this Chapter." This language is unequivocal, and does not admit of an interpretation which might avoid constitutional adjudication. State v. Camp, 189 Ga. 209 (1). If this language is given its ordinary signification and effect, (Code Sec. 102-102 (1)), it would follow that the expenditures in question would be beyond the realm of the Governor and other state officials to question, and necessarily would purport to vest the Commissioner with the authority he apparently now asserts by virtue of having submitted a requisition.
The Constitution, Art. III, Sec. I, Par. I (Code Sec. 2-1301) declares:
"The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives."
Under this paragraph, it is held that legislative power may not be delegated. Phillips v. City of Atlanta, 210 Ga. 72, 74.
In Bibb County v. Garrett, 204 Ga. 817 (2), it was held:
"2. The act of 1946 (Ga. L. 1946, p. 237), which seeks to vest in the Board of Commissioners of the County of Bibb 'full power and authority in its discretion to inaugurate, constitute, a!J.d administer pension and/or insurance provisions and benefits for all or any of the officers and employes of the County of Bibb,' is violative of article III, section I, paragraph I of the Constitution of 1945 (Code, Ann. 2-1301), which vests the legislative power of the State in the General Assembly, and is an unwarranted and unsuccessful attempt to delegate its legislative authority."
f" Section 92A-702 is little different in principle. It purports to vest Infal ll;Uthority in the Commissioner to interpret the very law he is en orcmg, except to the extent that his orders may be set aside by the courts, but even here, no ascertainable standards are prescribed

40
by the law-making body to govern the exercise of his discretion, and in their absence, it would appear impossible for a court to determine when to "reverse" or "modify" the Commissioner's orders.
Moreover, nowhere in the caption of the Act of 1949 (Ga. Laws 1949, p. 1057) is any reference made to the power of the Commissioner to be the final authority in interpreting and enforcing the law, and this renders the statute fatally defective, pro tanto. See Constitution, Sec. 2-1908, declaring that "no law shall pass which---contains matter different from what is expressed in the title thereof." Since the statute contains a separability clause, Sec. 92A-740, other sections thereof will not be affected.
Therefore, I conclude that the purchase order in question is unauthorized by Section 92A-735, and so far as Sec. 92A-702 purports to authorize same, it is unconstitutional for the reasons above assigned.
CORPORATIONS-Electric Membership Corporations
Membership corporation may lend money to its members to provide electrical and plumbing equipment.
January 18, 1962
Honorable Robert D. Tisinger Washington, D. C.
In your telephone request today you state that Central Georgia Electric Membership Corporation, organized pursuant to the Electric Membership Act, Georgia Laws 1937, page 644, as amended, Chapter 34 A-1 Georgia Code, Annotated Supplement, proposes to borrow $150,000.00 from the Rural Electrification Administration, under Section 5 of the R.E.A. Act, Title 7, Section 905, U.S.C.A.
The funds so borrowed would be loaned to a present member of the Central Georgia Electric Membership Corporation, namely American Mills, Incorporated, for the purpose of "wiring the premises and installing therein electrical and plumbing fixtures, machinery, apparatus and equipment in that member's plant."
The borrowing member would give to the lending corporation its note and security instrument for the full amount of the loan, and would use the borrowed funds only for the purposes stated in the application.
You request my opinion whether the loan by the Electric Membership Corporation to the member is authorized, in view of the provisions of the State and Federal Laws cited above and the decision of the Supreme Court of Georgia in the case of Galloway v. Mitchell County Electric Membership Corporation, 190 Ga. 428.
On the assumption that the words "electrical and plumbing" modi-

41
fy and apply to the words "machinery, apparatus and equipment," I am of the opinion that the loan is authorized. The facts, in my opinion, make this loan clearly distinguishable from that involved in the Galloway case. The purpose of the loan in the Galloway case was "to erect and maintain a refrigerating food storage and processing plant." The Supreme Court said (at 190 Ga., p. 435) that while the Membership Corporation was permitted to provide electrical and plumbing equipment to its members, it was not authorized to lend money to a member in order that such member might construct a plant and thereafter maintain its own separate enterprise.
CORPORATIONS-Registration (Unofficial)
Bethany Home, Inc., which operates two old-people's homes, being managed and directed entirely by members of the Primitive Baptist Church, is not required to register with the Secretary of State.
August 30, 1962
Honorable George L. Smith, II Swainsboro, Georgia
I am in receipt of your letter requesting my opmwn as to the applicability of Section 3 (a) of Act No. 835, Regulation of Professional Fund Raising, Ga. Laws 1962, page 496, to Bethany Home, Inc., Vidalia, Georgia.
Section 3 (a) of said law provides:
"Section 3. Exempt Persons. The following persons shall not be required to register with the department.
(a) Religious agencies and organizations, and charities, agencies, and organizations operated, supervised or controlled by or in connection with a religious organization; and . . ."
You state that the following facts are applicable to Bethany Home, Inc.:
"1. The charter of Bethany Home, Inc. was obtained in 1923 as a charitable non-profit organization without capital stock.
. "2. The Bethany Home operates two old folks homes, one m Vidalia and one in Millen.
"3. The charter or by-laws do not state that the Board Members, officers, or managers must be Primitive Baptists, but it has been an unwritten rule that the above must be members of the Primitive Baptist Church. Only Primitive Baptists have ever served as Board Members, officers or managers.
"4. It has through the years held itself out to being spon-

42
sored by the Primitive Baptist Church and the general public has recognized this.
"5. Income for the operation of the Home is from the usual sources such as old age assistance, support income, bequests under wills, by soliciters, etc." It seems clear to me, regardless of what impression the general public has with respect to the sponsorship of the Bethany Home, Inc., the fact is that the Board Members, officers or managers of the Home have always been by unwritten rule and practice members of the Primitive Baptist Church, and therefore, it would be my construction that the Bethany Home, Inc. is an organization operated, supervised and controlled in connection with a religious organization and would not be required to register with the Secretary of State.
CORPORATIONS-Stock Brokers and Stock Exchanges (Unofficial) No retention periods prescribed for public records of stock brokers
and members of local stock exchanges. April 20, 1962
Mr. Eldred Kronmeyer New York 4, New York
Thank you for your letter received April 17, 1962, inquiring as to the existence of any retention periods prescribed for public records of stock brokers and members of local stock exchanges within the State of Georgia.
I have contacted the office of the Secretary of State who is Ex Officio Commissioner of Securities and his office advises that he has not adopted any rules or regulations prescribing such retention periods.
COUNTIES-Boundaries
Description of boundary between Butts County and Jasper County, particularly on Lake Jackson.
August 22, 1962
Honorable Fulton Lovell, Director . State Game and Fish Commission
This will acknowledge receipt of your request for my opinion as to the boundary line between Butts County and Jasper County, particularly on Lake Jackson.

43
By an Act assented to December 22, 1829 (Ga. L. 1829, p. 27; Ga. L. 1828-31), the General Assembly provided:
"That from and after the passage of this Act the jurisdiction of Butts County be, and the same is extended over the Oakmulgee river and islands on said river, adjoining said county of Butts, any law to the contrary notwithstanding."
Ga. Code Ann. 23-102 provides:
"Whenever a stream of water is the boundary of a county, the jurisdiction of the county shall extend to the center of the main channel of such stream."
Code 27-1102 and 27-1103 relate to the jurisdiction of a county where the boundary is upon water and where an offense is committed on the boundary line of two counties.
Code 102-107 provides:
"If there is a law in force at the time of the adoption of this Code, having entirely a local application, such local law is not repealed by this Code unless so expressly declared."
This particular boundary has been the subject of litigation between the County of Jasper and the County of Butts. The first of these cases is Jasper County v. Butts County, 142 Ga. 576. Headnotes 1 and 2 read:
"1. The act approved December 22, 1829 (Acts 1829, p. 27), which declared 'That from and after the passage of this act the jurisdiction of Butts County be and the same is extended over the Ocmulgee river, and islands on said river, adjoining said county of Butts,' properly construed, placed the whole of the river and islands therein, adjoining the County of Butts, as its boundary lines existed at the time of the passage of the act, within that county.
"2. The provision 'Whenever a stream of water is the boundary of a county, the jurisdiction of the county shall extend to the center of the main channel of such stream,' adopted in 1863, included in the several codes, and now found in the Civil Code (1910), 32, is to be construed with other code provisions similarly adopted, and now contained in the Civil Code, as follows: 'If there is a law in force, at the time of the adoption of this Code, having entirely a local application, such local law is not repealed by this Code, unless so expressly declared' ( 11); and 'The State is divided into one hundred and forty-six counties, whose boundaries and limits shall be ascertained by the several acts laying off the same, and those amendatory thereof' ( 31). So considered, the code provision first mentioned did not operate to repeal the act of 1829, set forth in the first headnote."
Jasper County v. Butts County, 147 Ga. 672, was another appeara~ce of litigation between the counties in the Supreme Court of Georgia. This case involved the question of which county tax returns

44
should be made by the Central Georgia Power Company on the dam that forms Lake Jackson.
Jasper County v. Butts County, 149 Ga. 376, is a reappearance of the case cited in 147 Ga., and in which the Court determined that the property would be returned one-third to Jasper County and two-thirds to Butts County.
A question involving a somewhat similar issue, Minter v. The State, 158 Ga. 127, was determined by the court, and Headnotes 2 (a) and (b) held:
"2. The act of the legislature creating the County of Coweta (Acts 1826, p. 57) extended the territory of that county eastward to the east bank of (formerly) the principal western branch of Flint river (now) 'Line Creek,' including the whole of the bed of that stream. The venue for trial of crimes committed on the waters on that stream is in Coweta County.
"(a) The provisions of the Penal Code (1910), 23, conferring jurisdiction for criminal trials in either of two counties, where the crime was committed on a stream that is the boundary between the counties and the evidence does not clearly disclose in which county the crime was committed, do not apply to the counties of Coweta and Fayette as to crimes committed on Line Creek.
"(b) While the instruction giving Penal Code 23 in charge of the jury was inept, as the evidence bearing upon the question of venue demanded the verdict that was rendered, any error in giving the charge is not cause for a reversal."
In the Minter case, the defendant was charged with murder where the offense was committed at or near the Flint River and the question of jurisdiction had been raised as to the line or jurisdiction of the counties. The Court in this case again held that the general law providing that where a stream of water is the boundary of a county the jurisdiction of the county shall extend to the center of the main channel of such stream, did not change the county line in that instance.
It would thus appear from the above that the boundary line between the two counties is as provided in the Act of 1829 and that the jurisdiction of Butts County is as provided in that Act. I am further of the opinion that the impounding of the water would not operate to change the boundary line prescribed by statute and that the boundary line remains as provided by the Act of 1829.
COUNTIES-Boundaries (Unofficial)
Boundary between Telfair and Coffee Counties defined.

45

GAME AND FISH-Carrying Arms Out-of-Season

Where person is carrying arms out of season, the apparent use rather than mere possession is determinative of whether he is in violation of hunting laws.

December 5, 1962

Honorable Preston Rawlins McRae, Georgia

This will acknowledge receipt of your request for my unofficial opinions on enumerated questions and to confirm our telephone conversation as well as our conversations in this office on recent dates.
You have asked:

(1) Where is the line which divides the Counties of Telfair and Coffee?

The Act creating Telfair County, approved December 10, 1807, Clayton's Compilation of the Laws of Georgia, 1801-1810, page 357, 6, defines the boundaries of Telfair County as follows:
"Sec. 6. And be it further enacted by the authority aforesaid, That all that tract or parcel of land hereinafter pointed out, beginning on the Ocmulgee, on the corner of the county of Laurens, running down the meanders of the said river to its junction with the Oconee river, up the meanders of the last mentioned river, to the point where Laurens county strikes the same; thence along Laurens county line to the beginning, shall also form one other new county to be called and known by the name of Telfair."

This Act may also be cited as Georgia Laws 1807, page 3.

Further information concerning the location of the boundary line is found in Section 1 of the Act creating Coffee County, Ga. L. 1853-4, p. 294, which reads in part:

"... thence along the line dividing the counties of Appling
and Telfair to the Ocmulgee river, thence up said river to Coffee's Road, thence taking the road to the Lowndes County line, ..."

The Act creating Jeff Davis County, Ga. L. 1905, p. 56, 3, in Part, provides :

". . . thence beginning at the southeast corner of Land Lot 116 in Coffee County and running west the land line to the southwest corner of Land Lot 129 ; thence running north the
land line to the Ocmulgee river which now forms the present boundary line between the counties of Coffee and Telfair, all being in the first district of Coffee County, ..."

}.~neIbt ewtwoeueldn

thus appear that Telfair and Coffee

the Ocmulgee River is the Counties. As to whether the

boundary boundary

Ine extends up the center or thread of said river or along the bank

46
on the Coffee County side, no opinion is expressed. In this connection, I would call your attention to the provisions of Code 23-102, which provides:
"Whenever a stream of water is the boundary of a county, the jurisdiction of the county shall extend to the center of the main channel of such stream."
The Butts County case cited in connection with 23-102 was controlled by a local Act (Ga. L. 1829, p. 27) that expressly provided that the jurisdiction of Butts County over the Ocmulgee River would extend over and include the river itself. For your information, I am enclosing a copy of an unofficial opinion rendered in connection with the location of the boundary line between Butts and Jasper Counties.
You ask three questions concerning the laws and rules and regulations of the Game and Fish Commission. They are:
(2) Are there any Statutory Laws or rules and regulations of the Fish and Game Commission which prohibit the carrying of a shotgun, pistol or rifle in a boat on the rivers, lakes or streams of this state which are not located in a state or federal game preserve, either in hunting season or when the hunting season is closed?
(3) Are there any Statutory Laws or rules or regulations of the Fish and Game Commission which authorize a Game Warden to take a shotgun or rifle from a person found with the same in a boat on the rivers, lakes or streams of this state which are not within a state or federal hunting preserve?
(4) Are there any Statutory Laws or rules and regulations of the Fish and Game Commission which would authorize a Game Warden to take a shotgun or rifle away from a person found with the same in the woods or river swamps of this state which are not within a state or federal hunting preserve, during the open or closed hunting season of this state?
I am enclosing for your information a compilation of the laws and rules and regulations pertaining to the Game and Fish Commission.
In connection with the answers to these questions, I direct your attention to the provisions of Georgia Code Ann., 45-102(c), 45-118, 45-517 and 45-518. I also direct your attention to the authority of arresting officers in the matter of obtaining evidence and preserving the same pending the disposition of a criminal case.
Specifically, the answer to your question number (2) is "no." However, even though the specific answer is no, it must be qualified if in fact the condition under which the firearm is found might indicate that the carrying or possession of the firearm is for the purpose of hunting. In other words, each factual situation must stand on its

47
own bottom and if the possession is not for the purpose of hunting, then there is no prohibition.
Answering your question number (3), specifically, I think a game warden would be authorized to seize a firearm found in the possession of a person on a boat which is not within a state or federal hunting preserve, provided the firearm is being held or used under such conditions as to indicate that it is being used for the purpose of hunting.
I believe the answer to your question number (4) is contained in the answer to your question number (3).
I realize full well that the answers to your questions might be interpreted as having several meanings. I believe the criteria in each of these cases is not so much the possession as the use that is being made of the firearm. I think you will agree that under certain conditions a person might well attempt to circumvent the laws by saying that the possession of a firearm was for a purpose other than hunting, when in fact the person was hunting. This is the reason that I say that the criteria is the use that is being made of the firearm.
To illustrate, a person with a 12-gauge shotgun loaded with buckshot in a boat where deer are found would logically be presumed to be hunting for deer. Would it be feasible for such a person to say that it is necessary to carry a gun loaded with buckshot to shoot snakes? I think the same would be true as to a person having a shotgun loaded with turkeyshot or duckshot or vice versa.

COUNTIES-Budget Allocations (Unofficial)

Discussion of authority and duties of Commissioner of Roads and Revenues of Whitfield County and Advisory Board of said County regarding county budget allocations.

February 7, 1962

Honorable Virgil T. Smith Member, House of Representatives State of Georgia Whitfield County

This will acknowledge receipt of your request for my unofficial opinion on the question of whether the Commissioner of Roads and Revenue of Whitfield County is bound by law to accept the recommendations of the Advisory Board of said County regarding budget allocations for the various County Officers.

th e

Of course you realize County Attorney in

that that

this it is

is a question that of a purely local

directs nature

itself to that ad-

tdoressusbesmiittstehlef

to local authorities. As following information.

a

courtesy

to

you,

I

am

pleased

The Advisory Board was created originally by Section 7 of an Act

48
approved February 5, 1953 (Georgia Laws 1953, Jan-Feb. Session, p. 2145). This Act was an amendment to the Act creating the Commissioner of Roads and Revenue for the County of Whitfield. Section 7 clearly states that the Advisory Board shall exercise no control over the Commissioner or the County or its affairs, and expressly states that the judgment and decision of the Commissioner shall be final and binding.
In 1960, there were three Acts that related to the Advisory Board. The first of these is an Act approved January 27, 1960 (Georgia Laws 1960, p. 2007), that was approved at the referendum held pursuant thereto on March 2, 1960. This Act places certain of the county officers on a salary. Section 9 thereof relates to the authority of the Advisory Board and the Commissioner in matters pertaining to the budget. Section 9 (a) provides that in the event the budget that is submitted by the officer is approved by the Commissioner, then it becomes the budget. It also provides that he must approve or disapprove the same within fifteen (15) days.
Sections 9 (b) through (g) provide a procedure for review of the budget after it has been disapproved by the Commissioner. These Sections apparently come into operation only upon the disapproval of a budget by the Commissioner.
An Act approved January 27, 1960 (Georgia Laws 1960, p. 2019) and approved in the referendum held pursuant thereto on March 2, 1960, and in particular, Section 6 thereof, contains essentially the same provisions insofar as the budget of the Tax Commissioner is concerned.
From the above, it would appear that in the event the Commissioner disapproves a budget and the same is referred to the Advisory Board, then and in that event, the Advisory Board is vested with the authority to fix the budget. Thus we have a dual situation with the Commissioner having the authority initially to approve or disapprove a budget and if approved the same becomes fixed. If disapproved then the Advisory Board is authorized to fix the budget as provided by law. The same is true as to amendments or changes in the budget to meet deficiencies or emergencies.
COUNTIES-Commissioners of Roads and Revenues (Unofficial)
Discussion of voting procedures of Commissioners of Roads and Revenues.
May 23, 1962
Honorable Edward P. Brown County Attorney, Greene County
This will acknowledge receipt of your request for my opinion and interpretation of Section 3 C. of 1961 Ga. L., p. 2223 relating to Board of Commissioners of Roads and Revenues of Greene County, Georgia.

49

The Section in question reads :

"Section 3 C. A majority of the commissioners shall constitute a quorum for the transaction of business, the chairman shall be counted in determining a quorum. The chairman shall be entitled to vote in the same manner as other members of the board and in the event of a tie vote on any matter, the matter shall be approved by the board."

Your first question is:

"Under the above quoted section of said Act, does the chairman have the right to vote on all matters, or only when, due to the absence of one member, a tie results?"

This question is clearly answered by the language quoted above, which states that the chairman shall be entitled to vote in the same manner as other members of the Board.

Your second question is:

"If the chairman has a right to vote on all matters and a tie vote results, the chairman and one member voting one way and the other two members voting another way, what effect do the words 'the matter shall be approved by the board' have?"

The answer to this question seems to be answered by the language
of the quoted Section 3 C that "the matter shall be approved by the board."

Your third question is:

"If the chairman and one member vote one way and the other two members voted another way, is the matter tabled, or can the matter be resolved in one way or the other, and if so how would the matter be resolved?"

While it is apparent that it is the express intent of this Section to change many of the rules governing parliamentary procedure, it would appear that the plain wording of the legislative enactment must be given effect. That being true, it would seem that if the board is voting on a matter and if for any reason there is a tie vote, it would appear that under the wording the matter would stand approved. As an illustration, if the board was voting on the expenditure of "X" dollars for a specific project, and in the event of a tie vote, it would appear that the expenditure would be approved.

I would call your attention to the provisions of Section 9 of the

Act, which provides an effective date for the 1961 Act. Section 7, ":h~ch relates to the publication of monthly reports, is the only pro-

vrswn of the Act that became effective upon approval by the Gov-

fern~r. By ex
echve upon

press the

term expir

s, the ation

other provisions of the terms of

of the office

Act become efof the present

members. It would appear that in the event difficulties are antici-

P:;tted in the transaction of business of the County, it would be de-

Sirable to clarify Section 3 C. prior to its effective date.

50
COUNTIES-Conflict of Interests (Unofficial)
There is no prohibition against a justice of the peace at the same time holding membership on the County Democratic Executive Committee.
September 28, 1962
Honorable Theo Williams Judge, Court of Ordinary Early County
Thank you for your recent letter inquiring as to the legality of a person simultaneously holding the offices of Justice of the Peace and County Democratic Executive Committeeman.
I know of no general statute prohibiting a person from simultaneously holding such offices.
COUNTIES-Constables and Policemen (Unofficial)
A constable is not a policeman, nor vice versa, though both are peace officers with defined powers to arrest within their respective jurisdictions.
December 6, 1962
Mr. A. M. Gurr Assistant Chief Americus Police Department
This office has received your letter in which you ask whether or not a constable is a policeman and vice-versa. Both questions must be answered in the negative although both officers are peace officers in terms of the existing Georgia law.
As peace officers, both have powers of arrest greater than those given to civilians. An officer may arrest for a crime either with or without a warrant if: (1) the offense is committed in his presence, or (2) the offender is endeavoring to escape, or (3) for other cause there is likely to be a failure of justice for want of an officer to issue a warrant. Code Section 27-207.
The differences in the powers among peace officers are, of course, mostly in regard to the jurisdiction or area in which they are exercised, but as to all of them along with the powers goes the duty to arrest. The powers, duties and responsibilities of city policemen are found mostly in the ordinances of their municipalities. Policemen have, for instance, been included in the meaning of officer in Code Section 27-207, but the powers are limited to arrest within the municipalities except when the officers are members of a sheriff's posse or in extradition cases. They have the same protection in making arrests in violation of a municipal ordinance as when arresting

51
for an offense against a State law. The case of Williams v. Sewell, 121 Georgia 665, held:
"A municipal charter which imposes upon the mayor the duty of seeing that the ordinances of the town are faithfully executed, and confers upon him jurisdiction to try all persons charged with violating such ordinances, authorizes the mayor to issue a warrant for the arrest for trial of one charged with the violation of an ordinance; and this is true notwithstanding the charter does not in express terms authorize the mayor to issue a warrant for such purpose."
The logical conclusion then would be that a warrant issued by a mayor or from the judge of a city recorder's court could be served by a policeman, but not otherwise.
Constables also have the power to arrest in the three situations listed above as granted by the Code and presumably may arrest anywhere in the State. A proper warrant from a State court official, whether it be a justice of the peace or otherwise, is specifically directed to constables among others and they, therefore, have power to serve these warrants.

COUNTIES-County Officials (Unofficial)

Ordinary of Harris County cannot accept as additional salary money authorized for additional clerical help in office.

Mrs. Charles Johnson Clerk Harris County Commissioners

February 2, 1962

This will acknowledge your letter asking for a ruling with reference to the provisions of an Act, No. 795, approved March 17, 1960,
which placed the Harris County Ordinary on a salary basis. (Acts 1960, Vol. 2, p. 2928).

The Act in question places the Ordinary of Harris County on a salary of Seven Thousand, Two Hundred Dollars ($7,200.00) per annum, payable in equal monthly installments, out of the funds of
the county. There is also a permissive proviso, Section 3, of the Act, which reads as follows:

"The Ordinary may appoint such clerical help as he deems necessary. However, not more than One Thousand, Two Hundred Dollars ($1,200.00) per annum shall be expended for the compensation of such employees."
Please note that this provision of the Act is permissive only. We are sure that you are familiar with the statutes which prohibit a Person from holding two (2) county offices at the same time, and we

52
have the feeling that it would not be appropriate for the Ordinary, under the terms of the Act quoted, to draw a salary in excess of the amount specified in the Act of Seven Thousand, Two Hundred Dollars ($7,200.00) per year.

COUNTIES-County Officials (Unofficial)

Member of County Board of Education may at same time be member of General Assembly.

Honorable Boyd Aycock Lincolnton, Georgia

March 30, 1962

Receipt is hereby acknowledged of your letter wherein you asked whether membership on the Lincoln County Board of Education will disqualify you from serving in the State General Assembly as a senator or representative from your area, or disqualify you from running for such State office position.

Article II, Section IV, Paragraph VI of the Constitution of Georgia (Code Section 2-1606) provides as follows:

"2-1606. Paragraph VI. Eligibility; appointments forbid-
den.-No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument
annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has
been created during such term."

Georgia laws relating to county offices provide, in Code Section 89-103, as follows:

"89-103. Holding plurality of county offices; deputies of commissioned officers.-No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment."

From the foregoing it is clear that no person holding a State office is eligible for membership in the General Assembly, and it is

53
likewise clear from the foregoing that no person is eligible to hold more than one county office at the same time. The courts of this State have held that persons serving as members of county boards of education are county officers, Standford v. Lynch, 147 Ga. 518, the same being selected by the local county grand jury (Code Sections 2-6801 and 32-902) or locally elected by the people pursuant to adoption of a local constitutional amendment. Being such .you perform your duties in your local area and are compensated from local treasury funds. On the other hand, members of the General Assembly are compensated for their services from the State Treasury and are generally considered as being State officers. Such officers individually represent only a small geographical portion of the State but in the performance of their duties they actually are concerned with and represent the State at large. See, in this regard, In re Anderson, 159 N.W. 559, 164 Wis. 1; Morril v. Haines, 2 N.H. 246; Pitts v. Chilton County, 173 So. 94, 27 Ala. App. 364 and Dorenfield v. State ex rei. Allred, 73 S.W. 2d 83, 123 Tex. 467. The distinction to be made when classing an office as being either a State or a local office rests primarily upon a consideration of the powers and duties connected with such office and the area served by the holder thereof. Coleman v. Kansas City, 182 S.W. 2d 74, 353 No. 150.
There being no provision of law prohibiting a county officer from serving as a member of the General Assembly as a State officer, I am of the opinion that you, as a county officer, may qualify for and lf elected serve as a member of the General Assembly.

COUNTIES-County Officials (Unofficial)

Justice of the peace, not being a county official, is not barred from holding at same time office of county commissioner.

Honorable V. W. Douglas Mcintosh, Georgia

April 30, 1962

. This will acknowledge your letter in which you asked the followmg questions :

1. Should a Justice of the Peace desire to enter his name as a candidate for the office of County Commissioner, is it necessary that he resign his Justice of the Peace commission?

2. If not, in the event that he wins the County Commissioner post, can he continue to fulfill the duties of a Justice of the Peace?

An unofficial opinion was written on April 13, 1940, by my predjces~or, Honorable Ellis Arnall, in which he ruled that the office of thushce of the Peace was not a county office and that a Justice of
e Peace could therefore hold membership on a County Board of

54
Education. Op. Atty. Gen. 1939-41, p. 44. This precedent was followed by me in an opinion written on January 13, 1948. Op. Atty. Gen. 1948-49, p. 42. It is appropriate to call to your attention the following statutory provision:
"89-103. (259) Holding plurality of county offices; deputies of commissioned officers.-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. (Acts 1890-1, p. 102.)"
However, it appears that there is ample justification for the proposition that a Justice of the Peace is not a county officer. In the case of Long v. The State, 127 Ga. 285, Justice Atkinson is quoted as saying:
"A Justice of the Peace sometimes performs functions which, under other circumstances, are performed by a county officer. While a Justice of the Peace might possibly be classed as in a certain sense a county officer, this is really not the true way of designating the office he holds. The Justice Court over which he presides is a part of the State Judicial System. It is a constitutional court, and there is constitutional provision for his election by the legal voters of his district. He is an officer of the State."
And in the case of McDonald v. Marshall, 185 Ga. 439, Justice Hutcheson is quoted as saying that "A Justice of the Peace elected by the people, pursuant to the Code, Section 24-401, 34-2701, and 2-3503, is not a county officer within the meaning of Code Section 91-703." In this case it was held that a Justice of the Peace is not entitled, as of legal right, to have a room in the county courthouse for his office or place of holding court.
We find nothing in the State Constitution which prohibits a Justice of the Peace from also holding a position as a county official such as the County Commissioner. We are not unmindful of the decision in the case of l\lcWillliams v. Neal, et al., 130 Ga. 733, and the case of McLendon v. Everett, 205 Ga. 713, 717. Nor or we unmindful of the provision of law found in Georgia Laws 1959, p. 34, as amended by Georgia Laws 1961, p. 42 (found in Georgia Code Annotated,. Section 26-5009) which became effective as of January 1, 1961, which among other things prohibits Judges of Courts of Record to accept or hold office in the Executive branch of the Government of the State of Georgia or any agency thereof. This Section could not be applied to your situation simply because a Justice Court, while being a constitutional court, is not a Court of Record.
We see no reason therefore why in the event you are elected County Commissioner, you may not also continue to fulfill the duties of a Justice of the Peace.

55
COUNTIES-County Officials (Unofficial)
Payment in certain instances for duties performed by Clerk of Superior Court and sheriff to be determined and authorized by grand jury.
May 7, 1962
Mrs. Martha B. Hoggard Clerk, Superior Court, Mitchell County
This will acknowledge your letter outlining your problem with reference to costs payable to the Clerk and to the Sheriff whenever there are no insolvent funds to provide for such costs, and in instances where no fine is paid, and the defendant is given a straight sentence.
You are familiar of course with the provisions of Georgia Code Ann., Code Section 24-2727, which covers fees of clerks of the superior court in criminal cases. Also, we feel sure that you are thoroughly familiar with the provisions of the Code, Chapter 27-28, covering the subject of costs, and the provisions of the Code, Chapter 27-29, covering fines, and fines and forfeiture fund. Priority of payment from funds arising from fines, applicable equally to clerks and sheriffs, is found in Code Section 27-2933. There is a provision of law found in Code Section 24-2731, providing for clerk costs in felony cases which you will wish to review. We believe that the section of law in which you are interested is found in Georgia Code Ann., Section 24-110, and in order that you may have it immediately before you, we quote it for your information:
"The ordinaries who by law are vested with the management of the county business, and for whom no compensation is now provided, and the sheriffs and clerks of the superior courts, for public services in relation to which existing laws provide no compensation, shall be compensated as follows, to wit: Such officers shall state their respective claims in writing, and make affidavit to the correctness and justice thereof, which so made out and verified shall be submitted to the grand juries of their respective counties at any regular term thereof at which a grand jury is impaneled, after the services rendered; provided, if such statement is not submitted at that term or at the next succeeding term at which a grand jury is impaneled, such claim for services shall be barred; and said grand juries may in their discretion require other proof of the justness and correctness of such claims, and, when satisfied that said claims are just and correct, may allow the sum claimed, or so much thereof as they may deem right and proper; and when allowed, the ordinary of such county, or other authority levying county taxes, shall assess so much with the other county taxes as will pay the same, which when collected and paid over to the county treasurer of such county, shall be paid by him to the parties thereto, without further order, he taking a proper receipt therefor. The compensation provided for in this section shall be in full of all compensation of such officers for such services."

56
Sheriffs' fees are enumerated in Code Section 24-2823 and there is a provision covering restrictions on sheriffs' fees and compensation found in Code Section 24-2822, which reads as follows:
"Sheriffs are entitled only to such fees or compensation as the law prescribes, or, upon an omission of the law, to such reasonable compensation as the grand jury shall award; and where they use property themselves, or hire it out after being levied upon, they are not allowed a per diem allowance for maintenance, and are liable to the proper party for the hire received."
The above section of the Code you will note provides reasonable compensation for the sheriff to be awarded by the grand jury in certain instances, and the general law regarding compensation of sheriff is included in the cited Code Sections, Sections 24-110, 24-2822, and 24-2823. Please note that the Code Section that we have previously cited, Section 27-2933, covering priority of payment from funds arising from fines applies equally to sheriffs and clerks, and the same is true also of Code Section 24-110.
You understand, of course, that all of the above provisions are subordinated in those counties where the clerk and/or the sheriff are on a salary basis. The subject of fines and the payment of insolvent costs from the fine and forfeiture fund is also subject to certain general laws of local application and in this connection we refer you to the editorial note following Code Section 27-2914, found in the 1961 Cumulative Pocket Part.
COUNTIES-County Officials (Unofficial)
Deputy sheriff, not being an elected official and being removable from office at will of sheriff, is not prohibited from serving on Board of Tax Assessors.
May 22, 1962
Honorable A. Newell Ne Smith County Attorney, Bleckley County
This is in reply to your letter in which you asked for an opinion as to whether a deputy sheriff is prohibited from being a member of the local Board of County Tax Assessors.
I have examined the laws of this State pertaining to a tax assessor's ineligibility to hold other offices and find that Code Section 92-6907 relates to the problem and provides:
"Assessors ineligible to hold other office. The members of the board of tax assessors shall be ineligible to hold any State, county or municipal office during the time they hold their offices, but they may be reappointed to succeed themselves as members of said board."

57
The question appears, therefore, to be whether or not a deputy sheriff is, within the meaning of this Code Section, a county officer.
Chief Justice Broyles stated in the case of Andrews et al. v. Butts County et al., 29 Ga. App. 302:
"... County officers are virtually defined by the constitution of this State (art. 11, sec. 2, par. 1, Civil Code of 1910, 6599) as officers who are elected by the qualified voters of their respective counties, or districts, and who hold office for four years, and who can only be removed from office on conviction for malpractice in office. A county registrar is not elected by the qualified voters of his county or district, but is appointed by the judge of the superior court of the county, and can be removed from office at the will of the judge . . ."
This case dealt with a person who is employed by the county as a county registrar appointed by the judge of the Superior Court of that county and could be removed from office at any time by that judge. A deputy sheriff is, of course, appointed by the sheriff and can be removed at any time by the sheriff.
It is my opinion that this case will control the question presented in your letter.
COUNTIES-County Officials (Unofficial)
Citation of laws relative to county officials doing business with county in their private capacities.
I
June 1, 1962
Honorable Raleigh S. Way Hinesville, Georgia
This will acknowledge receipt of your request pertaining to the selling of merchandise by a city or county official to the city, county or the State of Georgia.
As to the sales and transactions with the State, I direct your a~tention to the provisions of the Honesty in Government Law (Georgia Laws 1959, page 34, found as Georgia Code Annotated, Chapter 26-50). This Act is quite comprehensive in its scope.
In addition thereto, I further call your attention to Georgia Laws 1956, page 60, which may be found in Georgia Code Annotated, Chapter 89-9, and which relates to dealings with the State government.
As to prohibitions contained in the Act creating the Board of Commissioners of Roads and Revenues for the County of Liberty (Georgia Laws 1935, page 717, as amended) and in particular, Section 13 thereof, provides:
"Sec. 13. Be it enacted by the authority aforesaid, that no

58
member of said board of commissioners shall hold any subordinate position of the said board; that no member of any firm of which he may be a member or any corporation in which he may own stock, or by which he may be employed, shall buy anything from or sell anything to or perform any contract of service, either directly or indirectly of any character whatever, with said board, and if he does, he shall be guilty of a misdemeanor."
As to transactions with the city, the charter of the City of Hinesville is silent as to any prohibition. Section 16 of Georgia Laws 1959, page 2604, provides :
"Section 16. Ordinances. Be it further enacted by the authority aforesaid, that said mayor and council shall have the power to make and pass all ordinances, by-laws, rules and regulations that may be necessary for the good government, peace, order and health of said city, to have the enforcement of all powers herein granted, provided they are not repugnant to the Constitution of the State of Georgia or the United States."
COUNTIES-County Officials (Unofficial)
Member of Board of Tax Assessors cannot contemporaneously serve as member of Board of Education.
September 20, 1962
Honorable Edward B. Liles County Attorney, Glynn County
This letter is in further answer to your letter wherein you ask if the general law that members of county boards of tax assessors are ineligible to serve on county boards of education is applicable to Glynn County, the Glynn County school system having been created prior to adoption of the Constitution of 1877. This office is generally hesitant to rule upon matters involving local laws, but I indicated to you earlier that I would be happy to state my opinion in connection with this matter just as soon as time and circumstances permit.
Code Section 92-6907 provides as follows :
"The members of the board of tax assessors shall be ineligible to hold any State, county or municipal office during the time they hold their offices, but they may be reappointed to succeed themselves as members of said board."
In Clark v. Long, 152 Ga. 619, Stanford v. Lynch, 147 Ga. 518, Coleman v. Glenn, 103 Ga. 458 and Smith v. Bohler, 72 Ga. 546, the office of a member of a county board of education was construed to be a county office. See also, Worthy v. Cheatham, 142 Ga. 440 and Cooper v. State, 101 Ga. 783. Pursuant to these decisions, members of a

59
county board of tax assessors are not, under Code Section 92-6907, eligible to serve on a county board of education.
In addition to the foregoing, you will note that Code Section 89-103 provides in part as follows:
"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature. . . ."
This office has heretofore stated its opinion that the office of a member of a county board of tax assessors is a county office, and that by reason of such and the above cited court decisions one individual cannot, under Code Section 89-103, serve contemporaneously as a member of a county board of education and as a member of a county board of tax assessors absent special legislation. See Opinions of the Attorney General, 1952, p. 26, 1946, p. 142, and 1940, p. 103. But query? See Borres v. Watson, 148 Ga. 822.
After study and consideration of the matter, I am of the personal opinion that the foregoing is applicable to Glynn County, and that the office of a member of your board of education is to be construed as being a county office even though the school system and the board of education of Glynn County were created and established by local laws enacted prior to adoption of the Constitution of 1877.
In Haulihan v. Saussy, 206 Ga. 1, the Supreme Court held that, "In order for an officer to be termed and classified a county officer in compliance with article 11, section 2, paragraph 1 of the Constitution (Code Ann., Section 2-7901), he must be: (1) elected by the qualified voters of the county; (2) hold office for four years; (3) be a resident of the county for two years; and (4) a qualified voter." The constitutional provision referred to in the Haulihan case first appeared in Article XI, Section II, Paragraph I of the Constitution of 1877 (Code Section 2-8301), as amended in 1914 (Ga. Laws 1914, p. 43). The Supreme Court held, in Marshall v. Walker, 183 Ga. 44, that the subject"... provision of the constitution as amended refers only to such county officers as were in existence at the time of its adoption, and does not apply to offices thereafter created by statute.": But this is not to say that one cannot be termed a county officer for ~ny purpose unless he comes within the sense of the word as used lh Code Section 2-7901. County boards of education as exist today Were initially created and established by general statutes enacted P:ior to adoption of the Constitution of 1877. See, for instance, Georgia Laws 1872, page 62, page 67, and subsequent acts amendatory thereof, providing for establishment and appointment of county b.oards of education by county grand juries. (Such boards of education, due to Article VIII, Section V, Paragraph I of the Constitution of 1945 [Code Section 2-6801], now have constitutional status rather than statutory status-Powell v. Price, 201 Ga. 833.) Such boards of ed?cation however, even though appointive and created by statute Prwr to and existent at the time of adoption of the Constitution of 1877, have consistently been held by our appellate courts to be county offices, the provisions of Code Section 2-8301 of the Code of 1933 and

60
Section 2-7901 of the current Georgia Code to the contrary apparently notwithstanding. Such decisions have not, in this respect, been reversed but are still of force. In the Clark and Stanford cases, supra, the Supreme Court stated that "a member of a county board of education is a county officer", and in the Coleman case, supra, the Supreme Court stated that, "Members of a county board of education are public officers." Your independent school system and board of education were likewise created by statute enacted prior to adoption of the Constitution of 1877. The same is true of the Richmond County School System and Board of Education. See Georgia Laws, 1872, page 456. And your board of education is likewise an appointed board as are county boards of education generally, absent enactment of local constitutional amendments. In Smith v. Bohler, 72 Ga. 546, decided in 1884 and prior to adoption of the Constitution of 1877, the Supreme Court did, in my opinion, clearly hold that members of the Richmond County Board of Education were county officers and their office a county office. This decision is in my opinion applicable to the question asked by you. Further, the Constitution of 1877, in Code Section 2-7001, preserves local school systems created prior to 1877, such as yours and that of Richmond County, and provides that they shall not be affected by other provisions contained in those Constitutions. This does, of course, apply to the constitutional provisions contained in Code Sections 2-8301 and 2-7901 of those respective constitutions to the extent that such sections might be urged in such a manner as would change, alter or affect the status of such school systems or the board of education of such school systems. Board of Public Education for Bibb County v. State Board of Education, 190 Ga. 581.
Based upon the foregoing, the court decisions rendered in the Clark, Stanford and Coleman cases and particularly the Smith case, supra, I am of the personal opinion that members of the Glynn County Board of Education are county officers, holders of a county office, and therefore ineligible to contemporaneously serve as such while serving as a member of the county board of tax assessors. Though the powers and duties of members of your board of education may, due to your local laws, differ to some extent from those had by members of county boards of education generally, I am of the opinion that this does not mean that such persons occupy a different status from that of members of county boards of education generally insofar as the classification here considered is concerned.

61

COUNTIES-County Officials (Unofficial)

One cannot simultaneously hold offices of ordinary and county attorney.

Honorable Roy D. Moultrie Ordinary of Harris County

November 27, 1962

This will acknowledge your letter asking if it is legal for an Ordinary also to serve in the capacity of County Attorney.

The Court of Ordinary is a constitutional court. Constitution of Ga., Art. III, Sec. VI, Par. I, II, III. Code of Ga. Ann., __2-4101, 4103. Statutory law with reference to ordinaries is found in Code of Ga. Ann., Chapter 24-17. In the case of Lee v. Byrd, 169 Ga. 622, it has been held that "An incumbent in office as ordinary is a county officer within the meaning of the Constitution and laws of the State."

The fiscal affairs of Harris County are administered by a Board of County Commissioners and there is provision in Code of Ga. Ann., 23-917, that the Board shall have the right and authority to employ a county attorney when necessary. This is a general provision of law applicable when the county manager form of county government exists.

Your attention is called to the case of Templeman v. Jeffries, Ordinary, 172 Ga. 895 (2). This case discusses at length the exercise of the implied power conferred upon the county commissioners to designate a county attorney and to fix his term and salary, and that the relationship between the county and the county attorney does not rest upon contract, but arises from appointment impliedly authorized by legislative enactment, the power to designate such county attorney coming from the Legislature. In this case the Court held that the Board of County Commissioners of Fulton County, where the county manager form of government did not exist, did have the implied authority to employ counsel and to appoint a regular county attorney.

It has been held that an individual 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. Bradford v. Justices, 33
Ga. 332 (2). Any one is a public officer who is appointed by the gov~rnor and has any duty to perform concerning the public. Nor does It matter that his authority or duty is confined to very narrow limits. Polk vs. James, 68 Ga. 128.

. The case of Walker v. Stephens, 175 Ga. 405, refers to the apPOintment of a qualified practioner of the law as county attorney an.d recites that the relation between the county and the attorney
anses from the appointment of the attorney as a public officer. Also see the case of Stelling v. Richmond County, 81 Ga. App. 571, 574. It appears, therefore, that the county attorney also is a public officer of the county.

Your attention is now called to the statutory provision found in Code of Ga. Ann., 89-103, which we quote to you as follows:

62
"89-103. (259) Holding plurality of county offices; deputies of commissioned officers.-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. (Acts 1890-1, p. 102.)"
It is apparent, therefore, in our judgment, that an ordinary of a county is not qualified also to hold the public office of county attorney. It is self-evident that the duties of the two public offices in many instances would be conflicting and would be incompatible.
COUNTIES-County Officials (Unofficial)
Tax assessor cannot at the same time hold office of county commissioner.
December 18, 1962
Honorable Leo A. Browne Wilkinson County Attorney
This is in reply to your letter concerning the eligibility of a member of the Board of Tax Assessors to hold the office of County Commissioner.
Georgia Code Section 92-6907 provides:
"The members of the board of tax assessors shall be ineligible to hold any State, county or municipal office during the time they hold their offices, but they may be reappointed to succeed themselves as members of said board."
The Court of Appeals, in the case of Andrews v. Butts County, 29 Ga. App. 302, indicated in construing the provisions of this Code Section that the term "county officers" must be construed as defined in the Constitution of the State. Code Section 2-7901 is the constitutional provision which, in effect, defines "county officer".
It is my opinion that the County Commissioner is a county officer within the terms of these Code Sections and that a Tax Assessor is ineligible to hold such an office.
The ineligibility applies to the office of Tax Assessor rather than the office of County Commissioner and, in my opinion, the individual could qualify as County Commissioner, having been elected to that position, but would upon his qualification forfeit the office of Tax Assessor.

63

COUNTIES-County Police (Unofficial)

County police have same power to make arrests and return criminal warrants and processes as sheriff.

December 10, 1962

Honorable Lon L. Fleming, County Attorney McDuffie County

This will acknowledge your letter asking if a county policeman has the authority to set bond at the time the arrested party is turned over to the sheriff, and, if so, whether the sheriff would be bound to have a bond given in the amount set by the county police before releasing the arrested party. You advise that as of now the sheriff sets and takes the bond in the event the defendant wishes to give bond.

Please refer to the provisions of Code of Ga. Ann., 23-1408 with reference to the appointment of county police and power to arrest; also Code of Ga. Ann., 1401, and Code of Ga. Ann., 23-1403, which section as found in the 1961 Supplement of the Code is quoted to you as follows:

"23-1403 (851) Powers.-Said county police shall each of
them have under the direction and control of the commissioners or ordinaries the same power to make arrests and to execute and return all criminal warrants and processes, 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. (Acts 1914, p. 142; 1961, p. 217.)"

You may wish to review the case of Stone v. National Surety Corp., 57 Ga. App. 427(2). You may also wish to carefully review the provisions of Code of Ga. Ann., 27-210.

We are sure that you are familiar with the several provisions with reference to bail found in Code of Ga. Ann., 27-801, 27-901 and especially 27-902, providing the authority for amount of bail in misdemeanor cases, and acceptance by sheriffs and constables.

It would appear that the county policeman, under the provisions

~ontained in Code 23-1403, has the same authority as the sheriff

In those cases where the defendant is arrested under a warrant

charging a misdemeanor, so long as the prisoner is in his custody.

W~~e~

believe sheriff

that if the county without bail, that

policeman turns the it would thereafter

prisoner over to be the responsi-

p. 1lehatyseoaflstohenostheertihfef

to accept bail provisions of

as provided Code of Ga.

for in Code Ann., 27-210

27-902 . outlin-

Ing the diligence of an officer making an arrest.

After reviewing all of the above provisions we have reached the ~onclusion that the better practice is the practice which is now being
thollowed in your county, namely to return the warrant together with e custody of the defendant to the sheriff.

64
COUNTIES-County Surveyor (Unofficial)
Citation of authorities defining duties of County Surveyor.
May 21, 1962
Honorable Curtis F. Cannington County Surveyor, Cook County
Your letter addressed to the Secretary of State with reference to i your responsibilities as County Surveyor of Cook County has been referred to us for our consideration.
We feel sure that you have access to a Code of Georgia Annotated in the City of Adel and also that you can refer to the Code Sections which we are going to quote to you by going to the office of your County Attorney, Mr. Virgil D. Griffis, and reading these statutes. Of course, you are also at liberty to consult Mr. Griffis who should advise you with reference to your inquiry.
Official plats of counties and municipalities are referred to in Code Sections 69-1222 to 69-1225 and you will be interested in reading these sections of the Code and becoming familiar with them. We would suggest that you read the entire Chapter 23-4 of the Code of Georgia Ann. with reference to settling disputed county lines which includes Code 23-407 with reference to the compensation of the surveyor in making such surveys. This provision is not necessarily binding upon the county surveyor in other instances. We suggest also that you read the entire Chapter 23-11 of the Code of Ga. Ann., upon the subject of county surveyors. This chapter includes Code of Ga. Ann., 23-1101 through 23-1117.
The original maps of the lots of land as originally owned by the State of Georgia and granted by grants to individuals are a matter of record in the office of the Secretary of State. Any specific lot or group of lots of which you may require a plat could be obtained from that source. Of course, you understand that land lots lines and descriptions frequently are not accurately marked or retained over the years since the original grants of lots were made by the State. Boundaries are a matter for determination often by agreement and frequently by order of court when land disputes result in litigation.
We feel that if you review the Code sections which we have referred to you, and talk to your county attorney and obtain the experience of the county surveyor of your adjoining county or counties if desirable, that you will soon become acclimated to the duties and responsibilities of your office.

65
COUNTIES-Employees
Employees of Clarke County who assist Tax Collector are not eligible for membership in Employee's Retirement System of Georgia. Social Security taxes are payable by Clarke County and not Tax Collector.
April 27, 1962
Honorable W. Frank DeLamar, Executive Secretary Employees' Retirement System
We have reviewed your letter with reference to payment of F.I.C.A. taxes and membership of employees of the Tax Collector of Clarke County in the Employees' Retirement System of Georgia.
There is no statutory authority for the Tax Collector of Clarke County to employ individuals to assist in the performance of her duties. The employees who work for the Tax Collector of Clarke County are employees of the Commissioners of Clarke County. They are not engaged, paid, directed or controlled by the Tax Collector of Clarke County, and therefore, in our opinion can not be considered to be employees of the official in her official capacity whereby the Tax Collector would be liable for the payment of any employment taxes due under the Act. Since the employees assisting the Tax Collector are in fact employees of Clarke County, the coverage of these employees should be by virtue of the agreement entered into between the State of Georgia and Clarke County and the Department of Health, Education and Welfare, and payment for employment taxes should be made under such agreement by Clarke County.
In view of the fact that there is no merit system for employees of Clarke County which would enable them to be eligible for membership in the Employees' Retirement System of Georgia, it is our opinion that the employees of the county assisting the Tax Collector of Clarke County are therefore not eligible for membership in the Employees' Retirement System of Georgia.

COUNTIES-Forestry Unit (Unofficial)

County may supplement salaries of employees of Forestry Unit.

Bonorable W. Emory Walters County Attorney, Irwin County

March 30, 1962

Your letter requesting our opinion as to the legality of the County ~~plementing salaries of employees of the Irwin County Forestry blllt has been referred to me for reply. I realize that you have prob~ ly already read the provisions I am going to cite below, however, 0 make my answer complete I feel it is necessary to refer to them.

66
The first provisiOn necessary to mention in this matter would appear to be that part of the Constitution of Georgia that authorizes ' counties to tax which is found in the Georgia Code Annotated, Section 2-5701. The next provision that would seem to tie into this mat- . ter would be found in Georgia Code Annotated, Section 43-231 which ' reads as follows:
"43-231. Same; appropriation to carry out terms and provisions on State wide basis.-The funds required to carry out the terms and provisions of this law ( 43-229 through 43-242) and provide for the coordinated protection of uncontrolled fire on all forest lands in the State of Georgia, may be provided from annual appropriations made by the General Assembly for this purpose. To the extent such annual appropriation shall, in the judgment of the Forestry Commission, be inadequate or insufficient to provide forest fire protection for all counties or areas needing or desiring such protection, then any county or any person, corporation, organization, or other landowner therein may enter into an agreement with the State Forestry Commission, in the discretion of the latter, for adequate and sufficient forest fire protection and in such an event, shall pay to the Forestry Commission the additional funds necessary for such protection, as determined by the said Commission. Any county may levy a tax to provide the additional funds required for fire protection under this law. (Acts 1949, pp. 937, 938; 1950, pp. 101, 102; 1955, pp. 309, 320.)"
Next I refer you to Georgia Forestry Commission Booklet setting forth their objectives and policies. From that Booklet I quote Para graphs 4.103 and 4.701:
"Par. 4.103. Non-Merit Regulations. Personnel regulations for non-merit personnel will be the same as for merit personnel except when changed by specific policy or verbal order of the Director."
"Par. 4.701. Pay Grades. The Commission will maintain a compensation plan which assigns pay grades set up by the State Merit System. Non-merit positions will be assigned to the proper grade by the Director of the Commission."
It is my understanding that the positions that you have reference to in your letter are non-merit positions, and in view of this and the foregoing, it would seem that the Director of the Georgia For estry Commission could agree to a payment to these non-merit sys tern personnel by the County if the County so desires to make such payment and by coordinating it with him he would be in a position to include it in their overall legal compensation setup.

67
COUNTIES-Law Enforcement Officers (Unofficial)
Where sheriff or other enforcement officer is charged or indicted for Federal violation in performance of duties, the Attorney General may order a solicitor general to represent him in defense of the charge,
December 5, 1962
Honorable T. L. Johnson Sheriff of Warren County
This will acknowledge your letter asking if it is legal for the county to pay attorney's fees for a sheriff or his deputies who apparently have become defendants in an action in United States court for violation of civil rights as a result of having served a kidnapping warrant.
Since this matter is in federal court it would appear that the provisions of Acts 1956, p. 719, codified Code of Ga. Ann., 24-2921 would be applicable, and that you may wish to invoke the provisions of this statute, which for your convenience is quoted as follows:
"24-2921. Appointment of solicitor general as counsel for State officers investigated, charged, accused or indicted for Federal violation arising out of performance of duty.-The Attorney General of Georgia, in his discretion, is hereby authorized to order any solicitor general of the superior courts of this State to advise, counsel or represent any law enforcement official or employee or any other public official or employee of any political subdivision of this State, if such official or employee has been charged, accused or indicted relative to the alleged violation of any Federal statute or Federal rule or regulation of any kind, if such alleged violation occurred as a result of the performance of the official duties of such official or employee. Under the same procedure, any solicitor general may likewise be ordered to advise with any such official or employee who shall be investigated or questioned in any manner by any Federal official or employee relative to the performance of his duties, or relative to the laws, or ordinances, or rules and regulations, or judicial procedures of this State or any political subdivision thereof, or of any court within this State. (Acts 1956, p. 719.)"
't N~t knowing all of the facts and circumstances involved in your 81 uation we, of course, cannot be sure but this communication is senft to you as an informal and unofficial suggestion that the above re erred to statute may be applicable.

68
COUNTIES-Legal Advertising (Unofficial)
Official organ for publication of legal advertising within county must continually have paid circulation of 85 percent.
January 29, 1962
Honorable Joe T. Lane, Ordinary Clayton County Honorable Joe B. Mundy, Clerk Superior Court, Clayton County Honorable W. Loy Dickson, Sheriff Clayton County
This will acknowledge receipt of your request of this date concerning Georgia Code Annotated, Section 39-1103, that relates to the selection of official organs of counties.
Your first question is:
"Does a newspaper have to maintain 85% of its circulation paid for a two year period prior to becoming eligible for the legal ads or can they just be continuously published for two years and have an 85% paid circulation at the time they request legal ads?"
The Code Section as amended provides :
"39-1103. Selection of official organ.-No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication of sheriff's sales, ordinary's citations or any other advertising commonly known and termed 'official or legal advertising' and required by law to be published in such county official newspaper, unless such newspaper shall have been continuously published and mailed to a list 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." . . .
It would appear that the 85% paid circulation requirement could be construed as a continuing requirement.
Your second question is:
"Can the legal organ, after becoming so designated, allow its circulation to be 10, 20, or 50% or anything less than 85% paid and still qualify to remain as legal organ. In other words, after obtaining the legal ads does the legal organ have to maintain 85% of paid circulation or not?" It would appear that the 85% paid circulation require~ent would be continuous and that in the event the same dropped below 85% the officials designated in this Code Section could make a change in the official organ of the county.

69

COUNTIES-Military Leave of County Officers

Discussion of Georgia laws providing for military leave of public officials and employees.

February 12, 1962

Honorable Clyde Woolard Clerk, Superior Court Charlton County

This will acknowledge your letter indicating that you are in line
to be drafted into the armed forces of the United States, and expressing your understanding that if and when you are drafted you
will be compelled to resign from your office as Clerk of the Superior Court of Charlton County. You refer to Georgia Laws 1959, Vol. 1, and on page 118 the provision authorizing a public officer who becomes a voluntary member of any force of the organized militia or of any reserve force to absent himself for ~such military service for
a period not to exceed 6 months. This provision is now found in Ga. Code Ann., Section 86-1109 entitled "Rights of public officers and employees absent on military duty as members of the organized or
of reserve forces or reserve components of the armed forces of the United States".

You will note that the term "ordered military duty" is described in 2 (a) as follows:

"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."

Note that a leave of absence is provided for in the next following paragraph (b), and leave of absence while attending service schools 1~ provided for in (c) which provides for absence up to a total of SIX months during any four year period. You will also please note
the provision of section 2 (b) covering duty performed for a part or parts not exceeding a total of 30 days in any one calendar year,
and that such duty shall be deemed "ordered military duty" . . .

In your letter you asked us for any other information that we

~~?aeyrthyaovfe

that would pertain to contacting the Defense

your situation. Department of

We the

have taken the State and have

A~~ussed the situation with General Charlie F. Camp, the Assistant

.Jttant General. We understand that they have a National Guard ~lll at Waycross, Georgia which is near your residence and they

~erco~mrmy eantd Wt haaytc ryoosus

contact Ralph L. Lloyd at the and discuss your situation with

National him. We

Guard under-

t an generally that if you become a member of the Georgia Na-

Ional Guard that you must take 6 months training and that you

70
will be called up within 120 days from the time you enroll. You have no control over the actual time when you will be absent from your office as Clerk of the Superior Court for a period of 6 months which appears to be provided for under the term "ordered military duty," section 2 (c). We understand that thereafter for the remainder of your enlistment, which would be for three years, you would be required to drill and undergo training one night per week for 48 weeks per annum and we believe that you might be permitted to take this training at Waycross which is not too far from your home. We understand that once a year you have to be in attendance at a camp for a period of about 2 weeks, which is provided for under Ga. Code Ann., section 86-1109, 2 (b), which provides for ordered military duty not exceeding a total of 30 days in any one calendar year.
COUNTIES-Payment of Officials (Unofficial)
Legislature may constitutionally change county system of compensating officials from fee system to salary system and, where legislation properly enacted, by affording certain latitude in method of payment.
September 24, 1962
Honorable C. L. McCleskey, Jr. Tax Receiver, Ware County
This will acknowledge your letter with reference to local bill Acts 1961, Vol. 2, pp. 2465, 2472, to place certain officers in Ware County on a salary basis including -the tax receiver of your county. Section 13 of the above Acts reads as follows:
"Section 13. The provisions of this Act shall become effective January 1, 1965. Any officer of Ware County affected by this Act may, prior to the effective date of this Act, upon thirty (30) days written notice delivered by registered mail to the Board of County Commissioners of Ware County, elect to have his method of compensation changed from the fee to the salary system provided for by this Act beginning as of the first day of the calendar month immediately subsequent to the expiration of the thirty (30) day notice period. Any officer so electing shall not be entitled to any back salary."
Your question is if you can change your method of compensation from the fee to the salary system as is provided for in the above Section 13, instead of waiting until January 1, 1965 when the Act becomes effective without any election on the part of any of the county officials involved.
You will find provision in Code of Ga. Ann., 92-5301 providing commissions for tax receivers. The editorial note following this sec tion cites numerous instances where the method of compensation of tax collectors and tax receivers has been changed by the General

71

Assembly by general acts of local application, sometimes known as population bills. This, however, is not your situation in Ware County.

Of course, you are familiar with the general rule of law that statutes are presumed to be constitutional until the contrary appears. Certain constitutional provisions should be called to your attention found in Code of Ga. Ann., 2-401, 2-7901 and 2-7902. And, it appears that our Supreme Court, in the case of Houlihan et al, Commissioners v. Saussy, Ordinary, et al, 206 Ga., pp. 1, 8, decided a case which involves somewhat similar facts as exist in your situation except that the statute in that case did not include a provision similar to the one found in Section 13 of your statute. In the above case the court decided as follows:
"The act (Ga. L. 1949, p. 440) fixing the salaries of the Ordinary, the Clerk of the Superior Court, the Sheriff, the Tax Receiver and Tax Collector of Chatham County, is not unconstitutional as being violative of article 3, section 11, paragraph 1 (Code, Ann., 2-2301), or article 1, section 4, paragraph 1 (Code, Ann., 2-401), and the trial court did not err in so holding, and in directing the commissioners to pay the defendant's salaries in accordance with the terms of said act."

The above case of course includes citation of the constitutional provision found in Code of Ga. Ann., 2-7902 providing that "County officers may be on a fee basis, salary basis, or fee basis supple-
mented by salary, in such manner as may be directed by law". It may be concluded that the General Assembly has legislative authority to delegate the degree of latitude provided in Section 13 of your
1961 Act but we find no similar instance where such provision has been made in a local Act. We do find one instance in the case of Gay v. Laurens Co., 213 Ga., p. 518 where the General Assembly fixed the compensation for a county official to be a salary of not less than $6,000.00 nor more than $7,500.00, to be fixed each year by designated county authorities in a prescribed manner. This portion of the Act was not challenged.

One item which appears to exist in regard to your local statute

should be called to your attention as follows. There is provision in the ~tate Constitution with reference to notice of intention to ask for

thcal legislation, found in Code of Ga. Ann., 2-1915. It appears that

e 19?1 Act in question as published in Ga. L. 1961, Vol. 2, pp. 2465, 2.472, IS not accompanied by the customary affidavit of the pub-

hsher or the author of the bill as is provided for above, but there is

adnota~ion reading as follows: "See Enrolled Act for affidavit and

~ v.e~hsement". In this connection your attention is called to the

20.ec3IsGioan.,

in the case pp. 74, 82.

of Smith et al, Commissioners v. McMichael, et al, We particularly call to your attention the provi-

Sions of Section 4(a), found on pp. 76 and 77, reading as follows:

"(a) With respect to local bills, the Constitution provides that no local bill shall be passed until the prescribed advertisement with respect thereto has been had. It further provides that 'No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice

72
certified by the publisher, or accompanied by an affidavit of the author, to the effect that said notice has been published as provided by law.' This simply means that the required notice which must be attached to the bill becomes a part thereof either when copy of publication is certified by the publisher or proven by affidavit of the author. In either case the notice as thus proven becomes an integral part of the bill itself and as such must be embodied within the enrollment of such bill. That such was clearly the intent of the commission proposing the new Constitution, is shown by the published minutes of their proceedings. Vol. 1, p. 354 of the Records of the Constitutional Commission, 1943-44, shows the following colloquy after the proposal had been read : 'Chairman Arnall. Any discussion of it? If not, Mr. Harris moves the adoption of Paragraph XV. Judge Candler. Wouldn't it be better to require the author of the bill to make the affidavit, and would it not be better to provide the affidavit shall become a part of the journal? ChairArnall. If it becomes a part of the bill, as this provides, then it would be published in the act as a part of the law. Judge Candler. The affidavit would? Chairman Arnall. Yes, it would be a component part of the law. It would be a part of it and would have to be published. Isn't that your understanding? Mr. Harris. Yes, sir. Chairman Arnall. Any further discussion? The question is on the adoption of Paragraph XV of Section VII of Article III of the Committee report, which will become Paragraph XV, Section VII, Article III of the proposed new Constitution. Mr. Harris moves its adoption. Judge Candler seconds the motion of the gentleman who is chairman of the Subcommittee. Is there any discussion? If not, the question is on the adoption of Paragraph XV, Section VII, Article III, as read. It will be ordered adopted in the absence of objection. Is there objection? The chair hears none, and it is so ordered adopted.' "
You will readily observe by review of the above situation that the courts may be called upon to determine the validity of the 1961 Act. Whether the fact that the Enrolled Act contains the affidavit and advertisement required, and such affidavit and advertisement is not published in the official Acts, but is contained only in the Enrolled Act on file in the State Capitol, has not been decided by our courts. It is evident, however, that the intent of the Constitutional Commission of 1943-44, was that such affidavit and advertisement become part of the bill and be published in the Acts as part of the law.

73

COUNTIES-Peach County (Unofficial)
Discussion of powers of certain officials of Peach County and proposed changes in form of county government.
December 28, 1962
Honorable George B. Culpepper, III Fort Valley, Georgia
I wish to acknowledge receipt of your letter relative to a proposed change in the present form of county government of Peach County.
I am pleased to set forth below a memorandum brief which has been prepared concerning the questions you present in your letter, and I trust that it will be of help to you as information in the solution to the problem of the people in Peach County.
* * * * * * *
Certain questions have been submitted to the State Law Department concerning a proposed change in the present form of county government of Peach County.

The three questions presented are as follows: (1) Does the Peach County Grand Jury have the constitutional authority to appoint Commissioners of Roads and Revenues? (2) If so, can the Ordinary of Peach county hold the office of Commissioner on a Board of Commissioners? (3) Are there any additional problems raised by the resolution passed by the Peach County Grand Jury which should be discussed in this memorandum?

(1) The County of Peach was created by Constitutional Amendment, and said Law may be found in Georgia Laws 1924, Page 39. Under said Constitutional Amendment, the Ordinary of Peach County was authorized to manage the business of the County. By Special Act of the Legislature, Georgia Laws 1939, Page 703, an office of Com!llissioner of Roads and Revenues of Peach County was created, and It was provided that the Ordinary, by virtue of his office, will be the Commissioner.

The Ordinary is a Constitutional Officer with the constitutional

powers enumerated in Georgia Ann. Supp. 2-4102. Also, the Ordinary

IS v~sted with the powers and duties enumerated in Georgia Code

Section 23-701. From these two sources, it is apparent that the Ordi-

nary has the power to act as the Commissioner of Roads and Reve-

nues. Therefore, until a Board of Commissioners of Roads and Reve-

nues are elected or appointed or other forms of county government

a20re1

enacted, Ga. 487.

the

Ordinary

sits

for

county

purposes.

Bowen

v.

Lewis,

t' The Constitution of the State of Georgia, 1945, Article VI, SecIon 17, Paragraph I, Code Ann. Supp. 2-5201, provides:
"The General Assembly shall have power to provide for the cr~ation of county commissioners in such counties as may reqUire them, and to define their duties."

74
Further, the Constitution of 1945, Article XI, Section 1, Paragraph VI, (Code Ann. Supp. 2-7806), provides in part:
"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. . . ."
The above Constitutional provisions must be construed together. Wilson v. Harris, 170 Ga. 800; Bowen v. Lewis, Supra. These two cases make it crystal clear that the Legislature may by Special Act create Boards of Commissioners of Roads and Revenues, and that these are legislative offices rather than constitutional offices and are not required to be uniform throughout the State. There are no limitations or restrictions upon the General Assembly in the creation of such commissioners by Special Act.
Though Georgia Constitution 1945, Article XI, Section 2, Paragraph I (Code Ann. Supp. 2-7901), provides that county officers shall be elected by the qualified voters of their respective counties or districts and shall hold their office for four years, the case of Mar shall v. Walker, 183 Ga. 44, citing many Georgia cases, held that the above Constitutional provision did not apply to the office of Commissioner of Roads and Revenues but only refers to "such county officers as were in existence at the time of its adoption, and does not apply to offices thereafter created by Statute". Since the office of Commissioner of Roads and Revenues is a statutory office rather than a constitutional office, and does not have to be uniform throughout the State, the Commissioner of Roads and Revenues may be appointed rather than elected and must meet only those qualifications that are imposed by the special law creating the office.
It has been held that in the absence of special authorization, a grand jury has no power or jurisdiction to perform duties of a civil nature, but both by statute and by Constitutional provisions, the grand jury has been empowered to perform many civil duties. Hobbs v. Peavy, 210 Ga. 671. Our question is specifically whether or not the grand jury could legally be granted the power to appoint these commissioners. There does not appear to be any Constitutional limitation on the power of jurisdiction of the grand jury to appoint Commissioners of Roads and Revenues. The general law, Georgia Code 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."
At least two counties of this State have passed special laws authorizing their respective grand juries to appoint Commissioners of Roads and Revenues. Both Burke County and Murray County did this in 1929, said special laws being found in Georgia Laws 1929, Pages 548 and 678, respectively. Both Counties repealed these acts within four years of their passage and elected to be governed by a duly elected Board of Commissioners. While Murray County was

75

operating under the 1929 Act, a case arose which attacked the constitutionality of said 1929 Act, and in that case, Wilson v. Harris, Supra, it was held that the Act was constitutional.
It would appear, therefore, that the Grand Jury of Peach County may be authorized by special legislation to appoint the Commissioners of Roads and Revenues, and that qualifications for said Commissioners will be only those which are set up in said special act.
(2) The question next presented is may the Ordinary sit as a member of the Board of Commissioners of Roads and Revenues? As has been previously shown, the Ordinary is vested with Constitutional and general powers to perform the duties of managing the affairs of the county, until a Board of Commissioners of Roads and Revenues or other forms of county government are enacted. Georgia Code 23-701 provides as follows:

"Authority over county matters-The Ordinary, when sitting for county purposes, has original and exclusive jurisdiction over the following subject-matter, to wit:
"(1) In directing and controlling all the property of the county as he may deem expedient according to law. . . ."

Since the Ordinary is given exclusive jurisdiction over the property of the county when sitting for county purposes, it may be that a Special Law which seeks to divide the same powers between the Ordinary and the other members of a Board of Commissioners would be in conflict with said general law. The above general law would appear to be the only limitation, either Constitutional or otherwise, upon the proposed change of county government in Peach County whereby the Ordinary, after being duly elected, would be one of a three man Board of Commissioners.

It would seem to this writer that the individual who happens to

be. elected Ordinary of Peach County could sit on a Board of Com-

nussioners of Roads and Revenues, not in his official capacity as

Ordinary, but in his individual capacity, after having been appointed

by.the Peach County Grand Jury. It would seem that Special Legis-

lat.IOn could be passed by Peach County which would provide that

bemg elected Ordinary of the County of Peach would be tantamount

to being appointed by the Grand Jury as a Commissioner of Roads

bnd Revenues, and the individual who was elected Commissioner shall

e appointed by the Grand Jury in his individual capacity as a memb. er of the Board of Commissioners of Roads and Revenues. Of course,

It may be that the people of Peach County, in view of the uncertainty

?oefrw. oh~etthheerBoorarndoot ftCheomOmrdisisniaornyercso,uwldoubled

lawfully named prefer to name

as a three

memother

mdiVIduals as Board members and provide that the Ordinary would

serve as Clerk of the Board of Commissioners of Roads and Revenues.

(3) The resolution passed by the Grand Jury of Peach County, a. copy of which was furnished to the State Law Department, in line
{hive thereof, refers to one of the members of the proposed Board as e "duly elected Ordinary and County Manager". The term "County

76
Manager" may be a misnomer by said Grand Jury. If Peach County wishes to have a County Manager form of county government, they must comply in full with Georgia Code 23-9 which provides for a uniform County Manager form of government. It is not the purpose of this memorandum to discuss steps which must be taken to comply with said law, because it is the opinion of this writer, from a close reading of the correspondence and the Grand Jury's resolution, that Peach County does not want a County Manager form of government. Georgia Code 23-924 provides that this law shall not prevent any ' county from having a County Commissioner form of government by local acts now provided for by law, and it appears that this is the form of government that the County of Peach wants.
CONCLUSION
It is my opinion that the County of Peach may introduce Special Legislation providing that a referendum will be presented to the voters of Peach County, and if the referendum passes, henceforth the County of Peach will be governed by a Board of Commissioners of Roads and Revenues, to be appointed by the Grand Jury. Also, it is my opinion that the individual who is elected Ordinary may also be appointed to serve on this Board.
COUNTIES-Planning and Zoning Expenses (Unofficial)
Planning and zoning are considered public health functions, and expenses thereof need not be included in expenses for general county purposes for which there is a mill tax levy limitation.
December 28, 1962
Honorable H. T. Bomar, Chairman Board of Commissioners of Roads and Revenue, Douglas County
This is in reply to your letter requesting an opmwn as to the proper classification of an item in a county tax levy for planning and zoning purposes.
The real question involved is whether or not planning and zoning expenses are to be classified as current expenses for general county purposes, or may be more properly classified as some other purpose.
Georgia Code Section 92-3702, in effect, limits the mill levy which may be enforced for current expenses.
Planning and zoning purposes have traditionally been authorized as proper governmental functions under the police powers of a county in order to maintain the health and welfare of the people and are generally considered by many authorities to be a public health function. The Constitution of our State authorizes a tax levy by counties

77
for public health purposes and there is no mill limit as to the levy for these purposes.
I am enclosing a compilation of the purposes for which counties may levy taxes, which was prepared in 1957 and may be of some general use in connection with your problem.

COUNTIES-Sewerage Facilities (Unofficial)

Provision by Walton County of sewerage facilities for private nursing home would, insofar as public funds were used and in the absence of enabling legislation, be unlawful.

Honorable Thomas W. Ridgway County Attorney Walton County

September 25, 1962

I have received your letter in which you asked if the County of Walton can legally furnish facilities for sewerage disposal to a private nursing home and also to private homes adjoining said nursing home, when Walton County does not furnish the same services for any other citizens of the County.

You are undoubtedly familiar with Art. VII of the Georgia Constitution of 1945 concerning taxation, finance, etc. We find in Sec. IV, Par. I. (Code Ann., 2-5701): "The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except: . . .", and seventeen purposes are thereafter enumerated. It is universally accepted that the power of a county to tax is not inherent but is a delegated power, and exists only when and to the extent granted by the State. 20 CJS Counties, 279. Of t?e enumerated purposes above only two could be reasonably consrdered as pertaining or related to the construction and operation of sewer systems. The provisions for public health purposes might be considered as encompassing sanitary elimination of sewerage. Or, reasonable services for public improvements as may be fixed by law might include sewerage.

However, in reading further we find Sec. IV, Par. II (Code Ann., 2-5702) states:

"The General Assembly may district the territory of any county, outside the limits of incorporated municipalities, for the purpose of providing systems of waterworks, sewerage, sanitation, and fire protection; and authorize such counties to levy a tax only upon the taxable property in such district for the purpose of constructing and maintaining such improvements."

f'hrs then would preclude any assumption that the purposes found lll 2-5701 were meant to include sewerage, for were such the intent

78
of that Section, there would be no need for 2-5702 giving authority to the General Assembly to create sewerage districts.
In further support of this analysis we find constitutional amendments have been enacted for the specific purposes of the construction of storm sewers and improvements by counties outside the municipalities under 2-5701. (See Ga. L. 1958, p. 485, ratified November 4, 1958, DeKalb County; Ga. L. 1960, p. 1308, ratified November 8, 1960, Clarke County.) Also, under 2-5702 we find Ga. L; 1952, p. 489, granting Richmond County the right to construct sewers and assess costs, ratified November 4, 1952. The implication is clear that without such amendments these counties would have been without power to construct these sewer systems.
I might mention that several counties operate sewerage systems which are not under either of these constitutional provisions. However, in such cases authority is derived from Art. VII, Sec. VII, Par. 5 of the Constitution which authorizes counties and municipal corporations to issue revenue anticipation obligations for the purpose of constructing revenue producing facilities as authorized by the Act of the General Assembly approved March 31, 1937, as amended.
Thus in answer to your question, I must say that insofar as it were a tax supported function, provision by the County of sewerage facilities to a private nursing home would be an invalid exercise of power in the absence of enabling legislation.
COUNTIES-Sheriffs (Unofficial)
Procedure for cancellation of bond.
March 13, 1962
Honorable Robert D. Burns Atlanta 5, Georgia
Your request for information concerning the cancellation of the bond of a sheriff has been forwarded to me for reply.
Code Sections 24-2805, 24-2806, 24-2807 and 24-2808 relate to the bond of a sheriff. Code Chapter 89-4 relates to official bonds in general.
This is to advise that there is no authority for the Governor to officially release you from the terms or conditions of any bond, and I feel sure that if the proper application is made to the proper authority, to wit, the Ordinary of Tift County, reciting the fact of the existence of the new bond, an appropriate .order will be entered declaring the initial bond that has been cancelled and superseded to be no longer of force and effect.

80
I am sure that you are aware of the provisions of Code Chapter i 27-9, which relate to bail, surrender of the principal and the forfeiture of bonds. I am sure that you are also aware of the provisions found in Georgia Code Annotated, Section 27-511, which relate to the forfeiture of cash bond in traffic cases.
It would thus appear that where a sheriff has in fact performed a service either himself or by an authorized deputy in a criminal case before a judge or before a judge and a jury, he would be entitled to receive the named fee of $3.00 for such service.
To place a construction upon the provisions of this Code Section such as that an accused, by virtue of making his presence unavailable, could thereby defeat payment of a fee provided by law for the services of a sheriff, would, to say the least, be a strained construction. It would therefore appear that where the service was performedi.e., upon the call of the case by the solicitor or other prosecutor, and the sheriff or his lawful deputy calling the name of the accused in open court or otherwise performing the duties imposed upon him by law-upon such fulfillment of the requirements of law, he would be entitled to receive the fee.

COUNTIES-Sheriffs (Unofficial)

Fees payable to sheriff for endorsement of delinquent license tag applications limited to those applications actually endorsed by him.

April 26, 1962

Honorable Roland Attaway Sheriff, Johnson County

In reply to your letter of April 23, 1962, the penalty fee payable
to the Sheriffs of this State in connection with the endorsement of delinquent license tag applications was changed in 1953 by an Act
of the Legislature. Prior to 1953, Code Section 68-201 provided that the application for a license tag should

"... be first indorsed by the sheriff of the county wherein

the delinquent applicant resides, and not by an officer of any

other county; and for said indorsement the sheriff shall first

receive from the applicant the sum of $1. and the sheriff in-

dorsing such delinquent application shall indicate, with his

indorsement on said application, the total amount of the pre-

scribed registration fee together with the 20 per cent. penalty

herein provided. . . ."

-

The 1953 Act of the Legislature amended Code Section 68-201 and substituted the following language in lieu of the language heretofore quoted:

"... be first indorsed by the sheriff or a deputy sheriff,

81
chief of police or his designated representative, or by a State Highway Patrolman or by a State Motor Vehicle License Inspector; and for said indorsement the officer making said indorsement shall first receive from the applicant the sum of $1, and the officer indorsing such delinquent application shall indicate, with his indorsement on said application, the total amount of the prescribed registration fee together with the 20 per cent. penalty herein provided. . . ."
The effect of this amendment is to limit the Sheriff's compensation to the applications actually endorsed by him.
The Commissioner of Revenue has the authority to designate duties for his employees and agents and the Tag Agents of the various counties are motor vehicle inspectors and they may endorse delinquent applications.

COUNTIES-Sheriffs (Unofficial)

Sheriff may appoint chief of police of city within county as deputy

sheriff for purpose of serving process in a suit.

-

August 27, 1962

Honorable Bob Mitchell Sheriff of Stewart County

This will acknowledge your letter asking if you have authority to deputize a policeman of one of your cities to serve a process in a
suit. We understand that you have deputized the Chief of Police for this purpose.

Your authority to appoint deputies is contained in Code of Ga. Ann., 24-2811 and Code of Ga. Ann., 26-4901. These two Code sections read as follows :
" 24-2811. (4912) Appointment of deputy.-Sheriffs are authorized in their discretion to appoint one or more deputies, from whom they must take a bond with sureties. (Act 1799, Cobb, 575.)"
" 26-4901. (337 P. C.) Who may be appointed. Assuming to act without appointment.-No sheriff, mayor, or other person authorized by law to appoint special deputy sheriffs, cons~ables, marshals, policemen, or other peace officers, or detectives, to preserve the public peace or detect crime, shall ap~oint, as such special deputy, special constable, marshal, policeman, or other peace officer, or detective, any person who is n_ot 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 detec-

82
tive, without first having received his appointment in writing from the lawfully constituted authorities of the State. (Acts 1890-1, p. 220.)"
In the case of Strickland v. Strickland, 24 Ga. App. 200, it was held that where a constable is especially deputized by the sheriff and sworn in for the purpose of serving a particular writ, he becomes a de facto deputy sheriff, and service by him is legal. And, in the case of Powell et al v. Fidelity & Deposit Co. of Maryland, 45 Ga. App. 88(3), it has been held that where one acts as a deputy sheriff with the consent, approval, and acquiescence of the sheriff, who holds him out to the public as his deputy, his acts as such deputy, although he was not appointed in writing as required by law and did not take the oath of office required of a deputy sheriff and did not otherwise legally qualify as a deputy sheriff, are acts of a deputy sheriff de facto, and possess the same legality as the acts of a legally appointed deputy sheriff who is an officer de jure. It has been held in the case of Twiggs v. Hardwick, 61 Ga. 273(1), that where a constable was especially deputized by the sheriff, and sworn in for the purpose of serving a particular writ, he became a de facto deputy sheriff and service by him was legal.
We, of course, do not have access to the records of the City of Richland, Georgia under which the Chief of Police was employed, but unless there is something in the terms under which he was employed by the city which would preclude him from accepting other employment, we would then conclude that you would be authorized to deputize him to serve as a deputy sheriff for the specific purpose of serving a particular writ. It would be more appropriate for him to be sworn in by you even for this purpose.
COUNTIES-Sheriffs (Unofficial)
Sheriff not entitled to turn key fees where there is no actual locking up of prisoner.
September 11, 1962
Honorable A. Newell NeSmith Bleckley County Attorney
Thank you for your letter in which you request the opinion of this office concerning a sheriff's authority to receive turn key fees in certain instances.
There is no question that turn key fees as such are authorized.
"Turn key fees are still court costs which are chargeable to and collectable from the defendant upon his conviction for a criminal case." Lewis v. Gay, 215 Georgia 90.
As you pointed out in your letter, Georgia Code Ann., Section 24-2823, under the subhead "Criminal Cases," states as follows:

83
"For turning key on receiving prisoners in county jail$1.00.
"For discharging prisoners-$1.00."
In Lumpkin County v. Davis, 185 Georgia 393, at page 395, the court stated:
"4. Turn key fees of 60 for turning key on receiving, discharging or conducting prisoner before any court which monies are part of the jail fees to sheriff as ex-officio jailers allowed by the court are part of the costs. . . ."
However, the particular question presented by your letter is whether or not a sheriff is entitled to these when, in fact, there is no lock up. The Court of Appeals in the case of Sikes v. Charlton County, 103 Ga. App. 251, had before it the review of a Superior Court decision wherein the plaintiffs sought a declaratory judgment as to the amount of costs to which the ordinary and sheriff were entitled from fines and forfeiture paid into the Court of Ordinary on misdemeanor cases. Headnote 1 of the decision in that case is as follows:
"A sheriff is not entitled to a fee of $3.00 in a traffic case where the offender is not physically brought before the court and no service is rendered by the sheriff either before the court or before a judge and jury."
This would seem to indicate that in the absence of the performance of the service contemplated by the fee schedule either by the sheriff or one of his deputies there would be no costs arising. Therefore, even though an arrest is made and a traffic case follows, if there is no physical locking up of the accused in a jail, the sheriff would not be entitled to a turn key fee.

COUNTIES-Sheriffs (Unofficial)

Discussion of travel expenses payable to sheriffs.

December 18, 1962

Honorable A. Newell NeSmith Bleckley County Attorney

This will acknowledge your letter regarding the amount of travel

expenses which may be paid to the sheriff of the county for neces-

83;ry travel in criminal cases. We assume that your inquiry has to do

WI.th. instances where out-of-county trips are made by the sheriff in

cnmlllal cases.



~n~.Y,our8a9t-7te0n4tiaonnd

is

first called 89-705 with

to the provisions of Code of reference to salaries and fees,

Ga. pro-

VIdlllg for a quarterly statement of compensation and fees.

84
You will note that Code of Ga. Ann., 24-2822 provides that: "Sheriffs are entitled only to such fees or compensation as the law prescribes, or, upon an omission of the law, to such reasonable compensation as the grand jury shall award." This Code section is followed by the section which enumerates the fees for services rendered by the sheriff. There is provision for 12% per mile for following property out of the county with attachment, for every mile going and returning. This has to do with civil cases.
In the tabulation of fees as enumerated in Code of Ga. Ann., 24-2823, please note that the following provision, we believe, is the provision in which you are interested. It reads as follows:
"Personal services rendered out of the county on official business authorized by the county authorities, per day and actual expenses, $10.00."
The above provision is tabulated as applicable in criminal cases.
We now call to your attention the recent case of Lewis, et al v. Gay, 215 Ga. 90, 99 (3f) (3g) and (3h). This is the case in your adjoining County of Laurens in which Sheriff Carlos Gay litigated with the County Commissioners. Your especial attention is called to the following portion of the decision found on page 99 in paragraph 3(f).
"Code (Ann.) 24-2823, which fixes the fees and costs a sheriff may charge and collect for the performance of his official duties, provides in part: "Personal services rendered out of the county on official business authorized by the county authorities, per day and actual expenses ... $10.00". From this provision of the law it is clear that a sheriff can make out-of-county trips on official business and collect the prescribed per diem and the actual expenses incurred by him in making such trip only when such travel is authorized by the county's fiscal authorities."
Also, that decision, in paragraph 3 (g), refers to the provisions of Code of Ga. Ann., 23-1601 having to do with claims being presented to the county's fiscal authorities for audit and approval. Also note the provisions of 3 (h), and the reference to the provisions of law contained in Code of Ga. Ann., 89-704 and 89-705, to which your attention was called at the beginning of this letter. You may also wish to review the connected case of Gay v. Laurens County and vice versa, 213 Ga. 158; also the case of Gay v. Crockett, Judge, et al, 217 Ga. 288 and the case of Gay v. Laurens County and vice versa, 217 Ga. 594. These appear to be the last cases in which the Supreme Court has had occasion to review the subject of compensation and travel reimbursement for sheriffs. We believe that the 121/2 per mile provision in Code 24-2823 is applicable in civil cases, but is not necessarily the rate which may be fixed in reimbursing a sheriff for travelling in criminal cases.

85
COUNTIES-Sheriff's Fees (Unofficial)
County is required to pay sheriff's costs from general county funds in all disposed-of felony cases where such costs are not collectible or for any reason are not collected from defendants.
August 28, 1962
Honorable D. J. Law Sheriff, Thomas County
This will acknowledge receipt of your request for my opinion concerning the fees that you are entitled to receive in felony cases.
At the outset, you state that there is some question between you, the County Attorney and the County Commissioners of Thomas County in regard to this matter. To the end that there is no misunderstanding, I would not attempt to usurp the jurisdiction of the County Attorney nor the County Commissioners in that in county matters, jurisdiction is vested in them exclusively.
Georgia Code Ann., 24-2823, enumerates the fees that a Sheriff is entitled to receive for his services. This Code Section was amended by Georgia Laws 1955, page 383, and has been the subject of litigation.
In the case of Lewis v. Gay, 215 Ga. 90, 97, the Supreme Court said:
"An act which was approved on March 3, 1955 (Ga. L. 1955, p. 383), fixed a new schedule of fees which the sheriffs of this State are entitled to charge and collect for the official duties they perform in both civil and criminal cases. Such act also provides that sheriffs shall be entitled to the fees thereby fixed for all arrests in all criminal cases tried or otherwise disposed of in the superior, city, and ordinary's courts. And it further provides that 'all costs arising from services rendered in felony ~ases shall be paid from county funds, whether the defendant Is convicted or acquitted'; and that no item of criminal cost therein provided for is collectible out of the defendant until a~ter conviction, except costs accruing from forfeited recog:uzances. By this act we think that it was unquestionably the Intention of the General Assembly to require the counties to Pay the sheriff's costs from general county funds in all disposed-of felony cases where such costs are not collectible or for any reason are not collected out of the defendants. See, in this connection, Hubbard v. Henderson, 205 Ga. 438 (54 S. E. 2d 271). As to the plaintiff's claim for turnkey fees in the hbovementioned undisposed-of felony cases, and his right to
ave them presently paid out of general county funds, it was settled by this court's unanimous holding in Lumpkin County v: Davis, 185 Ga. 393 (195 S. E. 169), and the several cases there Cited, that such jail fees are a part of the costs in a criminal ~~se which are collectible from the defendant on his convicIon or from fines and forfeitures which may be lawfully ap-

86
plied to the payment of insolvent costs; and that the county is not required to pay such costs from general funds in its treasury. When that decision was rendered in 1938, Code 24-2823 provided that, 'whenever jail fees are chargeable to the county, the same shall be paid monthly: Provided that no local law regulating county jails or fixing salaries for jailers, or their fees, shall in any way be affected or repealed by this section'; and 77-103 contained identical language without the proviso. And it was held in the Davis case, supra, that those sections of the Code did not require or authorize a county to pay turnkey fees out of its general funds. As it relates to 'jail fees,' the act of 1955 made no substantial change in 24-2823 and 77-103, and turnkey fees are still court costs which are chargeable to and collectible from the defendant on his conviction of a criminal offense. However, under the act of 1955, these costs, like all other costs due the sheriff in disposed-of felony cases, became a charge against the county and must be paid from county funds when not collectible or collected from the defendant. Hence, that part of the defendants' answer which averred that the plaintiff was not entitled to a judgment in this litigation requiring them to pay out of the county's general funds the costs which he had earned in undisposed-of felony cases should not have been stricken."
In the dissenting opinion of Justice Hawkins, he stated:
"I dissent from the ruling made in subparagraph (c) of division 3 of the opinion, to the effect that the sheriff is not entitled to be paid by the county monthly for turnkey fees in felony cases. By the act of 1955 (Ga. L. 1955, p. 383), which was enacted since the decision of this court in Lumpkin County v. Davis, 185 Ga. 393 (195 S. E. 169), it is provided that 'All costs arising from services rendered in felony cases shall be paid from county funds, whether the defendant is convicted or acquitted.' It is only after a defendant has been convicted that he becomes liable for the payment of costs, and since, under the terms of the act of 1955, supra, the sheriff is entitled to be paid from county funds 'all costs' arising from services rendered in felony cases, 'whether the defendant is convicted or acquitted,' it is immaterial whether such felony cases have or have not been disposed of, and whether or not such costs are collectible from the defendant. I concur in other rulings made in the decision.''
The Court of Appeals, in the case of Sikes v. Charlton County, 103 Ga. App. 251, had before it the review of a superior court decision wherein the plaintiffs sought a declaratory judgment as to the amount of costs to which each (ordinary and sheriff) was entitled from the fines and forfeitures paid into the Court of Ordinary on misdemeanor cases. It is important to note that this case dealt with misdemeanor cases, and, insofar as the fees of the sheriff are involved, particularly in the "bond forfeitures,'' the Court there specified that the sheriff did not perform these services.

87
It would thus appear that the Sikes case is distinguishable in that it deals with misdemeanor cases in a specified court, to wit, the Court of Ordinary, whereas the Gay case deals with the fees that a sheriff is entitled to receive in felony cases.
Applying the reasoning of the Gay case, and particularly in view of the cases cited therein, it would appear that the fees that a Sheriff is entitled to receive in felony cases are enumerated in Georgia Code Ann., 24-2823, and that the same are a proper charge against the county. Also, applying the language of the Supreme Court quoted above, it would appear that the county is required to pay the Sheriff's costs from general county funds in all disposed-of felony cases where such costs are not collectible or for any reason are not collected out of the defendants.

COUNTIES-Social Security Coverage for Officials and Employees (Unofficial)

No conflict between laws providing salary basis for payment of Sheriff and Clerk of Court of McDuffie County and their employees and laws providing for Social Security coverage for officials and employees of State and political subdivisions.

February 12, 1962
Honorable Lon L. Fleming County Attorney McDuffie County
. Your letter with reference to payment by the County CommisSioners to the Sheriff and Clerk of the Court and to their deputies has been received and has had our careful attention. Acts 1959, Vol. 2, pp. 2568, 2571, provide that the Clerk of the Superior Court shall receive a salary of $6,500.00 per year and shall receive a contingent expense allowance for the purpose of paying clerical help in the amount of $3,000.00 per year. The Sheriff of McDuffie County shall receive a ~alary of $7,500.00 per annum and a contingent expense allowance I~! the amount of $3,600.00 per annum for the purpose of hiring deputies. Under the Act the contingent expense allowance in each instance could not properly be used for any purpose except as is specifically provided in the Act, that is for the purpose of paying clerical help In t~e ~lerk's office, and for the purpose of hiring deputies in the 8heriff s office.

Your attention is called to the fact that Social Security is provided

f?r. employees of political subdivisions, including counties, by the pro-

VISions of Acts 1957, pp. 586, 587, and this Act is found included in

Ga. Code Ann., Chap. 99-21. Your attention is specifically called to the

P~hreovSistaiotne

of in

Code Section 99-2102 (f) which includes the the term "political subdivision" and authority

counties of is provided

In Code Section 99-2104 for plans for coverage of employees of po-

88
litical subdivisions. We understand from the Employees Retirement System that under the provisions of the law authorizing counties to come under the Act, the contract has been made with McDuffie County and that the County employees in the Sheriff's office and in the Clerk of the Superior Court's office, including the Sheriff and the Clerk, are covered for Social Security. We have not reviewed this contract, which no doubt was executed in behalf of the County by the Board of Commissioners of Roads and Revenues. However we are sure that this contract, among other things, provides that the employees of the County are paid by the Board of Commissioners of Roads and Revenues, and that this Board is responsible for withholding the amount to be paid for Social Security for each employee covered by your inquiry.
We see no conflict between the provisions of the local Act placing the county officers on a salary basis, Acts 1959, pp. 2568, 2571, and the provisions of the law enumerated in Ga. Code Ann., Chapter 99-21 providing for State and political subdivisions and their employees to become covered for Social Security.
COUNTIES-Tax Surplus (Unofficial)
After applying taxes levied to purposes specified in levy, County may use residue for construction of a county airport.
December 11, 1962
Honorable Cecil D. Franklin Rockmart, Georgia
This is in further reply to your letter concerning the use of tax monies for acquiring and constructing airports.
I understand that your county has on hand certain monies which they acquired by virtue of ad valorem tax levies and, in addition, other funds such as fees, costs, etc., which they wish to use for airport purposes.
Georgia Code Section 92-3708 provides:
"Taxes raised for educational purposes, the support of the poor, or any specific purpose, shall be used for such purposes, respectively, and none other."
It is my opinion that after applying the taxes levied for the year to the purposes specified in the levy, any residue, if there should be any; could then be applied for the purpose of acquiring and constructing a county airport. Tate, et al. v. City of Elberton, et al. 136 Ga. 301.

89
COURTS-Clerks (Unofficial)
Approval by a clerk of court of a bond either for legality for sufficiency is a quasi-judicial function for which, in the absence of proof of wilfulness, malice or corruption, there can be no recovery against the clerk's official bond in the event an error of judgment results in a loss.
July 31, 1962
Honorable Ben P. Axson Clerk Chatham Superior Court
Your inquiry concerning a Clerk's liability for approval of a bond in a garnishment affidavit has been received. You referred to an earlier opinion of mine found in the 1958-1959 Opinions of the Attorney General on page 41 concerning approval of a bond as might be required under the Motor Vehicle Safety Responsibility Act. That opinion dealt with responsibility of approving and accepting bonds. Your question, as I undershmd it, concerns legal responsibility.
In the case of Spain v. Clements, 63 Georgia Reports 788, Mr. Justice Jackson, in delivering the opinion of the Court, said:
"It has been argued that the exercise of his official duty in receiving and filing this bond is judicial, and therefore the clerk and surety are not liable. The clerk is a ministerial officer. Every ministerial officer in such matters as taking bonds must to a certain extent judge; and thus be quasi a judicial officer in taking every bond, either in passing judgment on its legality or its sufficiency."
This language might indicate that all of the Clerk's duties in connection with a bond are ministerial for which the Clerk's bond might be responsible, but this statement was amplified later in the case of Luther v. Banks, 111 Georgia Reports on page 381, as follows:
"... the rule of law is well settled, that where an individual sustains injury by the malfeasance, misfeasance, or nonfeasance of a ministerial officer, acting or omitting to act, contrary to his duties, the law gives redress to the injured person by an action for damages. So that, being a ministerial officer, an action would lie against the clerk for malfeasance, misfeasance, or nonfeasance, and on his official bond, in the language . of our code, for 'the improper or neglectful performance' of duty."
H This language coupled with that found in Harris v. Barfield Music .ouse, 147 Georgia Reports 321, that the Clerk is clothed with a discretion to approve or disapprove the bond, and his discretion will not be interfered with unless it is manifestly abused, leads to the c?~clusion that the approval of a bond either for legality or sufficiency is at least a quasi judicial function for which there can be no recovery against the Clerk's official bond in the event that an error in judgment might possibly cause a loss. This is probably

90
stated better in the case of Gormley v. State, 54 Georgia Appeals Reports 843, beginning on page 847:
"As a general rule 'the failure of a public officer to comply with the laws governing and regulating his powers and duties ... usually subjects such officer to a civil action for damages.' 22 R. C. L. 478. It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that 'where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption.' 22 R. C. L. 486, 164. Our Supreme Court has said: 'The law is well settled that where public officials "are acting within the scope of their duties and exercising a discretionary power, the courts are not warranted in interfering, unless fraud or corruption is shown, or the power or discretion is being manifestly abused to the oppression of the citizen." City of Atlanta v. Holliday, 96 Ga. 546 [23 S. E. 509] .'"
COURTS-Comity (Unofficial)
Discussion of recognition in this State of laws of other states or foreign countries.
June 20, 1962
Honorable A. A. Coundouriotis Royal Greek Embassy Washington 8, D. C.
This follows our acknowledgment of June 1 responding to your inquiry of May 28, in which you request our advice with reference to recognition of adoptions made in Greece in accordance with the laws of the Kingdom of Greece. We will undertake to outline to you the provisions of law which we consider applicable in the State of Georgia as follows :
The Constitution of the United States, Art. IV, Sec. I1 (Code of Ga. Ann. 1-401) provides:
"1-401. (6672) Acts and records of the States. Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effects thereof.''

91
In our relationships with foreign countries, our courts would be governed by the statutory provisions found in Code of Ga. Ann. 102-110, which reads as follows:
"102-110. (9) 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.''
You will also observe that in such matters as adoptions, consideration should be given to the provision contained in Code of Ga. Ann. 102-108, which reads as follows:
"102-108. (8) Lex loci governs, when.-The validity, form, and effect of all writings or contracts are determined by the laws of the place where executed. When such writings or contracts are intended to have effect in this State, they must be executed in conformity to the laws of this State, excepting wills of personalty of persons domiciled in another State or Country.''
Comity is reciprocity. There is an old decision of the Supreme Court of Georgia in the case of Watts v. Kilburn, 7 Ga. p. 356, tried at the February Term, 1849, in which the Court, on p. 359, commented as follows:
"... 'If', says Huberus, 'the law of another country is in conflict with that of our own State, we should, in such a case, rather observe our own law, than the foreign law.' Liber 1, tit. 3, 11.
"Lord Ellenborough has laid down a similar doctrine. 'We always import,' says he, 'together with their persons, the existing relations of foreigners, as between themselves, according to the laws of their own country, except, indeed, where those laws clash with the rights of our own subjects here; and one or other of the laws must necessarily give way; in which case, our own is entitled to the preference. Potter v. Brown, 5 East, 124, 130.
"Chancellor Kent maintains the same rule in his Commentaries. That where the lex contractus and the lex fori, as to conflicting rights acquired in each, come in direct collision, . the comity of nations must yield to the positive law of the land. In tali conflictu magis est, ut jus nostrum quam jus alienum servemus. 4 Kent's Com. Lecture 39.''
You will observe that in the above old decision, which continues controlling, it is held that where the lex contractus and the lex fori, as t? conflicting rights acquired in each, come in direct collision, the ~mlb1ty of nations must yield to the positive law of the land. Watts v. ...u urn, 7 Ga. 356.

92
The law in the State of Georgia with reference to the adoption of children is codified in Chap. 74-4 of Code of Ga. Ann. There is ample authority for the rule 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 the procedure by which it was created under the foreign law is different from that required in Georgia. Watson v. Watson, 208 Ga. p. 512, 517.
Please note that the above decision substantially covers the law which is in effect with reference to the recognition in the State of Georgia of adoptions processed in other states of the United States. We have no decisions in our appellate courts regarding adoptions made under the laws of a foreign country. There are one or two decisions in our appellate courts regarding divorces granted in foreign countries which were held contrary to public policy in this State and were not recognized as valid under its comity. However, these decisions would not be considered in point in discussing adoptions in a foreign country. You can appreciate that the State of Georgia has had very little, if any, experience, and we have no specific law, other than the general provisions as outlined in this communication, which might be considered applicable for such a contingency.
COURTS-Costs
State does not pay court costs under Uniform Reciprocal Enforcement of Support Act.
March 16, 1962
Honorable Robert G. Walther County Attorney Floyd County
This will acknowledge receipt of your letter of March 14, 1962, requesting information concerning court costs incurred in connection with Uniform Reciprocal Enforcement of Support Act.
This is to advise that notwithstanding the provisions of the above described Act, found in Georgia Code Annotated, Section 99-914a, the State does not pay any court costs in any proceeding under the Act. The only payment that is made is the fee of the solicitor general as provided by law.
Forms for use under the URESA are furnished to the solicitors general inasmuch as they represent the petitioner whether Georgia is the initiating or responding State. I am enclosing for your information a complete set of the forms furnished solicitors by this office.

93
COURTS-Judge Emeritus (Unofficial)
Discussion of eligibility requirements for appointment and commission as Judge of Superior Courts Emeritus.
June 1, 1962
Honorable Douglas F. Thomas Judge, Superior Court, Brunswick Judicial Circuit
I received a letter from Governor Ernest Vandiver enclosing a copy of your letter with respect to your eligibility for appointment and commission as Judge of Superior Courts Emeritus. In your letter to Governor Vandiver you state that you were commissioned as Solicitor of the City Court of Jesup on January 1, 1941, and served continuously until you were appointed as Judge of the Superior Courts in September of 1949, which commission you have held continuously to date.
In my opinion your situation is controlled by the provisions of law set out in Georgia Code Annoated Section 24-2610a (3), which I quote as follows:
"Any other provisions notwithstanding, any judge of the superior court who had not made payments to the superior court judges retirement fund at the time of the passage of the amendment of this Chapter approved February 16th, 1950 and who shall be in his 19th year of service as judge of the superior court, solicitor general, judge or solicitor of a county or city court or any court of record of the State of Georgia from which an appeal may be taken directly to the Court of Appeals of Georgia, shall make payments as provided by law to the superior court judges retirement fund from January 1st, 1951 to date of appointment as superior court judge emeritus: Provided, that nothing in this subsection shall be construed so as to authorize the refund of any amounts previously paid into the superior court judges retirement fund of Georgia."
. The section above quoted was enacted by the General Assembly Ill the 1961 session and is set out in Georgia Laws of 1961, page 429, at page 432, which amendment was approved April 5, 1961.
In my opinion you are eligible for appointment to the office of J?dge of the Superior Courts Emeritus as provided for in Code Secbon 24-2603a in view of the fact that you have served more than 19 years as Judge of the Superior Court and as Solicitor of the City Court of Jesup, and have paid five per cent of the salary paid to you as a judge of the State of Georgia since September 1949, and you Would, therefore, be entitled to retire from office as Judge Emeritus at a salary of two-thirds of the salary now paid to you.

94
COURTS-Judges Salaries (Unofficial)
Salaries of Superior Court Judges fixed by General Assembly.
April 19, 1962
Judge's Committee on Legislation Salt Lake City, Utah
Your letter with reference to your proposed legislation to provide a supplement payable from the local authorities to the trial judges in your State has been received and has had our attention. We are happy to advise you as follows.
There is a constitutional provision in the State of Georgia, Article VI, Section XII, Paragraph I, providing that the judges of the superior courts each shall have out of the treasury of the State, salaries of $6,000.00 per annum (Code of Georgia Annotated, Section 2-4701).
The above section should be construed in the light of an amendment to the State Constitution, approved in 1956, which provides:
"The General Assembly may, at any time, by a majority vote of both branches prescribe other and different salaries for all the elective officers provided for in this Constitution, but no such change shall diminish the amount of any salary set forth in the Constitution." (Article III, Section XI, Paragraph I, Code of Georgia Annotated Section 2-2301.)
The concurrence of both the General Assembly and the county fiscal authorities in any salary supplement is required by the above section, Houlihan et al., Commissioners, v. Ryan, Solicitor-General, et al., 205 Ga., 734.
It should be noted that the salary of the Judge of the Southern Judicial Circuit of Georgia was increased by supplement to his compensation to be paid by the several counties in the circuit (Acts 1961, Vol. 1, p. 41, approved February 2, 1961).
We believe that you would be interested in having a copy of this legislation which appears to be the last enactment in Georgia providing a supplement from local authorities to the trial judges. You will note that this is local legislation applicable to only the one judicial circuit. We enclose a copy of this Act.
At the 1962 Session of the General Assembly of Georgia recently adjourned the General Assembly enacted House Bill No. 812 which provides an increase in the salary of the superior court judges to $16,000.00 per annum. We feel that you would be interested in having a copy of this Bill which is enclosed for your consideration. This brings us current on the subject of this inquiry, and we trust that this information will be of value to you.

95
COURTS-Judges' Salaries (Unofficial)
Salaries of Superior Court judges may be raised but not lowered by concurrence of both houses of General Assembly.
May 10, 1962
Honorable Aubrey W. Gilbert County Attorney Carroll County
Your letter with reference to House Bill No. 1215 which was ap~ proved on March 7, 1962, has been having our attention and con~ sideration. The annual salary of the Judges of the Superior Courts was fixed at $12,500.00 by Ga. Laws 1957, Vol. I, p. 273. Subsequently, at the regular 1962 session of the General Assembly the 1957 law was amended by House Bill No. 812, approved February 15, 1962, which set the annual salary of the Judges of the Superior Courts at the sum of $16,000.00.
Your attention is called to Art. III, Sec. XI, Paragraph I of the 1945 Constitution of the State of Georgia, codified in Code of Ga. Ann., Sec. 2~2301, which has been amended by Acts 1956, pp. 669, 670, the amendment having been ratified on November 6, 1956, and this provision of the Constitution now reading as follows:
"2~2301. Paragraph 1. Manner of changing; majority vote. -The General Assembly may, at any time, by a majority vote of both branches prescribe other and different salaries for all the elective officers provided for in this Constitution, but no such change shall diminish the amount of any salary set forth in the Constitution."
Your attention is called to the fact that Acts 1949, p. 406, author~ izing commissioners of Chatham County to supplement from county funds as court expenses the salary of the Judge of the Superior Court of the Eastern Judicial Circuit by $1,000.00 per year, and ordi~ nance passed by the Commissioners pursuant to the Act, was held constitutional. Houlihan et al, Commissioners v. Atkinson, Judge, et al, 205 Ga., p. 720; also see the case of Houlihan et al, Commissioners v. MacDonell, Judge, et al, 205 Ga., p. 733; also see the case of Houlih.an et al, Commissioners v. Ryan, Solicitor General, et al, and espeCially the first head note of the decision written by Chief Justice Duckworth holding that the concurrence of both the General Assembly and the county fiscal authorities in any salary supplement is re~ quired by the above Sec. 2~2301. You may also wish to review the decisions of the State Supreme Court immediately following the above citations found in Houlihan et al, Commissioners v. Heery, Chief Judge, et al, 205 Ga., p. 735, and Mulling, Jr. Judge, v. Houlihan, Commissioner, et al, 205 Ga., p. 735. Also see Houlihan et al, Commissioners v. Saussy, Ordinary, et al, 206 Ga., p. 1, and the case of Barnett, Sheriff v. Boling, et al, Commissioners, 214 Ga., p. 401.
Your attention is called to Acts 1953, Nov.-Dec. Session, p. 92, Which your letter correctly outlines as being local or special act fix-

96
ing a supplement to be paid by the counties of the Coweta Judicial Circuit to the Superior Court Judge. By this Act the portion to be paid Carroll County was $878.62 per annum. And, it appears from your letter that Carroll County has been supplementing the salary of the Judge by this figure on a monthly basis of $73.21. We now find that the House Bill No. 1215 is an amendment to the 1953 law found in Ga. Laws 1953, Nov.-Dec. Session, p. 92, which sets the supplemental salary of the Judge of the Coweta Judicial Circuit, striking the figure $878.62 and inserting in lieu thereof the figure $636.00, which amounts to $53.00 per month.
After you have had opportunity to review the above citations, we believe you will agree that House Bill No. 1215, being an act to amend the 1953 Act, should be followed by your County Commissioners hereafter in supplementing the salary of the Superior Court Judge of the Coweta Circuit.
COURTS-Justices of the Peace
Discussion of various duties and powers.
March 19, 1962
Honorable W. E. Hollinger Justice of the Peace Vidalia, Georgia
This will acknowledge your letter asking for a ruling on five separate and distinct questions regarding your duties as a justice of the peace. Please understand that the State Law Department is not permitted to furnish an official opinion to anyone except to the Governor and to the head of a State department on a matter in which the State is involved. However, we are happy to review your situation and furnish you certain citations which may be applicable to your several situations, and for the sake of clarity we will undertake to answer your questions by paragraph as you have outlined in your letter.
1st. You ask with reference to the purchase of legal forms. "The ordinary or tribunal having control of county matters, shall furnish, at the expense of the county, good and durable dockets, and as needed by the justices of the peace and constables of the county the necessary blank forms used for process and service by them, to each justice of the peace in their respective counties . . ." Code of Ga. Ann., 24-602. Also note the provision of Code of Ga. Ann., 24-1101 requiring each justice to keep a fair and legible book of entry of all proceedings had before him for the recovery of debts.
2nd. The fee for issuing a criminal warrant is provided for in Code of Ga. Ann., 24-1601. If the warrant is returnable to your court, and the defendant is brought before you for hearing, then the

97

other fees provided for in the enumeration of fees listed in Code of Ga. Ann., 1601, would be chargeable.
3rd. In giving consideration to the inquiries in the third paragraph of your letter we believe it appropriate first to quote from Code of Ga. Ann., 27-209 which provides that:
"An arresting officer may arrest any person cha'rged with crime, under a warrant issued by a judicial officer, in any county, without regard to the residence of said arresting officer; and it is his duty to carry the accused, with the warrant under which he was arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of that county.
"The county where the alleged offense is committed shall pay the expenses of the arresting officer in carrying the prisoner to that county; and the officer may hold or imprison the defendant long enough to enable him to get ready to carry the prisoner off. (Acts 1865-6, pp. 38, 39; 1895, p. 34.)"

Also note the provision of Code of Ga. Ann., 27-108 which provides that a warrant for arrest may be issued in any county, though the crime was committed in another. While a magistrate of one county of this State may lawfully issue a warrant against a person charged with committing a crime in another county thereof, he has no authority in such a case to hold a court of inquiry to determine
whether or not the accused shall be committed, - - - this authority ?eing vested only in a magistrate of the county wherein the crime 1s charged to have been perpetrated. Burrow v. Southern Railway Co., et al, 139 Ga. 733 (2).

The criminal jurisdiction of a justice of the peace extends throughout his county as to crimes committed therein. Code of Ga. Ann., 24-1502. And see the provisions of Code of Ga. Ann., 27-209 with reference to the authority of an arresting officer.

4th. You ask if your constable has authority to charge mileage,

When processing a paper out of your county. You will find in Code of

Ga. Ann., 27-209 provision with reference to the county where the

alleged offense is committed being required to pay the expenses of

the arresting officer in carrying the prisoner to that county. Also see H.a~ris County v. Brady, 115 Ga. 767 (3). And you will note the pro-

V~hIaslilonbseoef nCtiotdleedotfoGaa.feAenno.f,

24-821 that provides that constables 15 per mile by the most direct route

~rYomfortheeacphlapcreisoofnceor mcommitmmiettnetdctooujrat itloanthdedceolimvemreodn

jail of to such

any counconstable

0 be delivered to any county aforesaid; and when such delivery is

rade, such constable shall make out his bill, charging only for coming

0 said jail, and swear to the same; and when approved by the ordi~ry, commissioners of road and revenues, or other authority having

charge of the finances of such county, as the case may be, the same 8 all be paid by the county treasurer of said county.

5th. The first portion of your inquiry as contained in the fifth

98
paragraph of your letter may be answered by again referring to Code of Ga. Ann., 27-209 hereinbefore quoted and also see the provisions of Code of Ga. Ann., 27-1101 which includes provision that all criminal cases shall be tried in the county where the crime was committed.
Answering the last portion of your fifth inquiry with reference to bond to be assessed and approved, and your inquiry should the justice of the peace handle this or let the sheriff do so, there are numerous provisions of our law in regard to bail, such as giving bail in a court of inquiry (Code of Ga. Ann., 27-418); for the giving of bail before a judge of the superior court (Code of Ga. Ann., 27-901); requiring acceptance of a reasonable amount of bail in misdemeanor cases (Code of Ga. Ann., 27-902); that the rule nisi shall operate as a supersedeas on motion for new trial in criminal cases (Code of Ga., 70-308).
We believe that it would be appropriate for you to review the provisions of Code of Ga. Ann., 27-901 which includes the language: "All other cases are bailable by the committing court". And note the case of Reid v. Perkerson, 207 Ga. 27, 29 (4) with reference to bail in criminal cases from which we quote.
"According to our practice and procedure, the amount of bail to be assessed in each criminal case is left to the sound legal discretion of the court required to fix it and, in the absence of a flagrant abuse of such discretionary power, his action will not be controlled."
You may also wish to review the provisions of Code of Ga. Ann., 27-902 which provides that:
"The sheriffs and constables shall accept bail in such reasonable amount as may be just and fair, for any person or persons charged with the offense of a misdemeanor, provided that the sureties tendered and offered on said bond are approved by a sheriff of any county."
And see the case of Olive Simpson v. William H. Robert, 35 Ga. 180, 181 (4).
"The committing magistrate may authorize the sheriff to imprison the offender until he enters into a recognizance for his appearance to answer for the offense, and his bond taken by the sheriff is legal."
You will readily observe from a review of these several citations which we have furnished you that many varying situations maY come to the attention of your court in administering your duties in criminal procedure, which may call for due discretion upon the part of the court. And, it may be appropriate for you, whenever in doubt, to call upon your county attorney for advice with reference to pro cedure. We believe that ordinarily the court would assess and ap prove bonds as provided for in Code of Ga. Ann., 27-418, and Code of Ga. Ann., 27-901, and the additional provision in Code of G~ Ann., 27-902 authorizing the sheriffs and constables to accept bad in misdemeanor cases.

99

COURTS-Justices of the Peace (Unofficial)
Jurisdiction, powers, proceedings and practice of courts of justice of the peace and notary public, ex officio justice of the peace, are identical.

Honorable Fred Terry Justice of the Peace Swainsboro, Georgia

March 19, 1962

This will acknowledge your letter with reference to jurisdiction of a justice of the peace and of a notary public and ex-officio justice of the peace. You ask the question does the ex-officio justice of the peace have the same jurisdictional power and authority, or is he required to act in the absence or disqualification of the justice of the peace.

The office of justice of the peace and the office of notary public and ex-officio justice of the peace are both provided for in the Constitution of the State of Georgia. The constitutional provision with reference to the ex-officio justice of the peace is found in Code of Ga. Ann., 2-4301 which reads as follows:
"Commissioned notaries public, not to exceed one for each militia district, may be appointed by the judge of the superior courts in their respective circuits, upon recommendation of the grand juries of the several counties. They shall be commissioned by the Governor for the term of four years and shall be ex-officio justices of the peace, and shall be removable on conviction for malpractice in office."

The statutory provisions creating the office of justice of the peace are found in Code of Ga. Ann., 24-401 and for notary public and ex-officio justice of the peace in Code of Ga. Ann., 24-501.

Please note the provision of the Constitution for uniformity of courts found in Code of Ga. Ann., 2-4401 which reads as follows:
. "I. Uniformity provided for.-Except as otherwise proVIded in this Constitution, the jurisdiction, powers, proceedings and practice of all courts or officers invested with judicial Powers (except City Courts) of the same grade or class, so ~ar as regulated by law, and the force and effect of the process, Judgment and decree, by such courts, severally, shall be uniform. The uniformity must be established by the General Assembly, and in case of City Courts, may be established by the General Assembly."

t' You will note that the uniformity provided for in the ConstituciOn has been established by the General Assembly for justices' ourts, Code of Ga. Ann., 24-1101.

lJ ,Your question appears to be answered in the case of Western nion Telegraph Co. v. Carter, 11 Ga. App. 499 (1) which we quote.

100
"Under the statutes of this State, a justice's court and the court of a commissioned notary public, ex-officio justice of the peace, are identical, having the same jurisdiction, powers, proceedings, and practice."
On page 500 of the above decision Justice C. J. Hill said:
"We think that, under the statutes of this State, a court of a justice of the peace and that of a notary public, ex-officio justice of the peace, are identical and of the same grade and class, having the same jurisdiction, powers, proceedings, and practice. The only difference is that a justice of the peace is elected by the people of the district, and a notary public, exofficio justice of the peace, is appointed by the judge of the superior court upon the recommendation of the grand jury."
COURTS-Justices of the Peace (Unofficial)
Discussion of laws relating to payment of justices of the peace.
May 7, 1962
Mrs. Hill G. Thomas Dublin, Georgia
This will acknowledge your letter asking if a clerk of the superior court has any authority to withhold cost belonging to a justice of the peace, or any percent of the same, for any purpose or under any order from any authority.
We feel sure that you can obtain access to the appropriate volume of the Code of Georgia covering criminal procedure, being Book lOA, Title 27. This Title covers the law with reference to fines, and the fine and forfeiture fund, sometimes known as the insolvent costs fund. There is provision for the justice of the peace found in Code Section 27-2906 and Code Section 27-2913. Also see Code Section 27-2928, which provides that "all justices of the peace and notaries public who are ex officio justice of the peace, and constables of the State of Georgia, shall be compensated in criminal cases in the waY and manner hereinafter prescribed." This Section is followed by Code Section 27-2929 which provides for approval of the bill of justices and constables by the clerk and judge of the superior court, and Code Section 27-2930 which provides that such approval shall operate as a warrant on the county treasurer. This is followed by Code Section 27-2931 which gives the ordinary of the county the duty to examine and approve such bill in the event that either the judge or the clerk of the Superior Court should fail or refuse to do so.
We do not know the facts which are the foundation for you letter and could not say finally if the clerk of the Superior Court is justified in not approving a bill as presented. We hope, however, that the Codef Sections which we have cited and which you may review will be o help to you.

101
COURTS-Justices of the Peace (Unofficial)
Discussion of laws pertaining to Justice Courts in cities having a population in excess of 5,000.
May 23, 1962
Honorable H. W. Wallace Rome, Georgia
Your letter addressed to Secretary of State Ben W. Fortson, Jr., has been referred to us for consideration. It appears that your father, Mr. J. L. Wallace, over 99 years of age, filed answers in two suits in the 1120th, Alto, District pleading no jurisdiction and pleading that both defendants resided in the 919th Militia District.
We gather that your father is interested in seeing the statute which provides jurisdiction in justice courts in cities having a population of over 5,000 inhabitants, which statute is found in Code of Ga. Ann., 24-902. In order that you may have this statute immediately before you we are quoting it to you verbatim as follows:
"24-902. (4699) Times and places for holding justice courts in cities.-All justice courts for militia districts embraced in whole or in part within the corporate limits of any of the cities having by the last authorized census of said city a population of over 5,000 inhabitants, shall have jurisdiction as fixed by the Constitution in and over said district and in and over said city, and shall hold their courts monthly at fixed times and places at some convenient place within said district or city, said time and place to be fixed as now provided by law. Said justices of the peace may hold their courts at the same or at different times or at the same or different places, as they may desire. (Acts 1889, p. 116; 1893, p. 55; 1906, p. 44.)"
You will please note that this statute has been referred to in the case of Brooks v. Mutual Loan & Banking Company, 95 Ga. 178, which c~se is followed in the case of Moye v. Walker, 96 Ga. 769 (2), and is discussed in the case of Starnes v. Mutual Loan & Banking Co., 102 Ga. 597. It appears that the constitutionality of the statute has been established in these cases.

COURTS-Justices of the Peace (Unofficial)

Notary public, ex officio justice of the peace, has a right to inspect the records of the justice of the peace, as has any other citizen.

H~uostniocreabolef

Wheeler Pinyan the Peace, 792 District

anton, Georgia

October 15, 1962

e Th!s. will acknowledge your letter asking if the notary public and X-officw justice of the peace of your district is entitled to access

102
to the books of the justice of the peace in your office. You also ask if the justice of the peace or notary public and ex-officio justice of the peace would be prohibited from using his office space (presumably provided by the county) for conducting a private business in the nature of a credit bureau.
The office of justice of the peace is provided for in Code of Ga. Ann., 24-401, which reads as follows:
"One justice of the peace in each militia district; term of office.-There shall be one justice of the peace in each militia district of the several counties, elected by the people of such district in the manner hereinafter prescribed. He shall continue in office for four years, unless sooner removed."
The statutory provision for commissioned notaries public is provided for in Code of Ga. Ann., 24-501, which reads as follows:
"Appointment, number, term of office, and removaL-Commissioned notaries public, not to exceed one for each militia district, may be appointed by the judges of the superior courts in their respective circuits, upon recommendation of the grand juries of the several counties. They shall be commissioned by the Governor for the term of four years, and shall be ex-officio justices of the peace, and shall be removable on conviction for malpractice in office. (Const., Art. VI, Sec. VIII, Par. I ( 2-4301) .) "
In the case of Western Union Telegraph Co. v. Carter, 11 Ga. App. 499 (1), it is said:
"Under the statutes of this State, a justice's court and the court of a commissioned notary public, ex-officio justice of the peace, are identical, having the same jurisdiction, powers, proceedings, and practice."
On page 500 of the above decision, Justice C. J. Hill said:
"We think that, under the statutes of this State, a court of a justice of the peace and that of a notary public, ex-officio justice of the peace, are identical and of the same grade and class, having the same jurisdiction, powers, proceedings, and practice. The only difference is that a justice of the peace is elected by the people of the district, and a notary public, ex-officio justice of the peace, is appointed by the judge of the superior court upon the recommendation of the grand jury."
Your attention is called to Acts of the General Assembly 1959, Vol. 1, p. 88, with reference to inspection of public records and pro viding that the public has the right to inspect public records. This Act of the Legislature has been codified and will be found in Ga. Code Ann., 40-2701, which reads as follows:
"Right of public to inspect records.-All State, county and municipal records, except those, which by order of a court of

103
this State or by law, are prohibited from being open to inspection by the general public, shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any citizen. (Acts 1959, p. 88.)"
It appears, therefore, that the records in the office of the justice of the peace are public records of a court and are open for inspection by the general public, including a notary public, ex-officio justice of the peace. We believe that this answers your first question.
In response to your second question we refer you to the case of McDonald v. Marshall et al., commissioners; et vice versa, 185 Ga. 438, where Justice Hutcheson said:
"A justice of the peace elected by the people, pursuant to the Code, 24-401, 34-2701, 2-3503, is not a "county officer" within the meaning of 91-703, providing that "ordinaries or other authorities (here the county commissioners) shall designate the rooms in the court-house to be occupied by each of the county officers," and therefore is not, as a matter of law or right, entitled to have a room in the court-house for use as an office or place of holding his court. See Graham v. Merritt, 165 Ga. 489 (141 S. E. 298) ; Code, 24-601, 24-901, et seq.; Reynolds v. Tarrant County, 78 Tex. 289 (14 S. W. 580) ."
It has been held in the case of Long v. The State, 127 Ga. 285, that a justice of the peace is an officer of the State, that the justice court over which he presides is a constitutional court and is a part of the State judicial system, and it follows that the court of the c?mmissioned notary public and ex-officio justice of the peace occupies the same status. Therefore it would appear that the office space In the court house provided for both you and the notary public and ex officio justice of the peace is provided at the pleasure of the county, and it is fundamental that such space should not be used for the operation of a private, commercial business activity.
COURTS-Notaries Public (Unofficial) ff"P!o~edure outlined for appointment of notaries public and ex 0 ICio JUstices of the peace.
July 2, 1962
Judge Clarice James Ordinary, Thomas County P . ~his will acknowledge your letter with reference to the approo?f~ ~ Procedure for the appointment of a Notary Public and Ex
ICio Justice of the Peace.
A Please note that the statutory procedure is found in Code of Ga. nn., 24-501, 24-502, 24-503. The provision in Code 24-503

104
requires the Clerk of the Superior Court to prepare and keep in his office a correct list of all the notaries public and ex officio justices of the peace showing the time of the expiration of the term of office of each one and such list is required to be accessible to the grand jury of the county at each term of court.
The grand jury makes recommendation and the appointment is made by the Judge of the Superior Court as is provided for in Code 24-501, and a commission is issued by the Governor as is provided for in Code 24-501 and 24-502. We do not find where any advertisement in a local newspaper is required and do not find any provision of law under which the ordinary of the county has any responsibility with reference to appointments.
COURTS-Peace Warrants (Unofficial)
After peace warrant is issued and bond required, power lies in superior court to dismiss or continue bond.
July 9, 1962
Honorable J. Burke Johnson Justice of the Peace Augusta, Georgia
This will acknowledge receipt of your letter with reference to peace warrants and especially whether another judge can dismiss a peace warrant without first advising the justice of the peace who issued the peace warrant after first having held a hearing.
The subject of bonds for good behavior is covered in Code of Ga. Ann., Chapter 76-1 and for your information we quote Code 76-101 as follows:
"Authority to require bond.-Any judicial officer authorized to hold a court of inquiry may, upon the information of others, under oath, or on his own motion, issue his warrant against any person in the county whose conduct is such as to justify the belief that the safety of any one or more of the citizens of the county, or the peace or the property of the same, is in danger of being injured or disturbed thereby; and upon the return of the warrant, the court in its discretion may require from such person a bond with sureties for his good behavior until the next term of the superior court of the county."
You will note that such a bond for good behavior may be required "until the next term of the superior court of the county."
Also, please note the provisions of Code of Ga. Ann., 76-201 on the subject of bonds to keep the peace which reads as follows:
"Authority to require bond.-Upon the information of any

105
person, under oath, that he is in fear of bodily harm to himself or his family, from another, or of violent injury to his property, any judicial officer authorized to hold a court of inquiry may issue his warrant against such other person, requiring his arrest; and if, upon the return thereof, the court is satisfied, upon hearing the evidence of both par~ies, that probable cause for such fear exists, he may require the accused to give bond, with good security, to keep the peace as against the person, family, and property of the affiant, and, on failure to give the bond, shall commit him to jail."
Code of Ga. Ann., 76-205 authorizes the superior court at any time to discharge the bond, unless there shall be a motion to extend it, accompanied by evidence to satisfy the court of the necessity of such extension. It appears, therefore, that under the law, the authority to discharge the bond vests in the superior court.
COURTS-Recording in Superior Court (Unofficial)
No requirement that credit unions record charters with the Clerk of any Superior Court.
April 19, 1962
Mr. James R. DeLay Atlanta 1, Georgia
This will acknowledge and reply to your letter relating to the recording of the charter of a credit union with the Clerk of a Superior Court.
There is no statutory provision providing for such recording by a credit union with the Clerk of any Superior Court.
However, since the credit union in question desired to have its charter recorded in the Superior Court, my only suggestion would be that it file with the Clerk of said Superior Court a copy of its charter and not the original charter as granted by the Secretary of State.
Perhaps, in the case in question, the credit union can now supply the Clerk with a substitute copy for the Clerk to keep and record.

106

COURTS-Reporters

Payment of expense allowance to court reporters pursuant to 1961 Act of Legislature for expenses incurred after passage of the Act
was authorized though Act was not amended to provide appropriations for payment until 1962.

March 19, 1962

Honorable B. E. Thrasher, Jr. State Auditor

You have requested an opinion as to whether or not official court reporters can be paid the travel allowances provided for by the Act
of April 5, 1961, retroactively to April 5, 1961, or whether they should have such travel allowances effective from the date of the approval of the Act of February 13, 1962, providing that the travel allowances shall be paid from the appropriations made by the General Assembly for the cost of operating the superior courts.

The Act of April 5, 1961 (Ga. Laws 1961, p. 355) provides that

from and after the passage of the Act the Treasurer of the State of 1
Georgia is authorized to pay from the State Treasury the sum speci- I

I fied by the Act "as contingent
duly appointed reporter for the

expense and travel allowance superior courts in all judicial

to each circuits

1

of the State of Georgia," such payments to be in addition to the .

_compensation of such reporters already provided for by law.

The Act also provides for annual certification by the judge or 1

presiding judge of each judicial circuit of the names and addresses ;

of the duly appointed reporters for each such circuit. The amount to r

which each reporter shall allowance is determined

be entitled as contingent expense and travel with reference to the number of counties

.1

in the circuit.

I The Act of April 5, 1961, while directing that such payments be 1
made by the Treasurer from the State Treasury, did not expressly

provide that such payments should be made from the appropriations made by the General Assembly for the cost of operating the superior courts. Accordingly, the Act was not construed as making an appro-

i11

priation for the payment of the contingent expense and travel allow-~

ances.

The court reporters who are entitled to the allowances provided ;
for by the Act of 1961 are the duly appointed reporters for the supe- 1
rior courts. Manifestly the Act means that the persons who are en- 1 titled to the allowances are the court reporters appointed by the ~ judges of the superior courts pursuant to Chapter 24-31 of the Code
of Georgia of 1933. The duties of such reporters are prescribed bY law and they are required to be duly sworn in open court faithfullY to perform all the duties required of them by law. It seems clear, ,
therefore, that the duly appointed court reporters are officers of the superior courts. This question, however, was set at rest by the ,
amendatory Act of 1962, which expressly provides that such dulY 1
appointed reporters are declared to be officers of the superior courts.,

107

The amendatory Act of 1962 simply amends Section 4 of the Act of 1961 (Ga. Laws 1961, p. 354) by adding a new section to provide that the contingent expense and travel allowances provided for by the Act of 1961 shall be paid from the appropriations made by the General Assembly for the cost of operating superior courts.
The Act of 1962 further provides that the amendatory Act shall be effective as of the date of the approval of the Act of 1961, that is, as of April 5, 1961.
The General Assembly having provided that from and after the passage of the Act of 1961, each duly appointed court reporter should be entitled to the contingent expense and travel allowances provided for by the Act of 1961, it seems clear that the right of each such court reporter to be paid the contingent expense and travel allowances provided for by the Act became effective on April 5, 1961, and that thereafter each such reporter was entitled to receive the allowance provided for by the Act.
The allowances could not be paid, however, because the Act of 1961 had not directed that they be paid from the appropriations made by the General Assembly for the cost of operating the superior courts. The Act of 1962 supplied this deficiency.
It is the general rule that "laws prescribe only for the future; they cannot impair the obligation of contracts, nor, usually, have a retrospective operation." Ga. Code 1933, Sec. 102-104.
But the rule stated is a rule of construction, not one of legislative power. While it is well settled that statutes will not be construed to have retrospective operation unless their language imperatively requires such construction (Walker County Fertilizer Co. v. Napier, 184 Ga. 860, 869), it is equally well settled that in all interpretations the court shall look diligently for the intention of the General Assembly and that where the Act does plainly and distinctly declare its meaning, it is not open to construction and the courts have nothing to do but enforce it (Neal v. Moultrie, 12 Ga. 104, 110; Atkins, v. State, 154 Ga. 540, 542; Georgia Casualty Co. v. Jones, 156 Ga. 664, ~66; Standard Oil Co. v. State Revenue Commissioner, 179 Ga. 371, 75).

~ffTech_heveAacst

of 1962 plainly and distinctly provides of the date of the approval of the Act of

that 1961.

it shall be This being

rue, the Act of 1962 must be given retroactive effect unless to do so

Would offend some constitutional principle.

. A~ticle 1, Section III, Paragraph II (Code Sec. 2-302) of the Consbbtutwn of Georgia provides that "no . . . retroactive law . . . shall e Passed."

~~nBs~httutthieonSufoprrbeimdse

Court of Georgia has consistently said the passage of only those retroactive,

that "our or rather

~t:ospective, laws which injuriously affect the vested rights of

~~~zens" (Bullard v. Holman, 184, Ga. 788; Darby v. Cook, 201 Ga.

' 310, and cases cited).

108
Since the Act of 1961 entitled each court reporter to the contingent expense and travel allowances provided for by that Act, and the Act of 1962 simply provides from what appropriation they shall be paid, it necessarily follows that the Act of 1962 (House Bill 710) even though expressly made retroactive or retrospective in operation, is not for that reason invalid.
The case referred to in the request for an opinion is evidently that of Maynard v. Thrasher, State Auditor, 77 Ga. App. 316. In that case a suit for declaratory judgment was filed by one claiming to be a dealer in motor fuels for the 2% of taxes imposed by the State on motor fuels sold by him. The State Auditor refused to approve the payment upon the ground that there was no appropriation to pay the refund. The Court agreed with the State Auditor, saying that "the sole question for determination is whether there exists an appropriation from which the refund sought can be paid."
That case is not controlling here. It probably would have been controlling had the Act of 1961 not been amended.
Since the Act of 1961 was amended by the Act of 1962, which expressly provides that the contingent expense and travel allowances provided for by the Act of 1961 shall be paid from the appropriations for the cost of operating the superior courts, there is an appropriation, and the question here is not controlled by Maynard v. Thrasher.
Accordingly, it must be said that since the Act of 1962 expressly provides that it shall be effective as of April 5, 1961, the date of the approval of the Act it amends, and since to construe the Act in accordance with the stated intent of the General Assembly offends no provision of the Constitution, it necessarily follows that the court reporters are entitled to be paid from the date of the approval of the Act of 1961, that is, from April 5, 1961.
COURTS-Representation by Counsel (Unofficial)
Discussion of provisions of Georgia law relating to availability of counsel for indigent persons.
March 28, 1962
Honorable A. Pratt Kesler Attorney General, State of Utah
This will acknowledge your letter of inquiry with reference to what provision has been made in the State of Georgia to provide counsel for the indigent.
There is adequate provision in the State Constitution of Georgia for taxation to provide assistance, medical care, etc., for the indigent. See Code of Ga. Ann., Section 2-5501 (7). There is a similar constitutional provision authorizing the counties to levy a tax for the

109
same purpose, which may be found in Code of Ga. Ann., Section 2-5701 (11).
Our State Constitution in Article I, Section I, Paragraph V, found in Code of Ga. Ann., Section 2-105, provides for benefit of counsel and reads as follows :
"Every person charged with an offense against"the laws of this State shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded; shall have compulsory process to obtain the testimony of his own witnesses; shall be confronted with the witnesses testifying against him; and shall have a public and speedy trial by an impartial jury."
The duties of attorneys at law to defend the oppressed is found in Code of Ga. Ann., Section 9-601 (6), which reads: "Never to reject, for a consideration personal to themselves, the cause of the defenseless or oppressed." The court will appoint counsel where the accused cannot, because of poverty, employ counsel; though no compensation is paid, counsel is under the same responsibility as if he received pay. This is common practice in the State of Georgia. However, we have no provision for paying counsel except in capital felony cases. The General Assembly of Georgia in 1954 enacted legislation for appointment of attorneys for defendants in capital felony cases which we believe to be of sufficient importance to quote to you in its entirety and this Act found in Georgia Laws, November-December Session, 1953, pp. 478, 481, reads as follows:
"An Act to provide for the appointment of an attorney or attorneys to represent indigent defendants in criminal cases involving capital felonies and appeals from convictions thereof; to provide for payment of compensation and expenses to such attorney or attorneys therefor; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia as follows:
. Section I. A. Whenever it shall appear to the presiding ~ud~e of the superior court that a defendant or defendants, Indicted for a capital felony, is or are, because of his or her poverty, indigent and unable to pay an attorney for his or her defense, it shall be the duty of the court to appoint one or more attorneys for said defendant or defendants, and each of said attorneys so appointed shall receive a reasonable sum in compensation for his services in the superior court to be not less than fifty ($50.00) dollars nor more than one hundred fifty ($150.00) dollars, as determined in the discretion of the court, Plu~ such sums as have been actually and prudently expended otr Incurred in the necessary preparation and investigation of he case; provided however, that the expense shall not exce~d $500.00; Provided, that in any case in which a plea of guilty is entered the court may in its discretion reduce the

110
minimum compensation for services as above set out to a sum of not less than fifteen ($15.00) dollars.
B. Upon completion of all services by the attorney or attorneys so appointed under this section, the said attorney or attorneys shall submit to the court an affidavit containing an accurate statement of all services rendered and expenses paid or incurred; the court upon examination of said affidavit and approval thereof shall discharge said attorney or attorneys and shall enter an order directing the county treasurer, wherein the defendant or defendants were indicted, to pay to such attorney or attorneys such amount for said compensation and expenses as the court orders.
Section 2. A. In any capital felony case where there is a conviction and the defendant or defendants are desirous of appealing therefrom to the Supreme Court, and it appears to the presiding judge of the superior court that the defendant or defendants, is or are, because of his or their poverty, indigent and unable to obtain an attorney to prosecute his or their appeal, the court;
(a) In those cases, where the defendant or defendants has or have been represented by an attorney or attorneys appointed under Section 1 of this Act, shall authorize the said attorney or attorneys to prosecute said appeal; or
(b) In those cases, where the defendant or defendants has or have not been previously represented by an attorney or attorneys appointed under Section 1 of this Act, shall appoint an attorney or attorneys to prosecute said appeal.
B. In all cases where an appeal is filed through an attorney or attorneys appointed to prosecute said appeal under this section, the Supreme Court or the Chief or presiding Justice thereof, shall determine what reasonable compensation, if any, shall be allowed to the attorney or attorneys for services rendered in said case, not to exceed the sum of two hundred fifty ($250.00) dollars, plus all reasonable and necessary expenses paid or incurred in the prosecution of said appeal provided however that expenses shall not exceed $500.00. The court shall certify the amount to the State Auditor, who shall thereupon draw a warrant for such certified amount on the Treasurer of the State in favor of the person to whom such amount is due, and the Treasurer of the State shall thereupon make payment to such person. Provided, that the attorney or attorneys prosecuting said appeal shall file, along with the bill of exceptions in said case, an affidavit, which shall become a part of the record of the said case, and shall contain a statement by said attorney or attorneys that the said appeal is being sought in good faith and upon reasonable grounds, and the court is satisfied that the said appeal was made in good faith and upon reasonable grounds.
C. The attorney or attorneys so appointed under this sec-

111

tion shall also file an affidavit with the court containing a

statement of all services rendered and expenses paid or in-

curred in the prosecution of the said appeal, which shall be

examined and approved by the court or the chief or presiding

justice thereof prior to its awarding compensation and ex-

penses in said case.



Section 3. Before any attorney or attorneys shall be entitled to such compensation and expenses, as provided for in the foregoing sections, the attorney or attorneys shall also file
with the respective court, in which said services were rendered, an affidavit containing a statement that he or they has or have not directly or indirectly received, or entered into a contract to receive any compensation for such services or reimbursement for such expenses from any source. In the event the attorney or attorneys shall receive compensation from any source whatsoever for services rendered or expenses incurred in said case subsequent to receiving compensation from the county or the State under the provisions of this Act, such attorney or attorneys shall reimburse the county or State, or both, either on a pro rata basis or in full for all funds that have been paid to said attorney or attorneys.

Section 4. All laws and parts of laws in conflict with this Act are hereby repealed."

We trust that this information will be of service to you and we are pleased to give you this informal outline covering our constitutional and statutory provisions, in response to your inquiry.

CRIMINAL LAW-Arresting Officers (Unofficial)
Constable may accept bonds in misdemeanor cases if approved by sheriff but otherwise must effect arrest under a warrant and deliver arrested person with warrant to committing officer.
July 20, 1962
Honorable James W. Paris Barrow County Representative
1owTs:his will acknowledge receipt of your letter which reads as fol-

. "Please give me your opinion with reference to the follow-

lUg question. What authority does the Constable have with

reference to making arrests and taking criminal bonds after

_/'\' ,,.. ah.warrant is
Is hands?."

issued

from

the

Justice

of

Peace ~~\p~~.t~tli".i:rV~nl{,..~... " ,

Section 27-210 of "27-210. (920

tPh.eCG.)eoDrigliiageCnocdeeoAf nonffoitcaertead~(,rse~an.g~.,_~!~_otJMl&~!ws5:.0

. ~ ~~-r-.,.,~.

112
officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the person authorized to examine, commit or receive bail and in any event to present the person arrested before a committing officer within 72 hours after arrest . . . ."
Code Section 27-902 provides:
"27-902. Amount of bail in misdemeanor cases; acceptance by sheriffs and constables.-The sheriffs and constables shall accept bail in such reasonable amount as may be just and fair, for any person or persons charged with the offense of a misdemeanor, provided that the sureties tendered and offered on said bond are approved by a sheriff of any county. (Acts 1921, p. 241.)"
In the case of Paulk, Sheriff v. Sexton, 203 Ga. 82, Headnote 4, the Court held that an arresting officer has no authority to accept bond from one arresting under a warrant charging a felony.
In checking the statutes and decisions on the question about which you make inquiry, it is my personal and private opinion that a constable is authorized to accept bond in a reasonable amount in a misdemeanor case provided it was approved by the sheriff. Otherwise, it would be the duty of the constable to make the arrest under the warrant and carry the person arrested together with the warrant to the committing officer there to be disposed of by the committing magistrate.
CRIMINAL LAW-Bastardy Proceedings (Unofficial)
Citation of laws relative to bastardy proceedings.
April 11, 1962
Honorable W. L. Duke Justice of the Peace Baker County
This will acknowledge receipt of your letter inquiring with refer- : ence to your duties and responsibilities as justice of the peace, and your authority in bastardy proceedings. The Code section you mention requiring a bond of $750.00 appears to be found in Code of Ga. Ann., 74-301 which we quote to you as follows:
"74-301. (1330 P.C.) Proceedings against the mother.Any justice of the peace who. knows or has information on oath to that effect, of any woman having an illegitimate child, or being pregnant with one, which probably will become a charge upon the county, may issue a warrant directed to the sheriff or any constable of the county where the case may arise, re.quiring the offender to be brought before him to give security

113
to the ordinary of the county, in the sum of $750, for the support and education of the child until it shall arrive at the age of 14 years, or to discover on oath the father of the child. Act 1793, Cobb, 148.) Cited. 113/310, 314 (38 S. E. 764); 3 App. 449 (60 S. E. 128) ."
This section is followed in the Code of Georgia by Code 74-302 which provides for proceedings against the father and Code 74-303 covering the provision authorizing and requiring the father to give bond. You will want to read the entire Chapter 74-3 on this proceeding in order to become thoroughly familiar with your responsibilities and your required cooperation with the solicitor general of your circuit, and the ordinary of the county, and we note that you will have access to the Code of Georgia which is available to you in Newton, Georgia.

CRIMINAL LAW-Blue Laws (Unofficial)
Discussion of conduct of certain business activities on Sundays.
November 7, 1962
Mr. Robert L. Sewell, Chairman Reverend H. Dan Rice, Pastor Calvary Methodist Church Atlanta 10, Georgia

This will acknowledge your letter in which you call attention to an increasing number of businesses which are opening their doors on Sunday, and asking if anything can be done about this from a legal standpoint. You request advice as to the proper action which you can take to do something about this situation.

. The criminal statute on the subject of violating the Sabbath day ~s found in Code of Ga. Ann., 26-6905 which is quoted for your Information as follows:

" 26-6905. (416 P. C.) 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."

Certain exceptions to the above general provision constituting ~ ~~es~ity, as decided by our courts or by statutes, should be noted.

n e hght of modern-day methods of traveling by automobile, motor Power of which is derived from the use of gasoline, and in light of

P~~re~sbeGntth-diasy"wuoserktoof

which automobiles are put, sale of gasoline on necessity" within contemplation of above section.

a and

gra.o1~?m0g;

38 Ga. plants

App. 694. on Sunday

Sale of perishable farm products, seeds is authorized by Ga. Acts 1953, p. 202,

0fdGar.etAainlnf.o, od5s-6to1r3e. s may sell such products by this authority. Code

114
Local option to allow motion picture theatres to operate, and athletic events to take place on Sundays is provided for by the General Assembly of Georgia by Acts 1949, pp. 1007, 1008, found in Code of Ga. Ann., 26-6915 and 26-6916 which read as follows:
"26-6915. Sunday motion pictures and athletic contests; horse and dog racing; policy of State.-Since motion picture theatres are being operated, and athletic events, games and contests are being held, on Sundays in most of the principal i towns and cities of the State, it is hereby declared to be the policy of this State that a method should be provided whereby the citizens of any town or county may provide for the operation or prohibit the operation of motion picture theatres, and for holding of athletic events, games and contests, or for prohibiting the same, on Sundays. Nothing in sections 26-6915 to 26-6920 shall legalize horse or dog racing within the State of Georgia. (Acts 1949, pp. 1007, 1008.)"
"26-6916. Same; motion pictures and contests legalized; permits.-It shall be lawful for the operator or operators of any motion picture theatres and for those sponsoring or holding athletic events, games and contests to hold the same on Sunday: Providing, that before such shall be lawful the operator, operators or sponsors shall first obtain a permit from the mayor and council or other governing body of any municipal corporation within which the place of operation or showing are located; and if such theatre or place of holding such athletic event lies outside of such municipal corporation such permits shall be first obtained from the county commissioner or other governing body of the county in which said theatre or place of holding such games and contests are to take place. In the event Sunday movies are licensed in a community the operator shall show once each month a show on either a religious or educational subject. (Acts 1949, pp. 1007, 1008.)"
Any violation of any of the provisions of law above referred to may appropriately be called to the attention of the Solicitor General of the judicial circuit where the violation of the law has occurred.
CRIMINAL LAW-Blue Laws (Unofficial)
Discussion of certain activities prohibited on Sundays.
November 8, 1962
Mr. Frederick D. Lewis, Dean, School of Law The University of Kansas City
This will acknowledge your letter advising that your law school is doing research on Sunday closing laws and that you are in need of information as to what constitutes a "necessity" under the excep-

115
tion to the general prohibition of Sunday selling and/or labor, and the status of the enforcement of such statutes.
Your inquiry has been having our consideration and meantime an additional inquiry has been received from one of the local churches to which we have replied today, and we take the liberty of sending you a copy of our communication of this day sent to the Calvary Methodist Church in Atlanta, which letter we believe furnishes much of what you need.
Violating the Sabbath, intruding on camp grounds, disturbing schools and dancing on Sabbath, are treated in Code of Ga. Ann., Chapter 26-29 and the basic provision covering violating the Sabbath day is found in Code of Ga. Ann., 26-6905, quoted in the attached letter. Another portion of the above chapter of our Code has to do with running freight trains on the Sabbath, and the instances which may be considered an exception or a necessity. We believe it appropriate to quote this section to you in its entirety as follows:
"26-6903. (414 P.C.) Running freight trains on Sabbath.If any freight train, excursion train, or other train than the regular trains run for the carrying of mails or passengers, shall be run on any railroad on the Sabbath day, the superintendent of transportation of such railroad company, or the officer having charge of the business of that department of the railroad, shall be liable to indictment in each county through which such train shall pass, and shall be punished as for a misdemeanor. (Cobb, 399. Acts 1850, p. 338; 1882-3, p. 66.)
"The foregoing provisions shall not extend to:
"1. A train which has one or more cars loaded with livestock, and which is delayed beyond schedule time. Such train shall not be required to lay over on the line of road during Sunday, but may run on to the point where, by due course of shipment or consignment the next stock pen on the route may be, where such animals may be fed and watered, according to the facilities usually afforded for such transportation. (Acts 1873, p. 63.)
. "2. A freight train running over a road on Saturday night, If the time of its arrival at destination, according to the schedule by which it started on the trip, be not later than nine o'clock Central standard time, Sunday morning. (Acts 1874, p. 97; 1911, p. 70.)
. "3. Empty refrigerator cars intended for loading with perIshable freight and destined to icing stations or to points of Prospective loading; special fruit, melon and vegetable or ice trains, the cars of which contains no other freight except ice or perishable fruits, melons, vegetables, fresh fish, oysters, ~resh meats, ice, live stock, and other perishable goods of a hke character, and which trains shall be loaded and leave the station from which they start in this State before the hour of midnight on Saturday night previous to the Sunday on

116
which they are operated; and all such trains may stop at any stations in this State to take on and forward other cars of like perishable freight, which are ready to be transported. No company shall be compelled to run the trains mentioned in this paragraph, and all freight trains or cars thus loaded and coming into this State may run to any point of destination in this State or continue their run through the State on Sunday. It shall be lawful for railway companies to switch empty cars to ice plants to be loaded with ice, and to switch such loaded cars out on Sunday. (Acts 1894, pp. 66, 67; 1911, p. 70; 1912 p. 76.)
"4. Trains on railroads where the line of said railroad begins and ends in another State, and does not run a distance of greater than thirty miles through this State. (Acts 1899, p. 88; 1897, p. 38.)
"5. Solid trains made up of through freight cars, or cars loaded with perishables, live stock or ice, or empties for the transportation of same, reaching on Sunday any point upon a railroad in the State of Georgia, destined to points within and without the State, such trains may continue as solid through trains along the line of said railroad through the State, and may stop for the purpose of delivering such cars loaded with perishables, live stock or ice, or empties for transportation of same, at any station to which destined in this State, and may also stop and pick up at any station cars loaded with perishables, live stock or ice, destined to points within or without the State; said trains may stop also for the purpose of changing engines and crews, taking on fuel and water and to receive train orders, but they shall not stop for any other purpose than those enumerated in this paragraph; except that it shall be lawful for any railroad or railroad company to run on the Sabbath day through freight trains, to wit: such trains as do not stop at stations to discharge or receive freight in less than carload lots, and, also, mixed trains handling carload freight on railroads or branch lines of railroads of less than 100 miles in length. (Acts 1913, p. 57; 1921, p. 120.)
"6. Trains run under the orders or at the request of the Governor or the proper military authorities of the State, or at the request or under the orders of the proper military authorities of the United States; and it shall be lawful for the railroads to run such trains under the above conditions on the Sabbath day. (Acts 1912, p. 77.)"
Interfering with religious worship is prohibited and violation is punishable as for a misdemeanor. Code of Ga. Ann., 26-6901. Hunting on Sunday is likewise prohibited and punishable as for a mis demeanor. Code of Ga. Ann., 26-6906. Discharging a gun or pistol on Sunday except in defense of person or property is in the same category. Code of Ga. Ann., 26-6907. Causing a convict to do anY work on Sunday, except works of necessity, is punishable as for a misdemeanor. Code of Ga. Ann., 26-6909. Indecent bathing on Sun

117
day, intrusion on camp grounds, vending near camp grounds, and interrupting or disturbing schools are all offenses occupying the same category. Code of Ga. Ann., 26-6910, 26-6911, 26-6912, 26-6913.
Commercial fishing on Sunday is prohibited. Formerly all fishing was prohibited on the Sabbath, but the General Assembly by Acts 1961, p. 157, with certain proviso covering localities where effective, changed the law by prohibiting fishing on Sunday which requires a commercial fishing license. Code of Ga. Ann., 26-6908. Dancing in public places on Sunday is prohibited. Code of Ga. Ann., 26-6914.
You request our comments as to the nature and extent of enforcement of our laws for observance of the Sabbath. We believe that these laws are generally observed, and that there is no widespread violation or avoidance or evasion of any of these statutes. Violation of the above provisions and appropriate action for presentation of facts to the Grand Jury for indictment are the responsibility of the Solicitors General of the several judicial circuits of the State. We have only rarely had a complaint similar to the one received from the Calvary Methodist Church in Atlanta which is answered by our letter of November 7th, copy of which is attached for your information.

CRIMINAL LAW-Capital Offenses (Unofficial)

Discussion of crimes for which the death penalty may be imposed.
April 9, 1962
Mr. Don Strohl Cardington, Ohio

Your letter addressed to Governor Ernest Vandiver with reference ~o capital punishment in the State of Georgia has been referred to this office for consideration and reply.
~apital punishment in the State is provided for a number of cahpital crimes. The law in this State now provides that all persons
w o shall be convicted of a capital crime, and who shall have im-
bosed upon them the sentence of death, shall suffer such punishment Y electrocution instead of hanging. Code of Ga. Ann., 27-2512.

~. stT~h.hmeg

principal offense with capital punishment is,

which the of course,

State has the crime

to of

cope in adminmurder, which

~s e unlawful killing of a human being, in the peace of the State,

t~ a Person of sound memory and discretion, with malice afore-

II ou"~t, either express or implied. Code of Ga., Ann., 26-1002.

k.0ffiiCide, of course, is the killing of a human being, and is of three ~ndts-murder, manslaughter and justifiable homicide. The punish-

en of persons convicted of murder shall be death, but may be con-

118
finement in the penitentiary for life in the following cases: If the jury trying the case shall so recommend, or if the conviction is founded solely on circumstantial testimony, the presiding judge may sentence to confinement in the penitentiary for life. In the former case it is not discretionary with the judge; in the latter it is. Code of Ga. Ann., 26-1055.
Other capital crimes in this State include insurrection or atempt to incite insurrection, which shall be punished with death unless the jury recommends mercy. Code of Ga. Ann., 26-903. The wilful! 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, shall be punished by death or imprisonment for life, as the jury may recommend. Code of Ga. Ann., 26-1103. The crime of rape shall be punished by death, unless the defendant is recommended to mercy by the jury, in which case the punishment shall be for not less than one nor more than 20 years. Code of Ga. Ann., 26-1302. There is provision that kidnapping for ransom shall be punishable by death provided, however, the jury upon the trial of said case may recommend that the defendant be punished with life imprisonment. Code of Ga. Ann., 26-1603.
The crime of treason against the State of Georgia shall consist in levying war against her, adhering to her enemies, giving them aid and comfort, and shall be punished with death; but the punishment may be commuted in conformity with the provisions of Code of Ga. Ann., 26-1005 quoted above. Code of Ga. Ann., 26-801. The wil ful or malicious burning or attempt to burn any railroad bridge shall be deemed and adjudged arson, and shall be punished with death; but the punishment may be commuted in conformity with 26-1005 quoted above. Code of Ga. Ann., 26-2204. The crime of robbery by force or robbery by use of an offensive weapon shall be punished by death, unless the jury recommends mercy, in which event punishment shall be imprisonment for life: Provided, however, the jury in all cases may fix the punishment by imprisonment and labor in the penitentiary for not less than four years nor more than 20 years. Code of Ga. Ann., 26-2502. There is provision with reference to wrecking, or attempting to wreck, trains, cars, etc., and if death issues to any person from such acts, the offender shall be guilty of murder. Code of Ga. Ann., 26-7310. There is provision for at least one form of mayhem to be punishable by death. Code of Ga. Ann., 26-1208.
The above outline gives you the law in the State of Georgia with reference to crimes for which capital punishment is provided and generally the provisions covering the instances where a reduced penalty other than the death penalty may be imposed by the courts. These statutes appear to be the sentiment of the people. Otherwise, they would not be the law of this State and would not have been enacted by the General Assembly and continue on the statute books. This department, of course, is charged with the responsibility of upholding the law.

119
CRIMINAL LAW-Child Abandonment (Unofficial)
Discussion of laws relative to offense of child abandonment and jurisdiction of Courts to try offense.
December 5, 1962
Mr. Wilburn C. Gable, Jr. Anderson, South Carolina
This will acknowledge your letter asking for procedure following the issuing of a warrant by a Justice of the Peace in Hartwell, Georgia for a defendant charged with the crime of abandonment of his minor child. You ask for the minimum and maximum punishment, and for citation of the Code section which is applicable.
We are pleased to furnish you a photographic copy of Code of Ga. Ann.; 74-9902, which covers the subject of abandonment of child, etc. You will note that the Acts of 1946 repealed and superseded this section, making the section applicable to mothers. The Acts of 1952 added the proviso following the first sentence. The Acts of 1956 added illegitimate children to those protected by this section. Act 1960, p. 952 added the proviso relating to acquittal because of non-parenthood. The general proviso, as you will observe, indicates that voluntary abandonment and leaving the State makes the defendant guilty of a felony.
Jurisdiction in such matters is provided for in Code of Ga. Ann., 27-705, which reads as follows:
"27-705. Trial of defendant charged with bastardy, wifebeating, or abandonment upon accusation; written demand for indictment.-In misdemeanor cases in which the defendant is charged with the offense of bastardy, wife-beating, or abandonment, trial may be had in all superior courts of this State upon accusation unless the defendant shall in writing prior to his plea demand indictment by a grand jury. (Acts 1956, p. 337.)"

CRIMINAL LAW-Consecutive Sentences
Where prisoner sentenced to two consecutive sentences or fines, PaJ:ment of fine in one sentence will probate that sentence, after wf.hiCh second sentence would be in force and prisoner detained unless
me paid.

Honorable Robert J. Carter State Board of Corrections

June 28, 1962

This will acknowledge and reply to your letter relating to two s~ntences handed down by the Honorable Douglas F. Thomas, Superior Court Judge.

120
Since the two sentences in question provided separate, different, and distinct fines as well as the clear provision which is, "This sentence shall run consecutively with sentence in case No. 1996 passed upon this defendant this same date," I am of the opinion that these two sentences should be treated separately and upon payment of the fine and costs of court, either or both sentences shall be treated as probated.
If the fine is paid only in the first sentence, it should be probated until such time as the prisoner had served such sentence on probation. The second sentence would then be in force and the prisoner subject to detention unless he paid the fine in that case.
CRIMINAL LAW-Court-appointed Counsel (Unofficial)
Where accused was not indicted by Grand Jury, court-appointed counsel representing him at commitment hearing is not entitled to payment by county for legal services.
October 3, 1962
Honorable James W. Waldroup Douglas, Georgia
This will acknowledge your letter in which you request our views regarding the right of an attorney at law appointed by the Superior Court Judge to represent a defendant to receive compensation from the county for his services.
You advise that the attorney was appointed to represent a defendant charged in April 1962 with the offense of rape. The defendant was arrested, placed in jail and was unable to make bond, and in June thereafter the attorney was appointed by the Judge of the Superior Court to represent the defendant in a commitment hearing which resulted in the defendant being bound over. Subsequently the Grand Jury returned a No Bill, and apparently the attorney has presented a bill for his services for approval by the Judge of the Superior Court, and the Judge has questioned the legality of paying this bill because of the fact that no indictment was ever returned against the defendant.
There is provision in the Constitution of the United States, Article VI (Code of Ga. Ann., 1-806) with reference to the accused's right of benefit of counsel. See in this connection the case of Ferguson v. The State, 215 Ga. 117 (3a). Also note the provision in the Constitution of Georgia, Article I, Sec. I, Par. V (Code of Ga. Ann., 2-105) covering the right of a defendant to benefit of counsel, etc. Also note the provision of Code of Ga. Ann., 9-601 (6) providing for the duty of attorneys to defend the oppressed.
There is provision for appointment of attorneys in capital cases and provisions for compensation and expenses of attorneys in such

121
cases found in Code of Ga. Ann., 27-3001 through 27-3003 (Acts 1953, Nov. Sess., pp. 478, 480). This provision, however, appears by the terminology of the Act to be applicable where a defendant is indicted for a capital felony and is because of his or her poverty. In indigent and unable to pay an attorney for his or her defense. In such instance there is provision for the court to appoint an attorney who may subsequently be reimbursed for his services and expenses by the county treasurer.
However, under the outline as contained in your communication, it appears that the defendant was accused, was in jail, was given a commitment hearing, was bound over to the Grand Jury, but was subsequently given a No Bill by the Grand Jury. He was never indicted for the offense charged and we do not believe that the county treasurer could be charged with responsibility for the services of the attorney.

CRIMINAL LAW-Court Costs (Unofficial)

Costs of feeding prisoner while he is imprisoned awaiting trial are part of court costs collectible from defendant.

Honorable D. C. Campbell, Jr. Albany, Georgia

August 22, 1962

. This will acknowledge receipt of and thank you for your letter Ill which you request my opinion as to whether or not the actual cost of feeding a defendant while imprisoned pending trial can be collected from the defendant as a part of costs in the case.

Georgia Laws 1955, page 2874, as amended by Georgia Laws 1960, PDage 2224, and Georgia Laws 1962, page 2371, places the Sheriff of
ougherty County on a salary basis in lieu of a fee basis. I direct Your attention to the provisions of Section 5 thereof which imposes af .duty upon him insofar as concerns fees, costs, percentages, foreitures, penalties, allowances and other perquisites.

The Act creating the City Court of Albany is found in Georgia

Laws 1897, page 408. While there are several amendments to this

bAct, the amendment found in Georgia Laws 1933, page 287, contains Provision that the Act shall not become effective until approved

Ya referendum. The Act provided that the Commissioners of Roads

and Revenues would fix the salaries of the officers of this Court.

!his Act is mentioned solely for the purpose of illustrating that there ~s some question as to the applicability of Section 10 of the 1897 Act,

I~lol r t

hat Section their service

10 provides s as provide

that the of d by law for

ficer like

s s

shall r ervices

eceive in the

the fees Superior

ourt. In view of later amendments to the 1897 Act, it would appear

that the same fees are allowed for their services as are allowed for

122
services in the Superior Court and that such fees would be accounted for as provided in Section 5 of the 1955 law as amended.
Georgia Code Ann., 27-2801 relates to the costs of prosecution and the time that the same may be demanded of the defendant. Thereafter follow other provisions as to the payment of such costs and the remedy that is provided to enforce this liability.
Georgia Laws 1949, page 1168, and particularly the provisions thereof found in Georgia Code Ann., 27-2920, relate to costs and fees in criminal cases.
Georgia Code Ann., 24-2823, as amended, particularly by Georgia Laws 1955, page 383, in part provides:
"For feeding prisoners confined in the common jail, such f~es as may be fixed by the fiscal authorities of the county who are authorized by law to fix such fees."
Thereafter follow provisions as to the applicability of the Code Section.
Georgia Code Ann., 77-103 enumerates the fees to which jailers are entitled. In part it provides:
"Dieting prisoners confined in jail on any ground whatever, such fees as may be fixed by the ordinary, or other authority having charge of county affairs, of the county, who is hereby invested with the power to fix said fees."
This Section, too, provides that it shall not vary or repeal any local Act regulating the fees of jailers.
It would thus appear that it is within the jurisdiction and authority of the County Commissioners of Dougherty County to fix the allowance for costs of feeding prisoners. Since this authority does exist, and since you state in your letter that the actual cost of feeding the defendant is $1.25 per day, and there being no indication that this amount has not been fixed by the proper county fiscal authorities, it is assumed that the same has been fixed as provided by law. Therefore this opinion is based upon the premise that there is no question in this instance as to the amount of cost allowed, and that your request goes to the authority to collect such costs from a defendant.
The case of Lewis v. Gay, 215 Ga. 90, dealt with the fees that a sheriff was entitled to receive. Division 3 (c) dealt specifically with turnkey fees which are enumerated and allowed in Code 77-103. At page 97, the Court said:
"As to the plaintiff's claim for turnkey fees in the abovementioned undisposed-of felony cases, and his right to have them presently paid out of general county funds, it was settled by this court's unanimous holding in Lumpkin County v. Davis, 185 Ga. 393 (195 S. E. 169), and the several cases there cited, that such jail fees are a part of the costs in a criminal case which are collectible from the defendant on his conviction or

123

from fines and forfeitures which may be lawfully applied to the payment of insolvent costs; and that the county is not required to pay such costs from general funds in its treasury. When that decision was rendered in 1938, Code 24-2823 provided that, 'whenever jail fees are chargeable to the county, the same shall be paid monthly; Provided that no local law regulating county jails or fixing salaries for jailers, or their fees, shall in any way be affected or repealed by this section'; and 77-103 contained identical language without the proviso. And it was held in the Davis case, supra, that those sections of the Code did not require or authorize a county to pay turnkey fees out of its general funds. As it relates to 'jail fees,' the act of 1955 made no substantial change in 24-2823 and 77-103, and turnkey fees are still court costs which are chargeable to and collectible from the defendant on his conviction of a criminal offense. However, under the act of 1955, these costs, like all other costs due the sheriff in disposed-of felony cases, become a charge against the county and must be paid from county funds when not collectible or collected from the defendant." (Emphasis added).

In Lumpkin County v. Davis, 185 Ga. 393, at page 395, the Court stated:

"4. 'Turnkey' fees of 60 cents, 'for turning key on receiving, discharging, or conducting a prisoner before any court.'
which moneys are part of the 'jail fees' to sheriffs as ex-officio jailers, allowed by the Code, 24-2823, 77-103, are part of the 'costs' chargeable against defendants in criminal cases, collectible from them or from fines and forfeitures in insolvency cases, in the manner provided by the Code, 27-2801 to 27-2806, inclusive, and 27-2902 to 27-2914, inclusive; and a county is not liable therefor from general funds in the county treasury . . . (citing cases) "

In Brown v. Brown, 184 Ga. 827, in a full-bench decision, the SuPreme Court reversed the lower court decision, refusing to commit at husband to jail for the failure to pay alimony for the reason that he wife was enabled to pay the jail fees incident to such imprisonment.

~efFenrdoamntthwehialeboivme,prIisaomnedofpethnedinopgintrioianl

that the cost is assessable

of feeding a and properly

Included by the Judge of the City Court of Albany as a part of the

fees and costs collectible from the defendant after conviction.

124
CRIMINAL LAW-Criminal Warrants (Unofficial)
Discussion of effect of 1962 legislation on form of criminal warrants.
November 26, 1962
Honorable E. W. Hill, Solicitor City Court of Sylvania
This will acknowledge your letter on the subject of criminal warrants, in which you ask if we have developed a new warrant, or a revised warrant, to comply with the requirements of Act No. 945, Ga. L. 1962, p. 668, 670.
This Act was approved March 6, 1962, and if you will review it carefully you will find that a new Code section was added to be known as Section 27-103.1. Also please note that Code 27-104, which previously prescribed the form of affidavit, has been rewritten. The same thing is true of Code 27-105, which section has been completely rewritten, and we observe that the affidavit prescribed in Code 27-104, and the form of warrant prescribed in Code 27-105, are the same as they previously have been, except that there is an admonition in the 1962 Act in black type as follows: "(insert here all information describing offense as required by Code section 27-103 and Code section 27-103.1) ".
It appears, therefore, that the only change in the law is in the new Code section, the requirements of which are to be observed in the same form of affidavit and warrant as prescribed in the Code.
You may wish to review the case of Kumpe v. Hill, Sheriff, et al, 167 Ga. 284, where it was held that substantial compliance with provisions of the law with reference to affidavits and warrants for arrest of offenders against penal laws, and the form of such warrants, is all that is required.
CRIMINAL LAW-Disenfranchisement (Unofficial)
Persons guilty of commission of certain felonies, unless pardoned, are disfranchised. Bastardy is not such a felony, nor is abandonment unless abandoner leaves the State.
October 4, 1962
Honorable H. G. Rawls City Attorney City of Albany
Thank you for your recent letter inquiring as to whether electors are disfranchised by conviction of the crimes of bastardy1 and abandonment.2 In responding, I will assume that such persons have not been pardoned.
1. Georgia Code Ann., Sections 74-302, 74-303 and 74-9901. See For rester v. State (1941) 64 Ga. App. 298, 13 S.E. 2d 81.
2. Georgia Code Ann., Section 74-9902.

125
Disfranchisement of electors is governed by Paragraph I of Section II of Article II of the State Constitution3 which provides as follows:
"Par. I-The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons."
An analysis of the above provision reveals that if the crimes you. mentioned disfranchise, it would be by virtue of the clause specifying convictions of "any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary. . . ." Hence, we have two criteria to measure such a crime, moral turpitude and imprisonment in the penitentiary.
In conjunction with the imprisonment criterion, we should consider the following Georgia Code Sections:
"26-101. (2 P.C.) 'Felony' and 'misdemeanor' defined.The term felony means an offense, for which the offender, on conviction, shall be liable to be punished by death or imprisonment in the penitentiary, and not otherwise. Every other crime is a misdemeanor. (Cobb, 780.)
"102-103. (5; 2 P. C.) Meaning of certain words.-The following meanings 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 prisoners exclusively are confined at hard labor under the authority of any law of this state. (Acts 1957, pp. 477, 482.)
"27-2506. (1065 P. C.) 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. 119; 1956, pp. 161, 168; 1957, pp. 477, 482.)"
Apparently, the penitentiary imprisonment requirement of the
:----
3 Georgia Code Ann., Section 2-801.

126
above constitutional provision denotes felonies and not misdemeanors. Therefore, bastardy is eliminated as a disfranchisement crime because it carries only misdemeanor punishment.
The crime of abandonment is also a misdemeanor offense, except in cases where the abandoner leaves the state whereupon it becomes a felony offense punishable with imprisonment in the penitentiary. Clearly, in cases where an abandoner commits the felony offense and is punished by imprisonment in the penitentiary, the imprisonment requirement of the above constitutional provision is satisfied.
Therefore, we next must determine if the crime of abandonment involves moral turpitude. The Supreme Court of Georgia has defined moral turpitude, in its legal sense, as including "everything done contrary to justice, honesty, modesty, or good morals."4 The crime of abandonment involves the willful forsaking and desertion of one's child in a dependent condition,5 and, therefore, I believe such a crime involves moral turpitude.
In view of these authorities, it is my opinion that an elector who is convicted of the crime of abandonment and receives felony punishment by imprisonment in the penitentiary would be disfranchised.
CRIMINAL LAW-Fees (Unofficial)
Sheriff and justice of the peace are entitled to certain fees in criminal cases whether or not cases are nolle prossed.
August 10, 1962
Honorable Stephen Pace, Jr., Solicitor General Southwestern Judicial Circuit
This is to acknowledge receipt of your letter in which you asked whether sheriffs and justices of the peace are entitled to their respective fees in the event a criminal case is nolle prossed in the Superior Court.
George Code Ann., Section 24-2823 sets up a schedule for sheriffs, and among other things provides:
4. Holloway v. Holloway (1906) 126 Ga. 459, 460(1), 55 S.E. 191. See also: Huff v. Anderson (1955) 212 Ga. 32, 34, 2d par. 90 S.E. 2d 329, 52 A.L.R. 2d 1310; Hughes v. State Board of Medica1 Examiners (1926) 162 Ga. 246, 255, 134 S.E. 42; and 58 C.J.S., Moral Turpitude, p. 1200.
5. Bowling v. State (1940) 62 Ga. App. 540(1), 8 S.E. 2d 697; Faird banks v. State (1961) 105 Ga. App. 27, 29, 2d par., 123 S.E. 2 139.

127
"All costs arising from services rendered in felony cases shall be paid from county funds, whether the defendant is convicted or acquitted.
"Sheriffs shall be entitled to receive the fees provided for in this section for all arrests in all criminal cases, tried or otherwise disposed of in the superior, city and ordina:r:y's court.
"No local law shall be affected thereby: Provided, that if provisions be made by local or special law for special compensation, the sheriff shall not be entitled to compensation both under this section and under such local or special law, unless specifically provided for under such local or special law."
I would interpret the above quoted law to mean that the sheriff would be entitled to his fee even though the case was nolle prossed in the Superior Court.
Georgia Code Ann., Section 24-110 provides for compensation for ordinaries, sheriffs and clerks when existing laws do not provide for specific compensation.
Georgia Code Ann., Section 24-1601 sets up a schedule for fees for justices of the peace, including both civil and criminal matters. It is my opinion that the justice of the peace would be entitled to his fee as provided in this Section even though the case was nolle prossed.
CRIMINAL LAW-Felonies (Unofficial)
Felonies and punishment therefor discussed.
October 23, 1962
Honorable H. P. Gleason, Sheriff, County of Alameda Oakland 12, California
Your letter of October 17th addressed to Honorable S. Ernest Vandiver, Governor of Georgia, has been forwarded to this office for repl.y. The first paragraph of your letter reads as follows: "Please advise me regarding the definition of 'felony' in your state, punishment prescribed, and if you have any felonies that call for less than one year confinement and, if so, what are they."
~n reply to your first question, Georgia Code Ann., Section 26-101 defmes a felony and misdemeanor, and reads as follows:
"26-101.-"Felony and misdemeanor defined.-The term felony means an offense, for which the offender, on conviction, shall be liable to be punished by death or imprisonment in the Penitentiary, and not otherwise. Every other crime is a misdemeanor."
In reply to your second question, the punishment for felony in

128
this State ranges anywhere from one year in the penitentiary on up to life imprisonment and finally to death in the electric chair.
Your next question is "Do you have any felonies that call for less than one year confinement?" The answer to this question is no.
CRIMINAL LAW-Juveniles (Unofficial)
Discussion of laws pertaining to punishment of juvenile offenders.
March 9, 1962
Mr. Dennis Ichiyama Waipahu, Hawaii
Your letter of February 17th addressed to Honorable Ernest Vandiver, Governor of the State of Georgia, has been referred to the State Law Department for review and reply. Under the Georgia law we are not permitted to furnish an official opinion to anyone except to the Governor or to the head of a State department on a matter in which the State is involved. However, we are happy to give you this informal response to your letter and to advise with you with reference to the subject of capital punishment for juveniles, on which you are preparing a paper entitled "Death for Delinquents."
Homicide in this State is the killing of a human being, and is of three kinds-murder, manslaughter and justifiable homicide. Murder is defined as the unlawful killing of a human being, in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either express or implied. Code of Georgia Annotated, Sections 26-1001, 1002. A person shall be considered of sound mind who is neither an idiot, a lunatic, nor afflicted with insanity, and who has arrived at the age of 14 years, or before that age if su~h person knows the distinction between good and evil. Code of Georgia Annotated, Section 26-301. There is a provision of law in Georgia providing that an infant under the age of 10 years, whose tender age renders it improbable that he should be impressed with a proper sense of moral obligation, or be possessed of sufficient capacity to have committed the offense, shall not be considered or found guilty of any crime or misdemeanor. Code of Georgia Annotated, Section 26-302. The age of legal majority is, of course, 21 years but young people are, under the law, eligible to vote upon attaining the age of 18 years.
We have made what we believe to be considerable progress in the State of Georgia in dealing with the problems of youth. Laws haye been enacted, notably in 1951 and 1956, creating a system of Juv~mld Courts with jurisdiction of children and the word "child" is defme t as meaning a person less than 17 years of age, and the Juvenile Cour laws define the word "adult" as meaning a person 17 years of age or older. Our Supreme Court has held in the case of Hampton v-. Stevenson, 210 Ga. 87 that proceedings under the Juvenile Court .Act of 1951 are civil and not criminal, and that such proceedings do not,

129

therefore, violate the Constitution which provides in Article VI, Section IV, Paragraph I (Code, Annotated, Section 2-3901), that: "The Superior Courts shall have exclusive jurisdiction in criminal cases
where the offender is subjected to loss of life or confinement in the penitentiary." It was decided as far back as in the case of Osgood, et al v. The State of Georgia, 63 Ga. 791, that a child can be found guilty of murder. This case was decided at the September Term
1879, but the age of the child is not disclosed in the decision. A child under 16 years of age was tried and convicted of burglary, a felony,
in the case of Hicks v. The State, 146 Ga. 706, in 1917.

In later years our courts have followed the same general trend. In the case of Armstrong v. The State, 90 Ga. App. 173, the defendant was only 14 years of age.

"The defendant was indicted for murder in the killing of Robert Lee by cutting and stabbing him in the neck. The evi-
dence, briefly, shows: that the deceased and the defendant, together with several other young people, both boys and girls, went on a "spree" on Saturday night; that they went to several places and engaged in drinking and dancing, and in the
early morning they started home; that the deceased was operating a car in which the defendant and another girl were riding; that the deceased and one of the girls got out of the car; that the deceased drove a short distance from where the defendant and a girl companion were standing; then it was that
the deceased and the defendant became engaged in a difficulty; that the deceased took hold of the defendant and was endeavoring to get her to let him take her to the home of the defendant; that during this difficulty the defendant cut and stabbed the deceased in the neck and inflicted a wound from which the deceased died within a short time."

The defendant, indicted for murder, was convicted of voluntary manslaughter and the judgment of the lower court was sustained by the Court of Appeals on May 13, 1954.

In the case of Jackson v. Balkcom, Warden, 210 Ga. 412, the

defendant was indicted on July 21, 1953, for rape upon the person

to. 0f

a white female, be electrocuted

18 on

years old. He was tried, convicted and sentenced August 28, 1953. His attorney dismissed a pend-

ISng motion for new trial on the general grounds, and petitioned the

tate Board of Pardons and Paroles for commutation of the death

sentence to life imprisonment. On September 23, 1953 the plea for

crmmutation was denied, and the petitioner was resentenced to be

efectrocuted on October 14, 1953. The petitioner was under the age

0 16 Years at the time the alleged crime was committed. Jackson

tchaamt e

into court for the conviction

a prayer for the writ and sentence under

of habeas which he

corpus and asked was held be de-

clared illegal and void and that he be committed to the court having P~oper jurisdiction, claiming that he should be under the jurisdiction
c~ th.e Juvenile Court of Chatham County, Georgia. His petition was
18lliissed on demurrer, which decision was sustained by the Supreme

Foburt of Georgia on February 9, 1954. A rehearing was denied on

e ruary 24, 1954.

130
We believe that the above outline generally gives you the picture in Georgia with reference to capital punishment and the age of criminal responsibility, 14 years, and also the relative status for jurisdiction as between our Superior Courts and our Juvenile Courts. Our Juvenile Court laws include provision that neither the fingerprints nor a photograph shall be taken of any child taken into custody for any purpose, without the consent of the judge (Code of Ga. Ann., Section 24-2418), and there is provision that records and forms of the court are privileged information, that the publication of names of children involved is prohibited except as authorized by order of the court (Code of Ga. Ann., Section 24-2432).
We trust that this outline of our statutory law in this State will be of service to you and regret that time will not permit a more complete review. We are interested in the subject and whenever your paper has been completed, if it is published, we would greatly appreciate it if you would send a copy to us.
CRIMINAL LAW-Mental Competency (Unofficial)
There is no established procedure whereby a court may require person accused of crime to be hospitalized at Milledgeville State Hos pital for sole purpose of determining his mental condition for guid ance of the court.
November 15, 1962
Honorable Vickers Neugent Solicitor-General, Alapaha Judicial Circuit
Thank you for your letter of November 9, 1962, inquiring as to
the existence of a procedure whereby a superior court judge maY issue an order requiring that a person accused of a crime be hos pitalized in the Milledgeville State Hospital for the sole purpose of determining his mental condition for the guidance of the court, and then that the accused be returned to the court for appropriate dis position.
I know of no Georgia law providing for such a procedure.
You further inquired as to other procedures for the hospitaliza tion of a person in the Milledgeville State Hospital.
In connection with your inquiry, please note Code Sections 27-15~2, 27-1503, 49-604 and 49-605, 88-1602, or 88-1606. As to hospitalization pursuant to the last four Code Sections, see McGriff v. State (1910) 137 Ga. 259, 60 S.E. 115. See also: Baughn v. Wiley (1896) 98 Ga. 364, 25 S.E. 444.

131

CRIMINAL LAW-Loss of Civil Rights (Unofficial)
Person who has been convicted of crime involving moral turpitude cannot hold public office in this State.
November 5, 1962
Honorable Glyndon C. Pruitt City Attorney Buford, Georgia

I have your letter in which you ask if a man who has been convicted in the United States District Court for transporting a stolen automobile in interstate commerce is qualified to hold a public office, particularly the office of sheriff of the City Court of Buford.

The question partakes of a segment of the law from which certain basic premises have evolved. We begin with a presumption of eligibility, for as stated in Patten v. Miller, 190 Ga. 123, 139:
"Among the rights of citizens, as declared in the Code, are the right to hold office unless disqualified by the constitution and laws, and the right to appeal to the court.... All citizens are entitled to exercise all their rights as such, unless specifically prohibited by law. . . . So the right of a citizen to hold office is the general rule, ineligibility the exception; and therefore a citizen may not be deprived of this right without proof of some disqualification specifically declared by law." (Citing numerous authorities.)

. In McLendon v. Everett, 205 Ga. 715, this principle was recog~lzed and the disqualifications from holding public office were stated o be the Constitution, Article II, Section II, Paragraph I (Georgia Code Ann., 2-801); Article II, Section IV, Paragraph I (Georgia Code Ann., 2-1001); Article III, Section IV, Paragraph VI (Georgia C?de Ann., 2-1606); Article VII, Section III, Paragraph VI (Gearglad Code Ann., 2-5606); and the Georgia Code Ann., 79-301 an 89-101. Of these, we are only concerned with two.



The first is Article II, Section 2-801), which provides:

II,

Paragraph

I

(Georgia

Code

Ann.,

. ".... The General Assembly may provide, from time to

time, for the registration of all electors, but the following

hlasses of persons shall not be permitted to register, vote or

told .any office, or appointment of honor, or trust in this State,

0-Wlt: 1st. Those who shall have been convicted in any court

of competent jurisdiction of treason against the State, of em-

b~aerzczelneym, eonrt

of public funds, malfeasance of any crime involving moral

in office, turpitude,

bribery or punishable

.Y the laws of this State with imprisonment in the peniten-

tiary, unless such persons shall have been pardoned. 2nd. Idiots

and insane persons."

t' The second is Georgia Code Ann., 89-101, the applicable porIons of Which read:

132
"The following persons are held and deemed ineligible to hold any civil office, and the existence of any of the following states of facts shall be a sufficient reason for vacating any office held by such person, but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, viz.:
* * * * *
"3. Any person convicted and sentenced finally for any felony, under the laws of this or any other State, involving moral turpitude, the offense being also a felony in this State, unless restored by a pardon from the proper executive, under the great seal of the State, to all the rights of citizenship.
* * * * *
"8. All persons from any cause constitutionally disqualified ..."
These are the authorities under which we must seek the answer to the question propounded.
I feel there can be no serious question whether the office of sheriff of the City Court of Buford is an office within the meaning of the constitutional provision or of Georgia Code Ann., 89-101. Cristopher v. State, 21 Ga. App. 244; Phillips v. City of Jefferson, 13 Ga. App. 376; Long v. Ross, 132 Ga. 288. This being so, we must examine the conviction to determine if it was for a "crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary," or a "felony in this State."
The constitutional limitation speaks of "conviction in any court of competent jurisdiction." It is my opinion this would include federal district courts sitting in this State. I do not feel the conviction must necessarily be one under the laws of this State, but only a conviction of any crime which is also a crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, though having never been tried under our laws. That the act forming the basis for the conviction could also be the basis for punishment under our laws if tried and convicted thereunder seems to be the objective of this provision of the constitution.
The wording of the statutory prohibition is plain: "Any person convicted and sentenced finally, for any felony, . . . the offense being also a felony in this State. . . ." (Emphasis added.) It seems clear the intent is to bar a person from that particular segment of the privileges and duties attaching themselves to citizenship when he haS been convicted of a crime or felony within the prohibited class, regardless of where or under whose laws convicted, if the act is or would also be a punishable felony or crime involving moral turpitudet under the laws of this State. An excellent discussion of this face of the law of this State and the effect upon its citizens convicted of criminal behavior is found in Jenkins v. State, 14 Ga. App. 276 280. Therein it is stated:

133

"A State imprisons one of its citizens as a punishment for
crime in order to enforce the deprivation of certain rights which inherently belong to the citizen. In this State a convict
is deprived of certain of the rights of a citizen, but is allowed to retain certain others; for instance, he has absolute freedom of contract, and the right to dispose of his property by will, and generally retains the enjoyment of all his property rights.
He is, however, deprived of most of his personal rights, and the State imprisons him in order to make sure that he will suffer this punishment. The actual imprisonment of his person is no more a deprivation of certain of his liberties than it would be if he was deprived of them in any other way. To deny a citizen the right to vote and the right to hold office is certainly a serious interference with his liberty. One of the most cherished rights of the citizen is the right to take part in the affairs of government, and if he be deprived of this, a right is destroyed which it took centuries to obtain. After conviction of any offense involving moral turpitude the law does not content itself with the mere declaration that the convict shall not have the liberty to vote or hold office, but it provides the machinery for the enforcement of this deprivation. It prevents the registrars from permitting him to register as a voter, and it prohibits the managers of an election from accepting his vote; and if elected to an office of honor or trust, he could be ousted by quo warranto. So it can not be doubted that where one is tried for an offense involving moral turpitude, these liberties of his are in jeopardy. . . ."

You have not set out the complete factual circumstances under which the man was convicted for transporting a stolen automobile. I cannot therefore give any absolute answer, but will recite certain
theories which lead me to the conclusion the conviction, in the absence of any unusual circumstances, is for an act which would also be considered felonious under Georgia law.

Georgia Code Ann., 26-2603, makes larceny of an automobile

taoffeil_ovn~ yyepaurns.isGhaebolregibayCiomdperiAsnonn.m, ent26in-2t6h2e0

penitentiary for from one provides that any person

receiVIng any goods or other effects stolen from another, knowing

sam_e, shall be an accessory after the fact, and shall receive the same

Pumshment as the original felon. Any person so factually involved as ~~ support a conviction of interstate transportation of stolen auto~0t"Iles would seem undoubtedly sufficiently involved to support con-
~tCIh0c~rewe nAanurenn.d,tehCrehoanapedtdeoirfti2toh6ne-a5la)b,goaevnnedesraaecclcteiposrnsoosv.riisSeishoon(usGldefootrhrgeipyaripCnrocodivpeeaAlisnnan(d.G,eeqCouhraagtpeia-,

ther~?2-62-662)2.,TmhearkeinagreanalysopetrhseofnubrrtihnegrinpgroivnitsoiotnhsisoSf tGateeorsgtoialeCnopdreoApenrnt.y,
8 Ject to conviction and punishment as if he had stolen such within

e18 State, and Georgia Code Ann., 26-2623, imposing the same

lakalty upon one buying or receiving anything stolen or feloniously

en from another in another State.

To be convicted of interstate transportation, he must necessarily

134
have brought the automobile into this State, knowing it to have been stolen in another, or have left this State with the automobile knowing it to have been stolen in this State. Of course were he the actual thief in either case, there could be no doubt whatsoever of the criminal nature of the act under Georgia laws.
Subject to any limitations which might arise from the preceding paragraph, it is my opinion a person convicted in federal court of transporting a stolen automobile in interstate commerce would be ineligible to hold any civil office as provided in Georgia Code Ann., 89-101, or any office as provided in the Constitution, Article II, Section II, Paragraph I (Georgia Code Ann., 2-801).
CRIMINAL LAW-Probation (Unofficial)
Court originally passing sentence which includes placing defendant on probation retains jurisdiction to revoke, rescind, or modify such probated sentence notwithstanding that original case was appealed where decision of appellate court made decision of trial court.
March 5, 1962
Honorable Arthur S. Oldham Judge, City Court of Athens
This will acknowledge your letter of February 26th. We note that a defendant was convicted at the May Term 1960 in the City Court of Athens (Case No. 15718, et seq.) and was sentenced to pay fines totaling $3,000.00 and serve three years on probation. You advised that in April1961 these cases were affirmed by the Court of Appeals, Nos. 38707, et seq., and the judgments of the Court of Appeals were made the judgments of the City Court of Athens in May 1961, and that shortly thereafter the fines totaling $3,000.00 were paid. It appears that the defendant now desires to be relieved of the provisions of the sentence of the Court having to do with probation, that he desires to move to Florida, which we assume may be prohibited under the provisions of his sentence. You ask if the lower court has authority at this time to extend to the defendant relief from the provisions of probation.
Your attention is called to certain provisions contained in Chapter 27-27 of the Code of Ga. Ann., being a part of the statutory law covering criminal procedure after conviction and sentence, and covering the subject of reprieves, pardons and probation.
Please note that the jurisdiction of courts is covered in Code of Ga. Ann., 27-2709 and the last sentence of this section reads as follows:
"The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of said probated sentence, and such judge is hereby empowered to revoke any

135
or all of said probated sentence, rescind any or all of said sentence, or in any manner deemed advisable by said judge to modify or change said probated sentence at any time during the period of time originally described for the probated sentence to run."
It has been held in the case of Phillips v. The State, 95 Ga. App. 277 that the above Code 27-2709 has no effect on the principle of Jaw that after adjournment of term of court at which sentence is imposed the judge cannot change or modify it. This case was decided on February 12, 1957 and rehearing denied on March 6, 1957. The part of the above Code section quoted was enacted in 1958.
You will note the provision in Code of Ga. Ann., 27-2712 that:
"The court may at any time cause the probationer to appear before it to be admonished or commended, and when satisfied that its action would be for the best interests of justice and the welfare of society, may discharge the probationer from further supervision."
In the case of Balkcom, Warden v. Johnson, 211 Ga. 315(1), the court said:
"A probated sentence is served under the supervision of the judge imposing it, and he may after a hearing revoke it at any time during the maximum period covered thereby if the defendant violates any of the rules and regulations upon which it was granted." Ga. Laws 1950, p. 352; Code of Ga. Ann., Supp., 27-2502.
. It appears that since the probated sentence is served under the ~udge imposing it, if he has the authority to revoke the probation durIng the maximum period covered thereby, there would also be authority under the provisions of 27-2709 to modify or change the sentence or rescind any or all of it as provided in the 1958 Act.
You will also note the provisions of Code of Ga. Ann., 27-2716 that any county probation system in existence on the effective date of this law (Code 27-2702- 27-2723) shall not be affected by the Passage of this law, etc., and "provided, however, the substantive Provisions of this law relative to probation shall be followed."
We do not believe that the provisions of Code of Ga. Ann., 24-3644 covering remittitur from the Court of Appeals to the trial ~ourt, and the judgment of the Court of Appeals being made the Judgment of the trial court, would deprive the trial court of the ~huthority to exercise supervision over the probated sentence during
e period of such sentence.

136
CRIMINAL LAW-Refusal to Leave Premises (Unofficial)
Upon request of owner or person in charge of premises, police may protect property rights by arresting persons refusing to leave premises after being requested to do so.
August 22, 1962
Honorable Alvin Allen Chief of Police Wadley, Georgia
Replying to your letter requesting information concerning "sitins", I refer you to Georgia Code Ann., Section 26-3005, which provides:
"26-3005. Refusal to leave premises of another when ordered to do so by owner or person in charge.-It shall be unlawful for any person, who is on the premises of another, to refuse and fail to leave said premises when requested to do so by the owner or any person in charge of said premises or the agent or employee of such owner or such person in charge. Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished as for a misdemeanor. (Acts 1960, p. 142.)"
Under this section, an arrest can not be made until the owner or person in charge of the premises has requested the undesired party to leave. The police can not take it upon themselves to do it for the owner, for otherwise the police would be enforcing segregation. Where, however, the owner or person in charge makes the request to leave and it is ignored, the police are merely enforcing the owner's property rights, and such laws have been upheld in "sit-in" cases. Slack v. Atlantic White Tower System, 284 F 2d 746 (C.A. 4th 1960); Williams v. Howard Johnson's Restaurant, 268 F 2d 845 (C.A. 4th 1959).
Of course, such trespass statu1 es can not be used with respect to public facilities owned by a city or the state, such as a park, etc., for here the state itself would be undertaking to select its patrons. We do have a statute making it illegal for anyone to trespass on state property when closed by the Governor, etc. See Section 26-3004.

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CRIMINAL LAW-Successive Violations
Each different act constituting violation of criminal statute is a separate crime.
November 28, 1962
Mrs. Rebecca L. Garrett, Chairman Honorable J. W. Claxton, Member Honorable Walter 0. Brooks, Member State Board of Pardons and Paroles
This will acknowledge and reply to your letter requesting an opinion relating to the sentence of a person for the crime of sodomy.
You asked:
"The only question presented here is a legal one as to whether, under the circumstances, the conduct of subject constituted the single offense of sodomy or whether, even though taking place at relatively the same time, it constituted separate offenses for which the offender could be indicted on separate counts, found guilty and receive separate sentences."
I have given exhaustive study to this question, and have searched many jurisdictions other than Georgia, to attempt to find decisions containing precisely, or nearly precisely, the same facts involved in the instant case.
The best authority, I feel, is that attached which supports the Proposition that the crime in question can be committed in several different ways, and I feel that it necessarily follows that each diffent act which amounts to the commission of a violation of a statute is a separate crime.
It is with these authorities in mind, and their application to the facts here in question (the indictment and the testimony) that I am lead to the opinion that a separate crime has been committed in each instance when the facts show a different way in which Code Section 26-5901 has been violated.
. The case of Thompson v. Aldredge, Sheriff, 187 Ga. 467, is author~ty for the availability of the remedy of the writ of habeas corpus if, m fact, the second sentence in the case was void.
The case of Comer v. The State attached hereto is to be found in 21 Ga. App. 306.
The case of White v. The State hereto attached is to be found in 136 Ga. 158.

138
CRIMINAL LAW-Validity of Sentence
Validity of sentence is a matter for the Courts and not the State Board of Corrections to determine.
December 14, 1962
Honorable Robert J. Carter Assistant Director Classification and Custody State Board of Corrections
This will acknowledge and reply to your letter relating to a prisoner who was given a sentence of five years for the offense of escape. At the time of the actual escape the punishment provided by law for said crime was four years.
In this case the State Board of Corrections detained the prisoner under a sentence from the Chattahoochee Judicial Circuit. Such a sentence as this is to be treated by the Board of Corrections as a valid and binding sentence until a court of competent jurisdiction renders the same to be void and sets the same aside.
For the State Board of Corrections to assume any jurisdiction in the matter of determining the validity of sentences would, in fact, constitute a judicial function not envisioned by the Constitution or the laws of Georgia.
I note from your letter that a copy has been sent to the Honorable John H. Land, Solicitor General, Chattahoochee Judicial Circuit. It will now be proper for the Honorable John H. Land, who as Solici tor General is the proper official, to bring this matter to the attention of the court of conviction.
CRIMINAL LAW-Venue (Unofficial)
Venue in prosecution for child abandonment lies in county where dependency begins.
February 15, 1962
Honorable Vickers Neugent Solicitor General Alapaha Judicial Circuit
You ask where venue would lie for a criminal prosecution of abandonment when the mother resides in one county, goes to another for the purpose of delivering the child, and returns to the original county, thereafter not receiving any support from the father of the child for its necessities.
I assume you have reference to a criminal prosecution under Georgia Code Ann., Section 74-9902. If so, we have a long line of cases, beginning with Bennefield v. The State, 80 Ga. 107, holding the venue

139

of such an action is the county where dependency begins. This usually involves a question of fact which must be decided for each individual case. An examination of some of the decided cases would lend us an outline.

As stated in Nelson v. The State, 77 Ga. App. 255,

"The essential elements . . . are: Desertion, that is, wilful forsaking and desertion of duties of parenthood; and dependency, that is, leaving children in a dependent condition . . ."

As for the factual situations of similar cases, we have first the Bennefield case where the father sent the mother and child into another county. Venue was held to be in the other county for the child was not dependent and destitute while in its home county, but only became so after being sent away by the father. Cleveland v. The State, 7 Ga. App 622, involved similar facts, and again the court held venue
to be in the county where the child was located after being sent from its home county as the dependency did not arise until being sent there, and not in the home county.

In Fry v. The State, 36 Ga. App. 312, the facts were almost parallel to those you set forth. The wife removed herself to Alabama for the period of her confinement and after delivery returned to Georgia. A conviction of abandonment in Georgia was affirmed despite defendant's plea that the abandonment had taken place in Alabama and there was no venue in Georgia.

Again, in Turner v. The State, 56 Ga. App. 488, we have the case

of a mother leaving her home county for the purposes of delivering

the child. However, this case must be distinguished in that here the

mother went to Tennessee, and with the exception of a two-hour visit,

never returned to Georgia before trial for abandonment. It was held

venue would not lie in Georgia because under no circumstances could

it be contended that the child was dependent in Georgia when he

had never been within the State with the exception of a two-hour

visit.



From the above cases I feel that the answer to your question must be that venue would be in the county to which the mother returned after birth of her child. I do not feel that a mere temporary absence for the purpose of giving birth, with a return as soon as practicable to the county of residence, would sustain a plea that dependency had arisen outside the county.
I might add the Uniform Reciprocal Enforcement of Support Act (Ga. L. 1958, p. 34; Ga. Code Ann., Ch. 99-9A) may be of some value also in your problem. Under Section 8 of that Act, ". . . the petition must be commenced in the county of the residence of the obligee."

140
DOMESTIC RELATIONS-Disabilities Under Divorce Degree (Unofficial)
Discussion of procedure for obtaining removal of disabilities imposed by Court in a divorce proceeding.
December 6, 1962
Mr. Jackie Floyd Banks Raiford, Florida
This is to acknowledge receipt of your letter in regard to removal of disabilities imposed by a court in a divorce proceeding.
Upon the subject about which you make inquiry, I call your attention to Ga. Laws 1946, pp. 90-93, now codified as Ga. Code Ann., Section 30-122, which reads as follows:
"30-122. When a divorce shall be granted the jury or the judge, as the case may be, shall determine the rights and disabilities of the parties. (Acts 1946, pp. 90-93) ."
In 1960 the Legislature changed the law and this change may be found in Georgia Code Ann., Section 30-122. This act provided that no person shall be placed under disabilities unless there is in the pleading a special prayer that he be placed under such disabilities. (Ga. Laws 1960, pp. 1024-1025).
Your divorce seems to have been granted under the law in effect prior to 1960, and it appears that your disabilities could only be removed by proceedings provided for in Ga. Code Ann., Section 30-123.
Any further information in this matter should be obtained from some lawyer who is in the private practice of law.
DOMESTIC RELATIONS-Marriage Licenses (Unofficial)
Evidence of age of both parties required to be shown before marriage license issued.
March 13, 1962
Honorable Victor B. Jenkins, Jr. Judge, Chatham County Court of Ordinary
I am pleased to acknowledge your request for my opinion as to the requirements placed upon the Ordinary under the recently enacted House Bill 274.
As you know, since I am empowered to advise only the Governor and the executive department, my views concerning this amendment are personal and unofficial.
Even the most superficial reading of the Act demands the conclusion that both parties who apply for a marriage license hence-

141
forth, despite the appearance of either, will have to show evidence of age. Further, the evidence required by the Act must be one of the three following: a drivers license, a baptismal certificate, or a birth certificate. A family Bible will not do. Testimony of the doctor performing the delivery of the applicant would be insufficient. There is no judicial discretion that can be observed by the Ordinary in this portion of the Act except as to the soundness of mind of the applicants. As yet, nothing requires an adjudication of sanity.
There seems to be some discretion in the matter of what constitutes the furnishing of the required proof. Merely demonstrating the proper document is apparently sufficient without the further necessity of copying or attaching anything to the application. Likewise, there is discretion as to what will be acceptable to the individual Ordinary to satisfy the proof of pregnancy. A visual conclusive determination would apparently be unnecessary. Medical testimony or a doctor's certificate as to the fact of pregnancy are probably the more acceptable types of evidence contemplated by the Legislature, but inasmuch as Section 53-202 has not been repealed, it seems that the affidavit of pregnancy proviso of that Section would suffice here.
This letter is not intended to be critical of the law as recently passed and I am sure you and your association would agree that a reduction in teenage marriages would be laudatory but after conferring personally with the bill's sponsor, Honorable Harry Dicus of Muscogee, I feel it is now apparent that unintended restrictions have become part of the Act.

DOMESTIC RELATIONS-Marriage Licenses (Unofficial)

Information as to .race and color must be recorded on application for marriage licenses for use by Department of Public Health but need not be recorded on licenses themselves.

Honorable Eugene Gunby Ordinary, Fulton County

April 18, 1962

I wish to acknowledge receipt of your letter with respect to the ranner of filing applications for marriage licenses and the informawn required by statute to be recorded thereon.

It seems to me that the provisions of Code Section 53-307 of the Georgia Annotated Code are clear and mandatory that information rega_rding race and color is required to be recorded on the form of
apphcation supplied by the State Board of Health. I do not find any statutory requirement that the information with respect to race and co1or be recorded on the marriage license.

I have been advised by the Georgia Department of Public Health

142
that this information with respect to race and color required by statute is necessary for the compilation of vital statistics in the Department of Public Health. I have suggested to the State Department of Public Health the possibility of having information with respect to race and color coded on the form of application for marriage license. This, of course, would be a matter for administrative determination and handling.
DOMESTIC RELATIONS-Marriage Licenses (Unofficial)
Citation of laws relative to age requirements for marriage and proof of such age.
June 19, 1962
Mr. M. S. Rodman, Jr., Jackson, Michigan
In reply to your letter of June 12th, I call your attention to the following Code sections :
"53-204. Notice of application; posting; contents.- 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 parent's 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. When licenses may not be issued within five days; exceptions.-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. Proof of majority. Notice to be posted when parties fail to establish majority.-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 age 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 applicants to convince the ordinary that both parties are of such age, the

143
ordinary shall post notice of said application for the period of five days, as hereinbefore provided."
"53-207. Ordinary to inquire as to ages. No license for female under 18 except by parents' or guardian's written consent.-The ordinary shall inquire as to the ages of all persons for whom marriage licenses are asked; and if there shall be any grounds of suspicion that the female is under the age of 18 years, the ordinary shall refuse to grant the license until the written consent of the parents or guardian, if any, controlling such minor, shall be produced and filed at his office."

DOMESTIC RELATIONS-Uniform Reciprocal Enforcement of Support Act (Unofficial)

Duty rests on father to support minor child irrespective of whether
either spouse has obtained a final decree of divorce or separation and although there has been an award for support of the child in some prior proceeding.

November 29, 1962

Honorable George Hains Solicitor General
Augusta Judicial Circuit

. This will acknowledge receipt of your letter in which you ask for mformation concerning the duty of a father to support a child where there is a provision made for the support of the child in a separation agreement between the mother and the father.

The case of Barfield v. Harrison, 101 Ga. App. 497, seems to remove any question as to the liability of the father for the support of the child. Headnotes 2 and 3 of that case provide:

"1. A father in Georgia is liable for the support of his minor child under 18 years of age, although residing in another State, and if the father is possessed of sufficient means, he may be required to pay for this support.

"2. This duty rests upon the father and may be enforced although either spouse has obtained a final decree of divorce or separation and although there has been an award for support of the child in some prior proceeding."

forA~esmetnottohfe

handling of Support Act

a case under on appeal, it

the Uniform has been the

Reciprocal position of

Enthis

~ff1ce that upon request assistance will be rendered in such cases. I

eel ~ure that in the event it is necessary to appeal the case now

Pendmg, upon your request, this office will render assistance.

144
DOMICILE AND RESIDENCE-(Unofficial)
Person's domicile principally a question of intent. Other factors tending to show intent discussed.
January 24, 1962
Mr. Hugh R. Roberts, Jr. Ithaca, New York
Your letter concerning your move to New Jersey and a copy of the previous answer to it have been referred to the Revenue Division of the State Law Department for any additional comment deemed appropriate.
Your letter does not make clear whether you are desirious of transferring your domicile from Georgia to New Jersey or of retaining it here, while residing there temporarily. Since this is true, the following remarks are made on the assumption that you wish to keep it here. Of course, if you wish to transfer it to New Jersey, where you will be actually residing, there is no problem, insofar as the State of Georgia and its political subdivisions are concerned taxwise.
On the above assumption, then, it is again pointed out that a person's domicile is principally a question of intent. One acquires a domicile by residing in a particular place with the intention of remaining there indefinitely. Taking up temporary residence in other places, even for long periods of time, will not result in loss of one's domicile as long as the intent to return prevails.
Of course, establishing this intent frequently becomes a difficult problem. In the final analysis, it is one of proving it to the satisfaction of whoever, in a particular situation, is called on to pass on the question of domicile. Many factors, no one of which is controlling, may be properly considered. Some of the more common ones are: Where one resides at the moment; the length of that residence; where one votes; where one registers his automobile; where one maintains bank and credit accounts; where one pays taxes; where one maintains club and church memberships; and one's express declaration of intent.
Since the place where taxes are paid is often given considerable weight, I suggest, if you want to keep your domicile here, that you file an income tax return, obtain automobile tags and pay personal property taxes in this State.
If you should have to pay taxes on income earned in New JerseY while temporarily residing there, you would be given a credit on your tax obligation to Georgia in an amount equivalent to the tax which would be payable to this State on a like amount of taxable income. This would mean that if all your income were earned and taxed in New Jersey, you would, in practical effect, owe no tax to Georgia. Even so, as long as your domicile is here, you would be required to file a return.

145

EDUCATION-Appointment and Terms of County Board of Education
Governor authorized to issue commissions to members of County Board of Education pursuant to Superior Court order after appointment of members by Grand Jury and approval of terms of office by Court.
January 18, 1962
The Honorable S. Ernest Vandiver Governor of Georgia
I am pleased to acknowledge and answer your request of January 5, 1961.

The factual information that you set forth in your letter shows that the Grand Jury of Carroll County at its October Term, 1960, apparently acting pursuant to a recent amendment to the Constitution (set forth in Ga. Laws 1957, p. 173) appointed five persons as members of the Carroll County Board of Education without specifying the term of office for each appointee. One of the appointees resigned and the Grand Jury at its October 1961 Term appointed a successor.

Thereafter, those appointed petitioned the Superior Court of Carroll County for an Order approving the limitation on the terms of their respective offices as the appointed members themselves had, by lot, agreed upon.

The court passed such an Order and directed that commissions be issued to the persons named therein for the term stated for each set forth in the Order.

You request that I advise you if you are authorized to issue commissions to the persons named in the Order of the Judge of the Superior Court of Carroll County, and if so, should the commissions be issued for the terms specified in said Order.

The above mentioned recent constitutional amendment, with the exception of which Grand Jury shall appoint the first new board,
appears to have placed the selection of the Board of Education of
otCarroll County under that part of Article VIII, Section V, Paragraph
I the Constitution of Georgia (Ga. Code Ann., Section 2-6801) WhiCh reads as follows:

"The Grand Jury of each county shall select from the citizens of their respective counties five freeholders, who shall constitute the County Board of Education. Said members shall h.e 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."

andNqeuxott,eI

refer to Stephenson v. therefrom as follows:

Powell,

169 Ga.

406

(150

S.

E.

641)

146
"The tenure by which an office is held does not generally depend upon the commission which the Governor may think proper to issue. A commission issued by the Governor to a duly elected member of the board of education of a county, in which the term of such officer is stated to be for a given number of years and to end on a designated date, is not conclusive evidence of the right of such officer to hold beyond such term and designated date, and does not prevent courts from looking behind the commission and determining, in a proper case, when the term of such officer legally begins and ends. The statute and not the commission determines the commencement and ending of the term of such officer."
In support of this principle the Stephenson case cites among others the case of Bennett v. Public Service Commission, 160 Ga. 189 (127 S. E. 612) which I quote from beginning on p. 192 as follows: "When the commencement of a term of office is fixed by statute and the commission issued by the Governor fixes a different date therefor, the statute and not the commission determines the commencement of the term. . . . The commencement of the term of an office is generally a question of law to be determined by the court;".
In view of the preceding it is my opinion that you are authorized to issue commissions to the persons named in the Order of the Judge of Superior Court of Carroll County, dated December 30, 1961, for the terms specified in said Order.

EDUCATION-County Board of Education

Chairman of Board is a member thereof and is entitled to vote in same manner as are other members.

Dr. Claude Purcell State Superintendent of Schools

April 18, 1962

I am pleased to acknowledge receipt of and answer your letter wherein you request an official opinion interpreting provisions of Ga. Code Ann., Section 32-604 relating to employment of school teachers, principals and employees by county boards of education without recommendation of county superintendent of schools.

Ga. Code Ann., Section 32-604 provides in part as follows:

"... In the local units of administration, the several teachers, principals and other school employees shall be elected by the boards of education on the recommendation of the respective superintendents. Provided, however, the boards, by the vote of three-fourths of the entire membership of the board, may employ teachers, principals and other school employees without the recommendation of the respective superintendents. . . ."

147
You state in your letter that "a question has arisen as a result of a situation wherein a five-member board voted 3-2 to elect without the recommendation of the superintendent, the chairman of the board voting as a member and casting his vote with the minority. The chairman held that . . . he is a member of the board and entitled to vote in such a matter, and that the 3 members voting in the affirmative ... constituted only three -fifths of the membership of the board."
Your question requires a construction of the terminology "threefourths of the entire membership of the board" as contained in the above code section because if the chairman of the board is not to be considered as being a voting member thereof for the purpose of overriding the recommendation of the county superintendent of schools in regard to such matters then, excluding his minority vote, the vote taken in favor of such action would have been 3-1 or threefourths of the voting membership. I am of the opinion that under the above stated terminology of Code Section 32-604 the chairman of the board is entitled to vote in such matters and that the 3-2 vote in favor of overriding the superintendent's recommendation was not sufficient under the statute to authorize the board to employ the person under consideration.
The chairman of a local board of education is to be construed as being a "member" of the board for the purpose of construing the word "membership" contained in Code Section 32-604. The Georgia Constitution, in Art. VIII, Sec. V, Par. I (Ga. Code Ann., Section 2-6801) provides:
"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."
(Some county boards of education, by virtue of local constitutional amendments, are elected by the people and may have greater or fewer than five members.) Code Sections 32-902 and 32-903 relating to selection of such five freeholders refer to them as "members" of the board of education. Likewise, Marshall et al. v. Walker, 183 Ga. 44, involving election by a board of education of a successor to the office of county school superintendent, refers to the fact that "all five of the members were present and voting." Members of county boards of education are constitutional public officers and are issued commissions pursuant to Code Section 32-905. See Powell " Price, 201 Ga. 833; Clarke, et al. v. Long, et al., 152 Ga. 619. Code Stection 32-912 provides that after election of the board members hey shall, upon being called together by some one of their number, organize by selecting a chairman. (Note the different terminology contained in Code Section 32-907.) The duties of the chairman are, generally, to conduct meetings of the board in an orderly, parliamentary manner, to recognize members, to state and put to vote all questions regularly moved and announce the results, to expedite the lnee~ings, etc., Roberts, Rules of Order, Revised (1951), but by becommg chairman of the board he does not cease to be a duly elected lnember thereof. He, as a member, may himself take part in board

148
proceedings in the proper parliamentary manner, and, when necessary and in accordance with statutory provisions, or in their absence established rules of parliamentary procedure, exercise his right to vote where proper. It is of course generally recognized and understood that such presiding officers, chosen by or from the members of such boards, may vote on matters before the board when necessary to break a tie vote all of which means, inferentially at least, that such person is necessarily a member of such board. I am of the opinion that the chairman of a county board of education is to be construed a "member" of the board within the meaning of the word "membership" as used in Code Section 32-604. This opinion is further substantiated, in my opinion, by State ex rei. Saint v. Dowling, 120 So. 593, 167 La. 907; Louisville Board v. Jefferson County Board of Education, 309 SW2d 40; Grimes v. Miller, 175 A 152, 113 NJL 553; Egan v. Mayor of City of Boston, 11 NE2d 456, 298 Mass. 448 and Siegel v. City of Belleville, 181 NE 687, 349 Ill. 240. I think that inclusion of the word "entire" in the statute is likewise indicative of the propriety of this construction. See Aetna Securities Co. v. Siebels, 90 NE2d 136, 120 Ind. App. 300, and the general definition of the term in Roberts v. Roberts, 198 P2d 453, 198 Colo. 524 and Wachovia Banking & Trust Co. v. Grubb, 62 SE2d 719, 233 N.C. 22.
The chairman of a local board of education being a member thereof, Code Section 32-902 requiring a vote of "three-fourths of the entire membership" of the board to override recommendations of the superintendent must therefore be construed to require the affirmative vote of at least four of the five members of such board, regardless of the number of members present and voting on such matter. In distinguishing between requirements relating to votes cast, votes of members present, and votes of membership, Roberts, in Rules of Order Revised, Section 48 at page 204, states:
"Two-thirds vote. A two-thirds vote means two-thirds of the votes cast. . . . This must not be confused with a vote of two-thirds of the members present, or two-thirds of the members, terms sometimes used in by laws. To illustrate the difference; suppose 14 members vote on a question in a meeting of a society where 20 are present out of a total membership of 70, a two-thirds vote would be 10; a two-thirds vote of the members present would be 14; and a vote of two-thirds of the membership would be 47." (Emphasis added)
The foregoing disposes of the question regarding the number of affirmative votes requ,red in such matters. I am of the further opinion that the chairman of the board may, as a member thereof and in accordance with established recognized parliamentary rules of procedure, vote in the consideration of such matters. In reference to such matter, Roberts, at page 238, supra, referring to voting by such a chairman, states:
"As (the chairman is) a member of the assembly, he is entitled to vote when the vote is by ballot ... and in all other cases where the vote would change the result. Thus, in a case

149
where a two-thirds vote is necessary, and his vote thrown with the minority would prevent the adoption of the question, he can cast his vote. . . ."
EDUCATION-County Board of Education (Unofficial)
Board of Education, though prohibited from doing business with enterprise in which a Board member has personal financial interest, may purchase milk from dairy which is part of estate of which Board member is administrator but is otherwise disinterested person without direct and substantial interest in estate.
June 29, 1962
Mr. Charles McDaniel Superintendent of Schools Thomasville, Georgia
I am pleased to answer your request for an unofficial opinion on the question of whether a conflict of interest exists when a member of a county board of education is appointed administrator of an estate owning controlling interest in a dairy firm from which such board obtains milk for use in county school lunch rooms.
The question asked by you involves a matter that has been the source of many inquiries submitted to this office in the past, and a ~atter that has been discussed by the undersigned at various meetIngs and conferences of school officials during the past year. I believe that you were in attendance at some of the meetings and conferences.
I might best state at the outset that insofar as the question asked by you is concerned, I am of the opinion that no conflict of interest exists by virtue of the mere fact that the person appointed administrator of the subject estate is a member of your local board 0~ education. I know of no provision of law that prohibits or disqualifies a member of a county board of education from serving as adminIstrator of an estate. The real question presented by your letter, however, as I see it, is whether or not your local board of education is fTree to do business with the subject estate, under the circumstances.
he answer to this question must be determined locally and is dePendent upon the nature of the personal interests, if any, had by the administrator and board member in the assets of the estate.
I'k In assisting your board in making this determination, I would first I e to call your attention to Georgia Code Ann., Section 32-949, which reads as follows:
"No member of any county board of education in this State shall sell to any county board of education any supplies or equipment used, consumed or necessary in the operation of any public school in this State."

150
Note also that Code Section 32-9908 provides criminal penalties for persons violating the foregoing Code Sections.
I am attaching hereto copy of an opinion rendered by this office on October 6, 1961, which contains a rather full discussion of the above and other statutory provisions of Georgia laws, and you will also note therein, beginning at the middle of page 4, a brief discussion of similar principles of common law recognized by the courts of Georgia. The meaning, purpose and effect of these statutory and common law principles of law are, I believe, apparent. Based upon such principles of law, this office has in the past ruled that a county board of education is prohibited from doing business with a corporation, partnership or other business entity where a member of such board is either a stockholder, partner, a manager or salesman of such business organization, or has any pecuniary interest in the operation and profits of such business organization. See: Opinions of the Attorney General, 1954, at page 186 and 188, and 1952 at page 419.
In your letter you do not state the nature of the personal interest, if any, had by the sub administrator and board member in the assets of the subject estate. In Code Section 113-1202 (1-10), the Legislature has provided rules relative to appointment of administrations, to wit, that either the surviving husband or wife or the next of kin, or creditor having greatest interest in the estate, or the person having the right to the estate, or a disinterested person selected by those having beneficial interest in the estate, shall be appointed administrator of the estate. If the subject board member and administrator of the subject estate has any direct personal beneficial interest in the assets, income or profits of the estate, then I am of the opinion that your local board of education is prohibited from doing business with such estate. This I believe to be in accordance with the earlier cited opinions of this office and the rule whether or not such person serves as administrator of the estate. If, on the other hand, the board member and the administrator of the estate is a disinterested person selected by those having beneficial interest in the assets, income and profits from the estate, and has no direct personal beneficial interest in such assets, income or profits other than right to payment of fees and commissions earned by virtue of his services as administrator and approved and allowed by the court in the exercise of its supervisory powers and duties over the administrator, then and in that event, I am of the opinion that your board is free to do business with the estate and that the interest of the adminis- trator in the assets, income, and profits of the estate is not so great and direct as to prohibit such business.

151
EDUCATION-County Board of Education (Unofficial)
All official meetings of county boards of education must be open to the public.
July 30, 1962
Mr. W. F. Cantrell, Chairman White County Board of Education
Thank you for your letter in which you stated that the White County Board of Education has been experiencing some harassment from visitors in attendance at recent meetings of the board of education. You asked whether such meetings are required to be open to the public and whether or not the same might be closed to the public, at least for the purpose of reaching decisions on matters presented to the board for consideration.
The Georgia Code, Ann., Section 32-908, provides as follows:
"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."
The above provision of law requires boards of education to hold regular sessions at a specified time and place for the purpose of transa~ting business pertaining to the public schools, and requires publicabon of same. Although the above provision of law does not in so many Words say that such sessions are to be open to the public, the language thereof certainly implies such to be the case. The matter is distinctly set at rest, however, by Article VIII, Section VIII, Paragraph I of the Constitution of Georgia, which provides as follows:
"All official meetings of County Boards of Education shall be open to the public."
There is no doubt, therefore, in regard to the matter. No official ~heeting of a county board of education can at any time be closed to
e public. See Opinions of the Attorney General, 1954, p. 169. In begard to the fo:eoing, however, and the problems being enc(;mn~ered Y _rour board, 1t IS of course elementary that you as a consbtutwnal offrcer and as chairman of the board of education have the authority and the duty in conducting such meetings to conduct the same in a fr?per and orderly manner and to do whatever is necessary to main.arn proper decorum in the meeting hall. The public may be heard In r~lation to matters of public import before your local board for consrderation, but for the period of time and in the order as may be reasonably designated by the board and yourself as chairman thereof.

152
Though the public has a right to be present and a right to be heard in regard to certain school matters, they must nevertheless labor under a corresponding duty to adhere to reasonable rules of procedure and time limitations established by your board and maintain proper decorum and an air of dignity about the meeting hall. Should any member of the public insist upon conducting himself in an unruly and disturbing manner at such meeting and consistently fail to abide by your board's reasonable rules of procedure and time limitations, and thereby interfere with you and the members of your board in the performance of official duties imposed upon you by law, then and in such event I would think it proper for you as chairman of the board to have such person removed from the meeting hall by local law enforcement officers.
EDUCATION-County Board of Education
County Board of Education has complete management and control of public schools in county and may transfer a teacher from one school to another notwithstanding objections of school superintendent.
September 24, 1962
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge receipt of and answer your letter wherein you asked whether or not a county board of education has sole authority to transfer a teacher from one school to another school under the jurisdiction of the board.
As I understand the facts presented, a local board of education employed a teacher to teach in a named school during the 1962-63 school year on the recommendation of the superintendent of schools and a standard teacher contract of employment form (Form A-1000) was properly executed. The local board of education subsequently, first by a vote of 3-2 and later by a vote of 5-1, decided to transfer the subject teacher to another school under the jurisdiction of the board. I understand that this transfer was agreed to by the teacher but that the local superintendent of schools objects to the transfer and has requested that you seek an opinion of this office in regard thereto.
Article VIII, Section V, Paragraph I of the Constitution of 1945 (Code, Ann., Section 2-6801), provides in part as follows:
".... Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education . . . ."
Pursuant to the above constitutional provision, complete management and control of the public schools of a county is vested in the county board of education. The county board of education is vested

153

with wide discretionary powers in regard to the operation of the local

schools. Keever, et al, trustees v. Board of Education of Gwinnett

County, et al, 188 Ga. 299; Downer v. Stephens, 194 Ga. 598; Boney v.

County Board of Education of Telfair County, 203 Ga. 152. Section 4

of the Minimum Foundation Program of Education Act (Ga. Laws

1949, p. 1406 et. seq; Code, Ann., Section 32-604), relating to employ-

ment of teachers and other school personnel, provides, however, in

part as follows:



".... In the local units of administration, the several teachers, principals and other school employees shall be elected by the boards of education on the recommendation of the respective superintendents. Provided, however, the boards, by the vote of three-fourths of the entire membership of the board, may employ teachers, principals or other school employees without the
recommendation of the superintendents. Contracts for teachers, principals and other professional personnel shall be in writing, signed in duplicate by the teacher in his own behalf, and by the superintendent of schools on the behalf of the board."

The foregoing enactment of the General Assembly is, in a sense, a limitation upon the broad grant of powers to county boards of education contained in the Constitution. It must, therefore, be strictly construed. In Tripp v. Martin, 210 Ga. 284, at 288, the Supreme Court held that the General Assembly was not prohibited from enacting the requirement that teachers employed by county boards of education be first recommended by the superintendent of schools, but in construing the two above quoted provisions of law together the Court stated that pursuant to Code Section 32-604, it is:
"... the duty of the county school superintendent to recommend to the board of education all teachers having the necessary qualifications, ability and character. The board of education must select and employ those teachers needed from the number recommended by the county school superintendent." (Emphasis added)

Teachers are, therefore, to be employed by the board of education and not by the superintendent of schools. Code Section 32-604 provides a manner whereby a local board might override the recommendations of the superintendent, and, as pointed out in a specially concurring opinion of one Justice in the Tripp case, a local board may decline to elect persons recommended by the superintendent of schools and require the superintendent to submit further recommendations.

. I am of the opinion that Code Section 32-604 cannot be construed In any broader sense than that indicated by the Court in the Tripp case, i.e. that pursuant thereto the county school superintendent is to recommend all teachers having the necessary qualifications, ability and character, and that beyond such point the question of whether such teachers shall be employed, where they shall teach, and other terms of their contract of employment, are all matters properly to be determined by the board of education subject to the consent and agreement of the teacher concerned. Upon execution of a contract of employment by a teacher and the local superintendent of schools, the

154

latter acting on behalf of the local board of education pursuant to Code Section 32-604, the terms employed in such agreement shall generally
control. Where a teacher's contract is silent as to which school she will be assigned to teach in, then she must be deemed to impliedly consent
to teach wherever she may be assigned. Where a teacher's contract calls for a teacher to teach at a particular school, then such is the agreement of the parties and they shall be bound thereto. Where a local board of education has existing rules and regulations, however,
providing for transfer of teachers from one school to another, then teachers executing contracts of employment with such board are presumed to have notice of existence of such rules and regulations
and are deemed to enter into such contracts of employment subject to the provisions of such rules and regulations even though a particular school might be designated in the contract of employment. See Underwood v. Board of Public Education, 25 Ga. App. 634. Should the contract itself, however, provide for transfer of teachers from one school to another by the board of education then, of course, the provisions of the contract are controlling in this respect and the board may by majority vote reassign teachers to a different school within the
jurisdiction of the board in accordance with the provisions of the contract. Such is the situation herein involved.

The form, A-1000 teacher contract of employment form, executed by the teacher and the board of education herein involved provides in part as follows :

"It is understood that the teacher is assigned to the duty of teaching at _____________________________j ocated at____________________________________,

(Name of School)

(City, Town or Center)

in said County, but the employer reserves the right to effect a transfer at any time to any school under the jurisdiction of the employer."

Under the above stated circumstances, the question asked by you must be answered in the affirmative. The matter is not one subject
to the objections or desires of a superintendent of schools.

In reference to the subsidiary questions asked by you in your letter, I might state further that it is not necessary that the teacher's contract in this instance be re-executed; the subject teacher may again be subsequently reassigned by the board of education if such should become necessary or desirable in the opinion of the board ; and the subject teacher is entitled to payment of her salary from the super intendent of schools even though the superintendent of schools objects
to the transfer of the teacher.

155

EDUCATION-County Board of Education (Unofficial)
County Board of Education cannot expend county education funds for private audit of funds derived from extra-curricular school activities.

Oct9ber 26, 1962
Mr. E. C. Mitcham, Jr. Superintendent, Meriwether County Schools
I am pleased to answer your request for an unofficial opmwn regarding an audit of local school activity funds by the county board of education.

You ask in your letter if a county board of education may legally expend county education funds to pay for a private audit of funds handled by a local school principal which are derived solely from local school activities. You do not identify the particular school activities with which you are concerned. Based upon general knowledge of school functions, I assume you are referring to activities such as the staging of athletic contests, theatrical productions, seasonal carnivals, club and group operations, and sale to pupils of school supplies, school newspapers, photographs, soft drinks, snacks, and other similar activities. It is in such context that this opinion is rendered.

Each county composes one school district and the management and

control of all public schools within the county, excluding those of any

independent school system located therein, is confined to the county

board of education. Code 2-6801, 32-901 and 32-1101. The county

board of education is vested with wide discretionary powers in manag-

ing, controlling and operating the county schools, Boney v. County

Board of Education of Telfair County, et al., 203 Ga. 152; Keever, et al.,

trustees v. Board of Education of Gwinnett County, et al., 188 Ga. 299,

and is, in conjunction. with the county superintendent of schools, re-

quired to promulgate rules and regulations to govern the county

schools, Code 32-912, provided, of course, that the same merely

supplement and do not violate existing provisions of State law. Code ~ 32-1009. Each county board of education and county school system

Is. a separate, distinct political subdivision of the State and is vested

With exclusive local authority insofar as school matters are concerned.

Board of Education of Candler County v. Southern Michigan National

Bank, 184 Ga. 641. The county board of education operates county

schools with public revenues allotted to the county board of education

Under the provisions of the Minimum Foundation Program, Georgia

Code, Chapter 32-6, and collected through local taxation pursuant to

Provisions of Code 2-7501, 32-1106 and 32-1118. These public

~hyenues compose the public school fund and it is well established that

94I2S

fund can "be used for and Burke v. Wheeler

educati County,

onal purposes only". 54 Ga. App. 81.

See

Code



32-

The county superintendent of schools is the agent of the county board of education insofar as transactions of its financial affairs are concerned, Code 32-1009, and, pursuant to Code 40-1811 and
40-1812, it is the "duty of the (State) Department of Audits and

156
Accounts to thoroughly audit and check the books and accounts of the county superintendent of schools and treasurers of local school systems, (and) municipal systems ... and all other schools receiving State aid" annually. Such audits are regularly conducted and filed as matters of public record. Code 40-1805. In accordance with the foregoing provisions of law, the State Auditor has consistently been of the opinion that local boards of education may not validly expend education funds for the purpose of obtaining a private audit of the local school fund. I concur with the position taken by the State Auditor in connection with this matter because, under the circumstances, such an expenditure of education funds is not only needless but is in my opinion not an expenditure for an "educational purpose" within the meaning of such term as defined in the authorities cited above. Such being the case insofar as private audits of county education funds are concerned, the same must a fortiori be true as regards private audit of non-educational funds that may at times and under certain circumstances come within the care, custody and control of a principal of a local school.
Funds derived at the local school level from activities such as those enumerated above are not education funds. Indeed, such activities are not school activities in the true sense of the word, as is exhibited by the fact that wherever conducted they are most generally sponsored and conducted by individual students, parents or teachers, or organized groups such as the Parents-Teachers Association, Athletic Associations, etc. They are, therefore, extra-curricular activities, it not being the purpose of establishment of the public school system to foster and officially sponsor the staging and conducting of such activities and profit-making enterprises. Such are not staged, conducted and financed through expenditure of education funds and it is for this reason that funds derived from such activities at the local school level are not audited by the State Department of Audits and Accounts. The State Constitution and State school laws provide that the various countY and independent school systems and not individual schools shall be the local units of school administration. See Code 32-604. If such funds are to be audited, therefore, by private auditing agencies, then I am of the opinion that this must be done at the expense of the activities concerned and paid for from funds derived from such activities.
What I have stated above is not to be construed in such a manner as to indicate that such activities are not subject to control and regulation by local boards of education. This is not the case. Pursuant to Code 32-909 local boards of education are vested with title, care and custody of all school property and are given power to control the same in such manner as they think will best serve the interests of the common schools. The use of such properties, to include the conduct of any extra-curricular activities thereon, and the regulation of conduct of school children during school hours, are matters subject to reasonable regulation of the local board of education. The extent to which local boards desire to permit such activities on school propertY during and outside regular school hours, and the involvement of scho?1 officials and employees such as school principals in such activities, lS a matter for determination and regulation by the board of education,

157
provided, of course, that such uses and activities as may be permitted are reasonable and not violative of State law. In this respect, I refer you by reference to prior opinions of this office relating to matters such as the use of school buses in connection with athletic events, school property for religious purposes, etc. Where permissible activities are authorized by local boards of education, the local board may define the duty and responsibility of school principals in regard thereto and require them to supervise and account for such activities in such manner as may be directed. Code 32-820 requires local school principals to furnish their employing board of education with bond "conditioned upon faithful and true accounting for all public and other funds ... coming into the principal's custody, control, care and possession. . . ." (Emphasis added.) This is sufficiently broad enough to include non-educational funds derived from activities such as those enumerated above. Code Section 32-822 requires principals to make quarterly reports to the board of education containing "an account of all receipts and expenditures of such funds" and that "all books, records and accounts of such funds" shall at all times be open to inspection by the local board of education or county superintendent of schools. Pursuant to these code sections, school principals are clearly accountable to the local board of education for all funds in their custody and the principal's records and accounts are subject to audit by the local board of education and county superintendent of schools. But no provision of law requires principals to take part in or supervise such activities or maintain custody and control of such funds. This is a proper matter for regulation by local boards of education, and the regulation, supervision and control of such activities to include the maintenance of records pertaining thereto and the audit of funds derived therefrom is, in my opinion, a responsibility of the local board of education. Should a local board of education desire a private audit of such funds, the expense of obtaining such audit must be paid out of funds derived from such activities.

EDUCATION-Definitions of "School Purposes" and "Educational Purposes"

"School purposes" and "educational purposes" are not synonymous, the latter being substantially more general than the former.
September 24, 1962
Dr. Claude Purcell State Superintendent of Schools

I am pleased to acknowledge receipt of and answer your letter Wtherein you ask if the term "school purposes" is synonymous with he term "educational purposes".

. I note from the correspondence attached to your request for this

10I.Pblrlaliroyn

that a board

question to obtain

has arisen in respect to the desire of from trustees of a charitable trust

a local fund a

158
donation to be used for public library purposes. I also note from the copy of the court decree attached to your letter that the trust funds in question were placed in trust for use for "school purposes" only. Should the trustees of the institute concerned be in doubt as whether the purpose for which the subject donation is sought is a "school purpose", then direction of the court of equity to which the trustees are accountable should be obtained. No statement of views or opinions contained herein is intended to in any manner bear upon such question.
Insofar as the limited question asked by you is concerned, I am of the opinion that the terms "school purposes" and "educational purposes" are not synonymous.
The word "purpose" means that which one sets before himself to accomplish; an end, intention, aim, object, plan or project, State v. Patch, 64 Mont. 565, 210 p. 748; Macomber v. State, 137 Neb. 882, 291 NW 674, and it is with such understanding in mind that the meaning of the terms "school purpose" and "educational purpose" should be sought.
The word "school" is a generic term, generally denoting an institution or place for instruction, education, and learning in any branch of knowledge; an institution of learning; a place of primary instruction; an educational establishment. Bastendorf v. Arndt, 290 Mich. 423, 287 NW 579; Alexander v. Phillips, 31 Ariz. 503, 254 P. 1056; Schweizer v. Board of Zoning Appeals, 167 N.Y.S. 2d 764, 8 Misc. 2d 878; Boys' Club of Detroit v. Pahula, 342 Mich. 150, 69 NW 2d 348; American Asylum of Deaf and Dumb v. Phoenix Bank, 4 Conn. 172; In re San ders, 53 Kan. 191, 36 P. 348; a place of primary instruction, State ex rei Fronton Exhibition Co. v. Stein, 144 Fla. 387, 198 So. 82, ordinarily below college or university grade level, and is most generally used in reference to the common or public schools operated and maintained
at the expense of the public. State v. Kalaher, 145 Wis. 243, 129 NW
1060. A "school" therefore is commonly denoted as being a place where systematic instruction in useful branches of knowledge is provided. Turnverein Lincoln v. Board of Appeals of Cook County, 358 Ill. 135, 192 NE 780. The term "school" being thus defined and understood, it has been generally held by the courts, primarily as concerns statutes and constitutional provisions relating to expenditure of tax funds for "school purposes", that the term "school purposes" means or otherwise relates to purposes connected with established "schools", and the ordinary or current expense of operating, maintaining, and sustaining such "schools". Peter v. Kaufman, 327 Mo. 915, 38 SW 2d 1062; Allen v. City of Burlington, 45 Vt. 202; Chicago & A. R. Co. v. People, 163 Ill. 616, 45 NE 122. Hudgins v. Mooresville Conso. School Dist., 312 Mo. 1,
278 sw 769.
The word "education" or "educational" is, on the other hand, a term of much broader scope and meaning, and is not in any general sense of the word restricted in scope, meaning and applicability in anY general localized manner, such as to any place, institution, or estab lishment. To the contrary, it has a vastly different connotation. It is a broad comprehensive term, variable and indefinite, and comprehendi~g in scope the acquisition of all knowledge tending to develop and tralll

159
the individual wherever and however the same might be acquired. In re Petty, 41 NW 2d 672. "Education" is not necessarily derived from the study of books or from instruction, but includes everything a person learns by conversation, reading, observation and experience, Barkers Commission of Mobile County v. Hardeman, 31 Ala. App. 626, 21 So. 2d 116, and is not limited to the years of adolescence or to the period of formal instruction in schools. Mitchell v. Reev~s, 123 Conn. 549, 196 A. 785. It includes everything that goes into the development and training of a person's powers and capabilities, including not only the mental but the moral and physical powers, faculties and capabilities of a person. In re Wolfe's Estate, 299 N.Y.S. 99, 164 Misc. 504. To "educate" means to cultivate the moral, the intellectual, and the physical capabilities of a person, First National Bank & Trust Co. v. Falligant, 208 Ga. 479, Kaplan v. School Dist. of Philadelphia, 178 Pa. Super. 88, 113 A. 2d 164, and such is not at all limited to formal classroom instruction, Wilhoit v. Fite, 341 SW 2d 806, though it is without doubt inclusive of such instruction. Whatever might serve to educate is therefore an educational undertaking, and "educational undertaking" is synonymous with "educational purpose". Ancient & Accepted Scottish Rite of Freemasonry v. Board of County Commissioners, 122 Neb. 586, 241 NW 93. Therefore, bequests for establishment of a memorial library and fine arts building, Kibbe v. City of Rochester, 57 F 2d. 542 (D. C., N. Y.), for establishing a children's playground, Greenman v. Phillips, 241 Mich. 464, 217 NW 1, and for erecting a museum of art, In re Everson's Will, 52 N.Y.S. 2d 395, 268 App. Div. 425, and expenditures of tax funds for maintenance of a county demonstration agent, Wright v. Atlantic Coast Line R. Co., 40 Ga. App. 785, and for repairing and remodeling a schoolhouse, Schlaeger v. Reilly Tar & Chemical Corp., 389 Ill. 434, 59 NE 2d 843, have all been held to be valid bequests or expenditures for "educational purposes". Thus, an "educational purpose" is any use or purpose which may serve "education" generally in the sense discussed above, Lyme High School Assn. v. Alling, 113 Conn. 200, 150 A. 439, and "educational trusts" includes all trusts created for the advancement of "education." Richards v. Wilson, 185 Ind. 335, 112 NE 780.
Pursuant to the foregoing discussion and authorities, I am of the Personal opinion that the term "school purpose" is more limited in meaning, nature and scope than the term "educational purpose", and that though the terms are similar to the extent that the former is certainly included within the latter, the two terms themselves are n?t, in all their ramifications, sufficiently alike in meaning and sigmficance as to be termed synonymous with each other. I believe this to be particularly true where such terms are used in conjunction with creation of charitable trusts.

160

EDUCATION-Georgia Industrial Institute

Teachers of Georgia Industrial Institute are employees of Habersham County and must be paid directly by County School Superintendent rather than by his paying over money to Board of Corrections for payment to teachers.

Honorable Jack Forrester Director, State Board of Corrections

August 2, 1962

I am pleased to acknowledge receipt of and answer your letter relating to House Bill No. 1011 (Act No. 923) enacted at the last Regular Session of the Georgia General Assembly. House Bill No. 1011
amends Section 7 of the Minimum Foundation Program of Education Act approved February 25, 1949 (Ga. Laws 1949, p. 1406) relating to teachers and teachers' salaries by adding at the end thereof the following additional paragraph, to wit:

"As to those local units wherein the State Board of Corrections maintains an institution primarily for the detention of persons within school age and operates within such institution an elementary, secondary or vocational school for the education of such school age children, the State Board of Education shall allot additional funds sufficient in amount to enable the local unit to furnish certified teachers to such school at a salary commensurate with the State minimum salary schedule, provided however, that the course of instruction offered at such school shall satisfy minimum academic requirements established by the local board of education. The State Board of Education may in its discretion make salary allowances for the employment of such teachers for an additional two months where the schools in such institutions are operated on a 12 month basis."

The foregoing legislation, according to the information available to me, is presently applicable only to the Georgia Industrial Institute at Alto, Georgia, and the Habersham County school system. In reference thereto you ask if it is possible for the State money that is to be allotted the local unit for payment of salaries of teachers assigned to teach at the Institute to be disbursed by the State Department of Education to the county superintendent of schools of Habersham County and then transferred by the county superinte.ndent to the State Board of Corrections for individual payment to the teachers concerned. You state that such an arrangement is desired so that the subject teachers might come under social security insurance coverage provided employees of the State Board of Corrections. I am of the opinion that such an arrangement is not possible.

Each county in Georgia, exclusive of independent school systems located therein, composes one school district, and admission to the public schools of each such school district is gratuitous to the children between the ages of six and eighteen residing therein. Georgia Code, Ann., Sections 2-6801, 32-901 and 32-937. The school age minors detained by the Board of Corrections at the Georgia Industrial Institute

161
at Alto, Habersham County, Georgia, are not considered as residing in Habersham County for school purposes, they being only fortuitously located and detained in that county and within that institution by the Board of Corrections. The county board of education therefore has no duty to maintain and has not heretofore maintained a public school as such in the county or within such institution for the education of these persons. House Bill No. 1011 recognizes this fact" for it presupposes the establishment of elementary, secondary and vocational schools in such institutions by the Board of Corrections. To further and to foster this worthy cause, however, the legislature, by enacting into law the provisions of House Bill No. 1011, has provided that where such schools are established by the Board of Corrections the local unit of school administration, Habersham County school system in this case, shall provide certified teachers for such schools at a salary commensurate with the State minimum salary schedule, and has directed the State Board of Education to allot additional funds to such loca1 units sufficient in amount to pay the salaries of such teachers provided the curricula offered at such schools shall satisfy the minimum academic requirements established by the local unit's board of education. The intent of these provisions are, in my opinion, threefold, i.e., first, to insure quality instruction at such schools; second, to require a course of instruction to be offered that will be such that the students satisfactorily completing same will not only profit therefrom but will also be entitled to obtain full credit therefor in the regularly established public schools of this State upon their release from such institution; and three, to relieve the State Board of Corrections from the burden of obtaining and supplying such teachers and to make sure that the taxpayers of the local unit of administration do not have to pay any part of the salaries of such teachers. Although it is the responsibility of the State Board of Corrections and not the local unit of school administration to establish such schools and to construct, equip and maintain the plant facilities and physical needs of such schools where such are desired, it is nevertheless made clear from the foregoing that it is the responsibility and duty of the local unit of school administration to furnish certified teachers needed at such schools Whenever the same are so established and to pay the salaries of such teachers from funds received from the State Department of Education a!lotted for such purpose. The subject teachers must therefore be conSidered as being employees of the local unit of school administration and subject to the supervision and control of the local superintendent ?f schools and not employees of the State Board of Corrections or subJbect to the control of same. This being the case, such teachers must
e employed by local units in the same manner other teachers are employed, to wit, pursuant to Code Section 32-604, which provides in Part as follows:
".... In the local units of administration, the several teachers, principals and other school employees shall be elected by the boards of education on the recommendation of the respective superintendents.... Contracts for teachers, principals and other Professional personnel shall be in writing, signed in duplicate by the teacher in his own behalf, and by the superintendent of schools on behalf of the board."

162
The contract salaries of such teachers are to be included in the budgets prepared by such local units of administration in accordance with relevant provisions of the Minimum Foundation Program of Education Act. State funds apportioned to such local units are disbursed to the local units pursuant to the provisions of said Act and then disbursed by local superintendents in accordance with the budget, contracts and outstanding indebtedness of the local unit, and the monthly statement of the local superintendents of the sums due and unpaid prepared and submitted to the State Superintendent of Schools pursuant to Code Section 32-920, which statement includes a listing of teacher salaries due and payable.
Local superintendents of schools are liable on their official bonds for the proper expenditure of all educational funds placed in their hands. Code Section 32-941. State funds allotted and disbursed to local units for payment of teachers' salaries are educational funds, due and payable to the teachers concerned pursuant to their contracts of employment. I know of no lawful manner whereby any of such funds might lawfully be diverted by the local superintendent of schools and paid to any person or agency not directly entitled by law to receive the same. I am of the opinion therefore that the subject teachers are entitled to and must be paid their salaries by the superintendent of schools pursuant to their contract of employment, and that it would be an unlawful expenditure of educational funds for the superintendent of schools to pay over the subject money to the State Board of Corrections. I further believe this to be implicit from the language of House Bill No. 1011 itself, to wit, " ... the State Board of Education shall allot additional funds sufficient in amount to enable the local unit to furnish certified teachers to such school at a salary commensurate with the State minimum salary schedule...."I might add, in addition to the foregoing, that even if it were permissible in some manner to so divert these funds, such circuitous diversion of same through the State Board of Corrections would not have the effect of making such teachers employees of the State Board of Corrections. They would still be employees of the local unit of school administration.
EDUCATION-Georgia Industrial Institute
Department of Corrections may supplement salaries of teachers at Georgia Industrial Institute who are provided by local Board of Education.
October 10, 1962
Honorable Jack M. Forrester Director, State Board of Corrections
This will acknowledge and reply to your letter relating to whether the State Board of Corrections may supplement salaries of teach~rs provided by local Board of Education who teach at Georgia Industnal Institute at Alto.

163
The Constitutional and statutory provisions relative to the question you ask are set out hereafter.
Article VIII, Section 1, Paragraph 1, Georgia Constitution, provides in part:
"The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the E)xpense of which shall be provided for by taxation."
Georgia Laws 1956, page 161, et seq., Section 10, (Code Annotated 77-306) provides in part as follows:
"The Director of Corrections, with the consent and approval of the State Board of Corrections, is hereby authorized to appoint and employ such clerical force as is necessary to carry on the administration of the penal system, and such experts and technical help as needed, assistants to the Director, wardens and guards, and other employees necessary for the operation of the State-operated institutions where prisoners are confined." (Emphasis supplied.)
Georgia Laws 1956', page 161, et seq., Section 11 (b), provides as follows:
"The State Board of Corrections shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training and hospitalization of all prisoners coming under its custody." (Emphasis supplied.)
The responsibility for education of the youth of the State certainly carries into the operation of the Georgia Industrial Institute at Alto, where youthful persons are detained.
. By virtue of the above provisions of law, I am of the opinion that 1t would be proper for the State Board of Corrections to supplement the salaries of teachers at Alto, said teachers being provided by the 1ocal County Board of Education.

EDUCATION-Georgia Industrial Institute

State Department of Corrections, which has responsibility for

oIIp~ebraetrios~naom fCGo ue onrtgyitao Ionbdtuasi nt r iFaeldIenrsatlipt uatret i caitp aAtlitoon,

may c in cost

ontract with of materials

an thqmpment used in connection with instruction in fields of science,

ra ematics and modern foreign languages pursuant to National De-

ense Education Act.

October 22, 1962

IIStontorable J. M. Forrester, Director a e Board of Corrections
e ~ am pleased to answer your letter regarding the acquisition of t~UI~~e;nt and materials for Georgia Industrial Institute school under
e .~.~atwnal Defense Education Act program.

164
I rendered you opinions on August 2nd and October lOth of this year concerning establishment of the elementary and secondary school at the Georgia Industrial Institute at Alto, Georgia. These opinions discussed your authority under Georgia Code, Ann., Chapter 77-3 to establish and operate the subject school, and the relationship existing between the State Board of Corrections and the Habersham County Board of Education under House Bill No. 1011 (Act No. 923) which was enacted by the 1962 Georgia General Assembly. I stated in the opinion of August 2nd that "... it is the responsibility of the State Board of Corrections and not the local unit of school administration to establish such school and to construct, equip and maintain the plant facilities and physical needs of such school. . . ." Your last inquiry relates to the acquisition of certain equipment and materials by the State Board of Corrections through the Habersham County Board of Education under the NDEA program.
Under Title III of the National Defense Education Act (Public Law 85-864) the Federal government annually allots Federal funds to the State Department of Education to be used for the purpose of defraying 50% of the costs of laboratory, audio-visual and printed materials and equipment used in connection with instruction in the elementary and secondary schools of the State in the fields of science, mathematics and modern foreign languages. The Department of Education allocates NDEA funds to local school systems on the basis of the number of State-allotted teachers in each local school system. Local school systems determine their need for such materials and equipment, submit their plan for participation under the NDEA program to the State Department of Education, provide the matching funds needed in order to purchase the same and, when their plan is approved, purchase such materials and equipment and receive their NDEA funds from the State Department of Education.
Under House Bill No. 1011, the State Department of Education is required to allot additional teachers to the Habersham County School System for assignment to the elementary and secondary school at the Industrial Institute. In accordance with the approved State plan for administering the NDEA program, additional Federal NDEA funds will therefore be allotted to the Habersham County School System on the basis of the number of additional State-allotted teachers allocated the County School System for the purpose of teaching at the Industrial Institute school. The costs of establishing and operating the school at Alto is, however, in all other respects, to be borne by the State Board of Corrections and it is not anticipated that any part of such costs is to be borne by the taxpayers of Habersham County. Matching funds, therefore, required for the purchase of the subject materials and equi~f ment will have to be provided by the State Board of Corrections 1 such materials and equipment are to be acquired under the NDEA program.
The Constitution of Georgia provides, in Article VII, Section VI, Paragraph I (a), Code Section 2-5901 (a), in part, as follows:
"(a) The State, state institutions, any city, town, municipality or county of this State may contract for any period not

165

exceeding fifty years, with each other or with any public

agency, public corporation or authority now or hereafter created

for the use by such subdivisions or the residents thereof of any

facilities or services of the State, state institutions, any city,

town, municipality, county, public agency, public corporation or

authority, provided such contracts shall deal with such activities

and transactions as such subdivisions are by law authorized to

undertake."



I am of the opinion that under Code Section 2-5901 (a) the State Board of Corrections may, in order to take advantage of the NDEA program, contract with the Habersham County Board of Education for their services and facilities in this regard, particularly since the
local school system will from year to year know best what materials and equipment are needed at the subject school for the proper instruction of the sciences, mathematics and modern languages. Such contract should provide that funds necessary to match Federal NDEA funds will be provided by the State Board of Corrections. Under the NDEA Act, title to such materials and equipment will have to vest in the Habersham County Board of Education. The contract in this regard, therefore, should provide that such materials and equipment
as may be purchased in this manner shall be used exclusively in the school operated by the State Board of Corrections at the Georgia Industrial Institute at Alto.

EDUCATION-Public Schools (Unofficial)

Georgia law requires Bible reading in public schools.

March 30, 1962

Honorable Franklin L. Kury Attorney General
Commonwealth of Pennsylvania

I am pleased to acknowledge receipt of and answer your letter regarding reading of the Bible in the public schools of this State.

Georgia law requires that at least one chapter of either the Old

Ir New Testament be read each day in the public schools of this State.

a~ attaching hereto a copy of an official opinion rendered by this

offrce to the Governor of Georgia on April 25, 1956. This opinion sets

forth the relevant statutory provisions of this State and discusses the

cUon_stitutionality of same under provisions of both the Georgia and the

i.~~IIgtaetdioSntaintetshiCsoSntsatitteu

tions. The matter has not and this office has not ren

been dered

the an

subject opinion

of on

e subject matter of your letter since 1956.

166
EDUCATION-Public Schools (Unofficial)
State law requires that at least one chapter of either the Old or the New Testament of the Bible be read in each class of each public school every day.
December 4, 1962
Honorable Thomas B. Finan Attorney General of Maryland
Thank you for your letter relating to the case of Murray, et al. v. Curlett, 228 Md. 239, which is presently pending before the Supreme Court of the United States.
I will appreciate it very much if you will list me as joining with you in the filing of your amicus curiae brief in connection with this matter in the Supreme Court of the United States. If I can be of any assistance to you in regard to the preparation of this brief, please call upon me.
All public schools in the State of Georgia have open religious exercises at the beginning of classes each day, consisting of a reading of at least one chapter of either the Old or the New Testament of the Bible. This practice is required by provisions of Georgia Laws 1919, p. 296, as amended by Georgia Laws 1921, p. 156, which are codified in the Georgia Code, Annotated, Section 32-705 as follows:
"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."
The appellate courts of Georgia have never been called upon to either interpret or rule upon the constitionality of the provisions contained in the foregoing code section.
There are three provisions contained in the Constitution of Georgia which relate, directly or indirectly, upon this matter. They are as follows:
Article I, Section I, Paragraph XII (Ga. Code, Annotated, Section 2-112): "All men have the natural and inalienable right to worship God, each according to the dictates of his own con-

167

science, and no human authority should, in any case, control or interfere with such right of conscience."
Article I, Section I, Paragraph XIII (Ga. Code, Annotated, Section 2-113) : "No inhabitant of this State shall be molested in person or property, or prohibited from holding any public office, or trust, on account of his religious opinions; but the right of liberty of conscience shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State."
Article I, Section I, Paragraph XIV (Ga. Code, Annotated, Section 2-114): "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."

Prior to enactment of the provisions of law codified in Code Section

32-705 as shown above, the City of Rome, Georgia, enacted a city ordi-

nance requiring a reading of the Bible in the public schools of the city

at the beginning of each school day. The subject ordinance was at-

tacked as violating each of the three provisions of the Georgia Consti-

tution set forth above. The Supreme Court of Georgia held, in Wilker-

son, et al. v. City of Rome, et al., 152 Ga. 762 that the provisions of

the subject ordinance did not violate either of the three above-quoted

Provisions of the Georgia Constitution. The subject ordinance was not

attacked as violating any provisions of the Constitution of the United

States. I feel sure that the lengthy report of this case is on file and

available to you in your State Law Department.



If I can be of any further assistance to you in regard to the brief
to be filed in connection with the above stated matter, I shall be happy to cooperate with you.

EDUCATION-Pupil Placement (Unofficial)

Local boards of education may validly classify pupils according to sex and operate public schools under their jurisdiction accordingly.

October 3, 1962

br. W. G. Talbert, M.D. Member, Houston County Board of Education

You stated in your recent letter that the Warner Robins area pres-

ently has one Negro and one white high school and that it will soon be

ntecessary to provide an additional white high school in this area. You

~s~astteI.nfuterrthesetr

that at that time of the schools and

it may be found desirable and the pupils to reorganize these

in the white

Igh schools, classify the same on the basis of sex, and designate and o~erate one as Boys High and one as Girls High. In connection there-

ci:th You ask if it is possible or likely that the courts will ever require

ese schools to be re-established on a coeducational basis.

168
The question which you ask does of course involve the placement or assignment of pupils to particular school buildings for attendance purposes. The problem of assignment of pupils to schools in the public school system, though of much interest in recent years, is not new, for it has always been true since the beginning of public education that in every school system with more than one school the orderly administration, efficient use of teachers, classrooms, equipment and facilities, and other academic considerations including the maintenance of an academic atmosphere conducive to learning, has necessitated the use of some method or plan of placement and assignment of pupils. The placement of pupils in the public schools has heretofore been rather routinely handled by the marking off of geographical attendance areas for each of the various public schools within the jurisdiction of a local school system. Our courts have through the years generally recognized and held that governing authorities of public school systems have broad authority over operation of schools within their jurisdiction, and it has never to my mind been seriously contended that such broad authority does not include, among other things, authority to designate the particular school each child of school age is to attend. In some states, not including Georgia, statutes expressly confer pupil placement powers upon local boards of education, but such an express grant of this specific power is generally thought to be unnecessary because statutes generally confer upon local boards powers sufficiently broad enough to encompass the placement or assignment of pupils. Courts have rather uniformly held such power to be an inherent power of the board vested with control and management of local public schools, and such is the case in Georgia.
In Georgia each county composes one school district and is confined to the control and management of a county board of education. Georgia Code Ann., 2-6801 and 32-901. These county boards of education are vested with title, care and custody of all schoolhouses and school property within their jurisdiction and are given express authority to control the same in such manner as they think will best serve the interest of pupils and welfare of the schools, and they are further expressly authorized to make all arrangements necessary to the efficient operation of the schools within their jurisdiction. Georgia Code Ann., 32-909. Local boards, together with the county superintendent of schools, are required to promulgate reasonable rules and regulations to govern the operation of local schools, and the constitutional right of every child to attend the public schools is always subject to the provisions of reasonable rules and regulations promulgated by the local school board. Georgia Code Ann., 32-912; 47 Am. Jr. 412, Sec. 155. Further, local boards of education are, under Georgia Code Ann., 32-915 and 32-954, given express authority to consolidate and/or reorganize schools within their jurisdiction in such manner as the local board may, in its opinion, deem to be in the best interest of pupils and welfare of the schools. In conformance with the clear intent of the foregoing statutes, the local federal court has held that local boards of education in Georgia possess inherent pupil placement powers. See Calhoun v. Members of Board of Education of Atlanta, 188 F. SuPP 401, 408 (D. C. Ga. 1959). See also, in accord, 79 C.J.S. 360, Sec. 450, and Op. Atty. Gen. 1950-51, p. 41. The inherent pupil placement power

169

of local boards of education in Georgia has of course, since initiation of public education in this State and until recent years, been limited by statutory and constitutional requirements in one respect, i.e., that
separate schools be maintained for white and colored children. The decision rendered by the United States Supreme Court in Brown v. Board of Education, 347 U. S. 483; 74 S. Ct. 686, holds, however, that placement of pupils in the public schools by race is violative of the
equal protection clause of the Fourteenth Amendment. This decision has already and will undoubtedly continue to bring about some reorganization of public schools in this State and adoption of fairly broad, detailed pupil placement and pupil transfer plans by local boards of education.

The Brown decision dealt only with the question of the validity of

consideration of racial characteristics in the placement of pupils in

public school systems. It is a matter of common knowledge that certain

public schools have at one time or another since initiation of public

education in this State been operated, in Rome, Atlanta, Macon, Au-

gusta and probably other cities, on a basis of classification according

to sex. The same is generally true of other states. I have found no case

where such a basis of classification and operation of public schools has

ever been challenged in court. I do find however that such a basis of

classification and operation of public schools has, by dicta, been re-

ferred to and apparently approved by the court in at least two cases.

See Board of Education of Richmond County v. Cumming, 103 Ga. 641,

affd 20 S. Ct. 197, 175 U.S. 528 and State v. Duffy, 7 Nev. 342, 8 Am.

R. 713. See also, Blodgett v. Board of Education of Richmond County,

105 Ga. 463 and 79 C.J.S. 350, Sec. 446. These decisions antedate the ~rown decision. I am of the personal opinion, however, that the deci-

sron rendered in the Brown case and subsequent related cases to the

effect that public school pupils have the constitutional right under

the equal protection and the due process clauses of the United States

Constitution not to be segregated on racial grounds is not applicable

to segregation of public school pupils by sex. In this respect you will

recall that adoption of the Nineteenth Amendment to the United States

Constitution was necessary in order to insure equal suffrage rights to

~omen. It must be born in mind, however, that the Supreme Court,

lll~lg~iCeaclideifnfge

the Brown case, ct that racial seg

based regati

its decision on practices

in m

part upon the ps ay have upon stu

ychodents

a fected by such practices. Indeed, pupil placement plans approved in

recent years by federal courts often permit consideration of "the

Pshchological effect upon the pupil of attendance at a particular

hs.c~hoeodl"soacnidal

the and

effect of "the psychological

maintenance relationships

or severance of estabwith other pupils and

With teachers." See Calhoun v. Members of Board of Education of

Atlanta, supra. Whether or not the federal courts will someday &pply

such psychological and sociological criteria in such a manner as to P~ohibit segregation of public school pupils by sex is purely a matter 0 co!J.jecture. I personally cannot foresee the federal courts ever

Lntermg into such a matter. I am of the personal opinion stated above.

. ocal boards of education may, in my opinion, if they deem it to be

In the best interests of pupils and the welfare of the schools under their

170
jurisdiction, validly and without violating any provision of State or federal law, classify pupils according to sex and operate public schools under their jurisdiction accordingly.
EDUCATION-School Buildings
Boards of Education have implied authority to permit a private or public use, including a religious use, of school buildings and facilities when in their judgment the nature or period of use will not interfere with school operations.
April 10, 1962
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge receipt of and answer your request for an opinion on the question of whether it is legal for county boards of education to permit churches and/or religious organizations to use school facilities upon reimbursement for expenses incurred. This question is difficult to answer. I find no specific statutory provision, court decision, or opinion rendered earlier by this office clearly decisive of the matter.
The right of the public generally to use public school facilities for purposes disconnected with school educational activities is a matter that is subject to legislative control, People v. Parker, 138 N Y S 2d 2, because either the legal or beneficial title to such property vests in the State. People v. Deatherage, 401 Ill. 25, 81 N E 2d 581. The State may generally, without notice, hearing or payment of compensation, vest or transfer legal title to such property to or from one school district, board or agency to another, and likewise control the management and use thereof. See Bailey v. Board of Education of Elbert County, 213 Ga. 308 and Young v. Board of Truseees, 90 Mont. 576, 4 P2d 725. In some jurisdictions legal title to public school facilities is vested in the state by statute. In such jurisdictions local school systems or boards of education use such facilities in conformance with statutory authority, which authority often times permits the use of such facilities for other general or specifically enumerated public or private purposes or, on the other hand, specifically prohibits the use of such facilities for any purpose other than school purposes. In other jurisdictions, the State vests title to school facilities in local trustees or boards of education, subject of course to divestment, and again by statute specifically permits or prohibits use of such facilities for purposes disconnected with school activities. Probably in most jurisdictions statutes do not specificallY permit or prohibit use of school facilities for purposes disconnected with school activities, and the question of whether such facilities maY be so used is dependent upon a consideration of where the title to such
!'- property is vested and the extent to which local trustees or boards are
given power to control, manage, use and care for such facilities. state need not, either by statute or by implication, make school fac1l-

171
ities available for public or private meetings outside regular school hours, but if it elects to do so expressly by statute then a right to use the facilities for the enumerated purposes exists and local school authorities cannot arbitrarily deny use of such facilities at proper times for such authorized purposes, or extend such use to other purposes than those enumerated. Danskin v. San Diego Unified School District, 28 Cal. 2d 536, 171 P2d 885. If such use is prohibited by statute then of course the answer is obvious. If there is no specific statute directly authorizing the use of such facilities for other than school purposes, or limiting the use of same to school purposes, then the question is whether local boards of education have implied authority to permit such use to be made of such facilities. If such implied authority exists as opposed to express statutory authority, then the matter calls for a greater exercise of discretion on the part of local boards of education. Thus, in accordance with either express or implied statutory authorization, local boards of education or school authorities have permitted school buildings to be used for public assemblies or meetings, including political meetings and for community activities or purposes, including recreational, educational and social activities such as dances, games, lectures, musical concerts, shows and various forms of entertainment, where such activities do not disturb the educational program of the public school. See Goodman v. Board of Education, 48 Cal. App. 2d 731, 120 P2d 665; Burrow v. Pochantas School District, 190 Ark. 563, 79 S W 2d 1010; Trustees v. Johnson County Democratic Executive Committee, 122 Tex. 48, 52 S W 2d 71; Ristine v. School District, 26 Pa. Dist. & Co. 655; Young v. Board of Truseees, supra; Cannon v. Towner, 188 Misc. 955, 70 NY S 2d 303; Harmon v. Driggers, 116 S. C. 238, 107 S E 923; State ex rei Greisinger v. Grand Rapids Board of Education, 88 Ohio App. 364, 100 N E 2d 294, Cert. den. 71 S. Ct. 51, 340 U. S. 820, reh. den. 71 S. Ct. 733, 341 U. S. 917.
There is no specific provision in Georgia law directly authorizing or. prohibiting use of public school facilities for purposes disconnected Wlth school activities. Code Section 32-909 does however vest legal t!tle ?-Tid complete control of school facilities in local boards of educatlOn m the following language:
"The county boards of education shall have the power to purchase, lease, or rent school sites; build, repair, or rent schoolhouses, purchase maps, globes and school furniture, and make all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title, care, and custody of all schoolhouses or other property, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of !he board, any school site has become unnecessary or inconvenIent, they may sell the same in the name of the county board of education. . . ." (Emphasis added.)
.As stated by the Georgia Supreme Court in Bailey v. Board of Education, supra, the foregoing code section expressly vests title, complete ~hre and custody, and exclusive control of public school facilities in
e rnernbers of local boards of education, including the power to sell and dispose of same when no longer needed, subject only to the ad-

172
monition that they control the same in such manner as "they think" will best serve the interests of the common schools which, of course, is the primary reason for existence of such facilities. I am of the opinion that under such a grant of authority and power local boards of education are impliedly authorized to control local school facilities to the extent that they may in their discretion permit other. than school uses to be made of same on occasion provided that the interests of the common schools are not adversely affected thereby. They may not be compelled to do so however. Note Sweet v. Board of Education, 36 NY S 2d 635, 264 App. Div. 439; Dickenson v. Board of Truseees, 204 S W 2d 418. This opinion is, I believe, in accordance with the general rule and weight of authority as reflected in the above cited cases. This opinion is likewise believed to be in accordance with earlier opinions rendered by this office to the effect that a local board of education may permit private persons to use school facilities in conducting, for compensation, private music lessons after regular school hours, (Ops. of the Atty. Gen., 1956, p. 207) and recognition at least in a 1952 opinion that "it has been the general custom in the various counties of the State to use school buildings for community meetings, civic activities, elections, school recreation and other similarly allied purposes." (Ops. of the Atty. Gen., 1952, p. 73). In the latter unofficial opinion referred to, this office did not answer the question here sought to be answered.
As to whether school facilities may be used for church or religious activities as opposed to other forms of community activities, the authorities are not in harmony. In 47 Am. Jur., "Schools", Section 213, p. 453, it is stated:
"The power of the school authorities to prohibit the use of a school for religious worship is apparently well recognized.... But as to whether the school directors may permit a schoolhouse to be used for religious purposes outside of school hours, the decisions are not in entire harmony. Authority exists for the view that a schoolhouse may be used for religious meetings where the religious services do not interfere with the use of the building as a school, are so infrequent as not to turn the building into a place of worship, and impose no burden of expense on the taxpayers. In other jurisdictions, public school buildings may not be used for religious meetings in the absence of a statute on the subject. However, the specific authority of statutes may be invoked to grant the use of schoolhouses for religious purposes, enactments permitting school directors to do so having been held constitutional."
It appears that the greater weight of authority holds that local boards of education may permit a schoolhouse to be used for religious purposes, at least for a reasonable period of time, at such times and places as not to interfere in any manner with the operation of the schools themselves. See State ex rei Gilbert v. Dilley, 95 Neb. 527, 145 N W 999; Townsend v. Hagen, 35 Iowa 194; Hurd v. Walters, 48 Ind. 148; Boyd v. Mitchell, 69 Ark. 202, 62 S W 61; Eckhardt v. Darby, 118 Mich. 119, 76 N W 761; Logan v. Hill, 238 Ill. 428, 87 N E 369;

173
Baggerly v. Lee, 37 Ind. App. 139, 73 N E 921; Greenbanks v. Boutwell, 43 Vt. 207; Nichols v. School Directors, 93 Ill. 61, 34 Am. Rep. 760; Lewis v. Board of Education, 157 Misc. 520, 285 N Y S 164. In the latter cited Lewis case, involving a citizen's action to enjoin such use by a religious group, the New York court stated:
"Rather than inimical to the educational policy of the State, or subversive of legitimate use, it is a wholesome thing to have the school buildings, which are maintained at large expense by the taxpayers, used for the purposes and by the groups whose exclusion is here sought.''
Of course there is no right to use school property for religious purposes without consent and permission of local school authorities, and once such permission is given it may be curtailed at any time at the discretion of such authorities. School Directors v. Toll, 149 Ill. App. 541. A reasonable charge sufficient to cover incidental expenses incurred and to secure damages may generally be made by local school authorities. Lincke v. Moline Board of Education, 245 Ill. App. 459; Davis v. Bogert, 50 Iowa 11. Many of the foregoing cases cited involve express statutory authority permitting such use of school property, but I am of the opinion that the same principles likewise apply where such authority is deemed to be implied from statutes. There are cases to the contrary, however. See Dorton v. Hearn, 67 Mo. 301; Hysand v. Gallitzen School District, 164 Pa. 629, 30 A 482; Spencer v. School District, 15 Ran. 259, 22 Am. Rep. 268.
Constitutional questions have arisen on occasion respecting the constitutionality of permitting religious groups to use tax constructed and supported public buildings for religious purposes. In this regard, ~he <?eorgia Constitution, in Article I, Section I, Paragraph XIV (Code ~ectwn 2-114) provides:
"No money shall ever be taken from the public treasury, d!rectly, or indirectly, in aid of any church, sect, or denomination of religionists, or any sectarian institution.''
The foregoing constitutional provision applies to municipalities and counties as well as the State. Bennett v. City of LaGrange, 153 Ga. 4~8. In State ex rei Gilbert v. Dilley, supra, and in Nichols v. School Directors, supra, the Supreme Courts of Nebraska and Illinois held ttohaotc~itasiisonnaoltlyunucsoenastpituubtiloicnascl htooopl ebrumilidtinagcfhourrcrheliogrioaursepliugripooussegs,rothupe constitutional question there brought in issue being essentially the s~me as might be raised under the above stated provision of the Geor~1!1 Constitution. The Nichols case involved a specific statute author~hng such use of public school buildings and the court there held that . ~ statute was not unconstitutional, the court applying the de min-
Ir1T1s doctrine insofar as the public treasury and the pecuniary interest anr individual taxpayer might be concerned. In Spencer v. School u:stnct, supra, the Kansas Supreme Court reached a contrary result, c e court taking a rather extreme position that a school building eannot under any circumstances be used for any private purpose whatcver. See also Scofield v. Eighth School District, 27 Conn. 499, but ompare Sheldon v. Centre School District, 25 Conn. 224.

174
I am of the opinion that in Georgia county boards of education have implied authority to permit a private or public use, including a religious use, to be made of school buildings subject to their management and control as they so desire and when in their judgment and discretion the nature of the use or the period of use of such property is such that it will not in any manner interfere with the operation of the public schools, that such use where reasonable is constitutional, but that county boards may not be compelled to permit such use of school property. This opinion does not conflict with the opinion rendered by this office regarding use of school buses as reported in Ops. of the Atty. Gen., 1955, p. 234.
EDUCATION-School Buses For Private Schools (Unofficial)
Georgia has no statute providing for free public school bus transportation for students attending parochial or private schools.
May 10, 1962
Honorable Thomas F. Eagleton Attorney General State of Missouri
Thank you for your letter relating to the decision rendered by the United States Supreme Court in the Everson case, 330 U. S. 1, pertaining to public school bus transportation for students attending public, parochial and private schools. I am familiar with the decision and I agree with you in regard to the probable meaning and effect of the decision.
Insofar as Georgia is concerned, each of the questions asked bY you must be answered in the negative. Georgia has not enacted anY legislation making provision for free public school bus transportation for students attending parochial or private schools. Georgia does have specific statutory authority authorizing county boards of education "to purchase motor vehicles and . . . equipment for the purpose of transporting pupils and school employees to and from public schools. . . ." (Emphasis added). See Georgia Code, Ann., Section 32-426. BY reason of lack of statutory authority authorizing free public school bus transportation for students attending parochial or private schools, the appellate courts of this State have not been called upon to consider any constitutional questions regarding such matter, and this office has not rendered any opinions respecting such matter. In thiS connection, however, I might point out that the Georgia Constitution, in Article I, Section I, Paragraph XIV (Code Section 2-114), provideS as follows:
"No money shall ever be taken from the public Treasury, directly or indirectly, in aid of any church, sect, or denomination of religionist, or of any sectarian institution."
Our courts have been called upon to construe and apply the above

175
constitutional provision in only a few cases. It is entirely possible that under the above constitutional provision, particularly as interpreted and applied by our Supreme Court in the case of Bennett v. City of LaGrange, 153 Ga. 428, a statute authorizing free public school bus transportation for students attending parochial schools might be held unconstitutional by our Supreme Court. Such might not be the case, however, in regard to statutory authority providing such services to students attending private schools.
I am informed by the State Superintendent of Schools that due to the recent increase in the number of private schools being incorporated and chartered for operation in this State some pressure is being generated for enactment of legislation providing free public transportation for students attending private non-sectarian schools. In this regard, therefore, I will greatly appreciate receiving a copy of any official opinion that you may render in connection with these matters.
EDUCATION-State Board of Education
Board of Education not liable for accidental injury to students.
March 15, 1962
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge receipt of and answer your request for an official opinion regarding the liability of the State Board of Education or the South Georgia Technical and Vocational School for ~ayment of medical expenses incurred by a student accidentally inJured while participating in a school basketball game.
By virtue of its sovereign immunity to suit, neither the State of G.eorgia nor its various agencies or departments is subject to suit d~rectly or indirectly except by express legislative consent. See Cunningham v. Macon and B. R. Co., 3 S. Ct. 292, 109 U. S. 446; Roberts v. Barwick, 187 Ga. 691; Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358; Printup v. Cherokee Ry. Co., 45 Ga. 365. The ?tate Legislature has not expressly consented to being sued in cases mvolving injuries of the nature referred to in your letter. The SuPreme Court of Georgia held, in Ramsey v. Hamilton, 181 Ga. 365, that a suit cannot be maintained against the Board of Regents of thfe University System of Georgia without express legislative consent 0 the State since such a suit would in effect be a suit against the State itself; The same would be true of the State Board of Education under whose authority State area trade, vocational and industrial schools such as that referred to in your letter are located, established and maintained. See Georgia Code, Ann., Section 32-2218 et seq.
:r'he appellate courts of this State have rendered a number of dec1sions relating to liability of public school systems and county

176
boards of education for accidental injuries received by students in the public schools. The principles established in such cases are likewise applicable to the question presented by you.
In Nabell v. City of Atlanta, 33 Ga. App. 545, a case involving an Atlanta high school student injured by a ripsaw in a vocational education course, the Court of Appeals, holding that the suit was properly dismissed on general demurrer, stated:
"The duty of educating citizenry is one that devolves upon the State of Georgia as a sovereign duty and in the performance of this duty the State is discharging a function of government. If the State performs this function through one of its municipalities, and delegates to the municipality such power as may be necessary for the education of the public, the municipal corporation likewise, in the discharge of such duty, is in the exercise of a . . . governmental function. . . ."
In Hale v. Davies, 86 Ga. App. 126, the Court of Appeals held that a high school student injured in a football practice could not obtain a recovery for such injury from the football coach. The Court stated further:
"Although the plaintiff was a member of the high school football team, he could not have maintained an action against the school for an injury received while practicing or playing on its football team. Since the physical education and training of school children of elementary and high school grades, including physical or gymnastic exercise, athletics, physical games, sports, and the like, are generally considered a governmental function . . . it is the general rule that school districts, school boards, and other agencies in charge of public schools enjoy immunity from tort liability for personal injuries or death sustained by pupils or other persons in connection therewith, in the absence of legislative enactment to the contrary. . . ."
See also Roberts v. Baker, 57 Ga. App. 733; Jordan v. Wiggins, 66 Ga. App. 534; Gazaway v. Nicholson, 61 Ga. App. 3; Ayers v. Board of Education of Hart County, 56 Ga. App. 146.
The above common law rules of nonliability of the sovereign state, its agents, agencies, departments and political subdivisions, when engaged in performance of governmental functions such as the operation of educational institutions, require that the question asked by you be answered in the negative.
I might additionally point out that this office rendered to you an opinion in 1947 relevant to the question of whether the State Board of Education is legally responsible under the Workmen Compensation Act for accidental injuries received by students enrolled in the State training and vocational school at Americus, Georgia. I was of the opinion at that time, and am still of the opinion, that pupils enrolled in such schools as mere students for training and education purposes only, and not under any form of contract of hire or appren

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ticeship such that would create a master-servant relationship or any form thereof, are not to be termed "employee" of the school within the meaning of such term as used in the Workmen Compensation Act, and that the school and State Board of Education therefore is not liable under such act for accidental injuries that might be received by pupils at such schools. See Ops. of the Atty. Gen., 1947, page 658.

EDUCATION-State Board of Education
Authority to employ or dismiss employees of the Department of Education is in the State Board of Education acting on the recommendation of the Superintendent of Schools.

Honorable James S. Peters, Chairman State Board of Education

December 14, 1962

I am pleased to acknowledge receipt of and answer your letter wherein you request an official opinion regarding the following question:

"Does the State Superintendent of Schools have the authority to dismiss an employee of the State Department of Education for causes considered justifiable under regulations of the State Merit System, or does such authority lie in the State Board of Education with the right resting with the State Superintendent of Schools to recommend employment and dismissal of employees?"

This office has rendered four opinions since 1949 dealing with the question which you ask in your letter. They are not in complete harmony with each other, primarily because the law in respect to this matter has presented some difficulties regarding interpretation. This fact, together with the fact that certain legislation has been enacted and certain relevant decisions have been rendered by the S?preme Court of Georgia since that date, compels me now to reconSider the interpretation this office has heretofore placed upon statutes relevant to your question.

The State Board of Education is a constitutional board. Article
YIII, Section II, Paragraph I of the Constitution of Georgia adopted
Ill 1945 (Code Section 2-6501) provides in part as follows:
"There shall be a State Board of Education, composed of one member from each congressional district in the State, who shall be appointed by the Governor, by and with the advice and consent of the Senate. . . . The State Board of Education shall have such powers and duties as provided by law and existing at the time of adoption of this Constitution, together with such further powers and duties as may be hereafter provided by law."

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At the time of adoption of the Constitution of 1945, the provisions of Sections 32-408, 32-409 and 32-411 of the Code of Georgia, Annotated, were as follows:
"The State Board of Education shall provide rules and regulations for the supervision of all public schools of this State; they shall provide a course of study for all common and high schools receiving State aid and may, in their discretion, approve additional courses of study set up by the local units of administration; provide for curriculum revisions and for the classification and certification of teachers. They shall make such rules and regulations as may be necessary for the operation of the common schools and for the administration of the common school fund."
"The Board shall prepare and submit to the Governor and General Assembly of the State of Georgia an estimate of the funds necessary for the operation of the State public school system."
"The Board shall set aside the necessary funds for the maintenance of the office of the State Department of Education and the State Superintendent of Schools, the amount and sufficiency of said funds to be in the discretion of the State Board of Education, said funds to be disbursed by the State Superintendent of Schools in the payment of salaries and travel expense of employees; for printing, communication, equipment, repairs and other expenses incidental to the operation of the State Department of Education."
And the provisions of Code Section 32-410, relating to employment and dismissal of employees of the Department of Education, were as follows:
"The Board shall have general supervision of the State Department of Education and shall employ and dismiss, upon the recommendation of the State Superintendent of Schools, such clerical employees, supervisors, administrators, and other employees as may be necessary for the efficient operation of the common school system."
The records of the Constitution Commission, 1943-44, Vol. 2, PP 62-63, reveal that the Commission unanimously agreed and intende.d that under the above stated provision of the then proposed Constitution the powers and duties of the Board of Education as enumerated in the above and other statutes then existing would become "frozen" into the Constitution itself. The proposed Constitution was, of course, ratified in the 1945 General Election. (The 1962 General Assembly repealed the provisions of law codified in the above quoted code sections, but again re-entered the essential provisions thereof in Code Section 32-408, as amended. See Georgia Laws 1962, p. 39.)
The State Superintendent of Schools is likewise a constitutional officer. Article VIII, Section II, Paragraph I of the Constitution of 1945 (Code Section 2-6601) provides in part as follows:

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"There shall be a State School Superintendent, who shall be the executive officer of the State Board of Education. . . ."
The powers and duties of the State Superintendent of Schools are specified in a number of statutes, a few of which are relevant to the question asked by you. Section 32-501 of the Georgia Code, Annotated, provides as follows:
"The State Superintendent of Schools shall be eleCted by the people at the same time and in the same manner as the Governor and Statehouse officers are elected. A suitable office shall be furnished him at the seat of government. He shall be charged with the administration of the school laws and general superintendence of the business relating to the common schools. He shall prescribe suitable forms for the reports required of subordinate school officers and blanks for their guidance in transacting their official business, and shall from time to time prepare and transmit to them such instructions as he may deem necessary for the faithful and efficient execution of the school laws; and by what is thus communicated to them they shall be bound to govern themselves in the discharge of their official duties: Provided, there shall always be an appeal from the State School Superintendent to the State Board of Education."
The Georgia Code, Annotated, provides further in Section 32-504 as follows:
"The State Superintendent of Schools shall be the executive secretary of the State Board of Education, and the administrative officer of the State Department of Education. He shall enforce and administer the regulations adopted by the State Board of Education."
And Section 32-505 of the Georgia Code, Annotated, is to the same general effect, to-wit:
"The State Superintendent of Schools shall carry out and enforce all the rules and regulations of the State Board of Education and the laws governing the schools receiving State aid; he shall from time to time make such recommendations to the State Board as may affect the welfare and efficiency of the Public schools; he shall have authority to suspend a county superintendent of schools for (reasons stated) : Providing, of course, that all of his ;:tcts in this matter shall be subject to the approval of the State Board of Education, and the party so suspended may appeal his case to the State Board, whose decision shall be final."
Other statutes relating to the State Superintendent of Schools Primarily pertain to his relationship with superintendents of local school systems and his superintendence of their performance and compliance with State school laws, particularly those relating to distribution and use of State school funds.
The foregoing provisions of law, together with other public school

180
laws of Georgia enacted both before and after adoption of the Constitution of 1945 and codified primarily in the Georgia Code, Annotated, Title 32, are replete with provisions respecting the powers, duties and responsibilities of the State Board of Education. It is manifest from a reading of these statutes that the State Board of Education is vested with general supervision and control of the Department of Education, including its organization, operations and functions; is the policy-making body for the State Department of Education, and exercises general supervision over the public school systems of this State through administration of the common school fund. The State Superintendent of Schools is, on the other hand, the executive secretary of the State Board of Education and administrative officer of the Department of Education. He is charged with the primary duty of administering and enforcing laws governing schools receiving State funds and the rules and regulations of the State Board of Education, but he does so under the supervision and direction and final approval, particularly when his actions are contested, by the Board of Education. You will note in this regard the various provisions of law providing for appeals to the State Board of Education of decisions and actions of the Superintendent of Schools, and that at the time of adoption of the Constitution of 1945 Code Section 32-403 (Acts 1919, p. 292) then provided:
"... The Board shall be the final Board of Appeal to hear and decide on matters appealed from the State Superintendent. . . ."
This organizational framework, of course, contemplates full and complete cooperation between the State Superintendent of Schools and the State Board of Education and is premised on the proposition that the State Board will give adequate consideration to recommendations and suggestions of the Superintendent of Schools respecting operation of the public schools which he is authorized to make pursuant to Code Section 32-505. The foregoing is in accordance with prior opinions of this office.
The immediate question proposed by you, properly considered in light of the foregoing and the specific provisions of Code Section 32-408, as amended, will now be discussed.
I understand that your request for this opinion arises from a situation wherein the State Superintendent of Schools has dismissed an employee of the Department of Education effective October 1, 1962, that the employee has filed an appeal of his dismissal with the State Board of Education, which appeal is now pending a hearing by the Board, and that the employee contends in connection therewith that his dismissal is not yet final and that he is still on pay status with the Department of Education until such time as the State Board acts in regard to his dismissal.
Code Section 32-408, as amended, provides that the State Board of Education shall have general supervision of the Department of Education and shall employ and dismiss, upon the recommendation of the State Superintendent of Schools, such clerical employees, supervisors, administrators, and other employees as may be necessary for

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the efficient operation of the common school system. This language is similar to that contained in the other statutes quoted or referred to above to the extent that it specifies powers and duties of the State Board, relating in this instance to employment and dismissal of employees, but it differs from those statutes in that it is qualified by the language "upon the recommendation of the State Superintendent of Schools." I have heretofore sought to interpret the provisions of Code Section 32-408 as being directory only and not mandatory and to give it a practical construction by holding that the Superintendent of Schools has authority to dismiss employees of the Department of Education although some doubt existed in my mind as to the correctness of the interpretation of the law on this point. In an opinion rendered Honorable Edwin L. Swain, Director of the State Merit System, on August 30, 1951 (Opinions of the Attorney General 1951, p. 302), I stated:
"While the law is not clear on this point, it is my opinion that since the Superintendent is the executive officer of Department, he may dismiss an employee, but such action is subject to review by the Board."
Upon reconsideration of the matter, and based upon the decision subsequently rendered by the Supreme Court in Tripp v. Martin, 210 Ga. 284 (1954), I am compelled to withdraw prior opinions of this office that are to the effect that the Superintendent of Schools has authority to dismiss employees of the Department of Education.
The language of Code Section 32-408 is so similar to the language appearing in Code Section 32-604, to the effect that "In the local units of administration, the several teachers, principals and other school employees shall be elected by the boards of education on the recommendation of the respective superintendents," that I am of the opinion that the interpretation of the language appearing in the latter ~ode section rendered by the court in the Tripp case must control lllterpretation of the analogus language appearing in Code Section 32-408. See also, Code Section 32-631.
In the Tripp case, members of a local board of education sought by mandamus to compel the county superintendent of schools to execute contracts of employment with teachers not recommended for e~ployment by the superintendent. The court, construing the proVISions now contained in Code Section 32-604, unanimously held:
"The language of this section, 'shall be elected by the boards of education on the recommendation of the respective superintendents', is mandatory and not directive." (Citations omitted)
* * * *
"... it (is) the duty of the county school superintendent to recommend to the board of education all teachers having the necessary qualifications, ability and character. The board of education must select and employ those teachers needed from the number recommended by the county school superintendent.

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"The expediency of legislation is a matter for determination by the General Assembly . . . and not by this court; nor will this court inquire into the motives of the General Assembly in the enactment of legislation." (Citations omitted)
In a specially concurring opinion Judge Candler added the following:
". . . where the county school superintendent makes a recommendation of a person not satisfactory to the board of education, the board may decline to elect the person so recommended and require the superintendent to submit other recommendations."
Mandamus was denied the petitioners.
As regards Code Section 32-408 and the State Department of Education, the decision rendered in the Tripp case is applicable to dismissal of employees as well as to employment of employees.
In response to your question, therefore, I reach the following conclusions.
1. The Superintendent of Schools has no authority in law to employ or dismiss employees of the Department of Education but he has the authority and the duty to recommend employment and dismissal from employment of employees of the Department to the State Board of Education. Employees of the Department are employed and dismissed by the State Board of Education, but only on the recommendation of the Superintendent. The State Board may not concur with recommendations made by the Superintendent but the Board cannot employ or dismiss employees of the Department without a recommendation to such effect by the State Superintendent of Schools. Employees of the Department are governed by the rules and regulations adopted by the State Merit System Council and the State Board of Education is the Appointing Authority of the Department of Education within the meaning of such terms as used in such rules and regulations.
2. Until such time as an employee is dismissed by the State Board of Education on recommendation of the Superintendent of Schools, such employee is and remains an employee of the Department and on pay status.
3. When an employee is dismissed by the State Board on the recommendation of the State Superintendent of Schools, the causes necessitating such recommendation first made known to the Board but without a hearing thereon, then the employee may if he desires request and obtain a full hearing before the State Board of Education on the causes necessitating his dismissal as provided by the statutes referred to above. If after hearing and final decision of the Board, the employee is dissatisfied with the decision, he may file an appeal to the State Merit System Council. In this regard and to this extent,

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the opmwn of this office rendered to Honorable Edwin L. Swain on August 30, 1951, supra, is not withdrawn.
The opinions rendered to Honorable B. E. Thrasher, Jr. on November 28, 1951 (Opinions of the Attorney General 1951, p. 284) and to the Honorable George P. Whitman, Jr. on May 18, 1949 (Opinions of the Attorney General 1949, p. 517) are withdrawn to the extent that they are in conflict herewith. The opinion rendered the Honorable B. E. Thrasher, Jr. on December 22, 1950 (Opinions of the Attorney General 1950, p. 222) is not in conflict with this opinion.

EDUCATION-Teachers' Political Activities (Unofficial)
University professors and teachers in\public school system are not prohibited from engaging in political activities.
October 1, 1962
Mr. J. Eugene Alexander Douglas, Georgia

I am pleased to acknowledge receipt of and answer your letter wherein you ask if there is a law forbidding a teacher in the University System from engaging in political activities, such as display-
ing a political preference sticker on an automobile owned by the teacher.

The Georgia Code, Annotated, 40-2207 provides as follows:
"It shall be the duty and the functions of the Merit System Council:

* * * * *
(b) After public hearings to adopt and amend rules and regulations effectuating the Merit System of Personnel Administration which may be established under this Chapter. . . . Such rules and regulations shall prohibit political activity by any departmental employee of the Merit System Council or any employee covered under the terms of the merit system and shall provide that there shall be no discrimination against any person or employee because of political or religious affiliations . . . ."

University System and public school teachers do not come under

t~hoedemSeercittiosyn,sttehmereafpoprleic, aisblneottoapSptlaitceabelme ptolotyeeaecshegresneorfaltlhye.

The above University

Ystem and teachers in the public common school system of Georgia.

EfCode Chapter 40-22 relating to the establishment of a Merit System Personnel Administration and Code Chapter 40-25 relating to the

Thployees Retirement System is not applicable to such teachers.

e employment of teachers is not governed by any merit system

as such. Code Chapter 32-29 does, however, establish a retirement

184
system for teachers. The provisions of this Chapter contain no prOhibition of political activity applicable to teachers. They are not, therefore, barred by any provision of State law from engaging in political activities.
EDUCATION-Teacher Qualifications (Unofficial)
No specific residence requirements pursuant to Georgia law for teaching or becoming employed by State government.
March 28, 1962
Mrs. D. W. Selden Ewa, Hawaii
Your letter to the Governor has been forwarded to me for the purpose of answering questions presented in your letter pertaining to State residence requirements for teachers and for State employees.
There is no State law nor rule or regulation of the State Board of Education establishing any State residence requirement for teachers in the public schools of this State. As a matter of fact, in some State border areas persons residing in bordering states are certified and do teach in the public schools of Georgia. Georgia laws, as codified in Code Section 32-605, do require however that all persons teaching in the public schools of this State be certified by the State Board of Education. Code Section 32-605 reads as follows:
"32-605. Certification and classification of teachers.-The State Board of Education shall provide, by regulation, for certifying and classifying the teachers in the public schools of this State. No teacher, principal, supervisor, or superintendent other than county school superintendents, shall be employed in the public schools unless such person shall hold a certificate from the State Board of Education, certifying to his or her qualifications as such teacher, principal, supervisor, or superintendent, pursuant to the rules and regulations of the State Board of Education. The State Board of Education shall provide, by regulation, for the classification of all the teachers in the public schools of this State upon the basis of academic, technical and professional training and experience, and the certificate issued to each such teacher by the State Board of Education, or pursuant to its authority, shall indicate the classification of such teacher."
The State Board of Education has promulgated certain rules and regulations pertaining to the certification of teachers. I am enclosing a copy of same herein for your information, and I direct your attention particularly to page 10 thereof and the section entitl~d "Reciprocity". In order for you to be certified as a teacher in Georgia it will be necessary for you to secure from the office of Teacher Certification, State Department of Education, State Capitol, Atlanta 3,

185
Georgia, an application form for a teacher's certificate and complete and transmit same to said Department. It will additionally be necessary that you have a transcript of all credits earned at the college or university from which you graduated forwarded directly from such college or university to the office of Teacher Certification at the State Department of Education.
Georgia law does not prescribe any specific State residence requirement for persons desiring to be employed by various departments of State government. The same is true respecting County and City employment.
EDUCATION-Teaching of Communism (Unofficial)
1962 General Assembly adopted Resolution suggesting teaching of "Communism v. Americanism" in schools and colleges of State.
April 6, 1962
Honorable George A. Houghton Commission on Subversive Activities Department of the Attorney General Honolulu, Hawaii
In reference to your recent letter regarding Communism and subversive activities, the 1962 Georgia General Assembly adopted a Resolution suggesting the teaching of a comprehensive course in "Americanism v. Communism" in the high schools, colleges and universities of this State. The subject Resolution does not, of course, have the force and effect of law as such, but it is presently being considered by the State Board of Education and the Board of Regents of the University System of Georgia. The State Board of Education Presently contemplates the teaching of the tenets of Communism ~s opposed to Americanism in the high schools of this State in conJUnction with and as an integral part of presently established, required courses of instruction in history, economics, sociology, government and geography.
The Board of Regents of the State University System presently contemplates conducting a series of seminars during the coming sumtnter months for State high school teachers who will be called upon to each the comparative principles of Communism in the public high sc.hools during the forthcoming year. The purpose of these seminars ':V1ll be to better qualify the high school teachers to handle such subJect matter. To my knowledge the Board of Regents has not as yet tnade a decision regarding establishment of a specific course of instruction in Communism in the colleges and universities of this State Pur~uant to such Resolution. I am attaching hereto a copy of the SUbJect Resolution.
In 1953 the Georgia General Assembly enacted a "Subversive Activities Act". (Ga. Laws 1953, p. 216 et seq). This Act contains

186
rather explicit provisions defining the terms used therein, forbidding specifically designated activities termed by the Act to be subversive, and it provides penalties for violation of the Act. The subject Act additionally authorizes and directs this office, and particularly a Special Assistant Attorney General assigned to and under the jurisdiction and supervision of this office, to investigate, maintain records and files and, if necessary, prosecute any persons or organizations engaged in subversive activities within this State. The Act provides for coordinated action in these regards between this office and county and municipal police authorities and local prosecuting attorneys. The provisions of the subject Act, as amended, are codified in the Georgia Code as Chapter 26-9A. I feel sure that your local State library or appellate court library has a set of the Georgia Code.
Other than the foregoing, there is no other official State body or agency whose duty it is to concern itself specifically with subversive activities in this State.
EDUCATION-Term of Superintendent's Contract (Unofficial)
Board of Education of City of Commerce may not legally enter into a contract for a period of four years with its school superintendent, but is restricted to contracts of one year's duration for such purposes.
August 7, 1962
Honorable Mac Barber Commerce, Georgia
I am in receipt of your letter with reference to the proposed contract to be entered into between the Board of Education of the City of Commerce and the Superintendent of the Public School System for a term of four years.
The provisions of the Constitution of Georgia dealing with debts of counties and cities set out in Georgia Code Ann., Section 2-6001 provides:
"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 deficiency 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; ..."
In the case of Rawls v. The City of Jonesboro, 212 Ga., page 734, at page 736, it is stated by the Supreme Court:

187
"It is well settled that a municipality may incur liability for a legitimate expense without creating a debt within the meaning of Article 7, section 7, paragraph 1, of the Constitution of the State (Code, Ann., 2-6001), provided there be, at the time of creating the liability, a sufficient sum in the treasury which may be lawfully used to pay the liability incurred, or if a sufficient amount to discharge the liability can be raised by taxation during the current year. City Council of Dawson v. Dawson Waterworks Co., 106 Ga. 696 (32 S. E. 907); Tate v. City of Elberton, 136 Ga. 301 (71 S. E. 420); City of Waycross v. Tomberlin, 146 Ga. 504 (91 S. E. 560) ; Gulf Paving Co. v. City of Atlanta, 149 Ga. 114 (99 S. E. 374); City of Atlanta v. Gulf Paving Co., 25 Ga. App. 102 (102 S. E. 558) ."
In the City Council of Dawson v. Dawson Waterworks case, 106 Ga. at page 711, the Court states:
"It is a matter of public history that, from the very organization of the first subordinate public corporation in this State, the sums necessary to pay the expenses incident to the administration of public business were raised by taxation levied from year to year upon the person and property of the inhabitants. Public burdens of every nature were divided into annual sums and were discharged by annual taxes collected for the purpose. Almost without exception this was and has been the rule, not only in regard to the subordinate public corporations of the State, but in regard to the State itself. As a general rule, public officers are compensated by sums which are paid annually; in other words, it is now and has always been the rule that salaries and all expenses of government are paid by the year out of taxes raised during the year in which the service to be compensated was rendered."
In the case of Williamson v. Housing Authority of Augusta, 186 GRa., at page 673, the Court at page 685 in quoting from the case of
enfroe v. Atlanta, in 140 Ga., page 81, states:
"We know of no law which authorizes a city council to pledge the good faith of the city for payment of money in future years any more than to mortgage the city hall for the administrative purpose.. The city's good faith is a great asset, and no city council has the right to pledge it to evade the constitution."
. Based upon the authority of the Rawls v. City of Jonesboro case ~hted above, and the cases cited therein, it is our unofficial opinion that the City of Commerce cannot legally enter into a contract with
.e Superintendent of Schools for a period or term of four years ":1t.hout creating a debt of the municipality in violation of the prov21Slons of the Constitution of this State as set out in Code Section -6001.
It is our further unofficial opinion that the City of Commerce Inay enter into a contract with the Superintendent for a period of one Year provided that at the time there is a sufficient sum in the

188
treasury which may be lawfully used to pay the liability incurred, or if a sufficient amount to discharge the liability can be raised by taxation during the current year.
I would also like to call to your attention Act No. 899, passed by the 1962 Session of the General Assembly, Taxation for Independent School System, Georgia Laws 1962, page 628. I quote from Section 1 of said Act as follows :
"Section 1. Article VIII, Section VII, Paragraph I of the Constitution of Georgia grants authority to municipal corporations to maintain existing independent school systems and to support the same as authorized by special or general law. Every municipal corporation having an independent school system which it is permitted to maintain by Article VIII, Section VII, Paragraph I of the Constitution of Georgia, including any municipal corporation having an independent public school system established prior to the adoption of the Constitution of 1877, is hereby authorized to support and maintain the public common schools within such independent school system by levy of ad valorem taxes at such rate as may now or hereafter be fixed by law, upon all taxable property within the limits of such municipal corporation. The board of education of such municipal corporation or other authority charged with the duty of operating such independent school system shall annually recommend to the governing or fiscal authority of such municipal corporation the rate of the tax levy to be made, within the limitations now or hereafter fixed by law, upon all taxable property within the limits of the municipal corporation, and such taxes as levied and collected for support and maintenance of such independent school system by such governing or fiscal authority of such municipality shall be appropriated, when collected, by such governing or fiscal authority of the municipality to the board of education or other authority charged with the duty of operating such independent school system. Such funds shall be expended by the board of education or other authority charged with the duty of operating such independent school system only for educational purposes, . . ."
It would seem from this that the general arrangement for the financing of independent school systems by a municipality is intended to be carried out upon a year to year basis upon the annual recom mendations of the board of education to the municipality as to the rate of tax levy to be made by the municipal corporation, and upon such taxes as levied and collected for the support of such independent school system as appropriated when collected by the governing author ity of the municipality to the board of education.

189
EDUCATION-Use of Educational Funds (Unofficial)
Board of Education may not use its funds for laying out, altering, maintaining and improving a public, county-maintained road even though school transportation would be facilitated thereby.
August 3, 1962
Honorable Carl K. Nelson, Jr. Dublin, Georgia
I am pleased to acknowledge receipt of and answer your letter wherein you request an opinion relative to the proposed expenditure of education funds for acquisition of public road right of way.
You state in your letter that the new Laurens County high school is located on a dirt road six tenths of a mile long lying between and connecting Georgia Highways 31 and 117 and that school busses and other school traffic approaching the school along both highways must use this dirt road in order to reach the school; that the subject road is a county maintained road but is hazardous and almost impassable in bad weather, and that the county Commissioners of Roads and Revenues have arranged to have the State Highway Department pave this road if additional parallel right-of-way required by the State Highway Department is acquired and the road graded for paving by the Commissioners of Roads and Revenues. You state further that the Commissioners report that they do not have sufficient funds available to acquire the additional right-of-way needed and you ask if the county board of education would be authorized to expend school funds for this purpose.
You state that the subject road is a county maintained road. I ~ill presume therefore that the road is a public road, title to which IS in the county and not the county board of education, either by deed, condemnation, or by dedication.
The Georgia Constitution, in Article VII, Section IV, Paragraph I (3) (Code Section 2-5701 (3)) and the Georgia Code Annotated, in s.ection 92-3701 (3) authorizes counties to levy a tax for "educational purposes". Article VIII, Section XII, Paragraph I of the Constitution (Code Section 2-7501) and the Georgia Code Annotated, in ~ection 32-1118 further provides that the fiscal authorities of counties shall levy a tax for the support and maintenance of education. These local tax levies can be expended by local boards of education only for educational purposes. By the same token, the State allotted funds received periodically by your local board of education from the State Department of Education are a part of the State common school fund, and in regard thereto Code Section 32-942 provides in part as fallows:
"When said common school fund shall be received and receipted for, it shall be the duty of the officers authorized by law to receive such fund and keep the same separate and distinct from other funds, and said funds shall be used for educational purposes and none other...."

190
In Burke v. Wheeler County, 54 App. 81, the Georgia Court of Appeals stated:
"Public funds cannot be expended unless such expenditure is authorized by law, and money belonging to the public school funds cannot be used for any other than school purposes."
This of course has presented the inevitable and the constantly recurring question of what expenditures of school funds constitute valid expenditures for "educational" or "school" purposes? Little light has been shed upon this by the courts.
In Board of Commissioners of Twiggs County v. Bond, 203 Ga. 558 at 560, the Georgia Supreme Court stated:
"... the term, 'for educational purposes', is broad enough to cover all things necessary or incidental to the furtherance of education...."
Such statement, of course, is but a broad generalization which, if carried to its ultimate extreme, could include almost anything conceivable. Very few if any cases have dealt with specifics in this area of statutory interpretation but this office has however rendered many opinions on the matter. Some of these opinions bear some remote resemblance to the specific question asked by you, but most of them are inapplicable.
A board of education may acquire title to }and and construct improvements thereon necessary to the operation of the local school system, such as classroom buildings, athletic fields, gymnasiums and the like, and they may operate, maintain and repair the same as may be necessary by and through the expenditure of educational funds (Opinions of the Attorney General, 1954, p. 245), but educational funds cannot be expended to construct improvements such as gymnasiums and the like on property not owned by the local board of education. (Opinions of the Attorney General, 1957, p. 117). This line of opinions is not directly applicable to your question for your local board desires to expend educational funds not for improvements to be erected on school lands but to the contrary to expend such funds for the acquisition of land title to which is not to be vested in the local board of education but in another political subdivision, i.e. the county. These opinions help set the stage, however, for consideration of your question.
As indicated by the Twiggs County case, supra, some things are necessary to the furtherance of education, and therefore are proper. For instance, sewage disposal facilities and an adequate water supp~Y are necessary for the efficient operation of the public schools. ThldS office has therefore ruled that under a proper construction of cite code sections and a State Board of Education resolution defining what constitutes a "capital outlay" expenditure a local board of edu cation may expend capital outlay funds for the purpose of layi_ng sewage lines from a city sewer main to the site of a school, the c~ty
by its charter being prohibited from doing work beyond the eM
limits. (Opinions of the Attorney General, 1954, p. 243) A board of

191
education may likewise contract for the furnishing of an adequate water supply to its schools. (Opinions of the Attorney General, 1954, p. 244) In connection with sewage disposal and water supplies, it is entirely possible and likely that should the necessity arise this office would rule that "educational funds" might properly be expended for the purpose of obtaining necessary easements for the laying of sewage and water lines from a schoolhouse site across adjacent lands and to a nearby sewer or water main line, such services being necessary and not otherwise obtainable. If so, then how about transportation routes and access roads to public school houses? By the same token, had your board of education not located the subject school adjacent to a public road but some distance therefrom and had in effect landlocked the school, then it is likewise probable and likely that this office would similarly rule that your local board could expend educational funds to purchase or condemn not only the school site proper but also a right-of-way to the nearest public road so that access, ingress and egress to and from the school to the public road might be had, and pave or otherwise improve the same. Your local board's jurisdiction in such a matter would not extend to improving the public road itself, however, this being a matter not committed to the control of boards of education as hereafter pointed out. In so far as such sewer and water lines and access roads are concerned, such would in effect therefore become and be a part of the school site itself with title thereto and responsibility therefor vested in the local board of education.
In addition to the foregoing cited opinions, I have likewise heretofore ruled that educational funds cannot properly be expended for the purpose of installing a traffic signal on a State highway onehalf mile from a public school (Opinions of the Attorney General, 1957, p. 116), or for the purpose of paying a part of the cost of surveying and appraising taxable property in the county. (Opinions of the Attorney General, 1953, p. 341) Such expenditures were undoubtedly desirable, and would possibly have been beneficial to the !ocal school systems involved, but they were and are in my opinion Improper. These two opinions, however, as expressly indicated in the Iat.ter cited opinion, serve to bring into perspective the controlling pomt here involved. They involve situations wherein the undertakIng sought to be done and paid for with educational funds was of such a nature that it should properly be done or was otherwise bequired to be done by public officials or persons other than the local o~rd of education, and paid for from public funds other than those iehv1ed and collected for educational purposes. Such is, in my opinion,
e crux of the matter here involved.
Code Section 95-101 provides:
"All roads laid out for public use by an Act of the General Assembly, if not otherwise provided, or by an order of the ordinary or other authority having charge of county affairs, are declared to be public roads."
Code Section 95-102 provides:
"All roads used as post roads which are part of rural postal

192
routes shall be deemed public roads, and it shall be the duty of the county commissioners or the ordinary, as the case may be, to construct and maintain said roads in a reasonably passable condition as other public roads of the county are maintained."
Code Section 95-801, a part of the alternative road law, provides further in part as follows:
"The commissioners of roads and revenues, ordinary, or such other officer as has charge of county matters of each county, shall have the sole right to lay out, open, change, or discontinue public roads therein, and the sole management of the working of said roads...." (Emphasis added)
Code Chapter 95-2 provides specifically for the laying out and altering of county public roads and for the determination of and the payment of damages resulting therefrom. The commissioners, ordinary, or other officers having charge of county matters and county roads are adequately enabled to perform these duties by virtue of the specific taxing authority conferred in Article VII, Section IV, Paragraph I (6) of the Constitution (Code Section 2-5701 (6)) and Georgia Code Annotated, Section 92-3701 (6), i.e. authority to levy and collect taxes "to build and maintain a system of county roads". See also, Code Section 95-803.
In the Twiggs County case, supra, the court discussed the two general taxing powers under Code Sections 2-5701 and 92-3701 to levy taxes "for educational purposes" and "to build and repair the public buildings", the county there involved having sought to levy a 15 mill tax for educational purposes and in addition thereto a 15 mill tax for building and repairing public school buildings. The court defined the term "educational purposes" in the manner as quoted above in this opinion and then held that the tax levied for "educational purposes" fully covered the field of education, to include the construction of schoolhouses, and that such being the case the county could not additionally levy a tax for construction and repair of school buildings under the general power to tax "to build and repair . . public buildings."
I am of the opinion that the latter cited opinions and the Twiggs County case are applicable to and controlling of the question asked by you. Laurens county has general taxing power to levy a tax "to build and maintain a system of county roads". This is a broad taxing power, sufficiently broad enough to cover the expense of acquisition of the additional right-of-way needed to reconstruct and improve the public county road mentioned in your letter. I presume that such taxing power has and is being presently exercised, and such being the case the tax levied "to build and maintain a system of countY roads" has fully covered the field regarding county roads. The fiscal authorities of Laurens County therefore, by analogy to the Twiggs County case, could not levy a tax for the purpose of acquiring the subject right-of-way under the "educational purposes" taxing power. By the same token, therefore, the Laurens County Board of Educa

193
tion, being in possession of tax monies levied and collected under the "educational purposes" taxing power, has no authority to divert such tax monies to other county public officials to be used by them for purposes, such as for acquiring the subject right-of-way, for which other general taxing powers are provided by law.
For the foregoing reasons, I am of the opinion that it is the sole duty and responsibility of your local officials in charge of county matters to lay out, alter, maintain and improve the subject road in the manner they deem best suited to the needs of the county, and that your local board of education lacks jurisdiction in regard to these matters and is without authority to divert or to expend educational funds in connection with such matters, except possibly to the extent as may be indicated above regarding access roads. I have considered the provisions of Code Sections 32-909, 32-951 and the opinion of this office holding that local boards of education can expend educational funds to pay special assessments for improvements on streets bordering public schools (Opinions of the Attorney General, 1954, p. 245) and do not consider the same to be relevant or in conflict with this opinion.
EDUCATION-Workmen's Compensation (Unofficial)
Responsibility for compliance with Workmen's Compensation Act ~ith respect to employees of county school system rests with governIng authority of county such as county commissioners rather than with county board of education.
April 11, 1962
Honorable Franklin H. Pierce Attorney, Richmond County Board of Education
I am pleased to acknowledge receipt of and answer your letter Wherein you refer to an opinion written by this office on May 29, 1959 and ask if it is the responsibility of county fiscal authorities rather than county boards of education to provide workmen's comPensation insurance coverage on county school employees.
This matter has been discussed in a number of opinions rendered by this office including a rather comprehensive opinion rendered at a later date than the one referred to by you in your letter, to wit, on November 21, 1961. I am enclosing herein a copy of the latter opinion referred to, and a copy of two other opinions rendered by this office on August 22, 1958 and July 16, 1959 which, in conjunction with the one dated May 29, 1959, a copy of which you have, should answer the ~uestions asked by you in your letter. In the opinion rendered on
ovember 21, 1961, this office stated:
"I am of the opinion that legal responsibility for complying with the Workmen's Compensation Act, insofar as same apPlies to employees of a local county school system or county

194
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."
Such latter opinion of this office and the one referred to by you in your letter relate primarily to the general law relative to workmen's compensation insurance coverage on school employees of county school systems. You are aware, of course, that in Georgia we have many county school systems, quite a few city, independent school systems and yet a few combination city-county type school systems that were created and are governed in such matters as selection of board of education members and extent of taxing powers by special charter provisions which were adopted prior to adoption of the Constitution of Georgia of 1877. These few school systems, of which yours is one, are rather unique in varying respects, operating under both general provisions of law and yet special provisions contained in the original charters of such systems. Insofar as workmen's compensation insurance coverage of persons employed by independent school systems is concerned, this office rendered an opinion on March 7, 1952 which in effect held that such employees are employees of the subject municipality involved. A copy of that opinion, relating to such municipal independent school systems, is attached hereto.
You will note that the opinions attached hereto dated August 22, 1958 and July 16, 1959 relate to the City of Savannah and County of Chatham School System which was, like your school system, established prior to adoption of the Constitution of 1877. Such opinions clearly indicate that employees of school systems such as yours are to be provided workmen's compensation insurance coverage, but as to whether such coverage should be provided by the municipal authorities as opposed to county authorities is a question which, in accordance with the opinion of August 22, 1958, I prefer that you answer as attorney for the school system after consideration of the local laws governing creation of your school system. In regard to this point, I might state in passing that insofar as the State Department of Education is concerned your school system is regarded as being, for all practical purposes, a county school system.
ELECTIONS-Bonds (Unofficial)
Bond elections must be held in strict conformity with the Jaws governing same.
May 21, 1962
Honorable John W. Harrell, Sr. Ordinary, Lanier County
I wish to acknowledge receipt of your recent letter.
Code Section 87-202 provides as follows :
"Election on issue of bonds, how held.-The election pro-

195

vided for in the preceding section shall be held at all the voting or election precincts within the limits of the county, municipality, or political division, and shall be held by the same persons, in the same manner, and under the same rules and regulations that elections for officers of said county, municipality, or political division are held, and the returns shall be made to the officers calling or ordering the election, who shall, in the presence of and together with the several managers (who bring up the returns), consolidate said returns and declare the result. (Acts 1878-9, p. 40.)"

The Supreme Court of Georgia has held in the case of Berrien County et al. v. Paulk et al., 150 Ga. p. 829, that Code Sections 87-201 et seq. "prescribing the manner in which an election shall be held on the question of bonded indebtedness of counties, etc., shall be strictly construed." The court says on page 832 of the Berrien County case:

"'The policy of the law of this State is, and has been since the adoption of the present constitution, opposed to the incurring of debts by towns and cities; and it has therefore become the settled rule that all laws in reference to the course to be followed by the public authorities in obtaining consent to contract a debt in behalf of the taxpayers are to be strictly construed, and the consent of the taxpayers is never held to have been given in any case unless the requirements of the law providing the manner in which the debt shall be incurred have been strictly complied with in every material particular... .'" Citing the cases of City of Dawson v. Waterworks Co., 106 Ga. 732; Smith v. Dublin, 113 Ga. 836; City of Thomasville v.
Thomasville Electric Light Co., 122 Ga. 399.

The court further says :

"Of course the same policy and rule apply to the incurring of debts by counties."

I think that it should be obvious from the case cited that if the
1stat~te v;.as not complied with in your county in the holding of the
e echon by the same persons, in the same manner and under the same rules and regulations that elections for officers of said county
are held" that the bond election would be invalid.

.Of course you understand that it has long been the established

Pohcy of the State Department of Law to not give any opinion in any

matter which is in controversy on a local level for the reason that such

~haeretfeor.sr~,coitmwe owulidthniont

the jurisdiction of the county attorney, and be appropriate for this Department to express

any opmwn on such questions.

196
ELECTIONS-Candidates (Unofficial)
Discussion of residence requirements of candidates for public office.
August 27, 1962
Honorable N. R. Haworth Superintendent Cochran Public Schools
Thank you for your letter referring to Code Section 89-101 (7) which provides in part that "No person shall be eligible to hold any county office in any county unless he shall have been bona fide a citizen of the county in which he shall be elected or appointed at least two years prior to his election or appointment . . ."; and inquiring as to whether the term "election" as therein used includes a primary for the nomination of party candidates.
In my opinion, the term "election" as used in such context does not include a primary.
ELECTIONS-Candidates for General Assembly (Unofficial)
Discussion of petition requirements for candidates for General Assembly.
May 30, ~962
Honorable E. Ralph Ivey Rome, Georgia
Thank you for your letter inquiring as to: (1) whether the 5% petition, provided for by Code Section 34-1904,1 of a candidate for membership in the State House of Representatives should be ad dressed to the ordinary of his county or to the Secretary of State; (2) whether such a 5% petition should be filed with the ordinary or with the Secretary of State; (3) whether, in the case of a county having plural representation in the House, the 5% petition should specify the seat sought; (4) the proper manner of addressing a 5% petition of a candidate for State Senator; and (5) the proper manner of filing a 5% petition of a candidate for State Senator.
The answers to your inquiries are governed primarily by the pro visions of Code Section 34-1904.
In answer to your first and fourth inquiries, we should note that Code Section 34-1904 does not require that the petition be addressed to anyone. However, if a candidate desires to address his petition, I suggest that it be addressed to the public official with whom the candidate files his notice of candidacy. Consequently, the petition
1. Georgia Laws, 1962, p. 618.

197
should be addressed to the ordinary of the candidate's county in the case of a candidate for State Representative and to the ordinaries of the counties within the candidate's senatorial district in the case of a candidate for State Senator.
In answer to your second inquiry, the petition of a candidate for State Representative should be filed with the ordinary. of his county and not with the Secretary of State.
In answer to your third inquiry, I believe it would be good practice for the petition of a candidate for State Representative in a county having plural representation in the House to specify in his petition the seat he is seeking.
In answer to your fifth inquiry, a counterpart of a petition of a candidate for State Senator should be filed with the ordinary of each county within the senatorial district.

ELECTIONS-Constitutional Amendments (Unofficial)
A majority vote sufficient to pass a constitutional amendment is a majority of the votes cast and need not be a majority of the total electors entitled to vote.

Honorable Frank M. Edenfield Millen, Georgia

October 23, 1962

This letter is written in connection with our telephone conversation o~ t~day wherein you inquired as to what constitutes a "majority" Wlthm the meaning of Paragraph I of Section I of Article XIII of the State Constitution (Ann. Code Sec. 2-8101), which provides as follows:

"A proposed amendment which is not general shall only be submitted to the people of the political subdivision or sub-
divisions directly affected. The votes of the electors in each
Political subdivision affected shall be counted separately in ~etermining whether such proposed amendment is ratified, and 1t must be ratified by a majority of the electors qualified to vote
for members of the General Assembly voting thereon in each such political subdivision before it shall become a part of this Constitution."

~h.is ~uahf1ed

provision electors

requires voting on

that only the vote of a majority of the a proposed constitutional amendment is

ceces~ary for ratification, and does not require that such majority also

fonshtute a majority of the total number of electors qualified to vote

or the proposal.

to As an example, suppose that the total number of electors qualified vote for a proposed constitutional amendment is 4,000, that 2,000

198
of these vote on the proposal, and that 1,100 of these vote for ratification. Such a vote would be sufficient for ratification.
In the General Election held on November 8, 1960, sixty-eight proposed constitutional amendments of a local nature were submitted for ratification. In the Governor's proclamation on these proposals, only the votes cast for or against each amendment were listed and no regard was given to the total number of electors qualified to vote for each proposal. A copy of this proclamation is set forth in the enclosed pamphlet.
ELECTIONS-County Primaries (Unofficial)
Candidates for General Assembly may be nominated by their parties in a county primary.
March 9, 1962
Honorable James W. Paris County Attorney Barrow County
This letter is written in connection with our recent conversation wherein you inquired as to whether or not candidates for membership in the House of Representatives of the General Assembly may be nominated therefor by their party in a county primary.
In answer to your inquiry, please note Section 34-1307 of the Code of Georgia, Annotated, which provides as follows:
34-1307. Nomination of members of General Assembly at State or county primary.-Any other provisions of law to the contrary notwithstanding, any person who has been or who hereafter is nominated for membership in the General Assembly, either in a county primary or the State primary, shall be the nominee for such political party, and the names of such candidates shall be placed on the general election ballot as the official nominee of such party: Provided, however, that no county primary in which members of the General Assembly are candidates shall be called to be conducted in the year 1960 prior to the 15th day of February, and beginning with the year 1961, no county primary in which members of the General Assembly are candidates shall be called to be conducted prior to the 1st day of March of any year, and when so called, all candidates for nomination to the General Assembly shall run therein. (Acts 1956, p. 159; 1960, p. 115.)
Also, please note Code Section 34-3608 (3) which provides as follows:
3. All candidates for nomination for office for Governor, State house officers, members of Congress, United States Senators, judges of the superior courts, Justices of the Supreme

199
Court, Judges of the Court of Appeals, solicitors general and members of the General Assembly shall qualify as such candidates in accordance with the rules of the party calling the primary and within such time as may be provided by such rules, but not less than 45 days prior to the date of the holding of such primary, except that this provision shall not apply to special primary elections to fill vacancies. (Acts 1953, pp. 244, 247; 1953, Nov. Sess., pp. 335, 336.)
ELECTIONS-County Unit System (Unofficial)
Reapportionment of House of Representatives based on 1960 census not effective until term commencing in 1963; hence, county units for September 1962 primary would be controlled by prior apportionment.
April 20, 1962
Honorable Philip M. Chandler Representative, Baldwin County
Thank you for your recent letter inquiring as to whether or not the reapportioning act! of the General Assembly adopted at its 1961 regular session would affect the computation of county unit votes in the General Primary to be held on September 12, 1962.
Code Section 34-3212 concerning the county unit vote in general primaries provides that "Candidates for nominations to above named ?ffices who receive, respectively the highest number of popular votes many given county shall be considered to have carried such county, and shall be entitled to the full vote of such county, on the county unit basis, that is to say, two votes for each representative to which such county is entitled in the lower House of the General Assembly."
Section III of Article III of the Constitution of the State of Georgia of 1945 concerning the apportioning of the House of Representatives Provides as follows :
2-1501. (6413) 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.
2-1502. (6414) 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.
1. Code Section 47-101, Georgia Laws 1961, p. 111.

200
The United States Government took a census of the national population in 1960. The General Assembly at its first session held after such census adopted an act2 reapportioning the House of Representatives as follows:
47-101. The membership of the House of Representatives shall be as follows: Three members each from the counties of Fulton, DeKalb, Chatham, Muscogee, Bibb, Richmond, Cobb, Dougherty; two members each from the counties of Floyd, Hall, Lowndes, Troup, Clayton, Clarke, Walker, Gwinnett, Whitfield, Glynn, Houston, Carroll, Spalding, Thomas, Ware, Baldwin, Colquitt, Laurens, Coweta, Bartow, Polk, Decatur, Sumter, Bulloch, Upson, Tift, Cherokee, Coffee, Catoosa, Newton; and one member from each of the other counties of the State.
Section 2. This Act shall be applicable to the members of the House of Representatives who are elected for the 1963-64 term and also to those who are elected for future terms.
The election of the membership of the House of Representatives subsequent to the 1961 session of the General Assembly will be held on November 6, 1962. The terms of the members of the House of Representatives elected at such election will take office at the time fixed by law for the convening of the General Assembly in 1963. Consequently, the representation of the counties in the General Assembly on September 12, 1962, the date of holding the next General Primary, will not be affected by the legislative reapportionment resulting from the 1960 census and, therefore, the method of computing the county unit votes will also not be affected by such legislative reapportionment.
ELECTIONS-Development Authorities
Constitutional amendment creating Cartersville Development Authority submitted only to voters of Cartersville, they being only ones directly affected.
April 6, 1962
Honorable S. Ernest Vandiver Governor, State of Georgia
This is to advise you that House Resolution 423-888, which would create the Cartersville Development Authority, has been considered by me in the official capacity authorized in Article XIII, Section 1, Paragraph 1 of the Constitution of Georgia (Ga. Code Ann., Section 2-8101).
House Resolution 423-888 proposing an amendment to the Constitution was properly passed by the members elected to each branch
2. Id.

201

of the General Assembly and the same remains now to be submitted for approval in the November Election.

I am of the opinion, and have determined, under the provisions of

Article XIII, Section 1, Paragraph 1, of the Constitution of Georgia

that House Resolution 423-888 is to be submitted only to the qualified

voters of the City of Cartersville, Georgia, that being the only political

subdivision directly affected thereby.



ELECTIONS-Expenses of Officials (Unofficial)
No specific form or form prescribed for use by Senators, Representatives and Presidential Electors when filing statements in connection with primaries or general elections.
February 26, 1962
Honorable Robert T. Ashmore Chairman, Elections Subcommittee United States House of Representatives Washington, D. C.
Thank you for your letter inquiring as to the existence of an official form prescribed by the State of Georgia for use by Senators, Representatives and Presidential Electors when filing expense statements in connection with primaries or general elections.
No official form is prescribed by the State of Georgia and, consequently, the candidates file the required information in the various manners selected by them.

ELECTIONS-Mail Vote (Unofficial)

Georgia Code Ann., Section 34-3301 relating to voting by mail not applicable to municipal primary elections.

January 24, 1962

Honorable R. Shaefer Heard West Point, Georgia

Thank you for your letter inquiring as to: (1) the applicability to

municipal primaries of Chapter 34-33 of the Georgia Code Annotated

~coonlcd~mrgnitnhge

voting by municipal

mail; (2) primary

whether or not for the selection

the political party of party nominees

to~re

the three offices composing nominations to the three cand

the Aldermanic Board must award idates receiving the highest numbers

0 votes; and (3) the authority of the party to fix the deadline for the

202
qualification of candidates seeking party nomination in a municipal primary.
In answer to your first inquiry, please note Code Section 34-3301 which provides as follows:
34-3301. Right to vote by mail; notice to registrars or ordinary.-Any voter, when required to be absent from the city or county, ward or district in which he is registered, or who, because of physical disability will be unable to vote in person, may vote by mail: Provided, that he or some member of his immediate family,-viz., husband or wife, father or mother, sister or brother, or son or daughter-shall give notice in writing of such intention to the registrars or the ordinary of his county, not less than three days or more than 60 days prior to the primary or general election in which he may desire to participate: Provided, however, that if the third day prior to the primary or general election falls on Sunday, the notice must be given on or before the Saturday immediately preceding such Sunday. (Acts 1924,p. 186; 1955,pp. 732, 733; 1956, p. 682; 1957, pp. 39, 40; 1959, pp. 63, 64.)
Obviously, this section and other provisions of the Code Chapter apply to State and county primaries because of the extensive duties placed on registrars and ordinaries who are county officers. However, only one provision of the Code Chapter refers to the "city executive committee", which requires that the committee furnish official ballots in the primaries held by it.1
Notwithstanding this singular reference to the city executive committee, the Attorney General has ruled unofficially that the Code Chapter is not applicable to municipal elections.2 A copy of this opinion is enclosed for your consideration.
The answer to your second inquiry is provided by Code Sections 34-19143 and 34-3310 which prescribe the form of the official ballots used in primaries.
The answer to your third inquiry is provided by an unofficial opinion, dated October 31, 1945, rendered by the Attorney General to the Honorable Roy B. Friedin, a copy of which is enclosed herewith.4
1. Code Sections 34-3310. Copy attached. 2. Op. Atty. Gen., 1948-49, pp. 208-209. 3. Ga. Laws 1941, p. 324. 4. Op. Atty. Gen., 1945-47, p. 255.

203

ELECTIONS-Nominating Petitions

Since no specific form required, nominating petition printed in newspaper, if properly signed by duly registered voter, is valid.

Honorable Ben W. Fortson, Jr. Secretary of State

September 25, 1962

I wish to acknowledge receipt of your letter of September 24, 1962, in which you state:

"Please render me an official opinion as to whether or not a form of petition printed in a newspaper and properly signed by
voters constitutes a petition within the meaning of Code Section 34-1904."

Code Section 34-1904 of the Georgia Code Annotated, as amended by Act No. 895 of the General Assembly, set out in Georgia Laws of 1962, at page 618 provides, among other things as follows:

"... Provided that, if any such candidate listed herein shall not be the nominee of a political party by primary held for such office in the territory, as hereinafter defined, in which he is a candidate, or shall not be the nominee of a political party that shall have cast more than five (5%) percent of the votes for
such office in the last immediately preceding General Election for the election of such officer, then any such candidate shall, in addition to the foregoing, file a petition signed by not less than five (5%) percent of the registered voters of the territory in which he is a candidate. The provisions relating to filing such petition shall not apply to special elections, to the office of Jus-
tice of the Peace, to any office created since the last General Election, nor to candidates for county offices and membership in the General Assembly if no political party primary is held in the county for such offices. The petition of five (5%) percent of the registered voters provided for hereinbefore, shall be used for only one individual candidate, and two or more candidates shall not be permitted to utilize the same petition. The term 'territory' as used hereinabove shall mean the area in which the voters who are authorized to vote for such candidate reside, except that such term shall mean the judicial circuit when the office of judge of the superior court or solicitor general is sought by a candidate. The petition signed by five (5%) percent of the voters, as aforesaid, shall be accompanied by a sworn statement signed by the candidate or the highest official of the political Party of the territory involved, or by both, to the effect that each of the persons whose name appears on said petition was a duly qualified and registered voter at the last General Election, a!ld that each such voter whose name is listed on said petition Signed his own name on said petition. . . ."

The form of the petitions printed in the newspapers as brought to my attention is as follows:

204

"PETITION TO DRAFT GARLAND T. BYRD to Succeed
Himself as Lieutenant Governor ****** In order to place the
name of an Independent Democratic candidate for Lieutenant Governor of Georgia on the ballot in the General Election of 1962, we must get more than 65,000 signatures on this petition.
By signing this petition you do not commit yourself to vote for this candidate. You do not have to be an Independent Democrat to sign. You are asking only that his name be placed on the
ballot.

"TO THE HONORABLE BEN W. FORTSON, SECRETARY OF THE STATE OF GEORGIA

"Each of the undersigned petitioners requests the Secretary of State of Georgia to place the name of Garland T. Byrd on the ballot for the 1962 General Election as an Independent Democrat Candidate for the office of Lieutenant Governor of Georgia. Each of the undersigned petitioners was a duly qualified and registered voter in the State of Georgia at the time of signing this petition and each of the said petitioners was a duly qualified and registered voter eligible to vote in the last General Election held on November 8, 1960.

"Personal Signature

Address: Street and

City as of Novem- County of Residence

ber, 1960

November, 1960

"1.
"Current Phone No. and Address (If New)----------------------------------------
"
It is my firm opinion that since the law cited above with respect to five percent petitions does not prescribe any particular legal form for the composition, style and mode of the petition, that a petition printed in a newspaper properly signed by a registered voter declares and expresses the intent of the registered voter to place the name of a candidate on the ballot in the General Election and the same constitutes a petition within the meaning of Code Section 34-1904, subject, of course, to verification and authentication by you of the signatures and qualifications of the signers of the petition.
I am advised that the five percent petition of Mr. Garland Byrd was accompanied by a sworn statement signed by Mr. Byrd to the effect that "each of the persons, who have signed the attached petitions to have my name placed on the ballot for the General Election to be held on November 6, 1962, as the candidate for the office of Lieuten-

205
ant Governor of the State of Georgia, was duly qualified and registered to vote in Georgia in the General Election of 1960 and that each of said signers is now a duly qualified and registered voter in the State of Georgia, and each such signer signed his or her own name on said petitions." Such being true with respect to the petitions printed in the newspapers, it is my opinion that the same meets the requirements of law, being component parts of a legal petition within the meaning of Code Section 34-1904, subject to your authentication and verification as to signatures and qualifications of signers.

ELECTIONS-Nominating Petitions
Discussion of laws relative to candidates offering for election pursuant to nominating petition signed by registered voters.
September 27, 1962
Honorable S. Ernest Vandiver Governor of Georgia
This will acknowledge receipt of your letter requesting my official opinion on several questions relating to the interpretation and administration of Code Section 34-1904, as amended, insofar as said section governs the placing of names of candidates for state office on the general election ballot pursuant to a nominating petition signed by registered voters.

At the outset, it should be said that the issues embraced within the request before me are of the first magnitude, and of the most Pro.found public interest. The right of candidates to offer for public office and have their names placed on the general election ballot necessarily involves considerations basic to a republican form of government.

Moreover, I deem it not inappropriate to take note of the unusual Public concern in the subject matter under dispute, and the partisan atmosphere in which the issues for decision are thus framed.

But however delicate, far-reaching and controversial these issues

may be, their resolution in this as in all other instances must be at-

t}eam~sp,tesdubbjyemctealuwnadyesr

responsibilities imposed by the Constitution and to the final determination by the courts available

0 In~erested parties in every case. The gravity of the questions in

.no Wise alters my solemn duty, which is to interpret the law without regar~ to, but in spite of, whatever partisan considerations may Prevail.

With these premises in mind, I proceed to a determination of the questions before me.

th "1. Does the law require that such petitions be signed in person by e voter, or may one person sign on behalf of others?"

206
Code Section 34-1904, as amended (Ga. Laws 1962, at p. 621), requires that each petition be accompanied by a sworn statement affirming, inter alia, "that each such voter whose name is listed on said petition signed his own name...." Therefore, I am of the opinion that signatures must be made in person, and that one person may not sign for others. State ex rei, Roberts v. Morrison, 64 S.D. 516, 268 N.W. 647, 650; Morgan v. Revis, 215 Ky. 30, 285 S.W. 111; Attorney General v. Clarke, 26 R.I. 470, 59 A. 395.
"2. Assuming that some of the signatures on such a petition are not genuine or are otherwise insufficient, does this invalidate the entire petition, or only the particular signatures found to be improper? Where several names are written obviously in the same handwriting, does this vitiate the whole page where they appear or just the forged signatures?"
The overwhelming weight of authority seems to be that the invalidity of one or more signatures does not invalidate all others not subject to such infirmity. Carroll v. Schneider, 211 Ark. 538, 201 S.W. 2d 221; Kerns v. Whiting, 65 N.Y.S. 2d 287, 187 Misc. 656; Eagle v. Cox, 268 Ky. 58, 103 S.W. 2d 682; Application of Clum, 91 N.Y.S. 2d 93, 194 Misc. 683. Similarly, fraudulent signatures do not invalidate the entire petition where there is no charge that the candidate himself was in any way implicated in such fraud. Kerner v. Heffernan, 93 N.Y.S. 2d 803. Of course, illegible signatures should not be counted. In re Bialis, 92 N.Y.S. 2d 450; Hall v. Heffernan, 59 N.Y.S. 2d 229, 185 Misc. 742, Affd. 59 N.Y.S. 2d 771, 26 A.D. 953, Aff'd. 64 N.E. 2d 291, 295 N.Y. 599. Any signature obtained dishonestly should not.be counted. Nelson v. Morse, 16A 2d 61, 91 N.H. 177. Of course, if the petition as a whole is so permeated with irregularities and suspicious defects as to lead the Secretary of State to the conclusion that there has been no good faith effort by the candidate to comply with the law in the least, I do not believe that the law requires him to undertake to separate the wheat from the chaff.
"3. Is it essential to the validity of a signature on such a petition that the residence of the voter also appear thereon?"
A statement of the voter's residence on the petition would appear essential to enable the responsible state official, here the SecretarY of State, to check and verify the names against the registered voters' list. Allen v. Hardin, 272 Ky. 396, 114 S.W. 2d 494; Bowling v. Amis, 286 Ky 738, 151 S.W. 2d 760. Therefore, the uniform rule in most states having statutes on the subject is that a signature can not be counted unless accompanied by a statement of the voter's residence. Evans v. Hill, 314 Ky. 61,234 S.W. 2d 297; Application of Young, 296 N.Y. 684, 70 N.E. 2d 173; Goldfeder v. Heffernan, 99 N.Y.S. 2d 959; in re Horn: ridge, 129 N.Y.S. 2d 820, 205 Misc. 362, aff'd. 306 N.Y. 876, 119 N.E 2d 45; Application of Connors, 140 ~.Y.S. 2d 224, 207 Mis~. 689, aff~: 139 N.Y.S. 2d 283, 285 A.D. 959, aff d. 129 N.E. 2d 284, aff d. 308 N. 877, 126 N.E. 2d 311; Bogie v. Hill, 286 Ky. 732, 151 S.W. 2d 765; Cros hie v. Cohen, 281 N.Y. 329; 23 N.E. 2d 81; State ex rei Roberts v. Morrison, 64 S.D. 516; 268 N.W. 647. While such a requirement cer tainly appears reasonable, and while it would seem impossible for the

207
Secretary of State to check the authenticity of the signatures on such a petition without the information as to the residence of each person purporting to sign such a petition, the Georgie Statute in no place imposes such a requirement, and I would hesitate to read it into the Statute by implication. Of course, this would not prevent the Secretary of State, in checking a petition, to call upon the candidate to disclose the residence of any person whose signature has b~en drawn in question.
"4. Is it essential to the validity of a signature that it appear on the petition in a manner identical to that in which it appears on the voter's registration list?"
The cases hold that this question should be answered in the affirmative, as otherwise it would be impossible in many cases to identify a signature due to similarity of names. Dupree v. St. Jacques, 51 R.I. 18 190, 153 A. 240; Hartigan v. Thornton, 54 R.I. 458, 175 A. 650; Stone v. Waterman, 70 A. 1009; Attorney General v. Clarke, 26 R.I. 470, 59 A. 395. Of course, as in all cases, the rule of de minimis applies, where the variation is so minor as to cause no doubt as to the question of identity.
"5. What is the deadline for the filing of a petition under Section 34-1904, as amended, for the 1962 General Election?"
Code Sections 34-3608 and 34-1904, as amended (Ga. Laws 1962, p. 618) declare as a general rule that candidates must qualify at least 45 days prior to the regular election, and then adds an exception which states "except in cases where a second primary election is necessary." I am of the opinion that this exception applies only with respect to those candidates involved in the run-off primary. Exceptions in statutes are strictly construed. Dalton Brick and Tile Co. v. Huiett, 102 Ga. App. 221; Williams et al v. Seaboard Air Line Ry. Co., 33 Ga. App. 164; 82 C.J.S. 891, 382 (c). The exception here should be limited to the only situation rendering it necessary, and not to candidates proc.eeding by nominating petition. Consequently, it follows that the deadhne for the filing of a nominating petition under Section 34-1904, as amended, was Friday midnight, September 21, 1962. See Ann. Cas. 1914 A, p.l135.
"6. May a person qualifying to run for state office in the General Election through the petition method, against the Democratic nominee appear on the ballot as an 'Independent Democrat' or must said person's name appear on the general election ballot in a space reserved for 'Independent Candidates?' Can a person qualifying as an independ~nt through petition appear as a Democrat and an Independent simulane?usly which would indicate membership in the Democrat Party and Independent status at the same time?"
. In 1952, I held that "A person desiring to run in the general election against the Democratic nominee must run as an independent and cannot run as a member of the Democratic Party." Opinions of the Attorney General, 1952-53, p. 81. In another opinion rendered the same Year, I held that the names of independent candidates should not afptehar in the same column with the Democratic nominees. Opinions 0 e Attorney General, 1952-53, p. 81. See also in this regard, Opin-

208
ions of the Attorney General, 1954-56, p. 309. An "independent" may be defined as one who is not the nominee of any existing political party, and who was not nominated by a regularly constituted assembly of voters. Stanfield v. Kozer, 119 Or. 324,249 p. 631, 632 (1926). As stated in State ex rel Bigelow et al v. Butterfield, 132 Ohio St. 5, 4 N.E. 2d 142 (1936), "We are of the opinion that the statutes do not contemplate permitting a candidate to assume the dual role of both a party and an independent nominee on the same ballot, as the term 'independent' is inconsistent with the status of party affiliation." In 29 C.J.S. 241, Sec. 164, it is said, "A candidate nominated by petition of unorganized voters can not be placed on the official ballot as the candidate of an organized existing party." Based upon these principles, the cases generally hold that an independent has no right to appear on the ballot under a party designation similar to the name of an existing party. Partridge v. Devoto, 148 Cal. 167, 82 p. 775; In re Smith, 85 N.Y.S. 14, 41 Misc. 501; In re Carr, 88 N.Y.S. 107, 94 A.D. 493; Marcantonio et al v. Heffernan, 83 N.Y.S. 2d 367, 192 Misc. 868; O'Brien v. O'Brien, 213 Minn. 140, 6 N.W. 2d 47; Hartigan v. Cappelli, 54 R.I. 474, 175 A. 649. Many states have statutes expressly prohibiting use of an existing party name or anything similar thereto, but it is necessarily implicit in our law. The Partridge case, supra, involved a situation where an independent unsuccessfully sought to use the designation "Independent Democratic Party." The Court pointed out that similarity might not be improper where there has been a previous organization publicly known by the name selected, and the persons utilizing the nominating petition have made known their public avowal of some peculiar political principle or policy, such as for example, the "Silver Republican Party," "Bryan Democratic Party," or "Social Democratic Party." There is no such party as "Independent Democratic" party, and I am ofthe opinion that there can be no name on the ballot of any "Independent Democratic" candidate. The names of independent candidates must appear as "Independents," or under some other label not calculated to be confused with an existing party, or to otherwise mislead the voter. 146 ALR 677.
ELECTIONS-Nomination Requirements (Unofficial)
Discussion of requirements for placing names on ballots of Repub lican candidates for office in Floyd County.
March 6, 1962
Honorable E. Ralph Ivey Rome, Georgia
Thank you for your recent letter addressed to the Secretary of State and transferred to the Attorney General for reply. In your letter you inquired as to the action necessary to have the names of ~he Republican candidates printed on the ballot for the General Election to be held on November 6, 1962, when such candidates are seeking the following offices: Judge of the Superior Court for the Rome Judicial

209
Circuit; Judge of the Floyd County City Court; Membership in the House of Representatives of the State of Georgia from Floyd County; and Membership in the Senate of the State of Georgia from the 42nd Senatorial District. You further inquired as to whether or not the rotation of Senators by counties is applicable in the General Election and, in the event such rotation is applicable, you further inquired as to whether or not all the voters of the counties in the Senatorial District vote for the Senator in the General Election.
In connection with your first inquiry concerning the action necessary to have the names of such Republican candidates printed on the ballot, I assume that the Republican candidates will not be nominated by a party primary. Consequently, I respectfully direct your attention to Sections 34-1904 and 34-3608 of the Code of Georgia Annotated, and to the opinions of the Attorney General published in Op. Atty. Gen., 1954-56, pp. 308, 309 and 311, and to an unpublished opinion of the Attorney General to the Secretary of State, dated November 17, 1961. A copy of the unpublished opinion is enclosed herewith. For your convenience I am also forwarding to you under separate cover the published Opinions of the Attorney General from 1950-1959, inclusive. No opinions have been published since 1959. These published opinions may be retained for your law library.
Also, please find enclosed herewith House Bill No. 790 which was passed by the General Assembly at its last session but has not yet been signed into the law by the Governor. If the Governor signs House Bill 790, it will supersede Code Section 34-1904.
In connection with your second inquiry as to whether or not Senatorial rotation is applicable in the General Election, I respectfully direct your attention to Section 47-102.1 of the Code of Georgia Annotated.
In connection with your last inquiry, I am unable to give you an authoritative answer because the Senate is the sole judge of the election, returns, and qualifications of its members and furthermore, the Department of Law has no authority in matters of law relating to the legislative branch of government. Par. I of Sec. VIII of Art. III of the Constitution (Code Section 2-1901) and Section 40-1614 of the Code of Georgia, Annotated. See also: Op. Atty. Gen., 1945-47, p. 345, a copy of which is enclosed herewith.
In considering the general laws referred to above, you should also check for any laws of local application.

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ELECTIONS-Plurality or Majority of Votes (Unofficial)
In absence of constitutional or statutory provision to the contrary, a plurality of votes is sufficient to elect.
May 10, 1962
Honorable L. F. Beddingfield County Attorney Dooly County
Thank you for your letter stating that ten candidates have qualified for a county office to be filled in a special election to be held in your County and inquiring as to whether a plurality or majority vote is sufficient to elect. You have stated by telephone that no constitutional or statutory provisions provide the answer to your inquiry.
In the absence of a constitutional or statutory provision to the contrary, it is my opinion that a plurality of votes is sufficient to elect. Op. Atty. Gen. 1952-53, p. 354; 29 CJS, Elections, Sec. 241, p. 351; 18 Am Jur, Elections, Sec. 242, p. 339.
The cases of Thompson v. Stone1 and Crovatt v. Mason 2 referred to in your letter merely reiterate the well-established doctrine "that though the candidate receiving the highest number of votes because of his ineligibility fail of an election, yet the votes cast for him are so far effectual as to prevent the election of other candidates, and there is no election at all."3 For example, suppose a candidate in an election received five hundred votes, another one hundred votes and another fifty votes, and the five-hundred-vote candidate was found ineligible for the office he was seeking. Obviously, it would be grossly unreasonable and irrational for the one-hundred-vote candidate to take office. The doctrine pronounced by Thompson and Crovatt prevents such an unsatisfactory result. Consequently, these cases are not germane to the answering of your question.
ELECTIONS-Political Fund-Raising (Unofficial)
Solicitation of political funds by candidate for political office is not subject to regulation as "charitable" under Regulation of Professional Fund Raising Act.
July 9, 1962
Honorable Henry M. Henderson Atlanta 1, Georgia
Thank you for your letter inquiring as to whether a candidate for public office who solicits political contributions is subject to regulation
1. (1949) 205 Ga 243(2), 246(2), 53 SE 2d 458. 2. (1897) 101 Ga 246, 257, 28 SE 891. 3. Ftn. 1, supra, 205 Ga 247, 1st par.; Ftn. 2, supra, 101 Ga 257.

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as a "charitable organization" pursuant to the provisions of an Act of the General Assembly (Ga. L. 1962, p. 496), approved March 3, 1962, entitled "Regulation of Professional Fund Raising."
In my opinion candidates for public office who solicit contributions in furtherance of their political campaigns are not within the purview of the Act.
ELECTIONS-Primaries (Unofficial) Expense of primary is borne by party holding it. February 19, 1962
Honorable John A. Daniels San Antonio 5, Texas
Thank you for your letter requesting information concerning the holding of primaries in the State of Georgia and inquiring as to who bears the expense of holding same and as to whether or not the parties utilize the same facilities for voting therein.
Pursuant to your request, please find enclosed herewith Chapter 34-32 of the Code of Georgia, Annotated, as amended through 1961, and a historical release by the Secretary of State, concerning the holding of primaries.
The expense of a primary is borne by the party holding it and, consequently, the qualification fees of the candidates seeking party nomination defray to a large extent, if not entirely, such expense.
To my knowledge, only the Democratic party holds primaries in Georgia and, therefore, I have not been confronted with the problems arising out of two parties utilizing the same facilities for voting in a Primary.
ELECTIONS-Primaries (Unofficial) Political party not required to hold primary. If not held, candidate
of Party which did not receive more than five percent of votes at last general election must file petition signed by not less than five percent of the registered voters of the territory in which he is a candidate.
April 19, 1962 lionorable Eugene Gunby ~udge, Court of Ordinary .(' ulton County
Thank you for your recent letter inquiring as to (1) whether or not a candidate nominated for public office in a primary held by his

212
political party must file a five per cent petition as provided for by Code Section 34-1904 (b)1; (2) whether or not a political party must nominate its candidates for public office by holding a primary; and (3) the voter registration lists to be utilized in ascertaining the five percent figure necessary to determine the numerical sufficiency of the signatures on such a five percent petition.
In answer to your first inquiry, please note the following provision contained in Code Section 34-1904 (b) :
Provided that, if any such candidate listed herein shall not be the nominee of a political party by primary held for such office in the territory, as hereinafter defined, in which he is a candidate, or shall not be the nominee of a political party that shall have cast more than five (5%) per cent of the votes for such office in the last immediately preceding General Election for the election of such officer, then any such candidate shall, in addition to the foregoing, file a petition signed by not less than five (5%) per cent of the registered voters of the territory in which he is a candidate.
Obviously, a candidate nominated for public office in such a primary held by his political party would not be required to file such a five percent petition. A copy of Section 34-1904 is enclosed herewith for your files.
In answer to your second inquiry, it is also obvious from the above provision that political parties do not have to nominate their candidates by holding a primary.
The answer to your third inquiry is that the voter registration lists employed in the last general election should be utilized in ascertaining the five percent figure necessary to determine the numerical sufficiency of the signatures on a petition submitted for filing under the five percent petition provision. A copy of an official opinion, dated November 17, 1961, of the Attorney General to the Secretary of State is enclosed herewith in amplification of this answer.
ELECTIONS-Primaries (Unofficial)
Jackson County Democratic Executive Committee may call early primary for purpose of nominating candidates for General Assembly.
April 25, 1962
Honorable James E. Collins, Member Jackson County Democratic Executive Committee
This is in answer to your inquiry as to whether it is legal for CountY Democratic Executive Committees to hold early primaries for the office of State Representatives.
1. Act 895, 1962 regular session of the General Assembly.

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An Act approved by the General Assembly of Georgia on February 20, 1956, which is now Georgia Laws 1956, p. 159 and an Act approved by the General Assembly of Georgia on February 15, 1960, which is Georgia Laws 1960, p. 115, provide that a County Democratic Executive Committee may call an early primary for the purpose of electing a State Representative.
This is to state that these laws provide that the Jackson County Democratic Executive Committee may call an early primary for the purpose of electing a State Representative. It will be necessary, however, that any person running for State Representative, even in an early primary, must pay his entrance fee and qualify on or before Noon, May 5, 1962.

ELECTIONS-Primaries (Unofficial)

Requirement that majority vote necessary to determine nominees a matter of discretion with party authority conducting primary.

Lt. Colonel John Kimsey Sandersville, Georgia

April 27, 1962

Thank you for your recent letter inquiring as to the legality of your County Executive Committee of the Democratic Party requiring a majority vote for nomination in the County Primary to be conducted by your Committee on September 12, 1962.

In connection with your inquiry, please find enclosed herewith an opinion, dated January 30, 1948, of the Attorney General to the Honor-
a?le Roy P. Otwell, stating that such a matter addresses itself to the discretion of the party authority conducting the primary.

Also, please find enclosed herewith for your convenience a copy of

the Rules and Regulations of the State Democratic Executive Com-

mittee of Georgia governing Democratic Primary Elections, adopted

April 18, 1962.



ELECTIONS-Primaries (Unofficial)

Laws discussed pertaining to candidates seeking nominations in county primary.

April 27, 1962

Honorable Brooks Lewis Representative, Wilkinson County

~heTrehiins

letter is written in accordance with our recent conversation you requested information concerning the qualification dead-

Ines for candidates seeking nomination in the County Primary to be

214
held by your County Democratic Executive Committee on September 12, 1962.
In connection with your inquiry, please note Section 34-3608 of the Code of Georgia, Annotated, which provides in part as follows:
3. All candidates for nomination for office for Governor, State house officers, members of Congress, United States Senators, judges of the superior courts, Justices of the Supreme Court, Judges of the Court of Appeals, solicitors general and members of the General Assembly shall qualify as such candidates in accordance with the rules of the party calling the primary and within such time as may be provided by such rules, but not less than 45 days prior to the date of the holding of such primary, except that this provision shall not apply to special primary elections to fill vacancies. (Acts 1953, pp. 244, 247; 1953, Nov. Sess., pp. 335, 336; 1961, pp. 432, 433.)
Furthermore, please find enclosed herewith a copy of the Rules and Regulations of the State Democratic Executive Committee of Georgia Governing Democratic Primary Elections, adopted April18, 1962, and your attention is respectfully directed therein to the last paragraph of Rule I appearing on page 16 and to that portion of Rule XXIV beginning with the last paragraph on page 33.
Also, enclosed herewith is a copy of an opinion, dated July 21, 1948, of the Attorney General to the Honorable Sol. A. Tatum construing the last sentence of Section 34-1914 of the Code of Georgia, Annotated. Please note that there is a conflict between Code Section 34-3608 (3) and 34-1914 and to the extent of that conflict Code Section 34-3608(3) governs as the last expression of the General Assembly.
ELECTIONS-Primaries (Unofficial)
County Executive Committee may hold county primary for purpose of nominating candidate for General Assembly despite fact that no county officers are to be nominated in such primary.
April 30, 1962
Mr. James E. Collins, Member Democratic Executive Committee Jackson County
Thank you for your letter inquiring as to the legality of a CountY Executive Committee holding a County Primary, in advance of the statewide primary, solely for the purpose of nominating a candidatj for membership in the House of Representatives of the Genera Assembly.
In connection with your inquiry, please find enclosed herewith a copy of an opinion, dated March 9, 1962, of the Attorney General to the Honorable James W. Paris. Also, enclosed herewith is a copy of

215
the Rules and Regulations of the State Democratic Executive Committee of Georgia Governing Democratic Primary Elections, and I respectfully direct your attention therein to Rule XXVI on page 35.
In my opinion, it is legal for a County Executive Committee to hold a County Primary solely for the purpose of nominating a candidate for membership in the House of Representatives, irrespective of the fact that no candidate for county office is to be nominated in such primary.

ELECTIONS-Primaries (Unofficial)
Party holding primary is responsible for its expenses.
October 19, 1962
Honorable William T. Roberts County Attorney, Macon County
Thank you for your recent letter inquiring as to who is under an obligation to pay the expenses of holding a party primary to nominate candidates for public office.
Generally speaking, the law imposes this obligation upon the party holding the primary. See Sections 34-1903, 34-1906, 34-1914, 34-1919, 34-3201, 34-3208, 34-3216 and 34-3309 of the Code of Georgia, Annotated; but see Code Sections 34-1902, 34-3613 and 34-3620.

ELECTIONS-Primary and General Elections (Unofficial)

. Political party cannot dispense with general elections but may in 1ts discretion abolish party primary.

RDonorable Claude D. Mozley ouglasville, Georgia

December 27, 1962

. Thank you for your recent letter stating that the Democratic Execuhve Committee on which you serve is considering discontinuing the holding of either general elections or general primaries, and inquiring
as to the authority of the Committee to take such action.

b The law clearly requires that general elections be held as provided t Y l~w and obviously no party committee would have the authority 0 d1scontinue the holding of such elections.

3w6h0l.Ac8h(s2p)trooovftihdteheeshtoChlodaditne: gofofGegoerngeiraa,l

primaries, Annotated

please note Section (Ga. Laws, 1962, p.

3415),

216
"2. Whenever any political party shall hold primary elections for nomination of candidates for the office of Governor, Statehouse officials, United States Senators, Members of Congress, Justices of the Supreme Court, Judges of the Court of Appeals, judges of the superior courts, and solicitors general, the same shall be held on one and the same date throughout the State, which shall be on the second Wednesday in September of each year in which there is a regular general election. The foregoing provisions shall apply to any such primary election held in the year 1962, and thereafter."
The question of whether or not any other primary should be held generally addresses itself to the appropriate party authority.
ELECTIONS-Registration Requirements (Unofficial)
Person moving from one county to another must have been a resident of new county for at least six months and must have made application for registration prior to election or primary before being able to vote in such county.
August 28, 1962
Honorable Louise Sledge Judge, Court of Ordinary Heard County
This office has received your request concerning the eligibility to vote in the September 12th primary of a person who moves into your County now.
As you know, even though the Ordinary is charged with many responsibilities connected with the conduct of elections, there is no specific legislation designating him as the "official in charge of elections". There is some general misunderstanding in this area. The Ordinary exercises no control over the registration of voters, preparation of voters' lists, absentee ballots in primaries, or civilian absentee ballots in other elections. These matters fall within the jurisdiction of the Board of Registrars. He exercises no authority in party primaries, for primaries are a function of the city or county executive committee of the political party holding the election. (Georgia Code Ann., Section 34-1303, Subparagraph 13; Georgia Laws 1957, page 218).
Generally speaking, the transfer of registration upon a change of residence of a particular voter is controlled by Section 34-136 of the Georgia Code Ann. This provides that when a voter changes his cou~ty of residence and after fulfilling the residential requirements, wh1ch requirements must be six (6) months residence elapsed or to elapse before the next general election, then certain oaths and certifica~es are executed followed by an application to be placed on the voting l~st.
1 This application is to be made at least ten (10) days before any electlo~
or primary at which such person will be eligible to vote. No person sha

217
vote in any county except the county of his residence. Therefore, it seems clear that a voter who moves from one county to the next would have to meet the six (6) months residential requirement and the ten (10) day application requirement before he would be eligible to vote.
Inasmuch as residence and domicile under a given factual situation may not be the same, a person who moves from one county to another may still possibly be a resident of the former county for voting purposes, or otherwise, unless he has notified the registrars of his change of residence as well as domicile, by some overt act such as asking for a transfer of his registration as contemplated by the aforementioned Code Sections. This being the case, a person who has just moved from one county to another might return to the former county to vote or vote by means of an absentee ballot. Bear in mind, however, that each individual question as to the place of legal residence will require its own solution.
ELECTIONS-Returns (Unofficial)
Election managers' returns, tally sheets, ballots, etc., should be turned over to the clerk of superior court whether in primary or general election.
October 11, 1962
Honorable Robert G. Walther Floyd County Attorney
Thank you for your letter inquiring as to the proper official with whom managers' returns, tally sheets, voters' lists, ballots and related documents should be filed at the conclusion of a primary.
In response to your inquiry, please note the following Code Sections:
34-3207. (133) Returns of managers, how filed and controlled.-The returns of the managers, with the tally sheets, lists of voters, and ballots, together with all papers connected with said election, shall be filed in the office of the clerk of the superior court of the county in which said election shall be held, within four days after the final declaration of the result thereof. One of the lists of the voters and one of the registration lists with names of those checked or marked as voters shall be exhibited by said clerk to anyone desiring to inspect same, but the other documents deposited as aforesaid shall be kept unopened and under seal until the next meeting of the grand jury, to Which grand jury one registration list, one list of voters, and the checked registration list above mentioned shall be exhibited; and if no action shall be taken thereon by the grand jury and no contest shall have been filed within the time prescribed by the authorities of said party, all of said election papers shall be

218
destroyed. (Acts 1890-1, p. 210; 1908, pp. 55, 56.) 1
See also: Code Section 34-9916.
34-138. Return of checked list; registrars to keep list open to public inspection; availability to grand jury.-The official in charge of each voting precinct shall return a checked list of registered voters, reflecting those who voted, to the official in charge of elections, to be deposited with the registrars. The board of registrars shall keep such list open for public inspection and shall make such list available to the next grand jury for such action as may be deemed proper by the grand jury. (Acts 1958, pp. 269, 292.)2
The same practice of filing ballots is adhered to in the case of elections as evidenced by Code Sections 34-1303(12) and 34-9908. Furthermore, Code Sections 34-2802 and 34-9921, involving election contests, refer to the filing of ballots with the clerks of the superior courts.3 As to the safekeeping of papers connected with civilian absentee voting, see Code Section 34-3314.
ELECTIONS-School Consolidation (Unofficial)
Proposed constitutional amendment to consolidate two school systems within Bleckley County must be ratified by a majority of the qualified voters in each school district.
January 30, 1962
Honorable Roy W. Coley Superintendent Bleckley County Schools
Thank you for your letter stating that Bleckley County is divided into the independent school system of the City of Cochran and the school district in Bleckley lying outside the corporate limits of such city. You enclosed a copy of a tentative resolution of the General Assembly proposing an amendment to the State Constitution for the merger of such independent and county school systems and inquired as to the identity of the political subdivisions directly affected by such proposed constitutional amendment in the event it is voted on by the people.
At the threshold of the answer to your inquiry is Paragraph I. of Section I of Article VIII of the State Constitution (Code Sect10n 2-8101) which provides as follows:
1. For applicable criminal provision, see Code Section 34-9923. See also: Code Section 34-9916.
2. Ann. Code Sec. 34-101 (Ga. Laws, 1958, pp. 269, 270) defines ~he term "election" to include "any primary". Compare Code Sect10n 34-138 with Code Sections 34-9909 and 34-9910.
3. As to such reference in primary contests, see Code Sections 34-3211 and 34-9923.

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"2-8101. (6610) Paragraph I. Proposal by General Assembly; submission to people.-An amendment to this Constitution may be proposed by a resolution in the Senate or the House of Representatives, and if the same shall be agreed to by twothirds of the members elected to each branch of the General Assembly, such proposed amendment shall be entered on the journals of each branch with the Ayes and Nays taken. thereon. Any proposed amendment may be repealed or amended by the same General Assembly, if done so at least two months prior to the date of the election at which such proposed amendment is to be submitted.
"The Governor, the Attorney General, and the Secretary of State shall meet and determine whether a proposed amendment is general, and if not general, shall determine what political subdivision or subdivisions are directly affected by such proposed amendment. If a proposed amendment is general, the Governor shall cause such proposed amendment to be published in full once each week for three consecutive weeks immediately preceding the date of the election at which such proposed amendment is submitted, in one newspaper of genera.! circulation in each Congressional District of the State. If such proposed amendment is not general, the Governor shall cause such proposed amendment to be published in full in one newspaper of general circulation in each county in which the directly affected political subdivision or subdivisions are located. In the event no such newspaper is located in such county, a newspaper in an adjoining county shall be used.
"Any proposed amendment which is general shall be submitted to the people of the entire State at the next general election at which members of the General Assembly are elected, and if ratified by a majority of the electors qualified to vote for members of the General Assembly voting thereon, such amendment shall become a part of this Constitution. A proposed amendment which is not general shall only be submitted to the people of the political subdivision or subdivisions directly affected. The votes of the electors in each political subdivision affected shall be counted separately in determining whether such proposed amendment is ratified, and it must be ratified by a majority of the electors qualified to vote for members of the General Assembly voting thereon in each such political subdivision before it shall become a part of this Constitution. The General Assembly, in the resolution, shall state the language to be used in submitting the proposed amendment." (Emphasis supplied)
As you can see, the answer you seek can only be supplied by the Governor, the Attorney General and the Secretary of State acting as a bfffY to determine the political subdivision or subdivisions directly ~ hected by such proposed amendment. However, I am pleased to fur18 You with my individual opinion as to the proper answer.

220
In an analogous case,! the Supreme Court of Georgia held that the Fulton County School District, which did not include the City of Atlanta, was a political subdivision and in so holding stated that :2
"The Fulton County School District is a political subdivision of this State. Ty Ty Consolidated School District v. Colquitt Lumber Co., 153 Ga. 426 (112 S. E. 561) ; Jennings v. New Bronwood School District, 156 Ga. 15(2a) (118 S. E. 560); Seaboard Air Line Ry. Co. v. Wright, 165 Ga. 367 (140 S. E. 863) ; Campbell v. Red Bud Consolidated School District, 186 Ga. 541 (198 S. E. 225).
"The authors of the Constitution of 1945 and the people adopting it knew, or were charged with knowledge, that a school district was a political subdivision of this State. Had it been intended to limit the unit to be affected, or the area affected, to a county it would have so stated.
The only people affected by this proposed amendment were those residing in the Fulton County School District. Those within the City of Atlanta were in no way affected. The very purpose of the Constitution of 1945, in its provision for amendment, was to protect those within a prescribed area from having their rights under the Constitution altered except by consent of a majority of those within the area affected by the amendment."
Applying the holding of such case in determining the political subdivisions directly affected by such proposed amendment, I find that each of such school systems within Bleckley County constitute a political subdivision. The above constitutional provision requires that such proposed amendment be ratified by a majority of the qualified voters of each political subdivision voting thereon.
In view of these authorities, it is my opinion that such proposed constitutional amendment must be ratified by a majority of the qualified voters voting thereon in each of the two school systems within Bleckley County.
1. Towns v. Suttles (1952) 208 Ga. 838, 69 S. E. 2d 742. See also: Cotton States Mutual Insurance Company v. Keefe (1960) 215 Ga. 830(1), 834, 113 S. E. 2d 774.
2. Id., 208 Ga. 840, 2d par.

221
ELECTIONS-Special Elections (Unofficial)
It is within discretion of Ordinary whether to hold special election to fill vacancy created by death of representative to General Assembly when General Assembly has adjourned and general election to take place wherein new representative will be elected for next term.
February 21, 1962
Honorable R. Gordon Dickey Ordinary, Jenkins County
Thank you for your letter stating that the Governor has issued a writ of election authorizing the holding of a special election for the filling of a vacancy in the House of Representatives of the General Assembly occasioned by the death of the Representative from your county, and inquiring as to whether or not it is necessary to hold such an election due to the adjournment of the 1962 regular session of the General Assembly and the holding of the General Election in November of this year for the election of the members of the General Assembly.
The writ of election was issued by the Governor pursuant to Paragraph XII of Section I of Article V of the Constitution of Georgia (Code Section 2-3012) and Code Section 34-1701. The latter provision provides as follows:
34-1701. (90) Authority; notice.-Elections to fill vacancies for members of the General Assembly shall take place under the authority of a writ of election issued by the Governor to the ordinary of the county where the vacancy occurs, who must order and publish a day for holding the same by giving at least 20 days' notice.
Please note that this provision does not specify the time for the holding of the election and, consequently, such a matter addresses itself to your sound discretion as ordinary of the county. Under the circums~ances, I know of no objection to delaying the call of the special election until such time as the need therefor is eliminated.

ELECTIONS-Special Elections. (Unofficial)

d Chapter 34-33 of Georgia Code Ann., relative to absentee voting, oes not apply to special elections.
December 27, 1962
onorable Gordon Bishop Wdge, Court of Ordinary
ayne County

cealbift'l?~taynokf

you Cha

for pte

your l r 34-33

ett of

e t

r h

receive e Code

d t of

oday inq Georgia,

uiring Annot

as ate

to d1,

the applito special

ec IOns.

~ws, 1924, p. 186, as amended.

222
Code Section 34-33012 limits the scope of Code Chapter 34-33 to primaries and general elections. Consequently, it is my opinion that the provisions of such Chapter are inapplicable to special elections.
Apparently the exclusion of special elections from the application of Code Chapter 34-33 arises from the time limitations inherent in the holding of such elections which are incompatible with the longer periods required for substantial participation to be achieved under the absentee voting provisions of Code Chapter 34-33.

ELECTIONS-State Senate (Unofficial)

Discussion of requirements to be met by candidate for seat in State Senate where he has not been nominated in a party primary.

Honorable Walter C. Stevens Ordinary, Bibb County

October 16, 1962

This will acknowledge receipt of your telegram requesting that I
a advise you concerning the requirements which must be met by a Repub-
lican candidate who has not been nominated in primary and an independent candidate so as to be eligible to be placed on the ballot on the General Election to be held November 6, 1962, for the election of a State Senator from the new 26th Senatorial District. You specifically request that I advise you concerning the notice, when and to whom given, and other requirements to qualify as a candidate.

Section 3 of Senate Bill No. 1, enacted by the General Assembly at the Second Extraordinary Session and approved by the Governor on October 8, 1962, relates specifically to the nomination and election of Senators for the 1963-64 term. After specifying the dates for the holding of a Special Senatorial Primary and a runoff primary, if necessary, the Act provides "Each candidate for the State Senate, or the proper authority of the party nominating him, shall file notice of his
candidacy with the Secretary of State by October 25, 1962, ...."

It thus appears that the notice of a candidacy must be filed with the Secretary of State on or before October 25, 1962.

As to the method of qualifying for persons who are not nominated in a Special Senatorial Primary, Section 3 provides "... Provided that any candidate who was not nominated in such a special senatorial primary, in addition to the foregoing, shall file a petition, conforming to all the requirements of Georgia Code Section 34-1904, as amended, not in conflict herewith, with the Secretary of State, signed by ~ot less than five percent (5%) of the registered voters of the District
in which he is a candidate...."

2. Ga. Laws, 1959, pp. 63, 64. See also Code Section 34-3309 (Ga. Laws, 1941, p. 367).

223
This appears to require the filing of a petition by all candidates not nominated in the Special Senatorial Primary specified in Section 3. It further appears that the petition must conform to the requirements of Code Section 34-1904 except as provided in Section 3. To adopt the requirements of 34-1904 in toto would result in the requirement of the doing of an impossible thing, that is, complying with the 45 day requirement. Without more, the law does not require the doing of an impossible act.
Accordingly, this is to advise that construing Section 3 in its entirety that the proper method for a candidate other than a party nominee would be for such person to file the requisite petition with the Secretary of State on or before October 25, 1962, and in the event the petition met the specific requirements and was properly and timely filed, he would be eligible for his name to be placed on the General Election ballot.
This is further supported by the expressed provisions of Section 11 of this Act wherein it is stated "The provisions of Section 3 of this Act shall apply only to the members of the Senate elected for the 1963-64 term. The provisions of Section 3 shall supersede all other provisions of law in conflict therewith, including any provisions of other Sections of this Act. The Provisions of Section 3 shall expire on the date of the convening of the General Assembly in January, 1963. All other laws governing primaries and elections for members of the Senate not inconsistent therewith shall apply to the special primaries and elections provided for in said Section."
ELECTIONS-Voter Disqualification (Unofficial)
Citation of law relative to listing of persons disenfranchised for convicted of crimes.
April 26, 1962
Honorable J. Frank Evans Tax Collector Ben Hill County
Thank you for your letter inquiring as to the law requiring a clerk bf a superior court to prepare a list of persons disqualified from voting Yreason of conviction of crime, the penalty of which is disenfranchisement, and who have not been pardoned.
. In connection with your inquiry, please note Section 21 of the Georg"Ia. yoters' Registration Act (Georgia Laws 1958, pp. 269, 283), codified as Section 34-121 of the Code of Georgia, Annotated.

224
ELECTIONS-Voter Qualifications.
Discussion of literacy requirements for qualification as voter.
March 26, 1962
Honorable Herman E. Talmadge United States Senate
Thank you for your letter received on March 23, 1962, requesting a copy of the Georgia law permitting eligible applicants for voter registration to qualify on the basis of literacy.
In connection with your request, please note Paragraph IV of Section I of Article II of the Constitution of the State of Georgia of 1945 (Code Section 2-704) which provides as follows:
2-704. (6398) Paragraph IV. Qualifications of electors.Every citizen of this State shall be entitled to register as an elector, and to vote in all elections in said State, who is not disqualified under the provisions of Section II of Article II of this Constitution, and who possesses the qualifications prescribed in Paragraphs II and III of this Section or who will possess them at the date of the election occurring next after his registration, and who in addition thereto comes within either of the classes provided for in the two following subdivisions of this paragraph.
1. All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government; or,
2. All persons who can correctly read in the English language any paragraph of the Constitution of the United States or of this State and correctly write the same in the English language when read to them by any one of the registrars, and all persons who solely because of physical disability are unable to comply with the above requirements but who can understand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars.
The implementation of Subparagraph (2) of the above provision is achieved by Section 17(a) of the Georgia Voters' Registration Act (Georgia Laws 1958, pp. 269, 277, Code Section 34-117), a copy of which is enclosed herewith for your convenience.

225
ELECTIONS-Voter Registration (Unofficial)
Though illegal to maintain voter registration list and polling places on segregated basis, voter registration cards may be maintained in manner most conducive to administrative convenience.
January 25, 1962
Mrs. F. S. Freeman Chief Registrar Rockdale County
Thank you for your letter addressed to the Secretary of State and forwarded to the Attorney General for reply, wherein you inquired as to the legality of racially segregating the Voter Registration Cards in your office.
In a decision rendered on January 8, 1962, the United States District Court for the Middle District of Georgia ruled that it was illegal for the City of Albany to maintain its Voter Registration List and polling places on a racially segregated basis and required that same be integrated. By analogy, it could be argued that if a Voter Registration List cannot be maintained on a racially segregated basis, then neither could the voter registration cards.
However, Georgia Law does not prescribe the manner of maintaining the voter registration cards, and, consequently, it is my opinion that you should maintain the cards in such manner as you deem most convenient for the administration of your duties as Chief Registrar.

ELECTIONS-Voter Registration (Unofficial)

Deadline for registration of voters in county primary.

February 16, 1962

Honorable Robert E. Coleman Tax Commissioner Clayton County

:rhank you for your letter inquiring as to the cessation date for the registration of voters to vote in a county primary which is not a special primary.

34-1I2n5

connection with your inquiry, please note sections 34-101 and of the Code of Georgia, Annotated, which provide as follows:

34-101. Requirement of law; elections covered.-Any person who, after the effective date of tliis law, desires to register as an elector to vote in any general or special election in this State, to fill any Federal, State or county office, or in any pri-
mary to nominate candidates for any such office, or in any Federal, State or county election for any purpose whatsoever, must do so under the provisions of this Chapter. Unless the context

226
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. (Acts 1958, pp. 269, 270.)
34-125. Registration of persons to vote in elections subsequent to general election.-lf 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 which he desires to vote, apply to be registered as a voter, and his application shall be processed in the same manner as the applications of persons qualifying to vote in the general election. The registrars 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: 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. (Acts 1958, pp. 269, 285.)
These provisions are self-explanatory and require no comment.
ELECTIONS-Voter Registration (Unofficial)
Deadline for voter registration for 1962 Primary and General Election.
February 23, 1962
Miss Sally M. Scott Washington 16, D. C.
Thank you for your letter inquiring as to the vote registration cessation dates for the General Primary scheduled to be held on Wednesday, September 12, 1962, and the General Election scheduled to be held on Tuesday, November 6, 1962.
The law provides that the voter registration cessation dates for such Primary and Election shall be at one and the same time, to-wit,.the close of the registrars' business on Saturday, May 5, 1962. Sectwns 34-101, 34-123 and 34-124 of the Code of Georgia, Annotated. See also

227
Opinion of the Attorney General to the County Registrars, dated November 22, 1961.
Registrations by members of the military service and their dependents pursuant to chapter 34-36 of the Code of Georgia, Annotated, are excepted from this opinion.

ELECTIONS-Voter Registration (Unofficial)

Discussion of registration dates for 1962 general and primary elections.

February 27, 1962

Memorandum to The County Registrars

The purpose of this Memorandum is to specify the date on which the County Registrars shall cease taking applications from persons desiring to vote in the 1962 General Election and the General Primary to nominate candidates for the Federal and State offices to be filled in such General Election. It should be noted at the beginning that the salient authority governing our consideration of this matter is the
1958 Registration Actl which is codified as Chapter 34-1 of the Code of Georgia, Annotated.

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,2 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, 1962.3 The County Registrars, ~ot later than Friday, April 20, 1962, must begin the preparation of a hst of the qualified voters of their county to be used in the 1962 GeneAral Election and must complete such list not later than Wednesday,
ugust 1, 1962.4

. Within five days after completing said list, the County Reg-

Istrars must file certified copies of same with the Clerk of the

--Superior Court of their County and with the Secretary of State and,
consequently, the latest date on which said list can be legally filed is on Monday, August 6, 1962.5

21.

Acts, 1958, pp. 269-295, as amended. 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 of the Code of Georgia,

3

Annotated. Code Section 34-111, Acts 1958, pp. 269, 276; Op. Atty. Gen., 1957,

: bc~~;9~e~~io~9~t~~2;A~~~ ~~~8,1;;~tl9,P28~:

ode Section 34-123, Acts 1958, pp. 269, 284.

228
On February 9, 1962, the Governor signed into law Senate Bill No. 1706 which provides in part as follows:
Section 2. Whenever any political party shall hold primary elections for nomination of candidates for the office of Governor, State House Officials, United States Senators, Members of Congress, Justices of the Supreme Court, Judges of the Court of Appeals, Judges of the Superior Courts, and SolicitorsGeneral the same shall be held on one and the same date throughout the State, which shall be on the second Wednesday in September of each year in which there is a regular general election. The foregoing provisions shall apply to any such primary election held in the year 1962, and thereafter.
Obviously, this law fixes Wednesday, September 12, 1962, as the date for holding the next General Primary.
Next, we should construe Code Sections 34-101,7 34-1238 and 34-1249, 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 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. ... Provided, however, that no person shall be eligible to vote in any election, as defined in this
6. Amends Acts 1953, Jan-Feb Sess., p. 244, as amended by Acts 1953, Nov-Dec Sess., p. 335 and Acts 1961, p. 432 (Section 34-3608(2) of the Code of Georgia, Annotated).
7. Acts 1958, pp.. 269, 270. 8. Acts 1958, pp. 269, 284. 9. Acts 1958, pp. 269, 284.
office, or any Federal, State or county election for any purpose whatsoever." (Emphasis supplied.)

229
law, who is not at least 18 years of age on or before the date of such election." (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. Consequently, 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 legally filed is on August 6, 1962. Therefore, the registration cessation date for the General Primary to be held on September 12, 1962, would be the same as for the 1962 General Election, to-wit, Saturday, May 5, 1962.
It should also be noted that the 1958 Registration Act (Code Chapter 34-1) is the direct descendant of the 1949 Registration Acti 0 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 p. 321,11
Registrations by members of the military service and their dependants pursuant to Code Chapter 34-3612 are excepted from this Memorandum.
ELECTIONS-Voter Registration (Unofficial)
Since place for voter registration in county is established by Vote1.rs' Registration Act, additional places for registration must be establshed by additional legislation.
March 2, 1962
Honorable Waymon Gaither Rossville, Georgia
Thank you for your letter of February 28, 1962, stating that the place for voter registration in Walker County has been established
--ln the courthouse at LaFayette and inquiring as to the legality of
~stablishing another place for voter registration in Rossville located ln the extreme northern part of the county.
10 Acts 1949, pp. 1204-1227. 11. See also Memorandum of the Attorney General to the County
Registrars dated November 22, 1961. 12. Acts 1953, pp. 244-251, as amended.

230
Generally speaking, the place for voter registration in a county is established by Section 10 of the Voters' Registration Act (Ga. Laws 1958, p. 269), as amended, a copy of which is enclosed herewith. Conse. quently, the establishment of additional places for voter registration in a county must be provided for by other legislation. As an example of such legislation, please find enclosed herewith a copy of House Bill No. 1096 which was passed by the General Assembly at its last session.

ELECTIONS-Voter Registration (Unofficial)

Deadline for voter registration for early primary is six months before day of holding primary.

May 10, 1962

Mrs. John Shamblin Chief Registrar Chattooga County

Thank you for your recent letter inquiring as to tne voter regis-
tration deadlines for a county primary to be held on June 19, 1962, and a county school bond election to be held on May 22, 1962, in your county. You also requested information concerning the application of a voter
for an absentee ballot pursuant to the provisions of Chapter 34-33 of the Code of Georgia.

For the purpose of answering your first inquiry, I assume that the county primary is a regular primary and not a special primary, and that such regular primary will be held prior to the Registrars preparing and
filing the list of qualified voters to be used in the General Election to be held on November 6, 1962, as provided by Section 34-123 of the Code of Georgia, Annotated.1 Section 34-101 of the Code of Georgia, Annotated,2 defines the term election to include a county primary. Consequently, Section 34-125 of the Code of Georgia, Annotated,3 requires that the voter registration deadline be fixed six months before the daY of holding the county primary.

In answer to your second inquiry, please find enclosed herewith a copy of an opinion dated March 30, 1961, of the Attorney General to the Honorable T; H. Rivers, and copies of the opinions referred to
therein. These opinions are self-explanatory.

In answer to your third inquiry, please find enclosed herewith a

resume of the voting by mail provisions contained in Chapter 34-33

of the Code of Georgia.

'

1. Georgia Laws 1958, pp. 269, 284. 2. Georgia Laws 1958, pp. 269, 270. 3. Georgia Laws 1958, pp. 269, 285.

231
ELECTIONS-Voter Registration (Unofficial)
Procedure outlined for voter registration of military personnel.
August 1, 1962
Master Sgt. Elmo H. Boyle Blythe, Georgia
This will acknowledge receipt of your letter in which you request information concerning the voter registration of members of the Armed Forces under stated conditions.
Georgia Code Annotated, Chapter 34-36 relates to participation in elections by men and women in the military service. Section 34-3605 relates to the registration by members of the military. This Section is based upon Georgia Laws 1953, page 244. It reads:
"34-3605. Registration.-The tax collectors or tax commissioners or registrars of the several counties shall provide for the military a registration card in form as follows:
"I do hereby affirm that I am a citizen of the United States; that I have resided in the State of Georgia one year and in the County of __________________________ for six months immediately preceding the date of my induction into the military service of the United States; that my address at the time of my induction in the military service was -------------------------------- St. or R.F.D--------------------------------town ; that I possess the qualifications of an elector required by the Constitution of Georgia; that I am not disfranchised from voting by reason of any offense committed against the laws of Georgia; and that I am ____________ years of age and reside in ----------~------------- Militia District. Dated this -------------------- day of ________________________, 19________.'
Signature
"The signing of the aforesaid registration card containing the required information shall be, in all respects, equivalent to c?mplying with all provisions of the registration laws of Georgia, and shall not require attestation.
"Any member of the military, his relative, or friend, is authorized at any time to request from the tax collector or ~ommissioner or registrars the aforesaid registration card and In making said request shall furnish the name and address of the military member, and upon receipt of such request it shall be the duty of the tax collector or commissioner or registrars to send the same to the member of the military; and the tax collector or commissioner or registrars shall number the said registration forms and shall keep a permanent record book in his office in which he shall record the number of the card, the name ?f the member of the military for whom the registration card ~shsought, the name and relation, if any, of the person requesting
e card, and the date the card is furnished, and such other

232
information necessary to identify said registrant: Provided further, however, for good and sufficient cause made known to the tax collector or commissioner or registrars, he may furnish to the military voter, a duplicate registration card, noting the fact in the book hereinbefore referred to.
"The member of the military receiving and executing the aforesaid registration card shall place the same in an envelope addressed to the tax collector or commissioner or registrars of his county, and mail the same. It shall not be necessary to use registered mail.
"When such registration is completed, signed and returned to the tax collector or tax commissioner or registrars of the county it shall form a part of the voters' registration list. Upon receipt by the tax collector or commissioner or registrars of the said registration, the name of the member of the military so registering shall be placed upon the registration list as an elector and registered voter, and shall be certified as such by the registrars: Provided, however, the said member of the military is otherwise qualified."
It would thus appear that where a member of the military is qualified, i. e., where he has been a resident of the State of Georgia for a period of one year and a resident of the county for at least six months, and further does not assert his qualification to fulfill the residency requirement solely by his presence in this State under orders of the military, and, being otherwise qualified, he could register under the procedure provided in the above quoted Code Section.
ELECTIONS-Voter Registration Lists (Unofficial)
Citizen may make reasonable inspection of voter lists and registration cards maintained by county officials.
April 17, 1962
Mr. Waymon Gaither Rossville, Georgia
Thank you for your recent letter inquiring as to whether or not Section 39 of the Voters Registration Act (Section 34-139 of the Code of Georgia, Annotated) is still in effect.
Section 39 is still in effect and you are authorized as a citizen of your county to make a reasonable inspection of the voters lists and registration cards maintained by the officials of your county. A cop~ of the Voters' Registration Act, as amended through 1961, is enclose herewith for your files.

233

ELECTIONS-Voter Registration Lists (Unofficial)

Where militia district includes several city wards, but only polling place in district is at courthouse, registrars may furnish to election managers either one voters list for entire district or separate lists for each ward.
April 20, 1962
Honorable George C. Imes Judge, Court of Ordinary Spalding County

Thank you for your recent letter addressed to the Secretary of State and forwarded to the Attorney General for reply. In your letter you stated that the 1001st Militia District is contained within the corporate limits of the City of Griffin and that such Militia District is divided into four City Wards which have never been utilized for voting
purposes. You further stated that the voters residing within such Militia District vote at the polling place established at the Courthouse of Spalding County. You inquired as to the legality of the Registrars preparing a single voters list for the Militia District instead of a separate voters list for each City Ward.

The relevant provisions of the Voters' Registration Act concerning the preparation of voter lists provide as follows:
"Section 23.... Said list shall be alphabetically arranged by militia districts and voting precincts, and in case a city is located in the county, by the wards of said city, and 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."1
"Section 33.... If in any city ward or militia district a voting precinct is not established and opened, the registrars shall furnish to the election managers at the voting precinct at the courthouse, at the county seat, the lists of registered voters of such ward or militia district, and persons whose names appear on such lists shall be allowed to vote at the voting precinct at the courthouse, at the county seat, under the same rules that would have governed if a voting precinct had been established and opened in said ward or militia district."2

Obviously, the latter provision creates an exception to the operation 0f the former. The term "voting precinct" as used in Section 33 means

aflPaco~lliinsgnpoltaecset.aIbnlioshtheedrawndorodpse, nSeedctiinona

33 provides City Ward,

that when a polling the Registrars shall

Puo1rllilnlsghptlhaecevaottetrhseliCstouorfthsuocuhseW. ard to the Election Managers at the

--~s.tIrnictthies

case described by at the Courthouse.

you, the only polling place in the Militia Therefore, the Registrars have to furnish

e voters list of each Ward to the Election Managers at such polling

~ Georgia Laws 1958, pp. 269, 284, Sec. 34-123 of Ga. Code Ann.

Georgia Laws 1958, pp. 269, 288, Sec. 34-133 of Ga. Code Ann.

234
place. Under such circumstances, it would be unreasonable and impracticable to interpret Section 33 as requiring the Registrars to prepare a separate voters list for each Ward not containing a polling place. Consequently, it is my opinion that the Registrars may prepare a single voters list for the Militia District and that such action would constitute a substantial compliance with Section 33.3
Of course if the Registrars so desire, they can continue to prepare a separate voters list for each Ward for delivery to the Election Managers at the Courthouse. The selection of either alternative addresses itself to the Registrars.
ELECTIONS-Voter Registration Lists
The proper registration list to be used in a schoolhouse bond election is the registration list used for the last general election.
May 18, 1962
Dr. Claude Purcell State Superintendent of Schools
I am pleased to acknowledge receipt of and answer your request for an official opinion regarding the Voters Registration Act of 1958 (Ga. Laws, 1958, p. 269 at seq.; Ga. Code1 Ann., Chapter 34-1) and the application of certain provisions of said Act to a county schoolhouse bond election. In your letter you refer specifically to Code Sections 34-101 and 34-124 through 34-126 and ask the following question:
As to school bond elections, what registration list do the registrars furnish the school system board of education to be used to allow people to vote?
I have heretofore rendered a number of unofficial opinions regarding the subject question, but in light of your request and enactment of the Voters Registration Act of 1958 I will again review the matter and render you this official opinion. See, however, the earlier opinions rendered by this office in Opinions of the Attorney General, 1946, at p. 237, 1940 at p. 221, 1939 at p. 223, 1935 at p. 44 and 1933 at p. 148, with which this opinion is in agreement.
Georgia school laws relating to local issuance of bonds for construction of schoolhouses, as codified in Georgia Code, Ann., Section 32 1403, provide in part as follows:
"... when any county board of education shall deem it to the best interests of education in the county to incur any bonded debt for building, equipping or purchasing sites for the building and equipping of schoolhouses, pursuant to Article VII, Section
3. See Code Sec. 102-102(6).

235

VII, Paragraphs I and II of the Constitution of 1877, as amended in 1945, the election required shall be called and held in the manner prescribed by Chapter 87-2...."

The Georgia Code, in Chapter 87-2, contains provisions providing
for the call and the holding of elections to incur bonded indebtedness when such is deemed necessary by the proper authorities pf any county, municipality or political subdivision. A county board of education is a political subdivision of the State of Georgia, Board of Education v.
Southern Michigan National Bank, 184 Ga. 541, and said board is the proper authority contemplated under Code Chapter 87-2 to call, manage, consolidate the returns and declare the result of elections for incurring bonded indebtedness for building and equipping schoolhouses. Nelms v. Stephens County School District, 201 Ga. 274. If the required
number of registered voters vote approval of a bond issue then, pursuant to Code Section 87-203, the authority calling the election is authorized to issue such bonds in accordance with Art. VII, Sec. VII, Pars. I and II of the Constitution of Georgia, Code Sections 2-6001 and 2-6002. In connection therewith, Georgia Code Ann., Section 87-204, provides:

"In determining the question whether or not the requisite two-thirds of the qualified voters in said county, municipality or political division voting at said election in favor of the issuance of said bonds, constituted a majority of the registered voters in said county, municipality, or political division, the registration list made as provided by law shall be used." (Emphasis added)

The Voters Registration Act provides all necessary details relative

to the registration of voters and is presently codified in the pocket part

of Book 12 of the Georgia Code, Annotated, as Code Chapter 34-1.

9ode Section 34-101 requires all persons desiring to register and qualI~Y. to vote in the elections specified therein to do so under the pro-

VISIOns of that Act, and defines the word "election" as used in said

Act, except where the context clearly indicates otherwise, to mean the

~pecific general or special elections enumerated therein and, likewise,

(aEnmypFheasdiesraald, dSedta)teTohre

county election for same terminology,

any. purpose whatever." to-wit, "election for any

purpose whatever," has appeared in earlier Georgia voter registration

awhs and has been interpreted by the Supreme Court to include county

sc oolhouse bond elections. See Floyd County v. The State, 112 Ga. 794.

Ptrovisions of the current Voters Registration Act are therefore deemed

0 be applicable to current schoolhouse bond elections.

The Voters Registration Act provides for maintenance of a permab~nt l_ist of registered and qualified voters in each county, subject to Ien~Ial and annual revision by the registrars and the removal or sus~4endmg of persons therefrom pursuant to provisions of Code Sections . -120, 34-121 and 34-122. A true and correct list of qualified voters Is to ~e perfected by county registrars and filed with the clerk of the ~upen.or court within five days after completion of same in each year n Which a general election is to be held, and no later than August 1 0f such year (See Code Section 32-123), and only those persons whose

236
names appear on said lists, less those subsequently disqualified and purged therefrom, can vote in the general election of said year. Code Section 34-124. Code Section 34-125 provides further, however, that persons desiring to vote in elections subsequent to the general State election may do so if they register and qualify at least six months before said election, their names then being placed on a supplemental voting list. Said code section then provides:
"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."
The provisions of the next succeeding section, Code Section 34-126, permits voters desiring to register and qualify for a special election to do so up until the call of said special election and for five days thereafter, and provides for a supplemental listing of such voters.
A schoolhouse bond election is a special election. Houston v. Thorn as, 168 Ga. 67. Absent consideration of other provisions of law, the foregoing code sections appear to be clear in content and each applicable to schoolhouse bond elections. The Constitution of Georgia has, however, since 1918, contained the following provision. (See the Georgia Constitution of 1945, Art. VII, Sec. VII, Par. I, Code Section 2-6001, and the Constitution of 1877, Art. VII, Sec. VII, Par. I, Code Section 2-5501, as amended in 1918.)
"... 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. . . ."
The three foregoing code sections, to-wit, Code Sections 34-124, 24-125 and 34-126, appearing in the present Voters Registration Act contain, in effect, though the terminology varies, the same substantive provisions relative to voter registration as existed in similar sections of the voters registration laws of 1894 (Ga. Laws 1894, p. 119), as amended by the laws of 1897 at p. 95, 1908 at p. 58, 1911 at p. 167, and by the laws of 1914 at p. 47, and are the same in substance as those similar provisions appearing in the Voters Registration Act of 1949 (Ga. Laws 1949, p. 1204). The subject question asked by you, involving consideration of the foregoing quoted constitutional provision did arise at an earlier date under the old voter registration Jaw~, to-wit, in 1912, and was then decided by the Supreme Court of Georgia in Terrell v. Forest Park School District, 175 Ga. 88, on the following certified question from the Court of Appeals.
" ... is there any authority of law whereby a person legally qualified to register, but whose name does not appear on the list of voters made up, certified, and filed with the clerk for the last

237
general election, may be registered so as to entitle him to vote in such local school-district bond election held more than six months after the voters' books closed for the last general election?"
In answer thereto the Supreme Court stated:
"... as to bond elections the Act of 1911 itself has been nullified by a constitutional amendment submitted to the people and ratified in 1918 (Ga. Laws 1918, p. 99) . . . . Thus it will be seen that there is no valid law in Georgia providing for special registration of voters for bond elections.''
The Supreme Court did not, in the body of its opinion, discuss the matter further to any appreciable extent but did state its holding in Headnote 1 of the decision as follows:
"There is no authority of law whereby a person legally qualified to register, but whose name does not appear on the list of voters made up, certified and filed with the clerk for the last general election, may be registered so as to entitle him to vote in a special local school-district bond election held more than six months after the voters' books closed for the last general election.''
The Supreme Court in that decision in effect held that under the above quoted constitutional provision the provisions of the then existing voters registration laws referred to above which in substance were the same as those provisions relating to special registration of voters now contained in the Voters Registration Act of 1958 were unconstitutional and null and void insofar as schoolhouse bond elections are concerned. In that the voters registration provisions of the 1958 Voters ~egistration Act relating to special registration of voters are the same m substance as those voters registration provisions of law before the court in the Terrell case, I am constrained to be of the opinion that t~e decision rendered in that case is likewise applicable to and controlh!l' of the question asked by you and that in line therewith the proVISions of said Act and said code sections relating to special registration of voters referred to are unconstitutional insofar as schoolhouse bond elections are concerned. The proper registration list to be used in a schoolhouse bond election is the registration list used for the last general election.

238
ELECTIONS-Voter Registration Lists (Unofficial)
Proper voter registration lists are essential to validity of elections.
May 18, 1962
Honorable Joe T. Lane Judge, Court of Ordinary Clayton County
Thank you for your recent letter directing my attention to an Act of the General Assembly1 authorizing the governing authority of Clayton County to propose fire prevention districts and authorizing the Ordinary to call and hold an election in order to determine whether taxes shall be levied in such district for fire prevention purposes. The Act places a duty upon the Ordinary to compile a list of voters for such district and provides that "only those voters who are duly registered to vote in the general election and whose residence is inside the boundaries of said fire district shall be qualified to vote."
You stated in your letter that the governing authority contemplates proposing a district whose boundaries are within, but not coextensive with, the boundaries of three contiguous militia districts. You further stated that you can easily compile a voters list for the three militia districts by utilizing the records of the Board of Registrars, but that to compile a special voters list for the contemplated fire prevention district would require a physical canvass of the district which would be expensive. You suggest the utilization of a list composed of the voters of the three militia districts with the requirement that no voter whose name appears on the list will be permitted to vote unless he signs an affidavit to the effect that his residence is inside the boundaries of the fire district. You request my opinion as to the legal feasibility of your suggestion.
Initially, we should note that Code Section 34-3101 provides as follows:
34-3101. (126) Necessity of showing that result was affected.-No election shall be defeated for noncompliance with the requirements of the law, if held at the proper time and place by persons qualified to hold it, unless it is shown that, by such noncompliance, the result is different from what it would have been had there been proper compliance.
The general rule is that mere irregularities in the preparation of a voters list will not vitiate an election, unless it affirmatively appears that a different result would have occurred if there had been a proper
1. Georgia Laws 1962, pp. 2257-2261.

239
compliance with the law.2 However, in Price v. Hodges,3 concerning a school district election, there was in effect no registration list furnished as to the voters for the school district involved in the election, because the lists furnished contained the names of persons in two whole militia districts, covering territory beyond the school district. The Court held that Code Section 34-3101, as codified in the Code of 1910, has "reference to irregularities in the conduct of elections in matters which are merely directory, and not to the absence of a proper registration-list under the act of 1911, which is now necessary to qualify persons to vote at such election," and, hence, the Court concluded that the failure as to the lists was so fundamental as to void the election.
In view of Price, it is my opinion that your suggestion would be a perilous solution to your problem. Consequently, I suggest that either the boundaries of the fire district be revised to coincide with the boundaries of the militia districts or that an effort be made on your part to compile a proper list of voters.

ELECTIONS-Voter Registration Lists (Unofficial)

Candidates may copy voter registration lists so long as lists are not removed from custody of official in charge.

Honorable Willie H. Hill
Chairman, Board of Registrars Barrow County

May 29, 1962

. Thank you for your letter stating that two candidates for membership in the General Assembly have requested permission to make copies of the voters lists prepared by your Board, and inquiring as to whether such copying is legally permissible.

In connection with your inquiry, please note Section 34-139 of the Code of Georgia, Annotated, which provides as follows:

34-139. Lists and registration cards open to inspection; not

to be removed from official custody.-The lists of registered

voters and registration cards shall be open at all times to the

- - - - reasonable inspection of any citizen of the county, but shall not

2. McCluney v. Stembridge (1950) 206 Ga 321 (5), 328(5), 57 SE 2d

203; Pinion v. Walker County School District (1947) 203 Ga 99 (1),

45 SE 2d 405; Cloud v. Maxey (1942) 195 Ga 90 (1), 23 SE 2d 668;

Coleman v. Board of Education of Emanuel County (1908) 131

3

Ga 643 (9), 63 SE 41; and Code Section 34-3101. (1930) 172 Ga 871, 159 SE 241. See also: Cloud

v.

Maxey

(1942)

195 Ga 90, 92, last par, 23 SE 2d 668; and Crye v. Pearce (1932)

175 Ga 85, 165 SE 121.

240
be removed for such inspection from the custody of the official in charge. (Acts 1958, pp. 269, 292.)
Logically, if a person has the right to inspect records, he should also have the right to copy what portion of the records he desires. Consequently, it is my opinion that the candidates may copy the voters lists provided the lists are not removed from the custody of the official in charge.
ELECTIONS-Voting Age Requirements (Unofficial)
Person under 18 years of age may register to vote provided he is not allowed to vote until he has reached age of 18.
April 2, 1962
Honorable John T. Daniels County Board of Registrars Douglas County
You have requested my opinion as to whether a person not yet eighteen years of age could legally be registered to vote in the general election, provided that such person would be eighteen years of age at the time of said election.
I call your attention to the proviso which may be found in Section 34-124, Code of Georgia Annotated, as amended, which states as follows:
"... that no person shall be eligible to vote in any election, as defined in this law, who is not at least 18 years of age on or before the date of such election."
From this Code Section it is evident that the age requirement is satisfied if the person is eighteen years of age on the date of the election.
I further call to your attention Section 34-101, Code of Georgia Annotated, as amended, which states:
"... 'election,' as used in this chapter, shall mean any ... primary ... for any purpose whatsoever."
Relying on the two previously cited Code Sections, a person not yet eighteen years of age could be legally registered to vote provided that he were eighteen years of age at the time he actually voted in the election, whether general or primary.

241
ELECTIONS-Voting Age Requirements (Unofficial)
Person under age of 18 may not vote in primary.
April 26, 1962
Mrs. Lucile Wood Chief Registrar Liberty County
This letter is written in accordance with our telephone conversation of today, wherein you inquired as to whether or not a person under 18 years of age could vote in the Democratic primary to be held on September 12, 1962.
In answer to your inquiry please note Section 24 of the Georgia Voters' Registration Act (Georgia Laws 1958, pp. 269, 284), codified as Section 34-124 of the Code of Georgia, Annotated, which provides "that no person shall be eligible to vote in any election, as defined in this law, who is not at least 18 years of age on or before the date of such election". Section 1 of the Act, codified as Section 34-101, defines the term "election" to include any primary to nominate candidates ,for any Federal, State or county office. A copy of the Act is enclosed herewith for your convenience.

ELECTIONS-Voting Split Ticket (Unofficial)

Procedure set forth for voting split ticket in general election.
October 26, 1962
Mrs. Myrna R. McMahan Trenton, Georgia

Thank you for your recent letter requesting my advice on voting a split ticket on the paper ballot to be used in the General Election to be held on November 6, 1962.

In responding, I will assume that the ballot contains four columns h~aded, "Democratic," "Republican," "Independent" and "Write-in," With the names of candidates for public office printed in the first three columns; that a bracket is printed to the right of each heading
for the insertion of an "X"; and that a voter desires to vote Democratic, Republican and Independent candidates and for a person as a Write-in candidate.

(1).U~nYdienrs

these circumstan erting an "X" in

ces, the

I ad brac

vise the voter to vote ket for the Democrati

a c

split ticket column and

str1~mg out the name of any candidate therein for whom the voter

~deesp1urbelsicnaont

to vote; (2) by inserting an "X" in the bracket column and striking out the name of any candidate

for the therein

or whom the voter desires not to vote; (3) by inserting an "X" in

the bracket for the Independent column and striking out the name of

242
any candidate therein for whom the voter desires not to vote; and (4) by inserting an "X" in the bracket for the Write-in column and manually writing therein the name of the person for whom the voter desires to vote as a write-in candidate, accompanied by the title of the office involved (Ga. Laws, 1962, p. 98).
ELECTIONS-Write-in Votes (Unofficial)
There is no significance attached to write-in votes in party primaries, but Constitution guarantees their significance in general election.
September 28, 1962
Honorable Bascom Whitehurst Adel, Georgia
Thank you for your recent letter inquiring as to the legal significance of write-in votes in Democratic primaries and general elections.
It is my understanding that the Democratic party affords no significance to write-in votes and, consequently, disregards them in the tabulation of the votes. Clearly, the party is under no legal compulsion to afford significance to write-in votes.
In general elections, the Georgia Constitution guarantees electors the right to write-in votes and, hence, such votes have legal significance and must be tabulated when properly made. For your information, please find enclosed an act of the General Assembly approved February 26, 1962 (Ga. Laws, 1962, p. 98), which prescribes the manner of making write-in votes.
EMPLOYMENT-Deceased Employee (Unofficial)
There is no statutory provision for paying to mother and father salary due a deceased employee in absence of letters of administration entitling them to same.
April 10, 1962
Miss Jule Rossiter Comptroller Armstrong College of Savannah
I am in receipt of your letter concerning disposition of salary due a deceased employee.
There is no Georgia statute permitting the receipt of a salary check due a deceased son by his mother and father in the absence of letters of administration showing them to be entitled to receive such check. If the deceased had been survived by a widow, she would be his sole beneficiary and entitled to receive the check; however, that is not the case here.

243
EMPLOYMENT-Minors
Laws cited relating to summer employment of minors between ages of 12 and 18.
May 23, 1962
Mr. Henry D. Struble Assistant to Director Georgia Department of State Parks
I am in receipt of your letter requesting our advice as to the regulations pertaining to summer employees between the ages of twelve (12) and eighteen (18).
This is to advise that Ga. Code Ann., Section 54-301, which is applicable to the situation you described, provides as follows:
"54-301. Minimum age; in general.-No minor under 14 years of age shall be employed, permitted or suffered to work in any gainful occupation at any time: Provided that this law shall not be construed to apply to the work of a minor in agriculture, domestic service in private homes, or in employment by a parent or a person standing in place of a parent. (Acts 1946, pp. 67, 68.),
The only other laws on this subject that I think you would be interested in are as follows:
"54-310. Employment certificates; requirement, issuance.No child between the ages of 14 and 16 years shall be employed by or permitted to work for any person, firm or corporation, as defined in section 54-301, unless and until a certificate showing the true age of such child and that such child is not less than 14 years of age and is physically fit to follow the employment sought to be obtained, shall be issued by the superintendent of the schools (or by some member of his staff authorized by him in writing) in the county or city where said child resides. A like certificate shall be issued in cases of all children between the ages of 16 and 18 (Acts 1946, pp. 67, 70.)
"54-311. Same; contents.-The certificate mentioned in the foregoing section shall state the full name, date and place of birth of the child, with the name and address of the parents, guardian, or person sustaining the parental relationship to such child, and that the child has appeared before the officer, and the evidence of age required herein. (Acts 1946, pp. 67, 71.)"
Of course, as stated in the Code, agricultural employment is excl?ded and in the event that some of the Parks Department's projects rn1ght be agricultural in nature, I think the exclusions would be applicable to that particular portion of your operation.

244
EVIDENCE-Illegal Searches and Seizures (Unofficial)
Evidence obtained by illegal searches and seizures not inadmissible in courts of this State.
April 9, 1962
Mr. Edward J. McCormack, Jr. Attorney General The Commonwealth of Massachusetts
This will acknowledge your inquiry with reference to the recent decision of the United States Supreme Court, which appears to be Dollree Mapp, etc., Appellant vs. Ohio, on appeal from the Supreme Court of Ohio, decided on June 19, 1961, and found in 29 LW 4798, and in 367 US 343.
In the State of Georgia the subject of searches, seizures and warrants is provided for in the State Constitution, Article I, Section I, Paragraph XVI (Code of Ga. Ann., 2-116) and reads as follows:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath, or affirmation, particularly describing the place, or places, to be searched, and the persons or things to be seized."
The officer executing a search warrant may break the door of the house or room specified in the warrant. The warrant is his justification. If it was taken without probable cause, the breaking and search is a trespass on the part of the applicant thereof. Code of Ga. Ann., 27-301.
Of course, we have statutory law in this State covering the definition of competent evidence, sufficient evidence, cumulative evidence, direct evidence, indirect or circumstantial evidence and presumptive evidence, which is foundin Code of Ga. Ann., 38-102. And we have statutory law providing that admissions obtained by constraint, or by fraud, or by drunkenness induced for the purpose, or admissions or propositions made with a view to a compromise, are not proper. Code of Ga. Ann., 38-408. However, we do not have any statutory law in this State holding that evidence obtained by an illegal search and seizure is inadmissible in State court criminal proceedings. The State of Georgia, as is the case in the State of Massachusetts, heretofore has been admitting such evidence and we have a long time of decisions to the effect that evidence in a criminal case is not incompetent because obtained by unlawful search and seizure. See: 79 Ga. App. 711 (2a); SO Ga. App. 835; 81 Ga. App. 797, 799; 83 Ga. App. 678; 84 Ga. App. 511; 84 Ga. App. 199, 201; 91 Ga. App. 387.
In your letter you indicate a desire to learn what machinery shou!d be employed to determine whether in any given case evidence was I_ll fact illegally obtained, etc. No machinery has been formulated in thihS State and no provision made for the suppression and return of sue evidence by rule of court, statute or otherwise. Of course, in our judg-

245
ment this matter would address itself to the courts, and we are sure that our trial courts and appellate courts, when called upon to do so, will give due and appropriate consideration to the decision of the Supreme Court rendered in the Mapp case, and in any other decisions which may be handed down relating to this subject matter.
FOOD AND DRUGS-Soft Drinks (Unofficial)
Labeling and licensing requirements for sale of soft drinks discussed.
April 9, 1962
Mr. D. F. McGougan, Jr. Tabor City, North Carolina
This will acknowledge receipt of your letter of April 5, 1962, requesting information pertaining to the labeling required on a soft drink package sold in this State.
This is to advise that the statement on the label, "Distributed by Tru-Ade Corporation," with the address of that corporation, will be sufficient, and that it will not be necessary to change the label to insert the name of your client as packer.
This is to further advise that it will be necessary that a license under the provisions of Georgia Laws 1956, page 611 (Ga. Code Ann., Ch. 42-13) be obtained.
FORESTRY-State Forestry Law (Unofficial)
Discussion of registration requirements and related issues under State Forestry Law.
July 13, 1962
Dean A. M. Herrick Chairman State Board of Registration for Foresters
. I am pleased to acknowledge receipt of your letter requesting my OPinion in several matters relating to the State Board of Registration for Foresters. In answering your questions below, I will first give the question and immediately follow it with my opinion.
"1. Under provisions of Section 3 of the Forestry Law, in the event that the Governor fails to make an appointment to fill a vacancy on the Board of Registration and the Board seeks to fill such vacancy, is the Board obligated to select an appointee from among the two nominations recommended to the Governor by the Georgia Chapter of the Society of American Foresters?"

246
From a reading of Georgia Code Annotated, Section 43-203(a) which is Section 3 of the Act you refer to, it does not appear to the undersigned that the Governor is obligated to select an appointee from the two persons who might be nominated by the Georgia Chapter of the Society of American Foresters. It is true the above referenced section provides for the appointment of the original members from among those nominated by the Society, however, I find no such requirement for any future appointments. In view of the foregoing, it would appear that the Board would not be obligated to select an appointee from recommendations made by the Society of American Foresters.
"2. What is the status of an individual whose license has expired because of non-payment of the renewal fee, during the 'ensuing ten months,' is he a registered forester?"
It is my opinion that an individual whose license has expired is not a registered forester after the date of the expiration of his license which, in my opinion, is the last day of the month of December following their issuance or renewal. In this connection you are referred to Georgia Code Annotated, Section 43-216(a) which is Section 16 in your Act.
"3. Are licenses automatically revoked on October 31 of any year, for individuals who have failed to pay the renewal fee for a license valid in the preceding calendar year?"
My opinion is that licenses that you refer to are not automatically revoked on October 31 of a year following non-renewal. It would be my opinion that the licenses had automatically expired and that this additional ten-month period would be a 'grace' period during which the licenses could be renewed without going through the procedure of again applying and meeting the initial qualifications for obtaining a license.
"4. Does the Law now provide for the removal of a member of the Board who ceases to be a registered forester, i. e., whose license has expired and has not been renewed during the 'ensuing ten months?' if so, is this the responsibility of the Governor, or can the Board act for such removal?"
Before I could express an opinion on this question, it would be . proper and necessary that I review the certificate of appointment
received by the particular Board member concerned together with whatever other facts might be available in such a case. However, without this information I will express some general thoughts on this matter for your consideration. The statute concerning and setting up the State Board of Registration for Foresters requires for subsequent appointments after the initial organization for the Board to be from persons who are registered foresters. However, there is no clearlY stated requirement that the person so appointed continue to be a forester. The Act (Ga. Code Ann., Sec. 43-204(a)) sets up certain qualifications for members of the Board and the Act (Ga. Code Ann., Sec. 43-206(a)) provides for the removal of any member of the Board in certain instances by the Governor. For your ready reference we are quoting below these two Code Sections.

247
"43-204(a). Qualifications of members of Board.-Each member of the Board shall be a citizen of the United States and a resident of Georgia, a member or Fellow of the Society of American Foresters, and shall have been engaged in the practice of forestry for at least 10 years. (Acts 1951, pp. 581, 582.)"
"43-206 (a). Removal of members of board; vacaricies.-The Governor may remove any member of the board for misconduct, incompetency, or neglect of duty. Vacancies in the membership of the board shall be filled for the unexpired term by appointment only as provided in this Chapter. (Acts 1951, pp. 581, 583.)"
GAME AND FISH-Commercial Fishing (Unofficial)
Taking of fish and wildlife is a privilege, but there is no specific legislation concerning limitation of use of fishing gear by commercial fishermen.
March 9, 1962
Honorable John J. O'Connell Attorney General State of Washington
This will acknowledge receipt of your letter requesting information concerning limitations placed upon the use of commercial fishing gear by commercial fishermen.
This is to advise that Georgia Code Annotated, Sec. 45-501 provides that the taking of fish and wildlife is a privilege.
Further, Code Chapter 45-8 relates to commercial fishing in general. Code Title 45 relates generally to game and fish.
I am enclosing copy of the current rules and regulations of the State Game and Fish Commission. I regret that I do not have available lopies of the Annotated Code for distribution, but the body of the aws pertaining to game and fish is contained in the compilation.
I am not aware of any specific legislation dealing with the problem, or any court decisions that would shed light upon your question.

248
GAME AND FISH-Licenses (Unofficial)
Disabled veteran's license exemption is from business and occupational taxes and is not applicable to regulatory licenses such as hunting or fishing.
July 19, 1962
Mr. Fred L. Saunders Homerville, Georgia
Your letter addressed to the Governor has been forwarded to this office for reply.
You make reference to the authority of the Game and Fish Commission to promulgate rules and regulations, and further question the effectiveness of such rules and regulations.
I assume that you make reference to the case of Glustrom v. The State, 206 Ga. 734. That case held that an accusation charging a violation of the rule of the Revenue Commissioner did not charge the defendant with the commission of a crime in that the rule making authority of the Commissioner was limited and that the General Assembly did not provide that the violation of regulations of the Commissioner would be a misdemeanor.
The Court of Appeals of Georgia, in the case of Briggs v. The State, 80 Ga. App. 664, affirmed a conviction for the violation of a rule and regulation promulgated by the Game and Fish Commission. It appears that the Briggs case authorizes and sustains the authority to convict for a violation of the rules and regulations promulgated by the Game and Fish Commission under and as provided by the laws pertaining thereto. The Supreme Court denied certiorari in the Briggs case.
With reference to the exemption from the license fee by virtue of your having a disabled veteran's license, the Supreme Court of Georgia, in the case of Campbell v. Williams, 215 Ga. 717, held that the exemption commonly called a disabled veteran's license is one from the payment of business and occupational license taxes and is not applicable to a regulatory license.
I direct your attention to the provisions of Georgia Code Annotated, 45-227, which requires a license to engage in the business of buying and selling furs, hides and pelts.
It would appear, in view of the above quoted authority, that your veteran's disability would not exempt you from complying with the license requirement referred to.

249
GAME AND FISH-Posting (Unofficial)
Laws discussed relative to posting of lake bordering on navigable river.
March 20, 1962
Mr. W. J. Valentine Martinez, Georgia
Your letter requesting information concerning the posting of a lake has been forwarded to me by the Game and Fish Commission for reply.
Your question is whether or not a person may post a lake coming into the Savannah River if the person owns the land on both sides of the lake at the mouth of the river, and where the outlet is large enough for a boat to travel without touching land.
Georgia Code Annotated, Section 45-701, which relates to the penalty for fishing on lands of another without permission, provides:
"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." Code Section 85-1303 defines a navigable stream as follows:
"85-1303. Navigable stream defined.-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."
Code Section 85-1304 relates to the rights of an owner of land adjacent to a navigable stream. It provides:
"85-1304. 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."
. Code Section 85-1302 relates to the rights of owners of land adJacent to nonnavigable streams. It provides:
"85-1302. Rights of owners of land adjacent to nonnavigable streams.-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 bound-

250
ary. Gradual accretions of land on either side accrue to the owner."
Code Section 85-1305 relates to the possession of nonnavigable streams by owners. It provides:
"85-1305. Possession of nonnavigable streams by owners.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."
It is my understanding from reading the cases decided under the above quoted Code Sections that there is no question but that the owner of nonnavigable streams, if he owns the land on both sides of the stream, is entitled to exclusive fishing rights in that stream. It further appears that the owner of land adjacent to a navigable stream owns to the low-water mark of that stream and that there is no question but that the owner of the land may prevent fishing from upon his lands and could well have exclusive fishing rights to the low-water mark thereof.
It further appears that, assuming the Savannah River to be navigable at the point where the lake comes into the stream, and further assuming that the same person owns the land on both sides of the lake and the land on both sides of the mouth of the lake, he would have the exclusive fishing rights to the low-water mark of a navigable stream. It would further appear that, assuming the conditions enumerated above, the lake and the lands could be posted by the owner notwithstanding the fact that the lake and lands might be posted by operation of law.
I refer you to the annotations in the Georgia Code Annotated under the above quoted Code Sections as the authority for the opinions expressed herein. I do not believe the fact that the outlet of the lake is large enough for a boat to enter the lake without touching land would affect the above opinions in that the mere entranceway would not render the lake navigable.
GAME AND FISH-Regulations (Unofficial)
Citation of laws relative to killing of alligators and licensing requirements for dealing in furs, hides and pelts.
April 9, 1962
Mr. Fred L. Saunders Homerville, Georgia
Your letter requesting information concerning the killing of alligators and the license required for dealing in furs, hides and pelts, haS been referred to me for reply.

251

I am enclosing herewith a"Compi}ation of Game & Fish Laws and Regulations," dated April 1, 1961.

As to the license required, I direct your attention to page 26 of the

compilation where the provisions of Georgia Code Annotated, 45-226

are enumerated. I also direct your attention to page 27 wherein the

provisions requiring a license for fur dealers are enumerated. The

provisions of Code 45-228 are spelled out there.



I believe that you will find within the compilation most of the laws pertaining to game and fish and the taking thereof except those enact-
ed at the 1962 Session of the General Assembly. The Regulations contained in the compilation are subject to change, and upon the issuance of the new compilation, I am by copy of this letter, requesting that you be furnished a copy of same.

GAME AND FISH-Regulations

Violations of regulations promulgated by Game and Fish Commission may subject offender to prosecution.

May 30, 1962

Honorable Robert S. Baker, Chief Fort Valley District State Game and Fish Commission

This will acknowledge receipt of your request for information pertaining to the Georgia Motorboat Numbering Act, and information
Pertaining to the prosecution for violation of rules and regulations Promulgated thereunder.

. The case to which you refer that deals with the rules and regula!Ions promulgated by the Commissioner of the Department of Revenue Is Glustrom v. The State, 206 Ga. 734. It seems that the distinguishing feature of this case is found at page 739, where the Court stated:

".... The General Assembly did not provide that the violation of regulations policing the industry and requiring certain acts to be performed in a specified manner would be a misdemeanor.
... "
This is not the case of the violation of Game and Fish regulations.

80

The Court of Appeals of Georgia, in the case Ga. App. 664, affirmed a conviction for the

of Briggs v. violation of

The State, a rule and

regulation promulgated by the Game and Fish Commission. It appears

}hat the Briggs case authorizes and sustains the authority to convict

or a violation of the rules and regulations promulgated by the Game

athnd Fish Commission under and as provided by the laws pertaining

ere to.

252
As to the confirmation of the rules and regulations pertaining to boat safety, Georgia Laws 1961, page 265, which was approved March 28, 1961, specifically confirms the rules and regulations issued under the Georgia Motorboat Numbering Act.
GAME AND FISH-Seizure (Unofficial)
Seizure of shrimp and nets by wildlife rangers authorized under certain conditions.
January 12, 1962
Mr. Aaron Kravitch Savannah, Georgia
This will acknowledge receipt of your letter relative to the seizure by wildlife rangers of nets and shrimp.
For your information, Georgia Code Annotated, Section 45-118, subsection (e), provides:
" (e) To seize and take possession of all wildlife or parts thereof, taken, caught, killed, captured or in possession, or under control, or which have been shipped or are about to be shipped at any time in any manner or for any purpose contrary to the laws, rules and regulations pertaining to wildlife. Seizures made under this section shall be donated to some charitable institution in this State, provided that such wildlife so seized shall be liberated when alive and substantially uninjured." It would appear that this would be sufficient statutory authority to authorize seizure.
GAME AND FISH-Trapping (Unofficial) Game wardens may set traps for foxes without advising public
of locality and without having first to request permission of landowner upon whose land traps are set.
March 9, 1962
Mr. Robert R. Hollingsworth Sylvania, Georgia
This will acknowledge receipt of your request for information concerning the authority of rangers of the Game and Fish Commission to use traps to catch foxes.
Your first question is: "Does a game warden have the authority to set out steel traps to catch foxes without first letting the public knoW in what locality he has set the traps?"

253
I am enclosing for your information a copy of the compilation of the laws and rules and regulations pertaining to game and fish, and I direct your attention to Code Section 45-114, and in particular the paragraph numbered "4", thereof, and to Sections 45-603 and 45-601. It would appear that there is ample authority for the ranger to set steel traps without letting anyone know the locality or the specific location he has chosen. There seems to be ample authority where he is trapping under appropriate directions to authorize him to place such traps without request of the landowner. I believe this will answer your second question which reads: "Can he set out traps choosing any area he pleases without first being requested to do so by the landowners upon whose land he has set the traps?"
GAME AND FISH-Violations
Ordinary of Peach County not authorized to try cases involving Game and Fish Law violations since population of Peach County changed as reflected by 1960 census bringing it out of limits prescribed by Act originally conferring jurisdiction.
May 25, 1962
Honorable Robert S. Baker, Chief Fort Valley District State Game and Fish Commission
This will acknowledge receipt of your request for information concerning the disposition of cases of Games and Fish violations by the Ordinary of Peach County.
The first question presented relates to the authority of the Ordinary of Peach County to dispose or handle Game and Fish violations. Unless there is authority, then the provisions of Georgia Laws 1962, Page 530, relating to cash bonds, would not be applicable.
Under the general laws of this State, the Ordinary does not have the authority to dispose of cases resulting from the violation of the Game and Fish laws. I have been unable to find any statute conferring this jurisdiction except as follows:
(1) Georgia Laws, 1953, Nov.-Dec. Sess., page 208, which is applicable to any county having a population of not less than 14,450 nor more than 14,650 according to the 1950 U. S. census or any future census. This Act is further limited in that it confers jurisdiction upon the Ordinary to dispose of a case where the person is charged with the offense of hunting or fishing without a valid license. This legislation is further limited in that it only authorizes the entering of a plea of guilty.
(2) Georgia Laws, 1960, page 2050, which apparently is the Act under which your Ordinary is proceeding, applies only to counties within the population bracket of 11,225 and 11,700

254
according to the 1950 census orany future census. This Act authorizes the entering of a plea of guilty in the Court of Ordinary.
According to the information at my disposal, Peach County now has a population of 13,846, which, under the rules laid down by the Supreme Court of this State, would remove Peach County from within the operation of the 1960 law (Ga. L. 1960, p. 2050). Illustrative of this point is the case of City of Atlanta v. Gower, 216 Ga. 368, at page 371, which states:
"Under the rulings of this Court in Stewart v. Anderson, 140 Ga. 31, the legislature would be authorized to make a classification of cities on the basis of population, and pass a general law with reference to such classification, provided the basis of classification has some reasonable relation to the subject matter of the law, and furnishes a legitimate ground for differentiation, and provided that the Act is so framed as to let in all cities coming within the population classification, and let out all cities falling below the classification.... Citing cases."
It would thus appear then that so long as Peach County had a population according to an official census within either the 1960 Act or the 1953 Act, then the Ordinary could accept pleas of guilty and dispose of cases arising under the Game and Fish laws. It is also apparent that when the 1960 census revealed a population outside that enumerated in the statute, it had the effect of removing Peach County from within the terms of the Act and thereby removing jurisdiction from the Ordinary.
This is particularly important in view of the fact that the 1962 Act (Ga. L. 1962, p. 530) authorizes the posting of cash bonds when the acceptance thereof has been authorized by the judge having jurisdiction of the offense. Therefore, the Ordinary of Peach County, not having jurisdiction, would not be authorized to enter an order for the acceptance of or posting of a cash bond.
You further request clarification as to the amount of deductions that should be made from fines for the Peace Officers' Annuity and Benefit Fund and the Ordinaries' Retirement Fund.
Georgia Code Annotated, 78-909 enumerates the amount that shall be withheld and paid to the fund from a fine or bond forfeiture.
Georgia Code Annotated, 24-1716 (a) enumerates the payment that shall be made into the Ordinaries' Retirement Fund from fines, costs or forfeitures. It would appear that these deductions would and should be made from any fine or bond forfeiture coming within the terms and provisions of these Code Sections.
You ask for clarification as to the disposition of the remainder of any such fine or bond forfeiture, and particularly as to the distribution and application as to any remainder. Section 2 of Georgia Laws 1962, page 530, amends Section 4 of the 1953 Act (Ga. L. 1953, p. 331),

255
relating to the acceptance of cash bonds. The pertinent language provides that the proceeds resulting from a forfeiture shall be applied and distributed as any fine would be. It would appear that any fine resulting from a violation of the Game and Fish laws would be disposed of in the manner provided in Georgia Code Annotated, 45-117, after paying therefrom the requisite costs and other lawful demands thereon.
I trust that this will clarify this matter and that you and Judge Young can agree on future action. For your information, an amendment to the 1960 Act clarifying the population bracket would seem to appear to confer jurisdiction upon the Ordinary to accept pleas of guilty.

GARNISHMENT (Unofficial)

Discussion of laws pertaining to garnishment in Georgia.

May 23, 1962

Mrs. Mary Louise Moore, Executive Assistant
Secretary of State Olympia, Washington

I am more than happy to answer the questions you asked in your letter relative to garnishments.

Your first question was: Under the laws of the State of Georgia can anyone garnishee a man's wages without prior consent on the part of the wage earner? An accurate general answer to this question is, Yes, a wage earner need not consent to garnishment at the time indebtedness arises. However, this statement requires some amplification.

. We have in Georgia two distinct garnishment remedies. One type ls referred to as "garnishment in attachment" and the other type is referred to simply as "garnishment". I respectfully cite you to Georgia
Code Annotated 8-501 to 8-508 which covers "garnishment in attachm1e_nt," and as to the conventional "garnishment" statutes in Georgia,
c1te you to Georgia Code Annotated 46-401 et seq.

Generally speaking when a debtor commits one or more of the stat-

utory acts which make him susceptible to attachment (i.e. fraudulent

concealment, absconding, etc.) then a creditor following the statutory

Proceedings may have a "garnishment in attachment" issued without

adny necessity of first securing a judgment against the wage earner

.,ebtor. However, should the wage earner debtor not be amenable to

~arnishment
~tlonal "garnis

in hm

attachment" then the ent" statute and under

creditor must use th those circumstances

e conventhe cred-

1or must first have a final judgment against the wage earner debtor

before garnishing. Under either procedure prior consent to the garnish-

ment on the part of the wage earner debtor is not required.

256
Your second question was: Can a wife's wages be garnished without her prior consent? The answer given to the first question is exactly the same where the wage earner debtor is the wife. Garnishment in Georgia is a quasi in rem action (see Morris W. Haft Bro. Inc. v. Wells, 93 F2d 991). The Georgia garnishment statutes look upon the garnishment action as a separate and distinct remedy ancillary to the main cause. Indeed, not only may the wife's wages be garnished in Georgia without her prior consent, but should the wife be indebted to her husband, the husband's creditors may garnish the wife for the debts due from her to her husband. Louise Keller v. Mayer, Straus & Baum, 55 Ga. 407.
You asked if we considered the number of bankruptcies in Georgia to be unusually high. Like most states, Georgia has state insolvency statutes. See Georgia Code Annotated 28-401 to 28-407. Common law compositions are also available in Georgia. These state remedies to insolvents are seldom used because the Insolvent Traders Act cannot grant a discharge to the debtor and, of course, a common law composition requires unanimous consent of all the creditors affected. Therefore, the number of insolvency proceedings initiated under the state laws of Georgia are few indeed.
As to the volume of bankruptcies in Georgia under the Federal Bankruptcy Act, I can only say that the volume in local Federal Bankruptcy Courts appears to be about the same as the national average. You may, if you desire additional information concerning the volume of Federal bankruptcies, write directly to the offices of the respective referees in bankruptcy throughout the state.
You may be interested in knowing that garnishment as a remedy is available to the state to collect delinquent taxes. In this regard please see Georgia Code Annotated 92-7501 and 92-7502.
GARNISHMENT-Teachers' Salaries (Unofficial)
Teachers' salaries may be garnished provided official in charge of paying same assents to garnishment.
April 18, 1962
Honorable C. E. Parrish Justice of the Peace Adel, Georgia
I acknowledge receipt of your letter relating to garnishment on school teachers' salaries.
I am of the opinion that a consideration of Code Sections 46-801, 46-805 and the decision of the Court of Appeals in Redwine, Revenue Commissioner v. Morgan, 88 Ga. App. 625 answers your question as to whether or not a school teacher's salary is subject to garnishment in the hands of the county school superintendent.

257
Code Section 46-801 provides as follows:
"Money due officials or employees of an incorporated town city, county or State Government, or any department or institution thereof, as salary for services performed for or on behalf of said town, city, county or State, or any department or institution thereof, may be garnished."
Code Section 46-805 provides :
"Where an official of any of the said governments or other person herein designated, has been garnished, as provided by the preceding sections, and answer has been filed by said person, in accordance with the mandate of said writ or summons, admitting that the branch of government which has been garnished is due, or will be due, the defendant in said garnishment proceedings, money for salary, and has said money for payment when due, the said answer must also show the assent of said official, or person hereinabove authorized, that judgment may be entered in said cause for the amount shown in said answer, or so much thereof, as may be necessary to satisfy plaintiff's judgment. And in no case shall judgment against said official, or other person herein authorized and designated, as the agent of the garnishee, be entered by default, or on said answer, or in said garnishment proceedings, unless and until such assent and consent to said judgment is shown in said answer or in the trial of the garnishment case. When such final judgment is so entered, after trial of said proceedings, the said judgment shall be against the official or person hereinabove authorized to return said answer, as such official or agent of the garnishee, and said judgment shall show that said official or authorized person, as such agent of the garnishee, consented that said judgment be entered in said garnishment proceedings." (Emphasis added)
In the Redwine case, supra, the Court of Appeals held, as stated in the headnote as follows :
"Under the act of 1945 (Ga. L. 1945, p. 438 et seq; Code, Ann. Supp., Ch. 46-8), providing that the salaries of officials and employees of this State and its subdivisions may be subject to process of garnishment, no judgment shall be rendered against the official upon whom the summons of garnishment is served unless and until the official's assent and consent to such judgment is shown in his answer to the garnishment or on the trial of the garnishment case; and where, as here, the official of the State upon whom the summons of garnishment had been served did not assent and consent for a judgment to be rendered against him in this proceeding but specifically stated in his answer and on the trial of the case that he did not assent and consent for such judgment to be rendered against him, no valid judgment could be rendered against the garnishee in this Proceeding." (Emphasis added)
Code Section 46-802 provides that the writ or summons of garnish-

258
ment should be served on "the person authorized by law to draw the warrant on the treasury of the government to be garnished, or to issue a check for such salary so due, and such person shall be required to answer said writ or summons. . . ."
Pursuant to the foregoing, a school teacher's salary is subject to garnishment only upon assent of the garnishee. A school teacher is an employee of the county board of education. See Code Section 32-604. The county board of education is an agency through which the county acts in school matters. Board of Education of Candler County v. South. ern Michigan National Bank, 184, Ga. 641. School teachers are essentially, therefore, employees of the county and come within the provisions of Code Chapter 46-8.

GENERAL ASSEMBLY-Constitutional Amendments

General Assembly could legally convene and submit to electorate proposed Constitutional Amendments after Democratic Primary but in sufficient time prior to General Election to be properly advertised.

June 26, 1962

Honorable Garland T. Byrd Lieutenant-Governor

This will acknowledge receipt of your letter of June 21, requesting my opinion as to whether the General Assembly could legally convene and submit proposed Constitutional Amendments after the Democratic Primary to be held on September 12th.

Article VIII, Sec. I, Par. I (Code Sec. 2-8101) of the Constitution, as amended in 1957, provides in relevant part:

"An amendment to this ConstitutiOlt may be proposed by a resolution in the Senate or the House of Representatives, and if the same shall be agreed to by two-thirds of the members elected
to each branch of the General Assembly, such proposed amend-
ment shall be entered on the journals of each branch with the Ayes and Nays taken thereon. Any proposed amendment may
be repealed or amended by the same General Assembly, if done so at least two months prior to the date of the election at which
such proposed amendment is to be submitted."

It is to be noted that the last sentence above quoted refers to "pro posed amendment."

of

Construing the opinion

this language that it refers

ionntlhyetocopnrtoepxot siendwchoincshtiittutaipopneaal rsa,meI~ad!hll

ments previously submitted by have not then been voted on in

the the

same General Assembly, general election. It does

and not

w~fhf~1cCt

or limit the power of the General Assembly with respect to subm1tt~ng

new and separate constitutional amendments. Therefore, your quest1011

is answered in the affirmative.

259
Of course, any constitutional amendment must be passed and submitted by the General Assembly in sufficient time prior to the General Election to be advertised once a week for three weeks prior thereto. Sec. 2-8101.
GENERAL ASSEMBLY-House of Representatives
"Constitutional majority" of votes in House means majority of 205 members elected, whether or not vacancies exist due to resignation or death of members.
April 11, 1962
Honorable George L. Smith II Speaker of the House of Representatives
This will acknowledge receipt of your request for my advice as to the number of votes it will take in the House to constitute "a constitutional majority," and the number of votes required under the existing conditions to pass a constitutional amendment. You further recite the fact of the call of the Extraordinary Session of the General Assembly for April16, 1962, and the several vacancies existing in the House due to resignations and death.
As to the number of votes it will take in the House to constitute a constitutional majority, Article III, Section VII, Paragraph XIV (Georgia Code Annotated, 2-1914) provides:
"No bill shall become a law unless it shall receive a majority of the votes of all the members elected to each House of the General Assembly, and it shall, in every instance, so appear on the Journal."
It would thus appear that there having been 205 members elected to the House, the requisite vote would be a majority of the 205 so elected, to wit, 103 votes necessary for a bill to receive the majority required bY the above quoted provision of the Constitution. The fact that a vacancy exists would not reduce the number of votes required.
As to the number of votes required under existing conditions to P(ass a constitutional amendment, Article XIII, Section I, Paragraph I Georgia Code Annotated, 2-8101) in part provides:
"An amendment to this Constitution may be proposed by a ~esolution in the Senate or the House of Representatives, and If the same shall be agreed to by two-thirds of the members elected to each branch of the General Assembly, such proposed amendment shall be entered on the Journals of each branch with the Ayes and Nays taken thereon . . . ."
It Would appear that it would require the vote of 137 of the 205 ~em~ers of the House to pass a constitutional amendment, notwithtandmg that there exist vacancies in the House, in that the reference

260
to the two-thirds of the members elected woud obviously refer to twothirds of the total membership of the House. The existence of a vacancy for whatever reason would not be the basis for the reduction of the requisite number of votes of the total membership of the House to adopt a constitutional amendment.
GENERAL ASSEMBLY-Membership (Unofficial)
Member of County Board of Public Welfare cannot, at the same time, serve as a member of the General Assembly.
February 3, 1962
HonorableS. Ernest Vandiver Governor of Georgia
This will acknowledge your letter, along with a letter from Honorable F. Hughes Willingham of Lincolnton, Georgia, who appears to be a member of the Lincolnton County Board of Public Welfare and wants to offer for election to the State Senate from his District. Mr. Willingham wants to know if it would be necessary for him to resign from the County Welfare Board to be eligible to serve as State Senator. You have requested that we give you our unofficial opinion as to whether Hughes could serve as a State Senator while at the same time serving as a Member of the County Welfare Board.
The Constitution of the State of Georgia, Article III, Section IV, Paragraph VI is found in the Code of Georgia Annotated, Section 2-1606 and covers eligibility of Members of the General Assembly and includes the following language:
"No person holding . . . . office, . . . . . having emolument or compensation annexed thereto, under this State or the United States ..... shall have a seat in either house."
We have given consideration to many decisions, including McWil Iiams vs. Neal, et al, 130 Ga., 733 (1), decided May 18, 1908, from which we quote: "Persons who hold a State Office, except Justices of the Peace and Officers of the Militia, are ineligible to membership in the General Assembly of this State." The ineligibility of Members of the General Assembly to be appointed or employed by the State once codified in the Code of Georgia Annotated, Section 89-102 was repealed by Acts 1935, p. 121. However, now we call to your attention the pro vision of Acts 1959, pp. 34, 37, codified Code of Georgia Annotated, Section 26-5009 for enforcement of the Separation of Powers provision of the Constitution, which Act includes this language:
"It shall be unlawful for Members of the General AssemblY to accept or hold office or employment in the Executive Branch of the Government of the State of Georgia, or any AgencY thereof." (Emphasis ours.)
Your attention is now called to the provisions of Acts 1937, p. 355,

261
364, codified Code of Georgia Annotated, Section 99-503, creating County Boards of Public Welfare, from which we quote:
"The County Board of Public Welfare shall consist of five (5) members appointed by the County Commissioner, or Board of Commissioners or the constituted Fiscal or Financial Agent of each respective County with the approval of the State Department provided that no elected officer of the State or any subdivision shall be eligible for such appointment." (Emphasis ours.)
There is also included in the above statute provision that the State Director may name such County Board in the event the Board is not named as initially provided by law. Of course, you are familiar with the fact that County Welfare employees are appointed under the State Merit System, Code of Georgia Annotated, Section 40-2201, and County Welfare Board Members are excepted from membership in the Merit System by this statute. The State Director of Public Welfare is the appointing authority for the Merit System. Code of Georgia Annotated, Section 40-2213.
The State Welfare Department is charged with the administration or supervision of all County Welfare Departments, Code of Georgia 99-109, and is directed to designate County Departments to serve as Agents in the performance of all State Welfare activities in the County. Code of Georgia 99-119.
It appears, therefore, that the County Department of Public Welfare is to all intents and purposes an agency of the State Department of Public Welfare in the implementing of a State Public Welfare program enacted by various State statutes, which State program in like manner cooperates with the Federal Government and conforms to Federal Law in order to be eligible to receive Federal funds appropriated to be matched by State and County funds for the purpose of administering the various Welfare programs in the State of Georgia. Therefore, we believe it conclusive that a member of a County Board of Public Welfare is not eligible, at the same time, to serve as a Member of the State Senate and we trust that this answers the question Propounded by Mr. Willingham and as transmitted by you.

GENERAL ASSEMBLY-Membership (Unofficial)

th A Juvenile Court Judge cannot at the same time be a Member of e General Assembly.

~oGnorable A. W. Birdsong, Jr.
a range, Georgia

April 12, 1962

Wh This will acknowledge receipt of your request for my opinion as to rn ether or not a Juvenile Court Judge can at the same time be a
ember of the General Assembly. This letter will further confirm

262
telephone conversation of recent date and our request that you advise this office the name of the writer and the date of the previous opinion referred to by you to the effect that there is no conflict in your holding both positions at the same time. As per that telephone conversation, our request to advise this office in regard to the previous opinion is reaffirmed inasmuch as we have been unable to locate a copy of the same in this office or to determine the writer of that opinion.
Article III, Section VII, Paragraph I of the Constitution of the State of Georgia of 1945 (Georgia Code Annotated, 2-1901) provides that each House shall be the judge of the election, returns and qualifications of its members. It reads:
"Each House shall be the judge of the election, returns, and qualifications of its members and shall have power to punish them for disorderly behavior, or misconduct, by censure, fine, imprisonment, or expulsion; but no member shall be expelled, except by a vote of two-thirds of the House to which he belongs."
Article III, Section IV, Paragraph VI of the Constitution (Georgia Code Annotated, 2-1606) provides:
"No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term."
In the case of McWilliams v. Neal, et al., 130 Ga. 733, in a full bench decision, Headnotes 1 and 2, the Court said:
"1. Persons who hold a State office, except justices of the peace and officers of the militia, are ineligible to membership in the General Assembly of this State.
"2. But if one, by reason of holding one of the offices not within the above exception, mentioned in paragraph 7 of section 4, article 3 of the constitution of this State, at the time of his election as a member of the General Assembly, is rendered ineligible to membership in that body, the fact of his ineligibility would not work an ouster from the first office, but would only affect his right to take a seat as a member of the General Assembly."
Further, at page 735, the Court stated:

263

"'It is frequently declared that persons holding one office shall be ineligible to election to another, either generally or of a certain kind. These provisions being held to incapacitate the incumbent of the first office to election to the second, it follows that any attempted election to the second is void, and that if, by color of it, he attempts to hold the second office, he will be removed from it. It is thus the second office which is vacated instead of the first ... Where, however, it is the holding of two offices at the same time which is forbidden by the constitution or the statutes, a statutory incompatibility is created, similar in its effect to that of the common law, and, as in the case of the latter, it is well settled that the acceptance of a second office of the kind prohibited operates ipso facto to absolutely vacate the first.' Mecham's Pub. Offices, 428-9... .''

In McLendon v. Everett, 205 Ga. 713, at 717, the Supreme Court, in referring to the McWilliams case, said:

"In McWilliams v. Neal, 130 Ga. 733, 735 (61 S. E. 721), this

court quoted with approval the following rule: 'Where, how-

ever, it is the holding of two offices at the same time which is

prohibited by the constitution or the statutes, a statutory incom-

patibility is created, similar in its effect to that of the com-

mon law, and, as in the case of the latter, it is well settled that

the acceptance of a second office of the kind prohibited oper-

ates ipso facto to absolutely vacate the first.' Mecham's Pub.

Offices, 428-9. See also 42 Am. Jur., 940, 77, 78; Long v.

R64osse.,

132 Ga. 295 E. 478) .''

(64

S.

E.

84);

Smith

v.

Lester,

132

Ga.

519

There is another provision of law relating to the question that is found in Georgia Laws 1959, page 34, as amended by Georgia Laws 1961, page 42 (in Georgia Code Annotated 26-5009) that became e~fective as of January 1, 1961. The pertinent provision thereof proVIdes:

"To the end that the mandate of the Constitution contained in Article I, Section I, Paragraph XXIII, to the effect that 'the legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at any time, exercise the functions of either of the others .. .' be more adequately enforced; it shall be unlawful for (a) members of the General Assembly to accept or hold office or employment in the executive branch of the govern~ent of the State of Georgia, or any agency thereof, or in the Judicial branch of government; (b) judges of courts of record or their clerks and assistants, to accept or hold office or employment in the executive branch of the government of the ~tate of Georgia, or any agency thereof, or in the legislative
r~nch of government; (c) officers or employees of the executive branch of government, to accept or hold office or employment in the legislative or judicial branches of government. Any person who knowingly disburses or receives any compen-

264
sation or money in violation of this section shall be guilty of a misdemeanor."
It thus becomes necessary to determine whether or not a Judge of a Juvenile Court comes within the meaning of the above quoted provision.
Juvenile Courts were established and authorized to be established by Georgia Laws 1951, page 291, as amended, and as enumerated in Georgia Code Annotated, Chapter 24-24. It is deemed unnecessary to recite the many provisions thereof relating to the creation, operation and jurisdiction of the several Juvenile Courts.
As to whether or not the Juvenile Court is a "court of record," the statutory provisions relating thereto seem to remove any question that a Juvenile Court is a court of record. It meets the requirements of a record being made of a proceedings, having the authority to punish for contempt, and having the performance of duties and functions as a Court. As was said in 10 Words and Phrases, Permanent Edition, page 270, subheading "Juvenile Court":
"In view of Rev. St. 1908, 1591, Mills' Ann. St. 1912, 1720, the juvenile court is a 'court of record' within Laws 1911, p. 529, 4, Mills' Ann. St. 1912, 3454, giving such courts jurisdiction of a prosecution for desertion and nonsupport. Smith v. People, 170 P. 959, 960, 64 Colo. 290."
To the same effect, see 10 Words and Phrases, Permanent Edition, 1961 C. Pocket Part, page 82:
"A 'court of record' is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the 'record' of the court, and are of such high and supereminent authority that their truth is not to be questioned. Page v. Turcott, 167 S. W. 2d 350, 354, 179 Tenn. 491."
As to jurdisdiction, it is to be noted that the Juvenile Court has concurrent jurisdiction with the Superior Court in certain cases, and if it is not a court of record by virtue of its own jurisdiction, powers and duties, then certainly it is a court of record by virtue of being anf adjunct of the Superior Court, which is beyond question a court o record. As to jurisdiction of the Juvenile Court, see Hampton v. Ste phenson, Superintendent, 210 Ga. 87.
As to appeals from decision of the Juvenile Court, your attention is directed to Article VI, Section II, Paragraph IX (Georgia Code Annotated, 2-3709) of the Constitution which was ratified in 1956, and which provides:
"The Supreme Court and Court of Appeals shall have jurisdiction to review by direct writ of error, and without the necessity of a motion for new trial having been made, all final judgments, orders, decrees and adjudications, rendered by any juvenile court created or referred to in an Act of the General Assembly approved February 19, 1951 (Ga. L. 1951, p. 291), as

265
amended (Chapter 24-24), and any other juvenile court that may be hereafter established, and, it shall further be the duty of the solicitor general of the judicial circuit within which juvenile court or courts are located to represent the juvenile court on such appeals. The time for filing such bill of exceptions, and the procedure governing same, shall be as now provided by law for appeals, or as may hereafter be provided by law{ but in any case, the juvenile judge may by order grant extensions of time for the filing of such bill of exceptions so as to afford opportunity for preparation of a brief or transcript of evidence, in cases where such is required."
Notwithstanding the limitation on the jurisdiction of the Juvenile Court, the above quoted constitutional provision providing for review by a direct writ of error and further imposing a duty upon the solicitor general to represent the Juvenile Court, is significant.
Attention is further directed to discussions pertaining to the Juvenile Court found in 14 Am. Jur., Courts, 7 and 31; 21 C.J.S., Courts 5; 43 C.J.S., Infants, 5 and 6, and the annotations thereunder.
From the above, I am of the opinion that a Juvenile Court Judge may not at the same time that he is serving as a Judge be a member of the General Assembly.
This opinion supersedes any previous opinion and any such opinion is hereby recalled and rescinded.

GENERAL ASSEMBLY-(Unofficial)

A Juvenile Court Judge cannot at the same time be a Member of the General Assembly.

April 12, 1962

Honorable Thomas A. Parker MWember House of Representatives
are County

t o

This will acknowledge whether you would be

receipt of your request of April 10, 1962, as eligible to hold a position of Judge of the

Jtuvenile Court of Ware County at the same time that you are holding

he office of Representative of Ware County.

You specifically ask whether or not there is a possible conflict

3tu4n,daesr

the provisions of the amended by Georgia

"Honesty Bill", Georgia Laws 1959, page Laws 1961, page 42 (Georgia Code Anno-

ated, 26-5009).

A. WIam enclosing a copy of an opinion rendered this date to Honorable Birdsong, Jr., relative to this matter.

266
In view of the provisions found in Georgia Code Annotated, 265009, and in particular subparagraphs (a) and (b) thereunder, I am of the opinion that there is a conflict in your holding the office of Judge of the Juvenile Court while at the same time holding the office of Representative of Ware County.
In answer to your question as to whether or not you can hold both positions at the same time, my answer is "no."
GENERAL ASSEMBLY-Membership (Unofficial)
Since each House of General Assembly is judge of election and qualification of its members, Judge of Superior Court lacks jurisdiction to disqualify member who has been sworn. Laws relative to procedure for filling vacancies cited.
April 12, 1962
Honorable Claude Adams, Mayor City of Waycross
This will acknowledge receipt of your request for information as to whether or not there is any legal provision for you to follow whereby a Representative for Ware County could be named in time to attend the Extraordinary Session of the General Assembly to convene on April 16, 1962.
Article V, Section I, Paragraph XII of the Constitution of Georgia of 1945 (Georgia Code Annotated, 2-3012, in part provides:
"The Governor shall issue writs of election to fill all vacancies that may happen in the Senate and the House of Representatives, . . ."
Article III, Section VII, Paragraph I of the Constitution (Georgia Code Annotated, 2-1901) provides in part that:
"Each House shall be the judge of the election, returns, and qualifications of its members ..."
Georgia Code Annotated, 34-1701 is the statutory authority relating to the filling of vacancies for members of the General Assembly. It provides:
"Elections to fill vacancies for members of the General Assembly shall take place under the authority of a writ of election issued by the Governor to the ordinary of the county where the vacancy occurs, who must order and publish a day for holding the same by giving at least 20 days' notice."
Georgia Cote Annotated, 89-502 relates to the terms of officers appointed or elected to fill vacancies.
In view of the above, it would appear that the constitutional and

267
statutory provisions provide the procedure for the filing of vacancies in the House of Representatives by elections.
For your information, the cases of Fowler v. Bostick, 99 Ga. App. 428, and Rainey v. Taylor, 166 Ga. 476, are to the effect that the Judge of the Superior Court does not have jurisdiction to hold that a member of the General Assembly who had been sworn as .a member was ineligible or disqualified for membership in that body. This substantiates and gives effect to the rule that each House of the General Assembly shall be the judge of the election and qualifications of its members.
HIGHWAYS-Airport Construction
State Highway Board and Department authorized to construct and maintain airports, but use of funds for that purpose, unless specifically appropriated by Legislature, would be unconstitutional.
March 15, 1962
Honorable Clarke W. Duncan, Member State Highway Board
In your letter of March 14, 1962, you request my opinion whether the State Highway Department of Georgia is authorized to engage in the construction and maintenance of airports, and to spend funds of the State of Georgia for such purposes. With respect to authority of the State Highway Department to engage in the activities mentioned in Your letter, I quote Section 11-301 of the Georgia Code Ann. (Ga. Laws 1941, pp. 237, 238):
"Maintenance of airports, etc., by State Highway Board.The State Highway Board is hereby authorized and empowered to construct and maintain airports, landing fields and air navigation facilities, and to contract with the counties and municipalities of the State for the construction and maintenance of such airports, landing fields and air navigation facilities upon such terms and conditions as the said board may determine."
Treating the State Highway Board and the State Highway Department as one and the same, thus far your question is answered in the affirmative.
However, the only funds of the State of Georgia available to the Board and the Department are those appropriated under Article VII, Section IX; Paragraph IV of the Constitution of the State of Georgia of 1945 ( 2-6204 Georgia Code Ann.), as amended by the amendme~t in Ga. Laws 1960, p. 1297, ratified November 8, 1960, "for all activities incident to providing and maintaining an adequate system of ~ublic roads and bridges, in this State, as authorized by laws enacted
't t.he General Assembly of Georgia; and for grants to counties for
ald lll county road construction and maintenance, as provided by law

268
authorizing the State Treasurer to make such grants." (Emphasis supplied.)
The General Appropriations Act of 1961 (Ga. Laws 1961, pp. 356, 367) contains nothing contrary to the constitutional provision above quoted, and if it did such contrary provision would almost certainly be unconstitutional.
The effect of the above is that, while the Board and the Department are authorized to construct and maintain airports, they have no funds available for the purpose and any such expenditure would be illegal.
HIGHWAYS-Airport Construction
Though State Highway Board is authorized to construct airports, there are no funds appropriated therefor, and it would be unlawful in view of the language of the Appropriations Act for the Governor to allocate surplus funds to the State Highway Department for airport construction.
November 9, 1962
Honorable S. Ernest Vandiver Governor, State of Georgia
You have requested my opinion whether the Governor is authorized to allocate surplus funds to the State Highway Department for the construction and maintenance of airports, and more specifically as provided in Section 11-301 of the Code of Georgia.
Standing alone, Section 11-301 of the Code of Georgia Annotated (Ga. Laws 1941, pp. 237, 238) would authorize the State Highway Department to construct and maintain airports, landing fields and air navigation facilities provided funds were available. I quote the section:
"The State Highway Board is hereby authorized and empowered to construct and maintain airports, landing fields and air navigation facilities, and to contract with the counties and municipalities of the State for the construction and maintenance of such airports, landing fields and air navigation facilities upon such terms and conditions as the said board may determine."
However, before reaching a conclusion, there must be taken into consideration certain provisions of the General Appropriations Act of 1961 (Ga. Laws 1961, pp. 356, et seq.).
Section 10 of the General Appropriations Act of 1961 (Ga. Laws 1961, pp. 356, 366), which makes appropriations for highway purposes, in conformity with and pursuant to the mandate in Article VII, Section IX, Paragraph IV, of the Constitution of Georgia (2-6204, Code Ann.) , appropriates an amount equal to all money derived from motor fue1 taxes, less refunds, rebates, and collection costs. The constitutional

269
provision appropriates funds for "all activities incidental to providing and maintaining an adequate system of public roads and bridges" and for grants to counties for aid in county road construction and maintenance.
In Section 50 (d) (p. 387), a contingent appropriation of Ten Million Dollars is made to "Supplement and to become a part of the appropriation for cost of highway activities."
Section 10 of the Act contains the following proviso (at page 367):
"Provided, further that any and all obligations and commitments made by the officials of the State Highway Department, after the effective date of this law, which have not been authorized by the provisions of this Act and a specific budget allotment for which funds are available shall be null and void, and all expenditures shall be governed by law and budget regulations of general application which are or may be in force and effect and not in contravention of Constitution mandate."
A Legislative body should always be presumed to mean something by the passage of an Act. Central of Georgia Railway Co. v. State, 104 Ga., 831, 839.
This proviso first appears in its present form in the General Appropriations Act of 1951 (Ga. Laws 1951, pp. 417, 427). It was repeated in the same form in the General Appropriations Act of 1953 (Jan.-Feb. Sess.), pp. 151, 159, and in the General Appropriations Act of 1956, Ga. Laws 1956, Volume 1, pp. 753, 767.
The General Appropriations Act of 1949, Ga. Laws 1949, pp. 1506, 1511, had contained substantially the same proviso, but the language limiting obligations and commitments to the "provisions of this Act" was added in the General Appropriations Act of 1951.
In 1951, the General Assembly proposed an amendment to the Constitution by adding to Paragraph IV, of Section IX, of Article VII, a subparagraph providing for appropriations for providing and maintaining an adequate system of public roads and bridges.
The amendment to the Constitution proposed by Georgia Laws 1951, page 849, was ratified November 4, 1952, and has been superseded by an amendment proposed by Georgia Laws 1960, page 1297, ra~ified November 8, 1960. For the purposes of this discussion, the Pnncipal difference between the two constitutional amendments is that the latter appears to be self executing.
. I construe the quoted proviso in General Appropriations Acts
liSI~ce that of 1951 as intended to restrict the activities of the State
Ighway Department to the construction and maintenance of roads ali~d bridges, and kindred activities. Under the quoted proviso, the State
l~hway Department is not authorized to engage in any activities Which are not authorized by the General Appropriations Act of 1961, and, in addition, a specific budget allotment of funds must be made. All obligations and commitments by officials of the Department with respect to any other activities are null and void.

270
There being no specific provision in the General Appropriations Act of 1961, appropriating funds to the State Highway Department for the construction and maintenance of airports, etc., such activities would be illegal.
This opinion is based upon a specific provision of the General Appropriations Act of 1961, and should not be considered as having application when that Act ceases to be in force.
By Georgia Laws 1952, page 183 (Section 95-1620.1, Code, Ann.), the State Highway Department is authorized to purchase an airplane to be used for aerial photography and reconnaissance over the highways of the State of Georgia. Nothing in this opinion is to be construed as preventing expenditures by the Department for ground facilities for an airplane purchased by it under that Act.
HIGHWAYS-Axle Loadings and Gross Weight Restrictions
State Highway Engineer may issue special permits for operation of motor vehicles with axle loadings or at gross weights in excess of legal limits for fixed period of time and without regard to nature of loads to be transported, and may charge a license fee therefor.
March 1, 1962
Honorable Jim L. Gillis, Sr. Chairman, State Highway Board
You have requested by opinion whether, under existing laws limiting the axle loadings and maximum gross weight, including tolerance, of motor vehicles operated upon the public roads and highways of this State, and laws authorizing special permits for the operation of motor vehicles whose axle loadings or gross weight exceeds the legal limits, the State Highway Board, the State Highway Department, or anY State official or employee can issue a special permit for the operation of a motor vehicle with axle loadings or at a gross weight in excess of legal limits for a fixed period of time and without regard to the nature of the load or loads to be transported.
You further inquire whether, if the foregoing should be answered in the affirmative, the Authority authorized to issue such a permit can lawfully impose a requirement that a charge or fee be paid as a condition precedent to issuance of a permit.
Section 68-405, Ga. Code (Ann. Supp.) (Ga. Laws 1941, pp. 449, 450, as amended) provides in paragraphs (b) and (c) limitations upon axle loadings and gross weight, including tolerance, of vehicles operated upon the public roads and highways. Following paragraph (c) there appears the following:
"Provided, further, that no officer or employee shall grant, authorize, or allow any length or weight in excess of the limita-

271
tions herein provided, (except by special permit as defined in paragraph 'a' above) in any manner whatsoever."
The pertinent portion of paragraph (a) of the same section is:
" - - - for occasional movements of materials or objects of dimensions which exceed the limits herein provided, a special permit shall be required as now provided for by law - - -."
Section 68-403, Ga. Code Ann. (Ga. Laws 1927, p. 240) provides that a special permit for the operation of a vehicle whose weight with load exceeds the limits prescribed by law shall be in writing and be issued at the discretion of the State Highway Engineer (or local officials). The section specifically provides that such permit may be issued for a single trip or for a definite period not beyond the vehicle's registration. The highways and bridges to be used may be designated.
Section 68-407-1, Ga. Code Ann. (Ga. Laws 1951, pp. 90, 91) provides that the Chairman of the State Highway Board or a State Highway Department official designated by the Chairman may, upon application in writing and good cause being shown, issue a special permit in writing authorizing the applicant to operate or move an overweight vehicle or combination of vehicles upon the public highways, with the proviso:
" - - - that the load transported by such vehicle or vehicles is of such nature that it is a unit which can not be readily dismantled or separated."
The section further provides that the application shall specifically describe the vehicle or vehicles and load to be operated or moved, and the particular highway for which the permit is requested. The issuing authority is authorized to deny a permit at discretion, to limit the number of trips, to establish seasonal or other time limits, or prescribe o~her conditions, to assure against "undue damage to the road foundations, surfaces or bridge structures" and to "require such undertaking or other security as may be deemed necessary to compensate the State for any injury to any roadway or bridge structure."
In my opinion, the legislative intent to be gathered from the laws referred to is that the weight limits established by law, both as to axle loadings and gross weight, represent limits within which unrestricted use of the roads and highways is permissible; that above the limits fixed by law and up to limits to be established by the road and highway authorities, regular use of the roads and highways is ~~thorized, under general control of the road and highway authorlbes; and that use of the roads and highways to transport any load or lohads of extraordinary weight or loading characteristics, of such nature t at they are units which can not be readily dismantled or separated, jhall be closely controlled, and, it being anticipated that some such .0~ds may without fault of the persons engaged in transporting them 1SntJure roadways and bridge structures, security to compensate the
.ate may be required as a condition precedent to the grant of per- rnllSsion to use the roads and highways for the transportation of such oads.

272
I am of the further opinion that the granting of special permits by or under authority of the State Highway Engineer for the regular operation of vehicles whose axle loadings or gross weights are above the limits established by law, but within limits established by the highway authorities, for fixed periods and without regard to the nature of the load or loads to be transported, is authorized under the provisions of law contained in Section 68-405 of the Ga. Code Ann. and Section 68-403 of the Ga. Code Ann. The provisions of Section 68-407-1 of the Ga. Code Ann. are, in my opinion, applicable only where loads of extraordinary weight or loading characteristics and of such nature that they are units which can not be readily dismantled or separated, are involved.
It follows that your first question must be answered in the affirmative.
Having so answered, it becomes necessary to answer your second question, whether a requirement can be imposed that a charge or fee be paid as a condition precedent to the granting of a special permit under either of the provisions of law already referred to.
While there is no provision of law specifically authorizing the imposition of such a charge or fee, since the State Highway authorities have the power to regulate the particular use of the State highways by the granting or denial of special permits, it follows as an incident thereto that they have the power to compel the persons procuring special permits to bear the reasonable cost of regulation. My views find support in 33 Am. Jur., "Licenses", 64, where it is said:
"The power and authority to license necessarily implies the right to fix the amount of the license fee, and under the authority to license, the reasonable cost of granting a license may be properly charged to the persons procuring it, although the power to do so is not expressly given."
The permits which are authorized to be granted are, to all intents and purposes, licenses, and governed by the same rules of law. 53 C.J.S., "Licenses", 1, p. 445. They are authorized under the police power of the State, delegated to the road and highway authorities. It is generally held that fees or charges for such permits or licenses should not exceed the reasonable expense of issuing the permit or license and controlling or regulating the activity licensed.
All charges and fees collected on this account will, of course, belong to the State, to be accounted for under appropriate provisions of law.
Your second question is answered in the affirmative.

273
HIGHWAYS-Construction Contracts (Unofficial)
Proceeds of a construction contract involving a Federal aid project cannot be assigned to secure a debt.
August 23, 1962
Honorable A. Rowland Dye Augusta, Georgia
I am pleased to acknowledge your letter in which you asked the following question:
"Can the proceeds of a construction contract, concerning a Federal-aid Project, be assigned by the Contractor to secure a debt?"
In researching the Georgia law on this subject, I find the following Code Sections :
Section 95-1623:
"The chairman of the State Highway Department, the Governor and the State Auditor are authorized and empowered to audit all claims and obligations of the State Highway Department at any time existing or outstanding, other than refunding bonds, refunding notes and highway certificates, and to approve such claims and obligations for payment by said Department."
Section 95-1624:
"Whenever the chairman of the Highway Department, the Governor and the State Auditor have audited and approved any claim or obligation of said Department as due and payable by said Department, said chairman is authorized to issue in the name of the Highway Department a written acknowledgment that said claim or obligation is due and owing by said Department to the holder or owner of such claim or obligation, and a record of all such claims so acknowledged shall be kept by said Department."
Section 95-1625:
"All such written acknowledgments issued by the chairman in the name of the Highway Department, under the authority of this law, shall be assignable in writing by the holder or owner thereof, as other choses in action arising upon contract, and the State Highway Department is authorized to accept notice of any and all assignments of such claims or obligations and to agree to pay said claims or obligations to the assignee thereof." .
However, these Sections seem to apply to debts that are pending or Past due and not to future obligations of the State Highway Depart~ent. In the only case cited under these sections, Davis, et al v. Smith, ~ al, 197 Ga. at page 97, the Court applied the above stated sections 0 an obligation of the State Highway Department then due, which

274
the State Highway Department did not have funds to pay, and not to a future obligation.
Georgia Code Ann. Section 85-1806 provides as follows:
"Accounts receivable shall be deemed to include a right to sums due or to become due on open accounts or contracts ; it excludes sums due on and rights represented by judgments, notes, bills of exchange, drafts acceptances or other negotiable or non-negotiable instruments or agreements for the payment of money, the transfer of which is commonly made by endorsement on and delivery of the instrument or contract or insurance policies; also sums due under and rights represented by a chattel mortgage, bill of sale to secure debt, conditional sales contract, or other instrument reserving title to or creating a lien upon property; sums due or to become due from the United States of America or any department or agency thereof; and sums arising from public or private construction contracts for which the assignor has furnished a surety bond guaranteeing the performance of the contract or the payment of labor and material claims arising therefrom." (Emphasis ours)
It appears that Section 85-1806 of the Georgia Code Annotated expressly excludes the assignment of proceeds of a contract of exactly the type to which your letter refers and that Sections 95-1623, et seq. of the Georgia Code Annotated are not applicable to the contract in question.
Under the authority cited, it appears that the proceeds of the contract in question are not assignable for the purpose of securing a debt.
HIGHWAYS-Maintenance and repairs.
Contract for removal, replacement and repair of building, as opposed to construction of building, may be let by negotiation rather than competitive bid.
March 15, 1962
Honorable Jim L. Gillis, Sr. Chairman, State Highway Board
In your letter of March 14, 1962, you state the following:
"As an incident to the installation of a large electronic copy camera in the State Highway Department Aerial Photographic Laboratory Building at Hapeville, Georgia, it will be necessary that certain walls and other portions of the building be removed and replaced, also involving patching of plaster and floors, repainting, rewiring and other work necessary to accommodate

275
the camera in the building. Can a contract for this work be let by negotiation?' '
Limitations upon the power of the Department to negotiate construction contracts are contained in Ga. Code Ann., Sections 95-1620, 95-1630, 95-1631, 95-1632, and 95-1633.
It is my opinion that the limitations imposed by the sections above listed in Chapter 95-16 do not refer to any type of agreements other than construction contracts. It is my further opinion that the work described in your letter is essentially of the nature of removal, replacement, and repair of the building, and work necessary to accommodate the subject camera in the building does not constitute "construction" within the meaning of the sections listed.
The contract should, of course, be in writing and have the approval of the State Highway Board or a majority thereof, to avoid any possibility of conflict with Section 95-1617 of the same reference.

HIGHWAYS-Property Acquired Through Fi. Fa.
Property acquired by State Highway Board pursuant to issuance of fi. fa. must be sold or rented by Board and cannot be appropriated to use of Board.

Honorable Jim L. Gillis, Sr. Chairman, State Highway Board

November 29, 1962

I am in receipt of your letter in which you request my opinion as to whether the State Highway Department of Georgia may legally retain for its use in the construction and maintenance of State highways property acquired through fi. fa. action pursuant to Executive Order, dated January 6, 1961, of Governor S. Ernest Vandiver.

. Pursuant to said Order, the Chairman of the State Highway Board Is authorized to cause fi. fas. to be issued to recover money owed the Sbtate pursuant to a judgment reducing the amount required to be paid Y the State for the property condemned by the State Highway Department where a higher amount had previously been paid pursuant to the award of a Special Master or a Board of Assessors.

.Said Executive Order further provides that title to any land acquired pursuant to the issuance of such fi. fas. shall be vested in the Governor and his successors in office, and assigns, and that the Chair-
ran of the State Highway Board is empowered to seek out buyers or essees for such land.

Not only does said Executive Order limit the disposition of any sut~h land to sale or rental, but the laws pursuant to which said Execu Ive Order was issued (Ga. Code Sections 91-501 through 91-505)

276
also contain such a limitation. Thus, by necessary implication, the State Highway Department is prohibited from retaining property acquired pursuant to fi. fa. action as described above and appropriating such property to its own use.
In order to expand the authority of the State Highway Department to retain and use any such property, an Act of the Legislature would be necessary.
HIGHWAYS-Relocation of Municipally Owned Utilities
Act not unconstitutional in providing that State may pay for relocation of water distribution and sanitary sewer facilities owned by municipality where relocation necessitated by highway construction.
June 26, 1962
Honorable Jim L. Gillis, Sr. Chairman, State Highway Board
You have requested my opinion whether the Act approved April 5, 1961 (Ga. Laws 1961, pages 453, et seq., Code, Ann., 95-1509 et seq.), is violative of any provision of the Constitution of the State of Georgia or of the United States, in its application to the removal and relocating of water distribution and sanitary sewer facilities owned by municipal corporations of the State, originally installed upon rightof-way of a State-aid road or highway where such removal and relocation is made necessary by the construction or improvement of a highway by the State Highway Department of Georgia.
The Act is permissive and provides that the State Highway Department may pay or participate in the payment of the cost of removing and relocating those facilities physically in place and in conflict with proposed construction and, where replacement is necessary, in the cost of replacement in kind. That portion of cost representing improvements or betterments is excluded, except to the extent that such improvement or betterment is made necessary by the highway construction or improvement.
My attention has been directed to the fact that in many instances municipalities have installed water distribution and sanitary sewer facilities upon State highway right-of-way under a permit or agreement containing a provision that the installing municipality would remove and relocate such facilities at its own expense in the event future highway construction should require removal and relocation; and to Section 2 of the Act (Ga. L. 1961, p. 454) which authorizes the State Highway Department to waive provisions in existing permits and agreements in conflict with the Act. You request my opinion on the specific question whether Section 2 is constitutional and sufficie~t authority for the State Highway Department to pay or participate .In the payment of removal and relocation costs where existing permits

277
and agreements provide for payment of such costs by the municipalities.
In my opinion, the Act approved April 5, 1961 (Ga. Laws 1961, pages 453, et seq., Ga. Code Ann. Sections 95-1509 et seq.) does not violate any provision of the Constitution of the State of Georgia or of the United States. Section 2 does not violate any provision of either Constitution. The Act authorizes the State Highway Department to pay or participate in the costs contemplated in the Act, without regard to existing permits or agreements wherein municipalities expressly agree to pay such costs, with funds appropriated to the State Highway Department under existing constitutional provisions.
The Constitution of the State of Georgia contains the following provision:
"Notwithstanding any other provisions of this Constitution the General Assembly is hereby authorized to provide by law for the granting of State funds to the municipalities of Georgia, in such manner and form and under such procedure as the General Assembly may provide. The General Assembly is also authorized, but not directed, to provide the purpose or purposes for which such funds may be expended by the municipalities. The General Assembly is hereby authorized to exercise the power of taxation over the entire State, in order to carry out the provisions of this paragraph."
(Constitution of the State of Georgia of 1945, Article VII, Section II, Paragraph VI, Code Ann. Supp. 2-5506, proposed Ga. Laws 1960 pp. 1211 et seq., ratified November 8, 1960, proclamation November 29, 1960).
In view of the broad language of the foregoing provision, I believe there are only two constitutional questions which require discussion. They are:
1. Whether the payments permitted may legally be made from funds appropriated by Ga. Const., Art. VII, Section IX, Par. IV (b), (Code, Ann., 2-6204 (b)).
2. Whether the subject Act violates Ga. Const. Art. I, Sec. III, Par. II (Code, Ann. 2-302), or U.S. Const., Art. I, Sec. 10 (Code Ann. 1-134) by impairing the obligation of contracts.
Taking up the questions in order, I will first consider Ga. Const. A. rt. VII, Sec. IX, Par. IV (b). This provision as it presently appears
ln the Georgia Constitution was proposed by Ga. Laws 1960, p. 1297,
ratified November 8, 1960, and proclaimed November 29, 1960. It was Proposed at the same session of the General Assembly, ratified at the same general election, and proclaimed in the same proclamation with Art, VII, Sec. II, Par. VI, already quoted.
Art. VII, Sec. IX, Par. IV (b) provides in material part that:
"An amount equal to all money derived from motor fuel taxes ... is appropriated ... for all activities incident to pro-

278
viding and maintaining an adequate system of public roads and bridges in this State, as authorized by laws enacted by the General Assembly of Georgia .." (Emphasis mine)
The emphasized portion of this provision was originally added to the Georgia Constitution by Ga. Laws 1951, p. 849, ratified November 4, 1952.
In construing the provision, it is proper to constantly keep in mind the object sought to be accomplished by its adoption, and to give regard to the evils sought to be prevented or remedied. City of Valdosta v. Singleton, 197 Ga. 194 (28 S. E. 2d 759); Thomas v. MacNeill, 200 Ga. 418 (37 S. E. 2d 705) ; Saxon v. Bel1, 201 Ga. 797 (41 S. E. 2d 536); Houlihan v. Saussy, 206 Ga. 1 (55 S. E. 2d 557); Birdsey v. Wesleyan College, 211 Ga. 583 (87 S. E. 2d 378); Moore v. Baldwin County, 209 Ga. 541 (74 S. E. 2d 449); 16 C.J.S., "Constitutional Law", 16. Indeed, it has been said that a constitutional limitation or prohibition usually extends no further than the reason on which it is founded. In re Advis ory Opinion to Governor, 223 N.C. 845, 28 S. E. 2d 567.
It is a matter of common knowledge that the object sought to be accomplished by the adoption of the quoted provision was to prevent the diversion of the proceeds of taxation of motor vehicle transportation to purposes other than the construction, improvement, and maintenance of roads and highways and that the evil sought to be prevented was the loss of Federal aid for highway construction by reason of the penalty provided in 126 (formerly 55) of Title 23, U.S.C.A., for such diversion.
The Federal Highway Laws contain the following provision (Title 23, U.S.C.A., 123) for relocation of utility facilities:
"(a) When a State shall pay for the cost of relocation of utility facilities necessitated by the construction of a project on the Federal-aid primary or secondary systems or on the Interstate System, including extensions thereof within urban areas, Federal funds may be used to reimburse the State for such cost in the same proportion as Federal funds are expended on the project. Federal funds shall not be used to reimburse the State under this section when the payment to the utility violates the law of the State or violates a legal contract between the utility and the State. Such reimbursement shall be made only after evidence satisfactory to the Secretary shall have been presented to him substantiating the fact that the State has paid such cost from its own funds with respect to Federal-aid highway projects for which Federal funds are obligated subsequent to April 16, 1958, for work, including relocation of utility facilities.
(b) The term 'utility', for the purposes of this section, shall include publicly, privately, and cooperatively owned utilities.
(c) The term 'cost of relocation', for the purposes of this section, shall include the entire amount paid by such utility properly attributable to such relocation after deducting there-

279

from any increase in the value of the new facility and any salvage value derived from the old facility."
It thus appears that payment of the cost of relocation of utility facilities is recognized by the Congress as a highway purpose. I interpret the subject Act as providing that the State Highway Department may pay (or participate in) the cost of removing and relocating water distribution and sanitary sewer facilities under the conditions and subject to the limitations found in 123, quoted above. So interpreted, the subject Act cannot subject the State of Georgia to penalty under 126.

Keeping in mind the foregoing, I believe that it can be said fairly that the language quoted from Art. VII, Sec. IX, Par. IV (b) is broad enough to include the relocation of water and sewer facilities as a public road purpose.

See Acme Freight Lines v. City of Vidalia, 193 Ga. 334, 335 (18 S. E. 2d 540, 541) where the Court says:

" 'Incidents' of the business of a motor common carrier does not mean those things without which the business can not be carried on. Such would be more properly classified as the business itself, rather than an incident thereof. Webster defines the word incident as follows: 'Dependent on, or appertaining to, another thing (the principal) ; directly and immediately pertinent to, or involved in, something else, though not an essential part of it'. Thus an incident of the business of a motor common carrier of freight would be something naturally associated as pertinent to such transportation and necessarily dependent upon it, but without which the business of transportation might nevertheless be carried on. In other words, the incidental operation would be necessarily dependent upon the transportation, but the business of transportation would not be necessarily dependent upon the incidental operation."

Also, Cook v. State, 119 Ga. 108 at page 112 (46 S. E. 64, 65):
"The statute simply declares that it shall be lawful to hold the court 'at such place or places as the proper county authorities ... may from time to time provide for such purpose.' The Primary meaning of the word 'provide' is, 'to look out for in advance; to procure beforehand; to get, collect, or make ready for future use; to prepare' (Websters Diet.) ; and it is evidently used in this sense in this statute.''

d32

My attention has been directed to the case of Mulkey v. Quillian, Ga. 507 (100 S. E. 2d 268) and particularly the language of the

ourt at page 510 (100 S. E. 2d 271):

"... the removal and relocation of utility facilities is not a necessary or usual adjunct to the construction of highways.''

A. The Court had under consideration Article VII, Sec. II, Par. I (Code, nn, 2-5501) of the Georgia Constitution:

280
"The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only:
* * *
6. To construct and maintain State buildings and a system of State highways, airports, and docks."
The question before the Court was whether an Act of the General Assembly authorizing the loaning of money by the State Highway Department to political subdivisions for the purpose of removing and relocating utility facilities was in conflict with the quoted constitutional provision. The Court said (p. 509) (100 S. E. 2d 271):
"... the State Highway Department is not using the (public) fund for the purpose of removing and relocating these facilities from the rights of way of State-aid roads, but is using it for the purpose of loaning it to a municipality at interest, and without security other than a pledge of a portion of the receipts of the gas system, which is entirely dependent upon the fortunes of the system."
Clearly, the Court makes a distinction between the situation in the case under consideration, where loaning money to be used in removing and relocating facilities was under consideration, and paying for such removal and relocation outright. In view of this distinction, the language first quoted that"... the removal and relocation of utility facilities is not a necessary or usual adjunct to the construction of highways" is obiter.
Since the adoption of Article VII, Section II, Paragraph VI, in 1960, the General Assembly may tax for grants to municipalities, and that provision, in my opinion, supersedes the Mulkey case, insofar as general funds of the State are concerned.
The provision of Art. VII, Sec. IX, Par. IV (b) (as then in effect) that the proceeds of motor fuel taxes are appropriated "... for all activities incident to providing and maintaining an adequate system of public roads and bridges in this State, as authorized by laws enacted by the General Assembly of Georgia ..." was not invoked in the Mulkey case, hence that case is not authoritative as to its interpretation.
I now pass to the question whether the subject Act, and particularly Section 2, impairs the obligation of contracts within the prohibition of U. S. Const. Art I, Sec. 10 (Code, Ann. 1-134) and Ga. Const. Art. I, Sec. III, Par. 2 (Code, Ann. 2-302).
The Supreme Court of the United States has held, in City of Trenton v. State of New Jersey, 43 S. Ct. 534, 262 U.S. 182, 67 L. Ed. 937, 29 ALR 1471, that the State in its dealings with its own municipal corporations is not inhibited by the Contract clause of the Federal Constitution, regardless of whether such corporations are affected in their governmental or proprietary capacity.
In Ellington v. City of Macon, 177 Ga. 541 (170 S. E. 813), our

281
Supreme Court held that a municipal corporation can not complain that a State law is invalid because it denies to the municipality the equal protection of the laws. At page 544, the Court says:
"In Williams v. Baltimore, 289 U.S. 36 (77 L. ed. 531), it was held by the Supreme Court of the United States that 'a municipal corporation, created by a State for the better ordering of government, has no privileges or immunities under tlie Federal Constitution which it may invoke in opposition to the will of its creator.' The same principle would be applicable to provisions of the State Constitution.''
See also: Hammond v. Clark, 136 Ga. 313 (11) (71 S. E. 479) and Bibb County v. Hancock, 211 Ga. 429 (3) (86 S. E. 2d 511).
If municipalities were entitled to the benefit of the contract clauses of the State and Federal Constitutions, it would appear that Section 2 of the subject Act could be held valid upon either of two theories: Firstly, that it authorizes the State Highway Department to agree with municipalities to abrogate or rescind conflicting provisions in permits or agreements, or, secondly, as an exercise of the State's police power. See, in this connection, Minneapolis Gas Company v. Zimmerman, 253 Minn. 164, 91 N.W. 2d 642, 655.
In passing, the Act refers to only one subject matter, and does not contain matter different from what is expressed in the title (Ga. Const., Art. III, Sec. VII, Par. VIII; Code, Ann., 2-1908).
The State Highway Department can construct, or improve a State highway through the territory of a municipal corporation without its consent and against its will. Lee County v. Smithville, 154 Ga. 550, 560; 115 S.E. 407. When there is considered the situation of a small municipality facing the removal and relocation of its water mains and sanitary sewers for the full length of its Main Street because the street is a primary State-aid road and to be improved, or a large municipality with a section of Interstate highway traversing its limits, the wisdom and justice of the provisions in the subject Act are apparent. Obviously the road program can not be impeded by the condition of the treasury of a municipality; equally obviously, municipalities cannot be bankrupted by the road program.
I am impressed with the opinion of the Supreme Court of Minnesota in case of Minneapolis Gas Company v. Zimmerman, 253 Minn.
Nl6.4w, .912dN6.W52. )2: d 642 and agree with that Court where it says (at 91
"The realities of the situation are that the people of Minnesota would suffer economically if the state failed to take advantage of Federal aid made available to the (privately and) municipally owned utilities of this state under the Federal-Aid Highway Act of 1956, in 70 Stat. 383, 23 U.S.C.A. 162. The Federal-aid program is to be financed out of Federal funds, presumably resulting from Federal taxes contributed in part by the people of this state. If the utilities located in this state must Undertake relocation of their facilities without a right to reim-

282
bursement, their costs will be substantially increased and this in turn will be reflected in higher utility rates in Minnesota communities. Furthermore, to the extent that other states effectuate Federal aid to their utilities and Minnesota does not, the people of Minnesota will be paying Federal taxes which will benefit the people of the other states but which will not benefit the people of Minnesota. The resulting economic benefit to the people of Minnesota from an authorization of these expenditures is a benefit to the community as a whole."
See also State Highway Department v. Delaware Power & Light Co., (Del.) 167 A 2d 27 and State v. Lavender, 69 N.M. 220, 365 P 2d 652, 660.
HIGHWAYS-Rights of Way
Utility required to assume cost of relocation of its facilities on railroad grade crossing where highway project is merely one of improving existing highway or eliminating grade crossing.
January 16, 1962
Honorable Jim L. Gillis, Sr. Chairman, State Highway Board
You have requested my opinion whether, in view of certain provisions in a written agreement between the Atlantic Coast Line Railroad and the Western Union Telegraph Company, dated July 1, 1932, the Railroad has the right to require Western Union (and another company similarly situated) to make necessary adjustments in facilities located on Railroad right of way which are in conflict with construction of the "SG" Section of Project S-SG-2120 (1), Columbia County, without cost to the State.
The agreement covers the operations of Western Union on Railro~d right of way, and sets forth the rights of the parties in detail. It IS now in effect.
The pertinent provisions are paragraph 39 and a portion of paragraph 40, which are quoted:
"39. Any pole line or conduit line constructed by the Telegraph Company on the property of the Railroad Companies under this agreement shall be located in such position on said property as the Railroad Companies may designate; and the Telegraph Company will change, from time to time, the location of any of its poles and wires, at any time covered by this agreement, from one place to another on the rights of way, lands, or bridges covered by this agreement, whenever the proper officers of the Railroad Companies request it to do so, in order to meet the requirements of the Railroad Companies in their use of said rights of way, lands, and bridges for railroad purposes;

283

the Railroad Companies will furnish unskilled labor for digging holes and setting or resetting poles and anchors and stringing wire in making such changes."
"40. * * * * * * Whenever, on account of the construction
of highways or public improvements, the Telegraph Company is required by public authority to change the location of any telegraph line, or part thereof, covered by this agreement, the Railroad Companies will, if requested by the Telegraph Company, endeavor to have the public authorities requiring such change in location pay the Telegraph Company the entire cost
thereof. * * * * * *."
You state that an existing grade crossing over the Railroad will be eliminated "with 10% of the total cost of the 'SG' Section of the Project being borne" by the Railroad and 90% by the Federal Government. The "SG" Section is the section containing a grade separation structure.
By reference to the State Highway Department plans for Project S-SG-2120 (1), Columbia County, Belair to Sneads Road, it appears that the entire project contemplates the improvement of approximately 6% miles of a county road. The project is to be financed with State and Federal funds. The project is for widening and improving an existing road on an existing right of way with the exception of the "SG" Section of the project, which runs from Station 321+00 to Station 341+00. Between these stations the existing road curves to the East to cross the C.&W.C. R.R. and a sidetrack (Atlantic Coast Line) at grade and thence back to the North to resume its original direction. It appears probable that this curve was required to enable the road as originally laid out to cross the railroad at grade. The "SG" Section eliminates the curve and carries the road over the railroad on a grade s~paration structure. The plans call for the Railroad to remove the Sidetrack, and when the project is completed the grade crossing will be eliminated.

Approval by the Bureau of Public Roads of the agreement between the State or the Bureau and the Railroad providing for payment of the
;os.t of adjusting the Railroad's own facilities is contingent upon the .l\allroad exercising its rights under its agreement with any utility oc~upying its right of way, under which the utility is required or
Beheved of the obligation to adjust its facilities at its own expense. ureau of Public Roads, Policy and Procedure Memorandum 30-3, para-
graph 4 (b).

Jo~eIns

my opinion of October 23, 1959, Georgia Project F-FG-089-1 (2), County, where the contract between the Railroad and Western

Dn10n contained provisions of similar import to those in paragraph 39,

~qhuheotRedaialrbooavde,coanuldd

a grade crossing was to be eliminated, be required to invoke such provisions

I held to the

that end

at the utility adjust its facilities at its own expense.

t Although not expressed in the opinion, it was necessarily implied hat a grade crossing elimination was a "railroad purpose" within the

284
meaning of the term as used in the agreement then under consideration. I so hold in this case, as to the term "railroad purposes" in paragraph 39 of the agreement now before me. Here it should be noted that paragraph 39 provides only for moves from "one place to another on the rights of way, lands, or bridges" covered by the agreement.
The adjustment does not fall within the purview of the quoted portion of paragraph 40 of the agreement, as being "on account of the construction of highways".
It appears obvious from the plans that the "SG" Section of the subject project is not to be considered a new road or a road on new location, or a new railroad crossing, but simply the elimination of a grade crossing and a curve on the existing road, clearly amounting to a further improvement thereof.
Accordingly, the Railroad has the right to require Western Union and any other utility similarly situated to make the necessary adjustments, without cost to the State.
I am aware of the existence of a "Memorandum of Agreement" entered into between the Railroad and Western Union in 1961, relating to the subject written agreement, but can not recognize it as affecting the validity of what is ruled herein.
As authority for the legal positions taken herein, see: Ga. Code, 94-503, 94-504, 95-1912, Cleveland v. City Council of Augusta, 102 Ga. 233; Georgia Railroad Company v. Union Point, 119 Ga. 809, 816; Atlanta and West Point Railroad Company v. City of Atlanta, 156 Ga. 251 (1) (6) ; Atchison Railroad Company v. Public Utilities Commission, 346 U. S. 346, 353; Erie Railroad Company v. New Jersey Public Utility Commissioners, 254 U. S. 394.
It is not to be understood that I am holding that the State must rely upon the provisions of agreements between railroads and utilities occupying railroad right of way under all circumstances, to secure necessary adjustments in utility facilities made necessary by highway improvement and relocation. This opinion is intended to apply only to the particular facts and circumstances set forth herein.

285
HIGHWAYS-Stone Mountain Memorial Association
Stone Mountain Memorial Association may acquire with its funds not otherwise restricted in use rights of way for highway construction within and in proximity to Stone Mountain Memorial Project, such rights of way and easements to be thereafter conveyed to State Highway Department for highway purposes.
September 27, 1962
Honorable Matt L. McWhorter Chairman, Stone Mountain Memorial Association
In response to your recent request you are advised that, in my opinion, the Stone Mountain Memorial Association may lawfully expend funds in its hands, not otherwise restricted as to disposition and use by the terms of any trust indenture securing bonds issued by the association, for the purchase of rights of way and easements for highways which will be constructed so as to conform to the plan of the association for the development and improvement of the Stone Mountain Memorial Project, within or without the project area, where such rights of way and easements are to be conveyed to the State Highway Department for highway purposes.
As to rights of way and easements within the project area, the authority of the association is derived from Sections 5 (b) and 8 (b) of the Stone Mountain Memorial Association Act (Ga. Laws 1958, pp. 66, 70).
As to rights of way and easements without the project area, but in reasonable proximity thereto, for highway construction which will conform to the plan of the association for the development and improvement of the project, the authority of the association is derived from Section 5 (c), (e) and (1) of the Stone Mountain Memorial Association Act (Ga. Laws 1958, pp. 66, 67, 68).
Section 8 (c) of the Act is not, in my opinion, couched in such language as to require the State Highway Department to bear the cost of acquiring rights of way and easements located in proximity to the project.
INSURANCE-Adjusters
Adjuster for life, accident and health insurance not required to Procure license.
October 22, 1962
Honorable Zack D. Cravey Insurance Commissioner
You have asked to be advised whether an adjuster for life, accident antd sickness insurance is required to procure a license under the Statu es of this State.

286
While the language of Section 56-801b (8) (a) of the Code of Georgia defining an "adjuster" to be "any person who for compensation or for fee or commission, investigates, settles or adjusts and reports to his employer or principal, relative to claims arising under insurance contracts, solely on behalf of the insurer or insured" is broad enough to cover life, sickness and accident insurance, your attention is called to the opening paragraph of Section 56-80lb which reads: "Except where the type of insurance is specifically stated, the word "insurance" when used in this Chapter shall include all kinds of insurance other than life, sickness, accident, hospital, medical service and title insurance, and bail bonding by individual sureties."
Since the term "adjuster" does not appear in Chapter 56-Sa of the Code dealing with life, accident and sickness insurance agents and counselors, I am of the opinion that an adjuster doing adjustment work solely in the field of life, accident and sickness insurance is not required to be licensed under the laws of this State.
INSURANCE-Commissions (Unofficial)
Insurance agent may pay commissions received by him into corporation of which he is an employee.
July 13, 1962
Mr. G. Robert Oliver Jonesboro, Georgia
I have been unable to locate any written opinion dealing with the question of a licensed insurance agent paying commissions received by him on insurance written by him into a corporation of which he is an employee. Any opinion that may have been rendered was probably written before the effective date of the new Insurance Code (January 1, 1961).
Your attention is called to Section 56-801 (a) (7) defining "agency" to mean: "any person, partnership or corporation engaged in business as an agent as defined in Sub-section (1) ", and to Section 56-801 (b) (2) defining "agency" as "a person as sole proprietor, or a partnersh!P or corporation, representing one or more insurers and being engaged Ill the business of soliciting or procuring insurance or applications therefor, or countersigning or issuing or delivering contracts of insurance for one or more insurers."
Since both of these definitions contemplate that an "agency" can be incorporated, and since the principal source of income of an agencY is the commissions on insurance written, I am of the opinion that .a licensed agent can pay commissions into a corporation of which he IS an employee.

287
INSURANCE-Domestic Companies
Domestic insurance company cannot remove its home office to another state. Insurance Commissioner is without power to approve such a removal.
March 7, 1962
Honorable Zack D. Cravey Insurance Commissioner
This will reply to your letter in which you ask if the insurance laws of Georgia permit a Georgia company to establish administrative or executive offices in another state, and, if so, if you have discretionary authority to approve the removal of the office to another state.
Ga. Code Ann., Section 56-1522 requires that:
"(1) Every domestic insurer shall have and maintain its principal place of business in this State, and shall keep therein complete records of the assets, transactions, and affairs in accordance with such methods and systems as are customary or suitable as to the kind or kinds of insurance transacted.
"(2) Every domestic insurer shall have and maintain its assets in this State, except as to:
(a) Real property and personal property appurtenant thereto lawfully owned by the insurer and located outside of this State; and
(b) Such property of the insurer as may be customary, necessary and convenient to enable and facilitate the operation of its branch offices and regional home offices located outside of this State as referred to in Sub-section 4 below."
Sub-section 4 of Section 56-1522 authorizes an insurer to establish and maintain branch offices or regional home offices in other states where necessary or convenient to the transaction of its business and keeping therein detailed records and assets customary and necessary for the servicing of the insurance in force in the territory served by such an office, as long as such records and assets are made readily available at such office for examination by the Commissioner at his request.
Sub-section 3 of Section 56-1522 restricts the removal of all or a ~aterial part of the records or assets of a domestic insurer from this
tate except pursuant to a plan of merger or consolidation approved bY the Commissioner in writing in advance of such removal.
. W.hile it is possible for a Georgia corporation whose home office or Pnnc1pal place of business is specified in its Charter as being in a specific city and county, to establish administrative offices in places otfher than the specified location of the "home office or principal place 0 business" in view of the requirements set forth in 56-1522 that a domestic insurer keep complete records in its home office and main-

288
tain its assets in this State, I am of the opinion that it would be impracticable and illegal for the company under consideration to transfer its administrative or executive offices to North Augusta, South Carolina. I am of the further opinion that the Insurance Commissioner of Georgia is without discretionary authority to approve such a transfer in view of the strict requirements of the Code Sections quoted herein.
INSURANCE-Domestic Mutual Insurance Companies
Discussion of security and other requirements of farmers fourcounty mutual fire insurance company for operation as domestic mutual insurance company on state-wide basis.
February 27, 1962
Honorable Zack D. Cravey Insurance Commissioner
You have asked to be advised as to the amount of securities a certain cooperative insurance association would be required to deposit in order to qualify it to operate as a domestic mutual insurance company operating on a state-wide basis and issuing non-assessable policies.
At the present time subject company is operating as a farmers four-county mutual fire company and has on deposit with the State Treasurer securities valued in excess of $100,000, and is writing nonassessable policies.
The attorney for the company has discussed Sections 56-309, 561510 and 56-306 of the Code of Georgia and has raised pertinent questions in regard to the amount of surplus and deposit which would be required in order for the company to expand its operations beyond the present four-county area in which it operates.
Section 56-306 of the Code requires that a stock company have a paid-in capital stock of not less than $200,000 for each class of business it writes, and that a foreign or alien mutual have a surplus of not less than $200,000 for each class of insurance written. Sub-section (2) of this Section provides that a domestic mutual shall be governed by Chapter 56-15 as to the surplus required for initial qualification and thereafter to be maintained.
Distinguishing between surplus requirements and deposit requirements, your attention is directed to Section 56-309 which provides that the Commissioner shall not issue a certificate of authority to anr insurer unless it has deposited in trust with this State securities eligible for investment of capital funds in an amount not less than $100,00.0 for one class of insurance; with an additional $25,000 for each additional class, subject to an overall limitation of $200,000.
Subject company is presently authorized to write non-assessable policies by virtue of a deposit of $100,000 made pursuant to Section

289
56-313 of the old Insurance Code. In this connection, the new Code provides in Section 56-1530 that the assessment feature (emergency clause) may be eliminated if the domestic mutual insurer maintains the deposit and surplus funds necessary for the kinds of insurance it is transacting and is otherwise in compliance with the provisions of the Code, upon receiving the written approval of the Comm~ssioner. This Section apparently gives to the Commissioner little or no discretion in approving the elimination of the emergency clause because the Section provides that the Commissioner shall revoke the authority of a domestic mutual insurer to issue policies without contingent liability at any time the insurer's assets are less than the sum of its liabilities and the surplus required for such authority.
Sub-paragraph (3) of Section 56-1530 provides that the financial requirements for deposits and surplus funds for existing insurers shall be subject to the provisions of Section 56-311, which contains the escalator provision allowing existing companies five years from July 1 after the enactment of the new Insurance Code (which became effective January, 1961) to comply with the increased requirements of the new Code. The financial requirements, that is the amount of surplus required of a domestic mutual under the new Code, is the sum of $200,000. (Section 56-1510.)
Construing Section 56-311 in the light of the provisions of Chapter 56-15 and the requirements of 56-306 and 56-309, and taking into consideration what I construe was the intent of the Legislature when the new Insurance Code was enacted, it is my considered opinion that subject company, in order to continue writing non-assessable policies, must maintain the deposit with the State of Georgia of not less than $100,000, which was heretofore deposited under the provision of Section 56-313 of the old Insurance Code, and until such time as subject company is able to qualify as to the amount of surplus required by Section 56-1510 of the new Insurance Code and makes the deposit required by Section 56-309 of the new Code and receives the written approval of the Commissioner to eliminate the assessment features of its policies.
It is my further opinion that subject company, if it expands its operations beyond the limits of the four counties in which it now opera5tes, must comply with the surplus requirements ($200,000) of Section 6-1510 within the five-year period prescribed in Section 56-311.
INSURANCE-Fraternal Benefit Societies Requirements for qualification discussed.
January 2, 1962
ronorable Zack D. Cravey nsurance Commissioner of Georgia
a ~ece~pt is acknowledged of your letter in which you asked to be dv_Ised If the enclosed petition for incorporation as a fraternal benefit 8OCiety and the other documents which you forwarded meet the re-

290

quirements of Chapter 56-19 of the Code of Georgia and other applicable statutes. You called my attention to previous opinions of the Attorney General dealing with such societies, particularly opinions dated May 14, 1935, June 15, 1937, Aug. 24, 1939 and May 7, 1940. You also call my attention to the decision in Liberty v. Brown, 8 Ga. App. 325.

The present law dealing with fraternal benefit societies is codified in Chapter 56-19 of the Georgia Code. Section 56-1901 defines a fraternal benefit society as "any corporation, society, order or supreme lodge, without capital stock, conducted solely for the benefit of its members and not for profit, operated on a lodge system with ritualistic work, having a representative form of government, and which makes provisions for the payment of benefits."

The petition sets forth the purposes of the society to be:

(a) To promote the social and economic welfare of its members;

(b) To teach and promote good citizenship among its members;

(c) To unite fraternally persons of good moral character and sound health who are socially acceptable; and

(d) To provide death, disability, sickness, annuity, endowment and other like benefits as may be authorized for its members who qualify for such benefits.

The purposes of the society as set forth in the petition are incorporated in Article 1, Section 2 of the Constitution and Laws of the proposed society. Furthermore, Section 3 of Article 1 of the Constitution and Laws defines the society as follows: "Kind of Society.-The Society is a fraternal benefit society without capital stock, organized and carried on solely for the benefit of its members and their beneficiaries and not for profit, operated on a lodge system with ritualistic form of work and having a representative form of government." Article 3 of the Constitution provides for a Supreme Chapter or gov erning body and provides for the election of members thereof.

Thus it appears that both the petition and the Constitution and Laws of the proposed society conform to the definition of 56-1901, heretofore quoted.

In a supplemental memorandum from you on this subject, it was

pointed out and emphasized that paragraph (a) of Section 2 of the

petition for charter states that society is: "To unite fraternally

one of the persons of

purposes of good moral

cthhaerapcrtoeproasend~

'sound health' who are socially acceptable." The point was raised th~

"sound healt the business

h" of

could imply insurance i

that nstea

the purpose is pri d of being purely

m a

arily to fratern

engagef1~
al bene 1

society with insurance benefits incidental thereto.

In this connection, your attention is called the Georgia Code, which provides: "A society

to ma

Section y admit

5t6o-1b9e1~0ef~1~

membership any person not less than 15 years of age, nearest b1rth

2~J I
day, who has furnished evidence of insurability acceptable to the society. Any such member who shall apply for additional benefits more than six months after becoming a benefit member shall pass an additional medical examination, or make additional declaration of insurability, as required by the Society."
Chapter 19 of Title 56 of the Georgia Code contemplates that insurance shall be written by fraternal benefit societies and that the requirement that a person be of sound health before being accepted as a member is not unreasonable. Neither does such a requirement indicate that the writing of insurance is the primary purpose of the organization. In this connection, it is pointed out that before a permanent certificate of authority can be granted to a fraternal benefit society it must have applications for death benefits aggregating $500,000 on not less than 500 lives (Section 56-1904).
I have examined the petition for charter and other documents submitted, and, in my opinion, they are in compliance with applicable statutes now in force in this State. I have also examined the former opinions of the Attorney General referred to in your letter of December 22, 1961, as well as the case of Liberty v. Brown, 8 Ga. App. 325, and point out that the former opinions were rendered on prior statutes, and the Brown case was decided upon different laws than now exist, and therefore the former opinions and the Brown decision are no longer necessarily binding.
INSURANCE-Group Life Insurance
Group life insurance policies issued to "trustee groups" and "association groups" may include in their coverage employees who are nonresidents of Georgia.
May 14, 1962
Honorable Zack D. Cravey Insurance Commissioner of Georgia
. ~his will reply to your letter in which was enclosed letter from :Wilham L. Norton, Jr., Attorney, Gainesville, Georgia. You ask for an Interpretation of Ga. Code Ann., Section 56-2701, sub-paragraphs (4) and (5), with reference to the questions in Mr. Norton's letter.
Specifically, the questions raised are whether under the provisions of the Georgia Insurance statutes governing group life insurance cover~ge "trustee groups" and "association groups" employees not residing In the State of Georgia of employers who are members of and make
up t.he trustees of the fund, or who are bona fide members of the asso-
~Iab?n group, may be included in the group life insurance coverage. It ~.fJ0Inted out that the "trust" is formed under the laws of Georgia and G1 b~ administered in Georgia, that the premiums will be collected in t eorg~a, and that the policy will be written by a company authorized 0 do business in this State through a licensed Georgia insurance agent.

292
In my opinion sub-section (4) of Section 56-2701 authorizes group policies issued to "trustee groups" to include eligible employees, as defined in the Chapter, who are not residents of the State of Georgia; and that likewise sub-section (5) of said Section authorizes the inclusion of such non-residents of Georgia in group policies issued to "association groups". I find nothing in our Statutes dealing with group insurance that requires all of the members of the group who participate in the coverage to be residents of Georgia.
INSURANCE-Life Insurance Companies
Life insurance company may purchase its own stock as treasury stock provided (1) such purchases do not reduce the number of outstanding shares below the statutory minimum, (2) such shares cannot be considered an asset in determining company's financial condition, and (3) such shares cannot be voted and cannot participate in any dividends or distribution.
July 26, 1962
Honorable Zack D. Cravey Insurance Commissioner
This will reply to your letter which posed the following questions:
"Can a Life Insurance Company incorporated under the laws of the State of Georgia purchase its own capital stock, and hold the shares as Treasury Stock, an asset not allowed in the determination of the financial condition of the Company, for an indefinite period for re-sale or re-transfer ?"
Section 56-1503 of the Code of Georgia provides that an insurer shall not directly or indirectly invest in or lend its funds upon the security of:
"(2) Issued shares of its own capital stock, except for the purpose of mutualization under Chapter 56-15, or in connection with a plan for the purchase of such shares by the insurer's employees or agents."
This Section makes it clear that shares of its own stock are not a legai investment for a Georgia insurance company and that such shares o stock would not be an admitted asset of the company under the provisions of Section 56-903. However, since shares of its own stock are specifically enumerated as an asset not allowed in this Section, and since Section 56-904 requires the insurer to report all assets not allowedt to the Insurance Commissioner, there is a strong presumption tha ownership of some part of its own capital stock was contemplated bY the drafters of the present Insurance Code.
Section 56-1503 of the Code provides that the general corporation statutes relating to the powers and procedures of domestic private

293
corporations formed for profit shall apply to domestic stock insurers except where in conflict with the express provisions of the Insurance Code; and Section 22-1828(d) of the General Corporation statutes expressly provides that such corporation subject to the limitations contained in its charter may buy and sell its own capital stock out of its surplus of assets over its liabilities. This Section further provides that such shares of its own capital stock held by the corporation shall not be voted and shall not be counted as outstanding for the purpose of any stockholders' quorum or vote, or dividend or distribution of any kind whatsoever.
In view of the foregoing provisions, and since I am unable to find any specific prohibition in the Insurance Code against a Georgia chartered insurance company acquiring shares of its own capital stock, I am of the opinion that a Georgia insurance company may acquire by purchase shares of its own capital stock out of its earned surplus over and above its liabilities and hold same as treasury stock, provided such purchases do not reduce the amount of outstanding stock below the statutory minimum and the minimum set forth in its charter and bylaws; that such shares cannot be voted and cannot participate in dividends or distribution; and that such shares cannot be considered as an admitted asset in any determination of the financial condition of the company; nor shall such shares be counted as outstanding shares of capital stock for the purpose of any stockholder's quorum or vote.
INSURANCE-Loan Insurance
Discussion of premiums payable for insurance on loans pursuant to Georgia Industrial Loan Act.
October 19, 1962
Honorable Zack D. Cravey Georgia Industrial Loan Commissioner
. You have asked to be advised whether the premium for non-recordIng insurance may be charged on the face amount of the loan, or Whether such premium is computed on the net amount of money ac~~ally advanced to the borrower. You specifically ask for an interpretalon of the phrase "loan over $100.00".
Not having a specific policy of this type of insurance before me, I can only advise as follows:
b If the policy of insurance idemnifies the lender against loss for the ~1ance due on the face amount of the loan, then the premium pernutted under the Georgia Industrial Loan Act for this type of insur~nce.would be computed on the face or gross amount of the loan note, rov1ded such premium is not in excess of the recording fee of the 8ecurity instrument.

294
On the other hand, if the policy of insurance indemnifies the lender only for the amount due on the money actually advanced by the lender, then the premium would be computed on the amount actually advanced to the borrower, provided such premium is not in excess of the recording fee of the security instrument.
As you were previously advised on Dec. 9, 1955, the Georgia Industrial Loan Act is a discount law, that is, it permits the licensee to collect in advance the interest and other lawful charges at the time the loan is made, and it therefore appears that the premium for non-recording insurance would be computed on the gross amount rather than the net amount of the loan.
In my opinion the phrase "loan over $100.00" is to be interpreted as a loan wherein the gross or face amount of the loan exceeds the sum of $100.00.
INSURANCE-Mutual Insurance Companies
Mutual insurance company may borrow money by issuance of guaranty fund certificates and may organize and capitalize stock company as subsidiary.
December 12, 1962
Honorable Zack D. Cravey Insurance Commissioner
Reference is made to correspondence in which approval is asked for the following:
1. Sale by a mutual insurance company of $600,000 guaranty fund certificates.
2. Authority to organize and capitalize a stock insurer as a wholly owned subsidiary of the mutual company.
3. Approval of the specimen guaranty fund certificate.
You are advised as follows:
1. Section 56-1508 of the Georgia Code grants to all corporations organized under the provisions of the Georgia insurance laws the same corporate powers as are conferred upon private corporations, except where inconsistent with the provisions of the Insurance Code. The right of a corporation to borrow money is too well established to require comment; and furthermore, there is no restriction upon an insu;ance company from exercising this right. The method employed Ill borrowing funds is primarily a decision for the management of ~he corporation so long as the method selected meets statutory reqUirements.
2. The authority of a mutual insurance company to organize _and capitalize a stock insurance company as a wholly owned subsidr~r~ presents an interesting and unique question and I am unable to frn

295
any statutory law or case decisions in Georgia directly in point on this question. However, it would appear that certain provisions of the Insurance Code would indicate such authority.
Section 56-1003 (4) authorizes an insurer, with the approval of the Insurance Commissioner, to acquire control of another insurer; and Section 56-1005 (2), dealing with diversification of investments and limiting the amount of investments in any one person, institution, corporation or municipal corporation, specifically excludes from such limitation a substantially wholly owned insurance subsidiary.
Again, it is noted that Section 56-1027 authorizes an insurer, after satisfying the requirements of the Code as to investment of its capital, if a stock insurer, or required surplus, if a mutual insurer, to invest any additional funds without limitation in any investment authorized by law; with the proviso that the consent of the Commissioner is required only when such investment exceeds 5% of the total assets of the insurer.
Thus, there is a clear indication that an insurer, whether stock or mutual, may invest in a substantially wholly owned subsidiary insurance company, and I find no statutory prohibition against a mutual company having a wholly owned subsidiary stock company, provided the prior consent of the Commissioner is obtained and the conditions indicated in Section 56-1027 are complied with.
3. With reference to approval of the guaranty fund certificate to be issued by the mutual company, said certificate bears a reasonable rate of interest well within the legal limit; is payable out of surplus of the company after provision has been made for all reserves and other liabilities of the company; and is in legal form. I therefore know of no legal reason for disapproval of the certificate form.
In conclusion, I am of the opinion that you have the legal discretion to approve the proposed investment in the capital stock of a wholly o:-vned subsidiary stock insurance company to be organized and fmanced by the mutual company under the "Special Consent" investment provision of Section 56-1027 of the Code of Georgia. I am'of the further opinion that the method of financing said proposed stock company is legal and that the mutual company has the legal right and authority to organize and own the proposed company.

INSURANCE-Valuation of Securities Held By Insurer
.. Insurance Commissioner, in his discretion, may value certain secutihes held by life insurance companies.

IIonorable Zack D. Cravey Insurance Commissioner

October 4, 1962

In your letter of October 3, 1962, you state that you have been asked to place a value on the capital stock of an insurance company,

296
and you have expressed doubt that such is the responsibility of the Commissioner.
Your attention is called to Section 56-914 of the Code of Georgia which provides:
"56-914. Valuation of Other Securities.-
" (1) Securities, other than those referred to in 56-913, held by an insurer shall be valued, in the discretion of the Commissioner, at their market value, or at their appraised value, or at prices determined by him as representing their fair market value.
"(2) Preferred or guaranteed stocks or shares while paying full dividends may be carried at a fixed value in lieu of market value, at the discretion of the Commissioner and in accordance with such method of valuation as he may approve." (Emphasis added)
The term "securities" as used in sub-section (1) quoted above would include the shares of stock under consideration. Due to the loss experience during the calendar year 1961 of the life insurance company under discussion, sub-section (2) above would not apply.
You will note that sub-section (1) of the section quoted vests in the Commissioner discretion as to the valuation placed on securities, that is: 1. at market value; 2. at appraised value; and 3. at prices determined to be the fair market value. It is doubtful if there is at present a market value on this stock, and it would therefore appear that the valuation should be determined by competent appraisers. In this connection, the Committee on Valuation of Securities of the National Association of Insurance Commissioners should be able to assist in fixing the valuation of the securities in question.
INTOXICATING LIQUORS-Attachment
Liquors lawfully kept may be attached like other property but sale is subject to the regulations and supervision of the Revenue Com missioner.
September 26, 1962
Mr. Jack C. Hodgkins Deputy Revenue Commissioner
This is in reply to your request for an opinion pertaining to the attachment of intoxicating liquors lawfully kept.
Generally where the keeping of intoxicating liquor is lawful, sue~ property may be attached like any other property. C.J.S. Attachmen 74 (10). I have previously advised the Department of Revenue i~ an official opinion that a common carrier could sell unclaimed distilled

297
spirits but only to such persons who held current licenses to deal in distilled spirits. Opp. Att. Gen. 1950-51, pp, 162, 163. An attaching creditor could not lawfully purchase such goods at the sale with any idea of resale as the sale of liquors may be made only in the manner provided by law and by one duly licensed by law to make such sale. Rainer v. State, 96 Ga. App. 727. Liquors sold contrary to the provisions of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors may be seized as contraband. Ga. Code 58-1065.
It is therefore my opinion that liquors lawfully kept may be attached but that the sale is subject to the regulations and supervision of the Revenue Commissioner.

INTOXICATING LIQUORS-Contraband Liquor (Unofficial)
Contraband liquor must be turned over to State Revenue Commissioner, whether tax-paid or non-tax-paid.
January 3, 1962
Honorable Samuel W. Fariss Judge, Lookout Mountain Judicial Circuit
This is in reply to your letter asking that I refer you to the statute governing the disposition of contraband liquor.
Georgia Code Annotated, Section 58-1065, provides that all contraband liquors, distilled spirits, or alcohol, seized as contraband, shall be immediately delivered to the State Revenue Commissioner, or persons designated by him to receive the same.
In Redwine v. Berry, 210 Ga. 567, a mandamus proceeding brought by the State Revenue Commissioner to compel the Sheriff of Newton County to deliver to him contraband liquor seized by the Sheriff, the ~upreme Court held that this section applied to tax-paid liquor (legal hquor) as well as non-tax-paid liquor.
After the liquor is delivered to him, the Commissioner is then required by said section to destroy or sell it at public auction.

INTOXICATING LIQUORS-Malt Beverages (Unofficial)

"Home brew" is a malt beverage and its manufacture is subject

ato1coChhoalipctecron5t8e-n7t

of the Georgia Code Ann. notwithstanding exceeds 6 per cent by volume.

that

the

December 14, 1962

Mr: Stephen Pace, Jr. Solicitor General Sumter County

"h This is in reply to your letter requesting information concerning orne brew". It is my opinion that the making of "home brew" is the

298
manufacturing of malt beverages and subject to Chapter 58-7 notwithstanding that the alcoholic content exceeds 6% by volume. Code Section 58-704 says:
". . . no such malt beverages shall be sold under the provisions of this Chapter which contain more than six percent of alcohol by volume ... Brewers are persons who manufacture malt beverages . . ."
My conclusion, therefore, is that the making of "home brew" is governed by this Chapter.
Code Section 58-206 requires annual registration and a license fee of $1,000 for brewers.
Code Section 58-723 provides :
"The following shall be offenses in this State, each punishable by a fine of not less than $100 nor more than $1,000, or imprisonment for not more than 12 months, either or both within the discretion of the court: (1) Manufacturing malt beverages without having secured a license, to engage in such business as specified in this chapter . . ."
The provisions of the State laws concerning wet and dry counties apply only to alcoholic beverages and have no application in the case of malt beverages.
INTOXICATING LIQUORS-Manufacture and Sale of Wines (Unofficial)
Discussion of laws relating to manufacture and sale of domestic wines.
April 10, 1962
Mr. Moses George Fulton Criminal Court
This is in response to your request for information concerning criminal procedures pertaining to manufacturing and the sale of domestic wines.
Ga. Code Ann., 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).

299
A person manufacturing wines for sale even though he may make that wine from fruit grown on his own land, is required to pay an occupational tax of $250.00. 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.
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 therein 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 there has been 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-Possession (Unofficial)

. Possession of distilled spirits or alcohol upon which no stamps showmg Georgia tax paid is misdemeanor.

March 16, 1962

Mr. Charles Laessle Delray Beach, Florida

. Under Section 58-1056 of the Georgia Code, the possession of distilled spirits or alcohol by any person which does not bear stamps showing that the Georgia tax has been paid is unlawful, and the person Possessing such distilled spirits or alcohol in this state is guilty of a misdemeanor.

. It

.hM~sorbeeoevnert,hwehceorenssiusctehnpt rpoodsuictitosnaroef

transported this office

through this state, that such distilled

fPmts or alcohol constitute contraband and subject the vehicle used

or such transportation to seizure and forfeiture.

300
INTOXICATING LIQUORS-Price Lists
Disclosure to National Alcohol Beverage Control Association, Inc., of prices posted in Revenue Department by various distilleries not prohibited.
May 23, 1962
Mr. Jack Hodgkins Deputy Revenue Commissioner
In reply to your question as to whether Section 92-3216 or 92-8414 of the Georgia Code would prohibit disclosure of prices posted in the Revenue Department by the various distilleries, I would like to advise that, in my opinion, this information is received by the Commissioner pursuant to a regulatory function rather than in the administration of the tax laws.
I concur that it would be somewhat anomalous to hold that a disclosure of information which is available to the general public by the process of applying the mark-up percentages of the Commissioner's regulations to prices commonly available in retail stores would be a violation of the confidential disclosure provisions of our Code. I believe this to be particularly true where a disclosure is made to an association representing states, at least some of which exchange information with Georgia pursuant to the provisions of Section 928414.
Accordingly, I think this information may be disclosed to the National Alcoholic Beverage Control Association, Inc.
INTOXICATING LIQUORS-Wholesale Dealers
Wholesale liquor dealers may purchase liquors on credit or with borrowed funds and may give security instruments to their sellers or lenders to secure payment thereof.
September 27, 1962
Mr. Jack C. Hodgkins Deputy Revenue Commissioner
This is in reply to your request for an opinion concerning loans bY financial institutions to wholesale liquor dealers.
Ga. Code Section 58-122 provides that no property rights whatsoever shall exist in any prohibited liquors. This Code Section should be considered in connection with Code Sections 58-1077 and 1078 and when so considered it is apparent that property rights do exist in liquors even in large quantities where they are lawfully acquired and possessed in a "wet county" under the provisions of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors. It mus~, however, be remembered that the State Revenue Commissioner IS

301
charged with the duty and responsibility of controlling the sale, distribution, storage and transportation of such liquors.
It is unlawful for any person to sell any of the liquors covered in Chapter 58-10 without a license, and while it is my opinion that this restriction does not apply to judicial sales, it would apply to any private sale contemplated by any individual.
Recently I gave you my official opinion that liquors were subject to attachment but that the sale must be conducted in accordance with law and only licensed wholesale and retail dealers could purchase at such sales.
Generally, in the absence of a statute to the contrary, a mortgage of intoxicating liquors is valid. C.J.S. Intoxicating Liquors 493. This appears to be the law in Georgia and our Court of Appeals, in the case of Turner v. Brunswick Distributing Company, Inc. 95 Ga. App. 651, held that a sale of whiskey on credit does not violate public policy and is not prohibited by our statutes.
Regulation No. 614 prohibits credit sales to retailers but makes no provision as to the wholesaler's financial arrangements. The Revenue Commissioner may issue regulations either prohibiting or regulating the financial aspects of either retailer or wholesaler, or both, and may rescind such regulations or modify them.
Wholesale liquor dealers may, in my opinion, purchase liquors on credit or with borrowed funds and may give security instruments to their sellers or lenders to secure payment thereof.
Certain problems will of course arise in the event of a default. The law does not prohibit the transportation of tax paid liquors in "wet counties" but does require a report of all transportation (Code 581047). The present regulations concerning transportation apply to licensed dealers and not creditors. The Commissioner of Revenue can, of course, adopt regulations covering the phase of operation.
If the liquors in question are stored in the State warehouse and no tax has been paid thereon, they may not be withdrawn for delivery to a consignee in Georgia until the tax has been paid. They could be delivered to a common carrier for shipment to a consignee in another state or jurisdiction.
The security interest holder.could not purchase the goods himself unless he was the holder of a valid license to deal in such products.

LOANS-Interest (Unofficial)

Citation of statutes relating to interest on loans. M:~. C. S. Groves, Jr., Wilmington, Delaware

May 14, 1962

57-1R0e1polyfitnhgetoCoydoeurolfeGtteeorrogfiaMparyov7,id1e9s6:2, you are advised that Section

"57-101. Legal Rate of Interest; Rate Higher than Eight

302
Percentum Forbidden.-The legal rate of interest shall be seven percentum per annum, where the rate percentum is not named in the contract, and any higher rate must be specified in writing, but in no event shall any person, company or corporation reserve, charge, or take for any loan or advance of money or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight percentum per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever."
Section 57-116 provides:
"57-116. Interest on Loans to be Paid in Monthly, Quarterly, or Yearly Installments.-Any person, natural or artificial in this State, lending money to be paid back in monthly, quarterly or yearly installments, may charge interest thereon at six percent. per annum or less for the entire period of the loan, aggregating the principal and interest for the entire period of the loan, and dividing the same into monthly, quarterly or yearly installments, and may take security therefor by mortgage with waiver of exemption or title or both, upon and to real estate or personal property or both, and the same shall be valid for the amount of principal and interest charged; and such contract shall not be held usurious."
In 1961 the Georgia Legislature passed the following statute:
"Section 57-118. Interest Payable by Profit Corporations on Loans in Excess of $2,500.-Notwithstanding any contrary provision of law, any foreign or domestic corporation organized for pecuniary gain may in writing agree to pay such rate of interest as such corporation may determine on any loan under which the principal balance to be repaid shall originally exceed the sum of $2,500 or on any series of advances of money pursuant to a loan agreement or undertaking if the principal balance to be repaid thereunder shall originally exceed the sum of $2,500 or on any series of advances of money pursuant to a loan agreement or undertaking if the principal balance to be repaid thereunder shall originally exceed the sum of $2,500 or on any extension or renewal thereof, and as to such transaction the claim or defense of usury by such corporation or its successor or any one on its behalf is prohibited: Provided, however, that nothing contained in this section shall apply to any loan to a public, charitable, religious, or other non-profit corporation."
Since the Attorney General is not authorized to render legal advice to private individuals (or corporations) it is suggested that you conf~r with your attorney for an interpretation of these statutes and their application to your particular problem or situation.

303
MOTOR VEHICLES-Certificate of Title Act (Unofficial)
"Mobile homes" are "vehicles" as defined by Motor Vehicle Certificate of Title Act.
June 6, 1962
Mr. Roland J. Duguay Alma, Michigan
This is in reply to your letter requesting an opinion as to whether or not a mobile home is included under the definition of "vehicle" in the "Motor Vehicle Certificate of Title Act".
I am sure you are aware that this legislation is new and that the effective date of this act is July 1, 1962. There are no court decisions interpreting any of the provisions of this act. Section 2 (n) provides:
"'Vehicle' means a device in, upon, or by which a person or property is or may be transported or drawn upon a highway, except a device moved by human power or used exclusively upon stationary rails or tracks, or which obtains motive power from fixed overhead electric wires."
It is my opinion that a mobile home is included under the definition of the term "vehicle" as a mobile home is a device by which a person or property may be transported or drawn upon a highway.

MOTOR VEHICLES-Certificate of Title Act

Registration requirements commence with 1963 model vehicles.

[Editor's Note: Section 6 of the Motor Vehicle Certificate of Title Act, discussed herein, was amended during 1963 session of General Assembly. See Ga. Laws 1963, p. 32.]

The Honorable S. Ernest Vandiver

Governor of Georgia



June 11, 1962

. I have received your request for an opinion on the following questions:

1. Will the State of Georgia be required, during the next fiscal year, to issue certificates of title on all vehicles or may the State refuse to issue title certificates for other than 1963 model vehicles ?

2. Will the State be required, during the next fiscal year, to record all notices of security interest and liens on motor vehicles or may the State refuse to accept, for recording,
notices of security interest and liens which pertain to vehicles other than 1963 model vehicles?

304
The Motor Vehicle Certificate of Title Act was passed by the General Assembly in the 1961 Session and amended in the 1962 Session so as to provide for a step by step titling of motor vehicles. The effective date of the Act, as amended, was July 1, 1962.
Section 6 of the Motor Vehicle Certificate of Title Act, as amended, provides that every owner of a vehicle shall make application for a certificate of title according to the model of the vehicle in the following manner: "All 1963 model vehicles and all successive model vehicles thereafter shall have a certificate of title. Provided, that by January 1, 1969, all model vehicles shall have a certificate of title." The Act provides that all owners of vehicles which are brought into this state from a state with a title registration act shall register that state's certificate of title in this state. The Act also provides that owners have the right to apply for a title on any model vehicle at any time.
The only vehicles for which a title certificate will be required during the next fiscal year will be the 1963 model vehicles and such vehicles as may be brought into this state from a state with a title registration Act.
The language contained in Section 6 pertaining to the registration of Georgia vehicles of a 1962 model or prior model is permissive only and the owners of such vehicles are not required to make application for a title certificate until January 1, 1969, and the state would therefore not be required, during the next fiscal year, to issue certificates of title on these older vehicles. Prior to the 1962 amendment, Section 6 of this Act provided that every owner of a vehicle in this state was required to make application for a certificate of title. There was no provision for any delay in the making of an application for title based upon yearly model of the vehicle. The intention of the legislation is therefore clearly expressed in the amendment and the owners of the older vehicles are not required to make application for title during the next fiscal year.
The state officials responsible for the administration of this Act could, in my opinion, refuse to accept applications for the registration of these older vehicles, particularly if the allocation of funds from the contingent appropriations was limited to the implementation of the mandatory provisions of the Motor Vehicle Certificate of Title Act.
Section 21 (a), pertaining to the perfection of security interest in motor vehicles and the perfection of liens against motor vehicles provides:
"The security interest in a vehicle of the type for which a certificate of title is required shall be perfected and shall be valid against subsequent creditors of the owner, subsequent transferees and the holders of security interests and liens on the vehicle by compliance with the provisions of this Act."
Section 27 of the Act provides :
"The method provided in this Act of perfecting and giving notice of security interests and liens with respect to motor vehicles as to which certificates of title need be obtained under

305
the provisions of this Act, is exclusive and such security interest and liens are hereby exempt from the provisions of law which otherwise require or relate to the recording or filing of the security interests or liens, claims of lien executions and other like instruments with respect to such vehicles."
The provisions quoted above pertaining to the method of perfecting security interest and liens in motor vehicles applies only to those motor vehicles for which a certificate of title is required. No certificate of title is required on all model vehicles until January 1, 1969. During the next fiscal year certificates of title will be required only on 1963 model vehicles and vehicles which are brought into the state from a state with a title registration Act and therefore only these vehicles are involved in the security interest and lien provisions of this Act. Until such time as the vehicle is required to have a certificate of title, liens and security interest pertaining to those vehicles must be perfected in accordance with the general law heretofore existing.
The State could properly refuse to accept for recording notices of security interest and liens which pertain to vehicles for which no certificate of title is required.

MOTOR VEHICLES-Certificate of Title Act (Unofficial)

Security interests on older model vehicles are protected until Certificate of Title Act is fully implemented.

June 18, 1962

Mr. Lewis L Clum Cincinnati 9; Ohio

. This is in reply to your letter of June 13, 1962, concerning the Georgia Motor Vehicle Certificate of Title Act.

The Attorney General has written an official opinion interpreting
l~arious provisions of this Act which pertain to security interest and
Iens. I am sending you a copy of that opinion, dated June 11, 1962, together with a policy letter which has been prepared by the Department of Revenue.

. T?e Governor of this State announced last week that he was approfhiatmg funds for the titling of new vehicles and vehicles brought into the state from title states and that this appropriation would include
e recording of security interest on those vehicles.

~ldeYr omuohdaelveverhaiicsleeds

the question concerning your protection on in which your security interests are already

the pro-

dected .under existing laws. It was my opinion that Section 41 of the Act

0.es .give you protection until this Act is fully implemented. The Com-

lllishsi?ner of Revenue will provide the necessary forms for recording

sue mterest at a later time.

306
MOTOR VEHICLES-Certificate of Title Act (Unofficial)
Certain enumerated sections do not pertain to older cars.
June 21, 1962
Mr. Henry J. Miller Atlanta 3, Georgia
This is in reply to your letter concerning the Georgia Motor Vehicle Certificate of Title Act and the interpretation of Sections 15 and 16 of the Act, as amended.
It is my opinion, from the examination of all of the Sections of this Act, that the clear intention of the legislature requires that Sections 15 and 16 be interpreted to pertain only to vehicles to which certificates of title has already been issued. Sub-section (a) of Section 15 provides that an owner must execute an assignment "in the space provided therefor on the certificate of title." Sub-section (b) of Section 15 states that a transferee shall make application for a new certificate of title "after delivery to him of the vehicle and certificate of title." (Emphasis supplied.)
Section 16 does make reference to Section 39 which was eliminated from the Act in 1962. However, Section 6, as amended, clearly provides that all vehicles do not have to have a certificate of title until January 1, 1969. Section 39 of the original Act was, of course, the section pertaining to the delayed application of the Act.
It is my opinion that neither Section 15 or 16 requires a certificate of title on older model vehicles.
MOTOR VEHICLES-Certificate of Title Act (Unofficial)
Motor vehicles of 1962 vintage are not required under Certificate of Title Act to have a certificate of title until January 1, 1969, and Section 27 of the Act relative to security interests would not apply to such vehicles at this time.
August 7, 1962
Mr. John E. Hoefer Plainfield, New Jersey
This is in reply to your question concerning the recording of a security instrument covering a new 1962 model vehicle under the provisions of the Motor Certificate of Title Act.
The Motor Vehicle Certificate of Title Act took effect July 1, 1962. Section 27 of the Act provides that the method of perfecting securitY interest with respect to motor vehicles as to which certificates of title need be obtained is exclusive and such security interest and liens are exempt from the provisions of law which otherwise relate to a record ing of security interest and liens. The Attorney General, in an opinion

307

addressed to the Governor of the State dated June 11, 1962, stated in effect that new 1962 vehicles, such as you have reference to, are not required to have a certificate of title until January 1, 1969, and therefore Section 27 of the Act would not apply to security interests in such
vehicles.

Section 40 of the Act provides one method of perfecting a security

interest in a previously registered vehicle for which no certificate of

title is required. However, it will be noted that the method provided for

in this section is not exclusive.



The recording of security instruments such as chattel mortgages, conditional sales contracts and bills of sale to secure a debt with respect to motor vehicles other than those for which a certificate of title need be obtained apparently can be made with the Clerk of the Superior Court in the county where the owner resides, and the duration of such perfection will be covered under the provisions of Section 41 of the Act. New 1962 model vehicles sold after July 1st, the effective date of this Act, are not covered by either Section 27 or Section 40 for the reason that Section 40 applies only to previously registered vehicles as defined in Section 38, and Section 27 applies only to vehicles for which certificates of title need be obtained. Apparently the method and duration of recording security interest in such vehicles will be covered entirely by the laws as they existed prior to the passage of this Act.

MOTOR VEHICLES-Certificate of Title Act (Unofficial)
Only vehicles for which title certificate is required during 1963 fiscal year are 1963 model vehicles and vehicles brought into State from a state wfth a title registration act.
August 7, 1962
Mr. W. F. Van Horn Tax ;Commissioner, Chattahoochee County
This is in reply to your letter in which you asked for information concerning the Motor Vehicle Certificate of Title Act. In reply to your question as to whether or not a title will be required for all automobiles Purchased in 1963 or just 1963 model automobiles, I refer you to the official opinion of the Attorney General dated June 11, 1962, addressed to the HonorableS. Ernest Vandiver, Governor of the State of Georgia. Th~ Attorney General stated in that opinion that the only vehicles for W~ICh a title of certificate would be required during the fiscal year :VIII be the 1963 model vehicles and such vehicles as may be brought Into this state from a state with a title registration act.
The question you asked concerning the legal obligation of a service~an stationed in Georgia under military orders is covered in Section 4,
aragraph 3 of the Act, which states that no certificate of title need be obtained for a vehicle owned by a non-resident of this state and not required by law to be registered in this state. As non-resident service-

308
men stationed in Georgia solely because of military orders, they are not required by law to register their automobiles in this state. They would, therefore, not be required to make application for certificate of title.
MOTOR VEHICLES-Certificate of Title Act (Unofficial)
No particular form of security instrument is prescribed by Certificate of Title Act, and any written agreement that secures payment or performance of an obligation should suffice as security instrument under the Act.
October 30, 1962
Mr. C. Minton Adams Nahunta, Georgia
This is in reply to your letter in which you asked what sort of retention title contract or bill of sale to secure debt contract is required under the Motor Vehicle Certificate of Title Act. Section 2 (j) of the Act defines security agreement as a written agreement which reserves or creates a security interest. Section 2 (k) provides:
" 'Security interest' means an interest in a vehicle reserved or created by agreement which secures the payment or performance of an obligation such as conditional sales contracts, chattel mortgages, bills of sale to secure debt, deeds of trust and the like. This term includes the interest of a lessor under a lease intended as security. 'Lien' means any lien created by operation of law and not by contract or agreement with respect to a vehicle and includes all liens mentioned in Ga. Code 67-1701, other than this in Sub-section 5 thereof, and all liens for taxes due the United States of America, constructive notice of which is given by filing notice thereof in the office designated by State law."
It is my opinion that the Motor Vehicle Certificate of Title Act is very broad in language and intent and would apply to any written agreement that secures the payment or performance of an obligation. The bill of sale to secure debt form which you enclosed in your letter would be, in my opinion, a security agreement as defined in said Act.
MOTOR VEHICLES-Certificate of Title Act (Unofficial)
Procedure discussed for recording security interest assigned prior to, simultaneously with and after application for title.
October 30, 1962
Mr. H. P. Anderson Americus, Georgia
This is in reply to your letter concerning the Motor Vehicle Certificate of Title Act and its application to transactions involving the as-

309
signment of a security interest prior to or simultaneously with an application for title.
Section 24 of the Motor Vehicle Certificate of Title Act provides that the holder of any security interest may assign his interest in a vehicle. Where the assignment of a security interest occurs prior to the application for title, then the name of the assignee should appear as first security interest holder on the application for title. The application for title form has been numbered by the Department of Revenue as Form T-1. A copy of the assignment should be included in the supporting documents and papers transmitted to the Commissioner of Revenue when the application is made.
Where the assignment of a security agreement occurs after an application for title has been made, the assignee may have the certificate of title issued showing himself as first security interest holder, if that be his position, upon delivering to the Revenue Commissioner a certificate of title together with the assignment of a security interest noted on such title certificate. These documents should be accompanied by a Form T-1 showing the current correct information pertaining to the vehicle in question, together with a one dollar fee required by the Act.

MOTOR VEHICLES-Certificate of Title Act (Unofficial)

Discussion of perfecting security interests under Certificate of Title Act.

November 20, 1962

Mr. W. M. Page Columbus, Georgia

This is in reply to your letter of November 12, 1962, concerning the
recording of security instruments on motor vehicles with a model year
earlier than 1963 under the provisions of the Motor Vehicle Certificate of Title Act.

After reviewing your letter in detail, I have come to the same con-

clusions concerning the law that you have reached. The Motor Vehicle

Certificate of Title Act took effect on July 1, 1962, after having been

a~ended once prior to its effective date. Section 27 of the Act pro-

VIdes for the method of perfecting security instruments with respect

to motor vehicles for which certificates of title need be obtained and

1ls~uwchwsheiccuhriottyheinrwteirseesrtselaatned

liens to the

are exempt from the recording of security

provisions of interests and

lens. You have come to the same conclusion.

. Section 4 of the Act provides one method of perfecting a security
tl~ter~st in a previously registered vehicle for which no certificate of
1tle Is required. This is not, however, an exclusive method of perfect~nhg the security interests, as they may yet be filed with the Clerk of
e Superior Court in the County where the owner resides, and the

310
duration of such perfection will be covered under the provisions of Section 41 of the Act.
It is my understanding that the Governor in his appropriation for the implementation of the Certificate of Title Act made an appropriation for the mandatory provisions only and while a recording is permissive on previously registered vehicles under the provisions of Section 40 of the Act, it is not mandatory and, therefore, not covered in the appropriation. The Department of Revenue has advised me that they will refuse to accept security interest notices on previously registered untitled vehicles.
It is my opinion that the position taken by the Department of Revenue is correct. However, if you reach a different conclusion I would like to point out that the method for determining an issue under the provisions of this Act must apparently be brought in accordance with Section 30 of the Act. I understand that the Revenue Commissioner has issued regulations establishing a Title Review Board under the provisions of this section which require that all complaints be made to the Board in writing in numbered paragraphs, the facts concerning the complaint and the contentions of the aggrieved parties. Appeals from the Title Review Board are made in accordance with the provisions of the Georgia Code Section 92-8446.
MOTOR VEHICLES-Certificate of Title Act (Unofficial)
Records of Revenue Department show when an application of registration or notice of lien is received under Motor Vehicle Certificate of Title Act for use in determining relative priority of security interests.
November 29, 1962
Mr. W. M. Page Columbus, Georgia
This is in reply to your letter concerning the Motor Vehicle Certificate of Title Act and whether or not there is any disclosure, as a matter of public record, showing when an application or notice was received by the Revenue Commissioner. I have been informed by th_e Motor Vehicle License Unit that all notices received either as an application of registration or as a notice of lien or security interest a~e stamped showing the date they were received and that information IS available from their records. The date of receipt does not appear on the face of the certificate as that is not required under the terms of the Act.
I assume that in the event there is some question as to the relative priority as between security interest holders whose names are to appear on the certificate, their priorities would be administrativelYt determined in the Department where the certificate is issued and tha in the event the lien holders do not agree, they could appeal that determination under the provisions of Sections 29 and 30 of the Act.

311
MOTOR VEHICLES-Certificate of Title Act (Unofficial)
Procedure discussed for correction of error in certificate.
December 11, 1962
Mr. E. C. Thompson Savannah, Georgia
This is to confirm my unofficial opinion which I expressed to you concerning Section 22 of the Motor Vehicle Certificate of Title Act.
The last paragraph of that Section provides that a security interest holder who receives a certificate of title issued by the Commissioner is required to examine the certificate of title and deliver it to the owner within five days if correct. It is my opinion that if the title certificate is incorrect the certificate should be returned to the Commissioner and the owner notified by you as security interest holder that you have received the certificate, that it contained an error and that you have returned it to the Commissioner. The Commissioner will issue a correct certificate of title if such seems to be required under the circumstances.
Should the "error" you complain of be so material that it does not concern itself with the titled vehicle, but would apply to a fictitious vehicle, then a new application on the correct vehicle would have to be made and an additional fee paid upon that application.

MOTOR VEHICLES-Damages (Unofficial)

State not liable for damages arising out of acts of its employees unless Legislature determines otherwise in individual case.

May 23, 1962

Mr. James S. Sutton Jeffersonville, Georgia

. This office has received your letter concerning damage done to Your automobile recently.

The State is not in position to be responsible for actions of its em-

ployees whether it amounts to negligence at law or not. The individual

employee himself might be responsible for the damage done but the

n~rmal relationship of master and servant or agency does not exist

rlth respect to the State and its employees. Inasmuch as this some-

lmes works a hardship on injured parties, there has been set up a

C_laims Advisory Commission to assist the Legislature in passing spe-

Cial Bills to reimburse those who have been injured, but this is strictly

~ahelepgreissleanttiavteivfeudncutriionng

and the

would have next regular

to be initiated by your local session of the Legislature. For

at reason I suggest that you contact him immediately.

312
MOTOR VEHICLES-Dealers
Manufacturers and dealers engaged in manufacture, sale or leasing of motor vehicles must register with State Revenue Commissioner and failure properly to do so constitutes a misdemeanor.
August 29, 1962
Mr. Murray A. Chappell, Director Motor Vehicle License Unit
This is in reply to your letter in which you requested my opinion concerning the penalties provided by law for the failure of motor vehicle dealers to register with the State Revenue Commissioner.
Code Sections 68-213 and 92-2903 provide that manufacturers and dealers engaged in the manufacture, sale, or the leasing of motor vehicles shall register with the State Revenue Commissioner and pay a fee of $25.00. I ruled, in an official opinion in 1951, that the dealer registration law required each individual place of business to be registered and that it was immaterial if two or more separate establishments were under the ownership of one person or corporation. (Opinions of the Attorney General 1950-51, p. 385.)
Georgia Code Chapter 84-3901 contains the codification of the Used Car Dealers Registration Act which applies to all used car dealers whose place of business is in a county having a population of 50,000 or greater according to the 1950 U.S. Census or any future census. The provisions of this Act, however, do not alter or change the requirements imposed upon dealers in Code Sections 68-213 and 92-2903 but are in addition to those requirements.
Code Section 68-9908 provides that any person violating the provisions of Code Chapters 68-1 to 68-4 relating to licenses, registration and operation of motor vehicles shall be guilty of a misdemeanor. Any dealer who should fail or refuse to register under the provisions of Code Section 68-213 would therefore be guilty of a misdemeanor.
MOTOR VEHICLES-Drivers Licenses (Unofficial)
Use of another person's drivers license a misdemeanor.
January 23, 1962
Mr. Frank U. Garrard, Jr. Recorder Columbus, Georgia
We are in receipt of your letter requesting an opinion as to the application of Georgia Code Ann., Section 38-9901 to one arrested using another person's driver's license.
It is my opinion that irrespective of whether or not the Code Section is applicable the better practice for both your Court and the

313
Solicitor of the Superior Court is to proceed against this tactic under the provisions of Code Section 92A-9909 which provides:
"92A-9909. Display or Possession of Suspended, Cancelled, or Fraudulent License to Operate Motor Vehicle. It shall be a misdemeanor to display or cause to be displayed, or to have in his possession any suspended, cancelled, revoked, fi.ctitious or fraudulent license to operate a motor vehicle under the terms of (Article IV) Chapter 92A-4. (Acts 1937, pp. 322, 351.)"
As you can see, the situation as explained to me would be either use of a fictitious license, or use of a valid license issued to another individual which use would be fraudulent. For these reasons we believe that prosecution under the misdemeanor sentence would be proper rather than as an aggravation of the charge of driving without a license as proposed by Mr. Land.
MOTOR VEHICLES-Drivers Licenses
Revocation of drivers license for bond forfeiture where operator charged with driving under influence of intoxicating liquor is mandatory whether forfeiture occurred in a State or a municipal court.
March 2, 1962
Captain J. W. Armstrong Supervisor, Bureau of Safety Responsibility Department of Public Safety
In response to your letter requesting my opinion as to the legality of your revocation of a drivers license because of a bond forfeiture for the offense of driving under the influence of alcohol, which bond was forfeited by the Recorder's Court of Decatur, this is to advise that I have examined the applicable statutes and cases on this subject and ~ave concluded that you exercised the proper function of your office In taking this action.
It is well settled that where a single act is committed within a municipality which violates a State law as well as a city ordinance, the State law supersedes the city ordinance and a conviction based on the city ordinance is void.
It is admitted without dispute that the Recorder's Court of Decatur is not properly vested with authority to try State offenses and further that driving under the influence of intoxicating liquors is a State offense. However, the language of Paragraph (a) of Section 7 (a) of the Act as found on page 556 of Georgia Laws 1956 to the effect that "upon ... forfeiture of a bond of any of the following offenses of an operator by or in any court it shall be mandatory upon the Director to revoke said license for a period of three years" is conspicuously !acking in the restricting phrase "of a competent jurisdiction" which Is found in other Sections of the Act.

314
In view of the fact that law enforcement is the responsibility of municipalities as well as State officials, it is inconceivable that the Legislature intended offenders within a municipal corporation to have preferential treatment to those apprehended outside corporate limits. It is not within the province of the usual arresting official, nor should it be, to determine what is and what is not a State offense. This is done by the Recorder in municipal courts who is an ex-officio committing magistrate with power to determine from the evidence before him whether the offense is State, requiring a binding over, or municipal. The accused who does not appear and forfeit the bond which has been given to him for his convenience should not be able to profit through his own defalcation. In practice, without an appearance of the accused there is no determination of the type of case pending for no evidence is usually taken by the magistrate.
Further, the Act defines the term "hazardous offense" as any law, ordinance, regulation, etc., indicating that it contemplates the existence of a court in the nature of a Recorder's Court. The Act also provides for revocation for similar offenses in other States. Must the Director then determine from the reports he receives from jurisdictions other than Georgia whether or not the offense is State or municipal and thus if the bond was forfeitured by the proper court? I think not.
I have found no case which covers this exact situation. However, I think the legislative intent is clear that revocation for bond forfeiture for certain offenses, driving under the influence among them, is mandatory whether the bond forfeiture occurred in a State or municipal court.
MOTOR VEHICLES-Drivers Licenses
Discussion of expiration dates of drivers licenses.
November 9, 1962
Colonel H. Lowell Conner Director, Department of Public Safety
You have asked for my official opinion concerning the expiration date of five year drivers' licenses issued prior to the enactment of House Bill No. 39 (Georgia Laws 1961, page 434), which Act changes the fixed annual expiration date of March 31 to the licensee's birthdate.
Specifically, you asked whether the licenses that were issued for a five year duration and having a fixed expiration date of March 31, expire on the individual's birthdate or on -the expiration date shown on the license itself.
Although the legislative intent is not made absolutely clear, it is my opinion that the language of the Act to the effect that licenses to be issued in the future or to be renewed shall expire "on the birthdate

315
of the holder of such license for expiration" must be construed to mean that the expiration date of these five year licenses is either March 31 of the year shown on the license or the person's birthdate, whichever date comes later.
The practical effect of this ruling would be that license holders whose birthdate falls between January 1 and March 31 of the year shown on the license would hold a valid license until March 31 of the year shown, at which time a renewal would be required. The expiration date of the renewed license would be the licensee's birthdate. License holders whose birthdate falls after March 31 of the year of expiration would have a valid license until their birthdate in the year of expiration as shown on their license, at which time they would have to obtain a renewal. It is readily seen that those license holders whose birthdate precedes March 31 will be short-changed to a certain extent in that their renewal license issued by March 31 will expire at a date somewhat less than a full year, while those whose birthdate falls after March 31 are in position to gain time, as much as nine months for those whose birthdate is December 31. However, discrepancies of this kind are to be expected in order to accomplish the changeover from a fixed calendar date of expiration to an expiration date as determined by the holder's birthdate.
It is possible that in anticipating the effective date of this new Act licenses issued or renewed during the year 1962 have had the birthdate of the holder as the expiration date, rather than March 31, 1963, for one year licenses and rather than March 31, 1967, for five year licenses. Even though the effective date of the new Act is not until January 1, 1963, there should be no legal quarrel in this since you, as Director of the Department of Public Safety, have broad regulatory power in the licensing of drivers.
Although not specifically inquired about in your letter, it is apparent that the problem of the expiration date must be considered for those who are obtaining a license for the first time. Take for example an applicant whose birthdate is June 1 and who successfully fulfills the licensing requirements on May 1. Will the license as issued on May 1 expire one month later on June 1 or should it be issued so that it will expire on June 1 of the year following? Again, the intent of the Legislature is not crystal clear on this point, but I believe it can be assumed that the pre-existing regulation of your Department concerning the expiration date of a license where it falls short of or exceeds a full [welve month period would continue to be appropriate even under the anguage of the amended Section 5 of the Georgia Laws 1937, page 322.
To throw light on the opinion rendered herein, I call your attention to the following examples.
Example A. (A), whose birthdate is May 1, holds a five year license which he obtained in 1958. The expiration date shown on his license is March 31, 1963. Under the new Act (A's) license will be valid until May 1, 1963, at which time (A) must renew. The expiration date shown on (A's) renewed license will be May 1.

316
Example B. (B), whose birthdate is February 1, holds a five year license which he obtained in 1958. The expiration date shown on the license, March 31, 1963, is the expiration date of (B's) license. (B's) renewal, which he must obtain by March 31, will expire on February 1.
Example C. (C), whose birthdate is October 1, obtains a one year driver's license for the first time on May 1, 1963. The expiration date shown on (C's) license will be October 1, 1964.
Example D. (D), whose birthdate is March 1, is issued a driver's license during 1962, a period during which regulations were adopted by the Department of Public Safety in anticipation of the effective date of the new Act. (D's) license, as is shown on the license, will expire on March 1, 1963.
MOTOR VEHICLES-Drivers Licenses (Unofficial)
Procedure for appeal outlined where drivers license revoked by Director of Public Safety after forfeiture of bond posted on speeding charge.
November 30, 1962
Mr. Amos Davis Altoona, Pennsylvania
This office has received your letter requesting a copy of the Georgia laws pertaining to the operation of motor vehicles.
From the facts contained in your letter I gather that your client was arrested for speeding and posted a cash bond which he subsequently forfeited by not appearing at the time and place set for trial. When this happens the Director of the Department of Public Saftey has a discretionary power of suspension granted him by Georgia Code Ann., Section 92A-608, paragraph (c), which reads as follows:
" (c) Upon the first offense of violation of any hazardous motor vehicle law or ordinance, other than those specified hereinabove, which are subsequently disposed of as set forth .in the first paragraph of this section (i.e., upon conviction or plea of guilty or forfeiture of bond) the Director may in his discretion suspend the license of such operator for such period of time and under such conditions as he deems proper. It is further provided that when the driver's record of any operator indicates that said operator is a reckless or irresponsible or incompetent driver, the Director may take such necessary corrective action as he deems proper. The Director may formulate such rules and regulations, as to investigations, interviews, hearings, re-examinations or other procedures, as are required to administer the provisions of this sub-section."

317
As a matter of practice, the Director here exercises this Sub-section in the event the driver is charged with speeding fifteen (15) miles over the stated speed limit.
If the operator were a resident of this State, upon notice of his suspension he would be entitled to request a hearing before the Director, or some hearing officer appointed by the Director, in an effort to relieve the order of suspension. If the decision of the hearing officer were adverse, he would then have the right to appeal to either a superior court or city court in the county of his residence.
Inasmuch as the laws requested are quite extensive, it will not be possible for this office to furnish you a copy of all the applicable Sections. However, they are contained in Chapters 68 and 92A of the Georgia Code Annotated.
MOTOR VEHICLES-Drivers Licenses-Veterans
Korean conflict veterans entitled to free honorary drivers licenses are those who served at least ninety days, any part of which was between June 26, 1950 and January 31, 1955.
April 26, 1962
Colonel H. Lowell Conner Director Department of Public Safety
This will a~knowledge receipt of your letter requesting clarification of the "cut-off date" for service needed to be eligible for veterans' drivers' licenses under the provisions of Georgia Laws 1949, page 1152, as amended by Georgia Laws 1951, page 755.
The most recent expression of opinion from this office to which you refer in your letter was furnished Director Pete Wheeler of the Department of Veterans Service on October 10, 1961. Other opinions dealing with the same general subject matter are found in the 19481949 published Opinions of the Attorney General on pages 707 and 708.
The following is quoted from the opinion of October 10, 1961:
"The 1949 Act which originally provided for Honorary Driver's 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 Acts of Congress at that time which attempted to determine !he status or inclusive dates of the Korean Action. However, it Is evident that the Georgia Legislature intended to extend this

318
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." (Emphasis supplied)
A proclamation signed by the President, numbered 3080, on January 1, 1955, established January 31, 1955, as the terminal date of the Korean Conflict period. The beginning of the Korean Conflict period has been established as June 26, 1950. In the United States Code Annotated, Title 38, Section 1601, establishes eligibility benefits of the Korean Conflict Veterans as follows :
"An eligible veteran is any veteran who is not on active duty and who served on active duty at any time during the Korean Conflict and was discharged or released therefrom under conditions other than dishonorable and served on active duty for 90 days or more or was discharged or released from a period of active duty any part of which was served during the Korean Conflict for an actual service connected disability." (Emphasis supplied)
As is readily apparent, this language is practically identical to that as codified in Ga. Code Ann., Section 92A-401 (4). Therefore, it is the opinion of this office that Korean Conflict Veterans who served a period of active duty of at least ninety (90) days duration, any part of which was within the period June 26, 1950, and January 31, 1955, are entitled to free honorary drivers' licenses.
MOTOR VEHICLES-House Trailers (Unofficial)
Discussion of laws pertaining to mobile homes or house trailers.
December 19, 1962
Arvey, Hodes & Mantynband Chicago 2, Illinois
This will acknowledge receipt of your letter inquiring if we have written an opinion recently on the subject of the laws relative to mobile homes. In response we wish to advise that we have not had occasion to write any opinion on this subject. An opinion was written in 1957 with reference to motor vehicles operated in combination, haV ing to do with the length, weight, etc. However, the statutes have been amended since that date.
We have statutory provision with reference to registration and license of motor vehicles, which includes trailers. Code of Ga. Ann., 68-201. We also have a statute which was effective January 1, 1956, with reference to obtaining tags for trucks and trailers exceeding 3,000 pounds empty weight, to be obtained from the Motor Vehicle License

319
Unit of the Department of Revenue at the State Capitol. Code of Ga. Ann., 68-249. There is a provision with reference to trailers contained in Code of Ga. Ann., 68-704, which reads as follows:
"Trailers.-No such motor vehicle shall be operated over the highways with a trailer attached, unless such trailer shall be so attached to the motor vehicle drawing it as to prevent the wheels of such trailer from being deflected more than six inches from the path of the towing vehicle's wheels, except in turning curves in the highway, or in making turns in its operation. (Acts 1931, Extra, Sess., pp. 114, 116.)"
And the term "trailer" is defined in Code of Ga. Ann., 68-1501, as follows:
"(4) (a) Trailer. Every vehicle with or without motive power, other than a pole trailer, designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle."
The statute with reference to limitation as to the size of vehicle and weight load is found in Code of Ga. Ann., 68-405, the section having been revised by Acts 1956, p. 83. We are sure that you have access to this statute.
We find the term "house trailer" in Acts 1962, Vol. 1, p. 450, this being a statute with reference to revenue, and which is now found in Code of Ga. Ann., 92-2902 (7), and which reads as follows:
"House trailers, auto trailers and boat trailers whether pulled by a private automobile or a private truck other than truck trailers used as a common or contract carrier for hire. For house trailers, auto trailers, and boat trailers whether pulled by a private automobile or a private truck, not used as, or in connection with, a motor vehicle, truck or tractor used as a common or contract carrier for hire, the following:
(a) Weighing less than 1000 lbs.__________________________________________$ 5.00 (b) Weighing more than 1000 lbs.________________________________________ 10.00
You will observe that we have very little which may be considered as having been enacted for the purpose of regulating mobile homes or mobile home parks.

MOTOR VEHICLES-License Tags

License tag to be issued to Swedish Consul free of charge.

Mr. Jack Hodgkins ~eputy Revenue Commissioner
epartment of Revenue

January 10, 1962

This is in reply to your request for an opinion concerning the tax
exemption which is available to the Vice Consul from Sweden concerning license and registration fees.

320
The exemption in this matter is controlled by a treaty convention between the United States and Sweden defining the rights, privileges and immunities of consular officers proclaimed March 20, 1911. This treaty may be found in Volume 37, United States Statutes at Large, page 1479. Article III provides:
"Consuls-general, consuls, vice-consuls, deputy consuls-general, deputy consuls, and consular agents, citizens of the State by which they are appointed, shall be exempt from arrest except in the case of offenses which the local legislation qualifies as crimes and punishes as such; they shall be exempt from military billetings, service in the Regular Army or Navy, in the militia or in the national guard; they shall likewise be exempt from all direct taxes-national, state or municipal-imposed upon persons, either in the nature of capitation tax or in respect to their property, unless such taxes become due on account of the possession of real estate, or for interest on capital invested in the country where said officers exercise their functions, or for income from pensions of public or private nature enjoyed from said country. This exemption shall not, however, apply to consuls-general, vice-consuls, deputy consuls-general, deputy consuls, or consular agents engaged in any profession, business, or trade; but the said officers shall in such case be subject to the payment of the same taxes that would be paid by any other foreigner under the like circumstances."
Motor vehicle license plates should, therefore, be issued to the Vice-Consul from Sweden without charge provided he is a citizen of Sweden and the motor vehicle sought to be registered is his personal vehicle and not used in any independent business or trade.
MOTOR VEHICLES-License Tags (Unofficial)
Discussion of classification of motor vehicle license taxes into private and for-hire categories.
February 6, 1962
News' Field Office Charlottesville, Virginia
I have been requested by the Director of the Motor Vehicle Lice~se Unit to advise you generally with respect to your question concern!ng transportation of personal property in a U-Haul trailer, or similar vehicle.
The motor vehicle license laws provide generally for classification of motor vehicle license taxes into private and for-hire divisions. The license tags required of a for-hire operator are generally twice as expensive as the tax on private haulers. Anyone transporting property on the highways of this State for any consideration or reward whatso-

321
ever is classified as a for-hire transporter. A person may, of course, transport his own goods at his own expense in a leased vehicle and may, if he chooses, hire someone else to actually drive the vehicle.
Common and contract carriers, with certain established exceptions, are required to register in the State with the Public Service Commission. The United States Government requires registration of certain for-hire operators with the Interstate Commerce Commission.
There have been attempts from time to time to circumvent the laws and regulations concerning the transportation of property for hire and these attempts frequently involve purported lease arrangements. Such a subterfuge would, of course, not be recognized by the authorities in this State or the Federal authorities. In this connection, see the very recent case of United States of America v. Drumm, 82 S. Ct. 408, decided January 15, 1962.
I am sure that you understand that this is a very specialized area of the law and these comments are necessarily very general. Should you have any specific questions concerning this it may be to your advantage to consult your own attorney or some attorney who specializes in the transportation law.

MOTOR VEHICLES-License Tags (Unofficial)
Under "The Multi-State Reciprocity Agreement", Alabama-based taxicabs engaged in purely interstate commerce in bringing passengers over border not required to obtain Georgia licenses.

Mr. James E. Weldon LaGrange, Georgia

March 27, 1962

!' This is in reply to your letter concerning the purchase of Georgia Icense tags for taxicabs operating out of Lanett, Alabama, in discGharging and picking up passengers in the city limits of West Point, eorgia, and surrounding areas.

The motor vehicles in question are based in the State of Alabama and are properly licensed there. The laws of this State require that all rotor vehicles operating on Georgia highways must pay the license ax imposed by Ga. Code Ann., Section 92-2902. Code Section 92-2911 Pr.ovides that all non-resident persons or firms making more than two tCrips per month into this State shall pay the license fee provided. This ode Section has been construed in the case of Tower Trucking Comtany v. Forrester, 192 Ga. 87, as applying to the number of trips made Y the vehicle owner rather than the number of trips made by any specific vehicle.

b':'he use of Georgia highways by non-resident motor vehicles is the 8u Ject of reciprocal agreements made by and between the several

322
states for the benefit of the citizens of those contracting states. Both the State of Georgia and the State of Alabama are signers of "The Multi-State Reciprocity Agreement" which generally provides that Alabama vehicles properly licensed in Alabama and actually based in Alabama may come into this State without the purchase of Georgia license plates. However, when the use of Georgia highways is made in a purely intrastate undertaking, such as the picking up of a passenger in West Point and transporting that passenger t6 some other point in West Point or in Georgia, that vehicle must have a Georgia license plate affixed.

MOTOR VEHICLES-License Tags (Unofficial)

Florida resident basing automobile in Georgia pursuant to consultant contract with Georgia businesses must purchase Georgia license tag for vehicle in county in which vehicle based.

Mr. Owen McGovern, Jr. Ocala, Florida

May 22, 1962

This is in reply to your letter concerning the liability of your client, a Florida corporation, for the purchase of motor vehicle license plates in Georgia where your client bases a vehicle in this state pursuant to consultant work contracted for by Georgia businesses. Georgia Code Section 68-221 provides:
"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."

It is my opinion that this Code Section will apply to the situation

mentioned in your letter and that your client will have to purchas~ a

Georgia license plate. You have advised me that it would be a violatiOn

of Florida laws to have opinion was a result of

two current tags. However, a misunderstanding. I sugg

eIsat mthsaut ryeotuhacotnytoacu~r

the Honorable Inglis Love with the Florida Revenue Commission a

the State Capitol. Mr. Love is in charge of all matters concerning motor

vehicle reciprocity and as a Florida official, will be able to correctlY

advise you concerning this problem.

The Georgia license plate may be purchased at the Court Bou~e in any county in the State and your client should purchase his tag 1n

the county where he is basing his vehicle.

323

MOTOR VEHICLES-License Tags (Unofficial)

Residents of this State who have automobiles based in the State

must have a valid Georgia license tag or automobiles are subject to

seizure.

Dec~mber 6, 1962

Mr. Grady Traylor Chief of Police Douglasville, Georgia

This is in reply to your letter of December 5, 1962, concerning the application of the Georgia automobile license laws as they pertain to Georgia residents who purchase license plates in other states.

The Georgia Code, Section 68-201, provides:

"Every owner of a motor vehicle . . . shall, on or before the first day of April in every year, before he shall operate such vehicle . . . or within three days following the purchase of a new or unregistered vehicle . . . register such vehicle in the office of the State Revenue Commissioner, and obtain a license to operate the same for the ensuing year; . . ."

Georgia Code Section 68-214 provides:

"Any automobile operated in the State of Georgia after April 1, of that year, that does not have attached to the rear thereof a tag showing the payment of license for said year, said motor vehicle shall be stored at the owner's risk and expense by any law enforcing officer of the State of Georgia; Provided that where the owner of said vehicle does present to said officer, evidence that a tag has been ordered, and the purchase price thereof sent to the State Revenue Commissioner, but that said tag has not been delivered to said owner, then said owner shall not be subject to the penalty aforesaid."

You are authorized, therefore, to seize and impound vehicles owned by residents of this State which are based in this State and for which
no Georgia license plates have been issued.

MOTOR VEHICLES-License Tags-Dealers (Unofficial)

Dealer tags only authorized to be used on dealer's vehicles for purPose of demonstrating or transporting vehicles for sale or lease.

~rh..w_. L. Williams, Ordinary
1tf1eld County

May 16, 1962

ta T~is is in reply to your letter concerning Motor vehicle license gs Issued to dealers in new and used automobiles.

e G~orgia Code Section 68-213 provides that no dealer may use or p rrmt to be used, a dealer's number for private use on cars for hire

324
or other manner not provided for in that Section. This Section contemplates that a dealer number plate shall be attached to the dealer's vehicles for the purpose of demonstrating or transporting dealer's vehicles for sale or lease.
Code Section 68-9908 provides that any person violating the provisions of Chapter 68-2 relating to the licenses in operation of motor vehicles shall be deemed guilty of a misdemeanor.
MOTOR VEHICLES-Motor Common Carriers
All motor vehicles operated by motor common carriers under their certificates are subject to $25.00 license tag fee.
November 9, 1962
Honorable Crawford L. Pilcher, Chairman Georgia Public Service Commission
Thank you for your letter requesting an official opm10n as to whether or not a conflict exists between the $25.00 license tag fee prescribed by Code Section 68-623 and the $1.00 license tag fee prescribed by General Motor Carrier Rule 25(j) adopted by the Georgia Public Service Commission.
Code Section 68-623, the only provision of Code Chapter 68-6 prescribing a license tag fee, provides in part as follows:
"68-623. Every motor common carrier shall annually on or before January 1, as long as such certificate remains in force, or before the vehicle is put into use, as to a vehicle put into use during the course of the year, make application to the Commission for registration of all motor vehicles to be operated under said certificate, in manner and form as the Commission may rule or regulation prescribe, and shall pay to the Commission a fee of $25 for each vehicle for the registration of the same and the issuance of a permit or license to operate the same...." (Emphasis supplied.)
It is my understanding that from the enactment into law of Section 68-623 in 19311 until December 18, 1941, the Commission uniformlY charged a $25.00 license tag fee for all motor vehicles of motor corn mon carriers operated under their certificates of public convenience and necessity issued by the Commission. On the latter date, the Co_rn mission initially adopted General Motor Carrier Rule 25(j) wh1ch exempted motor vehicles operated by motor common carriers excltl sively in certain pickup and delivery service from the $25.00 license
1. Section 18 of an Act, approved August 27, 1931 (Ga. Laws, 1931, pp. 199, 207).

325

tag fee.2 The Rule, through several amendments, has presently evolved into the following language:
"(j) Sub-sections (f) and (g) of this rule prescribing the payment of an annual registration fee of $25.00 on each motor vehicle shall not apply to motor vehicles operated by motor common carriers exclusively in pickup and delivery service and local intra-area service within the commercial zones and terminal areas of all stations located on the routes described in Class "A" Certificates or Class "G" Permits and which are not operated over the routes described in the certificates or permits held by such motor common carriers, but the Commission will issue license plates without the payment of fees upon the registration of such motor vehicles with the Commission by motor common carriers; Provided, however, that the Commission will require the payment of a fee of $1.00 to cover the cost of purchasing and issuing each license tag applied for."

In construing Section 68-623 and Rule 25(j) together, we find a definite conflict. The reach of the $25.00 license tag fee is all inclusive
of the motor vehicles operated by motor common carriers under their certificates and tolerates no exception of the nature described, by Rule 25(j).

Furthermore, we should note that the administrative interpreta-

tion reflected by Rule 25(j) has no effect upon the meaning of Section

68-623 because such Section is so plain and unambiguous as to leave no

Possible room for judicial interpretation, and in such case an adminis-

!rative body cannot change the law by any rule or regulation. Admin-

Istrative interpretation is an available aid and may be considered by

the courts only where the language of the statute is ambiguous and

susceptible of more than one reasonable interpretation. State Revenue

Commission v. National Biscuit Co. (1934) 179 Ga. 90(2), 99(2), 175

~8o.Em.m3i6s8s.ioSnee(1a9l3s4o):

Standard Oil Co. of 179 Ga. 371, 376, 176

Kentucky v. S.E. 1; Elder

State Revenue v. Home Build-

Ing and Loan Association (1939) 188 Ga. 113 (2), 115 (2), 3 S.E. 2d 75;

S49u6tt(l4e)s,v5.1N5 o(4rt)h, w19esSt.eEr.n2Md u3t9u6a;l

Life Insurance Co. (1942) and Code Section 89-903.

193

Ga.

495,

-5 -~f

(I~nodveiewSeocftitohnes6e8a-6u2th3orniutilelisf,ieist

is my opinion that the clear the conflicting provisions

mandate of Rule

J), and that all motor vehicles operated by motor common carriers

2 Common Minutes, Vol. 15, p. 508. It is interesting to note that

Commissioner Knight dissented from the adoption of the Rule on the ground, in effect, that it conflicted with Section 1 ~ o the H!~.l Act (Code Sec. 68-623). Also, we sh""JJ 11uLe tha~ t?e promulgatiOn

Of the Rule was prediP-=li-oJ Assistant AttorneY General

upon a sketchy opmwn rendered by Linton S. J<_>h~son on December .ro,

1011, whv wct::s wen assi_g-ned to the CommiSSIOn. Upon my appomt-

ment to the office of Attorney General in 1945, I prohibited the

Practice of assistants rendering opinions to the heads of the State

Departments without my approval.

326
under their certificates are subject to the $25.00 license tag fee. It is my further opinion that the Commission was justified in relying upon the advice, although fallacious, of the attorney assigned to it in 1941,3 However, in the future the Commission should comply with the views here expressed.
MOTOR VEHICLES-Weight and Size Restrictions (Unofficial)
Discussion of fines applicable to violation of laws governing motor vehicle weight and size restrictions.
August 16, 1962
Miss Jewell Johnson Ordinary, Warren County
You have requested that I advise you of the maximum and minimum fine which may be imposed under Georgia Laws 1960, p. 1107, (Georgia Code Ann., Section 68-9921) relative to maximum allowable weight of motor vehicles.
The 1960 Act purported to amend Ga. L. 1941, p. 449, as amended by Ga. L. 1956, p. 83. Section 3 of the 1956 Act is the first expression by the General Assembly that the violation of the Act is a misdemeanor and further provides a minimum fine of $25.00, or in the alternative, a greater minimum fine based upon the extent of excess weight.
The 1960 Act purports to change the minimum fine from $25.00 to $40.00 or, in the alternative, a minimum fine in excess thereof based upon the extent of the excess, and further provides that the minimum fine shall be the $40.00 or the fine based upon excess weight, which ever shall be greater. Thereafter provision is made for the distribution of the proceeds of such fines.
There are serious questions concerning the 1956 Act in that Section 2 thereof and the title thereto show that an amendment to a Section of the Supplement to the Code of Georgia is purported to be enacted. It is basic that there is no such Supplement in existence and that the Code of 1933 and the statutes enacted subsequent thereto contain the laws of this State except as to those laws not specifically repealed by the adoption of the 1933 Code. (Code 102-101.)
Too, there is the question of the sufficiency of the title to the 1960 Act in that no mention therein is made of an intent to change the minimum fine from $25.00 to $40.00 unless the phrase "and for other uurposPR" be construed to be broad enough to include that change. In thn; c~mn~ction, set: .h1~~"1" HI. .Section VII, .Paragr.aph VIII of th~ Constitution (Ga. Code Ann., ~-.t~OI2). and m particular, the an~0 ~::ttions under the catchwords "And for other Purposes." No opinloll IS expre::><>cd herein as to the sufficiency of the ~;+1., t.n the 1960 Act
3. Par. II, Sec. X, Art. VI, State Constitution (Ann. Code Sec. 2-4502); Code Sec. 40-1602(1) (4) ..

327

Assuming, but not deciding or conceding, that the 1960 Act now controls as to the minimum fine that may be imposed in such cases, I am of the opinion that the minimum fine is as specified therein, to wit: (Ga. L. 1960, p, 1107, at p. 1108.)

"... Provided, however, that the fine imposed for any such violation shall be forty dollars, or one cent per pound for the first one-thousand pounds of excess weight, plus two cents per pound for the next two thousand pounds of excess weight, plus three cents per pound for the next two thousand pounds of excess weight, plus four cents per pound for the next three thousand pounds of excess weight, plus five cents per pound for all excess weight above eight thousand pounds, whichever
may be greater...."

The 1960 Act provides that the violation of the Act shall be a mis-

demeanor and upon conviction, punishment to be as provided by law.

After this provision, the minimum fine provisions quoted above are

enumerated.



Code, 27-2506, as amended, particularly by Ga. L. 1957, p, 477, provides the punishment for misdemeanors except where otherwise provided. That Section reads:

"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."
In Curtis, et al. v. The State, 102 Ga. App. 790, headnote (9), the Court of Appeals said:

"9. In misdemeanor cases, unless otherwise provided, the punishment is as provided under Code Section 27-2506. However, where a statute makes penal certain acts which do not otherwise constitute a crime, and prescribes the manner of punishment for such acts, the special statute and not the gen-
eral law is controlling as to the limits of such punishment. . . ."

Lee v. State, 103 Ga. App. 161, is a later case of one of the defendafnts in the Curtis case. This case dealt with the validity and legality 0 the sentences imposed upon the defendant by the lower court.

From the above, and applying the rule enumerated and defined by

hhe Court of Appeals in the Curtis case, and subject to the conditions

~retofore mentioned, I am of the opinion that the maximum fine that

m$ 4r~g.h00t ;boer

imposed (2) the

for fine

a violation of the Act is the greater of: (1) computed upon the formula based upon excess

Werght,

t . No opinion is expressed herein or to be implied from anything contnded herein as to whether any punishment other than the fine specire nray be imposed for a violation of the Act.

328

MOTOR VEHICLES-Weight and Size Restrictions
Two trucks being towed in saddle-mount operation, not being used to transport persons or property, are not "vehicles" within meaning of weight and size limitations in Georgia Code Ann., Section 68-405.
August 27, 1962
Honorable Lowell Conner, Director Department of Public Safety
This will acknowledge your request to be advised if carriers interested in double saddle-mount driveway operations into and through Georgia can legally conduct such operations.

Pertinent Code Sections-
The specific phrase with which we are concerned is first found in Georgia Laws 1941, at p. 450 (codified as Ga. Code Ann., 68-405). The general topic covered is "limitations as to size of vehicle and weight of load." The specific phrase is ". . . combinations of vehicles which consist of not more than two units, and, when so combined, shall not exceed a total length of fifty (50) feet. . . ."
We are also concerned with Georgia Laws 1927, p. 226, at p. 227 (Ga. Code Ann. 68-101) which says "Vehicle-any contrivance used for transportation of persons or property on public highways."
The first comprehensive statute enacted on this subject was Georgia Laws 1910 p. 90, et seq. The caption of this Act reads "An Act to regulate the running of automobiles, locomobiles and other vehicles and conveyances of like character."
The second comprehensive Act dealing with the subject is found in Georgia Laws 1915, Extra. Sess., p. 107. The caption to this Act says "An Act providing for the annual registration and identification ~f motor vehicles and motor cycles; regulating their use upon the pubhc streets and highways of this State. . . ."
The Act of 1927, p. 226, wherein the two relevant Code Sectio~s was an Act to amend the 1915 Act. The caption of this Act state~ In part ". . . to provide for traffic regulations; to regulate the s1ze, weight and type of wheels of certain vehicles... .''

The caption of the 1941 Act wherein the restriction against com-

binations of vehicles is first found, states "An Act governing and

regulating the use of the public roads and highways of this State . .

by vehicles and parts of vehicles . . ."The 1941 Act was amendedhln

1951, (Ga. Laws phrase intact bu

t1u9p5p1e, dp.c7o7m2b, iantedp.m7a7x4i)m. Tuhmisleanmgethndfmroemnt4r0ettaoin45edf~tet.e

In 1955 the Act was amended but not the particular section with wb1chd

we are concerned. Georgia Laws 1956, p. 83 repealed and supersede.

the section containing the phrase dealing with combinations of vehi

cles, however, the phrase as originally found in the 1941 Act was

carried forward into the 1956 Act with the exact same wording but

the overall maximum length was upped to 48 feet. Georgia Laws 1959,

329

p. 27, re-enacted the section in the same wording and upped the overall length of combinations of vehicles to 50 feet.

Citation of Authorities-
In construing a statutory provision, it goes without saying that the cardinal rule is the substantive intent of the Legislature. In the case of Smeltzer v. Atlantic Coach Company, 44 Ga. App. 53. In arriving at the intent of the Legislature, a specific phrase or Act is not to be lifted out of the context but is to be construed in the light of other statutes, the common law, the Constitution and relevant cases. Thornton, et al v. Anderson, Executrix, 207 Ga. 714.
It is also permissible to consider legislative history. Johnson v. Johnson & Company, 47 F. Supp. 650. Subsequent statutes on the same subject may be considered. Forrester v. Continental Can Company, 67 Ga. App. 119.
The phrase "combinations of vehicles which consist of not more than two units" has been carried forward intact through three separate amendments. The Act of 1941 wherein it first appeared states in Section 6 (Ga. Laws 1941, p. 452) "the provision of this act not in conflict with or superseding existing laws are declared to be cumulative to the laws of this State regulating the use of highways and public roads of this State." It thus appears that the Act incorporating this restriction was cumulative to the Act of 1927 at page 227 which defined the word "vehicle."
Many other sections of the law dealing with automobile taxes, automobile license plate fees and automobile fuel taxes and maintenance taxes also use the words "vehicle" and "motor vehicle." Georgia Laws 1937-38, Extra. Sess., at p. 259, et seq., levied certain tag or license taxes. This Act contained certain definitions, one of which was "motor bus." In thus defining "motor bus" the 1937-38 Act used the word "vehicle." The then State Revenue Commissioner contended that the definition of the word "vehicle" was given by Georgia Laws 1927, p. 227, (Ga. Code Ann., 68-101) which is the definition we are here concerned with. The matter was litigated in the case of Thompson, ~ommissioner v. Georgia Power Company, 73 Ga. App. 587, wherein It was held that the definition of "vehicle" given in 68-101 was not controlling in applying the subsequently enacted tax statute. This case appears to be sufficient authority for the proposition that the definitbi?n given of the word "vehicle" in 68-101 is not a general definition Inding in all cases but rather that each case must be viewed separately.

Georgia Laws 1953, Nov. Sess., at p. 556, et seq., enacted what pur-

Ported to be the "Uniform Act Regulating Traffic on Highways." This

.Act specifically stated that of the sections not affected by the enact-

ment that the section dealing with weight and size limits (the one

containing the restriction on combinations of vehicles) was not re-

Realed or affected. However, this 1953 Act does give a definition of

l

vehicles" and 01 enacted in

when 1927,

compared to the previous definition it tends to shed some light on the

given in extent of

68the

330
originlll definition in 68-101. The 1953 definition extended the definition of "vehicle" to include not only devices used for transportation of persons or property but also those devices upon which persons or property may be transported. It thus appears that the Legislature .was fully aware that the definition of "vehicle" as given in 68-101 required that the device actually be used to transport persons or property in order to fall within the statutory definition, for otherwise there would have been no need for the expanded definition in the 1953 Act.
There is a line of cases which holds that the use of a public road is a common law right. See Shell Oil Company v. Jackson County, 193 SW 2d 268. However, the use of public roads may be regulated under the police power of the State. See Ladd v. Lamb, 195 Va. 1073. Statutes in degradation of the common law are strictly construed. Watson v. Thompson, 185 Ga. 401. It would seem to follow that this restriction on combinations of vehicles being in degradation of the common law should be strictly construed.
Conclusions-
The Act which puts the restriction upon combinations of vehicles (68-405) was declared to be cumulative of the other laws on the subject. It would follow that the definition given previously in 68-101 would be applicable. The definitions given in 68-1501 were enacted in 1953 and though it gives a certain insight into the previous statutory definition, the definition given in 68-1501 is specifically stated not to be applicable to 68-405.
Therefore, it appears that the definiti.on given in 68-101 would be applicable to 68-405 which states the restriction on combinations of vehicles. The definition of vehicle given in 68-101 appears to contemplate that the device must itself be used to transport either persons or property to fall within the statutory definition of "vehicle."
Therefore, the conclusion is that since the two trucks being towed in a saddle-mount operation are not being used to transport persons or property that the two trucks being towed are not "vehicles" within the meaning of the limitation of 68-405. It appears that the two trucks being towed are in fact the load upon the towing truck.
What Is Not Covered by These Conclusions-
The many various code sections imposing license fees, maintenance or occupation taxes, motor fuels taxes and the various laws defining motor common carriers and other for hire carriers all use in one sense or another the term "vehicle." The conclusions reached in this memorandum are not intended to touch or define the meaning of the word vehicle as used in any code sections of this nature. The conclusion drawn as to the meaning of the word "vehicle" is expressly intended to be limited to the use of that word in Code Section 68-405;

331

MUNICIPAL CORPORATIONS-Annexation (Unofficial)
Extension of corporate limits of municipality is exclusively a power of the General Assembly.

Honorable Griffin Patrick, Jr. City Attorney, City of College Park

March 29, 1962

This will acknowledge your letter asking for our interpretation of
House Bill No. 1081, enacted at the 1962 Session of the General Assembly, and which Bill was approved by the Governor on February 27, 1962. In your letter you called to our attention that the City of College Park lies partly in Fulton County, which county has a population in excess of 100,000, and partly in Clayton County, which county has a population of less than 100,000. Under the terms of House Bill No. 1081 it does not apply to any municipality within a county having a population of 100,000 or more, etc. Your question is whether the City of College Park can annex property in Clayton County adjacent to its city limits where it follows the procedure outlined in the Act. Stated differently, the question is whether the City of College Park is excluded from the provisions of said Act because of the fact that a portion of said city lies within Fulton County, which county has a population of more than 100,000.

If the Act under consideration provided that it shall not apply to any municipality either wholly or partly within a county having a population of 100,000 or more, then the interpretation would present no problem. The General Assembly could easily have used such language and their failure to use such language leaves us with the provision that the Act shall not apply to any municipality within a county having a population of 100,000 or more. It may be argued that the City of College Park is not a municipality within Fulton County. Certainly it is not a municipality exclusively within Fulton County. It is a municipality within two counties, namely Fulton County and Clayton County. We do not find, however, that this question has ever been interpreted by the Court of this State, and we do not know of any other instances where the question may ever arise. There may be other municipalities in the State whose corporate limits include portions of two counties, but without any more review we do not know of them.

You, therefore, may be willing to take the position that House Bill
No. 1081 does not apply to the City of College Park because you are not
a municipality within a county, this being the exact language of the ~tatute. However, it is a matter which may of necessity have to be Interpreted by the Courts.

You may also wish to give consideration to the provisions of Code of Ga. Ann., Sec. 69-901, which have been held unconstitutional by the decision of the State Supreme Court in the case of Dupree v. City of Marietta, 213 Ga. p. 403 (2). You will note that this decision goes on
to refer to a 1953 Amendment of the Charter of the City of Marietta, and this portion of the decision is quoted in its entirety, as follows:

332
"The 1946 act (Ga. L. 1946, p. 130; Code Ann. Supp. Sec. 69-901), purporting to authorize annexation of property within corporate limits of cities by ordinance, is an unconstitutional attempt to delegate legislative powers, and is void. The proceedings under that void act, undertaking to incorporate the lands here involved within the city, were void and without effect. But, by the 1953 amendment of the charter of the City of Marietta (Ga. L. 1953, Nov.-Dec. Sess., p. 2267), that inclusion was ratified and the area in which the proposed street is located was expressly included in the city, and it is now lawfully a part of the city and is subject to condemnation in a proper case by the city for street purposes." (Emphasis added.)
The above decision goes on to refer to the constitutional inhibition against delegating legislative powers and says that the matter of fixing municipal corporate limits is strictly legislative, and it was beyond the power of the General Assembly to delegate its exclusive power to alter the corporate limits of the City of Marietta in the manner provided by the Act and pursued in reference to the land here involved.
Your attention is also called to the provisions of Code of Ga. Ann., Sec. 69-1008, which is the codification of Acts, 1951, p. 116, Sec. 3 (j). This is a part of the Act known as the Municipal Home Rule Act. Sec. 3 (j) of the Municipal Home Rule Law was rewritten in its entirety by Acts, 1952, p. 46, Sec. 6, approved February 8, 1952. Following this enactment, however, in the case of Phillips, et al v. City of Atlanta, et al, 210 Ga., pp. 72, 77, Sec. 3 (j) of the Home Rule Act was declared unconstitutional and void. Please note the language found on page 77 of this decision outlining the only procedure by which power to legislate, to extend corporate limits of municipalities, can be delegated by the General Assembly.
You may, therefore, wish to give consideration to the question whether House Bill No. 1081, approved February 27, 1962, might at some future date be held to be unconstitutional.
MUNICIPAL CORPORATIONS-Bond Issues
Municipal bond money cannot be legally spent on improvement or conversion of existing building located on private property for construction of public fall-out shelters.
July 5, 1962
Mr. Henry G. Neal Assistant Attorney General Executive Department.
We wish to acknowledge receipt of copy of your letter to the Honorable Steve Knight, Mayor of the City of Columbus.
We have today discussed with the Mayor of Columbus over the telephone the problems which he raised in his letter to you under date

333
of June 25, We called to Mayor Knight's attention Code Section 2-6001 which provides that debts may be incurred by a municipal corporation with the assent of a majority of the qualified voters of the municipality voting in an election for that purpose.
We also cited to him the case of McKnight v. City of Decatur, 200 Ga., p. 611, which holds:
"... in order to authorize a proposed bond issue, a majority of those actually voting shall vote in favor thereof."
We advised Mayor Knight that in our opinion, based upon a cursory search of the law, it would not be legal to spend municipal bond money for the improvement or conversion of existing buildings located on private property for the construction of public fall-out shelters. We based our advice in this connection upon Code Section 2-5402 and Code Section 2-5801, and upon the ruling of the Supreme Court of Georgia, in the case of Beazley v. DeKalb County, 210 Ga., p. 41.
We will be glad to work with Mr. Lennie Davis, the City Attorney of Columbus, and Mayor Steve Knight in giving them any assistance in connection with their proposed bond issue.
'
MUNICIPAL CORPORATIONS-City Officials (Unofficial)
City Commissioner of Toccoa cannot simultaneously hold office of City Building Inspector.
March 27, 1962
Honorable Winston Owen Toccoa, Georgia
We are in receipt of your letter in which you ask our views on the propriety of one of your City Commissioners also serving as the BuildIng Inspector of your City.
We note that your City Charter, Acts 1924, pp. 725, 760, does not confer upon the Board authority to elect one of its members as such Building Inspector. You refer to the case of Board of Lights and
Waterworks et al v. Dobbs et aJ, 151 Ga. 53, in which case express
~~thority was provided in the Charter of the City of Marietta authorizmg the Mayor to act also as Treasurer of the Board of Lights and Waterworks of which he is ex officio member.
Please note the provisions of Code of Ga. Ann., 69-201, which reads as follows:
"69-201 (886) Councilman incompetent to hold other municipal office, when.-A Councilman or an alderman of a municipality shall be ineligible to hold any other municipal office during the term of office for which such councilman or alderman was chosen, unless first resigning as councilman or alderman before entering such other office, this section shall apply

334
to all elected officials to a municipality. Any such councilman or alderman may if otherwise qualified resign such present position and run for any other city office for which he or she is qualified. (Acts 1889, p. 181; 1895, p. 79; 1899, p. 26; 1957, pp. 97, 98.)"
Also, please note the provisions of 62 CJS, 707 which provides that: "Any limitation imposed by law on the authority of a municipal corporation to appoint employees must be observed."
It appears, therefore, that there being no provisions in the Charter of the City of Toccoa authorizing a City Commissioner to also serve as Building Inspector, and this also being specifically prohibited by the general law on the subject, there would appear to be no basis for this action to be taken. Of course, you are familiar with the prohibition against holding a plurality of county offices found in Code of Ga. Ann., 89-103, which while not necessarily pertinent in this instance, may nevertheless be given consideration.
MUNICIPAL CORPORATIONS-City Officials (Unofficial)
City official not prohibited from membership on Baldwin County Democratic Executive Committee.
March 29, 1962
Honorable Jere N. Moore, Secretary Baldwin County Democratic Executive Committee
Unless there is some provision in your City Charter prohibiting the same, we do not know of any reason why a city official should not be eligible also to hold membership on your County Democratic Executive Committee. The law regarding primary elections is found in Code of Ga. Ann., Part VI., Chapter 34-32, and the method of conducting elections, the oath of members, and other provisions may be found in Code of Ga. Ann., 34-3201. We find that Acts 1952, p, 2422 provides that members of an executive committee of any political party or organization which may nominate candidates for political office, by primary or otherwise, shall be ineligible to hold other public office in, or be employed by any county having a population of more than 300,000 according to the last or any future Federal census. Employment or holding office in any political subdivision within such countY is also prohibited. This 1952 Act, of course, does not apply in Baldwin County but it does illustrate the necessity for such a law in order to make members of an executive committee ineligible to hold other public office.

335
MUNICIPAL CORPORATIONS-City Ordinances (Unofficial)
City police may arrest sheriff of county for violation of city ordinances.
March 8, 1962
Honorable William A. Zorn City Attorney Jesup, Georgia
This will acknowledge your letter asking if the municipal police department has authority to arrest and jail the sheriff of your county on charges of violation of city ordinances, including the charge of public drunkenness. We have examined the Charter of the City of Jesup, Acts 1937-1938, Extra Session, page 1142, and the amendment to the charter in Acts 1955, p. 2508, and we have also reviewed the provisions of Code of Ga. Ann., Chapter 69-70 covering corporate, police and mayor's courts. There is also a provision regarding jurisdiction of municipal courts found in Code of Ga. Ann., 92A-501. The term "public drunkenness" as used in your letter apparently is defined in Code of Ga. Ann., 58-608, which defines drunkenness in public places and extends authority to municipal corporations to pass laws to punish drunkenness or disorderly conduct within their corporate limits. You will note by examination of this section the treatment given to the term "public street or highway."
It is noted that in your letter you use the plural in use of the word "ordinances", after which you mention "including the charge of public drunkenness." We assume, therefore, that you are not asking us to review and advise you regarding the validity of your municipal ordinances, but that you only ask if the police department has the authority to arrest and jail the sheriff. The subject of arrest is covered in Code of Ga. Ann., Chapter 27-2. Examination of this section discloses that members of the General Assembly are free from arrest during their attendance on the General Assembly. Militiamen are privileged from arrest during their attendance at drills, parades, etc. Electors in certain instances are privileged from arrests during their attendance on elections. This exemption is also found and quoted in Code of Ga. Ann., 2-901 and the exemption of members of the General Assembly is also f?und in Code of Ga. Ann., 2-1903, these being constitutional proviSIOns. We do not find any provision of State law to exempt a sheriff from arrest. Please note Code of Ga. Ann., 27-209 from which we quote: "An arresting officer may arrest any person charged with crime, . . ." Also note that there is ample authority to arrest without a Warrant. Code of Ga. Ann., 27-207.
The subject of arrest on criminal charges is treated in 6 CJS, Arre~ts, Section 1, and in Paragraph 2 it is said: "Any person capable of a cnme is also liable to arrest." Following which we find in Paragraph 3 covering privileges and exemptions that "exemption from arrest is Inerely a personal privilege, it may be waived, and where a party goes hn trial without claiming his privilege from arrest by plea or motion
e waives his privilege." We would conclude, therefore, that a munici-

336
pal arresting officer has the authority to arrest a person, including even the sheriff of the county, within the corporate limits of the city, on a charge of violation of city ordinances, including the charge of public drunkenness.
MUNICIPAL CORPORATIONS-Contributions (Unofficial)
Municipal corporations are prohibited from contributing, paying dues or otherwise donating to private corporations.
July 3, 1962
Honorable Robert Y. Thornton Attorney General State of Oregon
I have received your request for information as to any limitations on the power of cities, counties, or municipal corporations to pay dues, donate or contribute to private nonprofit organizations.
A portion of our Constitution of 1945, Article VII, Section V, Paragraph I (Code Ann., 2-5801) deals with this subject almost directly, and reads:
"The General Assembly shall not authorize any county, municipal corporation or political division of this State, through taxation, contribution or otherwise, to become a stockholder in any company, corporation or association, or to appropriate money for, or to loan its credit to any corporation, company, association, institution or individual except for purely charitable purposes. This restriction shall not operate to prevent the support of schools by municipal corporations within their respective limits."
The above has been interpreted by the courts many times, but each individual case must be examined in its own light. I cannot give you a concrete rule for evaluation of this Section. Typical of these decisions is Town of Adel v. Woodall, 122 Ga. 535 (50S. E. 481), which held the above constitutional provision prohibited a city from even indirectly making a donation by compensating citizens who had donated; and Williamson v. Housing Authority of Augusta, 186 Ga. 673, (199 S. E. 43), which held a housing authority law establishing a housing co-operative to be supported by a city was not violative of this constitutional prohibition. As a matter of interest, for purposes of creating or supporting county or city industrial development authorities and co-operatives, certain amendments to this constitutional provision have been enacted.
We have certain other constitutional provisions which could prohibit any favoritism or benefit to corporations, companies or associations by either municipal corporations or the State. Among these is

337
the latter portion of Article VII, Section I, Paragraph I (Code Ann., 2-5401), which provides:
"The power to tax corporations and corporate property, shall not be surrendered or suspended by any contract, or grant to which the State shall be a party.''
Other similar Sections may be found throughout our laws and Constitution.

MUNICIPAL CORPORATIONS-Financing of Improvements (Unofficial)

Discussion of bond issue for purpose of financing certain improvements, the proceeds of which were insufficient to defray the cost of the improvements.

May 22, 1962

Honorable T. J. Elliott, Jr. City Manager Forest Park, Georgia

This will acknowledge your letter with reference to bonds issued by Forest Park for fire stations, water towers and street improvements, and it appears that you invited bids for construction of fire stations and the low bidder was $51,000.00 more than the available funds. You appear to be debating if the city can be its own general contractor and construct these buildings itself, and if you decide to do so, you ask the question if the Mayor and Council individually are responsible for the excess of expenditures. You also ask the question if the city should have a performance bond written against itself to insure the final cost.

. Your letter poses a number of questions and you do not give us any Information with reference to the procedure under which your bonds were issued, or what representations were made to the voters when they were afforded the opportunity to approve the bond issue or issues. There is a statutory provision found in Code of Ga. Ann., 87-201, et seq., providing for election on issue of bonds by municipalities and
Your attention is called to the provisions of Chapter 89-8 of the Code, e~pecially Code 89-804, making the chapter applicable to municipali!les, which chapter has to do with officers accounting for public monles. Also see Code of Ga., 89-806, 89-809 and 89-816, and you will note that bonds are required of officers holding such monies. We assume that your Mayor, City Manager and Treasurer are covered by adequate bonds as is provided by law.

190W8, ep.h6a8v7e,

examined section 7,

the provisions powers of the

of your Mayor

charter and find in Acts and Aldermen, including

a~thority to "construct and maintain at such time as they may deter-

mme, water works, drainage and sewerage systems, lights and other

Inodern improvements, issuing bonds, when necessary." And the

arnendment to your charter found in Acts 1935, p. 1074, section 1,

338
again authorizes the time to issue bonds and to "use, manage, improve, sell, convey, ......." the property now belonging to the said town or hereinafter acquired. You appear to have ample authority to issue bonds and your City Attorney may advise you that you have authority to do construction work as outlined in your letter. We would be obliged to know more about your bond issues before further comment on this question. It is largely a matter of administrative determination by and with the legal advice of your City Attorney, who will have the onus of defending you in courts in the event some aggrieved citizen or taxpayer should take issue how you are conducting the affairs of the city.
Your City Attorney, of course, is familiar with the provisions of the State Constitution covering the limitation on municipal debts found in Code of Ga. Ann., 2-6001, and with the provisions of Code of Ga. Ann., 23-1702 and 23-1705, covering the mode of contracting in certain cases, and bond for public contractors, which includes municipalities. You will find provision in Code of Ga., Chapter 69-4 for street improvements in municipalities having population of 600 or more, and your attention is especially called to Code of Ga. Ann., 69-407 authorizing "as an alternative method, the governing body shall have the right at its option and in its discretion, to provide that the work necessary in making such improvements shall be done by the municipality itself", and this chapter includes in 69-417 provision for issuing street improvement bonds. We have the impression that this chapter was not utilized by you and would not be applicable to you.
Careful review should be made of the general law contained in Code of Ga. Ann., Chapter 69-2, and especially 69-208 covering personal liability of officers, and Code of Ga. Ann., Chapter 69-3 and especially 69-301 which reads as follows:
"Municipal corporations liable for what.-Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they shall be liable. (69 Ga. 542.)"
It would be for determination by the courts in each instance if the work proposed to be done by the municipality in performing legislative or judicial powers were ministerial in character, in which event the municipality would be assuming certain liability for improper or unskillful performance of such ministerial duties. If the municipality desires to do this work itself you, of course, may first give consideration to the amount of protection afforded to you by the bonds of your employees, and then determine if the municipality itself should or should not give bond for the faithful performance of the work and tdo insure the final cost. We are not sure if such a bond is available an you may wish to consult the surety companies in order to make this determination.
Whether the Mayor and Members of the Council are responsible for the excess of expenditures over and above the funds available fro!ll the proceeds of the bond issues is another question. Certainly your

339
Mayor, City Manager and Treasurer are under bond themselves although you do not say so in your letter.
We know of one municipality which issued bonds to build a city hall and a city auditorium. There was not enough money to do both. The city hall has been built, the city administration has changed hands three times and the auditorium has not yet been started. The bond money remaining has been invested in U. S. Government bonds pending a final decision on when to proceed, which we assume includes a finding on when sufficient money may be legally available with which to do the job.
If your low bid.for the fire stations is $51,000 more than the bond money available, this is apparently one yardstick available to you from which you may conclude that the job is going to cost you more money than is available from the proceeds of the bonds. Therefore, even if you conclude to do so, giving bond and doing the work yourself may not be your answer, and you may wish to give consideration to increasing your bonded indebtedness, or increasing your tax rate by an additional levy for the purpose of providing the funds which may be necessary in order to make the improvements which you contemplate.
MUNICIPAL CORPORATIONS-Loans (Unoffiical)
Cities may make temporary loans in certain circumstances and subject to constitutional limitations.
August 16, 1962
Honorable Robert E. Coker City Attorney City of LaFayette
This will acknowledge receipt of your request for my unofficial opinion regarding the authority of the City of LaFayette to make a temporary loan.
. The authority for municipalities to make municipal loans is found In Article VII, Section VII, Paragraph IV of the Constitution of the State of Georgia (Code, 2-6004.), which reads:
"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, pol~t-

340
ical 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."
From the above it would appear that the City would be authorized to make a temporary loan when the amount of the loan does not exceed 75 per cent. of the total gross income of said City from total taxes collected by said City in the preceding year; and provided further that such loan is made for current expenses ; and provided further that the loan is made in compliance with the provisions quoted above, and for the purposes enumerated therein.
NEGOTIABLE INSTRUMENTS-Money Order
Since the essence of commercial paper is negotiability, a money order drawn as a negotiable instrument is commercial paper.
July 12, 1962
Honorable Ben W. Fortson, Jr. Secretary of State
Thank you for your letter of today requesting an official opinion as to whether or not a money order, drawn in such form as to be a negotiable instrument, constitutes commercial paper within the meaning of Section 97-106(g) of the Code of Georgia, Annotated.1
In an opinion rendered to you on September 11, 1961, I ruled that "the essence of commercial paper is negotiability."
In view of such opinion and the authorities cited therein, it is mY opinion that a money order, drawn in such form as to be a negotiable instrument, constitutes commercial paper within the meaning of Code Section 97-106(g).
1. G~orgia Laws 1957, pp. 134, 150, as amended.

341
PARENT AND CHILD-Adoption (Unofficial)
Adult person being adopted may but is not required to change his name.
June 19, 1962
Honorable Mel Price Ludowici, Georgia
Your letter of June 5th has been received. The statute which you mentioned, being Acts 1941, p. 308, codified Code of Georgia Annotated Section 74-420, has not been the subject of review by any appellate court since its enactment and we do not find any changes in the statutory law with reference to procedure for the adoption of adult persons. It appears, therefore, that the question whether the name of an adult person being adopted is required to be changed to the name of the adult surname of the adoptor would be a matter of interpretation of the statute, and we do not have any decisions to follow or yardstick to apply except whatever general law may be applicable.
We are impressed with the provision of the Act that, "Thereafter the relation between petitioners and said adult shall be as to their legal rights and responsibilities, that of parent and child, but to all other persons the adopted adult shall stand as if no such act of adoption had been taken." It is self-evident that the neighbors and acquaintances and friends of the adult being adopted will not readily change his name in their relationships in daily or frequent contacts with him. It is noted that the statute refers to the name being changed at least three times but we find nothing specific in the statute saying that the name shall be changed, the provision being that "adult persons may be adopted and have their names changed." If there is good reason for the adult to be adopted, and for his name to remain the same as it is now, you may wish to present such fact to the court. On the other hand, we see no reason why the name should not be changed in the adoption proceeding by retaining the entire complete name of the adult being adopted, and by affixing thereto the name of the adopter. This may be the safer procedure to follow, because it Would certainly observe the statute and could not be said to constitute a failure to follow all of the provisions of the statute. The relationship 0~ Parent and child would be established so far as concerns their legal rights and responsibilities, and we feel that to all other persons the ado~ted adult would continue to be known by the name which he has earned during his lifetime.

342
PARENT AND CHILD-Adoption (Unofficial)
Discussion of consent necessary in various cases to adoption of child.
October 8, 1962
Honorable James W. Hunt Pontiac, Michigan
This will acknowledge your letter requesting that we advise you with reference to the Georgia law covering the formal requisites of a consent to adoption. You ask who must consent to an adoption and what officer, if any, is authorized to acknowledge such consent.
There is provision in Georgia Code Ann., 72-401, giving jurisdiction to the Superior Courts in all matters of adoption, except such jurisdiction as may be granted to the Juvenile Courts. Petitions for adoption are 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. The consent of the parents or custodian, or of a child of 14 years or older, is provided for in Code of Georgia Annotated, 74-403, and this entire section is quoted to you 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.

343
"(3) Illegitimate children.-If a child be illegitimate, the consent of the mother alone will 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.)"
You will observe that there is no provision for acknowledgment of a consent to adoption before any particular official except the above provision that the consent of the child 14 years of age or over must be given in writing in the presence of the court. Presumably this would be a matter of discretion of the court granting an adoption. We assume that you have no question with reference to the jurisdiction of your courts in such matters.
PARENT AND CHILD-Adoption (Unofficial)
Discussion of retention of records in adoption cases.
November 5, 1962
Mr. Ernest Hazel, Jr. Washington, Missouri
This will acknowledge your letter requesting advice with reference to the law in Georgia on the subject of adoption records and whether they are locked and not available for inspection by the general public.
The matter of adoption of children is provided for in Code of Ga.
Ann., Chap. 74-4 and the superior courts of the state have jurisdiction
otf such matters except in instances where jurisdiction may be granted 0 the juvenile courts. The matter of records, where kept, and examInation of such records is provided in Code of Ga. Ann., 74-419 which reads as follows:
"The original petition, all amendments thereto, and all de~rees or orders of any kind whatsoever, except the original Investigation report of the investigating agent as provided for

344
in section 74-410, 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. (Acts 1941, p. 307.)"
Our juvenile court law contains provision in Code of Ga. Ann., 242432 with reference to records, forms, privileged information, and publication of names of children in all cases brought before the juvenile court and this section is also quoted for your information.
"The court shall make and keep records of all cases brought before it and shall devise and cause to be printed such forms for social and legal records and such other papers as may be required. The court's official records shall be open to inspection only by consent of the judge to persons having a legitimate interest therein. All information obtained and social records prepared in the discharge of official duty by any employee of the court shall be privileged and shall not be disclosed directly or indirectly to anyone other than the judge or others entitled under this Chapter to receive such information, unless and until otherwise ordered by the judge. The name or picture of any child under the jurisdiction of the court shall not be made public by any newspaper or radio station except as authorized by the court."
"It shall be mandatory upon the judge of the juvenile court to release the name of any child who is under the jurisdiction of the court for a second or subsequent time. No person, firm or corporation shall be guilty of any offense for making public the name or picture of any such child. (Acts 1951, pp. 291, 309; 1957, p. 307.)"

345
PARENT AND CHILD-Change of Name (Unofficial)
Serviceman, citizen of Georgia stationed overseas, cannot submit to jurisdiction of Japanese Family Court in order to have his name changed without relinquishing his Georgia and United States citizenship but must petition Superior Court in county in which the name to be changed is recorded.
April 11, 1962
Captain Michael M. Lyons United States Air Force San Francisco, California
This will acknowledge your letter of the 2nd asking for our cooperation regarding the problem of a young airman in your command who wishes to know the Georgia law with reference to changing his name. It appears that the airman has a birth certificate which shows the name of his real father, and that he wants to change his name to conform to the name of his foster parents, which name he has used since his adoption, and is using now, as is clearly indicated in his military records.
Your question is whether, if the Japanese Family Court issues a decree changing his name, such decree will be honored in the State of Georgia. Your attention is called to the fact that the 14th Amendment to the Constitution of the United States includes the following language: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." Code of Ga. Ann:, 1-815. Also, there is a constitutional provision in the Constitution of the State of Georgia which provides as follows: "All citizens of the United States, resident in this State, are hereby declared citizens of this State...."
It is apparent that the young man is a citizen of the United States and probably a citizen of the State of Georgia, although he is now engaged in military service which takes him outside the continental limits of the United States for the period of his enlistment in the Air Force. It is assumed that he does not wish to relinquish his American citizenship. If this is correct the only way in which he could legally change his name would be by filing a petition in the Superior Court of the county where his citizenship in Georgia is a matter of record. There is provision in Code of Ga. Ann., 79-501, prescribing the mann~: of filing such a petition, and providing for publication of notice of f1hng and a hearing and judgment. This law was entirely rewritten by the State Legislature by Acts 1961, p. 429. It would be incumbent Upon the soldier to follow this law and obtain a decree of the Superior 9ourt of the County in the State of Georgia where his citizenship is, In order legally to have his name changed from the name which shows ?n his birth certificate. We do not find any basis whereby a procedure m the Japanese Family Court suffices unless the airman decided to relinquish his American citizenship, and become a citizen of Japan.

346
PARENT AND CHILD-Child Support (Unofficial)
Discussion of laws pertaining to support of dependent child.
May 10, 1962
Mrs. Mildred Baker Rome, Georgia
This will acknowledge receipt of a copy of your letter of May 8th addressed to the Governor of the State of Georgia and requesting information concerning obtaining assistance for your child.
This is to advise that the Solicitor General of the Rome Judicial Circuit, Honorable Chastine Parker, represents the petitioner in all cases under the Uniform Reciprocal Enforcement of Support Act, as well as being the prosecuting officer in all criminal proceedings in the Superior Court.
As to aid to dependent children, Ga. Code Ann., Ch. 99-9 enumerates the aid that is possible for children who are dependent. This program is administered by the Welfare Department.
Code, Ch. 88-1 relates to the authority of the State Board of Health and there is a possibility that some assistance might be rendered pursuant to the provisions of that Act.
I feel sure that there are adequate means provided by our laws and that the judicial system is such that a duty to support a dependent child may be enforced. I will be more than pleased to render every service at my command.
PARENT AND CHILD-Child Support (Unofficial)
Parents of child are severally liable for its support until it attains 18 years of age. Uniform Reciprocal Enforcement of Support Act discussed.
December 4, 1962
Mr. George L. Saal Sheriff, Tazewell County Pekin, Illinois
This will acknowledge your letter asking for information regarding the provisions of law in the State of Georgia for support of minor children in that State. You advise us that in the State of Illinois a father must pay a child's support to the age of 16 years, and you ask how long does a father have to pay such support in the State of Georgia.
We have in the State of Georgia a statute entitled "The Unifor:rn Reciprocal Enforcement of Support Act". Acts 1958, pp. 34, 47. Code of Ga. Ann., Chapter 99-903a (6). This statute includes provision that:

347
"(a) A husband in one State is hereby declared to be liable for the support of his wife in conformity with the support laws of this State, and any child or children under 18 years of age and residing or found in the same State or in another State having substantially similar or reciprocal laws, and, if possessed of sufficient means or able to earn such means, may be required to pay for this support a fair and reasonable sum according to his means, as may be determined by the court having jurisdiction of the defendant in a proceeding instituted under this Chapter. Notwithstanding the fact that either spouse has obtained in any State or county a final decree of divorce or separation from the other spouse or a decree dissolving their marriage, the obligor herein shall be deemed legally liable for the support under this Chapter of any dependent child of such marriage, whether or not there has been an award of alimony or support for said child or children.
"(b) A mother in one State is hereby declared to be liable for the support of her child or children under 18 years of age residing or found in the same State or in another State having substantially similar or reciprocal laws, whenever the father of such child or children is dead, or cannot be found, or is incapable of support of such child or children, and if she is possessed of sufficient means or able to earn such means, she may be required to pay for the support of such child or children a fair and reasonable sum according to her means, as may be determined by the court having jurisdiction of the respondent in a proceeding instituted under this Chapter.
"(c) The parents in one State are hereby declared to be severally liable for the support of a child 18 years of age or older, residing or found in the same State or in another State having substantially similar or reciprocal laws, whenever such child is unable to maintain himself and is likely to become a public charge."
You will note that there is obligation upon the father to pay such support in the State of Georgia for the support of a child 18 years of age or older whenever such child is unable to maintain himself and is likely to become a public charge. There is provision for the solicitor general of each superior court to represent the plaintiff in any proc~eding under this Chapter, (Code of Ga. Ann., 99-91la), and jurisdiction of such proceedings is vested in the superior courts of the various counties of this State. Code of Ga. Ann., 99-909a.

348
PARENT AND CHILD-Uniform Reciprocal Enforcement of Support Act (Unofficial)
Reciprocal Enforcement of Support Act effective between Georgia and all other states and territories of United States where similar act has been enacted but reciprocal features not extended to foreign countries.
April 3, 1962
Honorable Roberto Cerchione Consul General of Italy New Orleans 15, La.
This will acknowledge your letter asking for copy of our law with reference to support of dependent persons by the head of a family. The current law on this subject was enacted by the General Assembly of Georgia in Acts 1958, pp. 34, 37, and a copy is enclosed for your information. This Statute also may now be found in Code of Ga. Ann., Ch. 99-9 A, Uniform Reciprocal Enforcement of Support Act.
You will note that Section 2 defines "State" as including any state, territory or possession of the United States and the District of Columbia in which this or a substantially similar reciprocal law has been enacted. Similar legislation has been enacted and is being administered in substantially all of the states and territories of the Nation. You will observe, however, that there appears to be no provision in the law in the State of Georgia under which the reciprocal features may be extended outside of the territorial limits of the United States.
PARENT AND CHILD-Uniform Reciprocal Enforcement of Support Act (Unofficial)
In certain circumstances, children are liable for the support of needy parents.
July 5, 1962
Mr. William L. Frederick The Council of State Governments New York 36, New York
This will acknowledge receipt of your request relative to the duty of children to support needy parents, particularly under the Uniform Reciprocal Enforcement of Support Act. You note that the information furnished for the Manual was that children were liable under some circumstances.
The basis upon which this information was furnished is found in Georgia Code Annotated, 99-626 and 99-627, which is based upon Georgia Laws 1951, page 691. Those Code Sections read:
"99-626. Responsibility of financially able children; reaovery of assistance payments.-If any recipient of old age ~ssist-

349

ance has any child or children, who, in accordance with income and resources tables established by the State Department of 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. Same; duty to support aged or infirm parents.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."

The URESA now of force and effect in Georgia is found in Georgia Code Annotated as Chapter 99-9A and is based upon Georgia Laws 1958, page 34. The pertinent provision thereof is found in 99-903a., numbered paragraphs (7) and (8), which read:

"(7) 'Obligor' means any person owing a duty of support."

"(8) 'Obligee' means any person to whom a duty of support is owed."

This, when viewed with the provisions of paragraph (6), which defines the duty of support, to wit:

"(6) 'Duty of support' includes any duty of support im-

posed 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, sep-

arate maintenance or otherwise, and without limitation, spe-

cifically included for the purpose of this Chapter, the fol-

lowing:

.

"(a) A husband in one State is hereby declared to be liable for the support of his wife in conformity with the support laws of this State, and any child or children under 18 years of age and residing or found in the same State or in another State having substantially similar or reciprocal laws, and, if possessed of sufficient means or able to earn such means, may be required to pay for this support a fair and reasonable sum according to his means, as may be determined by the court having jurisdiction of the defendant in a proceeding instituted under this Chapter. Notwithstanding the fact that either spouse has obtained in any State or county a final decree of divorce or separation from the other spouse or a decree dissolving their marriage, the obligor herein shall be deemed legally liable for

350
the support under this Chapter of any dependent child of such marriage, whether or not there has been an award of alimony or support for said child or children.
"(b) A mother in one State is hereby declared to be liable for the support of her child or children under 18 years of age residing or found in the same State or in another State having substantially similar or reciprocal laws, whenever the father of such child or children is dead, or cannot be found, or is incapable of support of such child or children, and if she is possessed of sufficient means or able to earn such means, she may be required to pay for the support of such child or children a fair and reasonable sum according to her means, as may be determined by the court having jurisdiction of the respondent in a proceeding instituted under this Chapter.
"(c) The parents in one State are hereby declared to beseverally liable for the support of a child 18 years of age or older, residing or found in. the same State or in another State having substantially similar or reciprocal laws, whenever such child is unable to maintain himself and is likely to become a public charge.
"(d) A child or children born of parents, who at any time prior or subsequent to the birth of such child, have entered into a civil or religious marriage ceremony, shall be deemed the legitimate child or children of both parents, regardless of the valid. ity of such marriage.
"(e) A child or children born to parents who held or hold themselves out as husband and wife by virtue of a common-law marriage recognized as valid by the laws of the initiating State and of the responding State shall be deemed the legitimate child or children of both parents.
"(f) A woman who was or is held out as wife by a man by virtue of a common-law marriage recognized as valid by the laws of the initiating State and of the responding State shall be deemed the legitimate wife of such man.
"(g) Whenever a man has been adjudicated by a court of competent jurisdiction as the father of an illegitimate child he shall be legally liable for the support of said child in the same manner as he would owe the duty of support if such child were his legitimate child.",
would seem to justify and authorize the statement that under some circumstances, children are liable for the support of needy parents.

351

PARKS-Concession Agreements

Where sewerage disposal plant is constructed well after contract entered into between Department of State Parks and concessionaire, furnishing of chemicals for plant by concessionaire was not contemplated when contract entered into and cannot be required.

.Honorable Charles A. Collier, Director Georgia Department of State Parks

. July 16, 1962

I have received your letter requesting that I review your contract with the lessee of Vogel State Park, in order to determine whether the Department of State Parks is obligated to furnish chemicals for the operation of a sewerage treatment plant.

As I understand the situation, the plant was only recently constructed and operation will involve purchase of chemicals which would cost approximately $500.00 per year. You stated the Parks Department feels the chemicals are in the same category as soap, towels and routine supplies necessary for the operation of the park. ln a technical sense, I' would agree with you that the chemicals could be so included. However, the plant has been only recently constructed. It is a rule of the interpretation of contracts that one should seek to ascertain the intention of the parties at the time of contracting. I find the lease agreement is dated August 6, 1958. That being the case, the sewerage plant and its operation could not have been in the mind nor in any contemplation of the contracting parties.
If there was a cost to the lessee for the disposition of sewerage prior to construction of this new plant, perhaps he might be required to purchase chemicals up to the previous cost, but I do not believe that we can require him to furnish more. Any expense of litigation attempting to secure payment for the chemicals by the lessee would probably far outweigh the amount involved.
Therefore I must advise you that the Department of State Parks should furnish the necessary chemicals for the operation of the sewerage treatment plant for the remainder of this contract.
In any future invitations for bids and further contracts, it should be set forth that the lessee will be required to furnish the chemicals and operate the sewerage treatment plant, or the rental amount should be increased to cover the cost of its operation by the Department of State Parks.

PARKS-State
Procedure outlined for disposal of surplus and "unserviceable" Property in State parks.
February 28, 1962 Honorable Charles A. Collier Director, Georgia Department of State Parks
Thank you for your letter requesting my opinion as to the proper Procedure for you and your Department to employ in the disposal of

352
certain items of park property, i.e., trees which are over-matured, diseased, undesirable, or deformed or are overcrowded in accordance with accepted forestry practices; structures on park property which are old, condemned, and hazardous; and surplus equipment such as vehicles and household furnishings.
This is to advise that property which is no longer useful to the State or its various departments can be disposed of under proper authority. The Code provides for this in Sections 91-804 and 91-805 as follows:
"91-804. (313) Unserviceable property sold- When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury. (Acts 1882-3, p. 126.)"
"91-805. (314) 'Proper authority' defined.- The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county. (Acts 1882-3, p. 126.)"
In Malcolm v. Fulton County, 209 Georgia 392, the Supreme Court said that:
"Property becomes unserviceable within the meaning of our statute, when it cannot be beneficially or advantageously used under all the circumstances for county purposes."
In this case the Court said that growing timber on land belonging to Fulton County was shown to have become unserviceable for county purposes and that the county commissioners were, therefore, authorized to dispose of it by sale.
In Dyer v. Martin, 132 Georgia 445, at page 449, the Supreme Court said:
"Before the commissioners can lawfully proceed with the sale of the real estate of the county it must appear that the same has become unserviceable. This word, as used in the Political Code, 278, does not mean that the property proposed to be sold is practically without value, but that it can not be used advantageonsly by the county. . . ."
To the same effect, as to the definition of "unserviceable", is Trap nell v. Candler County, 146 Georgia 617 (2).
The Trapnell case involved property which has been purchased as a site for a courthouse and which it was desired to sell because another site had been donated, and it was proposed to erect the courthouse on the donated site.
While, under Section 91-602 of the Code, it was formerly held that county authorities could sell unserviceable property at private sale,

353
such is no longer the case in view of Georgia Laws 1959, page 325, Section 9-804.1, Georgia Code.
I am not sure that the Governor can, under Sections 91-804 and 91-805, sell at private sale. In any event, if he can sell at private sale, he can sell at public outcry; hence, the procedure propos~d here.
There have apparently been no cases before our appellate courts dealing with any sale authorized by the Governor, but there is no reason to believe that his actions would be handled differently from those of county commissioners, considering the language of Section 91-805.
I might quote an earlier opinion of mine furnished the State Board of Education concerning a similar request which begins on page 178 of Opinions of the Attorney General 1952-53:
"If the State Department of Education, in the exercise of its duties in operating the Camp John Hope property in Macon County, deeming it advisable for the future growth and development of the trees and forest areas of this property and to assure greater reproduction and continuous growth of the desirable and valuable stands or species of trees or the need for expanding recreational facilities, should harvest within recognized and standard methods of forestry control, mature and over-mature timber, diseased trees, crooked trees, undesirable species, deformed trees or thinning of crowded stands, and then would not have need or use for such trees or timber or have the facilities for converting it into usable material for state purposes, it would be my opinion that such facts should be brought to the attention of the Governor in writing for a determination under the above-cited authorities, if, in fact, such harvested forest products are unserviceable and cannot be beneficially or advantageously used for state purposes under all of the circumstances.
"If in the event the Governor, acting upon the information furnished him, should determine that such harvested forest products are unserviceable for state purposes and cannot be beneficially or advantageously used under all the circumstances, he would be authorized to direct by executive order such forest products to be sold or otherwise disposed of under such restrictions and conditions which he may deem advisable for the best interest and protection of the state, and the funds derived therefrom paid into the state treasury.
"I would suggest that in following the above-outlined procedure, you obtain the services of the Director of the Georgia Forestry Commission to act in an advisory capacity to the State Department of Education where there is anticipated the removal of any trees or timber from any area under the jurisdiction of the State Department of Education to assure the use of standard and sound forestry practices and management in harvesting the forest products therefrom, and to furnish the Governor with

354
his written views as to the advisability of the harvesting of timber from the Camp John Hope property in order that it may be incorporated in the executive order of the Governor if he should so desire to issue one.
"Of course, you understand that the proceeds received from the sale of such forest products, as here under consideration, could not be retained and used by the State Department of Education without such funds being deposited in the treasury of the State of Georgia and appropriated therefrom by the General Assembly."
The disposal of the other public property would be accomplished in a similar manner, bearing in mind that the key word is the property's "unserviceability", not implying that it has no value, but that it cannot be used advantageously.
PARKS-State
Responsibility for closing of lake in state park to swimming for health reasons lies in Health Commissioner rather than Parks Department.
March 5, 1962
Honorable Charles A. Collier Director, Georgia Department of State Parks
Thank you for your letter in which you request my opinion as to the prevention of swimming in the lake at Laura S. Walker State Park in Waycross in accordance with the desires of the District Health Director as evidenced in his letter to your local Park Superintendent.
The first consideration is whether or not the lake is, in fact, unsuitable for swimming and skiing. I am sure that you will agree that if the lake is unhealthy, despite the ulterior motive which may be causing the present pressure, the Department should discontinue using the lake for swimming purposes.
As to the notice itself, I agree that perhaps a more formal request would have been proper. I do not question the power of the District Health Commissioner to enforce all health laws of the State and health ordinances of the city and county (Georgia Code Section 88-309). However, the letter from Mr. Proveaux to which you refer does not indicate that any formal action by the local Board of Health has been taken as required by the first paragraph of Section 88-203 and the provisi~ns of Section 88-205. The closing of this lake would be such a regulatiOn as contemplated by the later Code Section requiring a formal adoption to be posted on the courthouse door and published in the official countY newspaper. Nor is there any indication of any official action taken bY the Water Quality Council under provisions of Chapter 17-5 of.the Georgia Code, the "Georgia Water Quality Control Act", which might control this particular situation.

355
Paragraphs 2 and 3 of Section 88-203 provide appellate procedures for any citizens aggrieved by any order made and enforced by the proper health officials. If the Parks Department wants to contest the closing of the lake, I am sure that either you or the local Park Superintendent would qualify as "an aggrieved citizen".
With reference to the question of enforcement, it seems clear that this responsibility falls upon the District Commissioner who made the order with the cost of carrying out these duties being paid out of the county or city treasury or from funds of the Georgia Department of Public Health. I can see no reason why your Department or any of its employees would be charged with the duties of keeping park visitors from using the lake for swimming or skiing.
PENSIONS AND RETIREMENTS-Cities and Counties (Unofficial)
Creation of pension and retirement plans as prior service obligations of cities and counties constitutional.
March 22, 1962
Mr. Frederick N. MacMillin Executive Director Wisconsin Retirement Fund
Your letter of recent date, addressed to the Honorable W. Frank DeLamar, Executive Secretary of the Employees' Retirement System of Georgia, has been turned over to this office for reply. In your letter You request, ". . . any court decision passing upon the question of whether the prior service obligation of a municipality constitutes a 'debt' within the meaning of a state constitution, statute or municipal charter."
The Constitution of the State of Georgia, Article VII, Section VII, Paragraph I (Georgia Code Section 2-6001), states as follows:
"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 ?f that 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

356
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."
Under this Code Section, we call your attention to two cases decided in the Georgia Supreme Court. In the case of West, trustee, et al. v. Trotzier, 185 Ga., 794, 798, the Court upheld the constitutionality of the firemen's pension acts for the City of Atlanta, stating that such legislation did not violate the provisions of Article VII, Section VII, Paragraph I of the Georgia Constitution, which limits the right of a municipal corporation to incur a debt. Also, in the case of City of Atlanta v. Anglin, et al., 209 Ga., 170, 173, the Court cited the case of West v. Trotzier, supra, and followed same.
In view of the above, the Georgia courts have repeatedly upheld the constitutionality or prior service obligations created by legislation establishing such obligations by creating pensions and retirement systems, although I can not find a court decision specifically holding that a prior obligation of a municipality does or does not constitute a "debt" within the debt limitation placed upon municipalities under Code Section 2-6001.
The State Department of Law is only authorized to give an opinion to the Governor and to the heads of the various departments of the State in which the State is a party at interest. Therefore, anything which is said in this letter is not to be considered as an opinion and is not binding on any person in any manner whatsoever, but is merely given as information.
PENSIONS AND RETIREMENTS-Employees' Retirement System
All members of Employees' Retirement System prior to FebruarY 13, 1962, have vested contractual rights concerning involuntary sep aration after 18 years, and to construe an Act as altering such would be to give an ex post facto effect which would be void.
March 9, 1962
HonorableS. Ernest Vandiver Governor, State of Georgia
I wish to acknowledge your request for an opinion as to whether or not subsection (4) (f) of Section 5 of Act No. 553, approved FebrU

357

ary 13, 1962, is unconstitutional if given a retrospective or retroactive application or effect or if said subsection (4) (f) of Section 5 of said Act, properly construed, may be given a prospective application or future effect.
Subsection (4) (f) of Section 5 of Act No. 553, provid~s as follows:

"'Anything in this Act to the contrary notwithstanding, on and after the effective date of this Act, no member who has not accumulated sufficient creditable service to qualify himself under involuntary separation provisions of this Section 5 shall be deemed as eligible for such allowances until he has accumulated membership service in a position as classified under the State Merit System (exclusive of any prior service), sufficient for such qualification. However, the provisions of this paragraph shall not be applicable for vested rights (including prior service), under provisions of subsection (10) of this Section 5.'"

The Constitution of the State of Georgia, Article I, Paragraph II (Code Section 2-302) provides as follows:

"Attainder; ex post facto and retroactive laws, etc.-No bill of attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grant of special privileges or immunities, shall be passed.''

Section 102-104 of the Code of Georgia Annotated provides:

"Future operation of laws; impairments of obligation of contracts; bills of attainder; ex post facto laws.-Laws pre-
scribe only for the future; they cannot impair the obligation of contracts, nor, usually, have a retrospective operation. Laws looking only to the remedy or mode of trial may apply to con-
tracts, rights, and offenses entered into or accrued or committed prior to their passage; but in every case a reasonable time subsequent to the passage of the statute should be allowed for the citizen to enforce his contract, or protect his right. No bill of attainder or ex post facto law shall be passed.''

In the case of Dennington v. Mayor and Council of Roberta, 130

Ga. 494, the Court held:



"The repealing act will not be given a retrospective operation, so as to divest previously-acquired rights, or to impair the obligation of a contract lawfully made by virtue of and pending the existence of the repealed law.''

In the Dennington case, the Court, on page 497, states:

"... it is a well-recognized canon of statutory construction that if a statute is susceptible of two constructions, one whjch
:vould render it constitutional, and another which would render
It unconstitutional, the former will be preferred, since the intent to pass an unconstitutional act will not be ascribed to the legislature. If the plaintiff's right grows out of a contract lawfully lllade by virtue of and during the existence of the statute, and

358
full performance was had before its repeal, it would be beyond the power of the legislature to impair the obligation of such contract by subsequently repealing the statute which authorized it. If the previously acquired right of the plaintiff had become vested before the repealing statute was passed, such statute will not be given a retrospective operation so as to destroy such vested right."
In the case of Bank of Norman Park v. Colquitt County et al., 169 Ga. 534, the Court held :
"Laws prescribe for the future, and retroactive statutes are forbidden by the first principles of justice. The settled rule for the construction of statutes is not to give them a retrospective operation, unless the language so imperatively requires. A repealing act will not be given a retroactive operation so as to divest previously acquired rights or to impair the obligation of a contract previously made by virtue of and pending the existence of such law."
On page 537 of the decision, the Court states:
"Under the act of 1919 the county acquired a substantial right under this law. This law entered into and became a part of the contract. It was an essential element of the obligation of the contract. This act gave to counties a vested right to have debts due them by an insolvent bank paid in accordance with the priority fixed thereby. There was nothing in the act of 1927 which expressly, or by necessary implication, declares that it was meant to .have a retroactive operation, and to destroy rights which had become vested under the act of 1919, it should not be given a construction which would have that effect." In support thereof the following cases are cited:
Moore et al. v. Howard, Tax Collector, et al., 181 Ga. 605; Whittle, sheriff, v. Jones; et vice versa, 198 Ga. 538; Rhyne v. Price, 82 Ga. App. 695, and Walker County Fertilizer Company v. Napier, et al., 184 Ga. 861; Bullard v. Holman, et al., 184 Ga. 788; Mills v. Geer, et al., 111 Ga. 275, and Walker Electrical Company v. Walton, 203 Ga. 246.
The case of West, trustee, et al. v. Anderson, 187 Ga. 588, holds that:
"A constitutional act of the legislature is equivalent to a contract, and when performed, is a contract executed; and whatever rights are thereby created, a subsequent legislature cannot impair."
1n the case of Ross v. Lettice, 134 Ga. 868, the Court holds:
"A statute is retroactive in its legal sense which creates a new ollligation on transactions or considerations already past, or destroys cr impairs vested rights. A statute does not operate retrospectively because it relates to antecedent facts, but if it is intended to affect transactions which occurred or rights

359

which accrued before it became operative as such, and which ascribe to them essentially different effects, in view of the law at the time of their occurrence, it is retroactive in character,"

and the Court, continuing on page 868, quoting from an old case decided by Mr. Justice Story, Society for Propagating the Gospel v. Wheeler, 2 Gall. 139 (Fed. Cas. 131156) says:

"... a retroactive law: 'Upon principle every statute which takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new liability in respect to transactions or considerations already past, must be deemed retrospective.' " The Court further holds:

"The design of the act is to create a new obligation and to impose a new duty in respect to a transaction or consideration already past, and under the overwhelming weight of authority such a statute is retroactive. The constitution forbids the General Assembly to pass retrospective laws, and the act of 1909 comes within the prohibition.''

In an exhaustive annotation in 52 American Law Reports, Annotated, 2d Series, p. 454, it is said:

"Rights of public employee. In Georgia the view has been taken that, where a public employee participates in a pension plan from its inception, making compulsory contributions thereto, he has, by the contribution of a portion of his salary together with his services, paid a consideration, which gives him a vested right in the pension provided for in the statute in its original form, with the result that any subsequent legislative attempt to alter such pension right, whether by reduction of amounts payable or otherwise, is utterly void, notwithstanding that such attempt antedates the employee's eligibility for retirement. Bender v. Anglin (1950) 207 Ga. 108, 60 SE2d 756, cert den 340 US 878, 95 L ed 638, 71 S Ct 125, in which the court held that a fireman who was employed in 1915, and who was a participant in a pension plan instituted in 1924, and providing for compulsory employee contributions, had a vested right in the amount of pension payable under the 1924 plan, which right could not be infringed by a 1935 amendment to the pension plan statute, although the fireman was not eligible
to retire when the 1935 amendment was enacted.''

The controlling case in the matter dealt with herein is Bender v.

Anglin, et al., trustees, 207 Ga. 108, referred to above, and this case

h~oasarbdeeonf

followed in the Georgia Supreme Court case Trustees of the Firemen's Pension Fund of

of Burks the City

v. of

.ntlanta in 214 Ga. 251, wherein it is said:

"It is the established rule in Georgia that such a pension is not a gratuity, but a contract based upon a consideration, and that such contract can not be modified, repealed, or defeated by subsequent acts of the General Assembly after its creation.

360
The rule in Georgia is the general rule in this country. 40 Am. Jur. 971, 16; 62 C. J. S. 1265, 614. . . . Where contributions are required to the pension fund, and where services are rendered while the pension or retirement statute is in force, so that the statute becomes a part of the contract of employment and is a part of the compensation for the services rendered, a contract is created under the rulings stated in the Trotzier case. (Trotzier v. McElroy, 182 Ga., p. 719.)"
Under the provisions of Section 40-2505, subsection (3), of the Georgia Code Annotated, it is provided:
"Disability or involuntary separation without prejudice.(a) Any member in service, upon becoming involuntarily separated from employment without prejudice, or upon death, shall be entitled to an allowance in accordance with the provisions set forth in subsection (4) of this section."
Subsection (4) of this section provides as follows:
"Allowance on disability or involuntary separation.-In accordance with subsection (3) of this section, upon disability retirement, or involuntary separation from employment without prejudice, or death, a member shall receive the equivalent of a service retirement allowance if he has attained age 60, otherwise he shall receive a disability allowance, death allowance, or an allowance in case of involuntary separation from employment without prejudice which shall consist of: ...
"(b) Not less than 20 years service [now 18 years as amended-Ga. Laws 1953, Nov.-Dec. Session, p. 162], the service retirement allowance which would have been payable upon service retirement to age 60 without further change in compensation."
"Service" as provided for in subsection (4) (b) as set out above and as defined in Code Section 40-2501, sub-paragraph (6) means:
"... service rendered as an employee and paid for by the 'employer' as defined in subsection (3) of this section."
As I construe the word "service" as used in Code Section 40-2505 (4) (b), the same includes prior service as well as membership service.
It is my firm opinion that all members of the Employees' Retirement System, prior to February 13, 1962, by virtue of Code Section 40-2505, subsection (4) (b), were granted contractual rights with respect to involuntary separation after 18 years of service, which included both prior service and membership service, and that such members were further granted contractual rights by virtue of Code Section 40-2503, subsection (3) with respect to the retention of melll bership in the Employee's Retirement System, after separation fr?Jll employment at any time for any cause by rendering one year of service in a period of five consecutive years. Such employees would be divested of those substantial contractual rights if Act No. 553 is given ret~o active application so as to require 18 years of membership service

361
(exclusively) in a position as classified under the State Merit System, in order to qualify for service retirement benefits because of involuntary separation.
It is my further opinion that if subsection (4) (f) of Section 5 of Act No. 553, is given a retroactive or retrospective application or effect, said Section would be unconsitutional as impairing contractual obligations and divesting members of the Employees' Retirement System of Georgia of substantial contractual rights.
It is my further opinion that subsection (4) (f) of Section 5 of Act No. 553, should only have prospective application or future effect from the date of its approval. So construed, the provisions of Section (4) (f) of Section 5 of Act No. 553, requiring 18 years of membership service in a position as classified under the State Merit System, in order to qualify under the involuntary separation provisions of subsection (4) (f), would only apply to persons who for the first time become employees of the State and members of the Employees' Retirement System after the effective date of Act No. 553.
The provisions of the aforesaid subsection (4) (f) of Section 5 of Act No. 553, would not apply to or affect the membership or contractual rights of any persons who were members of the Employees' Retirement System prior to February 13, 1962 with respect to qualifying for retirement benefits under the involuntary separation provisions of the law as it existed prior to February 13, 1962, nor to any such employees who at any time for any cause, are separated from employment by the State of Georgia, and who at a later date return to service with the State by rendering one year of service in a period of five consecutive Years. Such members returning to service with the State of Georgia as provided by law, would return clothed with all of the rights and privIleges accorded them by law prior to February 13, 1962.

PENSIONS AND RETIREMENTS-Employees' Retirement System
Service as constable for Coffee County not service to State and not creditable under Employees' Retirement System.

~r. W. Frank DeLamar, Executive Secretary .r,mployees' Retirement System

April 30, 1962

We have reviewed your file as requested in your letter with refer-

ence to a claim for prior service credit while serving as a Constable ~f Coffee County, Georgia, for periods from January 1, 1929, through

l

eptember 940.

1,

1932,

and

from

September

1,

1934,

through

March

1,

(GaP. rCioordeseArnvnic.,e

is defined in Section I, subparagraph Section 40-2501), as follows:

7

of

the

law

362
"Prior service shall mean service rendered prior to July 1, 1949, for which service is allowable as provided in Section 4 of this Act."
Section 4 of the Act provides for the allowance of prior service credits for various specific types of services none of which could be construed under the broadest stretch of interpretation to include service rendered to a county as a constable. Section 4, subparagraph 7 provides in part as follows :
"Anything in this Act to the contrary notwithstanding, any employee who prior to his employment in an agency subject to the provisions of this Act, was an employee of any other State department, bureau, institution, board or commission of the State Government shall be entitled to a prior service certificate for creditable service rendered as an employee in such State department, bureau, institution, board or commission of the State Government . . ."
The claimant; in our opinion, was not an employee of the State or any agency, department, bureau, institution or board of the State at the time he was serving as a constable of Coffee County. Even though claimant, as Constable, collected delinquent state and county taxes, he did so, in our opinion, as an employee of Coffee County and not as an employee of the State. The affidavit submitted by a former sheriff of Coffee County, Georgia, corroborates our view of the employment of the claimant, wherein it is stated:
"... as such Constable ... collected delinquent state and county taxes for Coffee County, Georgia." (Emphasis added.)
It is, therefore, our opinion that the service rendered by claimant as a constable of Coffee County, Georgia, was county service and not service rendered to the State or any department, bureau, institution, board or commission thereof, as provided in Section 4, subparagraph 7 which would entitle him to credit for prior service.
PENSIONS AND RETIREMENTS-Employees' Retirement System
Discussion of provisions for transfer from Teachers' Retirement System to Employees' Retirement System.
April 30, 1962
Mr. W. Frank DeLamar Executive Secretary Employees' Retirement System
As requested in your letter, we have reviewed the contents of letter addressed to you from Mr. James W. Murray, Regional Representative, Bureau of Old-Age and Survivors Insurance, Department of Health, Education, and Welfare.
Practically all of the matters involving Act No. 150, passed by the General Assembly of the State of Georgia, and approved on March 16,

363
1961, which give concern to Mr. Murray and which are dealt with in his letter, have been superseded by the adoption of Act No. 553 by the General Assembly of the State of Georgia, approved February 13, 1962. I would suggest that you furnish Mr. Murray with a copy of the supplemental amendments to the Employees' Retirement System laws of Georgia as approved February 13, 1962.
Section 8 of Act No. 553 deals specifically with cases involving transfers of employees under the Teachers' Retirement System to departments whose employees are covered by the Employees' Retirement System. There are two different types of transferees from the Teachers' Retirement System to the Employees' Retirement System:
(1) Employees transferring from the Teachers' Retirement System to the Employees' Retirement System with creditable service subsequent to January 1, 1945, who shall become members of Division A of the Employees' Retirement System and be eligible to transfer credits to the Employees' Retirement System.
(2) Employees transferring from the Teachers' Retirement System with credits for service prior to January 1, 1945, who shall have their credits with the Teachers' Retirement System frozen as of said date, with retirement benefits accrued on account of said service being paid directly to the transferee by the Teachers' Retirement System upon retirement of the transferee as a member of the Employees' Retirement System. For all other purposes said transferees become members of the Employees' Retirement System as of the date of transfer from the Teachers' Retirement System to a department whose employees are covered by the Employees' Retirement System, and benefits for services subsequent to January 1, 1945, shall be paid by the Employees' Retirement System.
In the light of the 1962 amendments to the Employees' Retirement System laws relating to transfers from the Teachers' Retirement System to the Employees' Retirement System, it would seem to us that membership in the Employees' Retirement System acquired "pertains to the acquisition and accrual of benefit rights as a result of current employment", and would, therefore, come within the provisions of Section 218 of the Act, eliminating the inconsistency as to status of Retirement System membership.

364
PENSIONS AND RETIREMENTS-Employees' Retirement System
Employees of Southern Interstate Nuclear Board, being employees of a multi-state agency and not of the State of Georgia, not entitled to membership in Employees' Retirement System of Georgia.
June 13, 1962
Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System
I am in receipt of your letter of May 16, 1962, in which you request my opinion as to whether or not employees of the Southern Interstate Nuclear Board are employees of the State of Georgia for the purpose of obtaining membership in the Employees' Retirement System of Georgia.
Although Act 837 (Ga. Laws 1962, p. 505) specifically designates the Southern Interstate Nuclear Board an agency of the State of Georgia, similar laws enacted by the state legislatures of sixteen other member Southern States have like provisions. Also, it appears that these employees are compensated for their services by funds derived from appropriations of all seventeen Southern States participating in this program and not exclusively from funds appropriated by the General Assembly of Georgia.
In view of the above, it is my opinion that the employees of the Southern Nuclear Board are not employees of the State of Georgia entitled to membership in the Employees' Retirement System as defined in Georgia Laws 1949, page 138, as amended, which in pertinent part states as follows:
"Section I. (4) .... who receives payment for performances of personal services from the State of Georgia, or from any department, bureau, institution, board, or commission of the State, . . ."
PENSIONS AND RETIREMENTS-Employees' Retirement System
Failure of a member of Retirement System to be reelected to covered position constitutes involuntary separation from employment for purposes of Retirement System laws.
June 18, 1962
Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System
In your letter of May 22, 1962, enclosing your file with reference to a member of the Employees' Retirement System, you have requested the opinion of this office with respect to whether, in the light of the Attorney General's recent ruling regarding involuntary sepa-

365
ration, the case of this member should be reconsidered by your Board of Trustees. You request further that we review the case for the ,purpose of advising your Board if by reason of the Attorney General's prior opinion, this individual would actually qualifiy under the involuntary separation provision of the Act and, if so, would the effective date of benefits be January 1, 1961 (the earliest date he could have qualified for benefits), or would it be effective t:l).e first of the month following my prior opinion (that he is eligible).
The opinion which I issued on March 9, 1962, with respect to construction and interpretation of sub-section (4) of Section 5 of Act No. 553, approved February 13, 1962, would not, in my opinion have any effect upon the claim of the member for involuntary separation benefits because of his failure to be elected to the office of Tax Commissioner of Bartow County, Georgia.
From your file, it appears that the member, as of March 31, 1960, had accumulated a total of eighteen years and seven months creditable service; that the 1958 General Assembly (Act No. 192, Ga. L. 1958, p. 2683) abolished the position of Bartow County Tax Collector and Tax Receiver and created the position of Tax Commissioner, to take office (after election in 1960) January 1, 1961; that an election was held during the week of January 19, 1960, and the incumbent tax collector who ran for office of Tax Commissioner, was defeated and thereby his position as Tax Collector was terminated effective December 31, 1960.
As I see it, the legal problem presented here is strictly an interpretation of the meaning of "involuntary separation," and a determination as to whether involuntary separation includes and encompasses a member's failure to be reelected to a position covered by the Employees' Retirement System Act.
Under Section 1 (25), involuntary separation is defined as follows:
"(25) Involuntary separation from employment without prejudice, for the purpose of this Act, shall mean separation or release from service not willingly by choice of member who has not been convicted in a court of competent jurisdiction of embezzlement or larceny of public funds or property or malfeasance in office, or who has not been forced to make restitution for any funds or property criminally taken by said employee at the time of separation."
In my opinion, giving the words "involuntary separation" their ordinary meaning and without straining for an extended connotation of the words, the rejection of a member candidate by the electorate at the polls in an unsuccessful effort to be reelected to a covered Position, amounts to involuntary separation. I am of the further 0Pinion that the member was involuntarily separated from employment by such rejection by the electorate and by his failure to be reelected, and that he does qualify for benefits under the involuntary separation provisions of the Act, and it is my further opinion that tdhe effective date of benefits should be January 1, 1961, the effective ate of his involuntary separation.

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PENSIONS AND RETIREMENTS-Employees' Retirement System
In order to obtain credit for military service rendered prior to July 1, 1953, State employee must have been member of Employees' Retirement System on January 1, 1954.
July 18, 1962
Honorable M. Roscoe Lowery Chairman State Board of Workmen's Compensation
This is in reply to your letter in which you request my official opinion on the question of whether or not Deputy Director David C. Stripling, a member of the Employees' Retirement System, is entitled to receive prior service credit for his military service under the provisions of Act 38 (Ga. Laws 1949, p. 138) as amended. Specifically you request an interpretation of an amendment to the Act, said amendment found in Ga. Laws 1961, pp. 143. The pertinent section of the amendment states as follows:
" '(11) Any other provisions of law to the contrary notwithstanding, after October 1, 1961, no prior service of any nature whatsoever, shall be deemed as creditable for any indidividual within a department or a division of a department that is or may be covered under provisions of this law; provided, however, this shall not be construed as prejudicial to any credits for prior service as established by the system prior to the date set forth in this subsection.' "
The above quoted section designates a cut-off date after which no member of the Employees' Retirement System may claim prior service credits unless such credits had been established by the system prior to October 1, 1961. In order for a member to be able to establish such credits, the member must be eligible under the provisions of the Act as amended to claim prior service credits; therefore, the first question is whether or not Mr. Stripling was eligible under the law to claim his military service as prior service credits. An amendment to the Act enacted by the 1953 General Assembly at its Nov.-Dec. Session, the same being Act 636 (Ga. Laws 1953, p. 163), states as follows:
"Anything in this Act to the contrary notwithstanding the prior service accumulations of a member shall be computed to July 1, 1953 in the manner as now provided in Section 4 and any contributions by a member made prior to January 1, 1954 shall be considered in computing the pension."
This amendment designates the eligibility cut-off date of JanuarY 1, 1954 for a member of the System to obtain prior service credits. In other words, if an employee was not a member of the Employees' Retirement System on January 1, 1954, he is barred from obtaining credit for service rendered prior to July 1, 1953.
It appears that the commencement date (the date the State Board of Workmen's Compensation came under the provisions of Act 38 as

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amended) is January 1, 1954; therefore, for Mr. Stripling to be eligible to obtain credit for his military service rendered prior to July 1, 1953, he had to be a member of the Employees' Retirement System on the Board's commencement date, January 1, 1954. Since Mr. Stripling was not employed by the Board of Workmen's Compensation until December 16, 1955, he has never been eligible to receive prior service credits for his military service.
In view of the above, I am of the opinion that Deputy Director David C. Stripling has never been eligible, under the law, to receive retirement credit for his military service. It follows that he cannot establish that which he is ineligible to receive.

PENSIONS AND RETIREMENTS-Employees' Retirement System

County tax officials and their employees are eligible for partici-pation in Employees' Retirement System provided County Tax Office
took timely and proper action to qualify as adjunct of State Revenue Department.

July 27, 1962

Honorable W. Frank DeLamar Executive Secretary Employees Retirement System

This is in reply to your recent request for my opinion on the current status of county tax officials and their employees with reference to membership in the Employees Retirement System.

Georgia Code Annotated, Section 40-2531, states as follows:

"County tax commissioners, tax collectors, tax receivers and their employees included within system.-The offices of
the tax commissioners, tax collectors, and tax receivers of the counties of this State are hereby declared to be adjuncts of the State Revenue Department, such offices assisting in the returning and collecting of State taxes. All tax commissioners, tax collectors, and tax receivers and employees in the offices thereof shall be subject to a merit system of employment, as promulgated by each such office, under which all such officials and employees shall perform services on the basis of merit, fitness and efficiency.

"(1) All individuals that were such officials and employees on or after December 1, 1956, are hereby authorized to become and be members of Division "A" of the Employees' Retirement System of Georgia, as established by and in accordance with the provisions of this Chapter."

~heiTrheismpClooydeeesSeScttaioten

specifically makes county employees for purposes of

tax officials and becoming Division

'A" members of the Employees Retirement System.

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The Act creating the Employees Retirement System was amended by Act No. 553 (Ga. Laws 1962, p. 54, p. 58). This amendment amended Section 7 of said Act by adding thereto the following:
"'(1) Notwithstanding any other provisions of this Act, any City Court or any County Tax Office, which has not, by proper action on their part, provided means by which the Court or employees therein, or the Tax Office or employees therein, could become members of this System, shall, on and after the effective date of this amendment, not be deemed to be adjuncts of the Superior Courts of this State nor shall any such County Tax Office be deemed to be adjuncts of the State Revenue Department, nor shall any position, or employee within such City Court or County Tax Office be deemed State employees or otherwise eligible for membership in this System.' "
This amendment states that employees of any County Tax Office shall not be deemed State employees and eligible for membership in Division "A" of the Employees Retirement System unless such employee was a member of the System prior to the effective date of this Amendment, which was February 13, 1962.
In view of the above, it is my opinion that where proper action has not been taken, County Tax Office employees are not eligible for membership in the Employees Retirement System after the effective date of the above amendment.
PENSIONS AND RETIREMENTS-Employees' Retirement System
Definition of state employment sufficient to entitle employee to benefits of Employees' Retirement System.
October 2, 1962
Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System
I have received your letter of September 28, 1962, together with the attached membership file.
It is my understanding that a former employee is applying for retirement under the involuntary separation without prejudice pro visions as outlined in Section V (4) b of the Employees' Retirement Act as amended. There seems to be some question whether the last two years of membership service were valid, and consequently, whether he has accumulated sufficient service.
The problem arises from his pursuance of full time employment by the State Revenue Department, and also serving as Judge of the Juvenile Court, Ware County, from April 28, 1960 until March 12, 1962, when he was dismissed from the Revenue Department. It has been suggested there can be no full time employment with an employer

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under the Act, if there is also an attempt simultaneously to serve full time in another capacity for another master. The Act would not, however, seem to preclude such dual employment. Under Section I, Definitions, the Act provides:
"(4) 'Employee' shall mean any ... employee ... who is employed in a position normally requiring actual performance of duty during not less than nine months of the year."
There seem to be no other provisions attempting to define employment. The determination of eligible employment seems predicated upon regular as opposed to periodic or seasonal, rather than upon any exclusion of all other employments. If the employee was employed by the Revenue Department more than nine months of each year, he met the requirements of the Act. I find in the file the employee was classified as being employed on a full time basis by the Revenue Department at the time of his dismissal. I have also conferred with Mr. B. I. Gilbert, Personnel Director of the Revenue Department, who has advised me the subject employee was at all times considered as being employed on a full time basis.
Therefore, it is my conclusion the subject employee was a full time employee, and the questioned period of service is membership service, creditable within the meaning of the Act. If all other requirements are met, he should be granted the benefits he seeks.

PENSIONS AND RETIREMENTS-Peace Officers Annuity and Benefit Fund

Commissioners of Fund have legal authority to construct office
building for use of Fund, or for lease to other occupants, upon approval of Real Estate Investment Board.

February 6, 1962

Honorable Lawrence J. McEvoy

Executive Secretary

.

Georgia Real Estate Investment Board

I am in receipt of your letter enclosing copies of the two letters sent to Mr. Bill Ramsey from Adams and McDonald, attorneys for the Peace Officers Annuity and Benefit Fund, for which I thank you.

I concur in Mr. McDonald's opinion dated January 15th, to the e~fect that the Peace Officers Annuity and Benefit Fund Commis81~ners have legal authority to construct an office building for use by sa1~ Fund, and for lease or rent to other occupants, and that the Peace Officers Annuity and Benefit Commissioners are required to submit ~PPlication to purchase the real estate contemplated to the Georgia n~al Estate Investment Board for its approval, disapproval or reJection.

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PENSIONS AND RETIREMENTS-Retail Employees (Unofficial)
No statutory provisions covering retirement plans for retail employees.
February 28, 1962
Mr. Les Schuller New York 3, New York
This will acknowledge your letter requesting information on "Individual Retirement State Laws for Retail Employees in all 50 States", which has been referred to us for reply.
There are no statutes in the State of Georgia covering retail retirement plans or general retirement State statutes that would apply to retailing.
The Employees' Retirement System statutes of the State of Georgia only cover State employees.
PENSIONS AND RETIREMENTS-Teachers Retirement System
Teachers Retirement System may invest in secured and unsecured notes subject to same restrictions and safeguards that are applicable to investments of domestic life insurance companies.
July 3, 1962
Honorable G. A. Pittman Executive Secretary Treasurer Teachers' Retirement System
You asked whether the Teachers' Retirement System could legally invest in secured and unsecured notes, such as investments in Beneficial Finance Company or other instances where the loans are secured by promissory notes.
Section 7, paragraph (1) of the Act establishing the Teachers' Retirement System, (Ga. Laws 1943, p. 640; Code Ann. 32-2917) grants to the Board of Trustees:
"... full power to invest and reinvest such assets, subject to all the terms, conditions, limitations and restrictions imposed by the laws of the State of Georgia upon domestic life insurance companies in the making and disposing of their investments; . . ."
The restrictions on life insurance company investments are found in Chapter 10 of Title 56 of the Code of Georgia, as enacted by Ga. Laws 1960, p. 289. The section with which we would be particularlY concerned in this instance, because it relates to corporate bonds and debentures, is 56-1016. It has two subsections, the first applicable to investments secured by collateral worth at least 50 per cent. more

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than the par value of the entire issue of such obligation, and the second to secured and unsecured obligations.
From my understanding of the class of investments about which you inquire, we would not be concerned with the first subsection, for the notes are unsecured, and if a permissible investment, then it would be as a result of the second subsection, which reads:
"An insured may invest in secured and unsecured obligations of such institutions (other than obligations described in subsection (1) bearing interest at a fixed rate, with mandatory principal and interest due at specified times, if the net earnings of the issuing, assuming or guaranteeing institution available for its fixed charges for a period of five fiscal years next preceding date of acquisition by such insurer have averaged per year not less than one and one-half times its average annual fixed charges applicable to such period and if during either of the last two years of such period such net earnings have been not less than one and one-half times its fixed charges for such year.''
In simple terms, this subsection requires a solvent institution, that the obligation be definite in dates, interest and principal, and that its net earnings are one and one-half (1%) times its fixed charges. Several questions or difficulties might arise in application of this subsection, and a definite blanket ruling can not be made to cover all investments of this nature. Each would have to be considered individually. The matter of earnings times fixed charges is a determination to be made by experts in fiscal and financial affairs. Probably a strict interpretation would require a personal examination, audit, and verification of the financial affairs of the prospective institution. Such might strain or be far beyond the capabilities of any one person. Therefore, reliance must be made upon the authenticity and correctness of information compiled and made available by others. In the instant case concerning Beneficial Finance, and the prospective issue (and incidentally for other similar instances), the Standard and Poor Bond Report makes available certain information which shows the ratio of charges and earnings (as compiled and computed by them) to be well above the requirements for investment by Teachers' Retirement. Standard and Poor is a well respected financial rating institution, and I feel reliance upon their compilations would be justifiable, while refraining from any comment upon any matters partaking Purely of judgment which they may offer. It is my understanding the ~rust and Investment Department of the Citizens and Southern Bank lS retained to assist in the analysis and determination of purchases by Teachers' Retirement System. They would probably have access to a?ditional information useful in making a determination of the finanCl~l status of the prospective investee, and whether such would be Within the legal formula prescribed by the Code Section above.
In answer to your question then, I would give an affirmative answer, provided the requirements of subsection (2) of Code 56-1016 are met. This is a matter to be determined in each individual in-

372
stance, and it is my opmwn that the Board of Trustees would be justified in relying upon certain determinations by others as outlined above, subject always in doubtful cases to submission and review by this office.
PENSIONS AND RETIREMENTS-Teachers Retirement System
Minimum benefit on retirement allowance provided in 1962 amendment to Teachers' Retirement System Act discussed and interpreted.
July 13, 1962
Honorable G. E. Pittman Executive Secretary-Treasurer Teachers Retirement System
I am pleased to review House Bill No. 1115 (Act No. 944) of the 1962 Session of the General Assembly (Ga. Laws 1962, p. 666), and give you my official opinion as to the obligations of the Teachers Retirement System under this Act. Specifically, you raised the question whether the six-dollar ($6.00) floor in benefits provided in the Act is intended to mean six dollars ($6.00) per month or per year.
The Act is an amendment to Ga. Laws 1961, p. 392, which in turn added a new section to the original Teachers Retirement System Act adopted in 1943 (Ga. Laws 1943, p. 640). The applicable provisions read:
"... study the benefits being paid to the retired members prior to the effective date of this bill with authority to increase their retirement allowances . . . ."
".... The Board of Trustees is hereby required to make available semi-annually such funds as the income of the State will allow to the retirement structure for those members retired on or before July 1, 1961 until a minimum floor of six ($6.00) dollars for each year of service up to 40 years is reached . . ."
It seems apparent that the legislature has used the words "benefit" and "retirement allowances" in such a manner as to have intended the same general meaning.
The Georgia Code provides in 102-102:
"9. In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy ..."
It is a rule of construction for statutes that when a word or phrase, the meaning of which has been ascertained in a statute, is used in subsequent parts of the same statute or in subsequent statutes perdtaining to the same subject matter, the word or phrase is understoo to convey the same meaning. (Lane v. Morris, 10 Ga. 162). Or, as recently stated by the Georgia Supreme Court in Stanley v. Sims, 185 Ga. 518:

373
". the effect to the given such a word depends upon the intention with which it is used, as manifested by the context and considered with reference to the subject-matter to which it relates."
In examining the Teachers Retirement System Act, for that is the ultimate statute sought to be amended and is the source of the overall legislative scheme, we find that these words are used many times. Significantly, we find that an entire section (Section 5) of the original Act is entitled "Benefits." Under this section are listed a Service Retirement Benefit, a Disability Retirement Beneft, and Optional Allowances. Thus when "Benefits" is used by the legislature without additional qualifying words, it is used in a broad sense, intended to cover all specific benefits.
"Retirement Allowances" may be found in Section 1, Definitions:
"(17) 'Retirement allowance' shall mean the sum of the annuity and the pension, or any optional benefit payable in lieu thereof as provided in section 5 ... of this Act. 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 ten dollars per month, a lump sum equivalent actuarial value." (Emphasis added.)
When "Retirement Allowances" are spoken of, the reference is then directed at the total monies payable to a retired member of the system, and to these monies in terms of amounts payable monthly.
A statute must be construed with reference to the whole system of which it forms a part (Cook v. Wier, 185 Ga. 418). Here the legislature enacted a retirement system with monthly benefits. In 1961 they enacted a new section directing the Board of Trustees of this system to "study the benefits being paid to the retired members ... with authority to increase their retirement allowances." The intent obviously was directed at the monthly amount being paid to the retired members. In 1962, the legislature amends this previous direction and requires the Board of Trustees to "make available semiannually such funds ... until a minimum floor of six ($6.00) dollars for each year of service up to 40 years is reached . . .".
It is my opinion that under the 1962 Act, the Teachers Retirement System is required to make available funds so that a minimum monthly amount of six dollars ($6.00) is paid to retired members for each Year of service up to forty years, and that if sufficient funds are not readily available within the retirement system itself, they may be requested from the Budget Bureau for payment from State funds.

374

POST MORTEM EXAMINATIONS-Autopsies (Unofficial)

Discussion of laws authorizing autopsies.

March 23, 1962

Dr. C. B. Teal, Jr. Battey State Hospital Rome, Georgia
I am in receipt of your letter relative to legal authorization to perform autopsies.

We have reviewed the legal analysis prepared by the American Medical Association in 1957, dealing generally with the subject of autopsy. We have also examined the cases referred to in the foot notes of the analysis.

The case of Louisville & Nashville Railroad Co. v. Wilson, 123 Ga. 62, recognizes that a widow has interest in the unburied body of her deceased husband. The holding in that case is followed in the case of Medical College of Georgia v. Rushing in 1 Ga. App. 468, in which it is stated:
"The right to the possession of the dead body of his wife for preservation and burial belongs to the husband. Any unlawful and unauthorized mutilation of the remains would be an invasion of this right, for which an action for damages would lie."

The case of Louisville & Nashville Railroad Company v. Blackmon, in 3 Ga. App. 80, states that the:
"Unauthorized mutilation of the dead body of a husband gives a right of action to his widow."

Georgia Laws of 1953, at page 602 and 606, codified in Ga. Code Ann., Section 21-206, deal specifically with the problem under the title, "Authority to perform autopsy," as follows:

"In the case of death of any person under such circumstances as would not require a post mortem examination under the provisions of section 21-205, any physician, duly licensed under the laws of the State of Georgia, or of any other State having licensing requirements equal to or greater than those imposed by the State of Georgia, shall be deemed to have been legally authorized to perform an autopsy upon the body of a deceased person when such autopsy has been consented to by the person assuming custody of the body for the purposes of burial, such as the husband, the wife, the father, the mother, a child, a guardian, next of kin, or in the absence of any of the foregoing, a friend of such deceased person charged by law with the responsibility of burial. If two or more of such persons assume custody of the body, the consent of one of them shall be deemed sufficient legal authorization for the performance
of the autopsy."

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We refer you to another code section under the title of "Delivery of certain bodies", Ga. Code Ann., Section 88-702, which may be of assistance and guidance to you:
"All public officers of this State and their assistants, and all officers and their deputies of every county, city, town or other municipality, and of every prison, chain gang, morgue, public hospital, sanatorium or sanitarium (except the Milledgeville State Hospital, which institution shall have authority to perform autopsies on the dead bodies of persons dying as patients in said institution, all in the discretion of the superintendent and medical staff of said institution), having control over any dead human body, not dead from contagious or infectious disease, and required to be buried at public expense, are required to notify the board of distribution, or such person as may from time to time be designated in writing by said board, or its duly authorized officer, whenever any such body comes into their possession or control, and shall, without fee or reward, deliver such body, and suffer the board and its duly authorized agents who may comply with the provisions of this Chapter, to remove such body, to be used only within this State, solely for the advancement of medical science: Provided, that no such notice shall be given, nor shall any such body be delivered, if any person, claiming to be and satisfying the authorities in charge of said body that he or she is of any degree of kin, or is related by marriage to, or socially or otherwise connected with and interested in the deceased, shall claim the said body for burial, but it shall be at public expense at the request of such claimant if a relative by blood or a connection by marriage and financially unable to supply such body with burial."
Unfortunately there are very few cases which have been decided by the appellate courts dealing with the subject of autopsy, but we believe that the provisions of Code Section 21-206 should provide the answer to most of your problems arising in connection with autopsies. However, we will be glad to be of any assistance to you at any time.
POST MORTEM EXAMINATIONS-Compensation
Department of Health not authorized to pay nor Coroner of Baldwin County to receive additional compensation above that prescribed by law for coroners notwithstanding that he is called upon to perform additional work in connection with deaths at Milledgeville State Hospital.
September 24, 1962
Honorable John H. Venable, M. D. Director, Department of Public Health
I have received your letter together with the enclosed letter from the Coroner of Baldwin County in which he recites the many instances

376
in which he must conduct inquests and other post-mortem matters because of deaths at Milledgeville State Hospital. He then proposes that since this is burdensome and is presently uncompensated, he be somehow placed upon a salary with Milledgeville State Hospital together with a salary from the County so that his compensation would be commensurate with the duties and work load presently being performed. You asked whether such a proposal would be possible.
It is my opinion that the proposal advanced would not be desirable, and in fact is of extremely doubtful legality. Ga. L. 1953, p. 602, as amended, found in Ga. Code Ann. Sections 21-201, et seq., is the law upon post-mortem examinations in Georgia, and therein provides for the compensation of coroners. The provisions insofar as they relate to payment are found in Section 21-205 (4), in which coroners are given a fee of $25 to be paid by the county wherein the inquest is held, except where the coroner receives an annual salary, in which case no fee is imposed upon the county. Subsection (2) of Section 21-205 pertains to the death of inmates of state hospitals, or state, county or city penal institutions, and sets forth the procedures to be followed there. Taken together, a coroner is entitled to a fee from the county of $25 for each inquest held for the death of an inmate as mentioned above. There is no provision for any additional compensation from any source for additional assistance rendered to the Medical Examiner or peace officer.
His suggestion of being placed upon a salary is a matter for consideration by the County Commissioners and Representatives insofar as payment by Baldwin County is concerned. However, there is no provision of law of which I am aware which would permit the State Department of Health to participate in or supplement his salary as was suggested. Employees of the Department of Health are under the Merit System and he, as an elective official of the county, could not be under the Merit System, there being a prohibition against Merit System employees participating in political campaigns in any manner. Supplement to his salary would be tantamount to awarding an additional compensation for the performance of legally imposed duties already compensated by law.
The Legislature in enacting this system of compensation felt it to be adequate. If he is rendering additional service, such is commendable but not compensable, at least by the Department of Health. For the Department to award him additional compensation would establish a precedent which would very likely result in an engulfment of similar requests and proposals for other officials of all counties wherein the Department of Health operates and as a result creates additional work for such officials.

377
POST MORTEM EXAMINATIONS-Post Mortem Examination Act
Provisions for making examinations discuss~d.
February 1, 1962
Dr. Herman D. Jones Director, Crime Laboratory
Thank you for your letter requesting an opmwn as to certain provisions of the Georgia Post Mortem Examination Act. The Act in question was passed by the 1952 Legislature and is found beginning on page 602 of that year's Volume of Georgia Laws. It repealed all of former Chapter 21-2 of the Georgia Code which was devoted to inquests and their proceedings. The Act became effective May 10, 1953, and may be summarized as follows:
When any person dies as a result of violence or suicide or casualty or suddenly when in apparent good health or when unattended by a physician or in any suspicious or unusual manner it is the duty of the law enforcement officer or other person having knowledge of such death to notify the coroner of the county wherein the body is found or death occurs. (Code Section 21-208) Upon receipt of this notice, the coroner shall immediately take charge of the body and summon a medical examiner and peace officer. (Code Section 21-209) Medical examiners are licensed physicians or pathologists appointed in convenient locations throughout the State by the Director of the Crime Laboratory and the Director of the Department of Public Health. (Code Section 21-203) The coroner then makes the determination of whether or not to require a post mortem and/or autopsy and inquest using the conditions set forth in Code Section 21-203 as a guide. If the place for autopsy and/or post mortem is inconvenient, the medical examiner or peace officer or the coroner in their absence has the body removed to a nearby hospital or morgue. If the peace officer is present, no move will be made without a thorough investigation. (Code Section 21-207) After the post mortem and inquest, the body is turned over to the proper party for burial. (Code Section 21-220) The coroner as well as the medical examiner, with court authority, is authorized to disinter any body already buried to carry out the purposes of this Act. (Code Section 21-221) In counties without a coroner, a judge of any court having county-wide jurisdiction other than the Superior Court may act as coroner or the ordinary may appoint an acting coroner. (Code Section 21-222) No person shall move or authorize removal of any body from the place where found until the investigation is complete and the removal authorized by the peace officer, coroner, or medical examiner. (Code Section 21-224).
The violation of any provision of the Act constitutes a misdemeanor and, therefore, the criminal enforcement is the duty of the ~olicitor of the City Court or Superior Court or other duly authorIZed court charged with the prosecution of misdemeanors.
To answer the questions propounded to you by Dr. Nicholson the following should be noted: The removal of the body to the Church and Son Funeral Home without the direction of the peace officer,

378
coroner, or medical examiner was a violation of the law and a misdemeanor. Theoretically, the first person on the scene who realized the person was dead should have immediately notified the coroner who would then take charge as authorized above. In the instant case, the examiner would have been well within his authority to have gone to the funeral home to make his examination or to have ordered the body removed elsewhere to perform the post mortem and/or autopsy. As previously pointed out, a disinterment might have been proper under the circumstances. At the very least, it seems that especially funeral homes and hospital personnel should be advised of the responsibilities placed upon them by the provisions of this Act. All too often bodies are probably removed from where they are found or where death occurred without the proper authority and before the investigation is conducted. Local law enforcement officers should be encouraged by the medical examiners and coroners to carry out strictly these requirements.
PRISONS AND PRISONERS-Change of Penal Institutions
Where prisoner certified to be alcoholic and has been sent to Milledgeville State Hospital, he may be removed to another prison when hospital authorities determine he is able to serve sentence elsewhere.
April 2, 1962
Honorable Robert J. Carter Assistant Director Classification and Custody State Board of Corrections
This will acknowledge and reply to your letter relating to the sentence of a prisoner who has been certified by the County physician to be an alcoholic
The Legislature in 1960 enacted the following statute:
"'Provided, however, that upon being presented with a proper certification from the county physician of a county where a person is sentenced to prison, that such person so sentenced is a dope addict or alcoholic to the extent that his health will be impaired or his life endangered without immediate treatment, the Board of Corrections is hereby directed to transfer such prisoner to the criminal ward or facility of the State Hospital at Milledgeville. Said prisoner shall remain there until the hospital authorities determine he is able to serve his sentence elsewhere.' "
It seems clear from the last sentence of the above statute that when hospital authorities so determine a prisoner may be sent to another penitentiary.

379
PRISONS AND PRISONERS-Convict Labor
Convict labor may be used for construction of school gymnasium though private contractor constructing where there are no disbursements or credits for use of such labor between Board of Education and contractors.
March 8, 1962
Honorable Jack M. Forrester Director State Board of Corrections
This will acknowledge and reply to your letter relating to prison labor being used for the construction of a school gymnasuim at Cochran, Georgia.
It appears from the materials submitted by you that the contractual relationship between the Board of Trustees of the Public Schools of the City of Cochran and the Macon Machine Shop d/b/a Georgia Steel Erectors & Fabricators provides that the owner (City Board of Education) will furnish all labor and supervisory personnel for the construction of the gymnasium.
If this is in fact true, and there are no disbursements or credits for the use of prison labor between the parties to the contract, I am of the opinion that it will be a proper and legal use of prison labor .for the City Board of Education to use the same in construction of said school gymnasium.
PRISONS AND PRISONERS-Death of Inmate (Unofficial)
There is no statute which would render State liable for death of prison inmate, regardless of cause.
January 18, 1962
Mr. Hugh D. Merrill Anniston, Alabama
This will acknowledge and reply to your letter of January 17, 1962, relating to the death of an inmate of the Georgia State Prison system.
This is to advise you that I do not know of any statute which Would render the State of Georgia liable for the death of a State Prisoner, regardless of the cause thereof.

380
PRISONS AND PRISONERS-Department of Corrections
Department of Corrections authorized to accept gratuitous use of typewriters for education of juveniles at Alto Industrial Institute where no restrictions or limitations imposed by donor upon use.
June 18, 1962
Honorable Jack M. Forrester Director State Board of Corrections
This will acknowledge and reply to your letter asking whether or not the Board can accept without restrictions or limitations of any sort twelve (12) Underwood Touchmaster Five Standard Typewriters for accommodation trial purposes for the education of juveniles at the Alto Industrial Institute.
I understand from your letter that you have no obligations whatsoever in the premises. If this be true, there is, of course, no objection to the acceptance and utilization by the Department of the above typewriters.
PRISONS AND PRISONERS-Escapees.
State not liable to hospital for treatment rendered to two girls injured in accident while escapeees from Georgia Training School for Girls.
November 6, 1962
Honorable Alan Kemper, Director State Department of Public Welfare
This will acknowledge your letter with enclosures received by you from the Superintendent of the Georgia Training School for Girls. It appears that two students left the premises and control of the school without permission on July 22, 1962, and during the following week, on July 26th, were involved in an automobile accident which resulted in the death of one of the occupants and severe injury to the two students who were absent from the Georgia Training School for Girls on a runaway status, and were taken to the Grady Memorial Hospital by others as emergency cases.
You have submitted to us a bill for one of the girls for $2,141.98. There is no indication of the date of discharge of this patient and the bill is sent to Miss Hester Dixon, Georgia Training School, Bakers Ferry Road, Atlanta.
You have submitted a bill for the other girl for $356.85, which bildl also was sent to Miss Dixon and is accompanied by a document date August 15, 1962, being a verified statement for hospital lien issuekd by the Fulton-DeKalb Hospital Authority and addressed to the Cle! of the Superior Court of Fulton County, presumably filed in the off1ce

381
of the Clerk of the Superior Court of Fulton County, and presumably filed in accordance with Ga. L. 1953, Nov. Sess., p. 105, known as the Hospital Lien Law.
It appears that one of the girls was discharged from the hospital on August lOth, and it appears that the other girl is completely disabled, that she has been released from the Georgia Tr;lining School for Girls, and is in the care of the mother. There is no indication when these bills were submitted to Miss Hester Dixon, Superintendent of the Georgia Training School for Girls.
The 1953 Act providing liens for care of injured persons provides in Section 1 as follows :
"Section 1. Any person, firm, hospital authority, or corporation operating a hospital in this State shall have a lien for the reasonable charges for hospital care and treatment of an injured person who enters such hospital within one week after receiving such injuries, upon any and all causes of action accruing to the person to whom such care was furnished, or to the legal representative of such person, on account of injuries giving rise to such causes of action and which necessitated such hospital care, subject, however to any attorney's lien."
We are not advised if the automobile accident occurred under circumstances which might give either of these persons a cause of action against any other person or persons. Certainly there is no cause of action against the State of Georgia under which the hospital might expect to recover by having declared the lien provided for in the 1953 Act.
We do not know of any State law under which the Georgia Training School for Girls, a subsidiary of the State Welfare Department, could be held responsible for the payment of the two bills which you submit accompanied by the facts and circumstances as outlined in Your communication and the exhibits attached. We do not know of any authority in the General Appropriation Act which would authorize the expenditure of State funds for this purpose.

PRISONS AND PRISONERS-Milledgeville State Hospital

In order that an alcoholic or dope addict who is a prisoner be transferred to Milledgeville State Hospital, the county physician must certify that the health of the prisoner will be impaired or his life endangered unless treatment is received.

BD?norable Jack M. Forrester Irector
State Board of Corrections

November 8, 1962

This will acknowledge and reply to your letter relating to county Physician's certificate in cases of prisoners addicted to dope or alcohol.

382
Georgia Laws 1960, page 234, provides in its substantive part as follows:
"Provided, however, that upon being presented with a proper certification from the county physician of a county where a person is sentenced to prison, that such person so sentenced is a dope addict or alcoholic to the extent that his health will be impaired or his life endangered without immediate treatment, the Board of Corrections is hereby directed to transfer such prisoner to the criminal ward or facility of the State Hospital at Milledgeville. Said prisoner shall remain there until the hospital authorities determine he is able to serve his sentence elsewhere." (Emphasis supplied.)
You will note from the language printed in bold-face type in the above quoted provisions of law that in order that a prisoner be transferred to Milledgeville State Hospital, the county physician must certify that the health of a prisoner will be impaired or his life endangered unless said prisoner receives immediate treatment.
In my opinion the certification of the doctor, which you quoted in your letter, is insufficient in this respect to bring the case under the provisions of said Act of 1960 above quoted. I feel that the county physician should couch his certification in the language of said Act.
Your letter indicated some concern as to whether Georgia Laws 1962, page 656, et seq., repeals Georgia Laws 1960 above quoted. This 1962 Act relates to the sentence provided for the offense of public drunkenness. It does not, in my opinion, in any way relate to the disposition of a sentence of a person who is considered by a county physician to be a dope addict or alcoholic. I am of the opinion that Georgia Laws 1962, page 656, which Act amends 58-608 of the Code of Georgia, does not specifically repeal Georgia Laws 1960, which Act amends Georgia Laws 1956, page 161, et seq.
PRISONS AND PRISONERS-Transportation (Unofficial)
There are no specific requirements as to types of vehicles which may be used to transport prisoners.
August 20, 1962
Honorable Luther C. Hames, Jr. Solicitor General Cobb Judicial Circuit
Thank you for your letter pertaining to transportation of prisoners.
I find no statute prohibiting any type vehicle used for transportation of prisoners. Further, I find no statute descriptive of the type vehicle to be used in transportation of prisoners. Therefore, I ant of the opinion that any safe mode of transportation would meet the requirements of the general law applicable thereto.

383
PRISONS AND PRISONERS-Tubercular Prisoners.
When prisoner found to have tuberculosis, he will be sent to Battey State Hospital or other approved hospital and confinement there will count toward his prison sentence.
April 23, 1962 Honorable J. B. Hatchett Associate Director General Administration State Board of Corrections
This will acknowledge and reply to your letter relating to the confinement of persons with tuberculosis convicted on a charge of public drunkenness.
I feel sure the answer to your question can be found in Ga. Code Ann., Section 77-113 (Ga. Laws 1960, p. 769) which reads as follows:
"77-113. Disposition of tubercular prisoners-When any person confined in the common jail awaiting trial for any offense against the penal laws of this State, or there confined after conviction for any such offense, or serving therein any jail sentence imposed upon him by authority, or there committed for any civil or criminal contempt, shall be afflicted with tuberculosis, the judge of the superior court may order his delivery by the sheriff to the superintendent of the Battey State Hospital or such other institution as may be approved and supported by the State Board of Health for the case of tubercular patients, and thereupon he shall be so delivered and received, and he shall be there securely confined, kept and cared for.
"The period of time such person is thus kept and confined in such hospital or institution shall be credit.ed upon any jail sentence being served by him in the same manner as though he had remained in such jail. Any such person committed for any civil or criminal contempt while in such hospital or other institution shall remain for all purposes under the orders, jurisdiction and authority of the court committing him for contempt in the same manner as though he had remained in such common jail." (Emphasis supplied.)

PROFESSIONS, BUSINESSES AND TRADES-Billiard Rooms (Unofficial)

Operators of billiard or pool rooms must obtain license and are subject to regulation under Georgia Code Ann., Chapter 84-16.

Judge Sam S. Harben The Juvenile Court of Hall County

July 20, 1962

84-1T6hipseirstaiinnirnegplytotothyeoluirceqnuseisntgioanncdornecgeurnlaintigonGeoofrgbiialliCarodderoCohmasp.teIr

384
understand from your letter that you have found counties where the Tax Collector is making no attempt to license persons for the operation of billiard rooms.
You have stated that the Tax Collector in one of your neighboring counties is of the opinion that this Code Chapter was repealed in 1951 and for this reason billiard rooms are not regulated or licensed in that county.
The General Tax Act, which was enacted in 1935, (Ga. Laws 1935, pp. 11-72), provided in Paragraph 19 for a State license fee upon each person operating for public use any billiard or pool table. In 1951 the General Assembly enacted the Georgia Retailers' and Consumers' Sales and Use Tax Act and at the same time, but in a different piece of legislation, repealed many of the business occupation taxes (Ga. Laws 1951, pp. 157-175). Section 1 of the Act of 1951 repealed Paragraph 19 of the 1935 General Tax Act which imposed the tax upon operators of billiard or pool tables.
The State business license tax referred to in the General Tax Act of 1935, which was repealed in 1951, was not connected in any way with Georgia Code Chapter 84-16. It is my opinion that any person who operates a billiard room within a city or incorporated town without having applied for a license as provided for in Sections 84-1603 to 84-1605 would be guilty of a misdemeanor (Code Section 84-9924).
I have examined my files and I find no contrary opinions having been expressed by this office.
PROFESSIONS, BUSINESSES AND TRADES-Dispensing Opticians Act (Unofficial)
Discussion of laws pertaining to prescription and sale of eye glasses.
April 30, 1962
Dr. Dilliard L. Nix Athens, Georgia
This will acknowledge receipt of your letter in which you ask five questions pertaining to the sale and prescription of glasses.
Your first question is:
(1) Under the Optical Opticians Act can an Opthalmologist (M. D.) who is not a licensed Optician accept and fill prescriptions written by other doctors and Optometrists?
The Dispensing Opticians Act (Ga. L. 1956, p. 148; Ga. Code Ann., Ch. 84-35) is expressly not applicable to a medical doctor or to. an Optometrist. I direct your attention to the definition of "dispensu~g optician" found in Code, 84-3502, and to the provisions found Ill

385
Code, 84-3513, which relate to the exemption of the Act to Optometrists and Physicians.
Your second question is:
(2) Can he sell and retail glasses on an M.D.'s license?
Code, 84-901 defines the practice of medicine. I am sure that you are familiar with its provisions. Code, 84-906 prohibits the practice of medicine without a license and provides therein for exceptions.
Code, 94-916, as amended, enumerates the grounds for revocation or suspension of a license. I direct your attention specifically to the numbered paragraphs 13, 14, 16, 18 and 19. It is thus apparent that the Medical Practice Act (Ga. Code Ann., Ch. 84-9) would not seem to prohibit such practice.
Code, Chapter 84-11, relates to the practice of Optometry. The practice of Optometry is defined by Code, 84-1101. 84-1107 provides a penalty for the violation of the provisions of the Optometry law, and 84-1108 provides exceptions from the operation of the Chapter. Therein is contained the following language:
"Nothing in this Chapter shall be construed to apply to physicians and surgeons duly licensed to practice medicine, nor to prevent persons from selling spectacles or eye glasses on prescription from any duly qualified optometrist or physician, .. .''
It thus appears that there is no expressed statutory prohibition as to a physician selling and retailing glasses.
Your third question is:
(3) Also does an Optometrist on his license have the legal right to fill other doctors' prescriptions and retail glasses?
From the language quoted above, it would appear that there is no e~pressed statutory prohibition to preclude an Optometrist from filling the prescription of either a licensed Optometrist or a physician and retailing glasses.
Your fourth question is:
(4) Should glasses sold by these people come under the 3% sales tax of Georgia?
I am aware of no exemption nor exception under which the sale of glasses at retail would be exempt from the 3% sales and use tax Provided by law.
Your fifth question is:
th .(5) I understand that an M. D. and Optometrist can dispense e1r own glasses, but can they from another M.D.?
h I. believe the answer to this question is contained in the answers ereinabove given. To remove any question, I am aware of no exPress statutory prohibition therefrom.

386

PROFESSIONS, BUSINESSES AND TRADES-Engineers
Discussion of laws regulating licensing and practicing of professional engineers.

Sept. 20, 1962

Honorable C. L. Clifton Joint Secretary State Examining Boards

This is to acknowledge receipt of your letter requesting an opinion for the State Board of Registration for Professional Engineers and Land Surveyors.
Your first question reads as follows: "Do the laws regarding the registration of professional engineers apply when the persons or firms involved offer engineering services to the Federal government and even though the Federal government does not require registration as a contractual obligation?"

Code Section 84-2102 reads as follows:

"84-2102. Unlawful acts.-It shall be unlawful for any per-

son to practice or to offer to practice in this State, professional

engineering or land surveying, as defined in the provisions of

this Chapter, or to use in connection with his name or other-

wise assume, use, or advertise any title or description tending

to convey the impression that he is a professional engineer or

land surveyor, unless such person has been duly registered

under the provisions of this Chapter."



Code Section 84-2138 exempts certain people from the provisions of this Act, and Sub-section (d) of this section exempts officers and employees of the Government of the United States while engaged within this State in the practice of professional engineering or sur-
veying for the Government.

It is my opinion that the Act creating this Board would not apply to officers and employees of the Government of the United Stat~s while engaged within this State in the practice of professional engineering or surveying for the Government.

Your second question reads as follows: "If I, as a friend of the Federal Government, become aware of malpractice on the part of th~ persons or firms doing business with the Federal Government, maY not refer such malpractice to the State Board of Registration for appropriate action, i.e., possible revocation of professional licenses of
the individuals concerned?"

Code Section 84-2140 provides for the revocation of registration certificates and reads as follows:
"84-2140. Revocation of registration certificates.- The Board shall have the power to revoke the certificate of registration of any registrant who is found guilty of:

387
(a) The practice of any fraud or deceit in obtaining a certificate of registration.
(b) Any gross negligence, incompetence, fraudulent act of misconduct in the practice of professional engineering or surveying as a registered professional engineer or land surveyor."
Of course, you may if you so desire report any irregularity on the part of any person holding a certificate issued by the Board.
Your last question reads as follows: "If registration of at least key personnel of a firm is necessary for that firm to offer engineering services to the public (including the Federal Government), cannot the State refuse to license such firm to do business unless and until this condition is met? Further, cannot the State revoke the license of such firm or bar from doing business in the State, if it is established that the foregoing condition has not been met?"
In reply to this question, it is not clear in my mind as to just what your request is. It is my understanding that the Board does not issue certificates to firms. Code Section 84-2135 reads as follows:
"84-2135. Practice by partnerships, corporations, or associations.-A firm, corporation, copartnership, or an association may engage in the practice of professional engineering or land surveying in the State: Provided only such practice is carried on under the direction of professional engineers or land surveyors respectively, who are registered in this State."

PROFESSIONS, BUSINESSES AND TRADES-Fund Raising Organizations (Unofficial)

County United Community Fund organization would not be re9U~red to register under Regulation of Professional Fund Raising Act !fIt is part of a statewide parent organization which has registered or
If solicitation of contributions is confined to county.

Mr. William F. Grant Elberton, Georgia

July 11, 1962

.Thank you for your letter inquiring as to whether the Elbert County
Umted Community Fund, inc., is required to register as a "charitable ~ganization" pursuant to the provisions of an Act of the General "~sembly (Ga. L., 1962, p. 496), approved March 3, 1962, entitled negulation of Professional Fund Raising."

If your organization has a contractual affiliation with a statewide rarent charitable organization, then it would not be required to regiser separatelyby virtue of the exemption provided by Section 3(e) of the Act. Also, if the solicitation of contributions by your organization

388
is confined within Elbert County, then it would not be required to register by virtue of the exemption provided by Section 3 (c) of the Act.
If there is any doubt in your mind as to registrability, I would advise registration because it is easily effectuated. A copy of the Act is enclosed for your convenience.
PROFESSIONS, BUSINESSES AND TRADES-Nurses (Unofficial)
Licensed nurse is not prohibited from giving intravenous medicine to patients in hospital, and such acts if done under proper orders would not constitute practice of medicine.
August 8, 1962
Mr. Whitelaw H. Hunt The University Hospital Augusta, Georgia
We appreciate your letter in regard to registered nurses giving intravenous medicine to patients in the Hospital. The first and second paragraphs of your letter read as follows: "From time to time the question arises whether or not registered nurses are permitted to give intravenous medicine to patients in the hospital.
"Can you tell me whether or not there are any rules promulgated by the Board of Nurse Examiners or by the Board of Medical Examiners or any laws enacted by the legislature dealing with this procedure?"
I have been unable to find any law that would prohibit a licensed registered nurse from giving intravenous medicine to patients in a hospital. It is my opinion that a licensed registered nurse may give intravenous medicine to a patient in a hospital, and that such acts on her part if done under orders and under the direct supervision of a licensed medical doctor would not be a violation of the law. It is further my opinion that such services rendered by a licensed nurse could not be construed as practicing medicine as defined by Georgia Code Ann., Section 84-901 above set out.
PROFESSIONS, BUSINESSES AND TRADES-Podiatrists
Discussion of law limiting manner in which podiatrist may ad vertise.
May 18, 1962
Honorable Charles W. Beasley, President Georgia State Board of Podiatry Examiners
This is to acknowledge receipt of your letter requesting an opiniod as to whether or not the members of your profession would be allowe

389
to use any words or figures in the telephone directory other than "Name, Professional Title, Address, Telephone Number, and Office Hours."
The law regulating and providing the manner in which members of your profession may advertise is set out in Ga. Code Ann., Section 84611, which reads as follows:
"84-611. Limitations on advertising-A podiatrist may advertise his practice to the public only by the listing of his name, professional title, address, telephone, and office hours on the doors and windows of his office (in letters not more than three inches square) ; on professional cards and stationery, and in the personal and classified sections of telephone directories, all names being in alphabetical order and in standard size uniform print."
It is my opinion that a podiatrist is prohibited under the above quoted Code Section from advertising in the telephone directory anything more than his name, professional title, address, telephone number and office hours.
PROFESSIONS, BUSINESSES AND TRADES-Podiatry and Osteopathy
Podiatry and osteopathy discussed.
May 28, 1962
Dr. Charles W. Beasley, President Georgia State Board of Podiatry Examiners
This is to acknowledge receipt of your letter requesting an opinion from this office on two questions, the first question being as follows: "Can representatives of shoe manufacturers in Georgia take plaster of Paris casts of the foot for the purpose of making moulded shoes?"
The answer to this question is. in the affirmative. This is provided for in Ga. Code Ann., Section 84-610, which reads as follows:
"84-610: Limitations of application of this Chapter.- This Chapter shall not apply to any legally licensed medical doctor, nor shall it prohibit the fitting, recommending, or the sale of corrective shoes, arch supports, or similar mechanical appliancP.9 by retail dealers or manufacturer~'!: Provided, howevp.z, that such dealers or manufacturers shctll not be entitlPd co practice chiropody as in this Chapter defined, unless duly licensed to do so as hereinbefore provided."
Your second question reads as follows: "Does either the Georgia Podiatry Law or the Georgia Osteopathic Law supersede or take preference over the other in cases of professional infringement?"

390
The law defining Chiropody (Podiatry) is contained in Ga. Code Ann., Section 84-601, which reads as follows:
"84-601. "Chiropody" defined; amputations; use of anaesthetics.-"Chiropody" (podiatry) for the purpose of this Chapter, means the diagnosis, medical, surgical, mechanical manipulative and electrical treatment limited to the ailments of the human foot and leg. No chiropodist shall do any amputation or use any anaesthetic other than local."
The law with respect to the licensing of osteopaths is set out in Code Section 84-1201. As pointed out by the Supreme Court of the State of Georgia, in the case of Mabry v. the State Board of Exam iners, 190 Ga. 751, at page 755.
"Unfortunately for the courts, when enacting Chapter 84-12 relating to osteopathy in 1909, the legislature did not define the meaning of osteopathy, but left its meaning to be determined by how it was taught and practiced in reputable colleges of osteopathy. The language of the statute of necessity requires an examination of these facts as they are found to be in reputable colleges of osteopathy."
The Supreme Court in the Mabry case then goes on to define oste. opathy as follows:
"From these definitions it is apparent that osteopathy is based on the theory that human ailments result from disarrangement or misplacement of bones, nerves, and blood vessels, and that the cure for the ailment is the correction of such misplacement, thereby giving nature an opportunity to heal."
With reference to dealing with the problem of what courses are taught in reputable colleges teaching osteopathy, the Court reached the conclusion set out on page 761 of the Mabry decision, as follows:
"The practice of osteopathy as defined in Chapter 84-12, compels the conclusion that our legislature provided for the regulation and licensing of what it construed to be practice of medicine under the first; and that although both optometry and osteopathy are arts of healing, neither constitutes practice of medicine; and while the legislature has properly recognized osteopathy as a reputable science of healing and has set up a plan for licensing osteopathic practitioners under Chapter 84-12, it did not intend that this profession should be permitted to invade the field of optometry and other professions by adopting the methods of healing practice by such profess~mu.,, on the theory that such methods are taught and prac~Iced i~ reputable colleges of osteopathy. This legislative mtent IS clearly apparent frorn the language used in section 84-1209. While that ~Section authorizes an osteopathic licensee ~o practice osteopathy as taught and practiced in legallY mco~porated and reJ?utable colleges 0f osteopathy, it expressly confmes the authority to practice to u11teopathy, and will not support any claim of authority to practice some other theorY

391
or system of healing. To construe this section as urged by plaintiffs in error would mean that by merely teaching and practicing every known science of healing in osteopathic colleges, one holding a license under Chapter 84-12 would be permitted to practice, without restraint, all such methods of healing. This would nullify every regulatory statute of the State, having for its purpose the licensing and regulation of the practice of the various professions of healing authorized by law."
If an osteopath practices within the scope of the healing art as defined and construed by the Supreme Court in the Mabry case, he is not infringing upon practitioners of other healing arts.
PROFESSIONS, BUSINESSES AND TRADES-Psychologists
License fee of $10.00 chargeable for license, granted by reciprocity, to practice psychology.
December 6, 1962
Honorable C. L. Clifton, Joint Secretary State Examining Boards
This is to acknowledge receipt of your letter in which you request an official opinion as to the fee that should be charged for granting a license to practice psychology for reciprocity in Georgia.
The law about which you make inquiry may be found in Code Section 84-3115, and reads as follows:
"84-3115. License fees.-There shall be paid to the JointSecretary, State Examining Boards, by each applicant for license by examination, an initial fee of $10. If the applicant is found eligible for licensure, he shall pay an additional fee of $15 prior to the granting of the license. A fee of $10 shall be charged for issuing a temporary license or a license by reciprocity. No part of any fee shall be returned under any circumstance." (Emphasis added.)
It is my opinion that the fee to be charged for issuing a license by reciprocity is $10.00.

392
PROFESSIONS, BUSINESSES AND TRADES-Veterinary Medicine (Unofficial)
County agent may advise farmer what might be wrong with his livestock without being in violation of laws governing practice of veterinary medicine.
November 27, 1962
Honorable George T. Smith Member, General Assembly Cairo, Georgia
This is to acknowledge receipt of your letter with reference to practice of veterinary medicine. I understand your question to be: "Does the Georgia Law of 1962, p. 543, defining the practice of veterinary medicine, prohibit or make it unlawful for a county agent to advise with the farmer as to what might be wrong with his live stock; Also, whether or not a county agent, as such, can lawfully work with the farmer in teaching him how to treat his hogs for cholera, and training him to mark his hogs?"
Georgia Laws, 1962, p. 543, Section 1, provides, among other things, as follows:
"(f) The 'practice of veterinary medicine' means the practice of any person who:
"(1) Diagnoses, prognoses, treats, administers to, prescribes for, operates on, manipulates, or applies any apparatus or appliance for any disease, pain, deformity, defect, injury, wound or physical condition of any animal or for the prevention of or to test for the presence of any disease of any animal, or to hold himself out as being able or legally authorized to act in such manner;
"(2) Practices dentistry or surgery on any animal;
"(3) Represents himself as engaged in the practice of veterinary medicine as defined in paragraphs (1) and (2) of this section;
" (4) Uses any words, letters or titles in such connection and under such circumstances as to induce the belief that the person using them is engaged in or legally qualified for the practice of veterinary medicine."
It is my opinion that a county agent may advise the farmer as to what might be wrong with his live stock, and in so doing, he would not be in violation of the 1962 Act. It is also my opinion that a countY agent may work with the farmer in teaching him how to treat his hogs for cholera and training him to mark his hogs and, in so doing, he would not be in violation of the 1962 law defining the practice of veterinary medicine.

393

PROFESSIONS, BUSINESSES AND TRADES-Veterinary Medicine (Unofficial)
Discussion of laws pertaining to practice of veterinary medicine.

December 20, 1962

Mr. W. A. Sutton, Director Cooperative Extension Service College of Agriculture University of Georgia

Georgia Laws 1962, p. 543, defines the practice of veterinary medicine and provide as follows:

"(f) The 'practice of veterinary medicine' means the practice by any person who:

"(1) Diagnoses, prognoses, treats, administers to, prescribes for, operates on, manipulates, or applies any apparatus or appliance for any disease, pain, deformity, defect, injury, wound or physical condition of any animal or for the prevention of or to test for the presence of any disease of any animal, or to hold himself out as being able or legally authorized to act in such manner."

Your first question is: "Does the Georgia Law of 1962, page 543, defining the practice of veterinary medicine or any other law, make it unlawful for a county agent to advise with farmers regarding what might be wrong with their livestock?" It is my private and personal opinion that such advice to the farmer regarding what might be
wrong with his live stock would not be practicing medicine as above defined.

Your second question reads as follows:
. "Also, would a county agent be permitted to work with farmers Ill teaching them how to treat livestock with preventive injections and/or therapeutic injections? If county agents under the law are Permitted to teach farmers regarding such injections, then please define the limits to which county agents may go and it be interpreted as teaching farmers." It is my personal and unofficial opinion that if ~county agent worked with farmers in teaching them how to treat hvestock as suggested in this question, this would not be practicing Veterinary medicine as above defined.

Your third question is: "County agents are called on constantly to

assist livestock producers with herd management practices, such as:

castrating, dehorning, hoof trimming, deworming, treatment of foot

?erot, and the like. Under the law, to what extent would county agents permitted to assist farmers with these management problems?" It

~ISoomf ytripmrimvaitneg

and personal opinion do not constitute the

that castrating, dehorning, and practice of veterinary medicine.

t' e;.vorming and the treatment of foot rot might be considered prac-

ICJng veterinary medicine under the above definition.

394
Your fourth question reads: "One of the newer practices being employed by many livestock producers is a pregnancy examination. Under the law, to what extent would county agents be permitted to assist farmers with this practice? Some County Commissioners insist that county agents treat hogs and perform other such veterinary practices beyond teaching the farmer. We need a definite ruling on this." It is my private opinion that examination to discover whether or not an animal is pregnant would not be practicing veterinary medicine as above defined for the reason that pregnancy is not considered a disease. It is my private opinion that the intention of the law is to prohibit laymen from practicing veterinary medicine as defined.
Question No. 5 reads: "A number of Georgia counties have no veterinary service available within a reasonable distance to them. Under such circumstances, or in case of emergencies, would county agents under the law be permitted to perform certain practices which they would not do under normal conditions?" I am not familiar with any rule of law that would authorize any unlicensed person to practice veterinary medicine as above defined, even though it might be a long distance to where a veterinarian lived and practiced. It is my private opinion that if a person practices veterinary medicine as above defined, that he would be in violation of Code Section 84-9923, which reads as follows:
"84-9923. Veterinarians, violation of law relating to.-Any person who shall violate or aid in violating any of the provisions of Chapter 84-15, relating to the practice of veterinary medicine and surgery, shall be deemed guilty of a misdemeanor."
PROPERTY-Realty (Unofficial)
No State surveyor available to survey private property in order to settle private dispute.
March 20, 1962
Mr. John E. Lee Savannah, Georgia
This will acknowledge and thank you for your letter outlining your situation with reference to the tract of land of thirty acres in Candler County, Georgia, which you claim to own, and part of which is in possession of other parties. You are seeking the aid of a State surveyor to make a survey of this property.
The Office of Secretary of State and Surveyor General were consolidated, Code of Georgia, Ann., 40-601, and the duties of the Surveyor General are found in Code of Georgia, Ann., 40-604. The Secretary of State advises me that they do not have any State surveyors actually employed as state employees, and the duties of Surveyor General do not contemplate that such activity be carried on. However, we find that the State Board of Registration for Professional Engineers

395
and Land Surveyors was provided by Acts 1945, pages 294, 298, and may be found in Code of Georgia, Ann., Section 84-2104. The Joint Secretary of the State Examining Boards serves as Secretary of this Board, Code of Georgia, Ann., 84-2145. Their responsibilities include conducting examinations, and issuing certificates of registration to approved surveyors. They keep a list of such surveyors, and you may obtain a copy of such list by addressing a letter to Mr. Cecil L. Clifton, Secretary of the State Examining Boards, Office of the Secretary of State, State Capitol, Atlanta, Georgia.
Of course, we believe that the employment of a professional surveyor by you will not necessarily solve your problem. It appears that you are now in controversy with other parties who hold possession of a part of the land which you claim, and merely having the survey made by a county surveyor, or a registered professional public surveyor, may not take care of your situation. In our judgment, you will no doubt be obligated to ultimately employ an attorney to represent you in recovering possession of your property.
PROPERTY-State
Georgia Historical Commission cannot accept deed from City of Columbus containing reversionary clause for land on which State funds to be used.
May 11, 1962
Mrs. Mary Gregory Jewett Secretary Georgia Historical Commission
We are in receipt of your letter requesting the opinion of this office concerning acceptance by the Georgia Historical Commission of a deed from the City of Columbus conveying certain land to be used for the establishment of a memorial for the Confederate Gunboat Musco gee.
As you know, the deed as proposed contains both a condition precedent, and a condition subsequent, the latter being a reversionary clause Which would revest title to the property in the City of Columbus in the event of an abandonment by the State of Georgia of its use as a Confederate memorial. The condition precedent presents no problem, and there is ample authority providing for a reservation of this type. The reversionary clause is not so easily disposed of.
. In 1961 the Legislature repealed Ga. Code Ann., Section 91-117 in ~ts entirety and inserted a new provision which permits in effect capItal improvements on property held by the State in fee simple and also P~operty held from the Federal government whether in fee simple or With a reversionary clause or on a long term lease. Apparently this Act strengthened the prevailing Act by using the words fee simple rather than owned. For this reason, I can only suggest the following

396
as possible practical solutions to this problem. The first would be to accept the deed as executed by the City of Columbus with the condition precedent, but without the reversionary clause. At this time I do not think the State Properties Commission would authorize acceptance of the property with the reversionary clause. The second solution would be to enter into a lease arrangement with the City of Columbus under which capital improvements such as a fence or ticket booth could be provided for as rental on the property. There would be no divesting of title from the City of Columbus in such an arrangement. Improvements to the gunboat itself could be made from appropriated funds inasmuch as title to the gunboat, which is movable property, would be in the State of Georgia. It would appear that either of these courses of action would achieve the desired ends.
PROPERTY-State
State funds may be expended for improvement of property held by State in fee simple or under quit claim deed with a reversionary interest in United States Government upon approval of proper State officials.
June 21, 1962
Mr. L. R. Siebert Executive Secretary State Board of Regents
I have for acknowledgment your letter of June 18, 1962, enclosing your file with reference to an authorized allocation of $150,000 to the Augusta College for the conversion of a building on the campus of that institution into a gymnasium, and requesting my approval of the action taken by the Board of Regents.
Your file discloses the fact that the property upon which the $150,000 is to be spent for improvements was deeded on March 17, 1959, to the Regents of the University System of Georgia by the United States of America. The Quit Claim Deed from the United States to the Regents provides that the property is "remised, released and forever quitclaimed to the said Party of the Second Part, its successors and assigns forever, all right, title, interest, claim and demand which the said Party of the First Part has in and to the following described property, reserving and excepting such rights to the Party of the First Part as may be contained in the conditions subsequent hereinafter expressed." The deed further sets out that the Regents are to have and to hold the described property subject to certain conditions subsequent which shall be binding upon and enforceable against the PartY of the Second Part. The conditions subsequent are stated as follows:
"1. That for a period of twenty (20) years from the date of this deed the above described property herein conveyed, shall be utilized continuously for educational purposes in accordance

397
with the proposed program and plan as set forth in the application of the party of the second part dated 28th day of May, 1958, and for no other purpose.
2. That during the aforesaid period of twenty (20) years, the party of the second part will resell, lease, mortgage, or encumber, or otherwise dispose of the above describe<;l property or any part thereof or interest therein only as the Department of Health, Education, and Welfare or its successor in function in accordance with its existing regulation, may authorize in writing.
3. That one year from the date of this deed and annually thereafter for the aforesaid period of twenty (20) years unless the Department of Health, Education, and Welfare or its successor in function otherwise directs, the party of the second part will file with the Department of Health, Education, and Welfare or its successor in function reports on the operation and maintenance of the above described property and will furnish, as requested, such other pertinent data evidencing continuous use of the property for the purpose specified in the above identified application."
The deed then provides that "In the event of a breach of any of the conditions set forth above whether caused by the legal or other liability of said party of the second part, its successors or assigns, to perform any of the obligations herein set forth, all right, title and interest in and to the above described property shall, at its option revert to and become the property of the United States of America, which shall have an immediate right of entry thereon."
The problem here presented as to whether a Department of the State Government can expend money for purposes of improving property held under a Quit Claim Deed with a reversionary interest in the Federal Government, is controlled by Code Section 91-117 of the Code of Georgia, Ann., (Ga. L. 1961, p. 47), which provides as follows:
"... Any real estate held by the State of Georgia in fee simple or held under a quit claim 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 Director, 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 $1,000. If the amount of the improvement funds to be appropriated is $1,000 or less, the director of the department shall have the authority to approve the appropriation without the approval of the Budget Bureau."
Pursuant to the aforesaid law, I approve the expenditure of the $150,000 on the conversion of the building into a gymnasium located on the campus of the Augusta College, subject to the consent of the Chancellor of the University System of Georgia, and the Budget Bureau consisting of the Governor and the State Auditor.

398

PROPERTY-State

State funds may be used for improvement of leased property where improvements are of such a nature as to be easily removable and lease provides that State may remove such improvements upon termination or when State no longer requires use of property.

Mr. L. R. Siebert Executive Secretary State Board of Regents

June 22, 1962

I have for acknowledgment your letter with reference to the authorization by the Board of Regents for the expenditure of funds to pay architectural fees and the cost of construction of a seismic vault to be constructed on land near Lovejoy, Georgia, leased to the Georgia Institute of Technology and requesting my approval of this action taken by the Board of Regents.

From an examination of the lease, dated December 29, 1961, covering the property upon which the seismic vault is to be constructed, it appears on the "Special Stipulation Sheet No.1" that:

" (c) Lessee may, at Lessee's option, construct small buildings on the leased premises, cause power and telephone lines to be extended to the leased premises, and improve the access road. Reasonable easement for power and telephone lines and poles and for vehicle rights of way shall be allowed by Lessor. Insofar as this stipulation (c) shall conflict with any of the foregoing provisions, the foregoing provisions shall control except that paragraph 16 is amended to read"... all fixtures, equipment,
and buildings ..."

Paragraph 16, thus amended, would read as follows:
"Lessee may (if not in default hereunder) prior to the expiration of this lease, or any extension thereof, remove all fixtures, equipment and buildings which he has placed in premises, provided lessee repairs all damage to premises caused by such removal."

Heretofore I have ruled generally that the State must have title to land before permanent improvements may be made thereon. See Opinions of the Attorney General-1954-1956, pp. 573-574. I have also previously ruled that State funds could not be used to improve property deeded to the State containing reversionary clauses which would
result in the State losing the value of any capital improvements placed thereon. Opinions of the Attorney General-1952-1953, p. 109. How ever, I have ruled that the State may legally expend money to construct improvements on land acquired by the execution of a deed containing clauses providing for the reversion of the land upon its being no longer used for a specific purpose, so long as such deed allows the State after abandonment to remove all improvements placed thereon. See Opin
ions of the Attorney General-1952-1953, p. 359.

399
In an opinion rendered by me on June 17, 1955, set out in the Opinions of the Attorney General-1954-1956, on page 655, at page 656, I ruled:
"In the past, I have consistently refused to approve conveyances of land to the State containing reversionary clauses where it was anticipated that permanent improvements would be placed on the land at state expense, and which the State would thereby stand to lose in the event the property was ever abandoned as to the uses prescribed in the respective deed. See Op. Atty. Gen. 1952-53, pp. 109, 170, 357, 359 and 502.
"One exception to this rule has been where the improvements, though considered 'permanent' in the sense that under general principles of law they would become a part of the realty, were of such a nature as to be easily removable without material damage thereto, and the deed or other instrument of conveyance contained a clause giving the State the right to remove these improvements either before or within a reasonable time after abandonment by the State. One such example arose with reference to forest fire lookout towers which from their physical size and character may be easily moved about. See Op. Atty. Gen., 1952-1953, p. 359. Large permanent structures, however, which can not be transported about feasibly, could not come under this rule.
"Similarly, I have withheld approval of leases to the State, on the basis that the same problem would arise as in the case of reversionary clauses, since after termination of the leasehold, the permanent improvements placed on the property at State expense, having become a part of the realty, would revert to the fee simple owner, thereby representing a loss to the State. . . . ."
For your information, since the date of the opinions cited above, the General Assembly of the State of Georgia has by statute, approved February 23, 1961 (Ga. L. 1961, p. 47), specifically provided for an exception to the general rule with respect to improvements made with State funds in cases where real estate is held by the State of ~eorgia in fee simple or under a Quit Claim Deed with a reversionary I~terest in the Federal Government, or under a long term Federal hcense agreement with a reversionary interest in the Federal Government, and in such cases has authorized expenditures for improvements subject to the consent of the department head and the Budget Bureau.
It is my opinion that under the provisions of paragraph 16 of the lease, granting the State the right to remove all fixtures, equipment and buildings prior to the expiration of the lease, thereby precluding any loss to the State, that the Georgia Institute of Technology may legally expend funds for architectural fees and for the construction of the seismic vault at the seismic station. The action of the Board of Regents in authorizing the same has my approval.

400
PROPERTY-State
Authority to determine whether property at Georgia Training School for Girls is unserviceable and should be disposed of is vested by General Assembly in Governor, not Department of Public Welfare.
July 20, 1962
Honorable Alan Kemper, Director State Department of Public Welfare
This will acknowledge your letter with reference to property owned by the State of Georgia located near Adamsville, Georgia, commonly known as the farm for the Georgia Training School for Girls, the property consisting of approximately one-hundred acres of land.
You advise that a portion of this property is used as a campus for the training school and that a considerable portion of the above acreage, in your opinion, is unserviceable and should be disposed of in order to enable the State to acquire property which is serviceable to the program of rehabilitation of delinquent boys and girls. You ask for an opinion as to whether or not the State can dispose of this property which is unserviceable.
We furnished an opinion in October, 1952, that no authority in the State Government is authorized to dispose of State property except the General Assembly, and referred to the fact that the General Assembly has authorized the Governor to sell, or otherwise dispose of, State property once he determines that the same has become unserviceable and cannot be beneficially and advantageously used under all relevant circumstances. The General Assembly, since the above opinion, has delegated certain authority to dispose of State property to certain State Agencies, but we do not find such authority delegated to the State Department of Public Welfare.
Your attention is called to the provisions of Code of Georgia, Ann., Sections 91-804 and 91-805, which read as follows:
"91-804. Unserviceable property sold.-When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury. (Acts 1882-3, p. 126.)"
"91-805. 'Proper authority' defined.-The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county. (Acts 1882-3, p. 126.)"
In the case of Dyer, et al v. Martin, et al, 132 Ga., 445, and in the case of Trapnell v. Candler County, 146 Ga. 617, the Supreme Court of Georgia in construing the above quoted sections held:
"When any public property shall be unserviceable, it may be sold or otherwise disposed of by order of the proper author-

401
ity. Public property becomes unserviceable in the purview of this law, so as to empower the proper authority to sell the same, when such property can not be beneficially or advantageously used under all the circumstances."
The usual procedure followed in the sale and disposition of State property is for the proper State department head to submit to the Governor for determination a statement that the property has become unserviceable, and can not be beneficially or advantageously used under all the circumstances, and the Governor is the proper authority to make determination if the property is actually unserviceable and should be sold or otherwise disposed of. It is our opinion that the Governor in his discretion would be authorized to make this determination and sell the said property or exchange it for other property which is serviceable for the use of the said training school.
You are, of course, familiar with the procedure for the acquisition of the property under the direction of the State Properties Committee.
PROPERTY-State
Board of Corrections may allow citizens of Lee County to use road on state property, but executing an instrument to this effect might be construed as granting more than a mere usufruct.
August 23, 1962
Honorable J. M. Forrester Director State Board of Corrections
This will acknowledge and reply to your letter relating to the Preparation of a suitable instrument to be executed between the State Board of Corrections and Lee County for the use, by the citizenry of Lee County, of a road existing on State property.
Although I advised you on June 28, 1962, that there is no constitutional or statutory prohibition against such use, I am further of !he opinion that the Board of Corrections should not execute any mstrument for this purpose. Any such instrument would necessarily convey some right, more than a mere usufruct, and consequently Would be unadvisable.
Enclosed herewith I am returning the instrument now existing between Lee County and the State of Georgia.

402
PROPER'fY-State
State Board of Corrections cannot, without specific Legislative permission, lease grazing rights on state property under Board's jurisdiction.
August 23, 1962
Honorable J. M. Forrester Director State Board of Corrections
This will acknowledge your letter in which you request my opinion with reference to the leasing of grazing rights on property to which the title is vested in the State of Georgia.
The following concise language is an excerpt from a decision of the Supreme Court of Georgia relating to this problem.
"The problem arises from the fact that only the Legislature can dispose of State property, unless of course the Legislature has given some official this authority." Western Union Telegraph Co. v. W. & A. R. R. Co., 142 Georgia 532, 534.
A search of the statutes of the State of Georgia has revealed no such authority in the State Board of Corrections. While a license or lease may be worded so as to preclude the granting of an interest in the land, i.e., giving only a usufruct, even those statutes which authorize certain commissions to sell or lease lands have never been construed so as to authorize the grant of a lesser interest than a fee simple estate. Opinions of the Attorney General, 1957, pp. 252, 253.
While the opinion cited above is not directly in point, I feel that it is nonetheless applicable and that the contemplated action on your part would not be advisable.
PROPERTY-State
Unauthorized anchoring of boats in state park constitutes trespass punishable as misdemeanor.
Sepember 21, 1962
Mr. H. D. Struble Assistant to Director Georgia Department of State Parks
Your letter concerning the unauthorized anchoring of house boats at Red Top Mountain State Park has been received.
You are correct in your view of the situation that a trespass is being committed. I call your attention to Code Section 26-3004.
"26-3004. Trespass on public property.-Any person who for any purpose shall enter upon any property owned, leased,

403
or otherwise under the care, custody, control, supervisiOn or operation of the State or any of its agencies, where such property has been closed to the public, by executive order of the Governor or by order of the official in charge of the State agency or department having supervision over such property, or by oral or written order of the official or employee having immediate supervision over such property, shall be guilty of a misdemeanor and punished as provided by law: Provided, however, that notice of such closing is first given to the public, either by posting of appropriate signs at the entrance to such property, or by actual communication to such person by the official in immediate supervision of such property, or his agents or employees: Provided, however, this section shall not apply to employees of the agency concerned authorized to enter the property for purposes of care, custody, maintenance or inspection. (Acts 1956, p. 9.)"
Another remedy to which the State may wish to avail itself would be civil in nature and could possibly be based as a suit to abate a continuing trespass. If this remedy were sought an injunction could probably be obtained from the Superior Court Judge of the Judicial Circuit in which the trespass is occurring.
In view of the fact that the notice required by the foregoing Code Section has apparently been given, it is my opinion that no further ground work need be taken no matter which of the two courses of action is chosen as the most feasible.
PROPERTY-State
Georgia Farmers' Market Authority may grant easement to Clayton County Water Authority for purpose of laying, constructing and maintaining a waterline across property owned by Farmers' Market Authority.
October 9, 1962
Honorable S. Ernest Vandiver Governor, State of Georgia
This will acknowledge your request for my opmwn concerning the authority of you as Governor and as Chairman of the Georgia Farmers' Market Authority to execute an easement to the Clayton County Water Authority for the purpose of laying, constructing and maintaining a waterline across and through the property of the Georgia Farmers' Market Authority in Clayton County, Georgia.
An Act known as the Georgia Farmers' Market Authority Act, approved February 23, 1955, Ga. L. 1955, p. 224, and in particular Section 5 thereof confers certain powers upon the Authority. Paragraph (b) provides "To acquire, by purchase, lease, gift or otherwise,

404
and to hold, lease and dispose of in any manner, real and persona! property of every kind and character for its corporate purposes."
Paragraph (d) provides:
"To make such contracts and agreements as the legitimate and necessary purposes of this Act shall require, and to execute and perform lease contracts for projects as permitted by this Act, and to make all other contracts and agreements as may be necessary to the proper performance of any action permitted hereby."
Paragraph (e) provides:
"To build, rebuild, construct, reconstruct, repair, improve, extend, enlarge, modernize, equip, maintain, own, operate, manage and lease projects located on property owned by the Authority, and to pay the cost in whole or in part of any such action or actions from the proceeds of bonds." Paragraph (g) provides:
"To exercise any power granted to private corporations not in conflict with the Constitution and laws of this State nor with other provisions of this Act." Paragraph (h) provides:
"To do and perform all things necessary or convenient to carry out the powers conferred upon the Authority by this Act."
From the above it appears that the Georgia Farmers' Market Authority is authorized to execute the easement to the Clayton County Water Authority for the purpose of laying, constructing and maintaining a waterline across and through the property owned by the Authority in Clayton County, Georgia.
PROPERTY-State
State Department of Welfare does not have authority to grant easement over state property for sewer installation by Fulton County since any such disposition of state property is exclusive province of General Assembly.
October 10, 1962
Honorable Alan Kemper, Director State Department of Public Welfare
We have your letter enclosing a proposed sewer easement across State property in Fulton County which sewer easement has been requested by Fulton County. You ask if you have authority to execute this easement, or provide Fulton County a permit, or other document, to authorize this sewer line to be constructed across the State property.

405
We call to your attention the Governor's powers and duties as to State property, including the following:
"Supervision of property.-The Governor shall have general supervision over all property of the State, with power to make all necessary regulations for the protection thereof, when not otherwise provided for . . ." (Ga. Code Ann., Sec;. 91-402).
In the case of Western Union v. W. & A. R. R. Co., 142 Ga. 532, 534, it was said:
". . . But no power conferred upon the Governor by the code authorizes his consent to the sale of any property of the State, or any easement or interest in the State's property. The power to dispose of property belonging to the State is vested in the legislature. 36 Cyc. 870. And the Governor would have no right to usurp the legislative function in the matter of contracting away the State's property, or any interest therein .....''
In an opinion furnished to the State Parks Department on December 23, 1948, Opinions of Atty. Gen. 1948-49, p. 230, having to do with the proposed construction of a dam across a small creek, we indicated that a permanent easement across the property may be granted only by the General Assembly.
On October 5, 1953 we furnished an opinion to the State Welfare Department with reference to a proposed electric power line across State property advising that an irrevocable easement may not be granted, but that a revocable permit to cross State property by public utility corporations, if such permits do not establish a permanent easement on the property, and are for the purpose of obtaining services from such utility itself for use by the State, might be permitted. Opinions of Atty. Gen. 1952-53, p. 504.
On January 12, 1954 an opinion was furnished to the State Department of Public Welfare advising that the department does not have the legal authority to grant an easement to private parties to allow them use of State sewerage facilities and to encumber State Property. In this instance we expressed the view that the proper Procedure would be for the matter to be passed upon by the General Assembly of Georgia, and that the State Department of Public Welfare does not have authority to enter into such encumbrance and use of State property. Opinions of Atty. Gen. 1954-56, p. 657.
On July 26, 1957 we furnished an opinion to the Georgia Forestry Commission advising that an easement over State property may be g~anted only by the General Assembly. In this case the Atlanta Gas Light Company wanted to cross State property and a proposed license a?'reement, including a 12 months' right of revocation clause was ~Iscussed. It was indicated that such a restriction might prevent the hcense from becoming an easement by virtue of the utility's incurring expenses with respect thereto, under the wording of Code of Ga. Ann., 85-1404. Such document if used, of course, would have been subject
t? approval by the General Assembly at the next Session. We do not
find any such approval by the General Assembly.

406
Again on April 21, 1959 we furnished an opinion to the Welfare Department with reference to a proposal for a water line across State property used by the Georgia Training School for Boys in Baldwin County. Again we indicated to you that easements over State property may only be granted by the General Assembly. It is appropriate to quote from the last sentence of the 1959 opinion to you as follows:
"I am of the opinion that the execution of this document would grant an easement over State property and that such an easement may be granted only by authority of the General Assembly. I do not find where the General Assembly has by. any provision authorized the State Department of Public Welfare to grant such an easement. It may be that the provision in the proposed contract reserving the right of revocation after giving eighteen months written notice would take this out of the rule laid down in Section 85-1404 of the Code of Georgia, and upon this theory you may be willing to execute the document and take the risk of obtaining ratification of your action, by the next general assembly, which decision would be a matter of policy to be determined exclusively by you as Director of the State Department of Public Welfare."
We understand that the contract of the proposed water line was executed, but that the General Assembly has never approved or ratified the action of the Welfare Department in authorizing this construction.
Consideration has been given to the provisions of Code of Ga. Ann., 85-1404, and we feel impelled to quote this Code section to you as follows:
"85-1404. (3645) Parol license; revocation; easement running with Iand.-A parol license is primarily revocable at any time, if its revocation does no harm to the person to whom it has been granted; but is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easement running with the land. (3 Ga. 87; 49 Ga. 19; 53 Ga. 247; 69 Ga. 115; 93 Ga. 74 (19 S. E. 820) .) "
In your letter regarding the request from Fulton County it is not indicated that the State has any need for the sewer line. We would suggest that you give consideration if such a sewer line would enhance or detract from the value of the State property, especiallY if a sale of any of this property might hereafter be anticipated.
It is ap'propriate to take cognizance of the fact that the construction of a sewer line is more nearly in the nature of a permanent installation, and occupies a different position from a public electric or telephone line on top of the ground, or a gas pipe or water line constructed at a shallow depth and easily removed if necessary. However, the construction of a sewer line, in our opinion, constitutes a different situation, as indicated to you in our opinion of January 12, 1954. We feel constrained to express apprehension that the existence of such a line, unless ratified by the General Assembly, and without action

407
by the State for its removal, could ripen into a permanent easement with the incident vested rights accruing to the grantee therein.
It is my view, therefore, that the proper procedure would be for this matter to be passed upon by the General Assembly of Georgia, and that the State Department of Public Welfare does not have authority to enter into such encumbrance and use of State property.

PUBLIC HEALTH-Commitment in Mental Hospital

Involuntary commitment in Milledgeville State Hospital is not tantamount to an adjudication of incompetence and where Superintendent has not imposed any restriction upon patient, patient may exercise civil rights including right to receive funds and property by
inheritance without intervention of a guardian.

September 7, 1962

Honorable John H. Venable Director Georgia Department of Public Health

I wish to acknowledge receipt of your letter in which you state that:
"Mrs. _______________ , having been involuntarily committed to Milledgeville State Hospital under the 1960 law, has since been the recipient of a bequest. The executors of the estate have raised the question as to whether Mrs. ______________ is eligible under the 1960 law to receive funds or property by inheritance without intervention of guardian."

I also wish to acknowledge receipt of a certificate signed by Dr. I. H. MacKinnon, Superintendent of the Milledgeville State Hospital, under date of August 30, 1962, which states as follows:

"State of Georgia, Baldwin County To Whom it May Concern:

"This is to certify that Mrs. ______________ was received at the
Milledgeville State Hospital in November 1960 on commitment by Court of Ordinary in Fulton County, Georgia, under the authority of Act 618, Georgia Laws 1960, and that no limitations have been or are now imposed upon Mrs. ____________ and the clinical records of Mrs. ____________ contain no such limitations, as
would restrict her from exercising all of her civil rights, including the right to execute instruments, enter into contractual relationships, dispose of property, etc.

"Given under my hand and the seal of the Milledgeville State Hospital this 29 day of August 1962.

"SEAL: (Seal)

(Signed) I. H. MacKinnon, M. D.
I. H. MacKinnon, M. D. Superintendent"

408
Section 16 of the Act 618, Georgia Laws of 1960, page 837, entitled, "Observation, Treatment, Etc. of Mentally III Persons", unofficially codified as Section 88-1606 of the Georgia Annotated Code, provides in part as follows:
"Right to communication and visitation; exercise of civil rights. (a) Subject to the general rules and regulations of the hospital and except to the extent that the superintendent determines that it is necessary for the medical welfare of the patient to impose restrictions, every patient shall be entitled ...
"(3) to exercise all civil rights, including the right to dispose of property, execute instruments, make purchases, enter contractual relationships, and vote, unless he has been adjudicated incompetent and has not been restored to legal capacity."
Section 16 above quoted unequivocally reveals that involuntary hospitalization is not tantamount to an adjudication of incompetence. Consequently, the patient was not adjudicated an incompetent by virtue of such hospitalization, and I will assume, not having been advised to the contrary, that the patient has not been so adjudicated in any other proceeding.
In view of the fact that the Superintendent of the Milledgeville State Hospital has not imposed any restrictions upon the patient, in the exercise of her civil rights, including the right to dispose of property, execute instruments, make purchases, enter into contractual relationships and vote, it is my official opinion that Mrs. ______________ is legally competent and eligible to receive funds and property by inheritance without the intervention of a guardian, and that the executors of the will should deliver the legacy to the patient.
The written determination of the Superintendent should be made a part of the clinical record of the patient, and a copy of the determination and certificate should be furnished to the executors.
PUBLIC HEALTH-Commitment of Mentally Incompetent Persons (Unofficial)
Definition of words "three nearest adult relatives" within meaning of statutes governing commitment proceedings for mentally incompetent persons.
March. 30, 1962
Memorandum to The Ordinaries of the State of Georgia
Recently, I have received several requests from Ordinaries for a definition of the words "three nearest adult relatives" as used in connection with the admission and discharge of persons to and from the Milledgeville State Hospital. In view of the interest in this matter and the importance of your contribution to the judicial system of

409
the State of Georgia, I have prepared this memorandum for your assistance.
The words "three nearest adult relatives" are employed in Sections 49-604, 49-610.2 and 88-1606(b) of the Code of Georgia, Annotated, which provide as follows:
"49-604. (3092) Examination of capacity to manage estate. -Upon the petition of any person, on oath, setting forth that another is liable to have a guardian appointed (or is subject to be committed to the Milledgeville State Hospital), and upon proof that 10 days' notice of such application has been given to the three nearest adult relatives of such person, or that there is no such relative within the State, or where such notice is waived in writing by such relatives, the ordinary shall issue a commission directed to three reputable persons, two of whom shall be practicing medical physicians in good standing, said physicians to be residents of the county, if that number reside therein, and the county attorney, or some attorney of the county appointed by said county attorney (or, in case of disqualification of the county attorney, an attorney appointed by the ordinary of the county), or the solicitor of any city court located in said county, and, if no county attorney or solicitor of said city court, the solicitor general of the circuit or some attorney of the county appointed by him, requiring them to examine by inspecting the person for whom guardianship or commitment to the Hospital is sought, and to hear and examine witnesses on oath, if necessary, as to his condition and capacity to manage his estate, and to make return of such examination and inquiry to the said ordinary, specifying in such returns under which such classes they find said person to come.... (Acts 1834, Cobb, 343. Act 1838, Cobb, 345. Acts 1955-6, p. 151; 1889, p. 70; 1897, p. 109; 1901, p. 38; 1915, p. 20; 1918, p. 162; 1931, p. 184; 1950, pp. 14, 15.)" (Emphasis supplied.)
"49-610.2. Appointment of commission to examine petitioners; service on relatives and guardian; hearing after 10 days. -Upon the filing of such a petition the ordinary shall issue a commission directed to three persons having the same qualifications as now prescribed by section 49-604 for the examination of insane persons before their commitment to Milledgeville State Hospital, a copy of which commission shall be served upon the three nearest adult relatives within the State of the person claiming to be restored to sanity and upon the legally qualified guardian of such person (if he or she has a guardian residing in this State). If there are less than three adult relatives within the State, then such copy shall be served upon all adult relatives in the State less than three in number and if there is no adult relatives within the State, then a copy shall be served upon a guardian ad litem appointed by the court of ordinary for said purpose, which guardian ad litem which shall be made available to the members of said commission. After 10 days from the expiration of said notice to adult relatives

410
and legally qualified guardian, if any, or to the guardian ad litem, or where such notice is waived in writing by such relatives, guardian or guardian ad litem, said commission shall examine the applicant in the same manner provided by section 49-604 for commission to said hospital or for the appointment of a guardian, after taking the oath now provided by law in such cases. (Acts 1947, p. 1147; 1957, pp. 110, 111.)" (Emphasis supplied.)
"88-1606. Hospitalization upon court order; judicial procedure; review....
(b) Ten days written notice of the hearing on the application shall be given by the court of ordinary to the alleged patient or his attorney or guardian ad litem and to the three nearest adult relatives of such person residing within the State, one of such adult relatives being the spouse of the patient, if any, if such spouse resides in the State. Such notice may be waived in writing by such persons but may be waived in writing on behalf of the alleged patient only by his attorney or guardian ad litem. (Acts 1960, pp. 837, 842.)" (Emphasis supplied.)
The Supreme Court of Georgia has held in several cases that the notice prescribed by Code Section 49-604 is jurisdictional and that any proceeding thereunder without requisite notice to the three nearest adult relatives of the alleged incompetent is void and is subject to collateral attack.1 Manifestly, the service of such notice is equally crucial under Code Sections 49-610.2 and 88-1606 (b).
Initially, we should note that each of the Code Sections requires that only the nearest relatives within this State be served and that such relatives be adults. The age of legal majority in this State is twenty-one years and until that age all persons are minors.2 The Supreme Court of Georgia has held that one becomes of full age on the first moment of the day preceding the twenty-first anniversary of his birth.3
The appellate courts of Georgia have held that the "nearest adult relatives" to be served with notice as prescribed under Code Section 49-604 includes the spouse, if any, of the subject.4 Obviously, such holdings by analogy would also apply Code Section 49-610.2. Code Section 88-1606 (b) expressly provides for the inclusion of the spouse, if any, as one of the three nearest adult relatives.
1. Milam v. Terrell (1958 214 Ga. 609 (2), 204, 104 SE 2d 219; Blackwell v. Parks (1928) 166 Ga. 631 (2), 144 SE 24; Morton "f, Sims (1879) 64 Ga. 298(3), Smith v. Nuckolls (1961) 103 Ga. App. 733, 120 SE 2d 326.
2. Code Sections 74-104 and 79-208; Dent v. Cock (1880) 65 Ga. 400 (1).
3. Thomas v. Couch (1930) 171 Ga. 602 (1), 606, 156 SE 206. 4. Phillips v. Phillips (1947), 202 Ga. 776, 44 SE 2d 767; Anderson
v. Smith (1947), 76 Ga. App. 171(2), 176, 45 SE 2d 282.

411

In 1928, the Supreme Court of Georgia in Blackwell v. Parks/' aside from the spouse of the subject, precisely defined the meaning of the word "nearest" as employed in Section 3092 of the Civil Code
(1910), a predecessor of Code Section 49-604. The court in Blackwell held as follows:

"3. The Civil Code (1910), 3931, par. 4, stating the rules of inheritance in this State, declares that "children stand in the first degree from the interstate," and that "lineal descendants of children stand in the place of their deceased parents; and in all cases of inheritance from a lineal ancestor, the distribution is per stirpes and not per capita." In par. 5 it is declared: "Brothers and sisters of the intestate stand in the second degree," etc. Resort may be had to these provisions of the Code for a definition of the word "nearest" as employed in section 3092, in determining who are the three nearest adult relatives of the alleged imbecile; and, construing the provisions of both sections, the children of a deceased child of the alleged imbecile stand related in the first degree, whereas the sister stands related in the second degree; and consequently, as between the sister of the alleged imbecile and the adult child of a deceased child of the alleged imbecile residing in this State, the latter is the nearest related and is the one to be served with notice in the proceedings to appoint the guardian."

Section 3931 of the Civil Code (1910) stating the rules of inherit-

ance is the predecessor of Section 113-903 of the Code of Georgia of

1933. When we utilize Code Section 113-902 to define the nearest

relatives of the subject, aside from the spouse, if any, we find that

it provides in effect as follows:

.

(a) Children shall stand in the first degree from the subject and the lineal descendants of children shall stand in place of their deceased parents ;6

(b) Brothers and sisters of the subject shall stand in the second degree and the half-blood, both on the paternal and maternal side,
shall stand equally with the whole-blood, and the children or grand~hildren of brothers and sisters deceased shall represent and stand In the place of their deceased parents, but there shall be no representation further than this among collaterals ;7

(c) The father and mother stands in the same degree with brothers and sisters ;8

(d) In all degrees more remote than the foregoing the paternal and maternal next of kin shall stand on equal footing ;9

5. 166 Ga. 631 (3), 144 SE 24. 6. Code Section 113-903 (4). 7. Code Section 113-903 (5) . 8. Code Section 113-903 (6) . 9. Code Section 113-903 (7).

412
(e) First cousins stand next in degree and uncles and aunts stand equally with cousins ;10 and
(f) The more remote degrees shall be determined by the rules of the canon law as adopted and enforced in the English courts prior to July 4, 1776.11
In Wetter v. Habersham,12 the Supreme Court of Georgia explained the method of computing relationship under the canon law as follows:
"If a person die intestate, leaving no descendants or next of kin within these degrees expressly named and their order of preference, either personally or by representation, set down in the Code, the heirs at law are those nearest in blood to such intestate, to be ascertained according to the rules, not of the civil but of the canon law-that is, counting from the intestate up to the common ancestor, one degree for each generation, thence down the collateral line to the contestant. The number of degrees in the longer of these two lines is the degree of kindred between the intestate and the contestant. By these rules, the grandchildren of an aunt are in the third degree, and are heirs at law in preference to the great-grandchildren of a brother, who are in the fourth degree."
In order to assist you in computing the more remote degrees of relationship by the rules of the canon law, please find enclosed herewith a copy of a chart showing relationships and degrees of kindred pursuant to such rules.
The Supreme Court of Georgia has engrafted the following exceptions to the above requirements as to notice to the three nearest adult relatives:
"2. If the nearest adult relatives of the alleged imbecile are themselves the petitioners for the appointment of a guardian, the ten days notice provided for in section 1855 of the Code, should be given to three of the next nearest, or if there be no adult relatives within this state except the petitioners, then, in order that the spirit of the section as well as of the general law may be observed, the ordinary should either require the ten days notice to be given to the alleged imbecile himself, or else designate by order a guardian ad litem to receive the notice for him." Morton v. Sims (1879), 64 Ga. 298(2).
"A spouse is the nearest relative within the contemplation of the provisions of the Code, 49-604, but since the object of the law, in requiring notice of the proceedings thereunder, is to protect the public and the interest of the alleged incompetent, where it appears that the spouse is guilty of infidelity and is
10. Code Section 113-903 (8). 11. Code Section 113-903 (9). 12. (1878) 60 Ga. 193 (3), 198.

413
incarcerated in the State prison, such ten-days' notice upon the two brothers and the sister of the alleged incompetent satisfies the law, and the judgment and appointment of a guardian were not void because the imprisoned wife was not given notice." Phillips v. Phillips (1947) 202 Ga. 776, 44 SE 2d 767.
This opportunity to serve you is greatly appreciated, and if I may ever be of further service, please do not hesitate to call upon me.
PUBLIC HEALTH-Drug Inspectors
Drug inspectors do not have official authority to make arrests nor to carry weapons in the performance of their duties.
Sept. 1, 1962
Mr. P. D. Horkan Chief Drug Inspector Georgia State Board of Pharmacy
This is to acknowledge receipt of your request for an official opinion concerning the following question: "Do the Drug Inspectors have the right under the law for arrest and also to possess necessary weapons for his protection in the course of his duties?"
I doubt if your inspectors would be considered arresting officers. Code Section 27-211 of the Annotated Code of Georgia, 1933, provides that private persons may make arrests under certain conditions, and reads as follows:
"27-211. Arrest by private person.-A private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony, and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion."
Code Section 27-212 makes it the duty of a person making an arrest to carry the arrested person immediately before an officer authorized to issue a warrant. This Code Section reads as follows:
"27-21. 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."
It is my opinion that your inspector would be authorized to make ~n arrest if the offense is committed in his presence or within his Immediate knowledge. He could also make an arrest if the offense is a felony and the person committing the felony or attempting to escape.

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Of course, as above set out in Code Section 27-212, it would be the duty of the person making the arrest to comply with Code Section 27-212.
Now as to your inspectors having the right under the law to possess necessary weapons for their protection, Code Section 26-5103 provides that it shall be unlawful for any person to have or carry about his person or to have in his manual possession outside of his 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.
Code Section 26-5104 provides the manner in which a license to carry a pistol may be obtained and reads as follows:
"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."
It is my opinion that it would be a violation of the law for your inspectors to carry about their person or to have in their manual possession outside of their own home or place of business a pistol or revolver, without first taking out a license from the Ordinary of the County of their residence.
It is my opinion that such inspectors, after complying with Code Section 26-5104, would be authorized to carry a pistol in any County in this State. (Killian vs. The State, 19 Ga. App., p. 750.)
PUBLIC HEALTH-Economic Poisons Act (Unofficial)
Out-of-State manufacturer of economic poisons must designate resident as agent for service of process before distributing such poisons in State, but Act does not provide schedule of payment for such agents.
May 16, 1962
Mr. Randolph Tabb Richmond 30, Virginia
Your letter requesting information concerning process agents has been forwarded to me for reply.
The Economic Poisons Act (Georgia Code Ann., Chapter 5-15) does not provide any schedule of payment for process agents. The

415
provisions of that Act pertaining to such agents are found in numbered paragraph D of Code Section 5-1506. It reads:
"D. Every nonresident manufacturer, mixer, jobber, or distributor of economic poisons (or devices) shall at the time of registration and before selling or offering for sale his product or products in Georgia, designate to the Commissioner of Agriculture, an attorney in fact, residing in this State on which attorney in fact legal service, and process may be had so as to bring such nonresident manufacturers, mixers, jobbers and distributors under the jurisdiction of the courts of this State, in connection with the sale of economic poisons, (or devices) in this State."
PUBLIC HEALTH-Hospital Authorities (Unofficial)
Hospital authority cannot delegate to its medical staff the final authority to approve or disapprove staff members.
October 3, 1962
Mr. Arthur K. Bolton Griffin, Georgia
I am in receipt of your letter requesting my unofficial opmwn concerning the power of a Hospital Authority to bind itself to a "staff approval" feature as to staff inclusions or exclusions.
Georgia Code Ann., Section 99-1504 provides as follows:
"99-1504. Board of trustees; organization; compensation; rules and regulations; perpetual existence.-The trustees shall be residents of the participating units comprising the authority, but their successors shall be appointed as provided for by such resolution. The trustees shall elect one of their members as chairman and another as vice chairman and shall also elect a secretary and treasurer, who need not be a trustee. The trustees shall receive no compensation for their services, but shall be reimbursed for their actual expenses incurred in the performance of their duties. The authority shall make rules and regulations for its government and may delegate to one or more of its members or its officers, agents and employees such powers and duties as may be deemed necessary and proper. Such authority shall have perpetual existence as hereinafter provided. (Acts 1941, p. 243.)"
The key sentence of this Section which provides the answer to the problem at hand is:
"The authority shall make rules and regulations for its government and may delegate to one or more of its members or its officers, agents and employees such powers and duties as may be deemed necessary and proper."

416
This is the only provisiOn in the entire Chapter which deals with the delegation of the authority's statutory power, and in my opinion, this approval feature is tantamount to a delegation of authority. It is possible that a hospital staff could, for the purpose of making appointments to its own group or effecting withdrawals therefrom, be made an agent such as contemplated by the language of the Code Section. Further, if such agency were, in fact, created, it is possible that a delegation of authority such as is presently being sought could be made. However, the sentence specifically provides for a delegation of powers and duties as may be deemed "necessary and proper". The Resolution under consideration which would delegate an approval feature as to the staff composition to the medical staff itself might be proper, but could certainly not be considered necessary inasmuch as this function has been performed by the authority since the beginning of its operation without any rule or regulation requiring staff approval.
Perhaps a strong reason for advising against this relinquishment as sought by the medical staff is found in the case of Hospital Authority of the City of Marietta vs. Misfeldt, 99 Ga. App. 702, the first headnote of which reads as follows:
"1. A hospital authority created under Chapter 99-15 of the Georgia Code is subject to a suit for damages for personal injuries to one of its patients resulting from the negligence of its agents, servants or employees. Hospital Authority of Hall County v. Shubert, 96 Ga. App. 222 (99 S.E. 2d 708) ."
If the medical staff were agents of the authority for the purpose of approving or disapproving medical staff members, would not this agency also possibly subject the authority to suit as a result of the staff's negligence in failing to bar an incompetent from further participation on the staff or in admitting one without the proper qualifications? This would seem most certainly to be the case were the trustees of the authority to have actual knowledge of the incompetence without being successful in securing the staff's bar to further participation.
In conclusion it would seem there are strong legal reasons for determining that such a resolution as sought by the medical staff is beyond the purview of the act which sets out the powers and duties of the authority. However, even these reasons are not as persuasive as the policy consideration of an agency relationship which might subject the authority to suit similar to that in the case above quoted.

417
PUBLIC HEALTH-Insane Persons
Discussion of law relating to commitment of insane persons.
October 5, 1962
Dr. James B. Craig Assistant Superintendent Miiiedgeville State Hospital
Thank you for your inquiry as to the present effectiveness of a law enacted in 1838 providing for the summary commitment of insane persons.
The law you refer to is codified as Ga. Code Ann., Section 49-612, which provides as follows:
"49-612. (3101) Proceedings by third persons looking to confinement of ward.-When there shall be no guardian for an insane person, or the guardian, on notice, shall refuse or fail to confine his ward, and any person shall make oath that such insane person, for public safety or other good and sufficient reason, should not longer be left at large, the ordinary, or in his absence from the county, or when he is unable to act for any cause, the judge of the superior court before whom said oath shall be made, shall issue a warrant as in criminal cases for the arrest of such insane person, to bring him before him on a day specified; and said ordinary, or in his absence from the county, or when he is unable to act for any cause, the judge of the superior court, on an investigation of the facts, may commit such insane person to the Milledgeville State Hospital, and, if necessary, cause him to be temporarily committed to jail or to any institution (including the Milledgeville State Hospital) properly equipped to care for insane persons when approved by the ordinary or judge of the superior court hearing the cause until he can be removed to the Hospital: Provided, however, that if such insane person should be temporarily committed to an institution other than a jail, the sheriff of the county in which such insane person is committed shall be charged with the duty, responsibility and expense of safeguarding such person and of transporting him or her to and from such place of confinement to the place of trial and to the Milledgeville State Hospital, and the expense of such confinement and the proceedings shall be paid out of the estate of such insane person, if any, and if none, out of the county funds. The fees of the ordinaries of the several counties for making out commissions of lunacy and all other services connected therewith shall be $5; and the fees of sheriffs and bailiffs, for summoning juries and other services connected with cases of lunacy, shall be $3. (Act 1838, Cobb, 344; Acts 1866, p. 22; 1878-9, p. 77; Acts 1894, p. 43; Acts 1950, pp. 30, 31.)"
This Code Section has not been repealed by the General Assembly.

418
PUBLIC HEALTH-Insane Persons (Unofficial)
Procedures discussed for obtaining discharge from jurisdiction of Milledgeville State Hospital after prior adjudication of insanity.
October 23, 1962
Honorable Willie E. Ayers Greenville, South Carolina
Thank you for your recent letter stating that a patient was hospitalized in the Milledgeville State Hospital pursuant to an order of the Ordinary of Barrow County, Georgia, that the patient is presently on furlough from the Hospital and is residing in Elbert County, Georgia. You inquire as to the procedures available for procuring the patient's discharge from the jurisdiction of the Hospital.
If the patient was adjudicated insane, she would be eligible to seek the legal restoration of her sanity by pursuing the remedies provided by Code Sections 35-236 and 35-237 or Code Sections 49-610.1 to 49-610.9, inclusive. If the patient was hospitalized as mentally ill under the Mental Health Act, she would be eligible to seek her discharge by pursuing the remedy provided by Code Section 88-1613. The proper county within which to initiate each remedy and the notification requirements for each are stated in the Code Sections, copies of which are enclosed for your convenience.
PUBLIC HEALTH-Mental Health (Unofficial)
Where person committed by ordinary to out-of-state psychiatric institution, law authorizing same by implication authorizes ordinary to arrange for necessary transportation.
October 5, 1962
Honorable Charles M. Evert County Attorney Muscogee County
Thank you for your letter stating that the ordinary of your county, acting under the provisions of Code Section 49-813, frequently commits eligible persons to out-of-state psychiatric hospitals operated by the United States. You inquire as to the authority of the ordinarY to arrange with the sheriff for the transportation of such persons.
The Code Section expressly recognizes that direct commitments may be made to such out-of-state hospitals, but is silent as to t~e method of transporting the persons committed. Consequently, i~ IS my opinion that the Code Section, by necessary implication, authorizes the ordinary to arrange for the transportation of such persons. Otherwise, the aims of the Code Section would be largely frustrated.

419
Furthermore, it is interesting to note that analogous provisions of the Mental Health Act of 19601 expressly provide for the hospitalization of eligible persons in such out-of-state hospitals and for the sheriff and his deputies to furnish the necessary transportation for such persons when directed by the ordinary.

PUBLIC HEALTH-Mental Health Act (Unofficial)

Hospitalization under 1960 Mental Health Act is not equivalent to an adjudication of legal incompetence.

May 24, 1962

Honorable Bob Rollins Judge, Court of Ordinary Catoosa County

Thank you for your letter inquiring as to whether hospitalization under the 1960 Mental Health Act1 is equivalent to an adjudication of legal incompetence.

Section 16 of the Act2 provides in part as follows:

(a) Subject to the general rules and regulations of the hospital and except to the extent that the superintendent de-
termines that it is necessary for the medical welfare of the
patient to impose restrictions, every patient shall be entitled ...

(3) to exercise all civil rights, including the right to dispose of property, execute instruments, make purchases, en-
ter contractual relationships, and vote, unless he has been adjudicated incompetent and has not been restored to legal capacity. . . .

This provision clearly indicates that hospitalization under the

1960 Act is not equivalent to an adjudication of incompetence and,

therefore, no restoration of legal competence is necessary by virtue

of such hospitalization.



A copy of the 1960 Act is enclosed for your convenience.

- -1. Ga. Laws 1960, pp. 837, 844, 845; Sections 88-1607 and 88-1608 of the Code of Georgia, Annotated.
1. Georgia Laws 1960, pp. 837-856; Chapter 88-16 of the Code of Georgia, Annotated (1961 pocket part).
2. Georgia Laws 1960, p. 850; Code Section 88-1616.

420
PUBLIC HEALTH-Rabies Control (Unofficial)
Laws cited relative to rabies control.
April 26, 1962
Mr. B. B. Campbell County Agent, Butts County
I wish to acknowledge receipt of your letter relative to a problem of the control of stray dogs and foxes.
The law with respect to rabies control is set out in Code of Georgia Annotated, Chapter 88-2A. For your convenience I quote you Code Section 88-202a. :
"Enforcement by county boards of health, Rabies inspector; appointment, duties, compensation, removal, deputies, and assistants.-For the purpose of providing proper enforcement of the provisions of this Chapter, each county board of health is hereby invested with general supervisory powers, and it shall be its duty to appoint, annually within the first 15 days of January, a licensed veterinarian or other properly qualified person who shall be known as rabies inspector. Such inspector may select as many deputy inspectors to aid him as may be necessary. It shall be the duty of the said inspector, under the direction of the county board of health, to enforce the provisions of this Chapter, and to inoculate dogs or have the work done by his deputies; and, for the purpose of enforcing this Chapter, the said rabies inspector and his deputies are clothed with full police power; and the sheriff and his deputies and the police officers in each incorporated municipality shall be aides and are instructed to cooperate with said inspector in carrying out said provisions. The compensation of the inspector and his deputies shall be limited to the fees prescribed in succeeding sections of this Chapter. The said rabies inspector may be removed from office, for cause, by the county board of health. (Acts 1945, pp. 448, 449.)"
Code Section 88-207a. provides as follows:
"Impounding and redemption of unlicensed dogs.-It shall be the duty of each and every county in the State, and of every municipality over 5,000 in which the county pound is not located, to provide a suitable enclosure for the impounding of all dogs found running at large in violation of the provision of this Chapter. Where dogs are impounded, the rabies inspector shall, in some form or manner, give a notice of not less than seven days; and, if the owner thereof is known, such owner shall be given direct notice of the impounding of a dog or dogs belonging to him. If the owner is unknown the rabies inspector shall run a notice in the official organ for two weeks, giving a full description of the dog and if the owner redeems said dog he shall pay the cost of advertisement. (Acts 1945, pp. 448, 451.)"

421
Code Section 88-208a. provides as follows:
"Disposition of impounded dogs.-All dogs which have been impounded for failure to be inoculated in accordance with the provisions of this Chapter, due notice of which impounding shall have been given as provided in the preceding section, shall be humanely dispatched and disposed of when not redeemed by the owner within seven days. Where there exists a humane society in any city of the State where the provisions of this Chapter are applicable, said humane society shall have the privilege of dispatching all unredeemed dogs, should it so elect. In case the owner of any impounded dog desires to make redemption thereof, he may do so on the following conditions: He must pay for the inoculation of the dog, for the board of the dog for the period for which it was impounded, and 50 cents in addition as a penalty, as prescribed in section 88-206a. The rabies inspector may, at his discretion, sell any dog, not redeemed or claimed or otherwise disposed of, to any purchaser desiring the said dog, but said purchaser must comply with all the provisions of this Chapter. (Acts 1945, pp. 448, 451.)"
I do not know of any law in Georgia relative to the use of poisons and traps for stray dogs. I suggest that you discuss this matter with your county attorney who might in turn take it up with the Butts County Health Board.
PUBLIC HEALTH-Rabies Control (Unofficial)
Law cited relative to impounding of dogs.
March 14, 1962
Mr. John G. Kelley, Sanitarian Washington County Health Department
I wish to acknowledge receipt of your letter in which you request the section of the Georgia Code relative to rabies control, and specifically, how many days are required by Georgia law to keep a.stray dog in the pound before disposition.
Chapter 88-2a. of the 1961 Cumulative Pocket Part of the Code of Georgia Annotated deals with rabies control. In reply to your specific question I cite the provisions of Code Section 88-207a. et seq. as follows:
"It shall be the duty of each and every county in the State, and of every municipality over 5,000 in which the county pound is not located, to provide a suitable enclosure for the impounding of all dogs found running at large in violation of the provi~ion of this Chapter. Where dogs are impounded, the rabies Inspector shall, in some form or manner, give a notice of not

422
less than seven days; and, if the owner thereof is known, such owner shall be given direct notice of the impounding of a dog or dogs belonging to him. If the owner is unknown the rabies inspector shall run a notice in the official organ for two weeks, giving a full description of the dog and if the owner redeems said dog he shall pay the cost of advertisement."
PUBLIC HEALTH-State Board of Health
Board of Health and institutions under its management and control are not engaged in prohibited corporate practice of medicine by including in cost of care salaries paid to physicians.
October 17, 1962
Dr. S. C. Rutland, Deputy Director State of Georgia Department of Public Health
I received your letter in which you ask several questions concerning the tentative Cost of Care Bill, and two questions concerning the present Cost of Care Act.
You first ask if the Board of Health and institutions under its management and control are engaged in the corporate practice of medicine by including in cost of care salaries paid to physicians employed at the institutions to provide professional services to patients therein. This was evidently prompted by Dr. Goodman's letter in which he refers to "Treatment" as used in the Draft, as including treatment afforded by medical doctors. He states no corporation or corporate entity such as the State of Georgia may practice medicine. I agree in part but must disagree that the Sate of Georgia is or would be engaged in the corporate practice of medicine.
It is a generally accepted rule that a corporation can not be Iicense.d to carry on the practice of medicine. Nor as a general rule, can It engage in the practice of medicine through licensed employees. 13 AM Jur 837-Corporations; CJS Corps, 47, 956.
H~wever, there is also an exception to this general rule. This ~s recognized by most authorities in the asserted right of non-profit incorporated hospitals, dispensaries and similar institutions to em ploy physicians to render medical treatment. This is recognized ~y Professor Nadler in his book, "Georgia Corporation Law", and In many cases. Goldwater v. Citizens Casualty Company of N. Y., 7 NYS 2d 422, is a leading case for this proposition, and recognized the distinction between a charitable institution and one organized as da business enterprise for profit, which, of course, would be prohibite I do not feel that the State of Georgia would, in seeking to impose the obligation upon patients to assume the cost of their care,. be transformed into an organization generating profit from medical

423
services and treatment dispensed under its auspices. Should every patient in our State institutions pay the cost of their care there would still be no profit.
I have been unable, because of the limited time, to inquire into all the State laws, but have examined those of Michigan. Their laws include "Charges for such care, maintenance, or treatment." Mich. State Ann., Section 14.818 (1). Insofar as I have been able to determine this is the situation in practically all the States. There has never, to my knowledge, been any judicial decision upon the point, and this absence indicates no one has ever seriously contended inclusion of "treatment" in cost of care will thereby thrust a State agency into prohibited corporate practice of medicine. For these reasons I must answer your first question, "No".
You then ask if the State institutions would be engaged in the corporated practice of medicine if the present Act is amended to exclude from cost of care any cost for professional services rendered by physicians, even though salaries are continued and paid from taxes collected and appropriated for supplying such professional services. I must again answer your question, "No", and deem it unnecessary to recite more than has already been stated in answer to your first question.
In your third question, you ask whether the Department of Public Health and/or institutions under the management and control of the State Board of Health may legally sponsor a partnership practice by the physicians employed by it, and permit their salaried physicians to engage in the business of the partnership without violating Rule 16 of the State Personnel Board, or any section of Georgia Laws 1959, page 34. I am not at all certain what is meant by the term "partnership" and "engaging in the business of the partnership", but assume You have reference to a plan whereby there is separate billing by the physicians to the patients for their services, through a partnership arrangement.
First, I do not feel there would be a direct conflict with Rule 16 of the Merit System as it is, in my opinion, directed at other employment in the connotation of additional employment. However, I do believe there could and would be a conflict with Section 3 of Georgia Laws 1951, p, 34 which partially reads: "Whoever, being an 'employee' of the State of Georgia, ... accepts money or anything of value in addition to his legally authorized compensation from any source ... shall be guilty, etc." I base this upon my interpretation of the suggested partnership being an arrangement whereby the remittance Was made to the physicians by patients being billed by them.
Under the above law, if physicians draw their salaries as emPloyees, they could not accept money for any of the services rendered Under the direction and for the State even under the guise of a partnership. There could be some other arrangement, which I am not ~ttempting to suggest as either desirable or undesirable, nor as to Itsh.final legality until such is definitely drafted and submitted, under W Ich a solution satisfactory to all could be evolved. The physicians

424
might submit separate bills for treatment, and accept remittances if remittances were in some manner credited against their salaries so that they were not paid by the State to the extent they were paid by the patients. Or, another alternative might be the creation of a trust fund, eleemosynary in nature, which could be under their direction. The physicians could submit bills and the State receive any monies remitted and place the same in the trust to be used for educational and research purposes. I do not wish to entirely exclude any arrangement whereby the physicians submit bills separately but do feel they could not personally accept the remittances for any purpose, if they were also paid for these services by the state.
PUBLIC HEALTH-Student Vaccination (Unofficial)
Students in public schools must be vaccinated against poliomye. litus and smallpox unless exempt by reason of religion or health.
September 4, 1962
Honorable M. Caldwell Butler Roanoke, Virginia
With reference to your letter in which you make inquiry for a Roanoke resident as to whether under Georgia law a child must be submitted to polio vaccination before admission to the public schools of Georgia regardless of registering appropriate objection, we cite from the Georgia Code Ann., Chapter 32-9, County Board of Educa tion, Section 32-911 as follows:
"Vaccination of pupils of public schools.-The Board 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 against smallpox and poliomyelitis, and may require all scholars or pupils to be so vaccinated as a prerequisite to admission to their respective schools.
"This section shall not apply to scholars or pupils whose parent or guardian shall in writing object thereto on grounds that such requirements are not in accordance with the teachings of a recognized religious organization of which he or she is an adherent.
"This section also shall not apply to scholars or pupils whose parent or guardian shall present to said board the written statement of a practicing physician that the scholar or pupil should be exempt for reasons of health or because of previous adverse reaction to vaccination."

425
PUBLIC OFFICERS-Bond Requirements.
Discussion of laws setting forth requirements for bonding public officials.
March 7, 1962
Mrs. Rebecca L. Garrett, Chairman Honorable J. W. Claxton, Member Honorable Walter 0. Brooks, Member State Board of Pardons and Paroles
This will acknowledge and reply to your request for advice as to the statutes governing the giving of public official bonds.
Ga. Code Ann., Section 89-801 provides in part as follows:
"... Unless the context clearly discloses a different meaning, the following words and phrases as used in this Chapter shall have the following meanings:
* * *
"The words 'officer to hold public funds' shall include not only the State Treasurer, county treasurers, the State Superintended of Schools, county school superintendents, and treasurers of school districts, but also every other person, by whatever name or title called, who shall be either generally or specially elected, appointed, or employed, with the duty, in whole or in part, to receive, hold, and/or disburse on behalf of the State or any of its political subdivisions, or of any board, commission, bureau, or department, any public money or revenue."
Section 89-802 provides as follows :
"89-802. Officers affected by law.-This law is intended to relate to every public officer, who by any law is required, as one of the duties of his office, to collect any tax, money, or other revenue for the State or any of its political subdivisions, for any board, commission, bureau or department thereof, or to have, hold, keep, or account for any tax or any other revenue or money for the State or any of its political subdivisions or for any board, bureau, or department thereof. (Acts 1933, pp. 78, 79.)"
Section 89-806 provides as follows:
"89-806. Bonds required of officers holding, etc., State moneys; additional bonds or increased security, reduction of bond; new bond.-The State authorities shall require of all collecting officers and all officers to hold public money, so far as relates to moneys or revenues of the State, to give, on or before entering on the duties of their office, appointment, or employment, bond with good security for the faithful performance of the duties of their office and faithfully to account for all moneys coming into their hands, together with such other

426
conditions as the laws may require as to the official bond of the particular officer in question. If the State authority having supervision or control over the officer or the conduct of his office shall deem at any time that the bond given by such officer is insuffiicent in amount or is inadequate as to security, he shall notify such officer to give an additional bond or to increase the security; and if within the time required by such State authority the officer shall fail to give the additional bond or to make adequate the security, the State authority shall, if the same be an office the incumbent of which such State authority has the jurisdiction or power to remove, declare the office vacant, and, if it be an office the incumbent of which such State authority does not have the power to remove, shall report the same to the Governor, and thereupon, if it be an office the incumbent of which the Governor has power to remove for cause, the Governor, after giving such officer opportunity to be heard, shall have the power to declare the office vacant; or if it relate to an officer who can be removed only by impeachment proceedings, the Governor shall report the same to the General Assembly. The Governor shall have concurrent jurisdiction with all other proper authorities to require any collecting officer or any officer to hold public money to give additional bond or security. As to all tax collectors, so far as relates to State money, the Comptroller General shall be deemed to be a proper authority within the purview of this section. The Governor and/or other proper State authority shall have the jurisdiction and authority to allow any collecting officer or any officer to hold public money of the State to reduce his bond, but not below the amount required of such officer as a minimum by the laws of this State, by an order discharging the existing bonds of such officer from future liability and the giving of a new bond by said officer in the reduced amount. The Governor and/or other proper State authority shall have the jurisdiction and authority to allow any such officer to substitute a new bond for his existing bond or bonds, and to discharge the existing bond or bonds as to future liability, by an order to that effect. (Acts 1933, pp. 78, 80.)"
Enclosed herewith is a copy of House Bill No. 941 which I understand has been signed into law by the Governor. Section 2 of said Bill relates to the matter in question.
There are perhaps numerous other general statutes which maY relate indirectly to the giving of public official bonds.

427
PUBLIC RECORDS-Preservation and Reproduction (Unofficial)
Laws discussed pertaining to preservation and microfilm reproduction of public records.
March 20, 1962
Mr. Peter H. Covert Spring Valley, New York
Reference is made to your recent letter in which you request (1) "information regarding the retention and preservation of medical records and their subsequent destruction", and (2) "whether or not microfilmed records are acceptable for court cases".
As to your first inquiry, I direct your attention to an official opinion of the Attorney General, dated May 10, 1954, Opinions of the Attorney General, 1954-1956, page 505. Parts of the opinion which are pertinent to your inquiries are quoted as follows:
"Section 77-522, Georgia Code Annotated (Acts of 1943, p. 185-193) covering 'The Preservation of Documents on Which Clemency is Based' reads in part as follows:
'The Board shall preserve on file all documents on which it has acted in granting clemency, reprove, pardon or parole***.'
"The same Legislature that passed the act referred to above, also passed a bill (Acts of 1943, p. 468, at 469, Sec. 2) dealing with the destruction of records and providing in part that:
'*** any head of the Department of State charged by law with the custody of any such records may destroy the same upon his own responsibility provided he first causes microfilms of the same to be made ***.'
"The words 'such records' refers to language used in Section 1 of the Act. Here reference is made to records that are:
'***without historic value, are obsolete, are expensive to store and will serve no further useful purpose.'
The act continued by providing that the records so destroyed must not be less than seven years old. It should be noted that the authority to destroy such records is vested in the 'head of the Department of State,' a somewhat ambiguous phrase. It does not accurately describe either the Secretary of State or the head of one of the several departments of the Executive Branch of the State Government but, taken in context, probably refers to the latter.
"The 1950 session of the General Assembly passed an act to make 'photostatic, micro-photographic or photographic' reproductions admissible in evidence (Acts of 1950, pages 73-74) but did not deal directly with the destruction of documents or in anywise alter or amend the acts in question.
"* ** In any event, giving the statutes in question the broadest interpretation and application, the Board could only

428
destroy those records that are seven years old or older after (1) going on record as having found them to be, without historic value, obsolete, expensive to store and capable of serving no useful purpose, and (2) having had them microfilmed."
Also, for your information, I direct your attention to the following Code Sections which may be of assistance to you:
"40-809. [Code of Georgia Annotated, 1961 Cumulative Pocket Part] Authority of Governor to order destruction of records.-The Governor 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 purpose. Should the Secretary of State and the Director of the Department of Archives and History, after examining 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 discretion, order the same destroyed."
"40-810. [Code of Georgia Annotated, 1961 Cumulative Pocket Part] Destruction of records under requirement that microfilms be made; admissibility in evidence of photostatic copies.-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."
We have discussed this matter with authorities in the Department of Public Health who have informed us that there are no specific rules and regulations as to the retention of medical records except that such records are to be kept in a place of safe keeping so that authorized individuals may inspect them.
The preservation and destruction of hospital records is left to the discretion of the particular hospital; however, it is well to keep in mind the periods of statutes of limitation on causes of action when considering the destruction of medical records.

429

PUBLIC SAFETY-Department of Public Safety

Subsistence allowance for officers and troopers included in "outlay for personal services" on which Department bases its contribution to State Employees' Health Plan Insurance.

May 1, 1962

Colonel H. Lowell Conner Director, Department of Public Safety

Your letter has been received in which you requested my opinion as to whether or not your Department is liable to the Merit System for two per cent (2%) of the amount paid monthly on the subsistence allowance and longevity thereon.

I direct your attention to the first full sentence found on page 136 of the 1960 Volume of Georgia Laws which states:

"Subsistence allowances shall be $5.00 per day for troopers and officers and shall be in addition to all salaries and compensation and other allowances and shall also be subject to the automatic per-centage increases provided hereinbefore relative to salaries."

In 1961 an Act entitled the State Employees' Health Plan Insurance was passed to provide hospitalization and major medical insurance for State employees, financed partly by withholding an individual's share of the cost of coverage and the balance as follows:

"The various departments, boards, and agencies of the State

government shall contribute to this health insurance fund such

portions of the cost of such benefits as may be established ...

not exceeding the sum of 2% of the total outlay for personal

services . . . ."



The answer to your question then hinges on whether or not the

subsistence allowance authorized by the 1960 Act is an outlay for

personal services. Black's Law Dictionary defines subsistence as sup-

port or means of support and then includes in its definition of support

the following:



"It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes. In re Vanderbilt's Estate, 223 N.Y.S. 314."

The Georgia Legislature in 1956 authorized a designation and setting apart as a subsistence allowance of a portion of the comPensation paid peace officers, whether in salary or fees. It is to be noted that the Act carved out of the pre-existing payment method an amount to be called subsistence and added nothing to the net received by the individual. The Internal Revenue Code no longer recognizes the exclusion so the original reason which gave birth to the distinction no longer exists.

430
It is, therefore, my conclusion that despite the former recognition by the Legislature that peace officers "are required by virtue of their duties to incur expenses not generally incurred by others", there is no real distinction between wages and subsistence and that the phrase "total outlay for personal services" as found in the Health Insurance Act encompasses both.
PUBLIC SAFETY-Fire Fighting (Unofficial)
There are no laws of general application authorizing formation of fire departments to service areas other than incorporated municipalities.
November 6, 1962 Mr. F. E. Foor Wheeling, Illinois
Replying to your letter addressed to the Secretary of State, Atlanta, Georgia, you are advised that Georgia does not have any laws of general application that authorize or permit the formation of fire departments to service areas other than incorporated municipalities.
The Constitution of Georgia, Section 2-5701 (12) authorizes the levying of taxes by counties to provide for fire protection of forest lands and for the further conservation of natural resources, and Section 2-7801 provides that each county shall be a body corporate with such powers and limitations as may be prescribed by law.
This latter section has been amended on a number of occasions so as to authorize various counties to establish fire districts and to levy taxes for such purpose. For instance, Georgia Laws 1952, p. 516, copy of which is enclosed, authorized Cobb County to levy 5 mills for fire prevention districts. For like amendments, see Ga. Laws 1953 (Nov. Session) p. 247, authorizing Gwinnett County to establish and maintain a water, sanitation, sewerage and fire protection district and to levy tax for maintenance thereof.
PUBLIC SAFETY-Fireworks.
Act prohibiting sale, etc. of fireworks is valid and should be rigidly enforced.
November 14, 1962 Colonel H. Lowell Conner Director Department of Public Safety
Recent published reports in the press of this State concerning the validity of the Act passed by the Legislature this year prohibiting the sale and use of fireworks have possibly caused doubt to arise

431
concerning its enforcement. The purpose of this letter is to dispel any question of the Act's validity which might have arisen and to make crystal clear the position of this office that the Act is, in fact, valid and that the criminal provisions contained therein should be rigidly enforced.
As you know, the Act prohibits the sale, offering for sale, exposing for sale, discharging, manufacturing, transporting, and possession of fireworks. Any persori, firm, corporation, association, or partnership violating the provisions of the Act shall be guilty of a misdemeanor according to the language of the Act.
As your legal representative, I feel it incumbent upon me to stress the importance of timely, thorough, and effective enforcement of this law in the same manner as other criminal acts are enforced; that is, by arrest and the swearing out of a warrant before the proper official. It is true that the constitutionality of this Act is now being questioned in a civil suit brought in Whitfield Superior Court, which case is now before the Supreme Court for decision. However, there is presently no feature of this case which in any way hampers or restricts the effective enforcement of the Act.
Because of the importance of this letter I am taking the liberty of furnishing copies of it to all Solicitors General, City Court Solicitors, and Sheriffs of this State in an effort to achieve maximum co-operation between them and the members of your Department. If you desire additional copies of this letter to furnish your troopers, I will be glad to make any number available to you.
PUBLIC SAFETY-Fireworks
State Patrol may seize fireworks, declare them contraband and destroy them, even though they are found off the highways of the State.
November 16, 1962
Colonel H. Lowell Conner Director Department of Public Safety
In response to your request of this date this letter is written in clarification of the police power of the State Patrol with regard to the enforcement of the firework control act.
Section 92A-242 limits considerably the arresting authority of the State Patrol.
"92A-242. Arrests; assistance to authorities.-They shall not exercise any power of arrest except for offenses arising from violation of the traffic laws, or laws regulating the use, ownership, and control of motor vehicles, or for offenses com-

432
mitted upon the highways of the State: Provided, that upon request of the governing authorities of any municipality, or of the sheriff of any county or of the judge of the superior court of any county of this State or the Governor of this State, the Director of Public Safety, in unusual circumstances, may, and in the case of an order from the Governor of Georgia shall, direct members of the Georgia State Patrol to render assistance in any other criminal case, or in the prevention of violations of law, or in detecting and apprehending those violating any criminal laws of this, or any other State, or the United States."
Thus, it would seem that unless the offense made punishable by the fireworks law occurs on the highways, streets, or their rights of way, the State Patrol would have no jurisdiction in the absence of proper and timely direction as required by the foregoing Code Section. Off the highway enforcement is in the hands of the local authorities.
However, Section 5 of the Act does give permissive authority to the State Patrol as well as others to seize all fireworks manufactured, offered for sale, exposed for sale, or stored, to declare them contraband, and to destroy them. There is no geographical limitation to this authority imposed by the fireworks act and the fact that no arrest is specified makes it compatible with Section 92A-242. Therefore, the State Patrol may seize fireworks which they find, declare them contraband, and destroy them even though found off the highways of this State, but any arrest made off the highways would have to be accomplished by the local authorities. However, any violation of the terms of the Act observed on the highways may give rise to proper arrest by the members of the State Patrol.
PUBLIC SAFETY-Georgia Bureau of Investigation (Unofficial)
Discussion of make-up and duties of Georgia Bureau of Investigation.
April 2, 1962
Mr. Brian Parker Office of the Attorney General Commonwealth 9f Puerto Rico
This office has received your letter in which you request information concerning the methods of operation of the Georgia Bureau of Investigation.
The statutory provisions which set up our State wide Bureau of Investigation are contained in Chapter 92A-3 of the Georgia Code as follows:
"92A-301. Establishment.-The Director of the Department of Public Safety, with the approval of the Department

433
of Public Safety, is authorized to establish a Bureau of Investigation, within the appropriation made herein, which Bureau may be maintained in cooperation with that of any like department now maintained by any municipality in this State. (Acts 1937, pp. 322, 340; 1941, pp. 277, 278; 1943, pp. 196, 201.)
"92A-302. Duties, fingerprints; photographs, etc,-It shall be the duty of such Bureau to take, receive and forward fingerprints, photographs, descriptions and measurements of persons, in cooperation with the bureaus and departments of other States and of the United States; to exchange information relating to crime and criminals; to keep permanent files and records of such information procured or received; to provide for the scientific investigation of articles used in committing crimes, or articles, fingerprints, or bloodstains found at the scenes of crimes; to provide for the testing and identification of weapons and projectiles fired therefrom. In the event such Bureau is maintained in cooperation with a municipality or any other division of this State. the services and records of the same shall at all times be accessible and available to the Department of Public Safety and any division thereof. The members of the Bureau shall have and are hereby vested with, in addition to the duties herein provided, the same authority, powers and duties as are possessed by the members of the Uniform Division under the provisions of this Title. (Acts 1937, pp. 322, 340; 1941, pp. 277, 278.)
"92A-303. Crime information-It shall be the further duty of the Director of Public Safety, within the appropriation allowed by law, to provide for the receipt and transmission of crime news; of information as to lost or stolen property, or lost or kidnapped persons, by radio, teletype or other modern system, and such information shall be relayed to the Uniform Division of the Department of Public Safety. (Acts 1937, pp. 322, 340; 1943, pp. 196, 201.)
"92A-304. Lectures and demonstrations.-The Director of the Department of Public Safety may provide one or more lecturers, who may be a member of the Uniform Division of the Department of Public Safety, and may furnish such person or persons with the proper literature and equipment, and may cause lectures and demonstrations relating to public safety to be given in the public schools of this State in cooperation with the school authorities. (Acts 1937, pp. 322, 341; 1943, pp. 196, 201.)
"92A-305. Qualifications of agent; service in Uniform Division.-No person shall be eligible for appointment by the Director of the Department of Public Safety as an agent for the Bureau of Investigation of the Department of Public Safety until he shall have served for a minimum period of 12 months in the Uniform Division of the Department of Public Safety or a minimum of three years as a law enforcement officer. (Acts 1949, p. 1177.)

434
"92A-306. Same; appointment of one who has not met requirements.-The Director of the Department of Public Safety and the Department of Public Safety are hereby prohibited from appointing or approving any applicant as an agent for the Bureau of Investigation unless he has met the requirements set out in section 92A-305: Provided, however, that the Director of the Crime Laboratory and such male members of his staff as the Director of the Department of Public Safety may deem necessary to the performance of their official duties shall be sworn in as special agents of the Bureau of Investigation for that purpose. (Acts 1949, pp. 1177, 1178; 1957, pp. 647, 648.)"
This Bureau has fifty-eight (58) agents located here in Atlanta and across the State. There are seventy (70) employees in all. There is a well equipped crime laboratory headed by a renowned doctor of forensic medicine, a full time handwriting expert, and experts in the use of polygraph machines. Close liaison is maintained between this Bureau and State police and local law enforcement personnel. It has been of immeasurable benefit to our State.
PUBLIC SAFETY-Georgia Bureau of Investigation
Special agents in Crime Laboratory are not "Enforcement Officers" entitled to special considerations afforded under Employees' Retirement System Act.
June 11, 1962
Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System
I have reviewed your file with reference to the eligibility of several members of the Crime Laboratory of the Department of Public Safety for coverage under the provisions of Section 15 of the Employees' Retirement System Act.
Section 15 of said Act provides as follows :
"Anything in this Act to the contrary notwithstanding, the enforcement officers under the jurisdiction of the Department of Public Safety shall receive the benefits herein provided for at the age of fifty-six (56) instead of the age of sixty (60) as provided for other members."
Code Section 92A-239 of the Code of Georgia Annotated provides as follows:
"Duties of State Patrol.-It shall be the primary duty of the Uniform Division of the Department of Public Safety to patrol the rural and public roads and highways throughout this

435

State, to prevent, detect and investigate criminal acts, and to arrest and apprehend those charged with committing criminal offenses appertaining thereto, and to safeguard the lives and property of the public."

Under the provisions of Code Section 92A-3, "Bureau of Investi-

gation", the establishment of said bureau is set out, and specifically,

in Code Section 92A-302, it is stated:



"... The members of the Bureau shall have and are hereby vested with, in addition to the duties herein provided, the same authority, powers and duties as are possessed by the members of the Uniform Division under the provisions of this Title."

Code Section 92A-305 of the Code of Georgia Annotated provides as follows:

"Qualifications of agent; service in Uniform Division.-No person shall be eligible for appointment by the Director of the Department of Public Safety as an agent for the Bureau of Investigation of the Department of Public Safety until he shall have served for a minimum of three years as a law enforcement officer."

Code Section 92A-306 of the Code of Georgia Annotated is as follows:

"Same; appointment of one who has not met requirements.
-The Director of the Department of Public Safety and the Department of Public Safety are hereby prohibited from appointing or approving any applicant as an agent for the Bureau
of Investigation unless he has met the requirements set out in section 92A-305: Provided, however, that the Director of the Crime Laboratory and such male members of his staff as the
Director of the Department of Public Safety may deem necessary to the performance of their official duties shall be sworn in as special agents of the Bureau of Investigation for that purpose."

It is apparent from the reasonable construction of the statutes relating to the Bureau of Investigation that the members are agents of the Bureau of Investigation, clothed with the same powers and duties as are possessed by members of the Uniform Division, as set
out in Code Section 92A-302, and could, therefore, properly be considered as "Enforcement Officers".

However, as to the Director and male members of the staff of the Crime Laboratory of the Department of Public Safety, these members are sworn in as "Special Agents" of the Bureau of Investigation
for the purpose of the performance of their official duties in connection with the operation of the Crime Laboratory. As such I do not believe that these members, as special agents employed in the Crime ~aboratory and who are exempt from the requirements as to qualiflcations of an agent, as to service in the Uniform Division of the

436
Department of Public Safety, or a minimum of three years as a law enforcement officer, fall within the classification of "Enforcement Officers" as referred to in Section 15 of the Employees' Retirement System Act, and they thus would not be entitled to the special considerations afforded thereby.
PUBLIC SAFETY-Georgia State Patrol (Unofficial)
Uniformed members of Georgia State Patrol cannot legally accept payments from proceeds of sale of seized vehicles since they are specifically precluded from receiving money other than their salaries except for criminal apprehension awards.
August 7, 1962
Mr. J. M. Neel, Jr. Cartersville, Georgia
Thank you for your letter requesting my opinion concerning the payments to members of the Georgia State Patrol of 1/3 of the proceeds derived from the public sale of vehicles seized under the provision of Georgia Ann., Code Section 58-207.
Georgia Code Ann., Section 58-207 deals with the seizure, destruction and sale of contraband articles.
The ruling case law on this question was enunciated by Judge Felton in the case of Cloud vs. DeKalb County, 70 Ga. App. 777:
"There is no provision of law which has come to our knowledge prohibiting an officer who receives a salary from also receiving fees, and there is no such law applicable to those involved here. This being true there is no reason why the legislature could not provide for fees, or commissions, or other sums, in addition to the officer's salary. It is quite clear that 58-207 does not preclude the officers here from receiving the sum therein provided for, for the reason that the section contemplated that certain officers were then on a salary and that others would be put on a salary, and with those facts in mind, it did not provide that if an officer was on a salary, or was put on one, his part of the one-third of the proceeds of the sale should become the property of the county. It provided only that if an officer of court was on a salary, or was put on one, the part of the money which would have gone into the insolventcost fund would not go there, but would go into the general treasury of the county as the county's money. That was for the reason that if the court officers were on salaries there would be no insolvent-cost fund. It did not, and does not provide that the salaried court officers shall not receive the onethird allotted to them. It follows that since the section does not provide that a salaried court officer shall not receive his

437
part of the one-third of the proceeds of the sales, it seems clear that it was the intention of the legislature to put all arresting officers on the same basis, and therefore an arresting officer who is not a court officer is not deprived of the proceeds of the sales, even though he is on a salary, provided there is no other provision of law prohibiting him from receiving compensation in addition to his salary. It seems clear that if the legislature had intended to provide that a salaried officer, whether he be court officer or not, should not participate in the proceeds of the sales, it would have provided that such salaried officer's part of the proceeds should go into the general treasury of the county and become its property."
It is to be noted that Judge Felton clearly states, "provided there is no other provision of law prohibiting him from receiving compensation in addition to his salary".
Code Section 92A-222 states that no emolument of any kind is to be paid a uniformed member of the Department with the single exception of a criminal apprehension award. Since the money in question does not fit within the excepted category of 92A-222, there is no legal way it can be paid over to any uniformed member of the State Patrol.
PUBLIC SAFETY-Water Skiing (Unofficial)
Persons must wear life preservers when water skiing unless engaged in tournaments, competitions, expositions or trials therefor.
August 21, 1962
Mr. John F. Brown Elberton, Georgia
Your letter requesting information pertaining to water skiing has been forwarded to me for reply.
This is to advise that numbered paragraph (e) of Section 1 of the Rules and Regulations adopted under the Georgia Motorboat Numbering Act, as confirmed by an Act approved March 28, 1961 (Ga. L. 1961, p. 265), reads:
"(e) No person shall operate a motorboat on any of the waters of this State towing a person on water skis, an aquaplane, or similar device, nor shall any person engage in water skiing, aqua-planing, or similar activity unless such person being towed is wearing a life preserver. Provided, that this regulation shall not apply to persons engaging in organized water ski tournaments, competitions, expositions, or trials therefor."
It would appear that the exemption provided therein would be ~PPlicable only to the person specified in the exemption and in trials Incidental to or connected with any such exhibition.

438
PUBLIC SERVICE COMMISSION-Motor Carriers
Independent contractor transporting materials by motor vehicle on public highways and performing ancillary services such as spreading or placing materials at delivery site are subject to regulation by Public Service Commission.
July 9, 1962
Honorable Crawford L. Pilcher, Chairman Georgia Public Service Commission
Thank you for your letter stating that general contractors, under contracts with State agencies for the construction or maintenance of public highways, occasionally employ motor carriers, as independent contractors, to transport on the public highways of this State material intended to be used for the construction or maintenance of public highways and in conjunction with such transportation perform certain ancillary services such as spreading or placing such materials at the construction or maintenance site. You further stated that under the terms of the subcontracts such independent contractors are compensated specifically for the transportation, which is an essential part of the subcontracts. You inquire as to whether such independent contractors are subject to regulation under either of the State Motor Carrier Acts.1
Code Chapters 68-5 and 68-6, providing for the regulation of "motor carriers" and "motor common carriers," respectively, define these carriers as follows:
"68-502. Definition of certain terms used in Chapter.When used in this Chapter, unless expressly, stated otherwise,-
"(c) The term 'motor carrier' means every person except common carriers, owning, controlling, operating, or managing any motor-propelled vehicle (and the lessees, or trustees thereof, or receivers, appointed by any court whatsoever) used in the busines of transporting persons or property for hire over any public highway in this State and not operated exclusively within the corporate limits of any city or town: ...."
"68-601. Definitions of certain words used in Chapter.When used in this Chapter, unless otherwise expressly stated or unless the context plainly requires a different meaning, the following words and phrases shall be given the following meaning: ...
(e) The words 'motor common carrier' mean every person owning, controlling, operating, or managing any motorpropelled vehicle (and the lessees, receivers, or trustees thereof) used in the transporting of persons and/or property (otherwise than over permanent rail tracks) for hire on the public highways of this State as a common carrier."
1. Code Chapters 68-5 and 68-6.

439
These Code Chapters engraft various exceptions upon the above definitions, none of which are material to your inquiry.
The essence of these definitions is the use of the public highways of this State by a party conducting "for hire" transportation. These definitions do not require either expressly or impliedly that the business of the carrier be devoted exclusively to "for hire" transportation. Consequently, the fact that a carrier furnishes additional services in conjunction with the "for hire" transportation service does not defeat the jurisdiction of the Georgia Public Service Commission under the State Motor Carrier Acts.
Several cases, which involve factual situations far more extreme than the one described by you, are apposite to illustrate the principle that the regulation of "for hire" transportation is not inhibited by the association of ancillary services.
Travis v. Fry2 involved a contractor who had been exclusively engaged for a period of five years in performing various contractual work for a power company under separate agreements for each job, and who at intervals contracted with the company to perform the work of locating on and removing from their base at the substations of the company, heavy power transformers, and as an incident to such work, carried such transformers over the public highways to another substation or to the repair shops of the company. The Court, in construing legislation analagous to the above Code Chapters, held that even though such contractor was not "in the business of transporting persons or property for compensation" within the meaning of the regulatory statute, his operations nevertheless fell within the broad classification of transporting property "for hire" under the statute providing that transportation "for hire" shall include all motor driven vehicles, or trailers hauled by a motor vehicle, in use "for transporting persons, commodities or materials for compensation," as against the contention of said contractor that the major part of the compensation received for doing the work was for knowledge, experience, skill and work in handling, removing, installing, loading, and unloading the transformers, and that the actual hauling of the transformers was a mere incident to the main work, and that, therefore, he was not hauling for compensation and not engaged in the business of transporting persons or Property "for hire." The Court pointed out that, notwithstanding such contention, the transportation of the heavy transformers formed an essential part of the contract for which the contractor was comPensated by the power company, even though no particular part of the contract price was allocated to such transportation, and that the statute did not provide that the use of a motor vehicle in transPortation "for hire" should be the principal work done by the transPorter for the owner of the goods hauled, and that it did not matter Whether the compensation received for the actual hauling was greater or less than that received for the other work.
2. (1939) 190 So 793, 139 Fla 522.

440
The operative facts in Brown v. Blanton3 involved a sawmill operator who had entered into a contract with the owner of timber for the cutting of such timber and its manufacture into lumber, with delivery to be at a designated point and the operator to be free to use any method of transportation, and while no special consideration was stipulated for transportation, approximately fifteen to twenty per cent of the contract price represented transportation costs. The Court held that the sawmill operator was a contract carrier within the meaning of the statute defining such carrier as "any person who, under individual contracts or agreements, engages in the transportation (other than as common carrier) by motor vehicle of passengers or property for hire."4 The Court answered the contention that the sawmill operator was not "primarily" engaged in transporting property "for hire," by saying that the transportation of the lumber was a substantial part of the operator's business-as substantial and important as the logging or sawing end-and that the transportation branch of the business was not a mere incident and that the operator was as primarily engaged in transportation as he was in the other features of his business. The Court also said that it was not to be thought that by combining a transportation business with another industry one may escape the tax imposed on transportation "for hire."
In view of these authorities, I am of the opinion that the "for hire" transportation described by you is subject to regulation by the Georgia Public Service Commission under the State Motor Carrier Acts.
PUBLIC WELFARE-Social Security (Unofficial)
Discussion of 1962 amendments to Federal Social Security law relative to blind persons and recipients of old-age assistance.
October 15, 1962
Honorable T. Penn McWhorter Winder, Georgia
This will acknowledge your letter with reference to the 1962 Amendment passed by Congress to the Social Security Act, which provides the income and resources to be disregarded in determining the need of individual aid for blind persons and recipients of old age assistance.
The changes in the Social Security law made in 1962 are included in an Act to extend and improve the public assistance and chil.d welfar~ services programs of the Social Security Act, found in Public Law 87-543, 87th Congress, H. R. 10606, July 25, 1962. Title I has been so amended as to permit the states, in determining need for old
3. (1944) 180 SW2d 288, 297 Ky 389. 4. Id, 180 SW 2d 290, r col, 3d par.

441
age assistance, to disregard the first $10 of earned income plus onehalf of the remainder of the first $50. This becomes effective January 1, 1963, and since it appears from your letter that you do not have reference to the 1962 Act, we quote from this Act for you as follows:
"CERTAIN EARNED INCOME MAY BE DISREGARDED IN DETERMINING NEED FOR OLD-AGE ASSISTANCE
"Sec. 157. Section 2 (a) (10) (A) of the Social Security Act (as amended by section 106 (a) (1) of this Act) is further amended by inserting before the semicolon at the end thereof; 'except that, in making such determination, of the first $50 per month of earned income the State agency may disregard, after December 31, 1962, not more than the first $10 thereof plus one-half of the remainder'." See 42 USC 302.
The law also amends title X to prescribe an additional exemption of income and resources in aid to the blind, effective July 1, 1963, to individuals who are under a plan for achieving self-support by providing that for a period not in excess of 12 months, any additional amounts of income and resources necessary for the fulfillment of the plan shall be disregarded. Present law provides only for disregarding the first $85 of earned income plus one-half of earned income in excess of $85. The above provision amending title X is quoted for your information as follows:
"INCOME AND RESOURCES TO BE DISREGARDED IN DETERMINING NEED OF INDIVIDUAL FOR AID TO THE BLIND
"Sec. 154. Effective July 1, 1963, so much of section 1002 (a) (8) of the Social Security Act as follows the first semicolon therein is amended to read as follows: 'except that, in making such determination, the State agency shall disregard (A) the first $85 per month of earned income, plus one-half of earned income in excess of $85 per month, and (B) for a period not in excess of twelve months, such additional amounts of other income and resources, in the case of an individual who has a plan for achieving self-support approved by the State agency, as may be necessary for the fulfillment of such plan;'." See 42 USC 1202.
We are sure that the State Revenue Department has directives to their field agents on this subject matter, and public assistance Payments made to recipients are not considered earned income, either state or federal, when such recipients are obliged to file income tax returns.

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PURCHASES-State
Purchase of motor vehicle for University of Georgia legal where not used for transportation of officers, officials or employees of State but only for transporting students carrying on lawful activities of University.
February 12, 1962
Honorable Alvan C. Gillem, Jr. State Supervisor of Purchases
Thank you for your letter enclosing Requisition No. 6111 con. cerning the proposed purchase of a passenger carrying motor vehicle for the University of Georgia at Athens, Georgia, in which you requested an official opinion as to the legality of such proposed purchase.
In my opinion, such proposed purchase would be legal provided that said vehicle is not to be used for the transportation in any manner whatsoever of the officers, officials, or employees of the State or of the various departments, institutions, boards, bureaus, and agencies of the State, including the University of Georgia and the University System of Georgia, but the said vehicle is to be used exclusively for the sole purpose of transporting students of the University of Georgia in the carrying on of the lawful activities of said institution. This same view was expressed in the Opinions of the Attorney General, 1948-49, at page 146.
PURCHASES-State
Two-way radios for automobiles for Alcohol Tax Unit agents of Revenue Department are a reasonably necessary expense for which State funds may be used.
March 5, 1962
Mr. Dixon Oxford State Revenue Commissioner
In response to your inquiry as to whether the Department of Revenue may purchase two-way radios to be issued to Alcohol Tax agents, it is my opinion that such radios, when used in the normal performance of the duties of Alcohol Tax agents, constitute a reasonably necessary expense within the meaning of the Appropriation Act.

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PURCHASES-State
Purchase with State funds of automobile as instrument carrier and field collections vehicle and to transport students on field trips in course in Plant Sciences at University of Georgia authorized.
March 8, 1962
Honorable Alvan C. Gillem, Jr. State Supervisor of Purchases
Thank you for your letter concerning the proposed purchase of a passenger carrying motor vehicle for The University of Georgia at Athens, Georgia, in which you requested an official opinion as to the legality of such proposed purchase.
In my opinion, such proposed purchase would be legal provided that said vehicle is not to be used for the transportation in any manner whatsoever of the officers, officials, or employees of the State or of the various departments, institutions, boards, bureaus, and agencies of the State, including The University of Georgia and The University System of Georgia, but the said vehicle is to be used primarily in research supported by the United States Public Health Service and The University of Georgia as an instrument carrier and field collections vehicle which will transport plants, soil, animals, and surveying instruments and in taking students in advance courses on field trips in Plant Sciences for instructional purposes and under the supervision of and accompanied by the appropriate staff member. This same view was expressed in the Opinions of the Attorney General, 1948-49, at page 146.
In view of the fact that it appears that no State funds are to be expended for the purchase of the proposed Jeep, it is doubtful whether the prohibitions contained in Ga. Code Ann., Section 40-2001 relating to purchase of passenger automobiles with State funds is even applicable. Nonetheless, even if State funds are to be expended and it appears that the purchase at least will.be through your Department, the action is authorized.
The attached affidavit has been properly executed to meet the requirements of this office and should be attached to said Requisition.

PURCHASES-State (Unofficial)

State Purchasing Department to give preference to purchase of Georgia products where there is no sacrifice in price or quality.

Mr. Don Reiman Atlanta, Georgia

March 22, 1962

This office has received your inquiry concerning State statutes relative to favored treatment in purchases of Georgia products and Georgia sales forces.

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I am glad to report that the following Code Sections are probably the ones to which you refer:
"40-1903. Preference to Georgia products, etc.... It shall be the duty of the Supervisor of Purchases in the purchase of and in contracting for any supplies, materials, and equipment and/or printing to give preference as far as may be reasonable and practicable to such materials, supplies, equipment and/or printing as may be manufactured or produced in the State of Georgia. It being the intention of this section to use in so far as is practicable Georgia products and/or Georgia labor: Provided, however, that in giving such preference no sacrifice or loss in price or quality should be permitted, and provided further that preference in all cases shall be given to surplus products or articles produced and/or manufactured by other State departments, institutions, or agencies which are available for distribution."
"40-1902. Preference to local sellers . . . The Supervisor of Purchases in awarding of contracts, all things being equal, shall give preference to local sellers of Georgia products when it is possible to do so and the interest of the State is not sacrificed, and the quality and prices permit it."
PURCHASES-State
State may purchase Junior Fire Marshal badges for Comptroller General as promotion of fire prevention.
April 10, 1962
Honorable Alvan C. Gillem, Jr. Supervisor of Purchases
Thank you for your letter requesting my opinion as to the propriety of your purchasing 15,000 Junior Fire Marshal badges for the Comptroller General's office.
In view of the fact that the Comptroller General is the State Fire Marshal and the language contained in Ga. Code Ann., Sections 92A-725 and 92A-737 (Ga. Laws 1949, p. 1057) authorizes the Marshal to promote any fire prevention plan among groups or individuals, this system of having Junior Fire Marshals would be within the purview and intent of the law. Therefore, the purchase would be authorized.

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PURCHASES-State
Pens for widespread general distribution containing fire safety message contain element of gratuity outweighing educational value of message and State funds may not be used therefor.
May 22, 1962
Honorable Zack D. Cravey Comptroller General
This will reply to your letter in which you state that you may place a request with the State Purchasing Department in the near future for educational material including ball point pens carrying the following fire safety messages:
Example 1:
"Fire Destroys 11,500 human lives yearly and over $1,000,000,000 in property. Help Prevent These Losses. Zack D. Cravey Georgia Safety Fire Commissioner"
Example 2:
The pens will carry a message similar or same as stated in example 1 with the name ZACK D. CRAVEY deletedonly identification will be YOUR GEORGIA SAFETY FIRE COMMISSIONER.
You state that these pens will be used for distribution to individuals and groups of Junior Fire Marshals and others in the State of Georgia interested and working in the field of Fire Safety and Education.
It is not the policy of this Department to furnish official opinions on hypothetical questions. We prefer that a specific purchase order, with supporting information, be submitted through proper channels before expressing our opinion as to the legality of any purchase of materials at the tax payers expense.
However, in view of your request and in an effort to be of assistance to you, your attention is called to my official opinion to the Governor of Georgia, dated May 14, 1962, and particularly to the following paragraph on page 4 of said opinion:
"In this respect, it is apparent that the line of demarcation between legal and illegal expenditures is often difficult to discern, but in the present case, I am of the opinion that essentially what is involved is a gift or gratuity of merchandise. The fire message is a mere incident of the gift, and could be conveyed just as well without imprinting it upon a gift of tangible property whose principal utility is in its use as a mirror and not in the idea it also seeks to convey."
In both examples submitted by you with respect to proposed requisitions to the State Purchasing Department, it is my opinion that the element of a gift or a gratuity outweighs the educaional Value of the fire safety message contained thereon.

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The proposed use of these ball point pens that you may requisition for distribution to "individuals and groups of Junior Fire Marshals and others in the State of Georgia interested and working in the field of Fire Safety and Education" is so general and broad as to make it practically impossible to determine whether the use of the pens would be for the purpose and within the purview of the uses intended by Code Section 92A-735. Such widespread use would make it impossible to control and comply with the uses contemplated by the law of this State. The proposed uses are readily distinguishable from the use of writing implements for a specific educational program conducted by the State Fire Marshal at Rock Eagle Camp, which I approved on June 30, 1960, as being authorized under Code Section 92A-735.
Therefore, I am of the opinion that the expenditures you propose for ball point pens for the uses indicated would not be authorized under Ga. Code Ann., Section 92A-735.
PURCHASES-State
State Supervisor of Purchases may alter purchase order to correct clerical error.
July 3, 1962
Honorable Alvan C. Gillem, Jr. State Supervisor of Purchases
This is in reply to your letter in which you requested my opinion as to the legality of making a correction to a purchase order issued by the Supervisor of Purchases.
It appears that in the statement of price as stated in the original purchase order and proposed contract between the State Department of Public Welfare and the International Business Machines Corporation, a clerical error was made stating the sales price to be $27,150.82 whereas, in fact, the price should have been stated as $31,092.26.
A thorough research of the law applicable to the issuance of purchase orders by the Supervisor of Purchases has failed to reveal any law which prohibits correcting a purchase order. In view of this, it is my opinion that the correction of the original purchase order may be made by the Supervisor of Purchases in order to correct the clerical error as stated above.

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RECIPROCITY-Reciprocal Laws Relating to Collection of Debts (Unofficial)
No agreement between Georgia and any other states relative to collection of debts.
May 10, 1962
Honorable Frederick E. Tyler Toronto 5, Ontario Canada
This will acknowledge receipt of your request for information concerning reciprocal laws.
At the outset, I know of no agreement now in operation between the State of Georgia and any other State relative to the collection of debts. To my knowledge, the procedure involved would be to reduce the debt to a judgment and to take that judgment into the foreign State and to sue on that judgment. By this procedure the judgment is in effect given force and effect and has the standing of a judgment of the State in which the debtor is found.
As to the enactment of reciprocal legislation, the best illustration I know of is the Uniform Reciprocal Enforcement of Support Act. This Act has been adopted in some fifty-plus jurisdictions which includes all of the States of the United States and other jurisdictions. Complete information pertaining thereto can be obtained from the Council of State Governments, 36 West 44th Street, New York 36, New York.
SALES-Sales Promotion (Unofficial)
Granting bonus or rebate to customer who subsequently provides for additional sales of product is not a lottery which would be illegal.
January 4, 1962
Mr. Gerald T. Medley Atlanta 8, Georgia
This office has received your letter in which you request an opinion as to the legality of inducing carpet sales by means of a bonus or rebate to a customer who subsequently provides for additional sales. You state that you are concerned over the question of whether or not your selling method constitutes a lottery.
Generally, the rule followed today is that if chance, rather than skill, is the dominant factor of a contract (or sales promotion) whose other attributes are prize and consideration, such contract is a lottery. ~o formula can be designed which will accurately indicate whether 1t is predominantly skill, or one of chance, for almost any contract or promotional device contains some degree of both. But, if a given

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scheme is to remain within the prescribed limits of the law, it must contain a possibility that skill can determine its outcome, and that the participants shall have the opportunity to exercise that skill.
Georgia law is more specific. Judge Atkinson said in 1907 that:
"Chance and design are exactly opposite and the presence of either will exclude the other. Where design enters into a transaction it immediately partakes of contract and will be governed by (those) principles."
That design is present in the selling scheme as presented is obvious, since selling requires skill and human determination. If design is present, chance is excluded, and to conclude the syllogism, without chance there can be no lottery. Thus, there is apparently no lottery in the situation presented here.
SECURITIES-Variable Annuity Contracts
Variable annuity contract is subject to regulation as a security under the Georgia Securities Act of 1957, as amended.
March 20, 1962
Honorable Ben W. Fortson Secretary of State
Thank you for your recent letter requesting an official opinion of the Attorney General as to whether or not a variable annuity contract constitutes a security within the meaning of Section 1 (i) of the Georgia Securities Act of 1957.1 You stated that a variable annuity differed from the conventional or fixed dollar annuity in that the annuity benefits payable under the variable annuity vary according to the investment experience of the equity securities held in a special portfolio of the insurance company. You further stated that a conventional annuity, on the other hand, guarantees the payment of a fixed number of dollars irrespective of the actual investment experience.
Prior to answering your question, we shall briefly analyze the variable annuity concept and sketch its background and development in this country.
The essence of the variable annuity concept is the coupling of life annuities with equity investments so that the resulting annuity will vary to reflect changes in the investment experience of the company. The variable annuity differs from the conventional annuity mainly in two respects: it guarantees an equal and fixed number of annuity units for life or other period where the conventional annuity guaran-
I. Ga. Laws 1957, pp. 134, 136; Section 97-102 (i) of the Code of Georgia, Annotated.

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tees an equal and fixed number of dollars for life or other period; and it has a different underlying investment policy. While the number of annuity units an annuitant will receive will remain the same throughout his lifetime or other period, their value will not. They will be revalued periodically and the amount of income will be the number of units to which the annuitant is entitled multiplied by the current value of a unit.
The underwriting of risks feature of the variable annuity illustrates its departure from traditional insurance concepts. The application of mortality tables and the assumption of the risk of longevity is definitely within the concept of insurance. But, the basis of the variable annuity is the success of its common stock portfolio. The essential element of risk, therefore, is the fluctuation in the value of the common stock underlying the annuity. This risk is assumed solely by the annuitant. Consequently, under the variable annuity approach, such risk, practically speaking, is shifted from the insurance company to the annuitant.
Variable annuities were not offered in this country until 1952 when the New York Legislature created the College Retirement Equities Fund (CREF) which provided these policies to teachers and educators throughout the country.2 Subsequently, various insurance companies began offering variable annuity policies to the general public. Prominent among these companies is the Variable Annuity Life Insurance Company of America (VALIC) which was organized and licensed in 1955 to sell variable annuities in the District of Columbia subject to the supervision and regulation of the District Insurance Superintendent.3
We shall now turn to the construction of the Georgia Securities Act of 19574 In order to illustrate more clearly the legislative intent in adopting the 1957 Act, we shall compare it with its immediate Predecessor, the Georgia Securities Act of 19535
The 1953 Act provides in part as follows:
"Section 1. Definitions. When used in this Act, unless the text otherwise indicates: . . .
"(g) 'Security' shall mean any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificates of indebtedness, investment certificates, certificate of interest or participation, certificate of interest in oil, gas or other mineral rights, collateral trust certificates, preorganization certificate
2. 33 NY Univ. L. Rev. 78. See also: Securities and Exchange Commission -v- Variable Annuity Life Insurance Company of America (1959) 359 US 65, 69, 1 par. 3 L ed 2d 640, 644, 1 col, 79 S Ct 618.
3. 33 NY Univ. L. Rev. 78. 4. Ga. Laws 1957, pp. 134-163, as amended, Chapter 97-1 of the Code
of Georgia, Annotated. 5. Ga. Laws 1953, Jan. Sess., pp. 423-450, as amended.

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or subscription, transferable share, investment contract, votingtrust certificate or beneficial interest in title to property, profits or earnings, or any other instrument commonly known as a security, including any guarantee of, temporary or interim certificate of interest or participation in, or warrant or right to subscribe to, convert into or purchase, any of the foregoing. (Acts 1953, pp. 423, 424.)"
"Section 5. Exempt Securities. Section 3 of this Act shall not apply to any of the following securities: . . .
" (c) Securities issued by a building and loan association or an insurance company subject to supervision by an agency of this State. (Acts 1953, pp. 423, 435.)"
Obviously, a variable annuity contract issued by an insurance company subject to supervision by an agency of this State would be exempt from regulation as a security under the 1953 Act. We should also note that the 1953 Act was adopted soon after the nascency of the variable annuity, but prior to its availability to the general public.
However, at the time of the supersedure of the 1953 Act by the adoption of the 1957 Act, the variable annuity was offered to the general public in several states. Such availability and the legislative intent to regulate the variable annuity as a security when offered or sold in Georgia is evidenced by the following provisions of the 1957 Act, which correspond to the above quoted provisions of the 1953 Act:
"Section 1. Definitions. When used in this Act, unless the text otherwise indicates: . . .
(i) 'Security' shall mean any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of indebtedness, investment certificate, certificate of interest or participation, certificate of interest in oil, gas or other mineral rights, collateral trust certificate, preorganization certificate or subscription, transferable share, investment contract, votingtrust certificate or beneficial interest in title to property, profits or earnings, or any other instrument commonly known as a security, including any guarantee of, temporary or interim certificate of interest or participation in, or warrant or right to subscribe to, convert into or purchase, any of the foregoing. 'Security' shall not mean any insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed number of dollars either in a lump suin or periodically for life or some other specified period. (Acts 1957, pp. 134, 135.)"
"Section 5. Exempt Securities. Section 3 of this Act shall not apply to any of the following securities: . . .
"(c) Securities issued by a building and loan association. (Acts 1957, pp. 134, 149.)"
In defining the term "security" the legislature carefully exclu~ed the conventional annuity contract from the definition thereby leaving

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within the definition the variable annuity. Consequently, the legislative intent is clear that a variable annuity is subject to regulation as a security under the 1957 Act.
We should also note that the new Uniform Securities Act defines a security in terms similar to the definition contained in the 1957 Act. The definition of a security in the Uniform Act concludes with this sentence- " 'Security' does not include any insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed number of dollars either in a lump sum or periodically for life or some other specified period."6 The Commissioners' Note following this provision provides that "This sentence has been explicitly phrased so as not to exclude from the definition the so-called 'variable annuities' which have recently been developed."7 The last sentence of the definition of a security contained in the Uniform Act and the last sentence of the definition of a security contained in the 1957 Act are virtually identical.
In 1959, the Supreme Court of the United States held in Securities and Exchange Commission -v- Variable Annuity Life Insurance Company of America8 that the variable annuity does not qualify for exemption as an "insurance policy" or an "annuity contract" under the Securities Act of 19339 and that variable annuity companies are not exempt from the Investment Company Act of 194010 since they are not "insurance companies." The effect of the holding is to place the variable annuity under the regulatory jurisdiction of the SEC.
The majority opinion, written by Justice Douglas, analyzed the variable annuity and recognized that it does utilize some traditional insurance and annuity features, such as, principal and income are liquidated actuarially over a lifetime or other period, and the company assures the risk of miscalculating mortality predictions in computing benefit payments.U These were the features primarily relied upon by VALIC in claiming to be within the insurance exemptions of the statutes in questionP However, the Court concluded that these insurance aspects are superficial and that the variable annuity cannot be called insurance in the traditional meaning employed by Congress, because it "places all the investment risks on the annuitant, none on the company."13 Therefore, since VALIC does not guarantee any
6. 9C Uniform Laws, Annotated, Uniform Securities Act, Section 401 (1).
7. See also: Section 402 (a) (5) of the Uniform Securities Act and the Commissioners' Note thereunder.
8. 359 US 65, 3 L ed 2d 640, 79 S Ct 619. 9. 48 Stat. 74 (1933), as amended, 15 USC, Sections 77a-aa. 10. 54 Stat. 789 (1940), 15 USC, Sections 80a-1 to -52. 11. Securities and Exchange Commission -v- Variable Annuity Life
Insurance Company of America (1959) 350 US 70, 3 L ed 644, 1 col. 12. Id., US 70, L ed 2d 644 r col, 1st par. 13. Id., US 71, L ed 2d 644 r col, 2d par.

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benefits payable in fixed amounts, and assumes no true risk in the insurance sense,14 there can be no claims of exemption from the provisions of the 1933 and 1940 Acts.
The 1933 Act exempts from its application "Any insurance or endowment policy or annuity contract or optional annuity contract, issued by a corporation subject to the supervision of the insurance commissioner, bank commissioner, or any agency or officer performing like functions, of any State or Territory of the United States or the District of Columbia."15 We should note that the term "annuity contract" is generic and could easily have been construed to include the variable annuity as the offspring of the conventional annuity.
However, irrespective of the dimness of the Congressional intent in the 1933 Act, the Supreme Court held the variable annuity subject to regulation as a security. By contrast, the 1957 Act clearly evinces the legislative intent to regulate the variable annuity as a security. Consequently, the persuasive impact of the VALIC decision is greatly amplified because the legislative intent to regulate a variable annuity as a security under the 1957 Act is much clearer than the Congressional intent to so regulate a variable annuity under the 1933 Act.
We should also note that the Variable Annuities Committee of the National Association of Securities Administrators compiled a report, dated March 7, 1957, based upon replies of administrators received from various States. Thirty-six of the States replied to the f9llowing question proposed by the Committee: "Under the existing laws of your State, do you consider variable annuities as securities?". Twenty-five of the thirty-six States responded to this question in the affirmative, four responded in the negative and five responded that no determination had yet been made. One State responded that securi ties issued by insurance companies organized or licensed to do business therein were exempt from registration under its securities act, and another State responded that there was no provision for variable annuities under its insurance or security statutes. The Committee in summarizing its report stated that "Nearly all of the states consider variable annuities as securities; that such plan must be registered or qualified and the salesmen licensed as security salesmen."16
In view of these authorities, I am of the opinion that a variable annuity contract, as defined above, is subject to regulation as a security under the Georgia Securities Act of 1957, as amended.
14. Id., US 71, L ed 2d 645, I col. 15. 48 Stat. 74, 76, Sec. 3(a) (8); 15 USC 77c(a) (8). 16. 1 CCH, Blue Sky Law Reporter, Sec. 4711 (1957).

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STATE GOVERNMENT-Appropriations
Discussion of effect of Constitutional amendment on Appropriations Act of 1961.
November 19, 1962
Mr. E. B. Davis State Budget Officer
This will acknowledge your letter in which you request my opinion as to whether or not the recent amendment to the Constitution of the State of Georgia, ratified on November 6, 1962, dealing with appropriations by the General Assembly, set out in Georgia Laws 1962, page 752, in any way modifies the powers of the Governor as provided in Section 48 of the Appropriations Act of 1961 (Ga. Laws 1961, at page 382), prior to July 1, 1963.
Section 48 of the Appropriation Act of 1961 provides:
"The State Treasurer and other fiscal officers are authorized and directed to set up as an appropriation in this account an amount equal to the amount or amounts that is determined by the State Auditor to be a surplus in available funds after the prorating of monthly income has been made to the monthly allotments authorized under this Act. In the event the income for the month is insuffiicent to make a 100% prorating to meet the allotments authorized under this Act, the State Auditor is authorized to utilize the necessary amount from this fund to cover the deficiency. In the event there is at any time a surplus in this account, the amount of same shall be available and is appropriated for allotment for highway construction or for other purposes, in accordance with the provisions of Section 8 of the Budget Act of 1931 (Ga. L. 1931 Ex. Sess., pp. 94, 98) ."
Section 8 of the Budget Act of 1931 (Ga .L. 1931 Ex. Sess., pp. 94, 98) provides as follows:
"Contingency appropriation. To the end that all expenses of the State may be brought within the budget, the budget appropriation bill shall also contain a specific. sum as a contingent or emergency appropriation. The manner of the allocation of such contingent or emergency appropriation shall be as follows: Any department, commission, board, institution, or other agency of the State, desiring an allotment out of such contingency or emergency appropriation, shall, upon forms prescribed by him, present such request in writing to the Director of the Budget, with such information as he may require, and the Director may allow or disallow the request in his discretion."
The Budget Act of 1962, at page 33, Section 3 provides as follows:
"Pursuant to Constitutional authorization, section 33 of the General Appropriations Act of 1943, approved January 29, 1943 (Ga. L. 1943, p. 84), which read as follows:

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'Section 33. Income Equalization Account - The State Treasurer and other fiscal officers are authorized and directed to set up as an appropriation in this account an amount equal to the amount or amounts that is determined by the State Auditor to be a surplus in available funds after the prorating of monthly income has been made to the monthly allotments authorized under this Act. In the event the income for the month is insufficient to make a 100% prorating to meet the allotments authorized under this Act, the State Auditor is authorized to utilize the necessary amount from this fund to cover the deficiency. In the event there is at any time a surplus in this account, the amount of same shall be available and is appropriated for allotment for highway construction or for other purposes, in accordance with provisions of section 8 of the Budget Act.' is hereby specifically and separately repealed in its entirety, effective at the end of June 30, 1963.'"
On November 6, 1962 in the General Election the proposed amendment to the Constitution, Appropriations by the General Assembly, was ratified, which amends Article VII, Section 1 of the Constitution by striking paragraphs I and II of Section IX in their entirety and inserting in lieu thereof new paragraphs I and II to read as follows:
"Paragraph I. Preparation, submission and enactments of General Appropriations Bill.
"(a) The Governor shall submit to the General Assembly within five days after its convening in January, 1963, and every two years thereafter, a budget message and a budget report, accompanied by a draft of a General Appropriations Bill, in such form and manner as may be prescribed by statute, which shall provide for the appropriation of the funds necessary to operate all the various departments and agencies, and to meet the current expenses of the State for each of the next two ensuing fiscal years.
"(b) The General Assembly shall biennially appropriate the funds necessary to operate all the various departments and agencies, and meet the current expenses of the State for each of the next two fiscal years. The fiscal year of the State shall commence on the first day of July of each year and terminate on the thirtieth of June following.
"(c) The General Assembly shall by general law provide for the regulation and management of the finance and fiscal administration of the State.
"Paragraph II. General Appropriation Act.
"(a) Each General Appropriation Act, now of force or hereafter adopted with such amendments as are adopted from time to time, shall continue in force and effect for the next two ensuing fiscal years after adoption and it shall then expire except for the mandatory appropriations required by this Constitution and those required to meet contractual obligations

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authorized by this Constitution and the continued appropriation of Federal grants." (Paragraph II. is not quoted in full as the remaining provisions are not pertinent to the question propounded, and the emphasis added is .ours.)
Construing the Constitutional Amendment cited above, together with the Budget Act of 1962, with the Appropriation .Act of 1961, it is my official opinion that the above cited amendment to the Constitution does not modify the powers of the Governor as provided in Section 48 of the Appropriation Act of 1961, prior to July 1, 1963, the date to which the provisions of the Appropriations Act of 1961 continue in force and effect.
STATE GOVERNMENT-Attorney General (Unofficial)
Outline of duties of Attorney General and State Department of Law.
February 9, 1962
Mr. J. W. Fanning, Director Institute of Community and Area Development The University of Georgia
I wish to acknowledge receipt of your letter of January 29, 1962, enclosing questionnaire to be filled out and returned to the Institute of Community and Area Development to assist in the preparation of a "Directory of Technical and Professional Assistance" for communities and areas throughout the State of Georgia.
You state in your letter that the University is particularly interested in the nature and type of technical and professional assistance that our organization renders to the cities, counties, and communities of this State. While I hardly think that the questionnaire is applicable to the constitutional office of the Attorney General of the State of Georgia, I will attempt to give you a brief summary of the duties of the Attorney General as prescribed by the laws of the State of Georgia.
The Attorney General, who is by law the head of the State Law Department, is a constitutional officer (Georgia Code Ann., Section 2-3101.). The Georgia Code further provides (Georgia Code Ann., Section 40-1601 et seq.) that the Attorney General of the State shall be elected by the people at the same time, for the same term and in the same manner as the Governor.
When requested to do so by the Governor, the Attorney General shall give an opinion in writing or otherwise on any question of law connected with the interest of the State, or with the duties of any of !he departments. He shall prepare all contracts and writings in relaIon to any matter in which the State is interested; he shall act as the legal adviser of the Executive Department; he shall represent the

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State in the Supreme Court in all capital felonies; he shall attend, on the part of the State, to all criminal causes in any of the circuits when the solicitor general thereof is prosecuted, and to all other criminal or civil causes in which the State is a party; he shall represent the State in all civil and criminal cases in any court when requested by the Governor, and perform such other services as shall be required of him by law.
It shall be the duty of the Department of Law, when requested, to advise with the General Assembly or any committee of the same, and to aid in the preparation of proposed legislation.
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 to the judicial and legislative branches.
The Attorney General as the head of the Department of Law and as the chief legal officer of the State, is authorized at any time, other than when the General Assembly is in session, to institute and conduct investigations into the affairs of any department, board, bureau, institution, or authority of the State.
The Attorney General is also authorized to prosecute in the criminal courts of this State any official, person, firm or corporation for violation of any criminal statute in dealing with or for the State or for any official or employee thereof. He is further authorized and empowered to prosecute civil actions and civil recovery actions in the name of the State against any official, 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. When required by the Governor, the Attorney General is authorized to investigate and prosecute subversive activities.
In addition to the above official duties of the Attorney General, it is the policy of the State Law Department to issue written informal and unofficial opinions to county attorneys and county officials in cases in which it is obvious that the issues are free of politics and are not pending in the courts.
STATE GOVERNMENT-Comptroller General and Insurance Commissioner
Georgia laws require annual report to Governor and General Assembly of Comptroller General and Insurance Commissioner.
Sept. 27, 1962
Honorable Zack D. Cravey Comptroller General of Georgia
This will reply to letter in which copy of "Annual Report of ~h~ Comptroller General and Insurance Commissioner-State of Georgia'

457
for the fiscal year July 1, 1960 to June 30, 1961 was enclosed and the following questions were asked:
1. Is it necessary that the report be published at all?
2. If necessary, please outline the minimum requirements to meet the Georgia Code.
3. If necessary to publish, what is the dead line for it to be completed?
Your attention is called to Section 56-204 of the Code of Georgia, which provides:
"56-204. Annual Report.-As early in the calendar year as reasonably possible the Commissioner annually shall prepare and deliver a report to the Governor and the members of the General Assembly showing with respect to the preceding calendar year:
(1) Names of the authorized insurers transacting insurance in this State, with summary of their financial statement as he deems proper;
(2) Name& of insurers whose business was closed during the year, the cause thereof, and amount of assets and liabilities as ascertainable;
(3) Names of insurers against which delinquency or similar proceedings. were instituted, and a concise statement of the facts with respect to each proceeding;
(4) The receipts and expenses of the Department for the year;
(5) Recommendations of the Commissioner as to amendments or supplementation of laws affecting insurance, as to matters affecting the Department;
(6) Such other pertinent information and matters as the Commissioner may deem proper."
Answering the questions propounded, you are advised:
1. The annual report of the Comptroller General and Insurance Commissioner is required by the statute quoted.
2. The minimum requirements are set out in Section 56-204, quoted above.
3. There is no statutory dead line for the submission of the annual report; the statute requires that the report be made "as early in the calendar year as reasonably possible." Since the statute requires that the report be submitted to the members of the General Assembly as well as to the Governor, it would appear that the intent of the statute is that the report be prepared and submitted at or before the next regular session of the General Assembly.
Your attention is also called to Section 101-204 of the Code of Georgia, which requires that at least ten bound copies be furnished

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the State Librarian. In connection with the expression "bound copies", you are advised that paper back binding such as on the copy submitted, would appear to meet this requirement and will be satisfactory to the State Library.
STATE GOVERNMENT-Conflict of Interests
Purchase by member of State Board of Education of interest in building in which Vocational Rehabilitation Division has leased space is not a prohibited conflict of interest since lease was negotiated and became effective before member purchased interest in building.
September 24, 1962
Honorable Claude Purcell State Superintendent of Schools
I am pleased to acknowledge receipt of and to answer your request for an opinion as to whether or not a conflict of interest will exist if a member of the State Board of Education purchases a onefourth interest in a building in which the Vocational Rehabilitation Division has leased office space.
I am of the opinion that since nothing remains to be negotiated insofar as the terms of the current lease is concerned, no conflict of interest will presently exist should the subject member of the State Board of Education now, subsequent to the execution of the lease, purchase an interest in the subject building. I assume, insofar as all other questions may be concerned, that the subject lease was valid at the time the same was negotiated and executed. At that time the subject member of the State Board of Education did not own an interest in the building. His subsequent acquisition of an interest therein will not therefore in my opinion create any unlawful conflict of interest that will have the present effect of invalidating the current lease. I am of the further opinion, however, that upon expiration of the term of the current lease a conflict of interest will occur at that time if the current lease is then renewed or renegotiated and if the subject member of the State Board of Education is then part owner of the premises.
Under the Georgia Code, Annotated, Chapter 32-23, the Division of Vocational Rehabilitation is an agency of the State under the supervision and direction of the State Board of Education, designated for the purposes of Code Chapter 32-23 as the State Board of Vocational Education. The Division is administered by a Director who is appointed by the State Superintendent of Schools subject to the approval of the State Board, and he performs the statutory duties incumbent upon him under their general supervision, direction and control. Even though he may properly execute a lease of property on behalf of the Division and the State Board of Education, his actions in this regard are subject not only to the approval of the State Superintendent of

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Schools but, in the final analysis, and particularly should any question regarding the same arise, to the approval of the State Board as well. There is therefore, in my opinion, such a close relationship existing between the Division, the Director, and the State Board that it cannot be said that the State Board and the members thereof are not concerned with, interested in, or have no responsibility or duty in connection with the execution of such leases by this agency. Indeed, the official actions of such agency and the Director thereof are essentially the actions of the State Board, the duty under Code Section 32-2303 being upon the State Board and not upon the Division of Vocational Education as such to provide the services required to be furnished physically and mentally impaired persons by the provisions of Code Chapter 32-23. This being the case, the matter of renewal or renegotiation of the subject lease upon expiration of the term of the current lease is a matter of public business with which the State Board will be concerned. If a member of this Board is at that time part owner of the subject property, a conflict of interest will then exist that will be such as to invalidate any lease of the property then executed.
I am attaching hereto for your information a copy of an opinion rendered by this office on October 6, 1961, to Mr. Peyton Miles which, beginning on page 4 with the citation of the Hardy v. Gainesville case, reported in 121 Ga. 327, contains numerous authorities sustaining the above opinion. It is likewise quite likely that the renewal of such lease under such circumstances would be in violation of Code Sections 2-5606, 26-2904 and 89-913.

STATE GOVERNMENT-Employees

Earnings due deceased State employee payable to widow if less than $1000.00 even though widow is in Milledgeville State Hospital.

Mr. T. N. Dwyer, Comptroller Eugene Talmadge Memorial Hospital

March 6, 1962

I wish to acknowledge receipt of your letter wherein you state that an employee of the Eugene Talmadge Memorial Hospital has died leaving no will and no next of kin other than his wife who is in Milledgeville State Hospital, and that the employee had earnings due him accrued prior to his death.

In response to your inquiry as to what should be done with the earnings due the deceased employee, Georgia Code Ann., Section
66-103 provides as follows:

"66-103. Wages of deceased employee paid to widow, minors or guardian; exemption from garnishment.-It shall be lawful upon the death of any person employed by any railroad com-

460
pany or other corporation doing business in this State, who may have wages due him by said railroad company or other corporation, and who shall leave surviving him a widow or minor child or children, to pay all of said wages when they do not exceed $1,000 and, in case such wages exceed $1,000 to pay the sum of $1,000 thereof to the surviving widow of such employee; in case he has no surviving widow, but leaves surviving a minor child or children, said sum shall be paid to said minor child or children without any administration upon the estate of said employee, and said funds to the amount of $1,000 after the death of said employee shall be exempt from any and all process of garnishment."
Pursuant to the law above quoted, it will be in order for you to make a check payable to the widow of the deceased employee provided the wages due do not exceed $1,000.
You do not state in your letter whether the widow at Milledgeville State Hospital has a guardian or not, but in any event your obligation under the law will be discharged by making the check payable to the widow.
STATE GOVERNMENT-Employees
Employees health insurance plan approved.
May 2, 1962
Honorable Edwin L. Swain Merit System Director
I wish to acknowledge receipt of your letter enclosing revised and amended contract of health insurance proposed to be executed between the Travelers Insurance Company of Hartford, Connecticut, and the State of Georgia, pursuant to the provisions of Act No. 154, passed by the General Assembly of the State of Georgia, approved March 16, 1961, set out in Georgia Laws of 1961, page 147.
I have reviewed the proposed contract covering employees of the State of Georgia and annuitants drawing monthly benefits from the Employees' Retirement System of Georgia, and the dependents of said employees and annuitants, and it is my official opinion that the proposed contract is in compliance with and meets the requirements of the State Employees' Health Insurance Plan Act, referred to above.
It is my opinion that the State Personnel Board is authorized to execute said contract after inviting proposals from qualified insurers. I am advised that this requirement has been met and that the Travelers Insurance Company of Hartford, Connecticut, is a corporation licensed to transact accident and health insurance business in . this State.
The legislative intent for the design of the insurance plan is accomplished by the proposed contract providing a reasonable relation-

461
ship between the hospital, surgical and medical benefits to be included, and the expected distribution of expenses of each such type to be incurred by the covered employees and dependents, and with respect to reasonable controls, including deductible provisions applicable to certain of the benefits provided for, and for the reduction of unnecessary utilization of the various hospital, surgical and medical services to be provided.
It is my further opinion that the proposed contract complies with the law with respect to content of the Health Insurance Plan established in providing for group hospitalization, surgical and medical insurance against the financial costs of hospitalization, surgery, medical treatment and care, including among other things, prescribed drugs, medicines, prosthetic appliances, hospital in-patient and outpatient service benefits, and medical expense indemnity benefits, including major medical benefits, and in specifically excluding certain expenses from coverage as provided by the State Employees' Health Insurance Plan Act. The proposed contract complies with State law with respect to the method of payment of benefits provided for thereunder.
After you have secured the approval of the proposed contract of insurance by the Insurance Commissioner of the State of Georgia, it will be in order for the State Personnel Board to execute the same with the Travelers Insurance Company of Hartford, Connecticut.
Let me take this opportunity to compliment you upon the excellent plan of health insurance which you have procured and are now ready to implement, covering employees of the State of Georgia, annuitants of the Employees' Retirement System and their dependents.
STATE GOVERNMENT-Employees (Unofficial)
Discussion of prohibited and permissible political activity of State employees.
May 25, 1962
Honorable Culver Kidd Milledgeville, Georgia
I wish to acknowledge your letter in which you request an unofficial ruling with respect to State employees putting "political bumper stickers" on their cars, and with respect to department heads Who are allegedly requiring employees in their departments to attend certain political rallys.
Code Section 40-2207 of the Georgia Code Annotated, states
"It shall be the duty and the functions of the Merit System Council: ...
"(b) After public hearings to adopt and amend rules and regulations effectuating the Merit System of Personnel Ad-

462
ministration which may be established under this Chapter.Such rules and regulations shall prohibit political activity by any departmental employee of the Merit System Council or any employee covered under the terms of the merit system, and shall provide that there shall be no discrimination against any person or employee because of political or religious affiliations. Such rules and regulations when approved by the Governor shall have the force and effect of law and shall be binding upon the State Departments enumerated in the Governor's Executive Order creating the Merit System Council."
Code Section 40-9906 of the Georgia Code Annotated provides as follows:
"Any person who wilfully violates any provision of Chapter 40-22 or the rules and regulations properly issued thereunder shall be guilty of a misdemeanor. Any person who is convicted of a misdemeanor under this section shall, for a period of five years thereafter, be ineligible for appointment to, or employment in, a position in the State service."
The Rules and Regulations of the State Personnel Board as revised on November 1, 1959, provides on page 5 thereof under Rule 3. General Provisions, Section 3.100, Prohibition of Political Activity, Par. 3.101:
"No person shall be appointed or promoted to, or demoted or dismissed from any position under the Merit System, or in any way favored or discriminated against with respect to employment under the Merit System because of his political or religious opinions or affiliations, except that no employee under the Merit System shall be a member of any national, state, or local committee of a political party, or an officer of a partisan political club, or a candidate for nomination or election to any public office, or shall take any part in the management or affairs of any political party or in any political campai'gn, except to exercise his rights as a citizen privately to express his opinion and to cast his vote." (Emphasis Added.)
It is my opinion that a State employee under the Merit System is not privately expressing his opinion when he places a bumper sticker on his car advocating the election of a political candidate, and that such action would be in violation of the Rules and Regulations cited above.
It is my further opinion that an employee under the State Merit System is not necessarily publicly expressing an opinion with respect to the election of a political candidate by merely attending a political rally. Such an employee could be seeking information and education in order to form his own personal private opinion as to how he would cast his vote. I do think, however, that if a department head re quires employees in his department to attend political rallys, the department head is doing more than expressing a private opinion and he could be requiring one of his employees to commit an illegal act in insisting that such employee take part in the affairs of a political campaign.

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STATE GOVERNMENT-Employees

Solicitors General are State employees and normally would be entitled to participate in health insurance plan for State employees but Act fails to contain appropriate provision therefor.

Honorable Luther C. Hames, Jr. Solicitor-General Cobb Judicial Circuit

June 5, 1962

I am in receipt of your letter of May 19, 1962, in which you request my opinion as to whether or not solicitors general are entitled to participate in the health insurance plan for state employees created by Act 1954 (Ga. Laws 1961, p. 147).
Although it appears that solicitors general are state employees, there is no provision in the law authorizing the financing of the cost of the insurance coverage by employer payments on behalf of all Solicitors General who may elect to obtain these health benefits; nor are there any provisions authorizing voluntary supplementary payments by solicitors to meet the total cost requirements of the insurance coverage.

In view of this, it appears that an amendment to the Act would be appropriate as effected in Act 552 (Ga. Laws 1962, p. 51), Section 3, which provides for employer payments for and on behalf of the members of the General Assembly.

STATE GOVERNMENT-Employees
Solicitors General are State employees and normally would be entitled to participate in health insurance plan for State employees but Act fails to contain appropriate provision therefor.
June 27, 1962
Memorandum to All Solicitors General
Because of the existence of considerable interest on the part of Solicitors General with reference to securing coverage under the Health Insurance Plan for State Employees enacted into law by the Passage of Act No. 154 (Ga. Laws 1961, p. 147), I am issuing this memorandum for the purpose of disseminating pertinent information for your assistance and to clarify the present status of this matter.
In answer to a request made by Honorable Luther C. Hames, Jr., Solicitor General, Cobb Judicial Circuit, for an opinion on the question of whether or not solicitors general are entitled to participate in this health insurance plan, I ruled unofficially that solicitors general are State employees within the meaning of the Act. I further stated that in my opinion that:

464
".... there is no provisiOn in the law authorizing the financing of the cost of the insurance coverage by employer payments on behalf of all solicitors general who may elect to obtain these health benefits; ..."
That is to say, the present method of salary payments to solicitors general does not meet the financing requirements under Section 11 of the Act. For this reason, I suggested an amendment to the Act which would provide for employer contributions to the Act which would provide for employer contributions sufficient in amount to meet these requirements. Section 11 of the Act states as follows:
"Section 11. During any period in which an employee is covered under this Act prior to the date of his retirement, there shall be withheld from each salary payment of such employee, as his share of the cost of coverage under this plan, such portion of the premium or subscription charges under the terms of any contract or contracts issued in accordance with this Act as may be established by the Board. During any month in which benefits are being paid by the Employees Retirement System of Georgia to an individual so covered under this program, contributions shall be deducted from such payments in the amounts prescribed by the Board with the consent of the recipient. The various departments, boards and agencies of the State Government shall contribute to this health insurance fund such portions of the costs of such benefits as may be established by the State Personnel Board as funds become available in each department, board and/or agency not exceeding the sum of two per centum of the total outlay for personal services in addition to an amount to be established by the Board to defray the cost of administration and the state's portion of the cost of benefits payable for annuitants."
Under the provisions of this section, the employer contributions for solicitors general would be only $5.00 per year, said amount being 2% of $250.00, which is the annual salary paid solicitors general by the State of Georgia. This would not meet the amount of employer contributions fixed by the State Personnel Board as it is required to do under the above Section 11.
For purposes of illustration only, let us assume that the total annual cost for each solicitor general electing to come under the provisions of Act No. 154, as amended, is $204.00-the annual cost for each superior court judge. A ceiling has been established in the amount of $120.00, which is the annual employer contribution for
each superior court judge. This ceiling was established because 2%
of the salary of a superior court judge would be excessive. In the case of solicitors, the 2% employer contribution would constitute a payment of only $5.00 per year. Superior court judges and solicitors general electing to come under this plan would make the normal employee contribution of approximately $84.00 per year. Thus the total paid through employee and employer contributions for judges is $204.00 per year as compared to the total which would be paid for solicitors general through employee and employer contributions

465
of only $89.00 per year. This would create an obvious deficiency in employee and employer contributions on the part of solicitors general of approximately $115.00, which probably would be required to be paid by the solicitors in the form of a supplementary contribution.
In addition, the Travelers Insurance Company submitted its bid for this contract on specifications which did not inclqde solicitors general; therefore, inclusion of solicitors conceivably could require the imposition of a new premium rate since Travelers is under no obligation to cover solicitors under the present contract. If a plan could be effected which would be acceptable to the State Personnel Board and the Travelers Insurance Company whereby the method and amount of supplementary payment is agreed upon, I believe the practical difficulties now existing could be eliminated. My office is available for any meeting between representatives of the solicitors general, State Personnel Board and Travelers Insurance Company which may be held for the purpose of discussing the matter in question.
STATE GOVERNMENT-Employees
Citation of laws and regulations prohibiting State employees covered by merit system from engaging in political activities.
July 12, 1962
President Edwin D. Harrison Georgia Institute of Technology
We are setting forth below copies of Code Sections 40-2207 and 40-9906 of the Georgia Annotated Code, and an excerpt from the Rules and Regulations of the State Personnel Board, dealing with political activity on the part of any employee covered under the Merit System of Personnel Administration of the State of Georgia.
Code Section 40-2207 of the Georgia Code Annotated, states:
"It shall be the duty and the functions of the Merit System Council: ...
"(b) After public hearings to adopt and amend rules and regulations effectuating the Merit System of Personnel Administration which may be established under this Chapter.-Such rules and regulations shall prohibit political activity by any departmental employee of the Merit System Council or any employee covered under the terms of the merit system, and shall provide that there shall be no discrimination against any person or employee because of political or religious affiliations. Such rules and regulations when approved by the Governor shall have the force and effect of law and shall be binding upon the State Departments enumerated in the Governor's Executive Order creating the Merit System Council."

466
Code Section 40-9906 of the Georgia Code Annotated provides as follows:
"Any person who wilfully violates any provision of Chapter 40-22 or the rules and regulations properly issued thereunder shall be guilty of a misdemeanor. Any person who is convicted of a misdemeanor under this section shall, for a period of five years thereafter, be ineligible for appointment to, or employment in, a position in the State service."
The Rules and Regulations of the State Personnel Board as revised on November 1, 1959, provides on page 5 thereof under Rule 3. General Provisions, Section 3.100, Prohibition of Political Activity, Par. 3.101:
"No person shall be appointed or promoted to, or demoted or dismissed from any position under the Merit System, or in any way favored or discriminated against with respect to employment under the Merit System because of his political or religious opinions or affiliations, except that no employee under the Merit System shall be a member of any national, state, or local committee of a political party, or an officer of a partisan political club, or a candidate for nomination or election to any public office, or shall take any part in the management or affairs of any political party or in any political campaign, except to exercise his rights as a citizen privately to express his opinion and to cast his vote."
STATE GOVERNMENT-Employees Health Insurance (Unofficial)
To be entitled to coverage under health insurance plan activated in 1962, employee must be on active duty on or after date plan went into effect.
October 30, 1962
Mr. Walter 0. Withers, Jr. Chief, Employees Health Insurance Service
In a telephone conversation recently you asked whether a State employee who was on sick leave on July 1, 1962 (the effective date of the State Health Insurance Plan), and who has not returned to full time status as a State employee since that date, and has since retired, is eligible for coverage under the State Health Insurance Plan. In order to confirm our conversation and for your file, I give you the following information.
Section 6 of Act 154, Ga. L. 1961, p. 147, 149, authorizes the State Personnel Board to execute contracts with corporations licensed to transact accident and health insurance business in this State for the purpose of affording such coverage to State employees electing to participate in this Plan. Pursuant to this authority said Board exe

467

cuted a contract with the Travelers Insurance Company for the above stated purpose. Section 2 (I) B of said insurance contract provides as follows:

"... any Employee who is away from work due to dis-

ability on the date his Employee Insurance is to become effec-

tive shall not be insured until the date on which he actually

returns to work on a full time basis."



It appears that the above provision of the insurance contract covers this situation, and it is our unofficial opinion that an employee who was out on sick leave on the effective date of the Health Insurance Plan and, while still on sick leave is retired, is not eligible for coverage under the State Ijealth Insurance Plan as a retired employee. It would appear that coverage must be effected on an employee prior to his retirement before he can retain coverage as a retired employee. Therefore, an employee must work on a full time basis at least one full day after the effective date of coverage (July 1, 1962) before he can become a retired employee under this Plan.

STATE GOVERNMENT-Georgia Historical Society
Georgia Historical Society may not use for raising and preserving of Confederate gunboat money released by Governor for construction of museum to house gunboat.
August 28, 1962
Mrs. Mary Gregory Jewett Executive Secretary Georgia Historical Commission
In answer to your letter of August 21, 1962, relative to the $25,000.00 fund released to your Commission by Governor Vandiver and the use to be made of said fund, I call your attention to the following:
"A Resolution.
"Relative to the construction of a museum in Muscogee County by the Georgia Historical Commission; and for other purposes.
"Whereas, . . . ; and
"Now, therefore, be it resolved by the General Assembly of Georgia that the Georgia Historical Commission is hereby authorized to proceed with negotiations relative to the construction of the museum as aforesaid, and the Budget Bureau is hereby authorized to provide the sum of $25,000.00 to the Georgia Historical Commission, from any available funds, for said purpose." Georgia Law 1961, Volume I, pages 233, 234.

468
Pursuant to this Resolution, an Executive Order dated August 13, 1962, was issued by the Honorable S. Ernest Vandiver, Governor of Georgia, releasing the sum in question to the Georgia Historical Commission.
Since the money has been released so that the Commission might "proceed with negotiations relative to the construction of the museum", the question resolves itself into defining museum as used in the Resolution. A museum has been defined as "a building, or part of one, in which are preserved and exhibited objects of permanent interest in one or more of the arts and sciences; as a historical, or art museum". Webster's New International Dictionary, 2nd Edition, 1945, page 1614. A museum is also described as "a building or institution for the cultivation of science or the exhibition of curiosities or works of art". Black's Law Dictionary, 4th Edition, 1951, page 1171.
Furthermore, because the Resolution heretofore mentioned speaks of " a museum in which (emphasis supplied) to house said gunboat", it is my official opinion that the above definitions are applicable and that the word museum is intended to describe a building. For this reason, and further, because the Governor has expressly declared that the money be released pursuant to the Resolution, the Commission would not be authorized to use the money for completion of the raising and preserving of the gunboat. While I realize that this places a hardship on your work relative to the gunboat, it would seem that the best course of action would be an appeal to the Governor so that he might revise the Order and release the money in such a manner that the raising of the gunboat and preservation thereof might be accomplished.
STATE GOVERNMENT-Justice of the Peace (Unofficial)
A Justice of the Peace is a state official and not a municipal or county officer.
December 7, 1962
Judge Gordon Bishop Jesup, Georgia
This will confirm our telephone conversation of this date as to whether or not a Justice of the Peace is a State official.
As was stated to you, the annotation following Article VII, Section VII, Paragraph I of the Constitution in regard to the case of Long v. State, 127 Ga. 285, 286, reads:
"Justice of the Peace is a State official and not municipal or county officer."
A quick check on this case reveals that it has not been reversed.

469
STATE GOVERNMENT-:-Liability Claims Against State (Unofficial)
Only method of obtaining compensation from State for damages resulting from collision with vehicle of Georgia Forestry Commission is requesting member of House of Representative to introduce compensation resolution in General Assembly.
February 12, 1962
Honorable Cecil W. Schneider Attorney at Law Georgetown, South Carolina
Thank you for your letter of February 8, 1962, advising that your client was involved in a collision with a truck owned by the Georgia Forestry Commission. You inquired as to the proper procedure to pursue in order to get a resolution introduced into the General Assembly of Georgia for the purpose of compensating your client for the damages sustained by him in the above collision.
In answer to your inquiry, it will be necessary for you or your client to request a member of the House of Representatives in the General Assembly of Georgia to introduce such a compensation resolution. This procedure is the only method for obtaining compensation from the State of Georgia because it does not carry liability insurance on the vehicles owned and operated by the Georgia Forestry Commission.

STATE GOVERNMENT-Purchasing Department

Relocation of power lines in State park not matter coming within duties of State Purchasing Department, but is of concern to department directly affected.

Honorable T. B. McDorman Assistant Supervisor of Purchases

October 25, 1962

In answer to your request contained in your letter of October 6, 1962, concerning the Purchasing Department's duty in the relocation of certain Georgia Power Company lines located within the limits of Fort Yargo State Park this is to advise that I find no statutory responsibility resting upon the Supervisor of Purchases in this connection.

In general, the Supervisor of Purchases is authorized to buy supPlies, materials, and equipment to be used by the State government. The statute also provides for your office to contract for all telephones, telegraph and electric light power lines, and other contractual purchases as well as to contract for the required State printing. However, nothing in the Act, nor in the legislative intent, created a general contracting officer or office.

470
It is my opinion that the relocation of the power lines would not be such a contractual service as contemplated by paragraph (c) of Code Section 40-1902. This would be a contract for service or construction which should properly be handled by the interested Department.

STATE GOVERNMENT-Secretary of State

Discussion of duties of Secretary of State as Surveyor General and of legislation authorizing survey of Atlantic coast line.

October 30, 1962

Honorable Ben W. Fortson, Jr. Secretary of State

This will acknowledge your letter with a copy of a communication received by you from Mr. Daniel B. Dantzler, P. 0. Box 1022, Grand Junction, Colorado. It appears that Mr. Dantzler has been advised by the U. S. Coast & Geodetic Survey office in Washington that the State of Georgia has adopted what is known as the State Plane Coordinate System, for horizontal control. He believes the Act was enacted in 1945. He wants a copy of the Act and advice regarding who is charged with administration of it.

You, of course, are familiar with the fact that the offices of Secretary of State and Surveyor General are consolidated, and the Secretary of State is required to discharge the duties of both said offices. Code of Ga. Ann., 40-601. The duties of the Surveyor General are enumerated in detail in Code of Ga. Ann., 40-604. This section specifies that the Secretary of State shall also discharge these duties devolving on the Surveyor General. There is authority to contract for the execution of new maps subject to the ratification of the General Assembly.

Your attention is called to Ga. L. 1945, pp. 294, 311, approved
March 8, 1945, which creates a State Board of Registration for Professional Engineers and Land Surveyors. The Board is appointed by the Governor and the Joint-Secretary of the State Examining Boards is designated to serve as Secretary of the Board in the same manner as is provided by the Code 84-101 and 84-102. This pro-
vision is found in Section 39 of the 1945 Act. Your attention is called to the definition of the term "Land Surveyor" and the definition of the practice of land surveying as found in Section 4(c) of said Act.

Acts 1959, p. 378 provided by resolution that the SecretarY of

State as the Surveyor General of Georgia be authorized to enter into

agreements with the proper agencies of the federal government _for

the purpose of making a survey of the Georgia Atlantic coast bne.

The principal purpose of the survey was to determine contour and to determine the boundaries of Georgia

uthndeelrow43wUatSe0r

1301, et seq. The expenditure of the necessary funds was authorized.

471
See Acts 1959, Vol. 1, p. 378. Code of Ga. Ann., Title 15, Chapter 15-1, editorial note.
The 1945 Act on Engineers and Land Surveyors is codified in Section 84-21 of Code of Ga. Ann., and since the Joint-Secretary of Boards in your office serves as Secretary of this Board, we are sure that he is familiar with the details of the activities of this Board. The Board created by the 1945 Act no doubt is familiar with the State Plane Coordinate System, for horizontal control, which is mentioned in the letter received by you from Mr. Dantzler, and we have the impression that this system was used in the survey of the Atlantic coast line authorized by the 1959 Act.
STATE GOVERNMENT-State Capitol (Unofficial)
Secretary of State precluded by law from allowing use of Capitol grounds for fall-out shelter.
June 13, 1962
Lt. Colonel William E. Smith The Atlanta Metropolitan Area
of Civil Defense
This letter is written in response to your recent visit with the Secretary of State during which you delivered to him proposed forms of fall-out shelter license or privilege for the use of the State Capitol and the Secretary of State Annex in connection with the Civil Defense Program of the United States; and requested that the Secretary of the State grant such use on behalf of the State of Georgia.
In answer to your request, please note the following sections of the Code of Georgia, Ann. :
"91-105. (1284) Use of Capitol.-The use of the capitol building and grounds shall be limited to departments of the State Government and to State and National political organizaations, and the keeper of public buildings and grounds shall not grant the use of either the capitol buildings or grounds for any other purposes, except that the Secretary of State, as keeper of public buildings and grounds, is hereby authorized to provide space in the capitol building for use as a vending stand (as described by the Vending Stand Act of 1956-[ 32-2316 through 32-2318]) for the use of State officials and employees and their invited guests. (Acts 1892, p. 95; 1882-83, p. 18; 1884-85, p. 27; 1888, p. 14; 1961, p. 218.)"
"91-402. (146) Supervision of property.-The Governor shall have general supervision over all property of the State, with power to make all necessary regulations for the protection thereof, when not otherwise provided for. He shall assign

472
rooms in the capitol to all officers who are required to hold their offices there, and, in the absence of any legislative provision, designate the purpose to which other rooms shall be applied."
STATE GOVERNMENT-Stone Mountain Memorial Association
Stone Mountain Memorial Association is an agency of the State and its employees are therefore eligible to participate in State Health Insurance Plan.
October 24, 1962
Honorable Edwin L. Swain Merit System Director
I wish to acknowledge receipt of your letter in which you request my opinion as to whether the Stone Mountain Memorial Association and its employees are eligible under present Georgia Laws to participate in the State Employees Health Insurance Plan.
The State Health Insurance Plan Act, set out in Georgia Laws of 1961, at page 147, Section 1., provides as follows:
"For the purposes of this Act, an employee is defined as a person who works full-time for the State and receives his compensation in a direct payment from a department, agency, or institution of the State Government, and annuitants who at the time of their retirement met these criteria and draw a monthly benefit from the Employees Retirement System of Georgia." (Emphasis added)
Section 14. of said Act provides as follows:
"On or before June 1st of each year, the State Merit System Director shall certify to the director or chief administrative officer of each State department, bureau, institution, board, commission or authority having employees covered by this Act
the amount of percentage adopted py the Board as employer
payments for the ensuing fiscal year and they shall, in their annual budget, make provisions for funds with which to pay the Board the required employer payments." (Emphasis added)
Stone Mountain Memorial Association Act, set out in Georgia Laws of 1958, at page 61, provides:
"Section 3. Stone Mountain Memorial Association. There is hereby created a body corporate and politic and instrumentality and public corporation of this State, to be known as Stone Mountain Memorial Association...."
"Instrumentality" is defined in Webster's Dictionary as being an "agency". It is, therefore, my opinion that when the Georgia Laws of 1958, creating the Stone Mountain Memorial Association, declares

473
the same to be an "instrumentality and public corporation of this State", the same is in effect an agency of the State and therefore comes within the provisions of Section 1. of the State Health Insurance Plan Act, defining an employee eligible for insurance coverage as one who works full-time for the State and receives his compensation in a direct payment from a department agency or institution of the State Government.
Specifically, in answer to your question, the employees of the Stone Mountain Memorial Association, as an agency of the State Government, are eligible under present Georgia laws to participate in the State Employees Health Insurance Plan.
STATE GOVERNMENT-Surplus Funds
Governor authorized to use surplus funds to complete the salvage of Confederate Gunboat Muscogee.
November 29, 1962
Honorable S. Ernest Vandiver Governor, State of Georgia
In response to your letter requesting my opinion concerning your legal authority to make surplus funds available to complete the salvage of the Confederate Gunboat Muscogee, please be advised that Section 8 of the Budget Act of 1937 (Georgia Laws 1931 Ex. Sess., pages 94, 98) gives you the necessary authority to release such sum from the State Surplus Fund if properly requested by the particular State agency requiring the allotment.
This particular Section is codified as Section 40-408 and reads as follows:
"40-408. Contingency appropriation.-To the end that all expenses of the State may be brought within the budget, the budget appropriation bill shall also contain a specific sum as a contingent or emergency .appropriation. The manner of the allocation of such contingent or emergency appropriation shall be as follows: Any department, commission, board, institution, or other agency of the State, desiring an allotment out of such emergency appropriation, shall, upon forms prescribed by him, present such request in writing to the Director of the Budget, with such information as he may require, and the Director may allow or disallow the requests in his discretion. (Acts 1931, Extra. Sess., pp. 94, 98.)"
The current Appropriations Act upon which the fiscal affairs of the State are being conducted was passed in 1961. Since that time the Budget Act of 1962 has been ratified as an amendment to the Constitution on November 6, 1962. However, in a recent official ruling requested by Mr. E. B. Davis, State Budget Officer, I ruled that con-

474
struing the Budget Act of 1962, which was adopted by constitutional amendment with the Appropriations Act of 1961, the amendment does not modify the powers of the Governor as provided in the Appropriations Act of 1961 prior to July 1, 1963, the date to which the provisions of the Appropriations Act of 1961 continue in force and effect. Inasmuch as the Appropriations Act of 1961 allowed allocations from surplus as envisioned by Code Section 40-408, a proper request can still legally be honored.
Although the object of the contemplated expenditure is of an unusual nature, its legality is not questioned. On October 3, 1961, you formerly acknowledged receipt of a quit claim deed to the Confederate Gunboat Muscogee from the Confederate Gunboat Salvage Committee. It was my opinion at the time that this was the only possible way to take title to the gunboat in the name of the State of Georgia.
It is my understanding that in order to salvage the gunboat, it had to be sectioned. Part was taken from the water and is now on display and the remaining portion was left on the river bottom. The fact that it proved impossible to raise the gunboat as a single unit would not divest title conveyed by the aforementioned quit claim deed, since the only intention evidenced by the Historical Commission to date has been that of raising all sections of the boat along with all recoverable artifacts.
STATE GOVERNMENT-Surplus Property
Discussion of manner in which Governor may authorize sale of unserviceable State property without having to obtain specific legislative authority for action.
October 24, 1962
HonorableS. Ernest Vandiver Governor, State of Georgia
I have your letter in which you state that the Columbia Nitrogen Corporation, a subsidiary of the Pittsburgh Plate Glass Company, has selected Richmond County, Georgia, as the site for the development of a substantial new industry provided it is able to purchase a tract of land consisting of approximately sixty acres owned by the State of Georgia.
You state further that your preliminary investigation reveals that the property is surplus to the needs of the State, and you request mY opinion as to whether you as Governor would be authorized to sell this property to the Columbia Nitrogen Corporation for a consideration to be determined by appropriate appraisals.
It is my opinion that you as Governor would not be authorized to sell this property to the Columbia Nitrogen Corporation for a con sideration to be determined by appropriate appraisals. In August of

475
1946 I rendered an opinion to the Honorable Ellis Arnall, Governor of Georgia, (Opinions of the Attorney General1945-47, page 543) to the effect that:
"... This office has made several rulings to the effect that state property cannot be leased, sold or otherwise disposed of without legislative authority. The only exception to this rule is stated in Section 91-804 of the Code, as follows:
" 'When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the Treasury.' "
Code Section 91-805 of the Annotated Code of Georgia, defines "Proper authority" as follows:
"The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having charge of county matters, for all officers of the county.''
I am advised that the State Highway Board of Georgia has by resolution adopted on May 8, 1962, declared the sixty acre tract, to which you refer in your letter, to be unserviceable for the purposes of the State Highway Department of Georgia, within the meaning of Section 91-804 of the Georgia Code, and as reported to you as Governor of the State, that said property is subject to disposition under the provisions of Section 91-804 and 91-805 of the Georgia Code.
It is my opinion that should you determine that the sixty acre tract involved is surplus to the needs of the State, you may by appropriate Executive Order authorize the sale of said property through the office of the State Supervisor of Purchases and provide for the proper advertisement, for receipt of sealed bids and the award to the highest bidder, reserving the right to reject any and all bids and providing that the proceeds from the sale of the land be paid into the State Treasury.
In your letter of October 22, you state that three separate and independent appraisals by reputable real estate concerns in Richmond County have been made of this property, and you request my advice as to whether the cost of these appraisals may be paid from State surplus funds. It is my opinion that if the State Highway Board obtained the three independent appraisals of this property in order to establish standards of valuation preparatory to a sale of property declared and determined to be unserviceable, the State Highway Board rnay request an allotment of funds from the Governor's emergency fund to be presented to you in such form and with such explanation as you may require, and you may allow or disallow said request at Your discretion in accordance with the provisions of Section 40-408 of the Georgia Annotated Code as amended by Georgia Laws of 1962, Page 17, at page 25, as follows:

476
"'40-408. Governor's emergency fund. To the end that emergency needs of the State agencies not ascertainable at the time of the submission of the Budget Report to the General Assembly, or at the time of the enactment of the General Appropriations Act, be provided for, the General Appropriations Act shall contain a specific sum as an emergency appropriation. The manner of allocation of such emergency appropriation shall be as follows: The head of the budget unit desiring an allotment of funds from the appropriation shall present such request to the Governor, in such form and with such explanation as he may require, and the Governor may allow or disallow the request at his discretion. No allotment shall be made from this appropriation to a purpose which creates a continuing obligation for the State.' "
Said Code Section as amended became effective at the end of June 30, 1962.
TAXATION-Ad Valorem Taxes (Unofficial)
Serviceman, even though stationed abroad and having personalty abroad, would be subject to ad valorem taxation in county and state of legal residence.
February 14, 1962
Miss Ida D. Davison Tax Collector, Clarke County
Mr. C. G. Campbell, Director of the Property Tax Unit, asked me to write you concerning the tax situs for ad valorem purposes of motor vehicles owned by members of the military service while stationed abroad.
The Georgia Code provides in Section 92-101 that all personal property owned by a resident individual shall be liable to taxation, and Code Section 92-102 provides:
"For the purposes of taxation, 'personal property' shall be construed to include goods, chattels, moneys, credits and effects, whatever they may be; ships, boats, and vessels, whether at home or abroad...."
Generally a person maintains or keeps his legal residence until he is able to establish a new residence by going to the new location of his own free will with the intention of remaining there. Unless the serviceman can show that he has acquired a new residence, he will remain a resident of the State.
The Soldiers' and Sailor's Civil Relief Act does not provide a general immunity from personal property taxes, but only reserves the exclusive right to tax such personal property to the State of legal residence. 50 U. S. C. A. Supp. 574.

477
A legal resident of this State is, therefore, liable for Georgia ad valorem taxes on personal property owned by him on January 1, irrespective of the fact that such person is in the military service and irrespective of the fact that both the property and the owner are absent from the State on January 1, or the entire year; and this would be so even if no Georgia license plate were purchased.

TAXATION-Ad Valorem Taxes (Unofficial)

Soldiers' and Sailors' Civil Relief Act exempts non-resident serviceman from ad valorem taxation in county in which stationed only where he has paid required license fees in state and county of legal residence.

March 6, 1962

Major Arnold H. Lingle Elberton, Georgia

This is in reply to your letter dated March 5, 1962, concerning ad valorem taxation of your motor vehicle. It is my understanding that you are an active member of the United States Army stationed at Elberton, Georgia under military orders; that you are not a resident of the State of Georgia but are a resident of El Paso, Texas. I assume that you have paid no ad valorem tax on your motor vehicle to the tax authorities in Texas.

The Tax Commissioner of Elbert County has demanded ad valorem

tax for the year 1961 upon your automobile and you contend that

you are relieved from this tax under the provisions of the Soldiers'

and Sailors' Civil Relief Act. Section 514 of the Soldiers' and Sailors'

Civil Relief Act provides that personal property shall not be deemed

to be located or present in or to have a situs for taxation in the county

where you reside pursuant to military orders. The second section of

the Act contains a proviso that the license fee or excise required by

the state of your residence be paid.



We take the position that the Civil Relief Act will protect you from the taxation in this state only if you have paid the applicable taxes in the state of your residence. The case of Woodroffe v. Village of Park Forest, D. C., Ill. 107 Federal Supplement 906 provides:

"... Moreover, personalty of such military person, which by this section includes a motor vehicle, shall not be considered to have a situs for tax purposes in any political subdivision, of which such person is not a resident provided that he pays the required license fees to that political subdivision of which he is a legal resident."

The Supreme Court of Appeals of Virginia in an opinion, 202 Virginia 611 (118-SE 2nd 506), stated that a city license tax assessed against an automobile was within the Soldiers' and Sailors' Civil Relief Act provision granting non-resident servicemen exemp-

478
tions only providing they had paid the license fees required by the state of their residence.
It is certainly not the intention of this Act to relieve you of all property taxation.

TAXATION-Ad Valorem Taxes

Reserve fund of credit union subject to ad valorem taxes.

Mr. W. D. Trippe Superintendent of Banks

April 13, 1962

This is in reply to your recent request for an official opinion concerning the ad valorem taxation of the reserve fund maintained by a credit union.
5 Ga. Code Ann., Section 27-117 (Ga. Laws 1925, p. 175, as amended by Ga. Laws 1956, p. 742) pertaining to the organization and operation of credit unions provides with reference to reserve funds:
"All entrance fees, transfer fees and charges shall, after the payment of the organization expenses, be known as reserve income and shall be added to the reserve fund of the credit union. At the close of each fiscal year there shall be set apart to the reserve fund five per cent. of the gross income of the corporation which has accumulated during the year. The members, at an annual meeting, may increase the proportion of the profits which is required by this section to be set apart to the reserve funds or to decrease it when the reserve fund equals 10 per cent. of the assets of the credit union. The reserve fund shall belong to the corporation and shall be held to meet contingencies and shall not be distributed to the members except upon dissolution of the corporation."

The Constitution of the State of Georgia of 1945, Article VII, Section I, Paragraph IV, enumerates the authorized exemptions from
ad valorem taxation. I am unable to find from an examination of the constitutional provisions any exemption for credit unions. The last sentence of this constitutional provision provides: "All laws exempting property from taxation, other than the property herein
enumerated, shall be void."

It is my opinion from examining the applicable Code provisions that the Legislature did not intend any unconstitutional exemption, but did intend to exempt credit unions from taxation, other than ad valorem taxation, unless specifically made subject to such tax law.
Georgia Code Section 92-102 provides that for the purposes of taxation, "personal property" shall be construed to include goods, chattels, monies, credits and effects, whatsoever they may be.
It is my opinion that the reserve fund in question is subject to ad valorem taxation.

479
TAXATION-Ad Valorem Taxes (Unofficial)
Serviceman must pay taxes on property in county of his residence even though he is stationed outside the State.
May 7, 1962
Mrs. Bruce J. Clifton Vidalia, Georgia
I am writing in reply to your letter concerning the tax situs of your husband's automobile. The laws of Georgia provide that personal property will be taxed in the county of the owner's residence, whether that property is at home or abroad unless of course it has acquired some new tax situs because it is being used in a business which is located in another county. It is my understanding that your husband is a resident of Georgia and of Toombs County but that he is not in the state as he is on military duty elsewhere.
The Soldiers' and Sailors' Civil Relief Act makes provision for the taxation of personal property owned by servicemen but the conditions contained in this Act do not apply to the taxation of property in the serviceman's own state and county.
It is my opinion that your husband is obligated to pay ad valorem tax on his automobile and on all other personal property owned by him even though it may not be located in Toombs County. Any information you may have received to the contrary must be as a result of some misunderstanding. The taxpayer is obligated to pay taxes and will have to pay penalty and interest on those taxes if they are delinquent. I would suggest that you talk to your tax collector in Toombs County about your ad valorem taxes.
TAXATION-Ad Valorem Taxes (Unofficial)
Discussion of tax situs of personal property.
May 28, 1962
Mr. L. 0. Ledford Rossville, Georgia
This is in reply to your letter concerning the ad valorem taxation of manufactured personal property warehoused in Georgia for multistate distribution, and of manufactured personal property made in Georgia but warehoused in some other state.
The Georgia Code provides, in Section 92-101, a description of all taxable personal property and states that all personal property, whether owned by resident or non-resident taxpayers, is liable for taxation.
The determining factor in the taxability of personal property, whether it be tangible property or intangible property, is territorial

480
jurisdiction of the taxing sovereignty. The Supreme Court of this state, in the case of Davis v. Penn Mutual Life Insurance Company, 198 Ga. 550, 553, states this state cannot tax where it has jurisdiction over neither the owner nor the property.
Personal property belonging to residents of this state have a tax situs in the county of the owner's residence whether the property was located there or elsewhere unless the property is connected with some business enterprise which is located more or less permanently in another jurisdiction. Property used in a business has a tax situs where the business is located.
A manufacturing company having warehouse facilities in Georgia is necessarily engaged in a warehousing business in Georgia and the personal property pertaining to that business and located at that business site is subject to ad valorem taxes there, even though the owner's residence may be elsewhere.
Personal property manufactured in Georgia but warehoused in some other state would have a tax situs at the warehouse point in the other state.
TAXATION-Ad Valorem Taxes (Unofficial)
Discussion of ad valorem taxability of transient aircraft used in interstate or foreign commerce.
June 19, 1962
Mr. Charles M. Evert County Attorney Muscogee County
This is in reply to your letter concerning the ad valorem taxation of aircraft which regularly use the Muscogee County Airport.
There are several important decisions in this area which I would like for you to examine before we reach any decision concerning the taxation of these aircraft. We are not only confronted with problems involving international law and federal law concerning interstate commerce, but also Georgia law concerning tax situs of personal property.
The Georgia Supreme Court, in the case of Lewis and Holmes Motor Freight Corp. vs. City of Atlanta, 195 Ga. 810 held that personal property follows the person of the owner and has its taxable situs at the domicile of the owner, "but for the purpose of taxation it maY be separated from the owner and it may be taxed on its account at the place where it is actually located or used." In Headnotes 3 and 4 the Court discusses taxation based upon the average number formula and seems to say that while the State has the authority to alter and change taxable situs, that it had not done so.

481

There are three important decisions concerning ad valorem taxation of aircraft. In the case of Northwest Airlines vs. State of Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283, the Supreme Court held that a Minnesota property tax levied upon the entire fleet on a full ad valorem basis did not violate either the commerce clause or the due process clause. The aircraft were known to be engaged in commerce but it was pointed out that no question was before the Court concerning taxation of the same aircraft in other states.

The Supreme Court, in the case of Braniff Airways, Inc. vs. Nebraska State Board, 347 U.S. 590, 74 S.Ct. 757 98 L.Ed. 967, involved a case the facts of which are similar to the situation existing in Muscogee County, Georgia. The state of Nebraska had levied an ad valorem tax on the flight equipment of a non-resident airline based upon an apportionment formula. The Court held that Nebraska had a right to tax a proportionate part of such equipment so long as the tax levy and allocation were in reasonable relationship to the use of flight equipment within the state.

The third case is that of Scandinavian Airlines System, Inc. vs.

_C__o__uun.tsy.

_o__f__

Los Angeles, (Nov. 1961).

363 This

P2d case

25, 14 Cal. involves an

Rptr. 25. Cert denied ad valorem taxation of

aircraft used in international commerce and the California Courts

applied a "home port" doctrine in a decision that held the State to be

without authority to levy the tax at all.

I am enclosing a copy of a paper entitled, "Recent Court Decisions In The Field Of Ad Valorem Taxation Of Utilities", which may be of some interest to you. After you have had an opportunity to review this matter, I would like to discuss it with you. It may be that the county officials will want to sponsor some legislation at the next meeting of the General Assembly which will strengthen their position in this matter rather than proceed with the tax assessment at this time.

TAXATION-Ad Valorem Taxes
Chickens, eggs and honey are "farm products" exempt from ad valorem taxation for the next year after their production.
Fraternal organizations such as Elks, Moose, etc., are not institutions of purely public charity which would be exempt from taxation.

Board of Tax Assessors Toombs County

June 20, 1962

This is in reply to your letter concerning ad valorem taxation of chickens and beehives and also the taxability of fraternal organizations such as Elk Lodge, Moose Lodge, etc.

Code Sec. 92-201 of the Code of Ga. provides that ". . . all farm Products, including baled cotton, grown in this State and remaining

482
in the hands of the producer shall be exempt from taxation for the next year after their production."
In an earlier opinion of the Attorney General (Op. Atty. Gen. 1951, p. 285), I wrote:
"... Insofar as we have been able to determine, there is no Georgia case construing the words 'farm products,' however, we did find cases from the appellate courts of other states. In the case of Case v. Ploutz, et al., 154 N.Y.S., 914-915, the Court held:
"... Cattle which are a part of the increase of the cattle on the premises are 'Products of the Farm'.
"In the case of Reeney v. Beasman, 182 A. 566, 569, 169 Md. 582, 103 A.L.R. 1515, the Court held:
"... 'Farm Products' include swine, horses, meat cattle, sheep, manure, cordwood, hay, as well as vegetables, fruit, eggs, milk, butter, lard, and other provisions for the mouth.
"In the case of District of Columbia v. Oyster, 15 D.C. 285, 286, 54 Am. Rep. 275, the Court held:
"The common parlance of the country and the common practice of the country have been to consider all those things as farming products or agricultural products which have the situs of their production upon the farm, or which are brought into condition for the uses of society by the labor of those engaged in agricultural pursuits, in contra-distinction from manufacturing or other pursuits.
"The product of the dairy and the product of the poultry yard, while it does not come directly out of the soil, is necessarily connected with the soil, and those who are engaged in the culture of the soil.
"The word 'product' is defined in Webster's Dictionary as 'anything produced, as by generation, growth, labor, or thought.' "
It is my opinion, based upon these decisions, that the chickens, the eggs, the honey, etc., would be exempt from taxation for the year next after their production. However, the buildings and equipment used in these operations would not be exempt from taxation.
Code Sec. 92-201 provides that all public property, places of re ligious worship and places of burial, all institutions of purely public charity, shall be exempt from taxation. The fraternal organizations referred to in your letter are not institutions of purely public charitY as contemplated by our statutes but are for the most part fraternal benefit organizations and therefore not exempt from taxation. Mu Beta Chapter Chi Omega House Corp. v. Davison, Tax Collector, et al., 192 Ga. 124.

483
TAXATION-Ad Valorem Taxes (Unofficial)
Situs of personal property for tax purposes is normally county in which owner resides unless property is connected with some trade or business that is situated more or less permanently in another county, in which case latter county is situs.
June 27, 1962
Mr. B. W. Dodson, Chairman Sumter County Board of Tax Assessors
This is in reply to your request for an opinion concerning the tax situs of tangible personal property such as trucks and trailers and other machinery as used in a trade or business.
Ga. Code Ann. 92-102 provides:
"For the purposes of taxation, 'personal property' shall be construed to include goods, chattels, moneys, credits and effects, whatsoever they may be; ships, boats, and vessels, whether at home or abroad, ..."
The Supreme Court of our State in the case of Collins v. Mills, 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 a business enterprise that is situated more or less permanently in such other county. See also Wright v. Mayor and Council of Brunswick, 140 Ga. 231; St. Simons Transit Co. v. Mayor and Council of Brunswick, 141 Ga. 477.
The owners of personal property which is located in your county more or less permanently would be obligated therefore to pay property tax to your county. This is true even if such owners are not residents of this State. See Ga. Code 92-106.
The Supreme Court held in the case of Suttles v. Northwestern Mutual Life Ins. Co., 193 Ga. 495, that the laws of Georgia evidence an intention to tax all property of every kind or class of which it has jurisdiction for that purpose..

TAXATION-Ad Valorem Taxes (Unofficial)

Where property evaluation is altered, taxpayer must be notified Personally or through posting of re-evaluation notice in front of courthouse door.

Mr. P. H. Davidson, Chairman Board of Tax Assessors, Banks County

July 5, 1962

This is in reply to your letter in which you asked for an opinion as to whether or not it will be necessary to post the name and the

484
amount of an increase in property evaluation on the bulletin board of your County Court House, in addition to sending the taxpayer a notice of such increase by mail.
Georgia Code 92-6911 states:
"... When any such corrections, changes or equalizations shall have been made by the board, the board shall, within a period of five days, give notice to any taxpayer of any changes made in his returns, either personally or by leaving same at his residence or place of business or by sending said notice through the United States mails to his last known place of address. In all cases where an assessment is made or return is changed or altered by authority of the county tax assessors, as herein provided, and notice is not given personally to the taxpayer, as herein provided, the notice of such assessment or of such change shall be posted in front of the courthouse door, which posted notice shall contain the name of the owner liable to taxation, if known, and a brief description of the property, if owner is unknown, together with a statement that the assessment has been made, or the return changed or altered as the case may be, and need not contain other information. . . ."
It is apparent that the language contained in this Code Section is susceptible to several different interpretations. However, careful examination and evaluation will indicate that a posting in front of the Court House door is required in all cases except those in which personal service is effected. The provisions of the Code Section which require the Board to give notice either personally or by mail, indicate that the giving of notice by mail is not personal service as contemplated by the statute.
TAXATION-Ad Valorem Taxes (Unofficial)
Boats owned and operated by military personnel, if properly registered in state of owner's residence, are not taxable in Georgia when operated while owner is on military duty in this State.
July 6, 1962
First Lieutenant Donald A. Fanning, USAF Hunter Air Force Base, Georgia
This will acknowledge receipt of your request for information relative to registration and taxation of boats owned by military personnel.
The pertinent provisions of the Soldiers and Sailors Civil Relief Acdt are found in 50 U.S.C.A. App., 574, 590(b) and 584. Numbere paragraph 2 of 50 U.S.C.A. App. 574 defines taxation to include but not be limited to licenses, fees or excises imposed in respect to motor vehicles or the use thereof. Personal property is defined therein to

485
include tangible and intangible property, specifically including motor vehicles.
Numbered paragraph 1 thereof, after enumerating the conditions, specifically provides :
"... and personal property shall not be deemed. to be located or present in or to have a situs for taxation in such State, territory, possession or political subdivision or district . . . ."
As was stated in Cass v. Dameron, 244 P. 2d 1082, which was reversed on other grounds, the main object of the 1944 amendment to this Section was the elimination of multiple taxation of military personnel.
In a recent Virginia case, Whiting v. City of Portsmouth, 188 S. E. 2d 505, the City of Portsmouth was precluded from requiring a city license tax against the owner of a motor vehicle as a privilege for using streets upon the condition that the license could not be imposed where the service man had paid the license fee required by the State of his residence.
Section 7 of the Georgia Motorboat Numbering Act, Georgia Laws 1960, page 235, provides a 90-day reciprocity period for the operation of a boat that is properly registered in another State.
In view of the above quoted provisions of the Soldiers and Sailors Civil Relief Act, and to give meaning thereto, it appears that a service man who has a boat properly registered with the State of his residence would not be required to register the same with the State of Georgia during the time that he is present in this State in the performance of military duties. This exemption is based upon the provision that the boat is properly registered in the State of his residence.
TAXATION-Ad Valorem Taxation (Unofficial)
Discussion of taxability of personal property temporarily removed to another state.
July 25, 1962
Honorable William F. McCall, Chairman Board of Tax Assessors, Colquitt County
This is in answer to your letter in which you request my unofficial opinion on the following question:
"Are cotton pickers (tangible personal property) owned by a resident of Colquitt County taxable in Colquitt County when said cotton pickers are transported during cotton season to a nearby state to pick cotton?"
In considering the place at which property is taxable and the governmental unit which may rightfully levy and collect the tax, the

486
fundamental factor is the situs of the property in question; this is true whether such property is owned by residents of the taxing state or by nonresidents thereof. Lawrence v. Tax Commissioner, 286 U. S. 276, 87 A. L. R. 374. This principle applies both with respect to real property and personal property.
While a state cannot fix a taxable situs for property which has never come into the state, and over which it has no power of control, it does have power to fix the time at which property within its jurisdiction may acquire a taxable situs. Re Harkness, 83 Okla. 107, 204 P. 911, 42 A. L. R. 399.
As between taxing units within the state, tangible personal property is ordinarily taxable to the owner in the county, town, municipality, or other taxing districts in which the owner has domicile jf the property has not acquired a taxable situs elsewhere, and in the case of property owned by a corporation, at the place where the principal business of the corporation is transacted. Johnson Oil Ref. Co. v. State, 172 Okla. 552, 46 P. (2d) 546.
The domicile of the owner is the taxable situs assigned to tangibles where the actual situs has not been acquired elsewhere. Southern P. Co. v. Kentucky, 222 U. S. 63. That state is the situs for purposes of taxation of tangible personal property in another state, but not permanently located there. Brock & Co. v. Los Angeles County, 65 P. (2d) 791. But when tangible personal property is permanently located in a state other than the state of the owner's domicile in such circumstances as to acquire a situs there for purposes of taxation, it is taxable there; in this situation the state of the domicile of the owner, which affords no substantial protection to the property, has no jurisdiction to tax such property. Curry v. McCanless, 307 U. S. 357. An attempt to do so is a violation of the due process clause of the Federal Constitution. 110 A. L. R. 709.
If the removal of tangible personal property to another jurisdiction is intended to be temporary only, it remains taxable at its permanent situs, even though the purpose of the removal was tax evasion or tax reduction. Brock & Co. v. Los Angeles County, supra. In short, not until the property acquires an actual situs elsewhere does the domicile lose the right to tax. Cream of Wheat v. Grand Forks County, 253 U. S. 325. The removal of personalty from the state of its actual permanent situs, if intended to be temporary on the date of the tax assessment, does not defeat its taxation at such situs,
although subsequent to such date the purpose is changed so as to
render the removal permanent. Such fact may, however, exempt the personalty from taxation at the next taxing date. Brock & Co. v. Los Angeles County, supra. When, however, the domiciled owner removes such property from the state, never to return it, it is no longer taxable there, even if its stay in a particular foreign state is only temporary. Delaware, L. & W. R. Co. v. Penn., 198 U. S. 341.
A state may constitutionally tax its own residents for all of their property within the state during the taxable year, even if every item of that property should be taken successively into another state for a day, a week, or six months, and then brought back. 123 A. L. R. 184.

487
The state of domicile remains the permanent situs of the tangible property notwithstanding occasional excursions to other states. The state of domicile of the owner of migratory tangible personal property, such as instrumentalities of commerce, may tax all the migratory tangibles of such resident, although such tangibles are only temporarily or transiently within the state where none of the tangibles have acquired a permanent location or taxable situs elsewhere, notwithstanding personal property taxes on some part of the tangibles had been paid by the owner in some other state. 84 C. J. S. 244.

TAXATION-Ad Valorem Taxes (Unofficial)
Disabled veteran is not exempt from payment of ad valorem taxes on his automobile.
October 5, 1962 Mr. Virgil D. Griffis Adel, Georgia
We are in receipt of your letter in which you asked whether a disabled veteran is exempt from ad valorem taxes on his automobile.
We agree with you that there is no statutory provision allowing such an exemption and, in fact, it is our opinion that such an exemption is prohibited under the Constitution of the State of Georgia (Georgia Co?e Annotated, 2-5404) which states, in part, as follows:
"All laws exempting property from taxation, other than the property herein enumerated, shall be void."
Since no exemption from ad valorem taxation on the automobile of a disabled veteran is enumerated in said section, it follows that such automobile is subject to existing ad valorem taxes.

TAXATION-Ad Valorem Taxes (Unofficial)

Provision in charter of City of Commerce which would exempt corporations from taxation on realty is unconstitutional.

Dr. J. Albert Minish, Mayor City of Commerce

October 5, 1962

This is in reply to your letter concerning the validity of Section 85 of the City Charter of Commerce.

Charter Section 85 provides :

"Be it enacted by the authority aforesaid, and it is hereby enacted by the same, That all other corporations within the City of Commerce not hereinbefore mentioned shall be subject to taxation by said municipality and shall be taxed on their entire capital stock and the realty belonging to said corpora-
tions shall not be assessed for taxation."

488
Article VII, Section I, Paragraph IV of the Constitution of the State of Georgia 1945 sets forth the exemptions from ad valorem taxation in this State. This paragraph does not provide any exemption as is contained in Section 85 of the City Charter and, in fact, provides in the last paragraph, "All laws exempting property from taxation, other than the property herein enumerated, shall be void."
It is my opinion therefore that the provisions of Section 85 of the City Charter are unconstitutional.
TAXATION-Ad Valorem Taxes (Unofficial)
Lands, whether improved or unimproved (except wild lands), must be returned for taxation in the county in which located.
October 22, 1962
Mr. F. D. McKenney Tax Receiver, Upson County
This is in reply to your oral request for an opinion as to the tax status of lands upon which improvements have been placed. I understand that the particular lands with which you are concerned are located in more than one county, and that a part of this land is located in Upson County and that there have been placed several buildings and other improvements on the land located in this county.
Georgia Code Section 92-6206 provides :
"All lands in this State subject to taxation, whether improved or unimproved, shall be returned by the person owning the same, or by his agent or attorney, to the tax receiver of the county where the land lies. The receiver shall require all persons making returns of lands in his county, to return the same by district, number, and section, if the lands have such designation, and when lands have no such designation, then by such description as will enable the receiver to identify them, and receivers shall not receive any returns of land which do not so designate them. The State Revenue Commissioner shall not allow any receiver who receives returns in any other manner compensation or percentage for his services."
The only provision which I have been able to find in which returns may be returned in a county other than the county in which the land lies is located in Code Section 92-6211, pertaining to the returning of wild lands. Of course, any land which contains improvements and buildings would not be classed as wild lands and must, therefore, be returned in the county where the land lies.

489
TAXATION-Ad Valorem Taxes (Unofficial)
Mineral rights must be returned and ad valorem taxes paid thereon.
November 2, 1962 Mr. J. G. Kendell Tax Receiver Towns County
This is in reply to your letter in which you asked to be advised whether or not persons owning mineral interests are required to pay ad valorem taxes on such holdings.
Georgia Code Section 92-104 provides:
"All persons owning any mineral or timber interests, or any other interest in or claim to land less than the fee shall return the same for taxation and pay taxes on the same as on other property; and any person failing to comply with the requirements of this section shall be proceeded against as a defaulting taxpayer."

TAXATION-Ad Valorem Taxes

Real property owned by an individual and leased to a bank is subject to taxation in the same manner as other real property.

Mr. C. G. Campbell, Director Property Tax Division Department of Revenue

November 5, 1962

This is in reply to your letter requesting an official opinion as to the taxability of real property owned by an individual and leased to a bank for a period of twenty-five years.

All real property, whether owned by individuals or corporations, resident or non-resident, is liable to taxation unless specifically ex-
empted therefrom by law. Georgia Code Section 92-101. Interests in land less than the fee are also taxable on the same basis as any other Property. Georgia Code Section 92-104.

. A question concerning the taxation of bank properties is discussed In the case of Goodwin v. Citizens and Southern National Bank, 209 Ga. 908, where the Court held that since a national bank is an instrumentality of the Federal Government, the states are without power to tax banks in the absence of consent of Congress. Owensboro National Bank v. Owensboro, 173 U. S. 664. Congressional intention With respect to national banks is contained in United States Code, Section 12-548 (3), which provides:
"Nothing herein shall be construed to exempt the real property of associations from taxation in any State or in any subdivision thereof, to the same extent, according to its value, as other real property is taxed."

490

Georgia Code Section 92-2406.1 provides generally that State banks shall be taxed to the same extent and with the same immuni-
ties and exemptions as national banks. The provisions of Georgia Code Section 92-2406 concerning the taxation of the capital of banks and the shares of banks specifically provide that nothing in that sec-
tion shall be construed to relieve such banks from the tax on real estate held or owned by them, but that they shall return said real estate at its true value in the county where located.

Exemptions from ad valorem taxation, other than the ones provided by Federal law for the benefit of banks which we have just discussed, are contained in the Georgia Constitution and codified as Code Section 2-5404, and that constitutional provision states in the last paragraph:

"All laws exempting property from taxation, other than the property herein enumerated, shall be void."

I have examined the provisions of the Constitution pertaining to

these exemptions and I find none that would exempt real estate

owned by a bank, state or national, or owned by an individual who

leases such property to a bank. It is my opinion, therefore, that the

property is subject to ad valorem taxation the same as any other

property in the county.



TAXATION-Ad Valorem Taxes (Unofficial)
Resident of Georgia, though out of state on military duty, nevertheless required to pay ad valorem taxes but is protected against multiple taxation in other state.
November 21, 1962
S/Sgt. Clinton T. Easterling Huntsville, Alabama
This is in reply to your letter of November 12, 1962, concerning property taxation in Georgia. I understand that you are a resident of the State of Georgia, but are temporarily absent from the State by reason of military duties, being stationed in Alabama.
The laws of this State provide that residents shall pay ad valorem tax on all the property they own whether the property is located in this State or some other State.
The Soldiers' and Sailors' Civil Relief Act provides that so long as you pay taxes to Georgia you will not be required to pay the taxes anywhere else.
If you have any further questions concerning this, I am sure these views will be confirmed by your legal officer.

491
TAXATION-Ad Valorem Taxes (Unofficial)
Motor vehicles of motor carriers domiciled in State, when not returned for ad valorem taxes, should be placed on tax digest by Tax Commissioner of County in which domiciled.
December 6, 1962 Mrs. John R. Dinkins Tax Commissioner, Burke County
The Director of the Property Tax Division of the State Revenue Department asked me today to write you concerning the ad valorem taxation of motor vehicles used in interstate commerce. It is my understanding that there are located in Burke County several motor carriers, residents of or domiciled in Georgia, who are engaged in an interstate business and who purchase Georgia motor vehicle license plates but who have failed to return their motor equipment for taxes.
Georgia Code Section 92-102 provides:
"For the purposes of taxation, 'personal property' shall be construed to include goods, chattels, moneys, credits and effects, whatsoever they may be; ships, boats, and vessels, whether at home or abroad, and capital invested therein; bonds and other securities of corporations of this or of other States; stock of corporations of other States; bonds, notes or other obligations of other States, and of the counties, municipalities or other subdivisions thereof; money due on open account or evidenced by notes, contracts, bonds, or other obligations, secured or unsecured." (Emphasis added).
Georgia Code Section 92-105 provides:
"Lands or other property belonging to citizens of the United States, not residents of this State, shall not be taxed higher than the property of residents, but such nonresidents, whether their property in this State is real or personal, shall pay taxes on the same herein."
The County Tax Commissioner should, under these circumstances, place the vehicles on the tax digest.
I am returning to you the correspondence which you forwarded to Mr. Campbell from the Tennessee Public Service Commission.

TAXATION-Ad Valorem Taxes (Unofficial)

Tangible personal property is in the same class as real property
and City cannot lawfully assess real estate for taxation and fail to assess tangible personal property.

Mr. J. A. Gillis City Marshal
City of Waycross

December 28, 1962

This is in reply to your letter concerning the assessment of tangible personal property. I understand that the expenses involved in

492
making assessments on household goods are, in most cases, greater than the revenues produced thereby. However, the Supreme Court in the case of Coldard v. Ridley, which was decided on November 19, 1962, held that real property and tangible personal property are of the same class, and the Constitutional rule of uniformity of taxation requires that both be taxed alike.
It is my opinion that you cannot lawfully assess real estate for taxation and fail to assess tangible personal property for taxation.
TAXATION-Aviation Gasoline
Refunds may be made to distributor where satisfactory proof submitted by distributor that aviation gasoline for which refund is claimed was sold to ultimate consumer.
April 16, 1962
Mr. Dixon Oxford Revenue Commissioner
I have given careful consideration to your letter in which you request my opinion as to whether the Revenue Department may make refunds on aviation gasoline sold to the ultimate consumer by the major oil companies who, of course, also act as distributors of motor fuels. I have carefully examined Ga. Code Ann., Section 92-1403 (K) which makes provision for the refund of 51;2 cents per gallon on aviation gasoline, together with all other provisions of the Motor-Fuel Tax Law. After such examination, I have reached the conclusion that there are two conflicting intents and purposes which must be reconciled. The first of these is a clear intent that the person selling to an ultimate user of aviation gasoline shall be entitled to a refund of 51;2 cents per gallon. Running throughout the Act is another clear intent to separate the various levels in the chain of distribution for purposes of enforcement. It is my belief that these two intents and purposes of the Act can be reconciled administratively.
In view of the clear intent of the Legislature to allow a refund on the sale of aviation gasoline, it is my opinion that the courts would allow such refund to the firm making sales to the ultimate consumer. However, consistent with the intent to provide the Commissioner with adequate enforcement tools, as manifested by the overall structure of the Act, it is my opinion that as a condition precedent to making refunds to distributors who act in the capacity of dealer, you are entitled to require such substantiating proof that such distributor actually made the sale to the ultimate consumer, and that no dealer further down the chain of distribution has applied or will apply for a refund upon the same fuel, as you may deem necessary. Consistent with this position, it is my further opinion that you may decline to make such refund where the accounting records of the distributor are not maintained in such manner as will

493
readily permit verification of claims for refund by your field auditors. This conclusion also follows from the extensive powers granted you to promulgate rules and regulations governing refunds on aviation fuel under the provisions of Section 92-1403 (K).
In summary, it is my opinion that you may make refunds to distributors who act as a dealer in aviation gasoline where such distributors submits such proof as you may require that he is entitled to the refund.

TAXATION-County Board of Tax Assessors (Unofficial)
County Board of Tax Assessors must complete revision and assessment of taxpayers' returns by June 1 of each year.
April 30, 1962
Mr. W. Byron Turk Tax Commissioner-Hall County
This is in reply to your letter concerning the duties of the Board of Tax Assessors and the date on which they shall complete their revisions and assessments of returns. Georgia Code 92-6917 provides:
"The county boards of tax assessors shall complete their revision and assessment of the returns of taxpayers in their respective counties by June 1 of each year. The tax receiver shall then immediately forward one copy of the completed digest to the State Revenue Commissioner for examination and approval."
This Code Section has been construed in the case of State of Georgia v. Johnson, 214 Ga. 607 in which Justice Head states that the Code Section as amended by an Act approved March 8, 1945, provides that the County Board of Tax Assessors shall complete its revision and assessment of the return to the taxpayers by June 1 of each year.

TAXATION-Corporation Occupation Taxes (Unofficial)

Though State banks and trust companies are exempt from cor-. poration occupation tax, holding company holding and owning real property used by bank and trust company is not exempt.

Mr. Julius B. Dodd, Jr. Rome, Georgia

November 5, 1962

This is in reply to your letter which was referred to the Department of Revenue, who in turn referred it to the Attorney General.

494
You asked whether or not a Georgia corporation which functions wholly as a real estate holding company holding and owning real property used by the Rome Bank and Trust Company will be exempt from annual corporation occupation tax provided for in Georgia Code Section 92-2401. Georgia Code Section 92-2402 (k) provides an exemption from this tax in favor of State banks and trust companies. However, no exemption is provided for real estate holding companies, irrespective of the type properties they may own or invest in.
The corporation you have reference to was organized for pecuniary gain. Atlanta Labor Temple Assn. Inc. v. T. V. Williams, 98 Ga. App. 791.
TAXATION-Exemption (Unofficial)
Disabled veteran's $10,000 homestead exemption limited to real property and does not include automobile.
January 31, 1962
Mr. H. G. Callahan Tax Receiver, Clark County
This is in reply to your request for an opinion concerning the tax exemption on an automobile owned by a disabled veteran.
I have examined the law concerning exemptions for veterans, and the exemptions are expressed in the terms of a $10,000 homestead exemption as provided for by Georgia Laws 1957, page 72. The provisions of this law are:
" '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 all 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 under United States command or otherwise, and who is disabled, as a result of such service in the armed forces, by parapelgia 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)
Georgia Code Section 92-232 provides that the term "homestead" means real property owned by a taxpayer. It is my opinion that this exemption is limited to the homestead and does not exempt personal property from taxation.

495
TAXATION-Exemptions (Unofficial)
Discussion of nature and purposes of charitable organizations in order to qualify them for tax exemptions.
February 2, 1962
Mrs. Mildred Nix Tax Commissioner White County
This is in reply to your letter concerning the tax status of the following properties :
1. A non-denominational camp for boys and girls for attendance at which no charge is made.
2. A camp for boys and girls owned by a Jewish corporation for attendance at which a charge is made.
3. A Masonic Lodge, an American Legion Hall, and a Woodmen Hall.
Let me state at the outset, since I do not have full and complete information regarding the use of these properties, the disposition of any income received from their use, and the character of their owners, that the opinions expressed herein are, of necessity, based upon assumptions which I will have to make in the course of my remarks.
First of all, I assume that a tax exempt status is being claimed for each of these properties upon the basis that it is an "institution of purely public charity." For this reason, my remarks will be limited in scope.
The Constitution of 1945 (Art. VII, Sec. I, Par. IV) provides, in part, as follows :
"The General Assembly may, by law, exempt from taxation ... all institutions of purely public charity ... provided the property so exempted be not used for the purpose of private or corporate profit and income, distributable to shareholders in corporations .owning such property or to other owners of such property, and any income from such property is used exclusively for religious, educational and charitable purposes, or for either one or more of such purposes and for the purpose of maintaining and operating such institutions ; this exemption shall not apply to real estate or buildings other than those used for the operation of such institution and which is rented, leased or otherwise used for the primary purpose of securing an income thereon; and also provided that such donations of property shall not be predicated upon an agreement, contract, or otherwise that the donor or donors shall receive or retain any part of the net or gross income of the property."
In 1946, the General Assembly, using language identical to the above constitutional grant, exhaustively exercised this power to

496
exempt. Georgia Code Ann., 92-201; Elder v. Henrietta Eggleston Hospital, 205 Ga. 489. Since the phrase "all institutions of purely public charity" appearing in the Constitution of 1945 and its implementing legislation has been carried over from the Constitution of 1877 (Art. VII, Sec. II, Par. II) and its enabling acts, some of the earlier cases construing and applying this phrase should be helpful.
The first case to consider this phrase was The Trustees of Richmond Academy v. Bohler, 80 Ga. 159. In that case, the Court made a distinction between the use to which property is put and its owner's character, holding that "the exemption from taxation of institutions of public charity, provided by the constitution, is of such institutions as property not as persons,-the physical things, not the ideal institutions." However, in determining the nature of the use to which property is put, the character of its owner, while not controlling, is frequently an appropriate subject of consideration. Massenburg v. The Grand Lodge F & A M of the State of Georgia, 81 Ga. 212; Tharpe v. Central Georgia Council of Boy Scouts of America, 185 Ga. 810.
In the Tharpe case, the Court, in holding that property used as a Boy Scout camp was exempt as an "institution of purely public charity", stated the test as follows (p. 813) :
"The test is whether the property itself is 'dedicated to charity and used exclusively' as an institution of purely public charity, not whether the plaintiff is an organization of purely public charity."
Later, in construing the word "charity", the Court had this to say:
"A familiar meaning of the word 'charity' is almsgiving, but as used in the law it may include 'substantially any scheme or effort to better the condition of society or any considerable part of it.' Wilson v. Independence First National Bank, 164 Iowa 402, 412 (145 N. W. 948, Ann. Cas. 1916D, 481). 'Charity', as used in tax exemption statutes, is not restricted to the relief of the sick or indigent, but extends to other forms of philanthropy or public beneficence, such as practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for the general improvement, and happiness of mankind. 61 C. J. 455, 505.''
In order for property to qualify for the exemption, the use to which it is put must be public, as well as charitable. In considering this aspect of the problem, the Supreme Court in Mu Beta Chapter House Corp. v. Davison, 192 Ga. 124, 128, 192 Ga. 124, 128, adopted the following language from People v. Alpha Pi, 326 Ill. 5731 158 N. E. 213, 54 A. L. R. 1377:
"To constitute a 'public charity', benefit must not be conferred on certain and defined individuals, but must be conferred on indefinite persons composing public, or some part of the public; but indefinite class may be of one sex, or inhabi-

497
tants of particular city, town or county, or members of particular religious or secular organizations."
Therefore, on the basis of the Tharpe decision, I am of the opinion that a camp operated for the physical, mental, moral and spiritual growth and development of young boys and girls is dedicated to a charitable use and, on the basis of the Mu Beta Chapter House decision, that use is public if the camp is open to boys and girls generally or to all those of a particular religious faith.
The fact that a charge is made would not, in my opinion, destroy the charitable nature of the camp provided, in accordance with the general proviso contained in the above provision of the Constitution and the Act implementing it, the following conditions are met:
1. The camp property must not be used for the primary purpose of producing income.
2. Any income received from its use must be used exclusively for camp operation and maintenance.
3. Such income must not be distributed to shareholders in the corporation owning camp, if owned by a corporation, or to other owners if not owned by a corporation.
4. If the property was donated, the donation must not have been based upon an agreement providing that the donor shall receive any part of the net or gross income from its use.
See Elder v. Henrietta Eggleston Hospital, supra.
In Massenburg v. The Grand Lodge F. & A. M. of the State of Georgia, supra, the Supreme Court had under consideration the tax status of a building owned by a Masonic order, part of which was rented out and part of which was used by the order as its "temple" or "lodge". After expressing doubt about Masonic orders generally being "institutions of purely public charity", in the ideal sense, the Court, because of the legislative charter of the particular order, considered its character to be a closed question (p. 217) :
"There is no occasion now to declare for one side or the other of this nice question, but we may and do concede the purely public character of the charity which the Grand Lodge of Georgia administers, since its legislative charter recognizes it as an organ of charity and universal benevolence."
The Court then went on to hold that that portion of the building used by the order as its "lodge" was exempt. This case, thus, seems to be authority for the proposition that buildings owned and used by "institutions of purely public charity", in the ideal sense, exclusively as places in which to hold their meetings, house their personal Property and conduct their charitable activities, are "institutions of Purely public charity" in a physical sense. This would only be true, of course, as long as the buildings were used exclusively for such Purposes. This case illustrates the fact that the owner's character,

498
while not controlling, does play an important part in determining the nature of the use to which property is put.
Now, assuming that the particular Masonic order involved is a local unit of the Grand Lodge of Georgia, that the charter of the Grand Lodge is the same, or substantially the same, as it was in 1888, the year the Massenburg decision was rendered, and that the building is being used exclusively as a "lodge", I am of the opinion that it is exempt.
While the American Legion is a very patriotic organization whose various posts throughout the country frequently use their club house in connection with charitable projects which they undertake for the benefit of the public, or some substantial segment thereof, generally speaking, these posts are organized primarily for the benefit of their members and the club houses used as places in which the members can meet on a social basis. Thus, the uses to which American Legion club houses are normally put are neither exclusively charitable nor public in nature. Assuming, then, that the American Legion Hall to which you have reference is used in the manner just described, I am of the opinion that it is not exempt.
Since I assume that the Woodmen Hall to which you make reference is a building owned by a local lodge of the Woodmen of the World, a fraternal benefit society, I quote Georgia Code Ann., 56-1901:
"Any incorporated society, order or supreme lodge, without capital stock, including one exempted under the provisions of section 56-1943 (b) whether incorporated or not, conducted solely for the benefit of its members and their beneficiaries and not for profit, operated on a lodge system with ritualistic form of work, having a representative form of government, and which makes provision for the payment of benefits in accordance with this Chapter, is hereby declared to be a fraternal benefit society.
"When used in this Chapter the word 'society', unless otherwise indicated, shall mean fraternal benefit society."
Thus, by definition, such societies are conducted "solely for the benefit of its members and their beneficiaries." Furthermore, the General Assembly apparently did not feel, in enacting Georgia Code Ann., 56-1941, that the real estate of these societies, as normally used, should constitute "institutions of purely public charity", in a physical sense, for, while exempting their funds from taxation, it expressly excluded their real estate and office equipment. Section 56-1941 provides:
"Every society organized or licensed under this Chapter is hereby declared to be a charitable and benevolent institution, and all of its funds shall be exempt from all and every State, county, district, municipal and school tax other than taxes on real estate and office equipment."
Therefore, assuming that the Woodmen Hall is used to carry on the normal activities of a fraternal benefit society, I am of the opinion that it is not exempt.

499
TAXATION-Exemptions (Unofficial)
Law libraries not included in personalty subject to exemption from ad valorem taxes.
February 28, 1962
Mr. Reuben Scruggs Tax Commissioner, Berrien County
This is in reply to your letter concerning an interpretation of the provisions of the laws of this State exempting personalty from taxation.
Personalty is exempted from taxation under the provisions of the Constitution, Article VII, Section I, Paragraph IV. The relevant provisions are as follows:
"All personal clothing, household and kitchen furniture, personal property used and included within the home, domestic animals and tools, and implements of trade of manual laborers, but not including motor vehicles, are exempted from all State, county, municipal and school district ad valorem taxes, in an amount not to exceed $300.00 in actual value."
The constitutional provisions were carried into effect by Georgia Laws 1946, pages 12 and 13, the provisions of which were codified as Code Section 92-239. You will note from examining these provisions that the exemption of implements of trade is restricted to those implements owned by manual laborers.
Law libraries would not, in my opinion, be exempt under the provisions of the Constitution or Code Section.
TAXATION-Exemptions (Unofficial)
Camp grounds owned and operated by Conference of Seventh-day Adventists are exempt from taxation as institution of purely public charity.
April 19, 1962
Mr. Ted N. Graves Atlanta 2, Georgia
This is in reply to your letter concerning tax exemptions which may apply to the camp grounds at Mountain City, Georgia which are owned and operated by the Georgia-Cumberland Conference of Seventh-day Adventists.
The Constitution of the State of Georgia provides in Article 7, Section 1, Paragraph 4, that the General Assembly may by law exempt from taxation all institutions of purely public charity, provided the property so exempted is not used for private or corporate Profit and income. The General Assembly enacted Code Section 92-201 to provide such an exemption.

500

The Supreme Court of this state has constituted tax exempt status of Camp Grounds in the case of Tharpe v. Central Georgia Council of Boy Scouts of America, 185 Ga. 810 and held that such Camp was exempt from ad valorem taxation as an institution of purely public charity. In construing the word "charity", the Court had this to say:

"A familiar meaning of the word 'charity' is almsgiving, but as used in the law it may include 'substantially any scheme
or effort to better the condition of society or any considerable part of it.' Wilson v. Independence First National Bank, 164 Iowa 402, 412 (145 N.W. 948, Ann. Cas. 1916D, is not re-
stricted to the relief of the sick or indigent, but extends to other forms of philanthropy or public beneficiaries, such as practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for
the general improvement, and happiness of mankind. 61 C. J.
455, 505.''

I am of the opinion that the camp ground at Mountain City is

exempt from ad valorem property taxes. The taxable status of this

property would change radically should the facilities be dedicated

to other purposes. Mu Beta Chapter House Corp. v. Davison, 192 Ga.

124.

.

TAXATION-Exemptions (Unofficial)
Personal property ad valorem tax exemption differs from homestead exemption in that former provides for exemption of property up to $300 in value from all taxes whereby homestead exemption is exempt from all taxes except taxes for school purposes and taxes to pay interest on and retire bonded indebtedness.
May 16, 1962
Mr. B. E. Calhoun, Chairman Ware County Board of Tax Assessors
This is in reply to your letter concerning the taxation ad valorem of the $300 personal property exemption provided for in Georgia Code Annotated 92-239, for the purpose of retirement of bonded indebtedness. I understand that you have in the past assessed exempted personal property on the same basis that exempted real property is assessed.
The provisions of Code Section 92-239 provide that personal property (not including motor vehicles) "are exempt from all state, county, municipal and school district ad valorem tax in an amount not to exceed $300 in actual value." The provisions of Code Section 92-219 which provide for homestead exemption on real estate are quite different from the provisions for personalty in that they provide that the property exempted is exempt from all ad valorem taxation ''ex-

501
cept tax levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness."
I believe that if you will discuss these Code Sections with your County Attorney you will be able to resolve this matter without any further difficulty.
TAXATION-Exemptions (Unofficial)
Veterans exempt from payment of peddler's and business license taxes but not from ad valorem taxes.
May 24, 1962 Miss Ida D. Davison Tax Collector, Clarke County
Mr. C. G. Campbell, of the Property Tax Unit of the State, asked me to reply to your letter concerning the veteran's exemption and its application to the 1961 fi. fa. against the veteran's personal property.
Assuming the taxpayer is referring to a "Certificate of Exemption" issued under the provisions of Georgia Laws 1953 NovemberDecember Session p. 431 (Georgia Code Annotated 84-2011 et seq.), the certificate exempts a veteran from the payment of peddler's and business license tax only. It does not exempt the veteran from the payment of his ad valorem taxes. See in this connection Campbell v. Williams, 215 Ga. 717.
TAXATION-Exemptions (Unofficial)
American Legion Post, Veterans of Foreign Wars Post and Moose Lodge are not exempt from payment of ad valorem taxes since they are not purely charitable organizations.
September 4, 1962 Honorable Aubrey W. Gilbert Carrollton, Georgia
This is in answer to your letter in which you requested my opinion concerning the taxation of real property belonging to a local American Legion Post, the V.F.W. Post and the Moose Lodge.
You have advised that the American Legion Post rents a part of its premises out to a local Army Reserve Unit and thereby receives income from the use of the premises. The V.F.W. Post and the Moose Lodge operate refreshment bars on their premises and thereby receive income from the use of same. Most of the income of the three organizations is spent on charitable projects.

502
Under the above stated facts:
(1) Is the real property involved in these cases subject to State and County tax?
(2) If the premises are subject to such tax, would a portion of the premises that is not involved in the money-making business of the organizations be subject to tax?
(3) If all of the premises are not used to produce income, is that portion that is not used exempt from taxation providing the property meets all other tests pertaining to charitable institutions?
The answer to questions 1 and 2 is in the affirmative.
The answer to question 3 is in the negative.
The Attorney General rendered an official opinion to Hon. W. Harvey Atkinson, Director of the Property and License Tax Unit of the Department of Revenue, on the question of taxation of the property of American Legion Clubs. It was held in this opinion that American Legion Clubs are not institutions of purely public charity as contemplated by our statutes, and therefore are not exempt from taxation. This opinion is found in the Opinions of the Attorney General, 1950-51, pp. 154, 155.
Under Code Section 92-201, all institutions of purely public charity are exempt from taxation. In the case of Thorpe, Tax Collector et al. v. Central Georgia Council of Boy Scouts of America, 185 Ga. 810, the Supreme Court held that the test is whether the property itself is dedicated to charity and used exclusively as an institution of purely public charity. The Supreme Court in the case of Mu Beta Chapter Chi Omega House Corporation v. Davison, Tax Collector, et al, 192 Ga. 124 (1) held:
"Property of a corporation although its petition for Charter describes it as an institution of purely public charity, is not exempt from taxation under the Code, Section 92-201, the property involved being a dwelling purchased for the purpose of being actually occupied as a place of residence by members of the local chapter of a Greek letter college fraternity, its use and occupancy limited to those who are active members of the fraternity who became members by invitation, and each member of the local chapter who resides at said chapter house paying to the local chapter thirty dollars per month for room and board, which charge is identical with the charges made by the educational institution at which said chapter is located for the use of its dormitories where meals are furnished as well as rooms."
It will be observed from the authorities herein cited that the test as to the taxation of property belonging to private clubs depends upon the use to which this property is put. If the property itself is dedicated to and used for purely public charity, it is not taxable. If, on the other hand, the property is used for purposes other than purely public charity, it is taxable.

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TAXATION-Exemptions
Medical College of Georgia Foundation, Inc., being a corporation established for educational purposes with no part of its proceeds or property capable of inuring to benefit of private persons, is exempt from ad valorem taxes.
October 10, 1962
Dr. Warren Hites Assistant to the President Medical College of Georgia
This is in reply to your request for an opinion concerning taxation of the Medical College of Georgia Foundation, Inc. It is my understanding that you are concerned with ad valorem taxation of intangible personal property owned by the Foundation and their liability for income tax and sales tax.
I have reviewed the Charter of this Corporation and find that it was established for educational purposes and that no part of the proceeds or property of the Corporation can inure to the benefit of any private person or stockholder.
Georgia Code Section 92-130 provides that intangible personal property owned by educational institutions, no part of the proceeds of which can inure to the benefit of any private person, is exempt from intangible ad valorem taxation by this State.
Georgia Code Section 92-3105 provides that a corporation established for educational purposes shall be exempt from the payment of Georgia income taxes where no part of the profits will inure to the benefit of any stockholder or individual. Georgia Code Section 92-3109 (g) provides that gifts to such an organization may be deducted from the gross income of the donor subject to the limitation that, in the case of an individual donor, the amount shall not be in excess of 15% of the donor's gross income less business expenses. And in the case of corporations, to an amount not in excess of 5% of the corporation's net taxable income.
The Medical College of Georgia Foundation, Inc. is not exempt from the provisions of Georgia Code Section 92-3205 concerning information returns and would be required to comply with the provisions of this Code Section where applicable.
The Medical College of Georgia Foundation, Inc. is not exempt from the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act and will be required to pay the tax on all purchases made which are taxable under that Act.

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TAXATION-Exemptions (Unofficial)
Homestead exemption must be applied prior to collection of taxes for county school as well as other taxing purposes.
November 2, 1962
Mr. Charles A. Waits, Jr. County School Superintendent Henry County Board of Education
This is in reply to your letter in which you asked whether or not it would be possible for the county to collect the school tax prior to allowing a homestead exemption.
Georgia Code Section 92-219 provides:
"The homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such, but not to exceed $2,000 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness: Provided, however, should the owner of a dwelling house on a farm, who is already entitled to homestead exemption, participate in the program of rural housing and obtain a new house under contract with the local housing authority, he shall be entitled to receive the same homestead exemption as allowed before making such contract. The General Assembly may from time to time lower said exemption to not less than $1,250. The value of all property in excess of the foregoing exemptions shall remain subject to taxation. Said exemptions shall be returned and claimed in such manner as prescribed by the General Assembly. The exemption herein provided for shall not apply to taxes levied by municipalities." (Emphasis added).
It is my opinion that this Code Section clearly indicates that the homestead exemption must be applied prior to collection of taxes for county school purposes.
TAXATION-Exemptions (Unofficial)
Exemption of property from ad valorem taxation for industrial development purposes is prohibited by Constitution and can only be allowed with respect to specific localities by Constitutional amendment.
November 2, 1962 Dr. Marion A. Buck Syracuse University Syracuse 10, New York
This is in reply to your letter which was referred to me by the Secretary of State.

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You have asked for my opmwn concerning the possibility of municipalities granting tax concessions to industry and the issuance of bonds for industrial construction.
Generally the only property which may be exempt from ad valorem taxation in this State is that property enumerated in Paragraph IV, Section I, Art. VII of the Constitution of the State of Georgia (Code Section 2-5404). An industrial property' such as you are concerned with is not listed therein. The last Paragraph of this Constitutional provision states that "all laws exempting property from taxation, other than the property herein enumerated, shall be void."
Section V, Art. VII of the Constitution (Code Section 2-5801) provides:
"The General Assembly shall not authorize any county, municipal corporation or political division of this State, through taxation, contribution or oth-erwise, 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."
While these general provisions seem to clearly indicate a total lack of authority on the part of political subdivisions of this State to exempt property or raise money for new industry or industrial development, there is a practice in this State of proposing local Constitutional amendments which have the effect of amending our State Constitution for special local purposes. Many cities and counties of this State have special Constitutional amendments authorizing the functions you inquire about.
TAXATION-Exemptions (Unofficial)
Holder of certificate of ownership issued by cooperative apartment organization is not exempt from intangible taxation on value of certificate.
November 5, 1962
Mr. L. P. Dowdell Columbus, Georgia
This is in reply to your letter addressed to Mr. C. G. Campbell, Director of the Property Tax Division of the Department of Revenue.
You asked if the certificates of ownership issued by cooperative apartment organizations would have to be included on an individual owner's intangible tax return.

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Georgia Code Section 92-123 provides that non-profit cooperative associations do not have to return their intangible property for taxation. This exemption, assuming that it is constitutional, would be of no benefit to an individual taxpayer.
I have examined the provisions of the State Constitution pertaining to exemption from taxation and find none which would benefit an individual owning intangible property.
TAXATION-Exemptions (Unofficial)
A domestic animal used within the home or in a capacity related to the home or family can be included within property subject to $300 personalty exemption from taxation.
November 8, 1962
Mr. J. Miller Pickell Tax Collector, Walker County
Thank you for your inquiry concerning the interpretation of the law pertaining to exemption from taxation of certain personalty.
On February 13, 1950 this office had occasion to render an unofficial opinion covering Code Section 92-239, which states:
"All personal clothing, household and kitchen furniture, personal property used and included within the home, domestic animals and tools, and implements of trade of manual laborers, but not including motor vehicles, are exempted from all State, county, municipal and school district ad valorem taxes, in an amount not to exceed $300 in actual value."
In that opinion, it was stated that the section applied only to property used by the owner within the home.
It follows that the determining factor will be whether or not the particular domestic animal or animals are used "within the home". Where cows, mules and other domestic animals are used within the home they may be included in the personal property valuation from which the $300 exemption is deducted. On the other hand, where such animals are not used within the home they would not be so included.
I would define the phrase "within the home" to mean that the animals must be used for the direct support of the members of the family and not as income producing property. I believe this is a proper conclusion because a tax exemption statute is to be strictly construed against the taxpayer.
Of course, we are here particularly concerned with the phrase "domestic animals and tools". In the traditional sense surely no o:z:e would doubt that cattle are considered domestic animals, that is Ill the sense that they are tamed and used by man generally but the use

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of the word domestic and its meaning in this particular Code Section is gathered from the overall intent of the Code Section and it is our opinion that when this Code Section refers to "domestic animals" the word domestic should be defined as belonging to the home or household or concerning or relating to the home or family or as pertaining to one's house or home or one's household or family. Lyoles Realty Corp. v. Cannella, 73 N.Y. S. 2d 10, 13. This construction of the phrase domestic animals is in harmony with the opinion of the Attorney General given on February 13, 1950.
It follows that any animal used within the home or in a capacity related to the home or family could be included within the value from which the exemption is taken but, on the other hand, any animals which do not meet this test would not be so included.
TAXATION-Exemptions (Unofficial)
Motor vehicles furnished by religious groups to ministers are not exempt from taxation.
November 21, 1962
Mr. E. W. Hill Sylvania, Georgia
This is in reply to your letter of November 20, 1962, concerning property exemptions for the benefit of religious groups.
You state in your letter that your review of the law, particularly Georgia Code Section 92-201, indicates that there is no exemption from ad valorem taxation for motor vehicles furnished by religious groups to their ministers.
I am in agreement with your conclusion, but would like to point out further that Article VII, Section I, Paragraph IV, of the Constitution of the State of Georgia provides for the exemptions authorized, and states in the last paragraph that all laws exempting property from taxation, other than the property therein enumerated, are void.
TAXATION-Federal Excise Tax on Gasoline
Discussion of circumstances in which gasoline for school buses can be purchased without payment of Federal gasoline taxes.
April 3, 1962
Honorable Claude Purcell State Superintendent of Schools
In answer to the question posed by Dr. Prince, Superintendent of Carroll County Schools, I do not have sufficient information to determine whether the operators of Carroll County school buses can pur-

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chase gasoline exempt from Federal excise tax. However, I know of only two ways in which gasoline for school buses can be purchased without the payment of Federal gasoline taxes. The Chief Counsel of the Internal Revenue Service has ruled that where the purchases are made by a School District and furnished free of charge to school buses operated by the School District for use in transporting pupils, such purchases are exempt. Rev. Rul. 59-319, 1959-2, C. B. 311.
The Chief Counsel has also ruled that the sale of gasoline to employees and officers of a State, or political subdivision thereof, who receive reimbursement from such State or political subdivision for the actual cost of the gasoline purchased and used in the performance of their official duties, is exempt from tax. This ruling specifically states, however, that where the reimbursement to such employees and officers is made on per diem or per mile basis the exemption does not apply. Rev. Rul. 138, 1953-2, C. B. 432. The implication of these rulings would extend to any situation where the payments from the county to the lessees or drivers do not include separate charges for gasoline at actual cost.
In view of the foregoing, I seriously doubt that Dr. Prince should sign an exemption certificate based on the facts presently available to me. If, after reading this letter, Dr. Prince feels that the facts warrant an exemption, I will be happy to go into the matter further.
TAXATION-Federal Tax Liens
Payments due from State Department of Welfare to nursing home for services for old age assistance recipients are subject to Federal lien for unpaid tax assessments against nursing home.
July 20, 1962
Honorable Alan Kemper, Director State Department of Public Welfare
This will acknowledge your letter with an attached Notice of Levy of the U. S. Treasury Department, Internal Revenue Service, which Notice is dated June 29, 1962, but was not served upon you until July 11, 1962.
We understand from your letter that you have contracted under the Vendor Payment Medical Care program to make payments to the debtor, the Elsie Pruett Nursing Home, Zebulon, Georgia, and that your next payment to this nursing home is scheduled to be paid on or about August 7 for July services for old age assistance recipients who are living in the above nursing home.
The Notice of Levy served upon you covers Federal Unemployment Tax Act assessments for 1959 and 1960 against the Elsie Pruett Nursing Home for a total of $418.51. You are advised by this Notice that demand has been made upon the taxpayer and that the amount is owning and unpaid and that a lien is established, as provided for

509
in Section 6321, Internal Revenue Code of 1954, which reads as follows:
"United States Code Annotated, Title 26 . . . 6321. Lien for taxes.-If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person. Aug. 16, 1954, 9:45 a.m., E.D.T., c736, 68A Stat. 779."
The levy and distraint for the purpose of collecting the lien outlined in Section 6321 is provided for in United States Code Annotated, Title 26, Section 6331, and in order that you may be fully informed we quote this Section to you, as follows:
" 6331. Levy and distraint
(a) Authority of Secretary or delegate.-If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States,. the District of Columbia, or any agency or instrumentality of the United States or the District. of Columbia, by serving a notice of levy on the employer (as defined in section 3401 (d)) of such officer, employee, or elected official. If the Secretary or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary or his delegate, and upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.
(b) Seizure and sale of property.-The term "levy" as used in this title includes the power of distraint and seizure by any means. In any case in which the Secretary or his delegate may levy upon property or rights to property, (whether real or personal, tangible, or intangible).
(c) Successive seizures.-Whenever any property or right to property upon which levy has been made by virtue of subsection (a) is not sufficient to satisfy the claim of the United States for which levy is made, the Secretary or his delegate may, thereafter, and as often as may be necessary proceed to levy in like manner upon any other property liable to levy of the person against whom such claim exists, until the amount due from him, together with all expenses, is fully paid."

510
Surrender of the property is subject to levy and levied upon as provided for in United States Code Annotated, Title 26, Section 6332, which Section is quoted, as follows:
" 6332. Surrender of property subject to levy
(a) Requirement.-Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to the attachment or execution under any judicial process.
(b) Penalty for violation.-Any person who fails or refuses to surrender as required by subsection (a) any property or rights to property, subject to levy, upon demand by the Secretary or his delegate, shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the taxes for the collection of which such levy has been made, together with costs and interest on such sum at the rate of 6 percent per annum from the date of such levy.
(c) Person defined.-The term "person," as used in subsection (a), includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to surrender the property or rights to property, or to discharge the obligation. Aug. 16, 1954, 9 :45 a.:rn,., E.D.T., c. 736, 68A Stat. 784."
You will note that this Section includes a definition of the term "person," and it has been determined that States are within the term "person," as used in the above Code Section 6332. Sims v. United States. W.Va., 1959, 79 S. Ct., 641, 359 U.S. 108; 3 L. Ed. 2nd 667.
Property exempt from the levy authorized heretofore is outlined in Title 26, United States Code Annotated, Section 6334, which includes a provision that "Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)."
We are not unmindful of the State law which provides that payments of public assistance are exempt from garnishment and other legal process; however, exemptions provided by State laws are ineffective against the statutory liens of the United States for Federal taxes. Knox v. Great West Life Assur. Co., C.A. Mich. 1954; 212 F. 2nd 784; U.S. v. Hoper; C.A. Ill. 1957; 242 F. 2nd 468.
You ask for our opinion with reference to recognition of the Notice of Levy and the provision in this Notice that demand is made upon you for the amount necessary to satisfy the liability of ~he debtor from property, rights to property, monies, credits, etc., with respect to which you are obligated to the debtor and all additions provided by law. We believe it will be appropriate in the interest of

511
routine procedure for you to inform the Elsie Pruett Nursing Home immediately of the above levy, and that in the absence of appropriate satisfaction of the tax described therein, that you will be obliged to withhold from the amounts which will accrue payable to them by you for July services a sufficient sum to satisfy the outstanding tax, which you would then be authorized to remit to the Internal Revenue Service.
TAXATION-Franchise Tax
Rights granted by Public Service Commission in issuing certificates of public convenience and necessity are special franchises and persons exercising such special franchises are required to make special return thereof for purposes of taxation.
November 26, 1962
Mr. C. G. Campbell, Director Property & License Tax Unit Department of Revenue
This is in reply to your letter in which you ask whether or not a person or corporation exercising rights granted by the Georgia Public Service Commission under a certificate of public convenience and necessity would be required to make a special return of such franchise under the provisions of Georgia Laws 1902, page 37 (Georgia Code Chapter 92-23).
The provisions of the Act of 1902, page 37 (Ga. Code 92-2301-12 et seq.), define a special franchise to include every right and privilege exercised in this State granted by the State or any subdivision thereof for the use of any public highway or street. The definition of special franchise also includes every special right granted for the exercise of any public service such as the common carrying of passengers or freight.
It is my opinion that the rights granted by the Georgia Public Service Commission, when it issues a certificate of public convenience and necessity, are a special franchise within the meaning of this law and all persons exercising such special franchise are required to make a special return thereof as of January 1. Any firm failing to make a return of such special franchise is liable to double taxes thereon.
The items required in a special franchise return, the method of valuing the franchise, and other details pertaining to the collection and the distribution of funds are covered in detail in the Act.

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TAXATION-Franchise and License Taxes
Cooperative marketing corporation, organized and operating under circumstances stated, is exempt from franchise and license taxes except for $10.00 annual license tax.
October 19, 1962
Mr. C. G. Campbell, Director Property Tax Unit Department of Revenue
We are in receipt of your letter in which you ask whether a corporation is subject to an annual license or occupation tax pursuant to Chapter 92-24 of the Georgia Code Annotated in the following circumstances :
"The corporation is a cooperative undertaking with its principal asset being a sales barn for use in the sale of livestock by its members and others upon payment of a fee to the corporation in the case of each sale, such fee being based upon the sales price of livestock sold. The corporation purports to be a nonprofit organization with the fees collected being used to defray operating expenses in connection with paying its employees, paying for utilities and services, and maintaining and improving its property. However, it is possible from time to time for the corporation to realize proceeds over and above those needed to defray its annual operating exepenses.
"The corporation was organized pursuant to the Cooperative Marketing Act of 1921, as amended (Chapter 65.2 of the Georgia Code Annotated)."
It is our opinion that a corporation organized and existing under the circumstances which you describe is specifically exempt from franchise and license taxes, including those imposed pursuant to Chapter 92-24 of the Georgia Code Annotated. This exemption is contained in Section 65-225 of the Georgia Code Annotated, which provides:
"Each association organized hereunder shall pay an annual license fee of $10, but shall be exempt from all franchise or license taxes."
It is our opinion that no license or occupation tax other than the $10.00 annual fee is payable by the corporation which you described. We do not here express an opinion with respect to the applicability of any other type of tax.

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TAXATION-Gasoline Taxes
Refunds of gasoline taxes are not due on sales to a specific segment of the public when the statute provides for refunds only on sales to the "general" public.
Ma:r;ch 29, 1962
Mr. John W. Bearden, Director Motor Fuel Tax Unit
This is in reply to your letter in which you requested my opinion as to whether a certain company is entitled to a retail dealer's permit under the language of Section 92-1407 (E) (1) (d) of the Georgia Code Annotated. It is my understanding that sales are made by the company in question only to Government employees who are card holders in the Government Employees Exchange, members of their families and their friends who accompany them when purchases are made. It is my understanding that there are in excess of 20,000 card holders in this Exchange in the Atlanta metropolitan area.
It is my opinion that the right to refund on the part of the company in question is governed by the last sentence of Section 92-1407 (E) (1) (d), which provides as follows:
"Nor shall any refund under this subsection be allowed to any person, firm or corporation except licensed retail dealers engaged in the business of selling motor fuel and/or kerosene to the general public."
While there is some authority to the effect that large segments of the public means the same thing as "public", the authorities which I have been able to locate which construe the term "general public" seem to lead to a different conclusion. These would indicate that the term "general public" refers to the entire public other than those specially cited and the term has also been used synonymously with "resident taxpayers". Green v. Fuller, 294 P. 1028, 1037; Investment Registry, Ltd. v. Chicago M. Electric R. Co., 206 F. 488, 492, and
Woodrow W. Reynolds v. Hugh W. Wade, 139 F. Supp. 171, t 75. These
authorities are consistent with the general rule that words in a statute are to be construed in accordance with general public understanding of such words.
Accordingly, it follows that the company in question is not selling to the general public and is not entitled to a refund permit under the clear and unambiguous language of the statute.

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TAXATION-Gasoline Taxes (Unofficial)
British consular official is not exempt from payment of excise taxes on purchase of gasoline in State.
September 26, 1962
Mr. J. M. McMullen Atlanta 3, Georgia
This is in reply to your letter of September 10, 1962, requesting an opinion as to the exemption status of a British consular official regarding the payment of Georgia gasoline taxes. The laws of this State provide no tax exemption for the benefit of consular officers from foreign countries as the matter is controlled by Federal treaties with the countries involved.
A consular convention and accompanying protocol signature between the United States of America and the United Kingdom of Great Britain and Northern Ireland were signed at Washington on June 6, 1951. This Convention applies to the State of Georgia and with respect to tax exemptions provides:
"Article 13. (1) (a) No tax or other similar charge of any kind shall be imposed or collected in the territory by the receiving state, or by any state, province, municipality, or other local subdivision thereof, in respect of fees received on behalf of the sending state in compensation for consular services, or in respect of any receipt given for the payment of such fees.
"(b) The sending state or a consular officer or employee thereof shall be exempt in the territory from all taxes or other similar charges of any kind imposed or collected by the receiving state, or by any state, province, municipality, or other local subdivision thereof, in respect of acts performed in the course of the officer's or employee's official functions. This exemption shall not apply to taxes or other similar charges in respect of which some other person is legally liable, notwithstanding that the burden of the tax or other similar charge may be passed on to the sending state or the consular officer or employee.
"(2) No tax or other similar charge of any kind shall be imposed or collected in the territory by the receiving state, or by any state, province, municipality, or other local subdivision thereof, in respect of the official emoluments, salaries, wages or allowances received as compensation for his consular services by a consular officer, unless he is a national of the receiving state and is not also a national of the sending state.
"(3) The provisions of paragraph (2) of this Article also apply to the official emoluments, salaries, wages or allowances received by a consular employee as compensation for his services at a consulate, unless such consular employee is a national of the receiving state and is not also a national of the sending state.

515
" (4) Without prejudice to the preceding paragraphs of this Article, a consular officer or employee who is
"(a) not a national of the receiving state,
"(b) not engaged in private occupation for gain in the territory, and
"(c) a permanent employee of the sending state or, if not a permanent employee thereof, was not resident in the territory at the commencement of his employment in the consulate, "shall, except as provided in paragraph (5) of this Article, be exempt in the territory from all taxes or other similar charges of any kind which are or may be imposed or collected by the receiving state, or by any state, province, municipality, or other local subdivision thereof.
"(5) (a) The provisions of paragraph (4) of this Article shall apply only to taxes or other similar charges in respect of which the consular officer or employee would, in the absence of the exemption provided by this Article, be the person legally liable, and shall not apply to taxes or other similar charges in respect of which some other person is legally liable, notwithstanding that the burden of the tax or other similar charge may be passed on to the consular officer or employee, or to duties or taxes payable on the withdrawal of goods from a bonded warehouse. If, however, a consular officer or employee is entitled to income from sources outside the territory but that income is payable to him, or collected on his behalf, by a banker or other agent within the territory who is required to deduct income tax on payment of the income and to account for the tax so deducted, the consular officer or employee shall be entitled to repayment of the tax so deducted.
"(b) The provisions of paragraph (4) shall not apply to
"(i) taxes imposed or collected on the ownership or occupation of immovable property situated within the territory;
"(ii) taxes on income derived from sources within the territory;
"(iii) taxes imposed or collected on the passing of property on death, such as estate, inheritance and succession taxes, whether the consular officer or employee is the person who dies or the person to whom the property passes on death;
"(iv) taxes on transactions or instruments effecting transactions, such as taxes on the sale or transfer of money or property or stamp duties imposed or collected in connection therewith; and
"(v) taxes and duties imposed upon, or by reason of, importation of articles into the territory which are dealt with exclusively in Article 14.
"(6) Nothing in this Convention shall prejudice any claim for exemption from taxation which could be made under the

516
Convention signed April 16, 1945, and the Protocol signed June 6, 1946 between the United States of America and the United Kingdom of Great Britain and Northern Ireland." (emphasis added).
Article 13 (b) refers to other exemptions which may be found in Vol. 60 Statutes at Large, page 1377 et seq. Article 1 of such Convention provides that the taxes which are the subject thereof are income taxes, including surtaxes and excess profits taxes. This Convention has, therefore, no bearing on the question of excise taxes.
The Shell Oil Company in making sales of motor fuels to the representative of the United Kingdom is involved in the collection of the excise taxes imposed by the Motor Fuel Tax Law (Ga. Code 92-1401, et seq.) and the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Code 92-3401 a, et seq.). The Motor Fuel Tax Law imposes an excise tax on the consumer and the levy on distributors is merely an agent of the State (Ga. Code 92-1403 (c) (c)). The Georgia Retailers' and Consumers' Sales and Use Tax Act imposes an excise tax or license tax on the purchaser of property at retail in this State. (Ga. Code 92-3402a as amended) .
The Consular Convention pertaining to tax exemptions for representatives of the United Kingdom states in Article 13 (5) (b) (iv) that the exemptions granted do not apply to taxes on transactions such as taxes on the sale or transfer of property. It is therefore, my opinion that the representative from the United Kingdom is not exempt from the provisions of the Georgia Motor Fuel Tax Act or the Georgia Sales Tax Act.
TAXATION-Gasoline Taxes (Unofficial)
Refund of gasoline tax may be made in certain cases to one engaged in production of nursery products, depending on facts of particular case.
October 10, 1962
Mr. C. R. Smith Concord, Georgia
This will acknowledge receipt of your letter relative to the refund of gasoline tax for gasoline used in the production of nursery products.
You state in your letter that your tractors are used exclusivelY in off-highway work doing the same type of jobs such as cultivating and the like that other farmers do. You further state that at one time the State allowed you a gasoline tax refund but that this alloWance was reversed several years ago. You further state that you do receive a rebate from the federal government which has consistentlY ruled that nurseries are a farming operation for tax purposes.

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For your information I enclose herewith a copy of an unofficial

opinion addressed to Dr. Harry L. Brown, President of the Georgia

Farm Bureau Federation, dated July 3, 1962, that relates to gasoline

tax refunds and a copy of an official opinion addressed to the Com-

missioner of Agriculture, dated August 20, 1962, that relates to

gasoline tax refunds in the production of poultry. These opinions

are self-explanatory.



An official opinion rendered April 16, 1957, to the Director of the Gasoline Tax Refund Unit of the Department of Revenue, is found in Opinions of the Attorney General 1957, pp. 309, 310. This opinion
held that persons who are engaged in the business of performing any one or more of named service for farmers were not entitled to a gasoline tax refund. The opinion further states that the nursery
business partakes of both the business of farming and the business of serving farmers. It further states that it is commonly considered as a separate and distinct business from that of farming, even though it involves much of the same activity usually associated with farming.

A careful reading and analysis of that opinion reveals that it is applicable to those engaged in the business of providing services for farmers but did not specifically state that a person producing nursery products was not entitled to the refund. The last sentence of that opinion reads:

"It is my ruling, therefore, that a person engaged in the business above described, that is, the nursery business, is not exempted by the statute from this tax."

The opinion leaves some question as to whether a refund would be available to those engaged in the production of nursery products as a part of a bona fide operation.

I think it necessary to make a firm distinction between those persons who produce nursery products as a part of a bona fide farm operation and those engaged in the nursery business as such. I think it clear that where the acreage of a person is used to produce nursery products as a part of a farming operation and where he is otherwise qualified and meets the requirements of the statute relating to gasoline tax refunds that he should not be penalized or denied the refund because he is producing nursery products rather than a row crop such as cotton or corn. On the other hand, I think it is perfectly clear that a person engaged in the nursery business as such where he does not use his acreage for the production of nursery products as a part of a bona fide farming operation is not entitled to the refund. It would thus appear that the question of whether or not a person was entitled to a gasoline tax refund would have to be determined on the facts in each case.

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TAXATION-Gasoline Taxes (Unofficial)
A foreign farm operator otherwise qualifying for gasoline tax refund for gasolines purchased for farm use would not be denied refund simply because he is not a resident of Georgia.
October 30, 1962
Mr. C. E. Johnson Atlanta 1, Georgia
Mr. John Bearden, who is the Director of the Motor Fuel Tax Unit of the Department of Revenue, asked that I write you concerning your inquiry pertaining to a refund for agricultural purposes where a farm operation is located in a state other than Georgia.
Georgia Code Section 92-1403 (I) provides that any person who shall purchase gasoline in quantities of 25 gallons or more at any time and use said gasoline for operating tractors and other farm equipment shall be entitled to a refund of State gasoline taxes subject to the conditions set forth in that Code Section.
The question concerning tax exemptions and tax refunds for the benefit of persons other than residents of the taxing jurisdiction has not been judicially decided in Georgia. Authority from other states seems to indicate that except where the refund or exemption statute limits the benefits to residents or operations in the taxing state, the tax benefit is generally allowed to both foreign and domestic taxpayers. Petition of Vanderbilt University (N.C.) 114 S.E. 2d 655; In Re Cooper's Estate (Iowa) 295 N.W. 448; In Re Frain (La.) 75 So. 847.
In view of the fact that our statute pertaining to gasoline tax refunds for agricultural operations makes no distinction between local and foreign use, it is my opinion that a foreign farm operator otherwise qualifying for the refund should not be denied the refund simply because his farm operation is located in a state other than Georgia.
TAXATION-Gasoline Tax Refunds (Unofficial)
So-called "economy" gasolines are taxed in the same manner as other grades of gasoline and the fact that they are sold at a lower rate to consumer would not affect eligibility for refund of tax where other refund conditions are met.
June 20, 1962
Honorable Adron Harden Macon, Georgia
This will acknowledge receipt of your request for information concerning refunds on the so-called economy gasolines. You state that distributors are indicating to farmers that gasoline tax refund will not be paid on gasolines in this price range.

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For your information, Georgia Code Ann., 92-1402, in defining terms, defines "Motor fuel" as follows:
"(B) 'Motor fuel' shall mean and include all products commonly or commercially known or sold as gasoline, benzol, benzine, or naphtha, regardless of their classification or uses, and any other liquid of a kind prepared, advertised, offered for sale or sold for use as, or used as, a fuel for internal combustion engines; except that it does not include kerosene, or any other petroleum products with a flash of more than 100 Fahrenheit or with an initial boiling point of 200 Fahrenheit, or over (as determined by the distillation tests prescribed by the Bureau of Mines of the United States Government for gasoline), when such products are sold for use otherwise than as a fuel for the propulsion of motor vehicles on the public highway, provided that nothing in this section shall exclude the tax on the sale or use of kerosene of one cent per gallon, placed on same by subsection (B) of section 92-1403."
This definition was amended by an Act approved March 6, 1962 (Ga. L. 1962, p. 646).
Paragraph (I) of the Georgia Code Ann., 92-1403, relates to the refund of the tax paid on gasoline used for agricultural purposes. This Section clearly refers to gasoline used in the operation of tractors and other farm equipment.
I have this date conferred with Mr. Foster of the Motor Fuel Tax Division of the State Department of Revenue about this matter and he advises that such gasolines are taxed at the regular rate and that the mere fact that it was an economy gasoline would not in any manner affect the eligibility for refund.
TAXATION-Income Taxes (Unofficial)
Income from Superior Court Clerk's Retirement Fund subject to State income tax except that all but 3 percent of aggregate contributions of taxpayer to Fund is excluded from tax base until entire cost to taxpayer has been recovered tax free.
January 17, 1962
Mr. John Walker Herndon Hartwell, Georgia
My office as Attorney General permits me to render official opinions only to the Executive branch of the State Government. However, the following is unofficially my opinion regarding the application of State law to the problems posed in your letter.
With reference to the $200.00 retirement benefit which you receive monthly from the Superior Court Clerk's Retirement Fund, there is no provision in the Georgia Income Tax Act, as amended, or

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in the Act creating the Retirement Fund (Ga. Laws 1952, p. 238; 1953, Nov. Sess., p. 332), which exempts the retirement benefits from the Georgia Income Tax. These retirement benefits are, therefore, taxable under Georgia Code Section 92-3107 in the following manner: All but 3 per cent. of the aggregate contributions of the taxpayer to the Fund (cost to taxpayer) is excluded (not included in taxable income) from annual benefits received from the Fund until the entire cost to taxpayer has been recovered tax free. Thereafter, the full amount of the annual benefits received is taxable income.
I have no authority to construe the Federal Laws as they might apply to the facts as stated in your letter, and it would be better if you could consult with the nearest Agent or office of the Internal Revenue Service. However, it is my personal opinion that you will find the annual benefits (in excess of cost to taxpayer) to be subject to the Federal income tax and, also, not available as a part of the basis for computing Social Security benefits.
TAXATION-Income Taxes (Unofficial)
Discussion of deductibility in computing tax on bank shares of property held indirectly by bank through ownership of holding company.
January 30, 1962
Honorable Tom H. Gatewood Tax Commissioner Sumter County
Your letter of January 25, 1962, to Mr. C. G. Campbell, Director, Property Tax Division, State of Georgia, has been forwarded to this office for reply.
Although the established procedure in this office is to receive questions of law, such as posed in your letter, through the county attorney for unofficial reply, I am glad, inasmuch as the matter is before me, to refer you to the second paragraph of Code Section 92-2406, which is set out below and which, I believe, answers your question regarding the deductibility in computing the tax on bank shares of property held indirectly by the bank through ownership of a holding company and which said property is not the bank premises in and on which it carries on its business.
Code Section 92-2406 (second paragraph) :
"Where a bank or banking association organized under the authority of this State or the United States located within this State owns all of the capital stock of a corporation holding, leasing or owning premises in and on which such bank carries on its business, and an ad valorem tax is levied on such real estate, such bank or banking association may deduct

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from the market value of its shares the market value of its equity in said real estate, measured by the market value of its capital stock in the holding corporation."
The above quoted is the only provision in the law permitting a deduction by banks of real estate held indirectly by them, and you will note that the deduction is allowed only if the bank uses the real estate as premises in or on which to conduct its business and only if the bank owns all of the capital stock of the corporation holding, leasing or owning the real estate; further, the market value of the bank's equity in said real estate for purposes' of the deduction is measured by the market value of the holding corporation's stock owned by the bank.
A copy of this letter is being sent to the county attorney of Sumter County.

TAXATION-Income Taxes

Stock held by a corporation which is distributed to its stockholders in accordance with divestiture ruling of Federal Courts is taxable as a dividend under Georgia Income Tax laws.

Mr. Fielding L. Dillard, Director Income Tax Unit Department of Revenue

July 10, 1962

This is in reply to your letter requesting advice as to the taxability of the distribution of General Motors stock to stockholders of Du Pont in accordance with a recent divestiture ruling of the Federal Courts.

There is no provision in the Georgia income tax law comparable to the special provisions added to the Internal Revenue Code by Public Law 87-403 (1962), whereby the fair market value of the divested stock is deemed a return of capital to the extent of the basis of the stock with respect to which the distribution is made, with any excess of said fair market value being accorded capital gains treatment.

Minus such special provisions in the Georgia law, the distribution, to the extent it is made out of earnings and profits, falls within the definition of a taxable dividend as provided in Section 92-3002 (o) of the Georgia Code Annotated:

"The word 'dividend' when used in this law for the purpose of defining a taxable dividend means any distribution made by a corporation out of its earnings or profits to its shareholders or members whether such distribution be made in cash or in other property or in a stock different from the stock on which the dividend is paid. . . ."
and would, of course, be accorded the same treatment as any other distribution falling within that definition.

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TAXATION-Income Tax Fi. Fa.
Request by grantee for release of property upon which income tax fi. fa. was recorded against grantor of bond for title, where title of record is still in grantor, is matter for consideration of Board of Compromises and Settlements.
July 20, 1962
Mr. Fielding L. Dillard, Director Income Tax Unit Department of Revenue
This is in reply to your letter with an attached request for release of property from an Income Tax Fi. Fa. You have requested advice as to whether subject release can be made by the Revenue Department in view of the following circumstances:
The Fi. Fa. is against the Grantor of the bond for title; the record title is still in Grantor; and the Grantee, or holder of such bond for title, claims a perfect equity and legal title prior to the recording of the Fi. Fa. against the Grantor.
The form of request filed by the Grantee does not contain the date of final payment of the purchase money under the bond for title contract, nor show to whom paid, and whether Grantee was in possession of the specific property. If such final payment of purchase money was made to the Grantor, or its assignee, and Grantee was in possession of the specific property prior to the recording of the Income Tax Fi. Fa., then it is my opinion that the lien of record established by said recording is nominal only and without support in the law.
However, inasmuch as the record title is still in Grantor, and the vesting of title in Grantee prior to the recording of the Income Tax Fi. Fa. against Grantor has not been established through legal process, it is the further opinion of this office that the release of subject specific property, as requested, is in the nature of a compromise or settlement of the tax fi. fa. in question and is, therefore, a proper matter for consideration by the Board of Compromises and Settlements as provided in Section 92-8411.1 of the Georgia Code Annotated. If it is determined by such Board that a release of subject property is warranted, this office will be glad to review any form of release presented by Grantee or his counsel, or to prepare such form at the request of the Board of Compromises and Settlements.

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TAXATION-Intangible Personal Property
Intangible personal property owned by religious educational or charitable institutions, no part of which can inure to the benefit of private persons, exempt.
.May 29, 1962
Mr. Jack Hodgkins Deputy Revenue Commissioner
This is in reply to your request for an official opinion concerning ad valorem tax exemptions for a corporation organized exclusively for religious, educational or charitable purposes where no part of the net earnings of the corporation can inure to the benefit of any private person or stockholder, either upon dissolution or otherwise.
Article VII, Section I, Paragraph IV, of the Constitution of 1945 provides that the General Assembly may exempt from taxation all intangible personal property owned by religious, educational or charitable institutions, no part of the net profits of which can inure to the benefit of any private person. The General Assembly provided such exemption for intangible property. Georgia Laws, 1946, page 12 (Ga. Code Ann., Sections 92-130 and 92-201).
A corporation or institution is not relieved from the provisions of the Intangible Property Tax Act under the provisions of the Constitution or the exemptions granted pursuant to the authority contained in the Constitution, but the intangible personal property owned by such religious, educational or charitable institution is exempt. (Ga. Laws 1937-38, Ex. Sess., pp. 156, 161, as amended by Ga. Laws 1953, Jan.-Feb. Sess., pp. 453, 454).
TAXATION-Intangible Personal Property
Description in charter that institution is charitable not necessarily controlling, and institution's tangible personal property is taxable where it appears proceeds may inure to benefit of private person.
June 8, 1962
Mr. Jack Hodgkins Deputy Revenue Commissioner
This is in reply to your request for an opmwn concerning the taxability of intangible personal property owned by the Armed Forces Benefit and Aid Association.
Article VII, Section I, Paragraph IV of the Georgia Constitution of 1945 provides that the General Assembly may exempt from taxation all intangible personal property owned by religious, educational or charitable institutions, no part of the net profits of which can inure to the benefits of any private person. The General Assembly

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provided such exemption for intangible personal property by enactment of Georgia Laws 1946, page 12 (Georgia Code Annotated, 92-130 and 92-201).
Property of a corporation, although its petition for Charter and articles of incorporation describe it as an institution of purely public charity and specify that it is a non-profit and non-stock company, it is not exempt from taxation in Code Sections 92-201 or 92-130. Mu Beta Chapter Chi Omega House Corp. v. Davison, 192 Ga. 124. It is apparent from an examination of the Charter and the bylaws of this Association that the proceeds of the intangible property are not necessarily dedicated to charitable purposes, but it is clearly evident that the net profits of the corporation can inure to the benefit of the members of that Association not only in the form of insurance benefits but also in the form of dividends.
The intangible property of the Armed Forces Benefit and Aid Association would be taxable in Georgia if they had a tax situs here.
TAXATION-Intangible Property Tax
Written assignment of securities and receipt of delivery of stock certificates makes assignee liable for return and payment of intangible property taxes, notwithstanding that assignee's ownership is not shown on its books.
January 24, 1962
Mr. C. G. Campbell, Director Property Tax Unit Department of Revenue
This is in reply to your letter requesting my opmwn as to who is responsible for making the intangible property tax return and paying the tax due thereon under the following circumstances:
Over a period of several years, Mr. A. B. Domingos, President of Hall Construction Company, has been purchasing various stocks, from time to time, for the company in his name, the purchase price being furnished by the company. As soon as the stock certificates, which are issued in Mr. Domingos' name, are received by him, he immediately executes a written assignment of the certificate to Hall Construction Company on a separate document and delivers it, together with the certificate, to Mr. H. G. Burke, the company's Assistant Secretary and Treasurer. He, in turn, places them in the company's safe deposit box where they are kept until sold. Since no transfer is made on the books of the issuing company, all dividend checks are issued in Mr. Domingos' name and sent directly to him. Immediately upon receipt by him, they are endorsed and deposited in Hall Construction's bank account.
In 1939, Georgia adopted the Uniform Stock Transfer Act (Georgia Code Ann., Chapter 22-19), which prescribes two methods by

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which title to stock certificates and the shares represented thereby may be transferred. The pertinent provisions are:
"22-1903. Title to a certificate and to the shares represented thereby can be transferred only (a) by delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the ow:per of the shares represented thereby, or (b) by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorne:y- may be either in blank or to a specified person. . . ."
Therefore, under the circumstances described, legal title passes to Hall Construction Company upon delivery of the certificates and the written assignments although the stock thereafter stands in Mr. Domingos' name on the corporate books. Hall Construction Company, being the owner, should make the return and pay the tax.
TAXATION-Intangible Property Tax
Liability of bank for payment of intangible recording tax where bank acting as trustee depends upon character of trust estate.
February 15, 1962
Mr. Jack Hodgkins Deputy Commissioner of Revenue
This is' in reply to your letter requesting an opmwn as to the liability of a National Bank for the payment of the Georgia intangible recording tax where such bank is acting as trustee.
Neither National nor State banks are liable for the payment of the recording fee imposed on the recording of long-term notes under the provisions of the Act of 1953 (Georgia Laws 1953, Nov.-Dec. Session, p. 379, et seq.). Pittman v. Home Owners Loan Corp., 308 U.S. 21, 60S. Ct. 15, 84 L. ed. 11; Washington Loan & Banking Company v. Golucke, 212 Ga. 98.
The idea behind the tax exemption for banking institutions generally results from the exemption which instrumentalities of the Federal Government enjoy. National banks should have within the State no greater tax benefit than State banks and it was because of this reasoning that the bank exemption arose.
A bank is not, however, acting as an instrumentality when it accepts appointment as trustee, for any one other than the trust estate. The question of tax immunity would then depend not upon the "personal" taxability of the trustee, but upon the character of the trust estate. Paragraph one of Code Section 92-130 provides:

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"There shall be exempt from taxation 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."
Should the rule be otherwise, trust estates otherwise taxable could avoid this tax by the appointment of some banking corporation rather than a trusted individual as trustee.
It is my opinion that banks acting as trustees for non-exempt trust estates are subject to the intangible recording tax on long-term security deeds under the 1953 Act.
TAXATION-Intangible Property Tax (Unofficial)
Taxpayer who maintains legal residence in Georgia though living temporarily outside the State is not exempt from intangibles tax on property with tax situs in Georgia.
May 17, 1962
Mr. Erie Cocke, Jr. Washington 16, D. C.
A while back when you were in the office, I promised that I would inquire further into the possibilities of a tax exemption which would relieve you from the provisions of the Georgia intangible tax law during your sojourn in Washington. The basic fact of the situation is that you are a legal resident of the state of Georgia, and of course this is not altered by the fact that you are temporarily away from home. I have been unable to find any provision which, under these circumstances, would permit you to avoid the payment of the Georgia intangible tax.
It appears that Maryland is imposing the tax under which you might more successfully find relief. Double taxation is always a source of ill feelings. However, this state is following the general rule, and is taxing only the property of recognized tax situs here.
TAXATION-Intangible Property Tax (Unofficial)
Intangible recording fees paid voluntarily but in error may not be recovered by taxpayer where all the facts are known or should have been known.
November 5, 1962
Mr. Jack L. Camp Tax Commissioner, Fulton County
This is in reply to your letter addressed to Mr. C. G. Campbell, Director of the Property Tax Division of the Department of Revenue.

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You asked whether or not payments made under the provisions of the Georgia Intangible Recording Tax law should be collected where attorneys or other parties recording the instruments wish to pay the tax on short term deeds and on deeds which have no fixed maturity date.
Georgia Code Section 20-1007 provides:
"Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule.''
In the case of Atlanta Coach Co. v. Simmons, 184 Ga. 1, the Supreme Court held that a petition to recover back monies paid "by reason of a mistake of fact" rather than a misplaced confidence or deception, etc., was subject to a general demurrer.
It is my opinion that intangible recording fees paid voluntarily may not be recovered back where all the facts are known or should have been known.
TAXATION-Intangible Recording Tax
A mortgage to secure a sublease agreement is a long-term note secured by real estate within the meaning of the Intangible Recording Tax Act.
November 6, 1962
Mr. C. G. Campbell, Director Property Tax Unit Department of Revenue
This is in reply to your letter of August 2, 1962, concerning intangible recording tax in a transaction where a property owner conveys property to another under conditions whereby the conveyance is void if certain payments are made. The instrument which you have furnished with your letter refers to the indenture as being a mortgage and the obligations and payments are termed leases and rent payments.
Georgia Code Section 92-163 provides:
"For the purposes of this law [ 92-161 through 92-184], the words 'long term notes secured by real estate' shall mean any note or notes representing credits secured by real estate by means of mortgages, deeds to secure debt, purchase money deeds to secure debt, bond for title or by any other form of

528
security instrument by whatever name called, any part of the principal of which note or notes falls due more than three years from the date thereof or from the date of any instrument executed to secure such note or notes and conveying or creating a lien or encumbrance on real estate for such purpose. The words 'short term notes secured by real estate' shall mean any such note or notes the whole of the principal of which falls due within three years from the date thereof or from the date of any such instrument executed to secure the same." (Emphasis added).
I have previously ruled in another opinion that a mortgage to secure a sublease agreement is a long term note secured by real estate within the meaning of the recording act. Opinions of the Attorney General, 1954-56, page 769.
I have reconsidered that opinion and adhere to it.
TAXATION-Intangible Tax Act
Discussion of taxability of usufructuary and remainderman interests in stock.
November 13, 1962
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter requesting my opmwn as to the liability of A, a resident of Georgia, for the intangible property tax on an interest in shares of corporate stock acquired by him under Louisiana law. You advise that A and his mother, B, a resident of Louisiana, each have an interest in the stock, these interests, as fixed by Louisiana law, being that of a naked owner and a usufructuary respectively.
To answer this question, I start with the proposition that all property in this State is subject to taxation except that which is specifically exempted by statute pursuant to express constitutional authority. Settles v. Northwestern Mutual Life Insurance Company, 193 Ga. 495, 515. Interests in land less than the fee 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. Therefore, in mY opinion, whatever A's interest is in the stock, it is subject to the intangible property tax, the chief problems being to determine its character and value.
To determine the character of A's interest under Louisiana law, reference has been made to the Special Commentary on Elements

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of the Law of Ownership found in 3 L. S. A.-Civil Code, pp. 1-48. There it is said, (p. 4) :
"Ownership is recognized in Book II [of the Louisiana Civil Code] as the right of an individual to control and enjoy a thing to the exclusion of others. It consists of three basic elements: the right to use, or the usus; the right to the fruits, or the fructus; and the right to dispose or alienate or the ahusus."
Continuing, the Commentary states (p. 26) :
"The preceding discussion has been devoted to the concept of nwnership as the consolidation of the elements, usus, fructus and ahusus. Ownership in this sense, however, is not the only kind of interest in things, because the Code [the Louisiana Civil Code] recognizes that each of the three basic elements may exist separately or in qualified form. The rights and obligations which emanate from the separation or qualification of the usus, fructus and ahusus are designated in the Code as servitudes.
"The personal servitudes concern the legal effects that follow from the vesting of the usus and fructus, or the usus alone, in one person, and the ahusus in another. Three personal servitudes are recognized by the Code: Usufruct, use and habitation. Usufruct confers the right to use the property of another and to consume the fruits therefrom. The elements of usus and fructus are thus vested in one person while the ahusus is held by another. Use affords the right to use another's property and to consume the increment therefrom to the extent necessary to sustain the user and his family. Thus a limited usus and fructus are involved. Habitation is the right to live, gratuitously in another's house; as such, it is limited usus."
The most prominent of these personal servitudes seems to be the usufruct. I assume, in the particular case under consideration, that B has a usufruct in the stock, i.e., the usus and the fructus are vested in her as a usufructuary, while the ahusus is vested in A as the naked owner.
Now, a consideration of some of the methods of creating and terminating a usufruct, as well as some of the rights and obligations of the usufructuary and the naked owner, would appear to be helpful in determining what this relationship is comparable to under Georgia law. In this respect, a study of the Commentary and the provisions of the Louisiana Civil Code itself leads to the following conclusions:
A usufruct may be created by the action of the owner of a thing, by testament, donation, sale or other contract. One created in this manner is termed a conventional usufruct. One may also come into being by operation of law.
Both the conventional and the legal usufructs are divided into two classifications according to the nature of the object of the

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usufruct. If the thing can be used and enjoyed by the usufructuary without changing its substance, the usufruct is called perfect; if the substance of the thing must be changed to be of use to the usufructuary, the usufruct is termed imperfect. The perfect-imperfect distinction is significant because the usufructuary is forbidden to alienate the object of a perfect usufruct, but is permitted to alienate the object of an imperfect usufruct. Moreover, in the case of the perfect usufruct, the specific thing which is the object of the usufruct must be returned to the naked owner when the usufruct expires, but in the case of the imperfect usufruct, the thing may be consumed or alienated by the usufructuary subject to the obligation to deliver the same quantity, quality and value to the owner, or their estimated price, at the expiration of the usufruct.
A share of stock has been held to be the object of a perfect usufruct. Leury v. Mayer, 122 La. 486, 47 So. 839.
The Civil Code provides explicitly for the rights and obligations attendant on the usufruct subject, of course, to modification, in the case of the conventional usufruct, by the instrument creating it.
The most important right of the usufructuary is the right to use and enjoy the object of the usufruct, including the privileges and appurtenances of the thing. The second most important right is the right to take the fruits of the usufruct. These are owned in full by the usufructuary, with no obligation on his part to account for them in any manner to the naked owner. Another right is the right to sell, lease, or otherwise alienate or encumber the right of usufruct. Any alienation or encumbrance, however, is effective only for as long as the usufruct exists.
Of course, the usufructuary does not enjoy these rights without being required to bear certain responsibilities. He must make an inventory and furnish the naked owner with security, except in certain instances, for the faithful observance of all his duties and upon expiration of the usufruct, return, or deliver the thing which is the subject of the usufruct to the owner.
During the usufruct, the usufructuary must protect the object from damage, destruction or loss; for example, he is required to pay taxes and other charges levied against it, in order to avoid liens or other encumbrances which might result, and to prevent the loss of the thing by judicial sale. In appropriate cases, he is required to make repairs, being under a duty to exercise that care which a prudent owner would exercise in caring for that which belongs to him.
A conventional termination of the usufructuary's rights may be effected by a limitation in the instrument creating the usufruct, or by the usufructuary's renunciation or abandonment of them. The creator's limitation may be in the form of a fixed term or a condition.
Of the automatic causes of termination, death is foremost. The right of usufruct not being heritable, nothing passes to the usufructuary's heirs at his death. On the other hand, the death of the nak~d owner will not affect the usufruct, the owner's interest passing to hiS heirs subject to the usufructuary's rights.

531
The usufruct will also expire by operation of law when the thing which is the object of the usufruct is lost or destroyed, or when the rights of the naked owner and the usufruct merge in one person. The latter brings about a reunion of the usus, fructus and abusus, thereby restoring fullownership in a single individual.
While the naked owner's interest is subject to the right of the usufructuary to use and enjoy the object of the usufruct and the right to its fruits during the life of the usufruct, that interest is a very substantial one. The naked owner may mortgage, sell, or alienate the object without the consent of the usufructuary, as long as he does not do any of these things in such circumstances and under such conditions as would be injurious to the usufructuary's enjoyment.
From all this, assuming that B's usufruct is not to terminate before her death, it would seem that A's interest is the approximate equivalent, under Georgia law, of that of a vested remainderman in fee simple subject to a life estate. Accordingly, A's interest, in my opinion, is subject to the intangible property tax and may be valued for that purpose by an application of the actuarial tables adopted by the Internal Revenue Service. See 26 C. F R. 20.2031-7 (d) and (f) and 25.2512-5 (d) and (f).
TAXATION-Intangible Tax Act of 1953 (Unofficial)
Where notes secured by real estate, some payable within three years and some payable after a longer period, are all part of a single transaction representing one loan, they are all to be considered "long term notes secured by real estate" and taxable within meaning of Intangible Property Tax Act of 1953.
October 8, 1962
Mr. Wallace E. Harrell Brunswick, Georgia
We are in receipt of your letter in which you requested, in effect, a review by this office of a portion of an official opinion of this office, dated March 4, 1955, to Clarence G. Campbell (Opinions of the Attorney General, 1954-56 Volume, pages 773-776).
More specifically, you cited a case in which your client gave a security deed covering certain property in Camden County, Georgia, securing a debt in the total sum of $35,000. The debt was evidenced by five separate promissory notes due one, two, three and four years from date. You have contended that the notes due one, two and three years from date were not taxable under the Intangible Property Tax Act of 1953, since those notes were not "long-term" notes in not being due more than three years from date.
It is the opinion of this office that the official opinion cited above should be reaffirmed and that all of the notes which you described are subject to the application of the Intangible Property Tax.

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Georgia Code Section 92-163 states:
"For the purposes of this law [ 92-161 through 92-184], the words 'long term notes secured by real estate' shall mean any note or notes representing credits secured by real estate by means of mortgages, deeds to secure debt, purchase money deeds to secure debt, bonds for title or by any other form of security instruments by whatever name called, any part of the principal of which note or notes falls due more than three years from the date thereof or from the date of any instrument executed to secure such estate for such purpose. The words 'short term notes secured by real estate' shall mean any such note or notes the whole of the principal of which falls due within three years from the date of any such instrument executed to secure the same."
Since all of the notes in question are the subject of one transaction, and since the "whole of the principal" represented by all of the notes does not fall due within three years, we do not feel that any of the notes can be characterized as "short-term notes secured by real estate" within the meaning of said section. On the other hand, since a part of the principal involved in the transaction falls due more than three years from the date of the transaction, all of the notes involved in the transaction should be considered "long-term notes secured by real estate."
We stated in the opinion of this office, dated March 4, 1955, supra, as follows:
"It was the intent of the legislature to impose the tax upon the entire long term debt secured by real estate. It, of course, is not a tax upon the mortgage, but is a tax upon the principal amount of the long term debt as evidenced by the notes. If the debt, secured by the real estate and evidenced by the loan deed, was in the form of a series of notes payable in staggered annual dates over a long term period rather than one note payable in a series of annual installments, the holder of such series of notes maturing at staggered terms cannot, by this separation of the single debt into several notes, escape the intangible tax imposed by Section 4 of the Act on those notes falling due in less than three (3) years. To permit lenders to thus escape the tax by the device of splitting the debt into installment notes rather than one note containing provisions for installment payment, would defeat the intention of the General Assembly in enacting the Intangible Property Tax Act of 1953, and, as stated previously, an act must be read so as to carry out the obvious intent of the Legislature as evidenced by the Act itself and the legislative history."
This position was reaffirmed by an official opinion of this office, dated August 7, 1961, to Mr. C. G. Campbell, in which we stated:
"In my official opinion of March 4, 1955, to you, Opinions of the Attorney General, 1954-56 Volume, page 773, I pointed out that the tax is due on the entire amount of the loan whether

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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 of 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-Intangible Tax Act of 1953
On facts stated, non-resident companies purchasing bonds of Georgia corporation through channels entirely separate from any business conducted by purchasers in State, with bonds not derived from or used incident to property owned or business conducted in State, will not be liable for annual property tax pursuant to Intangible Property Tax Act of 1953.
October 27, 1962
Honorable Clarence G. Campbell Director, Property Tax Division Department of Revenue
This is in reply to your letter in which you request an official opinion as to the application of the Georgia Intangible Property Tax Act of 1953, as amended, to certain bonds proposed to be issued by Great Southern Land and Paper Company, a Georgia corporation (hereinafter referred to as Great Southern). Your letter describes the circumstances under which the sale of these bonds to non-resident institutional investors was negotiated and also describes the bonds, the. "Bond Purchase Agreements" between Great Southern and the institutional investors, and the "Indenture and Deed of Trust" between Great Southern and Manufacturers Hanover Trust Company (a New York corporation having its principal office and place of business in New York City), as Trustee, pursuant to which the bonds will be issued. In connection with your request for an official opinion, you forwarded copies of the "Bond Purchase Agreements" and the "Indenture and Deed of Trust," which sets out the form of the bonds.
You requested my official opinion as to whether the instruments designated in the "Indenture and Deed of Trust" as "6% First Secured Bonds due October 1, 1984" are "long term notes secured by real estate" within the meaning of Section 3, Part I, of the 1953 Intangible Property Tax Act, as amended (Section 92-163 of the Georgia Code, Annotated), or "bonds" within the meaning of Section (2) (a), Part I, of that Act (Section 92-162 (a) of the Georgia Code, Annotated). If the instruments are bonds and subject to the annual Property tax of $1 on each $1,000 of fair market value of corporate bonds under the latter section, you further request my opinion as to whether such tax would be payable by the non-resident purchasers acquiring the bonds under the circumstances described in your letter.

534
It appears from the file in this matter that the bonds are to be issued and sold by Great Southern to certain insurance companies pursuant to the "Bond Purchase Agreements." None of the purchasers is organized or domesticated under the laws of, or has its principal office within, the State of Georgia. The offering of the bonds to the purchasers, and all negotiations with respect to the terms of the bonds, were carried on outside the State of Georgia. Although certain of the bond purchasers conduct an insurance business in the State of Georgia and certain of them have offices in Georgia for the handling of mortgage loans, all negotiations relating to the purchase of Great Southern's proposed issue of bonds were handled, as is customary in the case of financings of the type and size involved, directly by the respective principal offices of the purchasers outside Georgia, without referral or other participation by any employee or agent of any of the purchasers within the State of Georgia.
The bonds will be secured by the conveyance to the Trustee, by the "Indenture and Deed of Trust" (constituting a deed to secure debt and bill of sale to secure debt), of real and personal property of Great Southern located in Georgia.
Under the "Bond Purchase Agreements" the purchasers will be obligated to purchase, subject to certain conditions, $25,000,000 aggregate principal amount of the bonds, and, at Great Southern's option and subject to certain further conditions relating to the conveyance of additional property as security for the bonds, the purchasers will be obligated to purchase an additional $5,000,000 aggregate principal amount of the bonds. All closings under the "Bond Purchase Agreements" will take place in New York. The bonds will be kept at the principal offices of the purchasers or their custodians outside Georgia.
The bonds will mature on October 1, 1984. The Indenture includes provisions establishing a mandatory sinking fund for the bonds and permitting additional redemptions of the bonds, at the option of Great Southern, in certain cases with a premium and in other cases without premium. If an event of default should occur under the Indenture, whether by reason of default in payment, failure to comply with certain restrictions as to Great Southern's financial operations and condition, or otherwise, the bonds may be declared immediately due and payable.
Payments of principal and interest on the bonds will be made at the ofice of the Trustee in New York, except that Great Southern may agree with any bondholder to make such payments direct to such bondholder. Any such agreement by the insurance companies which purchase the bonds will call for payment at their home offices or at the offices of their nominees outside Georgia.
Section 2 (a) of Part I of the Intangible Property Tax Act of 1953, designated in the Georgia Code, Annotated as Section 92-162 (a), imposes an annual property tax of $1.00 on each $1,000 of. the fair market value of all bonds and debentures of all corporatiOn~ Section 4, Part I of the same Act (Section 92-164 of the Georgia Code, Annotated) imposes a tax on "long term notes secured by real

535
estate," payable at the time of filing for record of the instrument executed to secure the same, at the rate of $1.50 for each $500 or fraction thereof of the face amount of the note or notes.
Section 3, Part I of the same Act (Section 92-163 of the Georgia Code, Annotated) defines "long term notes secured by real estate" as follows:
"For the purposes of this Act, the words 'long term notes secured by real estate' shall mean any note or notes representing credits secured by real estate by means of mortgages, 'deeds to secure debt, purchase money deeds to secure debt, bonds for title or by any other form of security instrument by whatever name called, any part of the principal of which note or notes falls due more than three (3) years from the date thereof or from the date of any instrument executed to secure such note or notes and conveying or creating a lien or encumbrance on real estate for such purpose ..." Ga. Laws 1953, Nov.-Dec. Sess., pp. 379, 383.
As you point out in your letter, I have rendered previously an official opinion to you, dated May 19, 1955, relating to a similar transaction involving bonds issued by Bowaters Southern Paper Corporation. That opinion is published in Opinions of the Attorney General 1954-56, page 769.
The instruments involved in the proposed issue of Great Southern bonds are similar in all material respects to those involved in the Bowaters Southern Paper Corporation bond issue. In particular, the features of the Bowaters instruments which were considered especially relevant to my previous opinion in concluding that they were "bonds" rather than "long-term notes secured by real estate" are also features of the proposed Great Southern instruments, as follows:
(1) The instruments to be issued by Great Southern are described as "bonds" in the "Indenture and Deed of Trust."
(2) The instruments will be executed according to the manner and method of executing bonds in that they will be issued either as registered bonds without coupons or as coupon bonds registrable as to principal and will be numbered serially, will be executed under seal, will be signed on behalf of Great Southern by its President or a Vice President and attested by its Secretary or an Assistant Secretary, will be delivered to the Trustee under the terms of the "Indenture and Deed of Trust," and will be authenticated by the Trustee by its authentication certificate.
(3) The "Indenture and Deed of Trust", as is customary in connection with the issuance of bonds, contains restrictions as to the financial operations and conditions of Great Southern for the protection of the holders of the instruments and provisions for the adding of property subsequently acquired by Great Southern as additional security for the instruments.
For the reasons and on the basis of the authorities cited in my previous official opinion dated May 19, 1955, referred to above, I

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am of the opinion that the bonds issued by Great Southern will be "bonds" within the meaning of Section 2 (a), Part I, of the Intangible Property Tax Act of 1953 (Section 92-162 (a) of the Georgia Code, Annotated) and will not be "long term notes secured by real estate" within the meaning of Section 3, Part I of that Act (Section 92-163 of the Georgia Code, Annotated). Hence such bonds will not be subject to tax under Section 4, Part I of that Act (Section 92-164 of the Georgia Code, Annotated) upon the filing for record of the "Indenture and Deed of Trust" securing the bonds but will be intangible property of the class subject to the annual property tax imposed on corporate bonds by Section 2 (a), Part I of said Act.
Since I have concluded that the Great Southern instruments will be bonds within the meaning of Section 2 (a), Part I, of the Intangible Property Tax Act of 1953 and hence subject to the annual property tax imposed by that section if they have a taxable situs in Georgia, you request my further opinion as to whether this tax will be payable by the non-resident insurance companies acquiring the bonds under the circumstances described above.
In my previous opinion dated May 19, 1955, I concluded that nonresident purchasers of the Bowaters Southern Paper Corporation bonds there involved, not deriving them from property owned or business done in the State of Georgia, would not be required to return the bonds owned by them for Georgia intangible tax purposes. The same conclusion applies here.
It appears that certain of the insurance companies purchasing the bonds are engaged in Georgia in the insurance business and the mortgage loan business. However, the fact that a non-resident corporation engages in business in Georgia does not make it subject to tax by Georgia on all its intangible property. Nor is it subject to Georgia tax on intangible property merely because such intangible property is indebtedness owed by a resident of Georgia and secured by property located in Georgia. It is well settled by decisions of the Supreme Court of Georgia that intangible property owned by a nonresident is not subject to property tax in Georgia unless it is derived from or is used as an incident of property owned or of a business co'nducted by the non-resident or his agent in Georgia. Suttles v. Associated Mortgage Companies, 193 Ga. 78, 17 S. E. 2d 272 (1941) ; National Mortgage Corporation v. Suttles, 194 Ga. 768, 22 S. E. 2d 386 (1942) ; Davis v. Metropolitan Life Insurance Co., 196 Ga. 304, 26 S. E. 2d 618 (1943) ; Davis v. Penn Mutual Life Insurance Co., 198 Ga. 550, 32 S. E. 2d 180 (1944), cert. denied, 331 U. S. 829, 91 L. Ed. 1844 (1947), 201 Ga. 821, 41 S. E. 2d 406 (1947) ; Suttles v. Owens Illinois Glass Co., 206 Ga. 849, 59 S. E. 2d 392 (1950).
In Suttles v. Northwestern Mutual Life Insurance Co., 193 Ga. 495, 19 S. E. 2d 396 (1942), the Supreme Court held as follows (in headnote 1) :
"1. Intangible property of a non-resident owner, such as credits arising from loans, can not be taxed in this State, unless it is connected substantially with some business transacted in Georgia by such non-resident or his agent.

537
"(a) Where a non-resident life-insurance company made loans secured by Georgia real estate, without reference to policyholder relationship, and through a channel entirely separate from that through which it issued insurance policies to Georgia residents, doing so merely as part of its general plan of investment, for protection alike to all of its policyholders, and with no other reference to its Georgia insurance business, the loans thus made by the company were not so connected with its Georgia insurance business as to render credits arising therefrom taxable here merely on the theory that they were a part of such insurance business."
The Court went on to hold that the insurance company was conducting a loan business in Georgia and that loans "derived from or used in such business" had a taxable situs in Georgia and could be subjected to ad valorem property taxation without violating the due process clauses of the State and Federal Constitution. However, the Court strictly limited its holding of taxability to loans "derived from or used in" the loan business conducted in Georgia and emphasized that every loan involved was actually negotiated and finally consummated through the insurance company's employee who acted as its loan agent in Georgia at its loan office in Atlanta.
The principle that intangible property of a non-resident held by the non-resident outside this State is not taxable by Georgia unless it accrues out of or is used incident to property located or a business conducted by the non-resident or his agent in Georgia has been recognized in every opinion of the Supreme Court of Georgia which has considered the question. The same rule was enacted as part of the 1937 intangible tax act and now appears in Section 92-121 of the Georgia Code, Annotated, as follows:
"Every ... non-resident person ... is declared to be subject to -the tax imposed in this law on so much of his property . . . as shall have been acquired in the conduct of, or used incident to, business carried on or property located in this State."
On the facts stated in your letter of September 4, 1962, it is clear that the non-resident insurance companies purchasing the Great Southern bonds will acquire them through channels entirely separate from any insurance business or mortgage loan business carried on by them in Georgia and that the bonds will not be derived from or used incident to property owned or business conducted in this State. Therefore, on the basis of the authorities discussed above, it is my opinion that the purchasers will not be liable for annual property tax on the bonds so acquired and held under Section 2 (a) of the Intangible Property Tax Act of 1953 (Section 92-162 (a) of the Annotated Code of Georgia).

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TAXATION-License Taxes (Unofficial)
Any person who operates a billiard or pool room in an incorporated area without having a license therefor pursuant to Georgia Code Ann., Sections 1603-1605 is guilty of a misdemeanor.
October 10, 1962
Honorable Barry L. Jones Alma, Georgia
This is in reply to your letter concerning Georgia Code Chapter 84-16 pertaining to the licensing and regulations of billiard rooms. I understand from your letter that you have been advised that this Code Chapter was repealed in 1951 and that you are of the opinion that this information is incorrect.
The General Tax Act, which was enacted in 1935, (Ga. Laws 1935, pp. 11-72), provided in Paragraph 19 for a State license fee upon each person operating for public use any billiard or pool table. In 1951 the General Assembly enacted the Georgia Retailers' and Consumers' Sales and Use Tax Act and at the same time, but in a different piece of legislation, repealed many of the business occupation taxes (Ga. Laws 1951, pp. 157-175). Section 1 of the Act of 1951 repealed Paragraph 19 of the 1935 General Tax Act which imposed the tax upon operators of billiard or pool tables.
The State business license tax referred to in the General Tax Act of 1935, which was repealed in 1951, was not connected in any way with Georgia Code Chapter 84-16. It is my opinion that any person who operates a billiard room within a city or incorporated town without having applied for a license as provided for in Sections 84-1603 to 84-1605 would be guilty of a misdemeanor (Code Section 84-9924).
I have examined my files and I find no contrary opinions having been expressed by this office.
TAXATION-Motor Carriers' Fuel Tax Act (Unofficial)
Pick-up truck is not normally covered by Motor Carriers' Fuel Tax Act unless it is used or to be used to pull a trailer.
July 16, 1962
Mr. C. H. Bush Pavo, Georgia
This is in reply to your letter of July 12, 1962, asking whe~he~ a pick-up truck is subject to the requirements of the Motor Carners Fuel Tax Act of 1955 (Ga. Laws 1955, Ex. Sess. p. 9).
The requirements of this Act apply to:
"... any passenger vehicle, other than public school buses, that has seats for more than seven passengers in addition to

539
the driver, or any road tractor, or any tractor truck, or any truck having more than two axles."
There is no statutory definition of "tractor truck". However, as we see it, it would include a truck intended, or being used, as a tractor to pull some form of trailer. Therefore, if you plan to use, or are using, your pick-up to pull a trailer of any sort in Georgia, you should register and comply with this Act.
TAXATION-Motor Vehicles (Unofficial)
Property owner required to return for taxes automobile owned January 1, and fact that he later disposes of property or moves from county does not affect tax liability.
May 31, 1962 Mr. John C. Reid Tax Collector Pike County
The Honorable Murray A. Chappell, Director of the Motor Vehicle License Unit, asked that I write you concerning the tax collections on motor vehicles where the owner of the vehicle moves from the county and whether or not we can take advantage of any false statement contained in his new license plate application.
Every resident owner of personal property in this state is required to return same for ad valorem taxes in the county of his legal residence, reporting all property owned by him on January 1st. The fact that he may later dispose of the property that he owned on January 1st would have no effect on his tax liability. The fact that he removes himself and his. property from the county would have no effect upon his tax liability and upon non-payment of taxes when due. You are, of course, authorized as tax collector to issue a fi. fa. for the unpaid taxes.
The Act providing for tax affidavit with application to automobile license tags, Ga. Laws 1955, p. 639, 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 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.

540
TAXATION-Motor Vehicle License Taxes.
Contract carrier of United States mail not exempt from payment of motor vehicle license fees.
June 18, 1962
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter in which you requested my opinion as to a tax exemption in favor of a person who is engaged as a contract carrier of United States mail. Georgia Code Ann., Section 92-2902 provides for the annual fees and licensing and operation of motor vehicles and provides that for each truck or non-passenger carrying motor vehicle operating as a common or contract carrier for hire an annual fee must be paid in accordance with the owner's declared gross vehicle weight. The schedule of fees is based upon the weight of the vehicle as provided in sub-section 10 of that Code Section.
I have reviewed the applicable provisions of the other sections of the Motor Vehicle License Act together with numerous court decisions in this area, and it is my opinion that no exemption is provided by State or Federal law for a contract carrier of United States mail. The courts of the State of Nebraska, in a criminal case concerning the question presented here, held that a vehicle used for the transportation of United States mail is a commercial freight carrying truck and stated with respect to the question of an exemption based upon the carriage of mail:
"... Next the defendant contends that he was not required to have his truck licensed at all under the laws of the State for the reason that he was engaged in the performance of a function of the United States government and that registration would amount to a tax upon the federal government. . . He was engaged as what is commonly referred to as a contract carrier of mail. As such he provided his own transportation vehicles and had full and complete control over their operations." (Aulner v. State, 71 N.W. 2d 305, 160 Neb. 741.)
The State of Washington upheld the validity of a registratio~ tax upon a vehicle used as a contract carrier of United States mail in the case of The State v. Wiles, 116 Wash. 387, 199 p. 740, 18 ALR 1163.
The State of Virginia, in a recent decision concerning the impo~i tion of a gross receipts road tax upon a carrier of United States maild, held that no exemption was available to the person who contracte with the government to furnish such transportation. Crowder V'. Commissioner ex rei State Corp. Commission, 7 S.E. 2d 745, 197 Va. 96; Appeal dismissed, 76 S.Ct. 347, 350 U.S. 957, 100 L. Ed. 832.
The authorities clearly indicate that a contract carrier must paY a license tax upon his vehicle and that he is not entitled to an exe~pd tion from such tax based upon the fact that he transports Umte States mail.

541
TAXATION-Motor Vehicle License Taxes
Italian consular official is exempt from motor vehicle license tax.
September 18, 1962
Mr. Murray A. Chappell, Director Motor Vehicle License Unit State Department of Revenue
This is in reply to your request of September 17, 1962, for an opinion concerning the tax exemptions that might be available for the consular officers from Italy with respect to motor vehicle license taxes.
The laws of this State provide no tax exemptions for the benefit of consular officers from foreign countries but the matter is controlled by Federal treaties with these countries. The United States has a treaty with the Government of Italy which was signed on May 8, 1878 and this treaty is still in force. Article III of the Treaty provides as follows:
"Consular officers, citizens of the State by which they were appointed ... shall be exempt from all national, state or municipal taxes, imposed upon persons either in the nature of capitation tax or in respect of their property unless such taxes become due on account of the possession of real estate or for interest on capital invested in the state in which they reside. If they are engaged in trade, manufacture or commerce, they shall not enjoy such exemption but shall be obliged to pay the same taxes as are paid by other foreigners under similar circumstances." 20 Stat. at Large 725.
If the consular officer is an Italian citizen and is not engaged in some business endeavor here, he is entitled to an exemption from the motor vehicle license tax.
TAXATION-Municipal Corporations (Unofficial)
Municipal corporations cannot make any tax levy unless they are clearly authorized by the legislature to do so, and any such authority is generally contained in their charters.
March 6, 1962
Mr. B. Harold Farmer, City Manager Valdosta, Georgia
This is in reply to your letter requesting information concerning ad valorem taxation by the City of Valdosta of properties owned by public utilities. You indicated an interest in any limits provided by law for such ad valorem levy.

542
There are several provisions of Georgia law concerning Valdosta's authority to levy ad valorem taxes, and I quote the following provisions for your information. Georgia Code Annotated, Section 92-4101 states:
"No municipal corporation shall levy or collect for the ordinary current expenses of said corporation . . . any ad valorem tax upon the property within said corporation, exceeding onehalf of one per cent. upon the value of said property, any charter of said corporation to the contrary notwithstanding: ..."
You should also examine the provisions of Code Section 92-4102 and read the opinion in the case of the City of Waycross v. Tomberlin, 146 Ga. 504, and the opinion in Carson v. the Mayor and Council of Forsyth, 94 Ga. 617.
Municipal corporations cannot, of course, make any levy unless they are clearly authorized to do so and such authority is generally contained only in their municipal charter (Publix-Lucas Theaters, Inc. v. City of Brunswick, 206 Ga. 206).
I have examined the provisions of the charter of Valdosta and find that it was amended in 1955 to provide for ad valorem taxation for all properties owned by all persons and corporations (Georgia Laws 1955, page 3299).
I am sure that you can understand that this is a complicated and technical field of law and you should seek the advice of your city attorney. I hope the information contained in this letter is of some benefit to you and that you will have your city attorney call on us should he need our assistance.
TAXATION-Penalties
Once taxpayer is adjudicated a bankrupt, penalties otherwise due under Sales and Use Tax are not collectible by State.
July 9, 1962
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter requesting my opinion as to the effect of Simonson v. Granquist, decided by the United States Supre_n~e Court on March 5, 1962, on the State's right to collect the specific penalty provided for in Section 16(c) of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360, et seq.), as amended, out of a bankrupt's estate.
The sole question before the Court in the Simonson case, 369 U. S. 38, 7 L. ed. 2d 557, was whether tax penalties constituting perfected liens on the estate of a bankrupt were recoverable against the estatet Consideration of the question by the United States Supreme Cour

543
was made necessary because of a conflict between the Sixth, Ninth and Tenth Circuit Courts of Appeal, on the one hand and the Fourth and Fifth Circuits, on the other, the former permitting recovery and the latter denying it.
In resolving the conflict, the Court rested its decision on Section 57(j) of the Bankruptcy Act, which provides:
"Debts owing to the United States or any State or any subdivision thereof as a penalty or forfeiture shall not be allowed except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose...."
Rejecting the contention of the Federal Government that this Section does not apply to penalties that have ripened into a lien so as to become a charge upon the bankrupt's property, the Court held that it applies to all penalty claims without regard to whether such claims are secured or unsecured. Therefore, once a dealer is adjudicated a bankrupt,- the specific penalty is no longer collectible out of the bankrupt's estate.
The fact that the Sales Tax Act provides that "all penalties . . . imposed by this Act shall be payable and collectible by the Commissioner in the same manner as if they were a part of the tax imposed" would not alter the result. This provision does not have the effect of changing the character of the penalty but merely makes the same means available for collecting the penalty, when collectible, as are available for collecting the tax.
TAXATION-Reciprocity (Unofficial)
Discussion of credits allowed between certain states with respect to payment of sales, use and motor vehicle taxes.
October 3, 1962
Mr. John L. Bolton Waynesboro, Georgia
This will acknowledge receipt of your letter in which, according to my understanding, you state the following:
Some time in June or July of this year your son, who was a resident of Waynesboro, Georgia, at the time, traded his automobile in on a new one, receiving delivery in Millen on or about August 1. At the time of purchase, your son paid a sales tax on the transaction to the State of Georgia and then, or shortly thereafter, paid the Georgia motor vehicle license tax.
Thereafer, on or about August 28, when he moved to Whiteville, North Carolina, he was required to pay a sales tax and a motor vehicle license tax to the State of North Carolina.

544
On the basis of these facts, you ask if your son is entitled to have any of these taxes refunded. Insofar as those paid Georgia are concerned, there can be no refund, in my opinion.
To understand this, a general familiarity with the system of sales and use taxation employed in many states, including Georgia and North Carolina, should be helpful. Under this scheme of taxation, two separate and distinct taxes, although frequently contained in a single statute, are provided for, one being the sales tax and the other the use tax. Generally, the use tax merely complements the sales tax, the latter being the basic tax.
The sales tax, with which the average taxpayer is more familiar, is essentially a tax on the sale of tangible personal property and certain specified services made within the State imposing such a tax. To prevent a loss of revenue and to prevent placing its merchants at a competitive disadvantage with those in states having no sales tax, or taxing such sales at a lower rate, the states, in most, if not all, instances, which have adopted the sales tax have also adopted the use tax. This is a tax, complementary to the sales tax, as mentioned, imposed on the use of property bought at retail outside the taxing state in a transaction which would have been subject to the sales tax had it occurred in the taxing state, after being brought into the taxing state for use therein.
Now, while it is not constitutionally necesary that they do so, generally states having sales and use tax laws grant a credit against the use tax for sales taxes paid on out of state purchases. Usually, this credit is conditioned upon the granting of a similar credit by the state in which the property was bought. Georgia falls in this category, only granting credit on a reciprocal basis.
With the distinction between a sales and a use tax and the fact that your son bought his automobile in Georgia in mind, I am inclined to think that what he was called upon to pay in North Carolina and what you have referred to as a sales tax was actually a use tax. If this is so, it will be necessary for you to consult someone familiar with the sales and use tax laws of that state to determine whether North Carolina allows any credit for sales taxes paid to Georgia. Certainly, there can be no question about your son having correctly paid a sales tax to this State inasmuch as the sale took place in Georgia.
In considering your son's liability for motor vehicle license taxes, you must also bear in mind the nature and purpose of such taxes. They are license taxes enacted for the privilege of operating the particular automobile involved on the highways and streets of the state imposing the tax.
While all states have laws imposing such taxes, they generally permit a person to operate his automobile within their respective boundaries on a temporary basis without registration and licensing provided the vehicle has been validly registered and licensed in the state of the owner's residence. What constitutes a temporary basis,

545
of course, will vary from state to state. In Georgia, the period of temporary use is 30 days.
This provision has no application to a Georgia resident, who must, when he acquires a new or unregistered automobile, register and pay the license tax within three days after the date of acquisition.
So, on the basis of what I have said, I am of the opinionthat your son properly registered and paid the Georgia motor vehicle license tax, as well as the sales tax, due this State. Whether he has used his automobile in North Carolina long enough to be liable to it for the license tax, I cannot say, for, as indicated, that will depend upon the laws of that State.
TAXATION-Sales and Use Tax
Sales of sand removed from realty in ordinary course of business subject to sales tax, and fact that agent of Revenue Department had previously advised seller that such sales were not taxable did not estop Commissioner from asserting rights of State to the tax due.
February 12, 1962
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter requesting that I review your sales and use tax file on T. E. Holmes, d/b/a T. E. Holmes Sand Pit, and advise you whether, in my opinion, it presents any close questions of law.
According to the file, there is a sales and use tax assessment pending against Mr. Holmes based upon retail sales of sand taken from a sand pit owned by him and located near Dublin, Georgia. It is also my understanding that, during the taxable periods covered by the assessment, he was regularly engaged in making such sales; that, on at least one occasion, he was advised by one of your agents that he was not liable for the collection and remittance of sales taxes on these sales; that, on a subsequent occasion, at which time his books and records were audited, he was advised that he was liable and that, on the basis of the audit, the pending assessment was made.
In reviewing the matter, I find that it presents two questions, neither of which I consider to be a close question of law. They are as follows:
1. Is a person regularly engaged in the business of selling sand at retail liable for the collection and remittance of sales taxes under the Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended?
2. If such person is liable, is the State Revenue Commissioner estopped by the actions of one of his agents in giving that

546
person contrary advice from assessing and collecting those taxes which accrue between the date of such advice and the date on which such person is advised that he is liable?
Section 2 of the Act of 1951 (Ga. Laws 1951, p. 360, et seq.), which was in force during the periods involved, imposed a tax on every person who engaged in the business of selling tangible personal property at retail in this State. Section 3(c)3(i), which has never been amended and is still in effect, defines the phrase "tangible personal property" so as to include personal property which may be seen, weighed, felt, or touched, or is in any other manner perceptible to the senses.
Without question, sand is perceptible to the senses, it can be seen, weighed, measured and felt. Therefore, if the sand sold by Mr. Holmes was personal property, it came within the statutory definition of tangible personal property.
Property generally is divided into two broad categories, one known as real property and the other known as personal property. Personal property is further divided into that which is intangible and that which is tangible.
With respect to real property, Georgia Code Annotated, Section 85-201 declares that "[r] ealty or real estate [terms generally considered to be synonymous with the term 'real property'] includes all land and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereon"; Section 85-105 says that any thing detached therefrom becomes personalty (personal property) instantly on being so detached.
The latter Section is subject to this qualification: The detachment or severance must be made by someone having the right or authority to make it. In other words, until the owner, in some way, evinces an intention to change the character of that which naturally forms a part of the realty, it remains realty. Guernsey v. Phinizy, 113 Ga. 898; 73 C. J. S., Property, 11. In the instant case, though, Mr. Holmes, by regularly engaging in the business of selling sand, clearly evinced an intention of converting it into personal property.
Respecting the question of estoppel, the Supreme Court of Georgia, in discussing the question whether the State Revenue Commission was estopped from including certain sales, which his predecessor had excluded from the base of a prior assessment covering the same period, in the base of an assessment made under the Sales Tax Act approved August 29, 1929 (Ga. Laws 1929, pp. 103-117, in Standard Oil Co. v. State Revenue Commissioner, 179 Ga. 371, 376, said:
"The language of the Civil Code 303 [now 89-903], is that 'Powers of all public officers are defined by law, and all persons must take notice thereof. The public can not be estopped by the acts of any officer done in the exercise of a power not conferred.' This court held, in Alexander v. State, 56 Ga. 478 (7), that 'The State can only be estopped from asserting her right to her own property by legislative enactment or reso-

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solution.' The rule was again stated in State v. Paxon, 119 Ga. 730 (46 S. E. 872), and in Booth v. State, 131 Ga. 750, 759 (63 S. E. 502). The language of these decisions and of the Code Section show that the State is bound only by its laws, and every one must take notice thereof and recognize that public administrative officers can not change the laws. Departmental regulations, if in conflict with the laws, must yield.''
In that case, the Commissioner had erroneously excluded certain sales from a tax base by the promulgation of a departmental regulation. If he was not estopped by that action, a fortiori he can not where, as in this case, the action is taken by one of his agents in relation to a single taxpayer.
On the basis of what has been said, the first question is answered in the affirmative; the second, in the negative. Neither is a close question, in my opinion.
TAXATION-Sales and Use Tax
Sales to contractor for Federal Government of property, the title to which passes to Federal Government upon delivery, are not subject to sales tax. However, materials furnished by government to contractor and used up by contractor in performance of services and subject to use tax payable by contractor.
February 13, 1962
Mr. E. J. Olmstead, Director Sales and Use Tax Unit Department of Revenue
This is in reply to your letter concerning the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act to the use of tangible personal property by a contractor in the performance of a Fixed-Price Type, Maintenance, Overhaul and Modification Contract with the United States Air Force.
This type contract, which contains standard general provisions, provides a fixed unit price for the maintenance, overhaul and modification of Federal Government-owned property. This price does not cover materials used. The contractor is required to requisition needed materials from Government stock, but when not in stock, he is authorized to purchase them. If such purchases have to be made, they are made by the contractor as purchasing agent for the Government, with title vesting in the Government upon delivery by the vendor. Once a month, after audit, the contractor is reimbursed for those purchases which he had to make during the preceding month.
Before the 1960 amendment (Ga. Laws 1960, p. 153) to the Act, the Act imposed what has been termed a "vendor type" tax, a tax on persons engaged in the business of selling tangible personal prop-

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erty at retail. Oxford v. J. D. Jewell, 215 Ga. 616. Now as a result of that amendment, the Act imposes a "dual type" tax, that is, a tax on the seller and a tax on the purchaser. Ga. Code Ann., Section 92-3402a.
Having thus placed the legal incidence of the tax on the purchaser, as well as on the seller, and recognizing the immunity of the Federal Government, under the "implied immunity" doctrine, from state taxation, the Legislature expressly excluded" [s] ales to the United States of America . . ." from the definition of a "sale at retail." Consequently, there is no liability on the part of the Federal Government with respect to purchases made by it, and, by virtue of the provisions of the Act relieving the seller from the tax where the sale is not taxable to the purchaser, (Section 92-3402a.), persons selling to the Government are exempt.
Furthermore, under an extension of the "implied immunity" doc: trine, a Government contractor who, by the terms of his contract with the Government, is authorized to make purchases in the name of the Government for use in performing his contract, incurs no sales tax liability. He is, in effect the Government's alter ego. Kern Limerick, Inc. v. Scurlock, 347 U. S. 110, 74 S. Ct. 403.
Since the type contract now under consideration provides that "title to all property purchased by the contractor, for the cost of which the contractor is entitled to be reimbursed as a direct item of cost under this contract, shall pass to and vest in the Government upon delivery of such property by the vendor," I am of the opinion that the contractor acts for the Government in making such purchases and that, in accordance with the Kern-Limerick decision, no sales tax liability accrues thereon.
Although the contractor incurs no sales tax liability as long as he is purchasing for the Government, he does become liable for a use tax on materials furnished him by the Government, whether from stock or from purchases made by him as agent for the Government, and then consumed by him in performing the contract. In this connection, Georgia Code Annotated, 92-3448a provides, in part:
"Any person who contracts to perform services in this State and is furnished tangible personal property for use under the contract by the person, or his agent or representative, for whom the contract is performed and a sales or use tax has not been paid to this State by the person supplying the tangible personal property, shall be deemed to be the consumer of the tangible personal property so used and shall pay a use tax based on the fair market value of the tangible personal property so used and shall pay such use tax on the fair market value of the tangible personal property, irrespective of whether or not any right, title or interest in the tangible personal property becomes vested in the contractors."
Then, Georgia Code Annotated, Section 92-3449a makes this qualification with respect to property furnished by the Government:

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"... nor shall anything contained berein [92-3448a] be construed to impose any sales or use tax with respect to the use in the performance of contracts with the United States of tangible personal property owned by the United States which is not actually used up and consumed in the performance thereof. . . ."
Accordingly, Government furnished property must be used up and consumed before it can form the basis of the use tax.
To sum up, when a Government contractor under a Fixed-Price Type Maintenance, Overhaul and Modification Contract uses up and consumes Government furnished property in performing his contract, although having previously purchased such property as agent for the Government, he becomes liable for a use tax based upon the fair market value of the property so used up and consumed.
TAXATION-Sales and Use Tax
Sales taxability of materials used in Federal Government contract furnished partly by Government and partly by contractor. Use taxability of materials furnished by Government used up and consumed by contractor in performance of contract for services for Government.
February 14, 1962
Mr. E. J. Olmstead, Director Sales and Use Tax Unit Department of Revenue
This is in reply to your letter requesting my opinion concerning the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended, to a contractor who, in the performance of a contract between himself and the Federal Government for the reconditioning and repair of Army aircraft uses materials furnished parly by the Government and partly by himself.
In this connection, Georgia Code Annotated Section 92-3448a, in part, provides :
"Any person who contracts, either orally, in writing or by purchase order, to furnish tangible personal property and perform services thereunder within this State, shall be deemed to be the consumer of the tangible personal property, and shall pay the sales tax, levied by this Chapter at the time of the purchase. Any person so contracting who fails to pay the sales tax thereon at the time of purchase or the sale is consummated without the limits of this State, shall be liable for the payment of the sales or use tax: Provided, this section does not relieve the dealer under this Chapter who made the sales from his liability to collect and pay the tax on purchases by a contractor."

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Therefore, under the 'terms of this section, the contractor is required to pay a sales tax at the time of purchase on all materials furnished by him, if purchased in this State. With respect to materials purchased outside this State, he is liable for a use tax when they are brought into this State and used in performing the contract, less any credit he is entitled to, under Georgia Code Annotated, Section 92-3412a, for taxes paid at the time of purchase.
Georgia Code Annotated, Section 92-3448a provides further:
"Any person who contracts to perform services in this State and is furnished tangible personal property for use under the contract by the person, or his agent or representatives, for whom the contract is performed and a sales or use tax has not been paid to this State by the person applying the tangible personal property, shall be deemed to be the consumer of the tangible personal property so used and shall pay a use tax based on the fair market value of the tangible personal property so used and shall pay such use tax on the fair market value of the tangible personal property, irrespective of whether or not any right, title or interest in the tangible personal property becomes vested in the contractors."
According to this provision, the contractor is liable for a use tax, based upon fair market value, on those materials furnished by the Government. There is this qualification, however; the materials must be actually used up and consumed in the performance of the contract. Georgia Code Annotated, 92-3449a provides, in part:
"... nor shall anything contained herein [92-3448a] be construed to impose any sales or use tax with respect to the use in the performance of contracts with the United States of tangible personal property owned by the United States, which is not actually used up and consumed in the performance thereof. . . ."
TAXATION-Sales and Use Tax
Discussion of extent to which Georgia obligated to give credit for sales or use taxes paid to Mississippi on tangible personal property brought from that state into Georgia for use, consumption, distribution or storage.
March 22, 1962
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter requesting my opinion as to the extent Georgia is obligated to give credit for sales or use taxes paid to the State of Mississippi on tangible personal property brought from that state into Georgia for use, consumption, distribution or storage.

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In this connection, Ga. Code Ann., Section 92-3402a, as amended, provides in part:
"There is hereby levied and imposed, in addition to all other taxes of every kind now imposed by law, a tax on the ... storage, use or consumption of tangible personal property . . . to be collected at the rates and in the manner herein after 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 percent of the cost price or fair market value thereof, whichever is the lesser: Provided there shall be no duplication of the tax and subject to the credit hereinafter authorized for like taxes previously paid in another state.
" (c) Upon the first instance of use within this state of tangible personal property leased or rented outside this state, the lessee or rentee thereof shall be a dealer hereunder and be liable for a tax at the rate of three percent of the rental charge paid to his lessor or rentor on account of the rental thereof, subject to the credit hereinafter authorized for like taxes previously paid in another state."
Ga. Code Ann., Section 92-3412, which makes provisions for the credit referred to in the above Section, provides:
"The provision of this Chapter [92-3402a] shall not apply in respect to the use or consumption, or distribution, or storage of tangible personal property for use or consumption in this state upon which a like tax equal to or greater than the amount imposed by this Chapter has been paid in another state, the proof of payment of such tax to be according to rules and regulations made by the Commissioner. If the amount of tax paid in another state is not equal to or greater than the amount of tax imposed by this Chapter, then the dealer shall pay to the Commissioner an amount sufficient to make the tax paid in the other state and in this state equal to the amount imposed by this Chapter. No credit shall be given under this section for taxes paid in another state if that state does not grant like credit for taxes paid in Georgia."
From this you can see that the credit granted by Section 92-3412a against taxes imposed by Section 92-3402a (b) and (d) depends upon reciprocal credit being granted for taxes paid the State of Georgia. For credit granted by Mississippi, reference is made to Section 4 of the Mississippi Use Tax Law (Prentice-Hall State and Local Tax Serv., Miss. ,-r22,506), which, insofar as pertinent, provides:
"The tax levied by this Act [the use tax] shall not be collected in the following instances:

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(a) On the use, storage or consumption of any tangible personal property or service if the sale thereof . . . has already been included in the measure of a sales or use tax imposed by some other state. If the rate of sales or use tax paid another state by the person using the property in Mississippi is not equal to or greater than the rate imposed by this Act, then the user or purchaser shall apply the difference in these rates to the purchase price or value of the property, and pay to the commissioner the amount of tax thus computed. Provided, however, that credit for sales or use tax paid to another state shall not apply in the following instances:
"(1) On the use of motor vehicles, or the rental thereof acquired outside this state.
"(2) On the rental paid in another state for the use or possession of tangible personal property used in Mississippi.
"(3) On the purchase price of tangible personal property or service to be erected, applied or installed in this state when the income for such activities is not taxed by the Sales Tax Law.
"(4) On the purchase price of tangible personal property that has been only stored or warehoused in the other state, and not purchased in said state, and the first use of the property occurs in Mississippi.
"(5) On the use of any tangible personal property, the cost or value of which has been determined on a formula basis as distinguished from the direct accounting of specific properties.
"(6) On the cost or value of any property imported into this state for lease or rental by the importer to anyone exempt by Section 4 (c) of the Sales Tax Law, being sales to the Government."
It should be noted that I have found nothing to indicate that the Mississippi credit provision, whose generality, incidentally, seems to be limited only by the exceptions set out therein, is based on reciprocity. So, in those situations where Mississippi law would allow credit for sales or use taxes paid another state, the taxpayer would be entitled to credit irrespective of whether or not the other state would grant credit in reciprocal situations for taxes paid Mississippi.
Since this is true, it will be necessary for you to examine each application for credit in respect to a particular transaction and determine whether a reciprocal transaction would come within one of the exceptions. If it would, then credit would have to be denied.
As you can see, the last exception, due to the fact that Georgia and Mississippi have different sales and use tax structures, can be eliminated from consideration. For example, Georgia does not impose a tax on persons who lease tangible personal property to the Federal, State, County or Municipal governments and so where no tax is due there is nothing against which a credit could be applied, even if one were available.

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TAXATION-Sales and Use Tax
Food for bees kept for production of honey not exempt from sales tax since bees not considered "livestock" within legislative intent in granting exemption.
April 2, 1962
Mr. Dixon Oxford Commissioner Department of Revenue
This is in reply to your letter requesting my opinion as to whether the purchase of sugar for use as food for bees kept for the production of honey is taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360 set seq.), as amended.
In this connection Section 2, insofar as pertinent, of the Act, as amended, provides as follows:
"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:
"(a) Every purchaser of tangible personal property at retail in this State shall be liable for a tax thereon at the rate of three per cent of the sales price thereof. Said tax shall be paid by the purchaser to the retailer making such sale, as hereinafter provided, and said retailer shall remit same to the State Revenue Commissioner, as hereinafter provided, and when received by the State Revenue Commissioner it shall be a credit against the tax imposed hereinafter on said retailer. Every person making a sale or sales of tangible personal property at retail in this State shall be a retailer and a dealer as defined in this Chapter and shall be liable for a tax thereon at the rate of three per cent of such gross sale or gross sales, or the amount of taxes collected by him from his purchaser or purchasers, as hereinabove provided, whichever is greater: Provided, however, that no retail sale shall be taxable to the retailer or dealer which is not taxable hereunder to the purchaser at retail."
Thus, the Act now imposes a tax on the purchaser and seller in all retail sales of tangible personal property taking place in this State, unless otherwise provided therein. After positively defining in Section 3 (c) 1 the term "retail sale" or "Sale at retail" as they appear in the Act, Section 3 (c) 2 (b) provides that these terms shall not include the following:
"(b) Fertilizer which is applied to land for the growing of crops, seed or insecticides used for agricultural purposes, or feed for livestock and poultry."
Since I find no other provision of the Act which, in my opinion, could constitute the basis for an exemption for the sale of sugar

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under the above circumstances, the answer to your question depends upon the meaning the Legislature intended to give the word "livestock" as it appears in the portion of the Act just quoted.
To arrive at the Legislature's intention, consideration must be given to two rules of statutory construction which seem to be applicable. First, as was stated in Oxford v. Jewell, 215 Ga. 616, "The exemption from taxation must be strictly construed, and the exemption will not be conferred unless the terms under which it is granted clearly and distinctly show that such was the intention of the legislature. Mayor & C. of Macon v. Central Railroad & Banking Co., 50 Ga. 620; Cherokee Brick & C. Co. v. Redwine 209 Ga. 691, 693". Second, "the ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject matter . . ." Code Section 102-102 (1).
With these principles in mind, I have noted that the term "Livestock"is a comprehensive term incapable of a precise definition that would apply in any and all situations in which it is used. Even Webster has defined it differently in different editions of the dictionary.
In the latest edition, Webster's New Int. D. (3rd ed.), it is defined as "animals of any kind kept or raised for use or pleasures, esp. meat and dairy cattle and draft animals." This being by far the broadest defintion encountered, would seem to include all animals, whether wild or domestic, whether raised and maintained for profit or pleasure, or whether kept on the farm or elsewhere. A less comprehensive definition appears in Webster's New Int. D. (2nd ed.). There its meaning is restricted to domestic animals used or raised on a farm, esp., those kept for profit."
Not a great many courts have dealt with the term, but of those that have, most have adopted the view disclosed by the following excerpt from Collins v. Moyle, 358 P2d 1035, 1036:
"This court held [in Meader v. Unemp. Comp. Div. 136 P2d 984, 987] that 'livestock' is quite commonly thought of as inincluding only the more ordinary forms of domestic animals, such as cattle, sheep, hogs and horses; that the term 'livestock' used in its generic sense would include all domestic animals, which, it may be conceded would include domestic trout; but the addition of 'bees and poultry' to the term 'livestock' indicates that the legislature did not use the word 'livestock' in its generic sense, but rather in its popular sense; and that so used it included only the more ordinary forms of domestic animals and did not include domestic trout."
Following the reasoning in the Collins case and considering the principles of statutory construction aforementioned, the context in which it appears and the subject matter, a tax exemption, to which it relates, I am of the opinion that the Legislature, in this instance, intended to give the term its popular meaining, thereby restricting the exemption to the sale of food bought for those domestic animals ordinarily kept and raised on a farm as part of an agricultural pursuit

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engaged in for profit, such as horses, mules, cattle, swine, sheep, goats, etc. Inasmuch as bees do not fall into this classification, food bought for them is taxable.
TAXATION-Sales and Use Tax
Purchases of the Southern Interstate Nuclear Board are equivalent to purchases made by State and are exempt from sales and use taxes.
April 10, 1962
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter in which you requested my opinion as to the liability of the Southern Interstate Nuclear Board to pay the tax imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act, as amended.
At its 1962 Session, the General Assembly passed House Bill No. 745, which embraced the Southern Interstate Nuclear Compact, a compact between those states whose chief executives belong to the Southern Governors Conference. The purposes of the Compact are to provide the instruments and framework for a cooperative effort to improve the economy of the South and contribute to the individual and community well being of the region's people, with particular emphasis on the proper employment of nuclear energy, facilities, materials and products.
To effectuate these purposes, the Compact created, as an agency of the member-states, the Southern Interstate Nuclear Board which, except as to name and manner of creation, is substantially the same as its predecessor, the Regional Advisory Council on Nuclear Energy. It should be noted that in carrying out the duties imposed on it by the Compact, the Board, like the Council before it, performs functions of the member-state governments, the financing of which is principally by legislative appropriations. Furthermore, to insure proper performance of its duties, the Board is required to make a report, including an audit of all its receipts and disbursements annually on its activities to the executive and legislative branches of member-state governments.
Having studied House Bill No. 745 in detail and having compared the Board's purposes, organization and methods of operation with those of the Council, I am of the opinion that what was formerly the result of executive action (the Council) is now the result of legislative action (the Board). Accordingly, the purchases of the Board and its various sub-agencies are equivalent to purchases made by the State and are exempt under Section 3 (c) 2 (d) of the Act, as amended.

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TAXATION-Sales and Use Tax
Manufacturer who buys advertising materials outside state, ships them directly to dealers, at no cost to dealers, with dealers using them to promote local sales, is liable for Georgia use tax on such materials.
May 2, 1962
Mr. Dixon Oxford State Revenue Commissioner
This is in reply to your letter requesting an official opinion as to whether an automobile manufacturer who buys advertising materials outside this State, has them shipped directly to its dealers in this State, at no cost to its dealers, and then uses them, through such dealers, in promoting local sales of its automobiles is liable for the Georgia use tax.
In this connection, the Georgia's Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360, et seq.), as amended, imposes, inter alia, a tax on the owner or user of tangible personal property purchased at retail outside this State upon the first instance of its use, consumption or distribution in this State at the rate of three per cent of the cost price or fair market value thereof, whichever is the lesser. Ga. Code Ann., Section 92-3402a (b).
A credit against such tax is granted where a sales or use tax has been paid to another state provided the state to which payment was made grants credit for like taxes paid this State. Code Section 92-3412a. A "sale at retail" is defined by the Act as being a "sale ... for any purpose other than resale." Code Section 92-3403aB (1).
Since the materials are bought outside the State for purposes other than resale and are brought into this State for use by the manufacturer, acting through its dealers, in exploiting the automobile market in this State, the manufacturer is, in my opinion, liable for the Georgia use tax, subject to any credit it may be entitled to for taxes paid another state. See United States Gypsum Company v. Green, 110 So. 409.
You do not state how the materials are brought into this State, but, assuming that they come in in interstate commerce, my opinion is the same. For things acquired or transported in interstate commerce may be subjected, when they have come to rest and become a part of the common mass of property in this State, to a nondiscriminatory tax upon their use or enjoyment. Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 267, 53 S. Ct. 345, 349, 77 L. ed. 730; Southern Pacific Co. v. Gallagher, 306 U. S. 167, 59 S. Ct. 389, 89 L. ed. 586; Edelman v. Boeing Air Transport, Inc. 289 U. S. 249, 252, 53 S. Ct. 591, 592, 77 L. ed. 1155; Pacific Tel. & Tel. Co. v. Gallagher, 306 U. S. 182, 59 S. Ct. 396, 83 L. ed. 595.
In light of the aforementioned credit provisions and the identity of the sales and use tax rates, it can not be said that the Act discriminates between interstate and intrastate commerce. The tax burden on the taxpayer is the same whether it acquires the materials locally or

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outside the State and then transports them in through interstate commerce channels. Equality is the Act's theme.
In fact, Georgia's use tax was designed to cover a situation like this. As just indicated, it complements the sales tax by applying to the privilege of using property within this State which would have been subject to the sales tax had it been purchased within the State. Williams v. Suwanee Longleaf Mfg. Co., 97 Ga. App. 431.
As stated, I am of the opinion that the manufacturer is liable for the use tax under the circumstances outlined herein.
TAXATION-Sales and Use Tax (Unofficial)
Baler twine subject to sales and use taxes unless bought as "industrial material" for use in packaging tangible personal property for shipment or sale.
May 3, 1962
Russell Daniel, Inc. Athens, Georgia
This is in response to your letter concerning the applicability of the Georgia Sales and Use Tax Act to the sale of baler twine.
I infer from your letter that you are under the impression that this office has rendered an opinion to the effect that sales of baler twine are exempt and that you would like to have a copy of it. Please be advised that I cannot find where I have ever rendered such an opinion.
However, it is my opinion that the sales tax must be collected on all sales of baler twine except when the twine is bought as an "industrial material" for use in packaging tangible personal property for shipment or sale.
In order to avail himself of the exemption, the industrial user must furnish the seller with an exemption certificate obtained from the State Revenue Commissioner.
TAXATION-Sales and Use Tax (Unofficial)
Filtering cloths used in manufacturing processes are not exempt from application of sales and use tax.
June 18, 1962
Mr. R. M. Hitch Savannah, Georgia
This is in reply to your letter, dated June 11, 1962, requesting a copy of my opinion dated May 30, 1951, concerning the application of

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the Georgia Retailers' and Consumers Sales' and Use Tax Act (Ga. Laws 1951, p. 360 et seq.) to filtering cloths.
At the time that that opinion was rendered, Section 3(c)2 of the Act expressly excluded from the terms "sale at retail", "use", "storage", and "consumption", all industrial materials other than machinery. and machinery repair parts that were used directly in the fabricating, converting or processing of articles of tangible personal property or parts thereof for resale. It was on the basis of this provision that the opinion, which concluded that filtering cloths were exempt as industrial materials, was rendered.
Since then, however, the General Assembly, by an amendment to the Act( Ga. Laws Jan.-Feb. Session 1953, p. 194) has repealed that provision, substituting the following language therefor:
"Nor shall such terms include industrial materials, other than machinery and machinery repair parts, that are coated upon or impregnated into the product at any stage of its processing, manufacturing, or conversion."
To be entitled to an exempt status, the material must be "coated upon or impregnated into" the finished product.
Since filtering cloths used in the production of cottonseed oil, meal, cake or similar oils, meals and cakes produced from peanuts, soya beans and other like oil bearing seeds, beans or nuts are not "coated upon or impregnated into" the end product, I am of the opinion that they are no longer exempt as industrial materials.
TAXATION-Sales and Use Tax
Textile Education Foundation, Inc. liable for sales taxes on purchases of textile machinery for Georgia Institute of Technology.
August 3, 1962
Dr. Harmon W. Caldwell, Chancellor University System of Georgia
This is in reply to your letter concerning the application of the Georgia Sales and Use Tax Act (Ga. Laws 1951, p. 360, et seq.), as amended, under the following circumstances:
On the basis of your letter and its enclosures, I assume that, for some time, the Textile Education Foundation, Inc. has been purchasing and giving textile machinery and equipment to the Georgia Institute of Technology for use in its A. French Textile School; that the Foundation has been paying sales taxes on these purchases, but noW desires to work out an arrangement with the school under which the Foundation would, in the opinion of its officers, be able to make such purchases tax free in the future; that under a proposed arrangement, having as its sole purpose the accompishment of this end, the Founda-

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tion would be called on to serve, for the nominal consideration of $1.00 per year, as the school's purchasing agent in making such purchases; that these purchases would still be paid for out of Foundation funds.
The question all this poses is whether the Foundation would be required to pay sales taxes on purchases made under such an arrangement.
The Foundation's proposal presupposes that purchases made by the school (more accurately the Regents of the University System of Georgia) are exempt under the Act. Without expressing an opinion on the validity of this presupposition, but assuming it to be valid for the purpose of considering the present problem, I am of the opinion that purchases made under an arrangement such as the one outlined above would be subject to the sales tax.
Such a plan or scheme, having no purpose other than the express one of evading the payment of taxes, would be a sham and a subterfuge which the law would disregard. Gregory v. Helvering, 293 U. S. 465, 55 S. Ct. 266, 79 L. Ed. 596. To give effect to this scheme would be to exalt artifice above reality and rob the statutory exemption, ex-' empting sales made to the State of Georgia, of all serious purpose. That which is substance would be made to yield to form.
While I am aware that ordinarily motive is not controlling in a transaction planned for tax avoidance purposes, the rule is subject to an exception; there must be some authentic object other than the defeat of a tax.
To sum up, even if the Foundation's plan should be put into effect, the Foundation would be liable for the tax for, in reality, it would still be the purchaser.
TAXATION-Sales and Use Tax
Where contractor on highway project uses raw materials from roadway in construction of highway, they are not subject to sales and use tax; provided, that where subcontractor processes materials for contractors use, such processed materials are subject to tax.
October 5, 1962
Mr. Jim L. Gillis, Sr., Chairman State Highway Board of Georgia
This is in reply to your letter concerning the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, pp. 360, et seq.), as amended, under the following circumstances:
Under Article 4.07, Standard Specifications for the Construction of Roads and Bridges for the State Highway Department of Georgia, a contractor contracting for the construction of such a road or bridge,

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with the approval of the State Highway Engineer, may use in such construction material found in the roadway or excavation for the bridge, if the material meets the specifications applying to it. I understand that, in the past a number of contractors, electing, under this provision, to use stone found in the roadway in the performance of their contracts, have subcontracted with a third party for its crushing, grading, and processing to a more suitable form.
The question you raise is whether the contractor, incurs any liability as a user or consumer of these materials, taken without cost from the roadway.
In my opinion, no liability is incurred when the materials are made available by the Highway Department to the contractor. I think the second paragraph of Section 4 (a), added by the 1955 Amendment (Ga. Laws 1955, pp. 389, 390), was not intended to apply to tangible personal property created by the contractor's severance from the realty under the above circumstances.
However, once the stone, sand, gravel, etc., are severed from the realty they constitute tangible personal property in the hands of the contractor, and, to the extent he subcontracts their further crushing, grading and processing to a more suitable form, the charge made by such subcontractor is subject to a 3% tax against the subcontractor as a dealer, or against the contractor as a user. This is because of the operation of that part of Section 3 (b) which includes in the definition of "sale":
". . . the fabrication of tangible personal property for consumers who furnish, either directly or indirectly, the materials used in fabrication work. . . "
TAXATION-Sales and Use Tax
Sales tax on materials must be paid by contractor even though State work is being done, where contract is for services including materials.
October 15, 1962
Mr. T. B. McDorman Assistant Supervisor of Purchases
This office has received your letter of October 4, 1962, requesting advice as to the deduction of three per cent (3%) of the total cost of a bid to furnish and install an acoustical tile ceiling at Valdosta State College. The proposal made by the Acousti Engineering Company was "to furnish and install" the specified ceiling "for the sum of $353.00". The proposal also contained the statement that "this contract proposal includes State sales tax".
Apparently you are maintaining the position that the amount of the State sales tax should be deducted inasmuch as the State does

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not pay sales tax on its own purchases and in this you are correct. However, the facts presented by the file indicate that more than the purchase of material was contemplated by the purchase order.
The contract proposal was to furnish and install a particular ceiling which places the contract in the category of a service contract rather than one for the purchase of goods or materials. As such, the provisions of Georgia Code Section 92-3448 (a), which Mr. Montgomery has quoted in his letter, would pertain. Under existing law and regulations, the contractor was liable for the three per cent (3%) Georgia sales tax on materials used in making the ceiling installation even though the job was performed on behalf of the State.
TAXATION-Sales and Use Tax (Unofficial)
Drying and cleaning of peanuts is a service which is not taxable under Georgia Sales and Use Tax Act.
October 30, 1962
Mr. Stephen Pace Americus, Georgia
This is in reply to your letter concerning the application of the Georgia Sales and Use Tax law to transactions involving the drying and cleaning of peanuts.
It is my opinion, based upon the facts contained in your letter, that the drying and cleaning of peanuts, as is customarily practiced in this State in present farm operations, is a service. The Georgia Retailers' and Consumers' Sales and Use Tax law imposes a tax only upon the services that are described in the Act and the drying and cleaning of peanuts is not described in the Act as a taxable transaction or service.
TAXATION-Sales and Use Tax (Unofficial)
Imposition by political subdivision of tax on users of electricity, gas or telephone services would be in violation of Sales and Use Tax Act.
November 29, 1962
The Honorable Frank 0. Downing Senator, 1st District Savannah, Georgia
This is in reply to your letter of November 26, 1962, in which you asked for my opinion as to whether or not a tax might be imposed by a political subdivision of the State upon the users of electricity, gas or telephone services. Georgia Code Ann., Section 92-3403a, in providing for definitions under the provisions of the Georgia Re-

562
tailers' and Consumers' Sales and Use Tax Act, specifies that retail sale means a sale of the property or services which, under subsection (a), includes natural and artificial gas, electricity, and local telephone services. The State therefore imposes a tax on the transactions that you consider imposing tax upon even though the state excise tax is more general in its coverage than your proposed legislation.
Georgia Code Section 92-3446a provides:
"No county, municipality, school district or political subdivision of the State, shall impose, levy, or collect a gross receipts, sales or use tax, or tax on amusement admission or services included in this Chapter: "Provided, however, that the provisions of this section shall not be construed to apply to a fixed license, occupational or franchise tax based on gross receipts or on a gross receipts basis and provided further that no county or municipality shall be prohibited from levying or collecting an excise tax on malt beverages and/or wine."
It is my opinion that your proposal would be in violation of the provisions of the Georgia Sales and Use Tax Act.

TAXATION-Sales and Use Tax (Unofficial)

Medications bought at retail to be later administered to poultry are subject to sales and use tax no matter how later administered.

Mr. Abit Massey Georgia Poultry Federation, Inc.

December 28, 1962

This is in reply to your letter dated December 20, 1962, relating to the application of the Georgia Retailers' and Consumers' Sales and
Use Tax Act to the purchase by poultrymen of medications which are mixed in the poultry's drinking water.

According to your letter, you are of the opinion that there is some analogy between medications that ar~ mixed with poultry feed before the feed is purchased by poultrymen and medications that are bought
as such and then mixed with water. I regret that I am not able to
come to the same conclusion.

As you no doubt know, the Act contains no provision exempting medi.cations of any kind. While it is true that medications which are mixed with poultry feed in the process of preparation for sale do not bear the tax, this is so only because they lost their identity as such and became an indistinguishable element of the feed. Medications sold as such at retail are subject to the tax under the present law, in my opinion, regardless of how they may be administered later.

The situation you present is more closely analogous to the situation where the poultrymen buy feed and medication, separately, and then mix them before feeding them to their poultry flocks. Clearly, the medications would be subject to the tax under such circumstances.

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TAXATION-Tax Assessor's Office (Unofficial)
Discussion of record-keeping requirements of consolidated County Tax Assessor's Office.
December 18, 1962
Honorable Millard A. Beckum, Mayor City of Augusta
This office, on behalf of Mr. C. G. Campbell, is more than happy to answer your questions concerning the setup of your new consolidated Tax Assessor's office.
You ask if it is necessary to use different colored forms for white and colored. The tax digest in its completed form is used by the State Revenue Commissioner to furnish certain statistical reports to the Governor and other various branches of the State Government. These reports are broken down by race. The law requires that the State furnish to the respective counties the "tax return forms" as well as the "digest" forms. Because of the necessity of compiling certain reports, it has been a traditional requirement that taxpayers be designated by race initially upon the tax return form. It has also been a traditional requirement that separate digests for white and colored be maintained in each county.
Therefore, I respectfully suggest that it is necessary that the tax returns for all taxpayers must clearly designate as either colored or white the race of the respective taxpayer. I am of the opinion also that the returns for white and the returns for colored should not be merged into one continuous file. I am of the opinion that our State law presently requires separate digests for white and colored.
You ask if the county may break down the various categories as they now appear in the digest and eliminate some detail. It is, by State law, the duty of the State Revenue Commissioner to review and approve the digests from the respective counties in order to ascertain whether the tax valuation of the various classes of property, as made in the respective counties, is reasonably uniform as between the respective counties. In order for the State Revenue Commissioner to perform this duty it is necessary that the various classes of property be uniform throughout the State. This end is achieved by the State furnishing standardized forms for both returns and digests. This does not mean that no details can be eliminated from the present digest. It does mean, however, that any elimination or consolidation of the present classification must be approved by the State Revenue Commissioner through the office of Mr. C. G. Campbell.
I am of the opinion that other than those forms required by law to be furnished to the respective counties by the State (e.g., "returns" and "digests"), the State may not help to defray the ordinary and recurring costs and expenses of property tax administration within the counties. It would follow that if the "continual machine forms" about which you ask are either "return forms" or "digest forms" they may be supplied by the State if they meet the minimum standardization requirements. On the other hand, if it is an ordinary expense of

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the office, the State is not in a position to reimburse any portion of the cost.
The homestead exemption cards are by law furnished by the State to the respective counties not later than February 1 of each year.
The owner of a residence claimed as a homestead which is actually occupied by the owner as a residence and home shall not have to apply for the exemption but one time so long as such owner remains in continuous occupation of such residence as a home, but such exemption shall ordinarily be renewed from year to year so long as such owner continues to occupy such residence as a homestead.
It is my opinion that one signature and declaration is not sufficient to return personal property and at the same time make application for the personal property exemption. The law appears to be specific on this point. It says that the personal property exemption shall not be allowed until there is on file a written application and schedule. Please note that the form for this application is one of those forms required by law to be furnished by the State to the counties.
As a general rule, county tax returns are matters of public record. It would be necessary for me to know for what purpose they were to be copied before I could render an opinion as to whether or not it was proper for them to be so copied.
Mr. Ed Olmstead, Director of the Sales Tax Unit in the State Revenue Department, advises me that his accounting department makes a monthly sorting of sales tax certificates according to counties. Mr. Olmstead advises me that if you will contact him directly, he will be most happy to cooperate and supply you the information desired.
TAXATION-Tax Liens (Unofficial)
Where taxpayer has outstanding fi. fas. covering both real and personal property, a lien holder on real property may pay proportionate taxes on real property and release tax liens even though property is last parcel owned by taxpayer.
November 8, 1962
Mr. Billy W. Dasher Tax Commissioner Lowndes County
As I understand your question as originally directed to Mr. C. G. Campbell, you wanted an answer to the following:
"Where a taxpayer has outstanding and unpaid tax fi. fas. of record covering both real and personal property ; and a lien holder holding a lien on the real property (which lien was already in existence at the time the various tax liens attached) makes a proper tender of payment covering only the delinquent

565
taxes on the real property, are you required to accept this payment and execute a release of the real property from all tax liens where the real property is the last remaining parcel owned by the delinquent taxpayer?"
I respectfully cite the case of Aldridge, Tax Collector et al. v. Federal Land Bank of Columbia, 203 Ga. 285. In this case, it was held that the lien holder was entitled to pay the proportionate taxes on the real property and secure a release from all outstanding tax liens even though the real property was the last parcel owned by the taxpayer.
TAXATION-Time (Unofficial)
Where calendar date rather than number of days determines deadline for taking action, fact that last day is on Saturday or Sunday immaterial.
March 27, 1962
Mr. John W. Sognier Chatham County Attorney
This is in reply to your letter concerning the last day for purchasing motor vehicle license plates and the last day for returning property taxes. March 31st falls on a Saturday and April 1st falls on a Sunday.
Ga. Code Ann., Section 102-102, subsection 8, provides:
"When a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on Saturday or Sunday, the party having such privilege or duty, shall have the following Monday to exercise such privilege or to discharge such duty. (Acts 1958, pp. 388, 389.)"
The Court of Appeals, in the case of Chevrolet Parts Division, General Motors Corporation v. Harrell 100 Ga. App. 280, held that this subsection applied to situations where a number of days is prescribed for the exercise of a privilege or the discharge of a duty.
Ga. Code Ann., Section 92-6201 provides:
"Time for making tax returns.-The several tax receivers shall open their books for return of taxes on the first day of January and shall close same on the first day of April of each year."
Ga. Code Ann., Section 68-201 provides in part:
"Every owner of a motor vehicle, . . . shall, on or before the first day of April in each year, . . . register such vehicle. ."

566
It is my opinion that the provisions of Code Section 102-102 (8) have no application to either the returning of property for taxes or the purchase of motor vehicle license plates.
TAX COLLECTORS, COMMISSIONERS AND RECEIVERSClerical Assistance (Unofficial)
Money authorized by legislation for compensation of clerical assistants to Tax Commissioner cannot be used for any other purpose.
March 26, 1962
Honorable Knox Bynum Clayton, Georgia
We are glad to receive your letter asking for our interpretation of the provisions of Acts 1956, Volume Two, pp. 2138, 2139. This Act amends Acts 1953, Nov.-Dec. Sess., pp. 2308, 2312. The 1953 Act created the office of Tax Commissioner in your county and put him on a salary of $4,800.00 per year. It also provided that he might employ clerical assistance, which clerical assistance, however, should be paid by the said Tax Commissioner from his own personal funds, and which should not be a charge against the County of Rabun.
We note that the notice of local legislation dated December 14, 1955 published in the Clayton Tribune, the official newspaper of Rabun County, contained language as follows: "There will be introduced in the next Session of the General Assembly of Georgia, convening on January 9, 1956, an amendment to the law which created the office of the Rabun County Tax Commissioner which will, in effect, allow said Tax Commissioner the additional sum of $1,200.00 per annum for the compensation of a clerk in the said office."
Pursuant to the above notice the 1956 Act was passed which specifies the salary of the Tax Commissioner to be $4,800.00 per annum, payable monthly from the general funds of Rabun County. He is also authorized to employ clerical personnel to aid him in the performance of the duties of his office as in his discretion he may deem necessary and proper, and said clerical personnel shall be paid by the said Tax Commissioner from a fund of $1,200.00 to be furnished each year by the County of Rabun to said Commissioner for the exclusive pur pose of paying said clerical help. (Underscoring ours.)
Your attention is called to the provisions of Code of Ga. A~n., 102-102, Construction of Statutes, (9) which includes the followwg provision: "In all interpretations the courts shall look diligentl;y for the intention of the General Assembly, keeping in view, at all tim.es, the old law, the evil and the remedy." The notes to this Code sectiOn include reference to many cases which hold generally that whenevert the statute is clear and unambiguous, it will be held to mean wha has been clearly expressed. In the case of Standard Oil CompanY of

567
Ky. v. State Revenue Commission, 179 Ga. 371, 373, the court held that whenever the language of the statute is plain, it is not open to construction. Acts providing for courts and salaries are to be strictly construed. Aycock v. Subers, 73 Ga. 807.
Please note that the provision of the Acts of 1956 contains language which appears to be conclusive of the intent of the General Assembly that the $1,200.00 if spent is to be spent for a clerk as provided for in the published notice. We, therefore, do not believe that it would be appropriate to convert this money to be paid to the Tax Commissioner for any purpose other than the purpose specified in the Act.
TAX COLLECTORS, COMMISSIONERS AND RECEIVERSCommissions (Unofficial)
Six percent commission allowed Tax Commissioner on tax collected on long-term notes secured by real estate applicable even where portion of tax revenues used for school purposes.
February 13, 1962
Mr. J. Archie Johnson Tax Commissioner, Chatham County
This is in reply to your question concerning the proper method of computing commissions under the provisions of the revenue laws taxing long term notes secured by real estate. Your letter was addressed to Mr. C. G. Campbell of the Department of Revenue, but because of the legal questions as to commissions on the school's portion of the collected taxes, he has asked that I furnish you with my opinion.
Ga. Code Ann., Section 92-168 provides:
"Each tax collector or tax commissioner in this State shall make a report to the State Revenue Commissioner, on forms prescribed by him, on the first day of each month, of all sums collected under this law [ 92-161 through 92-184] for the preceding month, showing the principal amount of the note, the date of execution, and the maturity date of the note as disclosed from the face of the security instrument to be recorded, and the tax collector or tax commissioner shall retain six per cent. of the tax collected as compensation for his services in collecting this tax. All such taxes shall be deemed to have been collected by the tax collector or tax commissioner in his official capacity, and failure to collect and distribute as provided by law shall constitute a breach of official duty, and of the official bond of such tax collector or tax commissioner. In each county in which the tax collector or tax commissioner is on a salary, the six per cent. allowed by this section as compensation shall be paid into the county treasury and become county property. The long term notes secured by real estate upon which this tax is imposed shall not be placed upon the property tax digest pre-

568
pared and maintained by the tax receiver. It is the intention of the General Assembly that the six per cent. commission permitted under this law for collection of this tax by the tax collector or tax commissioner and distribution thereof shall be the only compensation permitted to any county official with respect to this tax: Provided, however, that in counties having a population of more than 300,000 according to the last or any subsequent United States census, the commission allowed under this law as compensation to the tax collector or tax commissioner shall be four per cent." (Emphasis added).
The clear intent is, of course, to compensate the person collecting this tax at the rate of 6% and the only question is whether the school
commission rate of 2;,1!% must be applied to the part collected and
distributed to the school authorities. The provision as to this rate of compensation is found in Code Section 32-1106 which provides, in part:
"... He shall also collect all county school taxes levied under the authority of Article VIII, Section XII, Paragraph I [Section 2-7501] of the Constitution of this State, upon which
collections he shall receive a commission of 2% per cent. . . ."
Article VIII, Section XII, Paragraph I, of the Constitution provides:
"The fiscal authority of the several counties shall levy a tax for the support and maintenance of education not less than five mills nor greater than 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. The independent school system of Chatham county and the city of Savannah being coextensive with said county, the levy of said tax shall be on all property in said county as recommended by the governing body of said system."
The Tax Commisioner would, in my opinion, be entitled to 6% of all moneys collected on long term notes secured by real estate, even though some of the revenue thus collected is distributed by the Tax
Commissioner to school authorities as provided in this law. The 21;2%
commission is for the collecting of taxes levied under the authority of Article VIII, Section XII, Paragraph I, of the Constitution rather than for taxes imposed under provision of Code Section 92-161 through 92-184, (Ga. Laws 1953, Nov. Sess., pp. 379; Ga. Laws 1955, p. 288).

569
TAX COLLECTORS, COMMISSIONERS AND RECEIVERSCommissions (Unofficial)
Where taxes are finally collected after many years and tax commissioner is on salary basis, no commissions are due any tax commissioner since salary basis was put into effect and no past collector or commissioner has any vested interest in commissions on taxes he did not collect.
November 6, 1962
Mr. Knox Bynum County Attorney Clayton, Georgia
This is in reply to your letter in which you asked my opinion as to the commissions that may be due to the present or any past tax commissioner of Habersham County or any tax collector. I understand that the county has recently received the sum of $18,345.54 as its pro rata share of the proceeds of the sale of the Tallulah Falls Railroad. I understand that the railroad has been in receivership since about 1929 and that the county made a claim for taxes for the years 1929 through 1961.
The office of tax collector and tax receiver in the county of Habersham was abolished by an Act approved February 5, 1952 (Ga. Laws 1952, p. 2045). In lieu of said offices, the office of tax commissioner was established and Section 3 of the Act provides that the tax commissioner's salary shall be $5,000 per annum. Section 8 provides that all commissions or other compensation allowed by law to the tax receiver and tax collector shall be paid into the treasury of Habersham County as county funds.
In Clements v. Peerless Woolen Mills, 197 Ga. 296, it was held by the Supreme Court that a tax collector has no vested interest in any commission on uncollected taxes.
Georgia Code Section 92-5301, which described the fees to be paid for tax collections, goes on to provide that such Section shall not apply when any county with a tax collector or receiver is on a salary basis only.
The provisions of Georgia Code Section 92-5304 which provide that for tax collectors "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 the salary" were 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, therefore, that the prior collectors are not entitled to any commission on the payment received as a result of the distribution of the assets of the Tallulah Falls Railroad and that the present collector, having been put on a salary only basis after 1951, is not entitled to any commission.

570
TAX COLLECTORS, COMMISSIONERS AND RECEIVERSEmployees (Unofficial)
Employees of Clarke County Tax Collector covered by Social Security and Collector required to file FICA returns.
February 6, 1962
Miss Ida D. Davison Tax Collector, Clarke County
This is in reply to your letter concerning the application of the Federal Insurance Contributions Act, 26 U. S. C. A. 3101, et seq., to your position as Tax Collector for Clarke County. I understand that you have in your employment individuals who are paid, directed and controlled by you as Tax Collector. You question the correctness of an opinion from the United States Treasury Department, and stated that a copy of that opinion was enclosed. However, I failed to receive it.
Section 3102 and Section 3111 of the F. I. C. A. imposes a tax upon employers. The question as to coverage involves the definition of the term "employment". "Employment is defined in the Act (26 U. S. C. A., Sec. 3121) as follows:
"(b) Employment.-For purpose of this chapter, the term 'employment' means ... any service, of whatever nature, performed after 1954 ... ; except that, in the case of service performed after 1954, such term shall not include-
"(7) Service performed in the employ of a State, or any political subdivision thereof, or any instrumentality of any one or more of the foregoing which is wholly owned thereby, ..."
As you can see from this definition, the people who work in your office are covered by the Act if they are employed by you rather than by the State or county. You are, of course, authorized to employ these people on your own account, however, and they become your employees and, therefore, subject to the terms of the Act. Were you authorized to employ them on behalf of the county, then, they would not be covered by the provisions of this Act.
With reference to your comment concerning the hiring of deputy clerks, I would like to call your attention to the following:
"The 'power to hire and fire' is the most significant factor in determining upon whom, as 'employer', the economic burden of social security program is placed and means the power to create or terminate employment rather than power to determine which of a number of individuals should be chosen to perform or be dismissed from performing services." General Wayne Inn v. Rothensies, D. C. Pa. 1942, 47 F. Supp. 391.
It is my opinion that your employees are covered by the Act and you are required to file the appropriate tax returns.

571
TAX COLLECTORS, COMMISSIONERS AND RECEIVERSExecutions (Unofficial)
Procedures for issuing tax fi. fas. discussed.
October 15, 1962
Honorable Thomas W. Pinson Tax Collector Gilmer County
We are in receipt of your letter in which you requested advice on the procedures for issuing executions.
Section 92-5102 of the Georgia Code Annotated provides:
"The tax collectors shall keep an execution docket, and on the 20th day of December in each year issue executions against each delinquent or defaulting taxpayer in their respective counties, unless further time is allowed as provided by law, and enter the names of such delinquent or defaulting taxpayers on said docket, together with an itemized statement of the taxes covered by such execution."
Section 92-5104 of the Georgia Code Annotated provides:
"The officer in whose hands the execution is placed shall proceed at once to collect the same, and when said execution is paid by the defendant, voluntarily or by levy and sale, the officer shall detach from the execution the tax receipt and enter thereon the amount collected, including all costs and commissions, and also make a similar entry on the execution, the receipt to be delivered by the officer to the defendant, and the execution to be returned with the amount of tax collected to the tax collector, who shall at once copy the entry of the officer on his execution docket and file the execution of his office." Section 92-7401 of the Georgia Code Annotated provides:
"Executions for nonpayment of taxes, against persons who are not required to pay to the State Treasurer, 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 this State."
From the foregoing, it is apparent that it is your duty as Tax Collector to issue executions and deliver them to the Sheriff who, upon their receipt, is required to proceed at once to collect them and pay the tax collected over to you.
For your further information, Georgia Code Section 27-2813 sets forth the general duties of a sheriff, while the general duties of a tax collector are set forth in Sections 24-5201, et seq.

572
TAX COLLECTORS, COMMISSIONERS AND RECEIVERSFaithful Performance (Unofficial)
Land purchased from a tax commissioner would be subject to a lien in favor of State for faithful performance of duties and payment of all tax monies due.
August 1, 1962
Mr. H. T. Carson Carnesville, Georgia
This is in answer to your letter in which you request an unofficial opinion concerning the following questions:
(1) Would any land purchased from a Tax Commissioner be bound if any shortage of tax money subsequently appeared in the Tax Commissioner's records?
(2) What effect would an Act passed about 1959 or 1960, which provides that to constitute a lien against real estate, notice must be shown on the Deed Index, Execution Docket or Attachment Docket in the office of the Clerk of the Superior Court, have on the purchase of said land?
In answer to question Number One (1), I refer you to Georgia Code Section 92-5510 (1190) which reads as follows:
"The property of tax collectors and of their sureties, shall be bound, from the time the bonds are executed, for the payment of taxes collected and the discharge of their duties."
The State has lien on property for faithful performance of duties superior to that of security deed given after tax collector goes into office. State of Georgia v. Bank of Wrightsville, 162 Ga. 292.
I call your attention to the following Code Sections which are self-explanatory:
"89-838. The ordinary, sitting for county purposes, or the board of county commissioners, or such other authority as may be charged with the government of a given county in this State is hereby clothed with discretionary power and authority to release a given portion of the property of a county treasurer, tax collector or tax commissioner, from the lien of the State or county in question against the property of such officers on their respective bonds.
"89-839. The officer desiring the release of a portion of his property shall file a petition in writing with the govern~ng authority of the county in which he functions. The petitwn shall describe the property sought to be released and the reasons of the applicant for desiring the release, that is to say, whether the applicant desires to sell the property or borrow money on the security thereof, and giving the name of the purchaser or the lender as the case may be. After consideration the said governing authority may in its discretion grant the release in question,

573
evidencing assent to the release by a writing in the nature of a release or quit claim deed, to which a copy of the resolution or order of sanction shall be attached as a part thereof; or after consideration the application may in the discretion of said authority be rejected.
"89-840. In the event the release shall be granted it shall not be incumbent upon the person named in the application as the purchaser or lender on the security of the property in question to inquire into the merits of the application, but the proposed sale or loan must be consummated within 60 days from the date of the authorization of the release, otherwise on the expiration of the 60th day it shall become void and ineffectual."
In answer to question Number Two (2), I assume you refer to the Acts of 1958, p. 379, which has been codified as Section 105-515. This section is not applicable to the subject matter under discussion.
TAX COLLECTORS, COJ.VIJ.VIISSIONERS AND RECEIVERSVacancy (Unofficial)
Atkinson County Tax Commissioner has duties formerly discharged by Tax Collector and Tax Receiver. When vacancy occurs, it is duty of Ordinary to fill the same and to call an election for permanent filling of vacancy.
April 2, 1962
Honorable Clayton Walker Ordinary, Atkinson County
This will acknowledge and thank you for your letter and we also have a letter from your County Attorney, Honorable Jack J. Helms requesting the same information.
The 1945 Constitution of Ga. provides that the General Assembly may consolidate the office of tax receiver and tax collector, and create the office of tax commissioner. Code of Ga. Ann., Sec. 2-7806. There is a similar provision in the 1877 Constitution found in Code of Ga. Ann., Sec. 2-8401. The office of tax commissioner in Atkinson County was first created in Acts 1929, p. 535. This Act was repealed by Acts 1931, p. 386. Subsequently, the position of tax commissioner of Atkinson County was again created by Acts 1943, p. 827. This Act has been amended by Acts 1953, p. 2588, and by Acts 1957, p. 2062. The 1943 Act creating position of tax commissioner of Atkinson County includes in Sec. 9 on page 830 the following language:
"If a vacancy should occur, then the office shall be filled in the same manner as vacancies are filled in other county offices."
The caption of the 1943 Act creating the position of Atkinson County tax commissioner specifies that the Act is intended to provide:

574

". . . that the laws of force as to tax receiver and tax collector when the provisions of this Act become effective, shall be of full force and effect as to the tax commissioner of Atkinson County."

Actually, this provision is not included in the b-ody of the Act, but we do not believe that it is essential because there is ample other law on the subject and the caption at least recites the intention of the Act. Please review Code of Ga. Ann., Sec. 92-4601, which provides as
follows:

"Tax receivers 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 superior court are: Vacancies shall be filled as vacancies in the office of such clerks are filled."

There is a provision in the same language covering tax collectors found in Code of Ga. Ann., Sec. 92-4701.

Following the above, please note the provisions for election of clerks of the superior courts found in Code of Ga. Ann., Sec. 24-2704, which provides that:

"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 court-

house, twenty days previous to the day of election, which shall

be appointed by him."

-

Also, please note the provisions of Code of Ga. Ann., Sec. 24-2707, which provides:

"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."

Code of Ga. Ann., Sec. 34-2101 includes provision applicable to elections, including the election of members of the General Assembly, and Code of Ga. Ann., Sec. 34-2601 provides that:

"Sec. 34-2101 shall apply to elections for sheriffs, clerks of superior courts, tax collectors; tax receivers, county surveyors and coroners."

The ordinary of the county sitting for county purposes is given statutory authority over county matters enumerated in Code of Ga. Ann., Sec. 23-701, which includes:

"(V). In supplying, by appointment, all vacancies in county offices and in ordering elections to fill them."

It appears, therefore, that the ordinary of the county has authority under the above last quoted statutory provision to fill the vacancY which has occurred in the office of tax commissioner of Atkinson County and it is his responsibility also to call an election under the
provisions which have been outlined above.

575

TRUSTS-Foreign Real Estate Investment Trusts (Unofficial)

Foreign real estate investment trust could not qualify for applicability of Chapter 108-6 of Georgia Code Annotated.

Honorable Harry V. Lamon, Jr. Atlanta 3, Georgia

January 3, 1962

Thank you for your recent letter requesting an opmwn as to whether or not a foreign real estate investment trust could qualify under the provisions of Chapter 108-6 of the Code of Georgia of 1933, as amended,! providing for the creation, filing and effect of deeds to beneficial interests in property.

It is well recognized that the cardinal rule in the construction of legislative ~nactments is to ascertain the true intention of the General Assembly in the passage of the law.2 An examination of the statute
in connection with your question reveals various indicia of the legislative intent.

Code Section 108-608 in defining a "deed" requires that it be an instrument creating a trust estate and which "indicates an intention, either expressly or by implication, that such trust estate created therein should be subject to the provisions of this Chapter." Code Section 108-608 requires that "Each such trust created pursuant to the provisions of this Chapter shall make a return to the Secretary of State upon the creation of such trust, and annually thereafter. . . ."

These provisions reflect clearly the legislative intent that the trust
provided for by the statute be created pursuant to Georgia law and not foreign law.

This conclusion is further sustained by Code Section 108-607 which provides in part as follows:
"The deed creating such trust estate shall, within 30 days of the execution thereof, or within 30 days of the enactment of this provision, whichever is later, be filed by the trustee in the office of the clerk of the superior court of the county in which the principal office of the trust is located . . ."

The requirement of this Section that the deed be filed within thirty days after its execution or after enactment of such provision and that it be filed in the county in which the principal office of the trust is located, militates against the applicability of the statute to a foreign trust because such a trust in many cases could not comply with the thirty-day filing provision and also in many cases would not have its principal office within this State.
In view of these considerations, it is my opinion that the provisions of Code Chapter 108-6 are inapplicable to a foreign real estate investment trust.

1. Ga. Laws 1899, p. 57; 1961, p. 207. 2. Gazan v. Heery (1936) 183 Ga. 30 (1), 187 SE 371, 106 ALR 498;
Code Section 102-102 (9).

576
UNIVERSITY SYSTEM OF GEORGIA-Augusta College
Contract between Augusta College and Federal Government must have nondiscrimination clause which would require conduct of operations thereunder on a nondiscriminatory basis.
October 19, 1962
Mr. L. R. Siebert Executive Secretary Regents of the University System of Georgia
I wish to acknowledge receipt of your letter enclosing letter from President Gerald B. Robins, Augusta College, recommending the acceptance of the inclusion of the non-discrimination clause in the Clark Hill property lease with the United States Army Engineers in Savannah.
I think that the problem presented with reference to the inclusion of the non-discrimination clause in the lease presents more of a policy matter than one for legal determination. However, I would like to point out to you two inescapable legal conclusions that are involved.
In the first place, any contract that is entered into with the Federal Government-we have learned from experience-must include a nondiscrimination clause.
In the second place, since, as President Robins advised, the only persons using the leased property would be students, faculty, and alumni of Augusta College, if Augusta Colllege is ever integrated by Court Order, under the ruling of Judge Bootie in the University of Georgia case, a Colored student would be entitled to use all of the facilities of the College used by White students.
For these reasons, if the propoged lease is to be executed between the Federal Government and the Regents covering the Clark Hill property for recreational purposes the conduct of its operations under the lease must be on a non-discriminatory basis.
UNIVERSITY SYSTEM OF GEORGIA-Board of Regents
Transfer of property from Lucy Cobb Institute to University System and terms of payment of consideration therefor discussed.
February 7, 1962
Chancellor Harmon Caldwell Regents of the University System of Georgia
I have reviewed the petition of Abit Nix, et al., filed in the Su:f!eriod Court of Clarke County, Georgia, and the Court Order thereon, s1gne by the Honorable Carlisle Cobb on the 5th day of August, 1954.
The petition recommended and sought authorization to ~ransfer and convey to the Regents of the University System of Georgia all of

577
the properties known as the "Lucy Cobb Institute Properties" in Athens, Georgia, for a consideration and for certain specified purposes. The plan recommended by the Trustees of the Lucy Cobb Institute in the petition, provided that the Regents of the University System of Georgia would accept annually promissory notes in the aggregate amount of $2400.00 in payment of tuition charges of eligible applicants as defined in the petition, that all notes should be payable to the Regents and should bear interest, and that as such notes were paid the proceeds should become a part of the Lucy Cobb Institute Loan Fund and reloaned to designated beneficiaries in the same manner as other loan funds are managed and administered.
The petition further provides that the Regents may "sell and convey at any time the real and personal property that may be conveyed to them under these proceedings, and upon the net proceeds of such sale or sales being paid into said Loan Fund the obligation of the Board of Regents to provide the annual sum in tuition notes of $2400.00 for said Fund shall cease and determine".
The petition further provides that the obligation on the part of the Regents to provide the annual sum in tuition notes of $2400.00 "terminate when the Board of Regents payments shall aggregate the principal sum of $60,000.00".
The plan as stated was to "assure the permanent establishment of the Fund for the benefit of qualified young women who may be bona fide residents of Clarke County; thus perpetuating the benevolent purpose of the founders of the trust".
The Court Order signed on August 5, 1954, provided: "The plan recommended by the Trustees of Lucy Cobb Institute as set forth in the original petition and amendment thereto herein in the opinion of the court most nearly approximates the purpose of said donors and founders, and is hereby approved with the following modifications:" (Among modifications imposed by the Court in its decree was one in item three of said Order as follows:)
"The Trustees of Lucy Cobb Institute by its President and Secretary are hereby authorized and directed to transfer and convey to the Board of Regents of the University of Georgia all of the property and assets, real and personal, of Lucy Cobb Institute, subject to the terms and conditions set forth in said original petition as modified by this decree and such deed of conveyance shall contain a recital to that effect."
The conveyance from Lucy Cobb Institute to the Regents of the University System of Georgia covering the Lucy Cobb Institute properties, dated August 17, 1954, refers to the decree rendered on August 5, 1954, by the Honorable Carlisle Cobb, and states:
"... the Court awarded said property and assets to the Regents of the University System of Georgia, and directed the Trustees to transfer and convey the same accordingly:"
and further that the Regents of the University System of Georgia were:

578
"To have and to hold the above described property forever in fee simple and in as full and ample a manner as formerly held by the party of the first part and subject to all the terms and conditions of said decree."
As I construe the petition filed with reference to the Lucy Cobb Institute Properties, the Court Order signed by the Honorable Carlisle Cobb on August 5, 1954, and the deed from Lucy Cobb Institute to the Regents of the University System of Georgia, dated August 17, 1954, I arrive at the following conclusions:
1. The primary intent and purpose of the transfer of the properties was for the purpose of establishing a permanent Loan Fund for the benefit of qualified young women wishing to attend the University of Georgia.
2. That if the Regents sold and conveyed at any time the real and personal property comprising the Lucy Cobb Institute, the net proceeds of such sale or sales would be paid into the Loan Fund and the obligation of the Regents to provide annually in tuition notes the sum of $2400.00 should cease.
3. Separate and apart from the obligation above referred to dealing with the sale of the property at any time and the use of the proceeds is the condition that the obligation of the Regents to make the $2400.00 payments annually, as required under the plan, should terminate when said payments shall aggregate the principal sum of $60,000.00.
It is my opinion that the Regents of the University System of Georgia cannot convey title to the Seney-Stovall Chapel without an adequate consideration.
It is my further opinion that even after the $2400.00 annual payments required to be made by the Regents shall aggregate the principal sum of $60,000.00, and the Regents' obligation to make said annual payments terminates, that at any time thereafter when the property of the Lucy Cobb Institute is sold, the net proceeds shall be paid into the Loan Fund.
I have been advised that the Seney-Stovall Chapel has been appraised at $20,000.00. In order to effectuate a practical method of transferring the Chapel property so that the same might be rehabilitated and preserved, a petition could be filed in the Superior Court of Clarke County by the Regents of the University System of Georgia, requesting leave to sell the Chapel property at the appraised price on reasonable and satisfactory terms and conditions as mutually agreed upon between the purchaser and the Regents.

G79
UNIVERSITY SYSTEM OF GEORGIA-Columbus College
Discussion of contractual arrangements between Board of Regents and Muscogee County School District relative to temporary and permanent arrangements for Columbus College.
August 24, 1962
Mr. J. H. Dewberry Plant and Business Operations Regents of the University System of Georgia
We wish to acknowledge receipt of your letter of August 23, 1962, and your file with reference to the contract entered into between the Muscogee County School District and the Regents of the University System of Georgia, governing the operation of a temporary junior college, and the construction and operation of a permanent junior college to be known as "Columbus College".
We have reviewed the contract executed on June 30, 1958, the Supplemental Agreement executed on September 1, 1960, and your file of correspondence with reference thereto.
You inquire specifically as to the obligations of the Regents under the terms of the aforesaid contracts with respect to acceptance of facilities construed by the Muscogee County School District, and as to the legal rights of the Regents of the University System of Georgia under the terms of the lease of the Temporary Junior College facilities from the Muscogee County School District.
Under the terms of the 1958 contract, Paragraph 12 thereof, it is stated:
"The parties contemplate that, as soon as the necessary funds are available to First Party, it will build a permanent college building on the aforementioned Junior College Tract, in accordance with plans and specifications to be approved by Second Party; that First Party will then convey to Second Party such part of said Junior College Tract as the parties may agree upon; that, subject to the laws of the State of Georgia and the rules and regulations of the Second Party, and as the same may be amended from time to time, Second Party will thereupon take over and operate a permanent junior college upon such tract; and that it is the intention of the parties that they will hereafter enter into a separate and complete contract with respect to such permanent junior college."
In the September 1960 Supplemental Agreement there is an affirmation of the aforesaid Paragraph 12 and a provision stating:
"Whereas, due to a number of causes, and in particular due to the delay of the State Highway Department in determining the exact location of the State highway to be built through said Junior College Tract, First Party has not been able to complete the contemplated building or buildings; and

580
"Whereas, the parties desire to extend said agreement of June 30, 1958, so as to provide for the continued operation of the said junior college on the temporary site until said permanent site can be made ready by First Party."
Said Supplemental Agreement then provides that the term of the lease is extended for an additional period of two years from and after September 1, 1960, or until such date the new Columbus College Buildings have been completed, and the college transferred to the permanent Junior College site, whichever event first occurs.
The 1958 Agreement, which incorporates by reference the application made by the Muscogee County Board of Education on May 1, 1958, to the Regents of the University System of Georgia relative to the Columbus College and the subsequent mutual agreement, adopted by the Muscogee School District on April 13, 1959, and approved by the Regents on April 22, 1959, contemplated that the campus site for the permanent Junior College would consist of two tracts of land, one tract of 117 acres held by the county, and another consisting of 11.24 acres, known as "Block D and E" adjacent to the Junior College and adjacent to Gentian Boulevard and Cody Road. I am advised that the County School Board is not in a position at this time to comply with its obligation to the Regents to transfer these two tracts of land comprising the complete campus site of the Columbus College. This would lead then to a construction of the provisions of the Agreement and the Supplement thereto, providing for a proposed partial conveyance and transfer of land and facilities by the County School Board to the Regents of the University System of Georgia. It seems clear, that from a reasonable construction of Paragraph 12 of the 1958 contract and the Supplement thereto, that any partial conveyance and transfer of land and facilities by the School Board to the Regents, as agreed upon between the parties, contemplated such a transfer and delivery of land and all physical facilities as would constitute an operable college by the Regents of the University System of Georgia. The correspondence from Dr. Thomas Y. Whitley, President of the Colum bus College indicates that a transfer at the present time of the existent physical facilities would not constitute a transfer and delivery of physical facilities operable as a college.
It is, therefore, my conclusion that the Regents of the University System of Georgia are not legally obligated to accept delivery of the facilities required to be constructed by the Muscogee County School District until such facilities are completed and can be used and operated as a permanent college.
We have pointed out to you in an opinion rendered February 20, 1962, that Columbus College could not legally expend funds to improve the site of the permanent Columbus College until legal title was vested in the Regents of the University System of Georgia.
The lease agreements between the Muscogee County School District and the Regents covering use and occupancy of the temporar! facilities for the Junior College expires September 1, 1962, and 1t should be extended by mutual agreement until such time as the Mus-

581
cogee County School District determines it can complete all of the physical facilities and transfer and deliver the same, as an operable junior college, to the Regents of the University System of Georgia.
UNIVERSITY SYSTEM OF GEORGIA-Fund Raising
Under "Regulation of Professional Fund Raising" Act of 1962, permission would be required before Joint Tech-Georgia Fund could publish names of contributors.
October 25, 1962 President 0. C. Aderhold University of Georgia
We have received your request of October 19, 1962, in which you ask that I interpret the "Regulation of Professional Fund Raising" Act found in Georgia Laws 1962, page 496, and advise you whether corporate contributors would need to grant permission in order to use their names, and further, what form of permission would be necessary.
Section 10 (a) of that Act provides that no person who is required to register pursuant to this Act shall use the name of any other person for the purpose of soliciting contributions for persons of this State without the written consent of this person. In subparagraph (b) following, we find an interpretation of the above in which a person is considered as having used a name if it is listed on stationery, advertisements, brochures, or referred to as a person who has contributed to or endorsed the charitable organization or its activities.
From this I feel that there is no doubt that permission would be required before the Joint Tech-Georgia Fund could publish the names of contributors.
As to your next question concerning the form of permission necessary for corporate contributors, I feel that any officer of the corporation with authority to make a grant or gift in the name of a corporation would also have authorization to grant permission to use the corporation's name. I would not feel that you would be required to look behind any written consent furnished you in the absence of any unusual circumstances.
UNIVERSITY SYSTEM OF GEORGIA-Gifts
Gifts to University, to be complete, must be free of right of donor to control, reclaim or acquire dividends from.
February 19, 1962 Chancellor Harmon Caldwell Regents of the University System of Georgia
I wish to acknowledge receipt of your letter of February 16, 1962. I have reviewed your file and the proposed agreement to be

582
entered into between Myron S. Greentree and Gladys Sevier Greentree of Miami, Florida, and the Regents of the University System of Georgia.
The proposed agreement provides for the making of a gift to the Regents of the University System of Georgia, and the creation of a scholarship fund for students wishing to attend Columbus College, Columbus, Georgia. In my opinion the proposed agreement does not constitute the making of a valid gift by the Greentrees to the University System of Georgia. In the case of Bowen et al. v. Holland, 182 Ga. Reports, at page 430, the Court says:
"To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and full delivery of possession as a gift, inter vivos."
There are provisions in the proposed agreement that are directly in conflict with the holding of the Supreme Court of Georgia. In paragraph 5 of the proposed agreement, it is provided:
"All dividends and other income shall be paid to the Donors or the survivor of them, during their lifetime, if requested in writing by them, or either of them."
In paragraph 6 of the proposed agreement, it is provided:
"Notwithstanding anything contained in this agreement to the contrary, the Donors, or either of them shall have the right, by request in writing to the Trustee, during their lifetime, (a) to have all or any portion of the principal of this trust fund returned to them."
In my opinion, these two provisions are repugnant to the law of this State with respect to the creation of a valid gift and there is no gift for the Regents of the University System of Georgia to accept, except as to the $648.00 which was originally given to Columbus College without limitation or restriction as to its use.
As a practical matter, I also would suggest that if and in the event a valid gift is consummated to the Regents of the University System of Georgia specifying powers of investment, the Board of Regents should UQt be required to obtain prior approval of the Donors before making each investment.
I would like also to suggest that the granting of scholarships from funds should be in accordance with policies and procedures and rules and regulations adopted by Columbus College and approved by the Regents of the University System of Georgia, and any further conditions which may be imposed upon the granting of scholarships from this fund should be set out in the agreement.

583

UNIVERSITY SYSTEM OF GEORGIA-Loyalty Oath

Law clearly prescribes loyalty oath to be taken by teachers and there can be no conditional or qualified oath or "acceptable formula" allowing an exception to the oath in the case of a teacher of foreign citizenship.

Honorable M. K. Fort, Jr. Head, Department of Mathematics The University of Georgia

May 28, 1962

I have received copy of a letter addressed to you by the Honorable

S. Ernest Vandiver, Governor of the State of Georgia, concerning

Georgia's Loyalty Oath, together with enclosures of copy of your

letter addressed to Governor Vandiver, under date of May 21, letter

from John D. Scanlan, Cultural Officer of the American Embassy in

Warsaw, Poland, dated May 11, 1962, and copies of forms of Em-

ployees' Oath.



With respect to Georgia's Loyalty Oath, Code Section 32-1022 of the Georgia Annotated Code provides as follows:

"Teachers' oath.-Every teacher in the public schools of this State whether elementary, high school, college or university, and all other employees, of the State or subdivision thereof drawing a weekly, monthly, or yearly salary, shall before
entering upon the discharge of their duties, take and subscribe a solemn oath to uphold, support, and defend the Constitution
and laws of this State and of the United States, and to refrain from directly or indirectly subscribing to or teaching any theory of government or economics or of social relations which is inconsistent with the fundamental principles of patriotism and high ideals of Americanism. (Acts 1935, pp. 1305, 1306.)"

Code Section 32-1023 of the Georgia Annotated Code provides as follows:

"Form of oath prescribed by State Superintendent.-The form of such oath shall be prescribed by the State Superintendent of Schools, and the oath of each teacher shall be filed in the office of the Superintendent of Schools of the county or other school system in which such teacher is employed; other employees shall file their oaths with the department in which they may be employed; which oaths shall be annually renewed. (Acts 1935, pp. 1305, 1306.)"

Code Section 32-1024 of the Georgia Annotated Code provides as follows:

''Teacher not to be employed unless oath taken.-No teacher or employee who shall fail or refuse to take and subscribe such oath shall be employed in any school, college, or university or other office or position of this State, or be paid from the public school fund or by any other public fund. (Acts 1935, pp. 1305, 1306.)"

584
The Editorial Note following Code Section 32-1022 of the Georgia Annotated Code states that:
"The joint resolution from which this section and 32-1023, 32-1024, and 32-9907 were codified recites: 'Whereas, in order to perpetuate the principles of free government and preserve the high ideals upon which this Nation was founded and upon which our Constitutions rest, it is necessary that the fundamental principles of patriotism and the ideals of Americanism be inculcated into and cultivated in the minds of our children; and whereas the public-school teachers and other employees of this State wield an influence upon the lives and minds of Georgia children second only to that of their parents; and whereas the State has been and is being flooded with propaganda and literature which seek the destruction of the high principles of government which ought to be perpetuated.'"
The code sections cited above have not been construed or interpreted by our State Appellate Courts; however, in the case of Leoles v. Landers, 184 Ga. 580, the Supreme Court of Georgia in dealing with a rule promulgated by the Board of Education of the City of Atlanta requiring that all pupils shall salute the flag of the United States, refers to the resolution adopted by the General Assembly quoted above, and on page 585 of the decision states:
"The United States is a democratic country with a republican form of government. Code 1-407. It is a land of freedom. However, those who reside within its limits and receive the protection and benefits afforded to them must obey its laws and show due respect to the government, its institutions and ideals.''
On page 586 of the decision, the Court states:
"So those choosing to resort to the educational institutions maintained with the funds of the State are subject to the commands of the State.''
The mandate of the Georgia law with respect to subscribing to a solemn oath before entering upon the discharge of the duties of teaching in the public schools of this State and in the colleges and universities of this State is clear and unequivocable and any teacher who fails or refuses to take and subscribe to such oath shall not be employed and shall not be paid from any public fund.
In my opinion there can be no conditional or qualified oath or "acceptable formula" that could be applied in the case of Dr. Granas or any other teacher in the public schools of this State. I can not agree with the conclusion of the Cultural Officer, John D. Scanlan, to the effect that "As a citizen of a foreign country, he cannot, of course, sign this form without jeopardizing his native citizenship status.''
I have been advised by representatives of the University System of Georgia that there are foreign professors teaching in the Uni-

585
versity System pursuant to State law and the policies of the Board of Regents, and that all such professors have without exception signed the loyalty oath required. The only acceptable formula for any variation in the execution of the loyalty oath, in my opinion, would be to strike out that portion of the loyalty oath which states that the affiant is a "citizen of the State of Georgia and of the United States" and substitute therefor the country of citizenship of the affiant. This practice has been followed in the execution of the loyalty oath by foreign professors in other units of the University System, and I do not see how with this modification an affiant's citizenship in a foreign country could be jeopardized.
If the execution of the loyalty oath required by the laws of this State would jeopardize the native Polish citizenship status of Dr. Granas, it is unfortunate, but it is my opinion that the mandate of the laws with respect to the execution of such oaths must be obeyed.
Any person violating the provisions of the code sections above quoted relating to the oath shall be guilty of a misdemeanor and shall be discharged immediately from his or her position. (Code Section 32-9907 of the Georgia Annotated Code.)
The laws of this State creating or providing for the execution of loyalty oaths do not prevent foreign professors from teaching in Georgia colleges and universities provided they sign the oath required.
The above interpretation of law concerning Georgia's Loyalty Oath is to be considered purely as information, and not as an opinion in any manner whatsoever, and is not binding on any person or official in any way for the reason that the State Department of Law is not authorized to render opinions except to the Governor and to the heads of the State departments. However, the interpretation is given to you as information in order to be of assistance to you in determining your course of action in the matter.

UNIVERSITY SYSTEM OF GEORGIA-Medical Scholarships

Estate of medical student who had elected to repay State for medical scholarship loan through practice in community with population of less than 5,000 not liable to State where student prevented from fulfilling such method of repayment because of his death.

Mr. L. R. Siebert Executive Secretary Regents of the University System of Georgia

November 6, 1962

This is in reply to your letter with reference to repayment of the medical scholarship granted Dr. Ronald Delano Cornell by the State of Georgia.

Act 160 (Ga. Laws 1960, page 1301-1302) makes it mandatory upon the recipient of a medical scholarship loan to repay to the State

586
of Georgia "in cash, in full with 4% interest from the date of each payment paid on such loan or scholarship, same to be payable annually, the first annual payment to be due on or before one year of the date before the applicant completes his internship, or the same may be repaid to the State of Georgia in service to be rendered by the applicant by practicing his profession in some place within the State of Georgia to be approved by the Board. One~fifth of the loan or the scholarship, together with interest thereon, shall be credited to the applicant for each year of practicing his profession in a community of 5000 population or less, - - -." (Emphasis added)
Before completing his medical education at the Medical College of Georgia, Augusta, Georgia, Dr. Cornell elected in writing to repay his medical scholarship to the State of Georgia upon the completion of his one year internship or one year residency by practicing his profession in a community of 5000 population or less in the State of Georgia. Since the statute is clear with reference to the alternatives of repaying the scholarship in that one method of repayment is that a scholarship recipient may practice his profession in a community of 5000 population or less in the State of Georgia, and since Dr. Cornell elected this method of repayment and such election was accepted by the State Medical Education Board; since his death prevents him from practicing his profession in such a community; it clearly follows that this particular method of repayment is now incapable of being fulfilled, discharging the estate of Dr. Cornell from any liability with reference to the repayment of this scholarship loan.
In view of the above, it is our opinion that the estate of Dr. Ronald Delano Cornell is not liable for the repayment of the medical scholarship granted Dr. Cornell by the State of Georgia.
UNIVERSITY SYSTEM OF GEORGIA-Motor Vehicles
Unlawful for Board of Regents to purchase passenger truck for use in transporting State officials and employees engaged in marine research at Marine Biology Station on Sapelo Island.
February 21, 1962
Chancellor Harmon Caldwell Regents of the University System of Georgia
I wish to acknowledge receipt of your letter in which you requested an opinion on the legality of the expenditure of State funds by the University of Georgia for the purchase of a passenger truck for use at the Marine Biology Station on Sapelo Island.
In your letter you state that the Station on Sapelo Island is engaged in research, and is supported for the most part from private grants from one of Mr. Reynold's foundations.

587
I wish to call your attention to three opinions I have heretofore rendered in connection with the proposed purchase of vehicles from State funds. In an opinion, dated November 15, 1948, to Honorable Harmon W. Caldwell, Chancellor of the University System, found in the "Opinions of the Attorney General, 1948-49", at page 146, and in an opinion, dated April 14, 1955, to Honorable C. L. Shaw, Supervisor of Purchases, found in the "Opinions of the Attorney General, 1954-1956", beginning at page 641, and in an opinion to the Honorable William R. Bowden, State Supervisor of Purchases, dated February 3, 1959, I have called attention to the provisions of Code Section 40-2003 of the Code of Georgia Annotated which reads as follows:
"All officers, officials, or employees of the State and of the various departments, institutions, board, bureaus, and agencies of the State, required to travel by automobile in the performance of their official duties, shall themselves furnish out of their own personal funds such automobiles as may be necessary for their official use, ...",
and Code Section 40-2001 of the Code of Georgia Annotated which reads as follows:
"No funds appropriated to any' department, institution, board, bureau, or agency of this State shall be used for the purchase of any passenger-carrying automobile whatsoever, and it shall be unlawful to expend any funds appropriated to any such department, institution, board, bureau, or agency, or any State funds otherwise coming into the possession of any such department, institution, board, bureau, or agency for the purchase of any passenger-carrying automobile, except one passenger automobile and motorcycles for use of the Governor. Nothing in this law contained shall affect or relate to trucks, tractors, or trailers."
In these prior opinions I construed the statutory limitation on the purchase of any motor vehicle, whether truck, station wagon or converted truck, if the same was to be used for the purpose of transporting officials and employees, as distinguished from the purchase of a motor vehicle to be used for other purposes.
From the information furnished me, the "passenger truck" proposed to be purchased from State funds by the University of Georgia, would be used for the purpose of transporting officials and employees of the State, and it is, therefore, my opinion that such purchase would come within the prohibition prescribed by statute, and the University of Georgia would not be authorized to make this purchase.

588
UNIVERSITY SYSTEM OF GEORGIA-Real Property Board of Regents has authority to execute, and Governor to
approve, deed conveying property from Board of Regents to University System Building Authority for construction of housing for married students.
August 29, 1962
Honorable S. Ernest Vandiver Governor, State of Georgia
I submit to you herewith a proposed deed to be executed for the purpose of conveying 9.98 acres of land on the campus of the University of Georgia, Athens, from the Regents of the University System of Georgia to the University System Building Authority in order to provide the Building Authority a satisfactory site upon which it proposes to construct housing for married students at said college.
The conveyance of this property is to be made pursuant to a resolution adopted by the Board of Regents on August 29, 1962, under authority of the University System Building Authority Act, Georgia Laws of 1949, pp. 1009-1024, Code of Georgia Annotated, Section 32-104a. Said resolution declares that said property can no longer be advantageously used and that the conveyance of the property would be to the best interest of the University System.
I have checked the description of the property proposed to be conveyed against plat and find it to be correct. It is my opinion that the Regents of the University System of Georgia have legal authority to execute said deed which I approve as to legal form and sufficiency; and it is my further opinion that under the law of the State of Georgia, it is now in order for you as Governor of the State of Georgia to approve the conveyance by affixing your signature to said deed to be attested by the Honorable Ben W. Fortson, Jr., Secretary of State.
UNIVERSITY SYSTEM OF GEORGIA-Real Property
Expenditures by Board of Regents for improvements on real property to which Board does not hold title are illegal and unconstitutional.
February 20, 1962
Chancellor Harmon Caldwell Regents of the University System of Georgia
I wish to acknowledge receipt of your letter, enclosing letter from President Thomas Y. Whitley of Columbus College, pertaining to proposed expenditure of institutional funds for the purpose of making improvements on property now owned by the Muscogee County Board of Education.
In reply to your inquiry as to whether or not Columbus College can legally expend funds for improvements on property to which the Board of Regents does not hold title, I wish to submit the following:

589

Article VII, Section I, paragraph 7, of the Constitution of the State of Georgia, provides as follows:

"The General Assembly shall not by vote, resolution or

order grant any donation or gratuity in favor of any person,

corporation or association."



A fortiori, a department or agency of the State of Georgia can not grant any donation or gratuity in favor of any person, corporation or association.

Although the case of State of Georgia v. Regents of the University
System of Georgia, 179 Ga., p. 210, held that the Regents of the University System of Georgia is a distinct corporate entity, and that an obligation incurred by the University System "Corporation", or the Board of Regents, is not a debt of the State, and is, therefore, not affected by constitutional limitations upon State indebtedness, the facts in the case disclosed that:

"... The buildings are to be erected on the lands of the corporation, and the title to the buildings will be in the corporation from the time of their construction, . . ."

The Supreme Court of Georgia has stated in the case cited that the powers of the Board of Regents under the provisions of the Constitution and laws of the State are:

"... broad and comprehensive, and, subject to the exercise of a wise and proper discretion, the Regents are untrammelled except by such restraints of law as are directly expressed, or necessarily implied"

but Code Section 32-116 of the Code of Georgia Annotated provides as follows:

''Allocation of funds by Board of Regents.-All appropriations already made or hereafter made for the use of any or all institutions in the university system shall be paid to the Regents in a lump sum, with the power and authority in said Regents to allocate and/or distribute the same among the institutions under their control in such way and manner, and in such amount or amounts, as will further an efficient and economical administration of the university system. (Acts 1933,
p. 61.)"

I am of the opinion that any expenditure for improvements on property to which the Board of Regents does not hold title would be contrary to the Constitution and the laws of this State.

590
UNIVERSITY SYSTEM OF GEORGIA-Sale of Property
Since State has no general obligation bonded indebtedness, proceeds of the sale of property by the Board of Regents of the University System of Georgia are to be used for the support of the University System and its branches.
December 20, 1962
Chancellor Harmon Caldwell Regents of the University System of Georgia
I have considered the question propounded by you in your recent letter in which you state:
"The Board of Regents from time to time has authorized the disposition of real property in accordance with the provisions of Section 32-141 of the Code of Georgia Annotated. In these cases the Board has retained the proceeds from the sale or lease of such property in accordance with the provisions of Section 32-143.
"The State Auditor has raised a question as to whether the Board may legally retain the proceeds from the sale of real property or if these funds should be deposited in the State Treasury.
"I shall appreciate an opinion from you as to whether the practice now being followed by the Board in retaining the proceeds for the support of the University System and its institutions is legal."
Article VIII, Section 4, set out in Georgia Annotated Code, Section 2-6701, provides in part as follows:
"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. . . . The said Board of Regents shall have the powers and duties as provided by law existing at the time of the adoption of this Constitution, together with such further powers and duties as may be hereafter provided by law." (Constitution of 1945)
Georgia Annotated Code Section 32-141 (Acts of 1935, page 168) provides as follows:
"Sale, etc., of property of university system, when authorized.-All properties owned or held by the Regents of the University System of Georgia pursuant to this Title which in section 32-139 are declared to be the public property of the State, may be sold, leased, or otherwise disposed of by the said Regents subject to the approval of the Governor, whenever the Board of Regents may deem such sale, lease, or other disposition to the best interests of the university system: Provided, that the Board of Regents shall first determine that such prop-

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erty can no longer be advantageously used in the university system: Provided, further, that where any such property has been granted or conveyed to the university system or Regents of the university system, or any institution embraced within the university system, or the trustees thereof, for specified uses, such property shall only be sold, leased, conveyed, or otherwise disposed of for similar uses or purposes, which shall be in conformity with any use or trust declared in any such grant or conveyance."
Georgia Annotated Code Section 32-142 (Acts 1935, page 168) provides as follows:
"Conveyances, how executed.-In case of any sale, lease, or disposition of any such property, the Regents of the university system of Georgia through its proper officers and the Governor on behalf of the State shall execute and deliver such written evidence of title or of the creation of a leasehold interest as may be necessary."
Georgia Annotated Code Section 32-143 (Acts of 1935, page 168) provides as follows:
"Use of proceeds.-The proceeds arising from any such sale or lease of any such property shall be used for the support of the university system and its branches or for the payment of any debts thereof as the Regents may determine."
It has been suggested that because of the provisions of Article VII, Paragraph VIII of the Constitution of the State of Georgia 1945 (Georgia Annotated Code Section 2-5068 (Section 65-70 of the Constitution of 1877)) that the proceeds arising from the sale of any property by the Regents "shall be applied to the payment of the bonded debt of the State and shall not be used for any purpose whatsoever, so long as the State has any existing bonded debt."
The provisions of the Constitution referred to are set out in Georgia Annotated Code Section 2-5608, as follows:
"Sale of State's property to pay bonded debt.-The proceeds of the sale of the Western and Atlantic Railroad, and any other property owned by the State, whenever the General Assembly may authorize the sale of the whole or any part thereof, shall be applied to the payment of the bonded debt of the State, and shall not be used for any other purpose whatsoever, so long as the State has any existing bonded debt; provided that the proceeds of the sale of the Western and Atlantic Railroad shall be applied to the payment of the bonds for which said railroad has been mortgaged, in preference to all other bonds."
I have been advised by the Treasury Department of the State of Georgia that the State does not have a general obligation bonded indebtedness at this time. I am quoting in full the letter received by me under date of December 19, 1962, from the Treasury Department of the State of Georgia:

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"Honorable Eugene Cook The Attorney General Judicial Building Atlanta, Georgia
"Dear Mr. Cook:
In compliance with request from your department, this is to advise that the State of Georgia does not have a general obligation bonded indebtedness. There are however, $15,500 of refunding bonds issued under the constitutional provision of 1877 which are outstanding due to the fact that they haven't been presented for payment. The holders of these bonds are not known since they are not in registered form. $3,500 of these outstanding bonds matured in 1886 and 1896. The remaining $12,000 matured in 1945 which was the last maturing issue of these refunding bonds except a small issue which matured in 1946.
"There is carried in the State Treasury, a reserve fund of $15,500 to cover the principal of said outstanding bonds plus $11,475 for the unpaid interest on the bonds. Consequently, since such reserve is maintained at all times for the purpose of paying these bonds and interest there are no general obligation bonds of the State of Georgia outstanding.
"No general obligation bonds have been issued since the adoption of the 1945 Constitution of the State of Georgia.
"Sincerely,
/s/ Horace A Hixon HORACE A. HIXON ASSISTANT TREASURER"
In view of the facts set out in the above quoted letter, it is my official opinion that there is not any existing bonded debt of the State of Georgia, and that, therefore, the provisions of Georgia Annotated Code Section 2-5608 are not applicable to the sale of property owned by the Regents of the University System of Georgia, and that the provisions of Code Section 32-143 do apply, and that the proceeds arising from any sale of property by the Regents of the University System of Georgia shall be used for the support of the University System and its branches, or for the payment of any debts thereof as the Regents may determine. The practice now being followed by the Board of Regents in retaining the proceeds for the support of the University System and its institutions is Constitutional and legal.

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UNIVERSITY SYSTEM OF GEORGIA-Student Charity Auctions
Auction sale by students of Georgia Tech with proceeds to go to charity not forbidden by Georgia law.
November 21, 1962
President Edwin D. Harrison Georgia Institute of Technology
This will acknowledge receipt of your letter with reference to a student proposal to hold an auction on the campus for the purpose of raising money for charity.
As we understand it, the plan for holding the auction is for the purpose of obtaining gifts from merchants which could be auctioned at campus sales, the proceeds going to charity. We know of no State law which would prohibit this proposed auction to be held by a student on the Georgia Tech campus.
We have also checked the matter with Mr. Siebert of the Board of Regents and he advises us that he does not know of any policy of the Regents which would prohibit this auction, provided the same has your approval.
We are advised, however, by the Atlanta Police Department that the auction should not be advertised, nor should anyone be permitted to participate in the auction other than students of Georgia Tech, employees, and so forth. Otherwise, an application would have to be made and a fee of $1000 paid to the City of Atlanta for conducting an auction within the City.
UNIVERSITY SYSTEM OF GEORGIA-Student Loans Funds
University of Georgia not authorized to employ private attorneys to collect delinquent student loan funds, but may turn over accounts to collection agency for handling.
September 13, 1962 Mr. J. D. Bolton Comptroller The University of Georgia
We wish to acknowledge receipt today of your letter with reference to whether or not the University of Georgia should allow the American Credit Bureau to enter suit on some of its student loan funds, and whether the University of Georgia should comply with the request of the American Credit Bureau to advance court costs in actions instituted.
Code Section 40-1614 of the Georgia Annotated Code provides as follows:
"Authority of Department. Deputy assistant Attorneys General for temporary and specific services.-The Department

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of Law is hereby 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, offices and boards of the State Government are hereby prohibited from employing counsel in any manner whatsoever. However, 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."
Under the provisions of the Code Section cited above the University of Georgia would not be authorized to employ private attorneys for any purposes except under the provisions authorizing the Governor with the concurrence of the Attorney General in said cases to appoint deputy assistant Attorneys General. The provisions of this Code Section, however, would not prohibit the University of Georgia from turning over delinquent accounts to a collection agency or bureau to handle the same on a contingent basis. If the collection agency wishes to engage the services of private attorneys, the attorneys would represent the collection agency and not the University of Georgia.
Nor do we believe that the University of Georgia should advance any court costs for the collection of delinquent accounts. The method, means and expense for collecting delinquent accounts should be the responsibility of the collection agency and not the University of Georgia.
UNIVERSITY SYSTEM OF GEORGIA-Student Residence Requirements (Unofficial)
Residence requirements set forth for admission to institution of University System of Georgia.
June 6, 1962
Commander Oliver E. Davis Office of the Judge Advocate General United States Navy Washington 25, D. C.
In reply to your inquiry with respect to any statutes in the State of Georgia dealing with persons deemed to be residents for the purpose of payment of admission fees to attend state colleges, we wish to advise that there are no statutes in the State of Georgia.
However, for your information we quote below from the rules and regulations of the University System of Georgia dealing with legal residents:
"To be considered a bona fide legal resident of Georgia for the purpose of registering at an institution of the University

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System of Georiga, a student must establish the following facts to the satisfaction of the registering officer:
"(a) A student who is under 21 years of age at the time he seeks to register or re-register at the beginning of any quarter will be accepted as a resident student only upon a showing by him that his supporting parent or guardian has been a bona fide resident of Georgia for a period of at least twelve months immediately preceding the date of registration or re-registration.
"(b) In the event that a bona fide legal resident of Georgia is appointed as the guardian of a non-resident minor, such minor will not be permitted to register as a resident student until the expiration of one year from the date of the appointment, and then only upon proper showing that such appointment was not made to avoid the non-resident fee.
" (c) If a student is over 21 years of age, he must show that bona fide residence in Georgia was established at least one year prior to the registration date. Any period of time during which a person is enrolled as a student in an educational institution in Georgia may not be counted as a part of the year's residence herein required when it appears that the student came into the State and remained in the State for the primary purpose of attending a school or college. Any period of time during which a person in the Armed Forces is on active military assignment in the State of Georgia may not count as a part of the one year residence requirement." (Emphasis added)
UNIVERSITY SYSTEM OF GEORGIA-Student Residence Requirements (Unofficial)
Where parents are non-residents of State, student over twenty-one years of age must have been resident for full year after attaining twenty-one to qualify for resident tuition fees.
November 21, 1962
President Gerald B. Robins Augusta College
Mr. L. R. Siebert, Executive Secretary of the Regents of the University System, handed us your letter to him with reference to a case of a student who has applied for a change of status from nonresident to resident.
We understand that the student left his parents who resided in South Carolina and moved to Georgia on his own over twelve months ago, and that just prior to the Fall Quarter he became twenty-one years old. You inquire specifically as to whether this student's residence status should be considered under the provisions for a twenty-

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one year old and be judged as meeting the requirements, or must he now reside in Georgia a full year after becoming twenty-one years old to gain residence status.
Under the law the student could not establish his residence in Georgia apart from that of his parents until he became twenty-one years of age. Under the rules and regulations of the Board of Regents with respect to classification of residence and non-residence for fee purposes, it is stated:
"If a student is over 21 years of age, he must show that bona fide residence in Georgia was established at least one year prior to the registration date...."
In our unofficial opinion this means that the student must reside in Georgia a full year after becoming twenty-one years of age for classification as a legal resident of the State of Georgia entitled to pay resident tuition fees.
UNIVERSITY SYSTEM OF GEORGIA-Student Resident Requirements
Student whose only residence in Georgia was on military assignment does not meet one-year residence requirements of Board of Regents.
April 5, 1962
Mr. L. R. Siebert Executive Secretary Regents of the University System of Georgia
I wish to acknowledge receipt of copy of letter from you to Mr. Tom Watson Brown regarding the residence of Mr. Walter P. Mohr.
We have no quarrel with the legal citations submitted by Mr. Brown with respect to legal residence and domicile in the State of Georgia, but for purposes of complying with the rules and regulations of the Board of Regents and Georgia State College in determining eligibility for classification as a legal resident of this State entitled to pay resident tuition fees. Mr. Mohr can not meet the one year's residence requirement.
The rules and regulations above referred to are set out on page 33 of the 1961 - 1962 Georgia State College Catalogue, and provide as follows:
"(c) If a student is over 21 years of age, he must show that bona fide residence in Georgia was established at least one year prior to the registration date. Any period of time during which a person is enrolled as a student in an educational institution in Georgia may not be counted as a part of the year's residence herein required when it appears that the student came into the

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State and remained in the State for the primary purpose of attending a school or college.
"Any period of time during which a person in the Armed Forces is on active military assignment in the State of Georgia may not count as a part of the one year's residence requirement."
Under item 32 a. on the Application Form is printed the following statement:
"To qualify as a legal resident of Georgia, the applicant, if over 21 years of age, must have lived in Georgia for at least one year prior to the registration date. If the applicant is under 21 years of age, his parents or guardians must be bona fide residents of Georiga for at least one year (12 consecutive months) preceding the registration date. In the event the minor does have a guardian who is a legal resident of Georgia, such minor will not be permitted to register as a resident until the expiration of one year from the date of the appointment, and then only upon properly showing that such appointment was not made to avoid payment of the non-resident fee."
The facts in this case with reference to legal residence of Mr. Mohr for purposes of determining compliance with the administrative rules and regulations of the Board of Regents and Georgia State College as disclosed in a memorandum from Mr. William S. Patrick, under date of April 3, 1962, are as follows:
"Mr. Walter P. Mohr was born in Allentown, Pennsylvania, April 27, 1938. He graduated from Allentown High School in 1955. His parents reside in Pennsylvania and have never lived in Georgia. He worked in Pennsylvania as an office clerk, after graduation from high school, until he entered the U. S. Navy in August, 1958. After completing his basic training, Mr. Mohr was sent to the Atlanta Naval Air Station on military assignment. While stationed in Atlanta, Mr. Mohr met a Georgia girl who had been attending the Georgia Baptist School of Nursing. He later married this girl while he was attending the Aviation Electronics School in Memphis, Tennessee, where he had been sent from Atlanta.
"After finishing the Aviation Electronics School in Tennessee, Mr. Mohr was sent to the Jacksonville Naval Air Station in Florida."
It appears that Mr. Mohr has never resided in the State of Georgia except when on military assignment, and under the rules and regulations as set out above this time may not count as a part of the one year's residence requirement.
It is our opinion that Mr. Mohr has not complied with the rules and regulations of the Board of Regents and Georgia State College with respect to eligibility for classification as a legal resident of the State of Georgia entitled to pay resident tuition fees.

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UNIVERSITY SYSTEM OF GEORGIA-Surplus Property
Procedure suggested for disposition of surplus property.
November 16, 1962
Chancellor Harmon W. Caldwell Regents of the University System of Georgia
Recently you handed me a letter addressed to you from iJocwr Edwin D. Harrison, President of Georgia Tech, enclosing two Quitclaim Deeds to property known as the Lawson Apartments, located at Chamblee, Georgia. Dr. Harrison requested that a determination be made if the Regents could now dispose of this project and under what terms and conditions.
We have reviewed the deeds and have examined the Lanham Act (Public Laws 849-76 Congress, Volume 3, page 1125) which governs the transfer and conveyance of government owned property. We find no restrictions or conditions which would affect the sale of the Lawson Apartments by the Regents. The exceptions listed in the two Quitclaim Deeds governing the reservation of uranium, thorium and similar materials if discovered on the land and existing easements, and public utilities and rights of way would, of course, be covenants running with the land and be binding on any purchaser from the Regents.
It would be our suggestion pursuant to the adoption of a resolution by the Board of Regents on November 13, 1962, authorizing the sale of the Lawson Apartments, that an Executive Order be obtained authorizing the sale of the Lawson Apartments, that an Executive Order be obtained authorizing and directing the State Purchasing Department to advertise the property for bids, receive bids, reject or accept bids, and make a recommendation to the Board approving the award and sale to the highest bidder.
WAREHOUSE-Receipts (Unofficial)
Discussion of State Warehouse Act of 1953 and Uniform Warehouse Receipts Act of 1937, as amended.
April 5, 1962
Mr. R. L. Vansant, Director Warehouse Division State Department of Agriculture
Your letter requesting that we furnish you answers to certain inquiries made by Mr. B. T. Brooks, State Bank Examiner, has been received by this office.
Mr. Brooks first asked if the State Warehouse Act requires that any receipt issued to an individual must be endorsed by him when he

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relinquishes his cm1m. In answering this question, I must first point out there are many possible situations which may be visualized as included within this question.
First, the very nature of the receipt, whether negotiable or nonnegotiable; second, whether it is made for transfer to bearer, a specified person, or to a specified person for his order; and third, whether by "relinquishing his claim" is meant taking delivery of the goods, negotiating the receipt to another person, or merely transferring the receipt to another person's custody.
The Georgia State Warehouse Act of 1953, as amended, may be found in Ga. Code Ann., Chapter 111-5. Also for consideration of any question of warehouse receipts and their effects, we must include the Uniform Warehouse Receipts Act of 1937, as subsequently amended, which is found in Chapter 111-4 of Ga. Code Ann.
In listing essential terms required of receipts, we find that Code Sections 111-513 and 111-404 do not require that a receipt be specifically negotiable or non-negotiable, but rather list certain requirements common to all. Section (d) requires:
"A statement whether the goods received will be delivered to the bearer, to a specified person, or to a specified person or his order."
In Section 111-15, we find:
"Every warehouseman . . . shall, without unnecessary delay, deliver ... upon a demand made by the holder of a receipt . . . if such demand be accompanied by . . .
"(b) An offer to surrender the receipt, and if negotiable with such endorsements as would be necessary for the negotiation of the receipt ..."
From this we can see that a receipt issued to a specified person or order would, if requested by the warehouseman, require endorsement from the person to whom originally issued. Any receipt issued for delivery to bearer should be endorsed, but except for presentation to obtain delivery of the goods, could be negotiated by a mere delivery of the receipt without endorsements.
We find nothing further in the State Warehouse Act concerning receipts and their negotiation, but in the Uniform Warehouse Receipts Act, we find many Sections pertaining to negotiation.
"111-439. A negotiable receipt may be negotiated by delivery:
"(a) Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the bearer, or
"(b) Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of a specified person, and such person or a subsequent indorsee of the receipt has indorsed it in blank or to bearer.

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" (c) Where, by the terms of a negotiable receipt, it has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the receipt shall thereafter be negotiated only by the indorsement of such indorsee."
"111-440. A negotiable receipt may be negotiated by the indorsement of the person to whose order the goods are, by the terms of the receipt, deliverable. Such indorsement may be in blank, to bearer, or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer, or to another specified person. Subsequent negotiation may be made in like manner."
"111-441. A receipt which is not in such form that it can be negotiated by delivery may be transferred by the holder by delivery to a purchaser or donee.
"A nonnegotiable receipt cannot be negotiated, and the indorsement of such a receipt gives the transfeee no additional right."
'"111-442. A negotiable receipt may be negotiated by any person in possession of the same, however such possession may have been acquired if, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of such person, or if at the time of negotiation the receipt is in such form that it may be negotiated by delivery."
"111-444. A person to whom a receipt has been transferred, but not negotiated, acquires thereby, as against the transferor, the title of the goods, subject to the terms of any agreement with the transferor.
"If the receipt is nonnegotiable such person also acquires the right to notify the warehouseman of the transfer to him of such receipt, and thereby to acquire the direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt.
"Prior to the notification of the warehouseman by the transferor or transferee of a nonnegotiable receipt, the title of the transferee to the goods and the right to acquire the obligation of the warehouseman may be defeated by the levy of an attachment or execution upon the goods by a creditor of the transferor, or by a notification to a warehouseman by the transferor or a subsequent purchaser from the transferor of a subsequent sale of the goods by the transferor."
"111-445. Where a negotiable receipt is transferred for value by delivery, and the indorsement of the transferor is essential for negotiation, the transferee acquires a right against the transferor to compel him to indorse the receipt, unless a contrary intention appears. The negotiation shall take effect as of the time when the indorsement is actually made."

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All of the preceding may be condensed to several basic statements, which of necessity must be subject to limitations and exceptions. However, we can see that a receipt isued to a specified person is nonnegotiable and may not be negotiated in the common term of the word. It may be transferred, and while this may not give the transferee a right to delivery of the goods, it will, upon notice to the issuing warehouseman by the transferee, cut off all claims of right by the transferor to gain delivery, unless and until there is a subsequent retransfer to the original person named on the receipt, or there is a notification to the warehouseman of a release of the claim. No endorsements would at any time be required upon a nonnegotiable receipt during these transactions except as might be required by the warehouseman upon delivery of the goods. As a matter of practice, a pledge or transfer of a non-negotiable receipt will be accompanied by a notice, and possibly an indication of the transfer which will be found on the rear of the receipt but which should not be construed to be an endorsement.
A receipt issued to a specified person or his order is negotiable, as is one issued with delivery promised simply to "bearer." A bearer receipt does not, under the terms of either law, require any endorsements except as may be demanded by the warehouseman upon presentation of the receipt upon delivery of the goods. Of course endorsements should be, and presumably are, required by each subsequent holder in order that he might have recourse against prior endorsers. A receipt to a specified person or his order would again be subject to the warehouseman's demand for endorsements, but as a matter of law, only an endorsement by the original holder in blank or to bearer would be necessary to make the receipt completely negotiable so that it may be transferred by a mere delivery to subsequent holders. Negotiation or transfer by delivery would not require endorsements.
Thus in answer to his first question, I would give a qualified no. A more definite answer must be predicated upon a definite factual situation, but I believe the above discussion should indicate the answer which he seeks.
He next inquires whether the Warehouse Act requires that receipts reflect the present owner of commodities covered by a receipt. In view of the above, I must again give a somewhat qualified answer, but for all general situations, I would say "no," not necessarily.
In consideration of whether a warehouseman would be amply protected if he makes delivery of commodities described by the original receipt which is not endorsed and is now held by another individual or corporation, we again encounter the stumbling blocks outlined previously of the nature of the receipt. In Ga. Code Ann., Section 111-411, we find:
"111-411. A warehouseman is justified in delivering the goods, subject to the provisions of the three following sections, to one who is:
"(a) The person lawfully entitled to the possession of the goods, or his agent,

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"(b) A person who is either himself entitled to delivery by the terms of a nonnegotiable receipt issued for the goods, or who has written authority from the person so entitled either indorsed upon the receipt or written upon another paper, or
" (c) A person in possession of a negotiable receipt by the terms of which the goods are deliverable to him or order or to bearer, or which has been indorsed to him or in blank by the person to whom delivery was promised by the term of the receipt or by his mediate or immediate indorsee." Further, in Section 111-412, we find:
"111-412. Where a warehouseman delivers the goods to one who is not in fact lawfully entitled to the possession of them, the warehouseman shall be liable as for conversion to all having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of the preceding section and though he delivered the goods as authorized by said subdivisions he shall be so liable, if prior to such delivery he had either:
"(a) Been requested, by or on behalf of the person lawfully entitled to a right of property or possession in the goods, not to make such delivery, or
"(b) Had information that the delivery about to be made was to one not lawfully entitled to the possession of the goods." In Section 111-515, we find:
"111-515. Every warehouseman conducting a warehouse under this Chapter shall, without unnecessary delay, deliver the agricultural product as described on each warehouse receipt issued by him upon a demand made by the holder of a receipt for such agricultural product if such demand be accompanied by (a) an offer to satisfy the warehouseman's lien; (b) an offer to surrender the receipt, and if negotiable with such indorsements as would be necessary for the negotiation of the receipt, and (c) an offer to sign, when the product is delivered, an acknowledgement that it has been delivered if such signature is requested by the warehouseman: Provided, however, that where an agricultural product is stored identity preserved, the actual agricultural product shall be delivered: Provided, further, that no warehouseman shall be deemed to have violated this section by failure to deliver any agricultural product in accordance with its provisions, if such failure is due to loss or damage of the product from a hazard against which insurance is not required under section 111-520 and the regulations issued by the Commissioner pursuant thereto and where such loss or damage does not result from a failure of such warehouseman to exercise that degree of care which an ordinarily prudent person would exercise in the care and protection of his own property: and, Provided, further, that in case of an insured loss such demand may be satisfied by payment of the market value of the product lost or damaged."

603
And finally, in Section 111-516, we find:
"111-516. Except as provided in section 111-514, no warehouseman conducting a warehouse under this Chapter shall deliver any agricultural product for which a warehouse receipt has been issued by him unless such receipt has been first surrendered to him. Immediately upon delivery by him of the agricultural products (he shall) cancel upon the face thereof such receipt surrendered to him."
Thus, for his own protection, a warehouseman may refuse delivery unless the conditions which he is given the option of requiring are complied with. But he would not of necessity be precluded from such, and the question of his ample protection would turn upon the receipt and its terms. However, I would imagine all diligent warehousemen would require the utmost which is allotted to them by law for their p;rotection.
His last question, I assume, has reference to a portion of the writing found on approved original warehouse receipt issued under Chapter 111-5 from which I quote the pertinent portion:
"Undersigned warehouseman is not the owner of the cotton covered by this receipt either solely or jointly, or in common with others, unless otherwise stated herein."
He asked if the warehouseman would be allowed to hold these receipts or should he reissue receipts covering cotton reported to be owned by him so as to reflect its true ownership. The pertinent Code Sections seem to be Sections 111-404:
"Warehouse receipts need not be in any particular form, but every such receipt must embody within its written or printed terms: ...
"(h) If the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership, ...
"A warehouseman shall be liable to any person injured thereby, for all damage caused by the omission from a negotiable receipt of any of the terms herein required."
Section 111-513 of the State Warehouse Act is identical in terminology to Section 111-404 quoted above. For further consideration on this question we must look to Section 111-418:
"111-418. No title or right to the possession of the goods, on the part of the warehouseman, unless such title or right is derived directly or indirectly from a transfer made by the depositor at the time of or subsequent to the deposit for storage, or from the warehouseman's lien, shall excuse the warehouseman from liability for refusing to deliver the goods, according to the terms of the receipt."
And Section 111-452:
"111-452. In any case not provided for in this Chapter, the rules of law and equity, including the law merchant, and in

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particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall govern."
Thus, with the exception of Section 111-452, last quoted, I find nothing which could be construed as directly prohibiting a transaction such as he describes.
Section 111-516 requires that receipts be immediately cancelled when surrendered to the warehouseman for delivery of the goods, but makes no mention of a transfer, negotiation by endorsement or delivery, or the warehouseman in any manner coming into possession of any of the receipts other than surrender or presentation for delivery. My own view is that such acquiring or holding is perhaps bact practice, and could easily result in future liability of the warehouseman. Under some conditions there might be an element of fraud, but this would depend upon the intent, method employed to obtain possession, and the subsequent use of the receipts which were obtained. Therefore, I feel I cannot answer the question other than to say there is no direct prohibition against such practice.
WEAPONS-Knives (Unofficial)
There is no State law regulating length of blades of knives or types of knives which may be sold or possessed.
August 17, 1962
Mr. Sheldon Berns Cleveland 14, Ohio
Your letter addressed to the Secretary of State has been forwarded to this office for reply. The second paragraph of your letter reads as follows: "We are concerned specifically with any laws which may prohibit or restrict or otherwise regulate the length of blades of knives or types of knives which may be sold and/or possessed."
I have checked the law and do not find any statute upon the subject about which you inquire. However, Georgia Code Ann., Section 26-5101 provides as follows:
"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."
Georgia Code Ann., Section 26-5102 provides as follows:
"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

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a court of justice or an election ground or precinct, or any place of public worship, or any other public gathering, except militia muster grounds, shall be punished as for a misdemeanor. This section shall not apply to a sheriff, deputy sheriff, coroner, constable, marshal, policeman, or other arresting officer, or posse, acting in the discharge of their official duties.
Georgia Code Ann., Section 26-5108 provides as follows:
"26-5108. Selling or furnishing weapons to minors.-Any person who shall knowingly sell or furnish any minor with a pistol, dirk, bowie knife, or sword cane, shall be guilty of a misdemeanor. Nothing herein contained shall be construed as forbidding the furnishing of such weapons under circumstances justifying their use in defending life, limb, or property."
Of course, the sale or possession of certain knives or blades of certain kinds could possibly be regulated by city municipalities.
WEAPONS-Pistols (Unofficial)
Citation of laws relative to carriage of pistols and other hand weapons.
May 11, 1962
Mr. James Woodward III Vienna, Georgia
This is to acknowledge receipt of your letter which reads as follows: "Please send me some information on the law concerning hunting with a hand gun in the State of Georgia. If a gun carrying permit is required, what is its purpose."
I am not quite certain what you mean by a hand gun. Code Section 26-5101 of the Penal Code of Georgia of 1933 makes it a misdemeanor for 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.
Code Section 26-5103 reads as follows:
"It shall be unlawful for any person to have or carry about his person or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the ordinary of the county in which the party resides: Provided, that nothing in this law shall be construed to alter, affect, or amend any laws now in force relative to carrying of concealed weapons on or about one's person: and Provided further, that this law shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or the United States, who are now allowed,

606
by law, to carry revolvers; nor to any of the militia while in service or upon duty; nor to any students of military colleges or schools when they are in the discharge of their duty at such colleges."
Code Section 26-5104 provides how a license may be obtained and reads as follows :
"The ordinary of the county in which the applicant resides may grant such license, either in term time or during vacation: Provided, that the applicant shall be at least 18 years old, and shall give a bond payable to the Governor in the sum of $100, 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."
WEAPONS-Pistols (Unofficial)
Not unlawful to carry pistol in vehicle where it is not in contact with person.
May 11, 1962
Mr. Stanley Skarzynski C/o FPO New York, N.Y.
This is to acknowledge receipt of your letter which reads as follows: "Is it legal to carry a loaded hand gun in a vehicle in the State of Georgia, concealed or otherwise?"
For your information, I am enclosing a copy of a letter addressed to Mr. James Woodward, III, which answers your question, as propounded in your letter.
In the case of Hayes v. The State, 28 Ga. App., p. 67, the court held as follows:
"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, 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."

607
WEAPONS-Pistols (Unofficial)
Discussion of laws pertaining to carrying of pistols, licensing, etc.
April 27, 1962
Mr. G. C. Lewis, Jr., Cordele, Georgia
This is to acknowledge receipt of your letter in which you propound five questions in regard to the possession and carrying of pistols.
Question No. 1: "Does a person have to have a pistol license to carry a hand gun in the glove compartment of their automobile?"
Answer: 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 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.
In a case in 28th Ga. Appeals, p. 67, the Court said: "Where owner of pistol while driving horse and buggy had placed under the seat of the buggy the pistol where it was not in contact with his hands or any other portion of his person, he is not in violation of this Section."
The answer to your first question also answers the second question of your letter.
Question No. 3: "Is a hand gun in the glove compartment of an automobile considered concealed?"
Answer: Of course, if the gun is placed in the glove compartment and is not visible, it would be concealed. This does not mean that having a pistol in the glove compartment of an automobile would be in violation of Code Section 26-5101 which reads as follows:
"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, sworn 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."
This Section makes it a misdemeanor for a person to carry certain weapons about his person.
Question No. 4: "If a man with a pistol permit carries a gun in a holster with a coat unbuttoned, is this considered concealment of a weapon? (It is conceivable that a coat could blow and temporarily conceal this weapon for a few seconds.)"
Answer: I am not familiar with any law that authorizes the carrying of a concealed weapon even though it be for a very short time. Of course, if a person has and carries about his person a pistol concealed, even though it be for a few seconds, it would be a technical

608
violation of the law. That makes it a misdemeanor for a person to carry on or about his person a pistol concealed.
Question No. 5: "While the Constitution guarantees the people the right to bear arms and to keep a hand gun in his home, does he have to have a license to bring a gun to a gunshop for repairs? Or if he purchases a gun while in the gunshop does he need to have a license to take the gun home?"
Answer: Code Section 26-5103 which prohibits and makes it unlawful for a person to have and carry about his person or to have in his manual possession outside of his home or place of business any pistol or revolver without first taking out a license from the Ordinary of the County in which the party resides does not make any exception as to carrying a pistol to and from a gunshop. It is my unofficial opinion that if a person should carry a pistol away from his home on his person down town to a gunshop without a license, the fact that he carries it to the gunshop to trade it or have it repaired would make no difference.
The Code Sections dealing with the subject about which you make inquiry may be found under Chapter 26-51 of the Annotated Code of Georgia, 1933, and they are Code Sections 26-5101, 26-5102, 26-5103 and 26-5104.

WEAPONS-Sale (Unofficial) ________ -------- ____ -------- ------------ ________

Laws cited relative to sale of rifles and shotguns.
Mr. W. R. Lichota Dayton 1, Ohio

April 23, 1962

Reference is made to your letter concerning the distribution through your stamp plan of rifles and shotguns.

The only State law which I believe would apply is found in Code Section 92-2016 as follows:

"92-2016. Rifles and cartridges, dealers in.-Upon each and every dealer in rifles and center-fire rifle cartridges, for each
place of business in this State in cities over 200,000 inhabitants, $20; in cities from 75,000 to 200,000, $15; in cities from 40,000 to 75,000 $10; in towns and cities under 40,000, $5: Provided, that any dealer located within a radius of three miles of the incorporated limits of any of said towns or cities shall take the same rate of taxation as the town or city located nearest said dealer. There shall be no tax upon dealers in rimfire cartridges only. (Acts 1935, p. 48; 1955, pp. 636, 637; 1956,
pp. 734, 735.)"

Sections 86-1303 and 86-9907 deal with the closing of places selling fire arms when the militia has been called out, but this is an extreme circumstance about which I think you need not concern yourself.

609
As to local regulations, inquiries as to their laws and ordinances should be made to the various municipalities as they probably vary considerably.
WILLS AND ADMINISTRATION OF ESTATES-Personal Property (Unofficial)
Notes given for purchase price of land are personalty and are subject to administration when holder dies intestate.
April 26, 1962
Honorable James Kytle Williams Miami, Florida
Your letter with reference to notes given as part of a bond for title transaction for land in Grady County, Georgia, has been having our attention. It appears that notes were given to a husband and wife for the purchase price of land in Grady County, Georgia, the purchaser receiving a bond for title, and your question is, upon the death of the husband, are the notes then possessed entirely by the wife, or does she possess an undivided one-half interest in the notes? We are not advised by you if the husband and wife, at the time of the death of the husband, resided in Florida or in Georgia. You raise the question in the first paragraph of your letter with reference to the "Georgia Law on estates by the entireties." The word entirety does not appear to be used in the Georgia law with reference to estates. You, of course, are familiar with the treatment given to it in 30 CJS, p. 264, defining the term as follows: "The term, appears to denote the whole in contradistinction to 'moiety', which denotes the half part." Also see 20 CJ, p. 1272, note 69.
We assume that the title to the land in Grady County vested jointly in the husband and wife and that the ownership of the property constituted a joint enterprise or a joint adventure. It has been held in this State that a husband and wife may lawfully transact business as partners. Morrison v. Dickey, 122 Ga., p. 353; 50 SE, p. 175; 69 LRA, p. 87. The Constitution of Georgia makes provision for a wife's separate estate. (Code of Ga. Ann., Sec. 2-2801.) Also, see provision for the wife's separate property in Code of Ga. Ann., Sec. 53-502, and provision that the wife is a feme sole as to her separate estate in Code of Ga. Ann., Sec. 53-503.
If the husband died a resident of Georgia without lineal descendants, the provision of the rules of inheritance found in Code of Ga. Ann., Sec. 113-903 (1) is appropriate, and reads as follows:
"1. Upon the death of the husband without lineal descendants, the wife is his sole heir, and upon the payment of his debts, if any, may take possession of his estate without administration."

610
Procedure for dispensing with administration is found in Code of Ga. Ann., Sec. 113-1232 to 113-1239. The husband prior to his death held title to an undivided one-half interest in the notes, and the wife likewise held title to an undivided one-half interest in the notes. A promissory note is personal property. Coursey v. Curtis, 18 Ga., p. 237. See also the case of Copeland v. Pyles, 25 Ga. App., p. 95, where the court held, "a recovery in trover by the plaintiff in this case as sole heir of her deceased husband was unauthorized, it appearing that the property in question was subject to administration for the purpose of paying indebtedness of the decedent."
In the case of Bryant v. Atlantic Coastline Railroad Co., 119 Ga., p. 607, the court held "(1). The cause of action for the purchase money of land sold by a deceased owner vests in his administration, and not in his heirs at law." Also, in the case of Hadaway v. Hadaway, 192 Ga., p. 265, the court held in head note 3 that "where an owner of land sells and conveys it without collecting the purchase money and dies intestate before the purchase money is paid, the right of action therefor is ordinarily in his administrator, and not in his heirs at law." Also, see McMullen v. Carlton, 192 Ga., p. 282, where Justice Bell said, "The title to personal property, such as promissory notes, owned by one who dies intestate vests in his administrator for the benefit of heirs and creditors. Code 113-901."
In a situation such as is outlined in your letter, consideration is to be given to the matter of receiving payment of the deceased husband's half interest in the notes as they mature, the enforcement of collection if they become delinquent, and the making of title to the land in Georgia to the holder of the bond for title upon final payment. In this connection, we refer you to Code of Ga. Ann., Sec. 113-16, Receiving and making titles on bonds for title. Contracts for sale of land. We believe after reviewing the procedure provided for therein, you will conclude that if the husband died a resident of Georgia, it would be appropriate to petition the Court of Ordinary for direction, and letters of administration, if necessary.
As previously indicated, we were not advised if the deceased resided in Georgia or in Florida at the time of his death. If he resided in Florida, you will, of course, be much better qualified to determine what action you will wish to take. We would like, however to call to your attention certain statutory provisions in Georgia. In the case of Grote et al, Guardians v. Pace, Administrator, et al, 71 Ga., p. 231, where a woman lived in Georgia and removed to Alabama, it was held that "(3c) The right and disposition of personalty is to be governed by the law of the domicile of the owner and not the location of the property." See also the case of Thomas, Jr., Administrator v. Morrisett, Executor, 76 Ga., p. 384, where it was held "1. The personal property of a deceased person passes and is to be administered according to the law of his domicile."
In the event the deceased died a resident of Florida, and you conclude to have administration of his estate in Florida, we believe it would be appropriate for the administrator to follow the Georgia

611
law which has been outlined in completing the contractual relationship between the parties and included in the bond for title. We assume that the bond for title is recorded in Grady County, Georgia, and that the vendee of the land held under the bond for title is in possession of the property and that he will exercise his rights with reference to obtaining good and sufficient title upon payment of the final installment of the notes in question. Of course, you understand that the bond for title may contain provisions with which we are not familiar, not having an opportunity to review it. The usage of the contract for the purchase of property, known as a bond for title, has become largely obsolete in this State in recent years.
WORKMEN'S COMPENSATION-Civil Defense Volunteers (Unofficial)
Volunteer Civil Defense workers who do not receive compensation for their work are not subject to Workmen's Compensation Act.
April18, 1962
Honorable Jack L. Grantham Deputy Director, Civil Defense Atlanta 2, Georgia
I am in receipt of your letter with enclosures concerning workmen's compensation in North Dakota. Your request was for a review of this information to determine if volunteer workers in your civil defense organization are covered under workmen's compensation. In reviewing the Georgia Civil Defense Act, I find that in Section 9 (Georgia Code, Annotated, Section 86-1809 (b) (2)) there is a provision granting authority to political subdivisions "to appoint, employ, remove or provide with or without compensation, air raid wardens, rescue teams, auxiliary fire and police personnel and other civil defense workers." It is believed that this includes the type volunteer worker you are referring to and since there is no provision for compensation for this work, it is my opinion that such a volunteer is not an employee within the meaning of the term as used in the Workmen's Compensation Act.
In a subsequent Section in the Georgia Civil Defense Act (Georgia Code, Annotated, Section 86-1811) there is a provision for payment to the personnel that compose a mobile support unit if they are not already receiving pay as employees of the State or political subdivisions thereof. Since they would be receiving compensation in this instance, it would seem that they are no longer volunteers but would then be employees of the State and be entitled to workmen's compensation benefits.
The theory and the reasoning behind this opinion is set forth in an official opinion of the undersigned dated March 8, 1955, to the Director of the Georgia Forestry Commission, a copy of which is enclosed.

612
WORKMEN'S COMPENSATION-County Employees (Unofficial)
Sheriff's widow entitled to workmen's compensation benefits.
Administrative personnel assisting Clerk of Court, Ordinary and Tax Commissioner who are paid by those persons with funds received from county are covered by Workmen's Compensation Act.
June 14, 1962
Honorable Thomas W. Ridgway County Attorney, Walton County
I am in receipt of your letter in which you request the unofficial opinion of this office as to three separate questions.
As to the first question, you state that the Sheriff of Walton County died May 28, 1962, from injuries received while in the performance of his official duties. You request our opinion as to whether or not his widow is entitled to Workmen's Compensation benefits.
Your attention is directed to Code Section 92-3701, which states as follows:
"92-3701. Purposes of County Taxes in General.-County taxes may be levied and collected for the following purposes:-
15. To provide for workmen's compensation and retirement or pension funds for officers and employees. . . ."
In view of this, it is my opinion that if the Sheriff of Walton County died as the result of an accident arising out of and in the course of his employment, as required by the Workmen's Compensation Act, as amended, his widow would be entitled to receive Workmen's Compensation benefits.
Your second question is stated as follows: "Our Clerk of the Superior Court, Tax Commissioner and Ordinary are on a salary basis and not commissions. It is necessary for them to hire personnel to assist them in the performance of their duties. Each of them pay their assistants out of the salary paid to them by the county. Are their assistants covered under workmen's compensation?"
It is my opinion that these employees are county employees since they perform county duties and are paid from county funds, therefore, Georgia Code, Ann., 92-3701, as stated above, is applicable to them.
Your third question is as follows: "Our Tax Commissioner has held his office for the past ten years and on January 1, 1960, the fee system for his office was abolished and now he receives a salary from Walton County. Can he now collect a fee on delinquent taxes now being paid but which were due and payable prior to January 1, 1960, when he held this office under the fee system?
I am enclosing a copy of an opinion rendered by this office on November 26, 1957, which I believe is applicable to this situation. The opinion is found in the Opinions of the Attorney General-1957, p. 260.

613
WORKMEN'S COMPENSATION-County Employee (Unofficial)
Counties are employers within the meaning of the Workmen's Compensation Act, as amended, and a deputy sheriff of Floyd County injured in the course of his employment would be covered by the terms of the Act.
October 22, 1962
Mr. Robert G. Walther Attorney, Board of Commissioners of
Roads and Revenues Floyd County
This is in reply to your letter in which you request our unofficial opinion as to whether or not a deputy sheriff of Floyd County, Georgia, is entitled to receive Workmen's Compensation benefits as a result of an accident incurred out of and in the course of his employment.
The 1958 General Assembly amended Georgia Code Annotated Section 114-101 to include each county within the definition of "Employers' as defined in the Workmen's Compensation Act. Counties are employers under this Act involuntarily; therefore, they do not have the right to reject coming under the provisions of the Act as do private employers under Georgia Code Annotated Chapter 114-2.
In view of the above, a deputy sheriff of Floyd County, Georgia, as an employee of Floyd County, would be entitled to receive Workmen's benefits for an injury incurred by him out of and in the course of his employment. A more comprehensive explanation of this problem exists in the Opinions of the Attorney General 1958-1959, page 404 through 406.
WORKMEN'S COMPENSATION-Newspaper Dealers (Unofficial)
Newspaper dealers are employers within the meaning of the Workmen's Compensation Act and would be subject to the requirements of the Act unless exempt therefrom because of having less than 10 employees as provided in the Act.
October 24, 1962
Honorable Brantley Edwards Cedartown, Georgia
This is in reply to your letter in which you requested our unofficial opinion on certain questions relative to Workmen's Compensation.
In your first question, you asked whether or not independent newspaper dealers are required to carry workmen's compensation insurance. Georgia Code, Annotated, 114-101 states that ". . . any individual, firm, association or corporation engaged in any business operated for gain or profit ..." is an employer within the meaning of

614
the Workmen's Compensation Act as amended. Further, Georgia Code, Annotated, 114-107 states that any employer ". . . that has regularly in service less than 10 employees . . ." is exempt from the Act"... unless such employees and their employers voluntarily elect to be bound." Therefore, newspaper companies are within the provisions of the Workmen's Compensation Act as amended unless they come within the stated exception.
As to the second question, any newspaper business that comes within the provisions of the Act would, of course, be bound by such provisions.
Your third question asks whether or not a newspaper dealer would be protected if he carried such insurance. This matter would be governed by the terms of the insurance contract.
In answer to the fourth question, if such newspaper dealer fails to carry workmen's compensation insurance and comes within the provisions of the Workmen's Compensation Act, he would probably be liable as a self-insurer under the provisions of Georgia Code, Annotated, 114-602 and 604.
In the case of newspaper delivery boys, the question might arise as to whether they are employees of the dealer or newspaper business or whether they are independent contractors. With reference to this, the Georgia Court of Appeals in the case of United States Fidelity & Guaranty Co. v. Corbett, et al, 31 Ga. App. 7, held that if the person injured is employed by an independent contractor, the company (newspaper business) is not liable for workmen's compensation. Also, in the case of Davison-Paxon Co. et al v. Ferguson, 94 Ga. App. 501, 502, the Court of Appeals held:
"The test of whether or not a person is an independent contractor is whether the person employed to perform the work was, under the contract, to be free from the control of his employer as to the manner in which he performed the details of the work."
The Court of Appeals has further held that where a company controlled the time and manner of performing the work, the claimant was an employee and not an independent contractor. Old Republic Insurance Co., et al. v. Pruitt, 95 Ga. App. 235, 236; Brewer v. Pacific Employers Insurance Co., et al, 95 Ga. App. 270, 272.

615
WORKMEN'S COMPENSATION-Proximate cause of injury
State employee injured in automobile accident during period when already home recuperating from injury for which workmen's compensation being paid, not entitled to compensation for second injury since it did not arise out of and in course of employment.
June 28, 1962
Honorable J. M. Forrester Director, State Board of Corrections
This is in reply to your letter of June 27, 1962, in which you request my opinion as to whether or not the State Department of Corrections is liable, under the Workmen's Compensation Act, for injuries incurred by one of your employees as a result of an automobile accident on May 17, 1962.
It appears that this employee, at the time of said accident, was receiving workmen's compensation payments from the Department of Corrections as a result of an injury incurred by him out of and in the course of his employment on December 2, 1961. It further appears that said employee was recuperating at his home and had not engaged in any work for the State Department of Corrections since his original injury on December 2, 1961.
I direct your attention to Georgia Code Ann., 114-102 which reads as follows:
"'Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment and shall not, except as hereinafter provided, include a disease in any form except where it results naturally and unavoidably from the accident, nor shall 'injury' and 'personal injury' include injury caused by the wilful act of a third person directed against an employee for reasons personal to such employee."
In the case of Bibb Manufacturing Co. v. Alford, 51 Ga. App. 237, the Georgia Court of Appeals held: "An accident arises in the course of employment, within the meaning of the act, when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. . . . An accident arises out of the employment when it arises because of it, as when the employment is a contributing proximate cause. This and the conditions stated above must concur before the Act can apply." Also, in the case of Fidelity & Casualty Company, et al. v. Roberts, 86 Ga. App. 472, the Court of Appeals held that an accident arises in the course of employment when the employee is in the process of executing the duties which he was hired to do, or he must be engaged in doing something incidental to such duties. In the case of Francis, et al. v. Liberty Mutual Ins. Co., 95 Ga. App. 225, 226, it was held: "The terms 'in the course of' and 'out of' are not synonymous. Both must concur to render the case a compensable one." The Court further held that there must be some casual connection between the

616
conditions of employment and the injury the employee incurred. Also, the Court said that the causative danger must be incidental to the character of the employment, "and not independent of the relation of master and servant. The accident must be the resulting one from a risk reasonably incident to the employment." Also, in the case of U. S. Fidelity & Guaranty Company, et al. v. Hamlin, 98 Ga. App. 167, 175, the Court held that the employee's right to receive compensation under the provisions of the Workmen's Compensation Act depends upon whether or not it is established that when injured he was engaged "in work necessary or reasonably incident to the purpose of his employment." The final test is "whose work was the servant doing and under whose control was he doing it?"
When the facts of this case are applied to the above cited authority, it seems rather clear that certain factors are absent which must be present in order for this to be a compensable case. In the first place, the employee was not engaged in the course of his employment since he was not executing any duties for the Department of Corrections at the time of the incident on May 17, 1962. Secondly, the employee was not injured out of his employment (that is, because of his employment) since it does not appear that any job performed by the employee for the Department of Corrections was the contributing proximate cause of his injury incurred on May 17, 1962. Although the employee was originally injured on the job as a result of a blow on the head, it seems to me that any effect this injury may have had in bringing about this subsequent injury as a result of the automobile accident is, at the most, extremely remote.
In view of the foregoing stated authority, it is my unofficial opinion that the Department of Corrections is not liable under the Workmen's Compensation Act for any medical expenses for any injuries incurred by the employee as a result of the automobile accident in which he was involved on May 17, 1962.
WORKMEN'S COMPENSATION-Students (Unofficial)
Students at agricultural school working with farm machinery dealer as part of their curriculum with course credits given for work are not employees within meaning of Workmen's Compensation Act.
July 17, 1962
Honorable T. M. Cordell, Dean Abraham Baldwin Agricultural College Tifton, Georgia
This is in reply to your letter of July 10, 1962, in which you request my unofficial opinion on the question of whether or not young men in their sophomore year at your institution would be entitled to receive workmen's compensation benefits as the result of an injurY

617
incurred while serving a period of about three months with a farm machinery dealer.
From the information supplied by you in your letter, it appears that these boys receive 15 hours of credit at the school for performing satisfactory work in service, sales and parts departments of these farm machinery dealers.
Ga. Code Ann., 114-101 defines "employee" as follows:
" 'Employee' shall include every person in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profesion of the employee and, except as hereinafter provided, minors are included even though working in violation of any child labor law or other similar statute: Provided, that nothing herein contained shall be construed as repealing or altering any such law or statute. Any reference to any employee who has been injured shall, when the employee is dead, include also his legal representatives, dependants and other persons to whom compensation may be payable, pursuant to the provisions of this law. All firemen and policemen whose compensation is paid by the State or any county or municipality, regardless of the method of appointment or employment, are hereby specifically included herein."
Since these boys are in a period of training which is a part of their educational course of studies at Abraham Baldwin Agricultural College and since they receive academic credits for performing satisfactorily with the farm machinery dealer, it is my unofficial opinion that they are not "employees" as defined in the Workmen's Compensation Act, but rather are students of the Agricultural College. Therefore, it is my unofficial opinion that if one of these boys should receive an injury during this three months period, he would not be entitled to workmen's compensation benefits.

619
INDEX
OPINIONS OF THE ATTORNEY GENERAL
1962
Page
. ADOPTION See PARENT AND CHILD, this Index.
AGRICULTURE Agricultural Commodities Authority May buy building for Commission for Peanuts ______________________ 1 Act establishing, not repealed by Agricultural Commodities Promotion Act of 1961 ------------------------------------ 3 Bonding of Dealers Discussion of laws ----------------------------------------------------------------------- 4 Cooperative Marketing Associations Formation and activities __________ ------------------------------------------------- 5 Gasoline Tax Refunds What constitutes "agricultural products" and "farm products" for tax refund purposes ____________________________ 8 See, also, TAXATION, this Index. Georgia Milk Commission Discussion of laws relating to --------------------------------------------------- 13 Leasing of Tobacco Allotment May be done at State Prison Farm -------------------------------------------- 14 Pest Control Structural Pest Control Act ----------------------------------------------------- 14 Poultry Production May be "farming" for gasoline tax refund purposes ____________ 16 Soil Conservation Districts Automobile liability insurance ---------------------------------------------------- 17 Virus Vaccines Licensing, labeling and other controls -------------------------------------- 18
ATTORNEY GENERAL See STATE GOVERNMENT, this Index.
BANKS AND BANKING Bank Charters Bank chartered before 1919 ------------------------------------------------------- 19 Bonds of Public Authorities Investments of banks in ------------------------------------------------------------ 19 Loans Security for loans-------------------------------------------------------------------------- 23 Security For Public Monies Held by Bank Banks must provide security ---------------------------------------------------- 24 Revenue Bonds of State Authorities Are general obligations of State ----------------------------------------------- 25
BILLS AND NOTES See NEGOTIABLE INSTRUMENTS, this Index.

620

Page

BOUNDARIES

County

Boundary between Butts and Jasper Counties ~~~ ~~~~~~~~~~ ~~~~~~ 42

Boundary between Telfair and Coffee Counties ~~~~~~~~~ ~~

44

State

Boundary between Georgia and Alabama ~~~~~~~~~~~~ ~-~ ~~~

26

CIVIL DEFENSE

Counties

Civil Defense Act of 1951 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~~~~~~ 27

Duties of State Officials

Delegation of responsibilities ~~~~~~~~-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~~

29

Emergency Interim Successors

Clerk's successor should be appointed

even though he has deputies ~~~~~~~~~~~-~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~

32

Need not be public official to be named ~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~~~~ 32

Not applicable to City Court judges or

members of General Assembly ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 31

Not applicable to Superior Court judges ~~~~~~~~~~~~~~~~~~~~~~~~~~~-~----~ 30

Southern Interstate Nuclear Compact

Purpose ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

33

See, also, TAXATION, Sales and Use Tax, this Index.

CITIES See MUNICIPAL CORPORATIONS, this Index.

COMPTROLLER GENERAL See STATE GOVERNMENT, this Index.
CONSTITUTIONAL LAW Amendments Method of amending Constitution discussed ~~~~~~~~~~~~~~~~~~~~~-~~~ 34 See also, ELECTIONS, GENERAL ASSEMBLY, this Index. Delegation of Legislative Authority Sections 2 and 26 of Ga. Laws 1949, pp. 1057 ruled unconstitutional ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~ 36
CORPORATIONS Electric Membership Corporation May lend money to members ~~~~~~~~~~~~~ ~~ ~~~~~~-~~~~~~~~~~~~~~~~-~~~-~~~~~~ ~ 40 Registration Registration under Regulation of Professional Fund Raising Act ~~~-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~~ 41 Stock Brokers and Stock Exchanges Retention periods for records ~~~-~~~~~~~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 42
COUNTIES Boundaries Butts and Jasper Counties ~~~~~~~~~~~~~~~~~~~~~~~~~~~~-~~~--------------------~~ 42 Telfair and Coffee Counties ------------~~~~-~~~--------------~-~~~~~~~~~~~~-~~--~-- 44 Budget Allocations Whitfield County ------------~~~~-~~-----------------~~~-~~~-----------------~~-----~-~~~~- 47 Commissioners of Roads and Revenues Voting procedures -------------~~~~~----------~--~~~-~~~--------------------------------~~ 48

621

Page

COUNTIES-continued Conflict of Interests Justice of peace may be member of County Democratic Executive Committee __________________________________________ 50

See, also, COUNTY OFFICIALS below. Constables and Policemen

Constable is not a policeman ------------------------------------------------

50

County Officials

Cannot at same time be ordinary and county attorney __

61

Deputy sheriff may be member of Board of

Tax Assessors ---------------------------------------------------------------------------- 56 Doing business with counties ----------------------------------------------------- 57 Justice of peace may be county commissioner __________________________ 53

Member of Board of Education may be member

of General Assembly ----------------------------------------------------------- 52 Member of Board of Tax Assessors cannot also

be member of Board of Education ---------------------------------------- 58 Ordinary cannot take as salary money intended

for clerical help ------------------------------------------------------------------------- 51 Payment of Clerk and sheriff ---------------------------------------------------- 55 Tax assessor cannot also be county commissioner __________________ 62

County Police

Have same arrest powers as sheriff ------------------------------------------ 63 County Surveyor

Duties defined -------------------------------------------------------------------------------- 64 Employees
Eligibility for membership in Employees'

Retirement System ----------------------------------------------------------------- 65 Forestry Unit
Sa1aries ____________________________________________________________________________________________ 65

Law Enforcement Officers Defense where indicted for Federal violation ________________________ 67

Legal Advertising Designation of official organ ~----------------------------------------------------- 68
Military Leave of County Officers

Discussion of laws pertaining to ------------------------------------------------ 69 Payment of Officials

Legislature may change system ------------------------------------------------ 70 Peach County
Powers of certain officials discussed ---------------------------------------- 73 Planning and Zoning Expenses
Considered public health functions ------------------------------------------- 76 Sewerage Facilities
County cannot provide for private home with

public funds ------------'--------------------------------------------------------------------- 77 Sheriffs
Fees in criminal cases ________________________________________________________________79, 85

Fees for endorsement of delinquent license tag

applicat ions ------------------------------------------------------------------------------- 80, May appoint chief of police as deputy ---------------------------------------- 81

622

Page

COUNTIES-continued

Procedure for cancellation of bond -------------------------------------------- 78 Travel expenses --------------------------------------------------------------------------- 83 Turn key fees -------------------------------------------------------------------------------- 82 Social Security Coverage for Officials and Employees
McDuffie County -------------------------------------------------------------------------- 87 Tax Surplus
May use for construction of county airport ___________________________ 88

COURTS

Clerks

Recovery against official bond -------------------------------------------------- 89 Comity

Recognition of laws of other jurisdictions

relative to adoptions ---------------------------------------------------------------- 90

See, also, RECIPROCITY, this Index.

Costs

State does not pay under Uniform Reciprocal

Enforcement of Support Act -------------------------------------------------- 92

Judge Emeritus

Eligibility requirements -----------------------------------------------------

93

Judges Salaries

Fixed by General Assembly -------------------------------------------------------- 94

May be raised but not lowered ---------------------------------------------------- 95 Justices of the Peace

Discussion of duties and powers ------------------------------------------------ 96

Duties, etc., same for notary public ex

officio justice of the peace ----------------------------------------------------- 99

Inspection of records -------------------------------------------------------------------- 101 Justice courts in cities with population

in excess of 5,000 ---------------------------------------------------------------------- 101

Notaries public, procedure for appointment ---------------------------- 103

Payment of justices of the peace ------------------------------------------------ 100 Peace Warrants

Superior Court has power to dismiss or

continue bond --------------------------------------------------------------------------- 104 Recording in Superior Court

Credit unions need not record charters ------------------------------------ 105 Reporters

Payment of expense allowance ------------------------------------------------- 106 Representation by Counsel

Counsel for indigent persons ------------------------------------------------------ 108

CRIMINAL LAW Arresting Officers Constable may accept bonds in misdemeanor cases if approved by Sheriff ---------------------------------------------------- 111 Bastardy Proceedings
Discussion of laws relating to ---------------------------------------------------- 112 Blue Laws
Discussion of conduct of business on Sunday _________________________ 113

623

Page

CRIMINAL LAW-continued

Discussion of activities prohibited on Sunday ------------------------ 114

Capital Offenses

Crimes for which death sentence may be imposed ________________ 117

Child Abandonment

Discussion of laws relative to --------------------------------------------------- 119

Consecutive Sentences

Payment of fine in one sentence abates that

sentence, leaving other in effect -------------------------------------------- 119

Court-appointed Counsel

Payment for services -------------------------------------------------------------------- 120

Court Costs

Cost of feeding prisoner awaiting trial collectible

as part of court costs ---------------------------------------------------------------- 121

Criminal Warrants

Discussion of form __________________________--------------------------------------------- 124

Disenfranchisement

Discussion of crimes for which disenfranchise-

illent follows ------------------------------------------------------------------------------ 124

Fees

Sheriff's and justice of peace fees discussed ------------------------- 126

Felonies

Felonies and punishment discussed ------------------------------------------ 127

Juveniles

Discussion of juvenile offender laws --------------------------------------- 128

Mental Competency



Determination of -------------------------------------------------------------------------- 130

Loss of Civil Rights

Crimes causing ---------------------------------------------------------------------------- 131

Probation

Court passing sentence retains jurisdiction

over probation ------------------------------------------------------------------------- 134

Refusal to Leave Premises

Violation of owner's property rights --------------------------------------- 136

Successive Violations Each different criminal act is separate crime ________________________ 137

Validity of Sentence

Court, not Board of Corrections, determines ---------------------------- 138

Venue

In county where dependency begins in child

abandonment case -------------------------------------------------------------------- 138

DEPARTMENT OF LAW See STATE GOVERNMENT, this Index.

DOMESTIC RELATIONS Disabilities Under Divorce Decree
Procedure for removal ----------------------------------------------------------------- 140 Marriage Licenses
Age requirements --------------------------------------------------------------------- 142 Evidence of age must be shown to obtain -------------------------------- 140

624
Page
DOMESTIC RELATIONS-continued Race and color need not be recorded on license but must be recorded on application ____________________________________ 141
Uniform Reciprocal Enforcement of Support Act Court Costs ------------------------------------------------------------------------------------ 92 Father must support minor child ---------------------------------------------- 143 See PARENT AND CHILD, this Index.
DOMICILE AND RESIDENCE Domicile primarily question of intent ------------------------------------------ 144
EDUCATION Appointment and Terms of County Board of Education Procedure discussed --------------------------------------------------------------_______ 145 County Board of Education Cannot expend county funds for private audit of income from extra-curricular activities -------------------------------- 155 Chairman is voting member -------------------------------------------------------- 146 Conflict of interest of member -------------------------------------------------- 149 May transfer teacher from one school to another __________________ 152 Meetings must be open to public ------------------------------------------------ 151 Definitions of "School Purposes" and "Educational Purposes" Terms not synonymous ---------------------------------------------------------------- 157 Georgia Industrial Institute Department of Corrections may contract with Habersham County to obtain Federal funds ________________________ 163 Department of Corrections may supplement teachers' salaries ---------------------------------------------------------------------- 162 Teachers are employees of Habersham County ______________________ 160 Public Schools Bible reading required ----------------------------------------------------------165, 166 Pupil Placement Pupils may be classified according to sex -------------------------------- 167 School Buildings Board of Education may permit private or public use __________ 170 School Buses for Private Schools No free transportation for parochial or private schools ________ 174 State Board of Education Has authority to dismiss employees of Department of Education -------------------------------------------------------- 177 Not liable for accidental injury to students ____________________________ 175 Teachers' Political Activities Professors and teachers not prohibited from engaging in -------------------------------------------------------------------------------- 183 Teacher Qualifications No specific residence requirements for teachers ____________________ 184 Teaching of Communism "Communism v. Americanism" should be taught __________________ 185 Term of Superintendent's Contract Restricted to one year ------------------------------------------------------------------ 185

625
Page
EDUCATION-continued Use of Educational Funds May not use school funds to improve public road _________________ 189 Workman's Compensation County governmental officials rather than Board of Education responsible for employees ____________________ 193
ELECTIONS Bonds Must be held in strict conformity with law ___________________________ 194 Candidates Residence requirements -------------------------------------------------------------- 196 Candidates for General Assembly P etition requirements ------------------------------------------------------------------ 196 Constitutional Amendments Majority vote defined ------------------------------------------------------------------ 197 County Primaries Candidates for General Assembly may be nominated in ________ 198 County Unit System Reapportionment of House of Representatives _____________________ 199 Development Authorities Cartersville Development Authority ----------------------------------------- 200 Expenses of Officials No specific form required for filing statements ______________________ 201 Mail Vote Not applicable to municipal primary elections ________________________ 201 Nominating Petitions No specific form required ---------------------------------------------------------- 203 Discussion of laws relative to ---------------------------------------------------- 205 Nomination Requirements Floyd County Republican candidates ------------------------------------- 208 Plurality or Majority of Votes Plurality is suffiicent to elect ---------------------------------------------------- 210 Political Fund Raising Not subject to Regulation of Professional Fund Raising Act ------------------------------------------------------------------------------- 210 Primaries Candidate for General Assembly ------------------------------------------------ 214 County primary laws discussed ------------------------------------------------- 213 Jackson County ---------------------------------------------------------------------------Party determines number of votes necessary for nomination ------------------------------------------------------------------------- 213 Party holding bears expense of holding ____________________________211, 215
Party not required to hold --------------------------------------------------------- 211 Primary and General Elections
Party cannot dispense with general elections but may abolish primary -------------------------------------------------------- 215
Registration Requirements Moving to another county --------------------------------------------------------- 216 See Voter Registration below.

626
Page
ELECTIONS-continued Returns Turned over to clerk of superior court -------------------------------------- 217 School Consolidation BIeckley County ---------------------------------------------------------------------------- 218 Special Elections Absentee voting laws do not apply to special elections ------------------------------------------------------------------------ 221 Ordinary to hold ------------------------------------------------------------------------- 221 State Senate Requirements of candidacy ------------------------------------------------------- 222 Voter Disqualification Disenfranchisement for conviction of crimes__________________________ 223 See also CRIMINAL LAW, this Index. Voter Qualifications Literacy requirements ----------------------------------------------------------------- 224 Voter Registration Deadline for registration ------------------------------------------------------225, 226 Deadline for registration for early primary ___________________________ 230
Discussion of registration dates ---------------------------------------------- 227 Legislation required to establish additional
registration places ------------------------------------------------------------------ 229 Military personnel ----------------------------------------------------------------------- 231 Voter registration cards may be segregated ___________________________ 225 Voter Registration Lists Candidates may copy lists --------------------------------------------------------- 239 Citizen may reasonably inspect -------------------------------------------------- 232 Lists for several wards within district ----------------------------------- 233 Proper lists essential to validity of election ___________________________ 238
Proper lists for school bond election ---------------------------------------- 234 Voting Age Requirements
Person under 18 may register but not vote ______________________240, 241 Voting Split Ticket
Procedure discussed ----------------------------- --------------------------------------- 241 Write-in Votes
Significance guaranteed in general election ---------------------------- 242
EMPLOYMENT Deceased Employee Salary due deceased employee ---------------------------------------------------- 242 Minors Summer employment --------------------------------------------------------------- 243 See COUNTIES, PENSIONS AND RETIREMENTS, STATE GOVERNMENT, WORKMEN'S COMPENSATION, this Index.
EVIDENCE Illegal Searches and Seizures Evidence obtained by, admissible in State courts __________________ 244
FOOD AND DRUGS Soft Drinks Labeling and licensing requirements ---------------------------------------- 245

627
Page
FORESTRY State Forestry Law Registration requirements ---------------------------------------------------------- 245
GAME AND FISH Commercial Fishing No limitations on commercial fishing gear ---------------------------- 247 Licenses Disabled veteran not exempt ----------------------------------------------------- 248 Posting Lake bordering navigable river ------------------------------------------------ 249 Regulations Killing of alligators and dealing in furs ----------------------------------- 250 Violators may be prosecuted ------------------------------------------------------ 251 Seizure Seizure of shrimp and nets ---------------------------------------------------------- 252 Trapping Game wardens trapping foxes --------------------------------------------------- 252 Violations Peach County _------------------------------------------------------------------------------- 253
GARNISHMENT Discussion of laws ------------------------------------------------------------------------ 255 Teachers' Salaries ------------------------------------------------------------------------ 256
GENERAL ASSEMBLY Constitutional Amendments Submission by Assembly to electorate ------------------------------------- 258 House of Representatives Definition of "constitutional majority" --------------------------------- 259 Membership Member of County Board of Welfare cannot be Member of General Assembly -------------------------------------------- 260 Juvenile Court Judge cannot be Member of General Assembly ________________________________________c____________________261, 265
Each House judge of election and qualification of members -------------------------------------------------------------------------------- 266
See ELECTIONS, this Index.
GEORGIA HISTORICAL COMMISSION See STATE GOVERNMENT, this Index.
HIGHWAYS Airport Construction Highway Department authorized to construct airports, but no funds appropriated therefor ______________267, 268 Axle Loadings and Gross Weight Restrictions Permits and fees for overweight vehicles ----------------------------- 270 Construction Contracts Proceeds where Federal aid involved cannot be pledged to secure debt -------------------------------------------------------------- 273 Maintenance and Repairs Contract may be let by negotiation ------------------------------------------ 274

628

Page

HIGHWAYS-continued Property Acquired Through Fi Fa
Must be sold or rented ------------------------------------------------------- -------- 275 Relocation of Municipally Owned Utilities
State may pay for where necessitated by
highway construction -------------------------------------------------------------- 276 Rights of Way
Cost of relocation of telegraph facilities ---------------------------------- 282 Stone Mountain Memorial Association
May acquire rights of way for highway construction to be conveyed to Highway Department ______________________________ 285
See STATE GOVERNMENT, this Index.

INSURANCE

Adjusters

For life, accident and health insurance, need

not procure license --------------------------------------------------------

285

Commissions

Payment to corporation -------------------------------------------------------------- 286

Domestic Companies Cannot remove home office to another state ____________________________ 287

Domestic Mutual Insurance Companies

Security requirements ----------------------------------------------------------------- 288 Fraternal Benefit Societies

Requirements for qualification -------------------------------------------------- 289 Group Life Insurance

May include non-resident insureds -------------------------------------------- 291 Life Insurance Companies

May purchase own stock -------------------------------------------------------------- 292 Loan Insurance
Premiums payable under Industrial Loan Act ________________________ 293

Mutual Insurance Companies

May organize capital stock company as subsidiary ________________ 294

Valuation of Securities Held by Insurer

Insurance Commissioner may value ----------------------------------------- 295

INTEREST See LOANS, this Index.

INTOXICATING LIQUORS Attachment Liquor may be attached like other property __________________________ 296
Contraband Liquor Must be turned over to Revenue Commissioner ______________________ 297
Malt Beverages "Home brew" subject to malt beverage laws ____________________________ 297
Manufacture and Sale of Wine
Laws relating to domestic wines ------------------------------------------------ 298 Possession
Alcohol must have tax stamps ---------------------------------------------------- 299 Price Lists
May be disclosed by Revenue Department to National
Alcohol Beverage Control Association ---------------------------------- 300

629

Page
INTOXICATING LIQUORS-continued Wholesale Dealers May purchase liquor on credit ---------------------------------------------------- 300

LEGISLATION See GENERAL ASSEMBLY, this Index.

LOANS

Interest

Legal rates

301

MILLEDGEVILLE STATE HOSPITAL See PRISONS AND PRISONERS, PUBLIC HEALTH, this Index.

MOTOR VEHICLES Certificate of Title Act Correction of errors -------------------------------------------------- ___________________ 311 1962 vehicles need not be registered ________________________________________ 306

"Mobile homes" are "vehicles" -------------------------------------------------- 303 No particular form of security instrument prescribed ____________ 308 Perfecting security interests ------------------------------------------ ____________ 309 Procedure for recording security interest -------------------------------- 308 Registration commences with 1963 models ________________________303, 307 Relative priority of security interests _____________________________________ 310
Security interests on older models protected _____________________ 305

Damages

State not liable for damages for acts of employees

311

Dealers

Must register with Revenue Commissioner ______________________

312

Drivers Licenses

Expiration dates -------------------------------------------------- _________________

314

Procedure for appeal from revocation _____________________________________ 316

Revocation mandatory for offense of driving under

influence of alcohol ------------------------------------------------------------------ 313 Use of another person's a misdemeanor ____________________________________ 312

Veterans of Korean War -------------------------------------------------------------- 317

House Trailers Discussion of laws pertaining to ------------------------------------------------ 318

License Tags Basing Florida automobiles in Georgia ------------------------------------ 322 Classification into private and for-hire categories __________________ 320
Dealer tags ------------------------------------------------------------------------------------ 323 Issued to Swedish Consul free ---------------------------------------------------- 319 Reciprocity-Alabama based cabs ---------------------------------------------- 321 Residents' automobiles in state must have ------------------------------ 323

Motor Common Carriers Subject to license tag fee ------------------------------------------------------------ 324

Weight and Size Restrictions Fines applicable for violations ------------------------------------ --------------- 326 Saddle-mount operation of two trucks -------------------------------------- 328

630

Page

MUNICIPAL CORPORATIONS

Annexation

Extension of corporate limits is power of General Assembly__ 331

Bond Issues



Bond money cannot be spent for improvement of private

property, even for public shelters ------------------------------------------ 332 City Officials

City official holding County Democratic Executive

Committee membership ------------------------------------------------------------ 334 Holding two city offices -------------------------------------- ______________________ 333

City Ordinances Police may arrest sheriff for violation of ________________________________ 335

Contributions Cities cannot contribute to private corporations ______________________ 336

Financing of Improvements Bond issue proceeds insufficient to finance improvements ___ 337

Loans Cities may make in certain circumstances ________________________________ 339

NEGOTIABLE INSTRUMENTS Money Order Money order is commercial paper -------------------------------- _____________ 340

NEWSPAPERS See COUNTIES, Legal Advertising, this Index.
PARENT AND CHILD Adoption Adult person may be adopted ---------------------------------------------------- 341 Consent necessary ------------------------------------------------------------------------ 342 Retention of records -------------------------------------------------------------------- 343 Change of Name Serviceman cannot have name changed by foreign court without surrendering citizenship -------------------------------- 345 Child Support Discussion of laws covering dependent children ____________________ 346
Parents liable until child reaches 18 ---------------------------------------- 346 Uniform Reciprocal Enforcement of Support Act
Children may be liable for support of needy parents ______________ 348
Effective in substantially all states ------------------------------------------ 348 See COURTS, DOMESTIC RELATIONS, this Index.
PARKS Concession Agreements Furnishing of supplies by concessionaire -------------------------------- 351 State Disposal of surplus and unserviceable property ---------------------- 351 Responsibility for closing lake to swimming lies in Health Commissioner ---------------------------------------------------------------- 354
PENSIONS AND RETIREMENTS Cities and Counties Retirement plans for cities and counties are constitutional ---------------------------------------------------------------------------- 355

631
Page
PENSIONS AND RETIREMENTS-continued Employees' Retirement System County tax officials and employees -------------------------------------------- 367 Credit for military service -----------------------------------------~----~---------- 366 Definition of state employment -------------------------------------------------- 368 Employees of Southern Interstate Nuclear Board __________________ 364 Failure of member to be reelected constitutes involuntary separation ------------------------------------------------------------ 364 Members prior to February 13, 1962 ---------------------------------------- 356 Service as county constable not creditable State service ----------------------------------------------------------------------------- 361 Transfer from Teachers' Retirement System to Employees' Retirement Systeni ---------------------------------------------- 362 Peace Officers Annuity and Benefit Fund Commissioners may construct building for Fund's use ______ 369
Retail Employees No laws covering retirement plans for retail employees ________ 370
Teachers Retirement System May invest in secured and unsecured notes subject to restrictions ------------------------------------------------------------------------ 370 Minimum benefits on retirement -------------------------------------------- 372
POST MORTEM EXAMINATIONS Autopsies Laws discussed ---------------------------------------------------------------------------- 374 Compensation Additional compensation for Baldwin County coroner _______ 375
Post Mortem Examination Act Provisions for making examinations discussed ________________________ 377
PRISONS AND PRISONERS Change of Penal Institutions Alcoholic able to serve sentence outside hospital may be transferred to prison -------------------------------------------------------- 378 Convict Labor May be used to construct school gymnasium though private contractor constructing ---------------------------------------------- 379 Death of Inmate State not liable for ------------------------------------------------------------------------ 379 Department of Corrections May accept typewriters for juvenile education ______________________ 380
Escapees State not liable for injuries to ---------------------------------------------------- 380
Milledgeville State Hospital Admission of alcoholic or dope addicted prisoner -------------------- 381
Transportation No particular types of vehicles required ---------------------------------- 282
Tubercular Prisoners Sent to Battey State Hospital --------------------------------------------------- 383

632

Page

PROFESSIONS, BUSINESSES AND TRADES Billiard Rooms Licensing requirements ---------------------------------------------------------------- 383 Dispensing Opticians Act Prescription and sale of eye glasses ------------------------------------------ 384 Engineers Licensing and practice -------------------------------------------------------------- 386 Fund Raising Organizations Regulation of Professional Fund Raising Act _______________________ 387 Nurses Giving intravenous medicine ------------------------------------------------------ 388 Podiatrists Advertising ------------------------------------------------------------------------------------ 388 Podiatry and Osteopathy Practice discussed ------------------------------------------------------------------------ 389 Psychologists Licensing ------------------------------------------------------------------------------------- 391 Veterinary Medicine County agent advising farmer on livestock __________________________ 392
Laws governing practice ---------------------------------------------------------- 393

PROPERTY Realty No State surveyor available to survey private property ________ 394
State Anchoring of boats in State park ---------------------------------------------- 402 Deed with reversionary clause ---------------------------------------------------- 395 Easement for sewer over property _________ ----------------------------------- 404
Easement for waterline over property -------------------------------------- 403 Expenditure of State funds for improvements _______________ 396, 398
Governor determines unserviceabiiity ---------------------------------------- 400 Lease of grazing rights on State property ------------------------------ 402 Use of road on State property ---------------------------------------------------- 401

PUBLIC HEALTH

Commitment to Mental Hospital

Commitment not tantamount to adjudication

of incompetency ------------------------------------------------------------

407

Definition of "three nearest adult relatives" in

commitment proceedings --------------------------------------------------------

Drug Inspectors

Have no authority to make arrests nor carry weapons __________ 413

Economic Poisons Act Out-of-state manufacturer must designate agent

for service of process -------------------------------------------------------------- 414

Hospital Authorities Cannot delegate to medical staff authority to
approve or disapprove staff members ------------------------------------ 415

Insane Persons Laws governing commitment ------------------------------------------------------ 417 Obtaining discharge after commitment ------------------------------------ 418

633
Page
PUBLIC HEALTH-continued Mental Health Ordinary committing person may arrange necessary transportation to institution ---------------------------------~-------------- 418 Mental Health Act Hospitalization under 1960 Act not equivalent to adjudication of incompetence -------------------------------------------------- 419 Rabies Control Discussion of laws relating to --------------------------------------------------- 420 Impounding of dogs ---------------------------------------------------------------------- 421 State Board of Health Not engaged in corporate practice of medicine ______________________ 422
Student Vaccination Vaccinations in public schools required against polio and smallpox ------------------------------------------------------ 424
PUBLIC OFFICERS Bond Requirements Requirements for bonding public officials ________________________________ 425
PUBLIC RECORDS Preservation and Reproduction Discussion of laws pertaining to ____________________________ ___________________ 427
PUBLIC SAFETY Department of Public Safety Subsistence allowance for officers and troopers ____________________ 429
Fire Fighting No general laws governing fire departments in unincorporated areas ---------------------------------------------------------- 430
Fireworks Act prohibiting is valid ---------------------------------------------------------------- 430 State Patrol may seize fireworks ---------------------------------------------- 431
Georgia Bureau of Investigation Makeup and duties ------------------------------------------------------------------------ 432 Special agents in Crime Laboratory are not ''enforcement officers'' ----------------------------------------------------------- 434
Georgia State Patrol Uniformed members may not accept payment from proceeds of sale of seized vehicles ---------------------------------------- 436
Water Skiing Life preservers required -------------------------------------------------------------- 437
PUBLIC SERVICE COMMISSION Motor Carriers Transporter of materials on public highways subject to Commission regulation ---------------------------------------- 438
PUBLIC WELFARE Social Security Blind persons and old-age benefit recipients ---------------------------- 440

634
Page
PURCHASES State Motor vehicle -------------------------------------------------------------------------442, 443 Two-way radios for Revenue Department cars ________________________ 442 Preference to Georgia products by State Purchasing Department ---------------------------------------------------------- 443 Junior Fire Marshal badges for Comptroller General ____________ 444 Pens with fire safety message --------------------------------------------------- 445 Alteration of State purchase order -------------------------------------------- 446
RECIPROCITY Reciprocal Laws Relating to Collection of Debts No agreement between Georgia and other states __________________ 447 Comity See COURTS, this Index. Taxation See TAXATION, this Index. Uniform Reciprocal Enforcement of Support Act See DOMESTIC RELATIONS, PARENT AND CHILD, this Index.
SALES Sales Promotion Bonuses and rebates to customers -------------------------------------------- 447
SECRETARY OF STATE See STATE GOVERNMENT, this Index.
SECURITIES Variable Annuity Contracts Subject to regulation as security ---------------------------------------------- 448
STATE GOVERNMENT Appropriations Appropriations Act of 1961 ------------------------------------------------------- 453 Attorney General Outline of duties ---------------------------------------------------------------------------- 455 Comptroller General and Insurance Commissioner Annual report to Governor ---------------------------------------------------------- 456 Conflict of Interests Lease by Board of Education of building owned by member -------------------------------------------------------------------- 458 Employees Earnings under $1,000 due deceased employee payable to widow ---------------------------------------------------------------------- 459 Employees health insurance plan approved ---------------------------- 460 Prohibited and permissible political activity ____________________461, 465 Solicitors General are State employees -------------------------------------- 463 Employees Health Insurance Eligibility for coverage ---------------------------------------------------------------- 466 Georgia Historical Society May not use construction money for raising Confederate gunboat ---------------------------------------------------------------- 467

635

Page

STATE GOVERNMENT-continued

Justice of the Peace Justice of Peace is State officiaL_____________________________________________ 468

Liability Claims Against State



Only General Assembly can allow --------------------------------------=~--~--- 469

Purchasing Department

Relocation of power lines in State park not

Secr~~~rc;r~f ot~~rcha~g Department ---------~---------------------------- 469

Duties as Surveyor General -------------------------------------------------------- 470

State Capitol

'

Grounds cannot be used for fall-out shelter ---------------------------- 471

Stone Mountain Memorial Association

/

Is agency of State ------------------------------------------------------------------------ 472

Surplus Funds

Governor may use to salvage Confederate gunboat ________________ 473

Surplus Property

Governor authorizing sale of ------------------------------------------------------ 474

TAXATION Ad Valorem Taxes Alteration of property evaluation ---------------------------------------------- 483 Boats owned by military personnel ------------------------------------------ 484 Chicken, eggs, and honey are farm products __________________________ 481 City must assess personalty as well as realty ________________________ 491 Disabled veteran not exempt from taxes on automobile ________ 487
Discussion of tax situs ---------------------------------------------------------------- 479 Exemption of corporation from tax on realty ________________________ 487 Fraternal organizations not exempt __________________________________481, 501
Lands, whether improved or unimproved, must
be returned for taxation -------------------------------------------------------- 488 Mineral rights must be returned ---------------------------------------------- 489 Property leased to bank -------------------------------------------------------------- 489 Property temporarily removed from State ______________________________ 485
Reserve fund of credit union ------------------------------------------------------ 478 Serviceman subject to tax in county and
State of legal residence __________________________________________476, 479, 490
Situs for tax purposes normally county where
owner resides ---------------------------------------------------------------------------- 483 Transient aircraft ------------------------------------------------------------------------ 480 Vehicles of motor carriers domiciled in State __________________ 491
Aviation Gasoline Refunds to distributor -------------------------------------------------------------- 493
County Board of Tax Assessors Must revise and assess returns by June 1 ---------------------------- __ 493 See, also TAX COLLECTORS, COMMISSIONERS AND RECEIVERS, this Index.
Corporation Occupation Taxes Holding company holding bank property not exempt ____________ 493
Exemptions Camp ground owned by church exempt ------------------------------------ 499

636

Page

TAXATION-continued

Certificate of ownership of cooperative apartment

not exempt from intangible tax ------------------------------------

505

Domestic animal included in personal property

exemption ---------------------------------------------------------------------------------- 506

Exemption for industrial development purposes

prohibited by Constitution ----------------------------------------------------- 504

Homestead exemption applied prior to collection

of school taxes --------------------------------------------------------------------------- 504 Homestead exemption does not include automobile ________________ 494

Law libraries not included in personalty exemption ________________ 499

Medical College of Georgia Foundation, Inc. ____________________________ 503

Ministers' automobiles not exempt ---------------------------------------- ___ 507

Personal property exemption differs from homestead

exemption --------------------------------------------------------------------------------- 500 Qualification of charitable organization for exemption _______ 495

Veterans exempt from peddlers and business license taxes____ 501

Federal Excise Tax on Gasoline

Gasoline for school buses ------------------------------------------------------------ 507

Federal Tax Liens

Payment due from Welfare Department to nursing

home subject to Federal tax lien ------------------------------------------ 508

Franchise Tax

Rights granted by Public Service Commission under

certificates of public convenience and necessity are

special franchises subject to taxation _____________________________ 511

Franchise and License Taxes

Cooperative marketing association exempt ------------------------------ 512

Gasoline Taxes

British consular official not exempt ------------------------------------------ 514

Economy gasolines taxed in same manner as other grades____ 518

Foreign farm operator could obtain refund

otherwise due him -------------------------------------------------------------------- 518

Production of nursery products as exempt farm

operation in certain instances ------------------------------------------------ 517 Refunds to limited segment of public prohibited ____________________ 513

See also AGRICULTURE, this Index.

Income Taxes

Bank shares of property held through holding company ________ 520

Income from Superior Court Clerks' Retirement Fund __________ 519

Stock distributed in accordance with Court ordered

divestiture is taxable dividend ------------------------------------------ ____ 521

Income Tax Fi. Fa.

Release of property against which fi. fa. recorded ________________ 522

Intangible Personal Property

Description in charter that institution

charitable not controlling -------------------------------------------------------- 523 Owned by religious, educational or charitable institutions______ 523

Intangible Property Tax

Assignee of securities subject to tax though ownership not shown on assignee's books ____________________________ 524

637
Page
TAXATION-continued Mortgage to secure sublease agreement is long term note secured by real estate subject to tax ----------------------------------- 527 Payment of recording tax by bank as trustee ________________________ 525
Resident temporarily outside State subject to intangible property taxes -------------------------------------------------------- 526
Usufructuary and remainderman interests in stock ______________ 528 Intangible Tax Act of 1953
Non-resident companies purchasing bonds of Georgia corporations ---------------------------------------------------------------- 533
Notes all part of same transaction representing one loan, partly payable after three years, are long term notes secured by real estate and taxable as such ________________________ 531
License Taxes Billiard or pool rooms ------------------------------------------------------------------ 538
Motor Carriers' Fuel Tax Act Pick-up truck not normally covered ------------------------------------------ 538
Motor Vehicles Disposal of property or move from county after January 1 does not alter tax liability ------------------------------------ 539
Motor Vehicle License Taxes Contract carrier of mail not exempt ---------------------------------------- 540 Italian consular official exempt ------------------------------------------------ 541
Municipal Corporations Must be authorized by legislature to tax -------------------------------- 541
Penalties Bankruptcy adjudication liquidates Sales and Use Tax penalties ------------------------------------------------------------------------------ 542
Reciprocity Credits allowed on sales, use and motor vehicle taxes ____________ 543
Sales and Use Tax Advertising materials bought outside state ---------------------------- 556 Baler twine -----------------------------------------------------------------------------------Credit for taxes paid in Mississippi ----------------------------------------- 550 Drying and cleaning of peanuts not taxable ____________________________ 561 Filtering cloths used in manufacturing processes ____________________ 557
Food for bees for production of honey ------------------------------------ 553 Materials for State work where contract is for
services including materials ---------------------------------------------------- 560 Medications for poultry taxable ------------------------------------------------ 562 Purchases of Southern Interstate Nuclear Board ____________________ 555
Raw material used on highway project ------------------------------------ 559 Sale of sand removed from realty taxable -------------------------------- 545 Sales to contractor for Federal Government ---------------------------- 547 Taxability of materials in Federal contract partly
furnished by Government and partly by contractor ____________ 549 Taxation by political subdivision of utility services
violates Sales and Use Tax Act ---------------------------------------------- 561 Textile machinery for Georgia Tech ------------------------------------------ 558 Tax Assessor's Office Record-keeping requirements for consolidated office ____________ 563

638

Page
TAXATION-continued Tax Liens Fi. fas. covering both real and personal property ________________.____ 564
Time Inclusion of Saturdays and Sundays in number of days for taking action ------------------------------------------------------------- 565
TAX COLLECTORS, COMMISSIONERS AND RECEIVERS Clerical Assistance Money authorized for cannot be used for other purposes ______ 566
Commissions Allowable commissions applicable even where part of tax revenues for school purposes ------------------------------------------ 567 Collector or commissioner has no vested interest in taxes he did not collect ------------------------------------------------------ 569
Employees Clarke County Tax Collector -------------------------------------------------------- 570
Executions Procedures for issuing fi. fas. -------------------------------------------------- 571
Faithful Performance Land purchased from tax commissioner subject to State lien for faithful performance of duties -------------------------------- 572
Vacancy Duty of Ordinary to fill -------------------------------------------------------------- 573
TRUSTS Foreign Real Estate Investment Trusts ------------------------------------ 575

UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT See COURTS, DOMESTIC RELATIONS, PARENT AND CHILD, this Index.

UNIVERSITY SYSTEM OF GEORGIA

Augusta College

Contract with Federal Government must have

nondiscrimination clause ------------------------------------------------

576

Board of Regents

Transfer of property -------------------------------------"------------- _______________ 576

Columbus College

Contractual arrangements with Muscogee County

School District -------------------------------------------------------------------------- 579

Fund Raising

Joint Tech-Georgia Fund subject to Regulation of

Professional Fund Raising Act ---------------------------------------- _____ 581

Gifts

Must be free of donor's right to control, reclaim

or acquire dividends from -------------------------------------------------------- 581

Loyalty Oath

Can be no qualified oath as exception to

prescribed oath -------------------------------------------------------------------------- 583

633
Page
UNIVERSITY SYSTEM OF GEORGIA Medical Scholarships Repayment to State of funds received ----------------------,--- ___________ 585 Motor Vehicles Purchase of passenger truck ------------------------------------------------------ 586 Real Property Transfer to University System Building Authority ______________ 588 Expenditures for improvements cannot be made where Board of Regents does not hold title ------------------------------------ 588 Sale of Property Proceeds of sale by Board of Regents to be used for support of University System ------------------------------------------ 590 Student Charity Auctions Not forbidden ------------------------------------------------------------------------------- 593 Student Loan Funds University cannot employ private attorneys to collect delinquent funds ---------------------------------------------------------- 593 Student Residence Requirements ____________________________________594, 595, 596 Surplus Property Procedure for disposition ------------------------------------------------------------ 598
VETERANS See MOTOR VEHICLES, TAXATION, this Index.
WAREHOUSES Receipts Discussion of State Warehouse Act of 1953 ____________________________ 598
WEAPONS Knives No Iaw regulating length ------------------------------------------------------------ 604 PistoIs --------------------------------------------------------------------------------605, 606, 607 Sale Shotguns and rifles ---------------------------------------------------------------------- 608
WILLS AND ADMINISTRATION OF ESTATES Personal Property Notes given for purchase price of land are personalty subject to administration when holder dies ________________________ 609
WORKMEN'S COMPENSATION Civil Defense Volunteers Volunteers receiving no compensation not subject to Act -------------------------------------------------------------------------- 611 County Employees Counties are employers within meaning of Act ______________________ 613 Sheriff's widow entitled to benefits ---------------------------------------- 612 Newspaper Dealers Are employers within meaning of Act -------------------------------------- 613 Proximate Cause of Injury Employee injured while off duty recuperating from previous injury not entitled to compensation for second injury ---------------------------------------------------------------------- 615

640 Page
WORKMEN'S COMPENSATION-continued Students Agricultural school students working as part of curriculum not employees within meaning of Act ______________ 616